The Promise and Pitfalls of Justice Barrett's Skrmetti Concurrence

Justice Barrett rehabilitates Footnote 4, gives credence to Justice Kennedy's animus jurisprudence, and all but says that gays who were affected by a "legacy of de jure discrimination" are a suspect class.

I really, really wanted to like Justice Barrett's concurrence in Skrmetti. Indeed, my initial reaction was optimistic. But after spending forty-eight hours with the opinion, Skrmetti reinforced all of my concerns about Justice Barrett: she is still a scholar trying to approach the law like a law review article, and advance theories without awareness of the practical consequences. To rebut the predictable response, Justice Thomas erred by joining this opinion. Maybe he did so to give his embattled colleague some cover. (I speculated CT did so in 2021.) But I think Thomas will come to regret this vote.

Let's walk through it.

First, Justice Barrett has built her reputation on not deciding issues that are not necessary to decide. Restraint is the name of the game. If so, why did she write this concurrence? The Roberts majority opinion settled the issued on narrow grounds. (And Justice Alito thinks those grounds were contrived.) Barrett does not explain why she addressed whether "transgender status constitutes a suspect class." And if she is willing to resolve this question that is not presented, why did she decline to resolve countless other questions that she thought were not presented? We have no answer. Maybe she will tell us why in her book.

Second, Part I of the opinion provides a readable digest of the Court's Equal Protection Clause jurisprudence. This is Professor Barrett at her best. She is very good at explaining doctrine. Part II explains why transgender people are not a suspect class. This section is largely right, until the penultimate sentence:

To be sure, an individual law "'inexplicable by anything but animus'" is unconstitutional. Trump v. Hawaii, 585 U. S. 667, 706 (2018).

Trump v. Hawaii was decided on the final day of Justice Kennedy's tenure. Animus was a constant theme throughout his cases, including Romer, Lawrence, Windsor, and Obergefell. I was confident that the discussion of animus in Hawaii was done at the insistence of Justice Kennedy to secure his fifth vote. In Skrmetti, Chief Justice Roberts's majority opinion mentions animus only in passing. Yet Justice Barrett made this the key limitation on her decision.

Here, ACB is reanimating perhaps the worst facet of Justice Kennedy's jurisprudence. What does animus mean? As Windsor and Obergefell would explain, animus includes moral disapproval: disapproval based on the morality of gays and lesbians was evidence of animus. And look at the language: "inexplicable by anything but animus." There does not need to be evidence of actual animus. Rather, it is enough that animus is the only possible explanation based on the consequences--this is some sort of disparate impact analysis. Courts can discern animus from the ether. Hawaii used the concept of animus in an unusual Establishment Clause context. But Barrett has now imported that standard back into the Equal Protection Clause.

Why would she do this? I have been celebrating how Justice Kennedy's jurisprudence was (rightly) consigned to the ash heap of history. As Randy and I edit the next edition of the casebook, we are trimming all of the Kennedy decisions. But now Justice Barrett has brought "animus" back to life. Does she realize what she did here? Or was this just a law professor trying to draw analogies and make sense of doctrine?  I just don't think she sees these things. Or worse, if she does see these things, and does it anyway, then we should be really worried.

Third, Justice Barrett attempts to develop a theory to understand Footnote Four of Carolene Products. Why do this? Footnote Four was a creation of the New Deal Court that had no bearing in the text or history of the Constitution. Worse still, it was not even adopted by a five-member majority. And you don't have to take my word for it. Here is how Justice Scalia described Footnote Four in Schuette v. Coalition to Defend Affirmative Action (2014)--a concurrence that Justice Thomas joined:

The dissent trots out the old saw, derived from dictum in a footnote, that legislation motivated by " 'prejudice against discrete and insular minorities' " merits " 'more exacting judicial scrutiny.' " Post, at 31 (quoting United States v. Carolene Products, 304 U. S. 144 –153, n. 4). I say derived from that dictum (expressed by the four-Justice majority of a seven-Justice Court) because the dictum itself merely said "[n]or need we enquire . . . whether prejudice against discrete and insular minorities may be a special condition," id., at 153, n. 4 (emphasis added). The dissent does not argue, of course, that such "prejudice" produced §26. Nor does it explain why certain racial minorities in Michigan qualify as " 'insular,' " meaning that "other groups will not form coalitions with them—and, critically, not because of lack of common interests but because of 'prejudice.' " Strauss, Is Carolene Products Obsolete? 2010 U. Ill. L. Rev. 1251, 1257. Nor does it even make the case that a group's "discreteness" and "insularity" are political liabilities rather than political strengths[8]—a serious question that alone demonstrates the prudence of the Carolene Products dictumizers in leaving the "enquir[y]" for another day. As for the question whether "legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation . . . is to be subjected to more exacting judicial scrutiny," the Carolene Products Court found it "unnecessary to consider [that] now." 304 U. S., at 152, n. 4. If the dissent thinks that worth considering today, it should explain why the election of a university's governing board is a "political process which can ordinarily be expected to bring about repeal of undesirable legislation," but Michigan voters' ability to amend their Constitution is not. . . . But the more important point is that we should not design our jurisprudence to conform to dictum in a footnote in a four-Justice opinion.

