Find out that Tennessee law requires a valid “quasi-suspect” designation for transgender people under Cleburne

I just listened to the 2.5 hour oral argument Skrmetti. A majority of the court appears poised to uphold Tennessee’s law. There could even be seven votes for this result. But as always, Justice Kagan is in the middle, trying to negotiate a compromise that preserves future challenges for transgender litigants.

I don’t have the transcript yet, so this post is based on my best memory. I will post the transcript later.

Attorney General Prelogar argued that Tennessee law requires gender classification. But Justice Kagan asked her former law clerk whether the law provided for another type of classification—namely, transgender “status.” I immediately thought about it Cleburne And Romerboth of which provided for a sort of quasi-suspect classification that was subject to Rational Basis’s “Plus Bite” review. Both precedents have since fallen by the wayside Lawrence And Obergefellbut they were never repealed. And for a while, Justice Kennedy really believed that this was the way to resolve gay rights cases. Prelogar didn’t take the bait and suggested that transgender status should be a quasi-suspect class. I don’t know whether she didn’t see it or whether the government refused to take that position.

But do you know who took up Kagan’s question? Judge Barrett. She asked the attorney general about a quasi-suspect classification Cleburne. She asked if there was a history de jury Discrimination against transgender people. She asked Arlington Heights. Instead, Justice Alito also took up this question.

Matt Rice, Tennessee’s attorney general, vigorously pushed back against that argument. He said the court has effectively closed these cases. (Randy and I debated whether to remove it Cleburne And Romer (From our casebook.) Furthermore, Rice argued that deciding whether a classification is quasi-suspect is unprincipled. For example, trying to decide whether a particular group lacks political power is not subject to meaningful legal constraints. This was the type of jurisprudence that prevailed in the 1970s and 1980s, but not in modern times. In addition, Rice noted that every argument is based on this Arlington Heightswhich Barrett asked for was waived in this case. In any event, the argument is not that it is the kind of insidious discrimination, or what Justice Kennedy would have called “animus.”

Kagan’s game is transparent. She will vote to uphold the Tennessee law, but believes the court should recognize transgender people as quasi-suspects rather than conducting a rational basis review, and that laws that discriminate against transgender people be reviewed on a rational basis “plus teeth.” should. Previously Obergefell And Lawrencethat was the roadmap for discrimination against gays and lesbians. Kagan will say this Tennessee law survives that respectful standard, as do bans on transgender athletes, but lower federal courts will then have the opportunity to stop any other laws that circumvent those third barriers. We know from Jodi Kantor’s reporting that Judge Kagan tried to negotiate deals in the Trump immunity case, but conservatives weren’t interested. Kagan tries to blow up a deal again. Their ideal would be a 4-3-2 split. Tennessee prevails, but no majority opinion sets standard of review and gives lower courts green light to oversee transgender laws. And the Liberals will defensively deny certification for the rest of time.

Although Judge Barrett asked about the class of quasi-suspects, he seemed very skeptical about it Arlington Heights Output. What about Judge Gorsuch? He didn’t say a word. No beeps. He skipped each of the consecutive rounds. Shortly after the election, I wrote that the Trump administration would closely examine Gorsuch’s questions to decide whether or not to try to accept them Skrmetti from the list.

The case will be heard in December. I’m sure all eyes will be on Judge Gorsuch to see what he does. We remember the consequences of Gorsuch’s questions in Bostock.

Gorsuch gave us nothing to go on with. He didn’t say anything. Will he go along with Judge Kagan’s move? Let’s see what’s on the editorial page of the Wall Street Journal.

Even if Justice Gorsuch joins Kagan, I still believe there are five votes to review the law using the rational basis test. Judge Barrett may agree and say that the issue of parental rights was not raised here, so it is before the court. Of course, the court (and Barrett) denied certification of the ACLU’s petition, which clearly raised the substantive due process issue. But the court has full control over his file. Chief Justice Roberts spoke of respect in a fast-moving and uncertain field. He referred to his South Bay Standard. He will be happy to stand by his precedent there. On the other hand, we know that Justice Gorsuch disagreed vigorously South Bay. Justice Sotomayor brought this up. She even pointed at Gorsuch and said, “my colleague on the right.” He said nothing.