The Volokh Conspiracy
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Arkes: Is Skrmetti "The Best That Conservative Jurisprudence Can Really Serve Up Now, A Concurring Opinion in Buck v Bell?"
The conservatives "thought they were constrained from speaking by a jurisprudence that bars them from invoking truths beyond the text of the Constitution."
In Civitas Outlook, I discussed how the Skrmetti majority refused to even acknowledge the right of the people to govern based on morality. Instead, the Court hid behind technical and legal formalisms. Hadley Arkes states the issue far better than I ever could. Here is a snippet:
The truth that dares not speak its name here is that this wide array of gender-affirming therapies and surgeries is simply predicated on a falsehood. And yet those are the words that the conservative justices apparently see themselves as barred from speaking. Something in conservative jurisprudence holds them back from appealing to the inescapable and objective truth that lies at the heart of these cases. But without it, what were these accomplished jurists able to explain here? What was their ground of justification in overriding the judgments of those parents who were absorbed in the grief and confusion that seized their children? . . . .
The only "instruction" that would be relevant, Justice Thomas, is the unyielding fact that the child is in a state of confusion: he is not occupying some body apart from his own; his sex was not "assigned" at birth but marked inescapably in the organs of reproduction, in the arrangement of his body. His sex is immutable and printed plainly upon him.
Those were the words that Chief Justice Roberts and five colleagues could not move themselves to speak. Or they thought they were constrained from speaking by a jurisprudence that bars them from invoking truths beyond the text of the Constitution—even on the question of what is a human being, the bearer of rights, and when does that "human person" begin? . . .
Without those points in place, the judgment of the Court simply dissolves into a chain of ipse dixits. Why was it not legitimate for the parents of stricken youngsters to order the procedures that might relieve their "gender dysphoria?" Answer: The legislature of Tennessee did not think it a legitimate medical remedy to choose—even though the children and the parents did not share that judgment and were willing to take their risks. One judgment had to prevail, and it was the judgment backed by the power of the State. To put a high finish on it, that "power" represented the authority of a people to govern itself through elected representatives. But when the people speak through their representatives, and override the judgments of parents about their children, they are still obliged to say something more than "we have brute the power to impose this judgment through brute enactment of the law."
Hadley closes by comparing Chief Justice Roberts's decision to Justice Holmes's majority decision in Buck v. Bell.
Unless the Court can explain the grounds that truly compelled its judgment in this case, conservative jurisprudence falls back, as it ever has, on nothing more, as Justice Holmes had it, than the power of the majority to rule and get its way.
Roberts is fond of citing Holmes's Lochner dissent. I don't think the Chief will appreciate the apt comparison to one of Holmes's other decisions that did not age so well.
We should recall that Holmes's grand opinion quickly drew the accolades of the academy and the educated class, quite as enthralled with the romance of euthanasia, as their latter-day counterparts have been about climate change. And all of the ingredients are now again in place: a "controversial medical" procedure, along with people with medical degrees more than eager to show just how they do it; and the case for it seems compelling enough to be enacted into law by those educated people, often with law degrees, who fill out the legislature. But might we not be forgiven for asking: Is this the best that conservative jurisprudence can really serve up now, a concurring opinion in Buck v Bell?
I think my piece, Arkes's piece, and some other emails I've received, reflect a growing awareness of the current Court's deficiency. Since Justice Scalia's passing, I think the Court has lost its way. The fixation on installing Justices who will overrule Chevron has neglected moral foundation that Justice Scalia brought to the Court. Well, Chevron is gone and Roe is overruled. What's next? I think the answer is letting the people govern themselves once again. I do not think it is necessary for the Justices to themselves judge based on any sense of natural law. Unlike Arkes, I do not consider myself a natural law theorist--though I am JWI-curious. Rather, it is enough for judges to be comfortable letting the people govern based on these principles--even when laws might offend modern sensibilities of individual autonomy. I'll admit my views on this topic have changed over the years. I was always persuaded by Scalia over Kennedy as a legal matter, but I didn't quite fully understand why till I read Skrmetti. Now, with the emptiness of Chief Justice Robert's decision, things seem far clearer.
The Court seems open to that end in the Establishment Clause context, such as in Kennedy v. Bremerton and Carson v. Maikin. But the Court is still living in Justice Kennedy's shadow with regard to the Due Process and Equal Protection Clauses. Current discussions about overruling Obergefell miss the point. If the people wish to maintain same-sex marriage, they can make that choice. But, the Court should allow the people to make that choice. As Scalia wrote in Obergefell, the Court disregarded "the freedom [of the people] to govern themselves."
I'll keep writing on this subject.
