Judges should judge
The term hath endeth! The justices are slathering on the SPF, teaching classes in Italy, gallivanting in their RVs, and doing whatever else it is that the justices do for the summer. Justices, they’re just like us—but with robes.
After this scoop of SCOTUS, we’ll have one final recap of the term before I, too, break for summer. Except my “break” means more suing the government.
Buckle up. This one’s long—but it covers the most contentious cases of the term, nearly all of which centered on an issue close to my heart: judicial review.
In Skrmetti, the real issue was how much judges should judge
United States v. Skrmetti was one of the most closely watched cases of the term because of its hot-button subject matter—Tennessee’s ban on transgender care for minors. But the case was never just about trans care. It was about the role of the judiciary.
Last week, the Supreme Court upheld Tennessee’s ban—not because it found the policy wise or just, but because it ruled that the law did not discriminate based on sex, or even transgender status, and the Court therefore applied a very low form of judicial scrutiny: rational basis review. Given the mixed evidence on care for minors, the Court ruled that Tennessee could’ve rationally concluded that banning this care protects children from harm.
The real fight in this case was over what level of scrutiny applies. No attorney wants to be stuck in rational basis land; that bar is low enough to trip over. If the government can dream up any justification for a law—even after the fact—courts must uphold it. And even if they can’t dream up a justification for the law, judges can make one up themselves. That’s quite the perversion of the adversarial system, which usually depends on each side making its own case and judges merely calling “balls or strikes.” It’s also a perversion of the Constitution, which establishes the judiciary to check legislative excesses, not rubber stamp them.
Because rational basis scrutiny is so low, attorneys will do anything to argue for a higher tier. Laws that restrict freedoms explicitly mentioned in the Bill of Rights, or that discriminate against “discrete and insular minorities,” enjoy a heightened standard of review. Thus, the question in Skrmetti was whether the law discriminated based on sex or transgender status and was subject to meaningful scrutiny or the no-good, very-bad rational basis test.
Writing for the majority, Chief Justice Roberts said the law doesn’t discriminate based on sex because it bans both sexes from this type of treatment. And it didn’t matter that the legislature mentioned wanting minors to “appreciate their sex.” Mere reference to sex, the Court said, doesn’t turn a neutral law into a sex-based one. By referencing sex, the legislature was describing the harm it was trying to avoid. Still, it applied equally.
The majority also said the law doesn’t discriminate based on transgender status; it classifies based on age (adults can access the treatment, minors cannot) or based on medical treatment (minors can access the same medications to treat congenital defects, but not for transgender care). But neither of those are “suspect” classifications. So… rational basis it is.
Put aside this specific law—our view of judging should not depend on any particular issue, or plaintiff, or political party. In a system that supposedly guards liberty through separation of powers, courts are supposed to judge not only the process by which laws are made, but also the substance of the laws themselves. After all, how can you tell whether a law violates someone’s rights unless you look at the substance of it? That doesn’t mean judges are engaged in policymaking. It means they are asking whether lawmakers took away someone’s liberty for a legitimate reason, or instead did so based on whim, favoritism, error, or animus.
Under the rational basis test, courts refuse to answer those questions. Ironically, courts say they’re protecting separation of powers by deferring to legislatures. But the whole point of having courts is to second-guess legislatures—to enforce constitutional limits. When judges rotely defer to the legislative branch, they abdicate this vital backstop on government overreach.
My point is: Yes, the majority made a persuasive argument that the law is not sex-based. And yes, it’s plausible that the law protects minors. I don’t hate the player; I hate the game. Our system of “tiers of judicial scrutiny” creates a world where some laws are scrutinized intensely, while others are rubber-stamped. And in the name of objectivity, we get a new subjectivity: Your rights get real review only if the Court thinks they matter.
But I digress.
Justice Thomas wrote a concurring opinion warning of the problems of deferring to the “expert class,” and saying that rather than deferring to them, we should let states and the people choose their laws. Justice Barrett wrote separately to say that even if the law discriminates based on transgender status, transgenderism is not a suspect class entitled to a higher level of scrutiny. Justice Alito went further and said there’s a strong argument the law discriminates based on transgender status, but that the group doesn’t qualify for special protection because it’s large, diverse, not immutable, and lacked a history of government-sponsored discrimination.
Justice Alito ended on a sympathetic note:
That conclusion, however, should not be taken as a denial of the discrimination that transgender people have faced. Nor should it be taken as an evaluation of any specific legislative action concerning transgender persons. It simply means that transgender persons, like members of other disadvantaged groups—the poor, the aged, the disabled, etc.—have not made the extraordinary showing that they are entitled to a higher level of constitutional scrutiny.
Justice Sotomayor dissented, joined by Justices Jackson and mostly by Justice Kagan. She said the law is both sex- and transgender-based, and that intermediate scrutiny should apply because it “allows courts to ascertain whether the State has a sound, evidence-based reason” for its action. (Yes, and that’s what we should apply to all laws). Justice Kagan filed her own dissent. She said that heightened scrutiny applies, but that doesn’t mean the ban necessarily must fall. It simply means that judges should take a closer look at the law, even if ultimately there are good-enough reasons to sustain it. Now this is a take we love to see.