A decade ago, Scalia and Thomas said we should not rely on Footnote Four. Yet Barrett, and Thomas, do exactly that. Why? This entire enterprise is flawed. Here, Justice Barrett rehabilitates Justice Kennedy's "animus" framework and gives new light to Footnote Four of Carolene Products. It gets much, much worse.

Fourth, Justice Barrett lays out a test to determine whether a class is suspect under Footnote Four: has the class been subject to a long history of de jure discrimination.

For purposes of the Fourteenth Amendment, the relevant question is whether the group has been subject to a longstanding pattern of discrimination in the law. In other words, we ask whether the group has suffered a history of de jure discrimination.

And Barrett folds animus into this analysis:

And state actors are entitled to a presumption that their actions turn on constitutionally legitimate motivations rather than impermissible animus.  Of course, this presumption can be defeated, and a widespread history of state action that reflects animus or stereotyping gives courts good reason to be suspicious of the government's motives.

And Barrett then loops her analysis back to Footnote Four:

Focusing the inquiry on de jure state action would also clarify the test for political powerlessness, which is another factor we have used to determine whether a classification is suspect. Carolene Products, the source of the "discrete and insular minority" test, equates political powerlessness with laws burdening those who lacked a vote. . . . A legacy of de jure discrimination, by contrast, more precisely (and objectively) captures the interests that lie at the heart of the Equal Protection Clause. . . . In future cases, however, I would not recognize a new suspect class absent a demonstrated history of de jure discrimination.

There you have it. A class that has suffered a "legacy of de jury discrimination" will likely be suspect. Do you know which group has suffered "a demonstrated history of de jure discrimination"? Gay people! Chief Justice Burger laid out the history in Bowers v. Hardwick (1986):

As the Court notes, ante at 478 U. S. 192, the proscriptions against sodomy have very "ancient roots." Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards.

There are few demonstrated histories of de jure discriminations that are as longstanding as the biblical prohibition on sodomy.

If Justice Barrett is right, then Bowers was wrong, and Lawrence was right. Likewise, the Defense of Marriage Act and marriage bans were just the latest iterations of de jure discrimination against gays. So Windsor and Obergefell were also right. Does Justice Barrett even see this problem? Did Justice Thomas? This excerpt will be cited for generations to come by gay people seeking recognition as a suspect class. Curiously, I'm not sure that discrimination against lesbians has a similar pedigree, so maybe such classifications are not quite as suspect.

But the problems are even worse.

Fifth, the fact that there is a "demonstrated history of de jure discrimination" going back to 1868, and earlier, shows that the Constitution does not prohibit such discrimination! That was the entire point of Bowers. If generations of Americans have assumed that gay people were not a suspect class, that is proof that the original meaning of the Fourteenth Amendment did not embrace gays as a "suspect" class. Likewise in Dobbs, the fact that abortion was banned in the 19th century is proof that abortion is not a constitutional right.  And I'll indulge for a moment that our modern Equal Protection Clause jurisprudence is correct, but it's not for reasons Chris Green has explained. Indeed Justice Thomas reiterated this point in his concurrence:

I assume for purposes of this opinion that government-sponsored sex discrimination triggers heightened scrutiny under the Equal Protection Clause. As I have noted elsewhere, however, "[i]t is possible that the Equal Protection Clause does not prohibit discriminatory legislative classifications" at all. United States v. Vaello Madero, 596 U. S. 159, 178, n. 4 (2022) (concurring opinion). And, even if it does, the Court "routinely applied rational-basis review" to sex-discrimination claims "until the 1970's," Virginia, 518 U. S., at 575 (Scalia, J., dissenting), which might suggest that the application of heightened scrutiny to such claims is a departure from the Fourteenth Amendment's original understanding. But, the parties have not briefed the issue, so I do not pass upon it here.

I don't understand how Justice Thomas has put his name to this concurrence. It is embarrassing.

Sixth, Barrett affirmatively repudiated the "history and tradition" test in Rahimi and Vidal. And she doubles down here. According to Justice Kavanaugh, if there is a longstanding practice, it forms a gloss on the Constitution. But Barrett presumes just the opposite--a longstanding practice based on animus, when judged by modern people, should not be entitled to a presumption of constitutionality. And this entire focus on "animus" is premised on modern people judging the antiquated morality of people long ago. This is Windsor and Obergefell all over again. Here too, I don't know how Justice Thomas could have signed this opinion. I think he will come to regret it very soon.

***

I really, really wanted to like Barrett's opinion. For the first time in years, I read something she wrote that involved some ingenuity and creativity. But she did affirmative damage to constitutional law here. Maybe she is proud of this constitutional theory she developed--one that none of the parties advanced! She was pushing this idea real hard at oral argument. But it is nothing to be proud of. Indeed, in Romer Justice Kennedy only went so far as saying that classifications based on sexual orientation were subject to "heightened" rational basis review. Justice Barrett is to the left of Justice Kennedy (as was Gorsuch in Bostock)!

Were this a law review article workshopped, I would be the person to ask "What are the practical consequences of your theory for other areas of the law?" Professor Barrett would have been well-served to consider this question before entering it into the U.S. Reports. Perhaps Justice Thomas can rescind his join before the case is sent to the U.S. Reports.