Guest-Posting on Today's SCOTUSBlog Live Blog of New S. Ct. Opinions

I'm much looking forward to it!

You can see the live blog at https://www.scotusblog.com/; the opinions will start coming down shortly after 10 am Eastern, but I'll be on for a pre-opinion conversation at 9:30 am. I have no idea what opinions will come down today, of course, but it should be interesting.

Comments

[SRG2]

Is there any research on whether unanimous decisions tend to be more frequent earlier in an annual session? As in, "let's get all the obvious unanimous decisions out of the way early and leave the controversial or 5-4s until later"

[Eugene Volokh]

I'm sure there are statistics kept on this, likely at SCOTUSblog itself; but my general sense is that things are precisely as you describe.

[loki13]

I don't think it is an image thing.

It's a process thing. Unanimous decisions are easier. You don't have competing drafts, or shifts in majorities, or changes to keep people from righting concurrences in part, and so on. You don't have to respond to dissents, and the issues are "harder" for the Court.

The reason the controversial opinions are last is because they are the opinions that divide the Court, and therefore take the most time.

[Drewski]

The site Empirical SCOTUS looks at stats like this regularly but I'm not sure they have it compiled across multiple terms. I see it discussed in their term roundups but never paid much attention.

[Brett Bellmore]

I like the outcome in UNITED STATES v. SKRMETTI, but I have to say the majority reasoning seems inconsistent with Bostock.

They're really rationalizing that the Bostock reasoning doesn't apply here, I think it clearly does. (And was wrong in Bostock, too, of course.)

[SMP0328]

I wonder if that's why Gorsuch (who was in the majority) was silent during oral argument and did not author an opinion in this case.

[TwelveInchPianist]

The argument is that a man who takes testosterone to live and present as a man is being treated for a different underlying medical condition than a woman who does the same. That makes sense to me.

A more rational approach would be to eliminate heightened scrutiny for sex-based classifications in the medical context.

[Brett Bellmore]

No, I absolutely agree with the reasoning here, I'm just pointing out, as did Sotomayor, that it's utterly inconsistent with the approach they took in Bostock.

[wvattorney13]

I think the difference is that in Bostock the Court was analyzing the literal (and I mean literal) text of a law which prohibited discrimination "because of...sex."

Here we are applying the Equal Protection Clause which has applied heightened scrutiny based upon sex but has not done so in a hyper literal way. Here you don't see animus towards men or animus towards women so this analysis comes out different.

But overall, I agree with you. Bostock needs to go because it will continue to infect this and all other sex and gender based issues from now forward.

[Brett Bellmore]

Sotomayor's dissent properly skewers the majority, I think, for all that I like the outcome. They really are just rationalizing this outcome, which should have been the opposite if they take their reasoning in Bostock seriously.

[MaddogEngineer]

Perhaps, but I think there is some fine tooth distinguishing going on here--Gorsuch silence not having his own concurrence is either telling, or him licking his wounds despite being in the majority. Bostock had a lot of "but for" stuff going on that isn't in this case. Although I agree the most straightforward path would be if Bostock was decided differently.

I've often thought Gorsuch's overall view on this topic was misunderstood because of his opinion in Bostock. The liberals justices were eager to join that thinking they had won a great victory for the future. They didn't realize his fundamental motivation was never, as he carefully avoiding writing, that transgender was itself a protected class. It was as he said, in some but not all cases it is indistinguishable from sex discrimination.

[David Nieporent]

if they take their reasoning in Bostock seriously.

Bostock was interpreting different language of a different text.

[MaddogEngineer]

I saw you join! I normally try and follow the live chat over there on opinion days. Appreciated your contribution.

Also, one of your co-conspirators had a rather rough morning, considering his most recent target of derision did not disappoint the home team. And indeed, staked out the most conservative position in Skrmetti--transgender not a protected class.

[TwelveInchPianist]

"transgender not a protected class"

That's not what it said.

[Josh R]

Correct. Barrett, Alito and Thomas said it wasn't. The latter two clearly stated Bostock's logic does not apply to the Equal Protection clause. Barrett concluded transgender status is not protected without dealing with Bostock.

Roberts, Gorsuch and Kavanaugh remained silent on the issue, only concluding that SB1 did not classify on the basis of sex. Sotomayor, Jackson and Kagan concluded "transgender persons bear the hallmarks of a quasi-suspect class."

[MaddogEngineer]

It's a good thing I didn't claim it was in the majority opinion. I was talking about ACB's concurrence, where she said it ("staked out the most conservative position"). Blackman's nemesis, who never gets anything correct according to him. A total failure as a justice.

[TwelveInchPianist]

Fair enough. I thought you were talking about Blackman's other nemesis.

[SMP0328]

The majority said this law involved a medical procedure, not sex discrimination. Geduldig v. Aiello, 417 U.S. 484 (1974) was cited for the principle that a law restricting or prohibiting a type of medical care is not sex-based if members of that sex are in the group of those that need that care and in the group that does not. In Geduldig the issue was pregnancy, here it's transgender minors. Not all transgender minors get gender affirming care and so Tennessee's ban on such care is not sex-based.

[Brett Bellmore]

At least the majority on the Court were sane enough to understand that medical treatments, and thus regulation thereof, have to hinge on actual biological realities, and so it's just not sane to treat a guy who calls himself a girl as though he were a girl, or visa versa. Giving somebody of a particular sex hormones intended to restore that sex's normal biological state is NOT the same thing as giving somebody of the opposite sex the same hormones to subvert their normal biological state.

And the state is not obligated to pretend the contrary.

The more general question is whether the Court should ever be interpreting laws to mean things that would have prevented their passage in the first instance, and at no point would have had any chance of enactment on their own.

[Sarcastr0]

That's not the opinion; that's just you pretending to be a doctor.

[arch1]

Why does Geduldig get any deference as a precedent? If I understand its principle as applied in that case, the Court considered the exclusion of pregnancy benefits to *not* be sex based as long as there is any woman who could not become (or perhaps even is not currently?) pregnant.

Absurd.

[wvattorney13]

I think the point is that we have to regulate things like pregnancy or testicular cancer in a million different ways in a million different laws. We can't subject ALL of them to heightened scrutiny simply because they will all only apply to one sex or the other.

No, we limit heightened scrutiny to those laws that have the mark of invidious discrimination.