The Volokh Conspiracy
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"What Skrmetti Should Have Said"
"Yet, Dobbs did not repudiate the basis of Roe and Casey, the notion that legislatures are not empowered to enact laws based on public notions of morality. And Skrmetti refused to acknowledge that foundational basis of our republic."
Civitas Outlook has published my new essay, titled What Skrmetti Should Have Said. It begins:
I often ask students two questions inspired by Justice Antonin Scalia: identify a decision where you disagree with the outcome, but agree with the reasoning, and identify a decision where you agree with the outcome, but disagree with the reasoning. These questions serve as a gut-check to ensure that their reasoning does not simply follow their policy preferences. Students generally answer the first question with ease. Justice Scalia, for example, often cited his vote to protect a protester's First Amendment right to burn an American flag. But students have a much tougher time with the second question. Usually, if they agree with the bottom line of an opinion, they find a way to accept the reasoning, even if not perfectly.
For me, United States v. Skrmetti falls into the second category. The Court, by a 6-3 vote, held that Tennessee can ban doctors from "transitioning" minors to the opposite sex. This holding would have seemed so obvious only a generation ago. Yet, in a short span, elite opinion shifted such that lower court judges and members of the Supreme Court came to believe this law was clearly unconstitutional. The majority opinion by Chief Justice John Roberts, as well as concurrences by Justices Clarence Thomas, Amy Coney Barrett, and Samuel Alito, got the bottom line correct. But upon reflection, I have doubts they had the best legal argument. Justice Sonia Sotomayor's dissent proved more persuasive than I expected–not a sentence I write very often. In short, Tennessee denied certain medical treatment to minors in large part based on their biological sex, and under longstanding precedent, sex-based classifications are reviewed more stringently.
That doesn't mean the Tennessee law was unconstitutional. Indeed, I think the state has such a strong interest in protecting children — especially from harm by their parents and doctors — that the law would still pass constitutional muster. But the majority opinion, and to a lesser extent the concurrences, engaged in hyper-technical readings of the statute that distracted from the real legal issues. To hear Chief Justice Roberts tell it, Tennessee simply issued a mundane regulation about which medical treatments are available for minors. But this approach ignored the real reason why Tennessee and so many other states have enacted such laws: the legislatures morally disapprove of transgenderism for minors, and sought to prevent children from medically transitioning to another sex. Full stop.
Here, I think, is the key paragraph:
Dobbs v. Jackson Women's Health Organization (2022) rightly overruled Roe and Casey. This decision returned the question of abortion to the elected branches. Yet, Dobbs did not repudiate the basis of Roe and Casey, the notion that legislatures are not empowered to enact laws based on public notions of morality. And Skrmetti refused to acknowledge that foundational basis of our republic. Indeed, Justice Barrett paid homage to Justice Kennedy. She wrote, "an individual law 'inexplicable by anything but animus' is unconstitutional." This was the essence of the line of cases stretching from Romer to Obergefell. It is dispiriting that a former Scalia clerk has abandoned her old boss's mantle and taken up with his jurisprudential nemesis. And I cannot fathom why Justice Thomas signed onto Barrett's concurrence. (There is still time for him to change his vote before the opinion is officially reported.) The right answer, as Thomas and Scalia argued for decades, is that unless the Constitution expressly protects a constitutional right or class, a law motivated by moral disapproval is valid.
I hope this essay will stimulate discussion about how the Court--an even apparently Justice Thomas--has lost its way since Justice Scalia's passing.