In sum, as Justice Sotomayor pointed out (and hardly anyone could disagree): “The level of constitutional scrutiny courts apply… is enormously consequential.” Rather than trying to contort our arguments into the right level of scrutiny (government always wants less, plaintiffs always want more), we should demand evidence-based reasoning from government every time it takes away someone’s liberty—not just when the cause is fashionable.
We’re gonna need to see some ID
In Free Speech Coalition v. Paxton, the Court upheld a Texas law that requires websites carrying 30 percent or more explicit content to verify their users are over the age of 18.
Plaintiffs argued that the law burdens the rights of adults to access this speech, and it should therefore be subject to strict judicial scrutiny, which it cannot satisfy. The State argued that the law is directed at protecting minors, who have no constitutional right to access obscene material, and so only rational basis scrutiny applies (sound familiar?).
In an opinion written by Justice Thomas, the Court ruled that neither was quite right. The law has only an incidental effect on adults’ speech, so it is subject to intermediate scrutiny—which it easily satisfied. I admit to being a bit confused. Justice Thomas seemed to focus on the purpose of the law, rather than its effect. He also said a complete ban on obscene material might be different, but it’s not clear why. He wrote that adults have no constitutionally protected right to access porn free of age verification, so the law didn’t violate their rights. But that begs the question. And he applied a watered-down version of intermediate scrutiny, writing that the government has no obligation to utilize the least-restrictive means nor to avoid all under-inclusiveness. The Court seemed to be dialing back its usual First Amendment rigor because… #porn.
In dissent, Justice Kagan (writing for the Democrat-appointed justices) said strict scrutiny should apply. But echoing her dissent in Skrmetti, she emphasized that this need not be a “death sentence” for the challenged law:
Texas can of course take measures to prevent minors from viewing obscene-for-children speech. But if a scheme other than H. B. 1181 can just as well accomplish that objective and better protect adults’ First Amendment freedoms, then Texas should have to adopt it (or at least demonstrate some good reason not to). A State may not care much about safeguarding adults’ access to sexually explicit speech; a State may even prefer to curtail those materials for everyone. Many reasonable people, after all, view the speech at issue here as ugly and harmful for any audience. But the First Amendment protects those sexually explicit materials, for every adult.
Sorry not sorry if government thinks accommodating people’s rights is “unworkable”
In Mahmoud v. Taylor, the Court considered parents’ right to opt their children out of lessons that conflict with their religious beliefs.
A group of parents challenged Montgomery County, Maryland’s use of LGBTQ+ books for elementary students. They had gone to the school board directly, but rather than listening, the school board insulted them (one member called the parents’ testimony “disturbing”) and eventually withdrew the old opt-out scheme—even though parents can opt out of other units, like sex-ed. According to the board, it could not accommodate the “growing number of opt-out requests,” which probably should’ve been a sign that its curriculum was not something parents wanted.
The parents sued, but the Fourth Circuit Court of Appeals said they could succeed on their free exercise claim only if they could show that the students were being coerced into adopting certain viewpoints. The majority disagreed. Coercion is not required. Instead, it’s enough that a law substantially interferes with parents’ religious upbringing.
The Court then side-stepped the usual rule that generally applicable laws that burden religious rights are subject to rational basis scrutiny (again, nobody wants that!) by applying a special rule for laws that interfere with the religious upbringing of children. Ergo, strict scrutiny applies.
Under that standard, the school board’s let-them-eat-cake suggestion that objecting parents go to private school doesn’t cut it. The government can’t condition public education on surrendering constitutional rights. And the board’s “opt-outs are unworkable” claim? Not good enough and untrue.
Sidenote: It’s interesting that the parents in Skrmetti did not bring a parental rights’ claim. In some ways, Skrmetti and Mahmoud are the converse of each other, with judges on each side wanting parents’ rights for me, but not for thee. Higher scrutiny for laws that protect certain political minorities or rights, but not others.
Justice Alito wrote the majority opinion, joined by the Chief, and Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Justice Thomas wrote a concurrence to note, among other things, the irony of inclusiveness at the expense of well… inclusiveness.
The dissent, from Justice Sotomayor (joined by Kagan and Jackson), warned this would be disastrous for public schools. But maybe it won’t be—so long as schools act like schools and parents get to act like parents.
Separation of Powers attorneys can’t win every case
In FCC v. Consumers’ Research, plaintiffs challenge a scheme that gave the Federal Communications Commission discretion to collect contributions from telecommunications companies “sufficient” to support universal service programs. The plaintiffs argued that Congress handed over too much power.
Justice Kagan (writing for the Chief and Justices Sotomayor, Kagan, Barrett, and Jackson) said not so, affirming the traditional “intelligible principle” test, which asks if Congress provided adequate guidance. The Court declined to adopt a higher standard for cases involving mandatory contributions (i.e., taxes). It said there’s no principled way to distinguish so-called taxes from the innumerable revenue-raising provisions that are endemic to congressional statutes, and anyway, caps are not constitutionally required.
It’s often said that bad facts make bad law, and perhaps this case proves it. It seems like the law was not as crazy as the plaintiffs were chalking it up to be, and maybe the FCC was engaging in run-of-the-mill government conduct. Justice Kagan accused the plaintiffs of taking an unwarranted reading of the statute to drum up constitutional infirmities: “At every turn, they read Section 254 extravagantly, the better to create a constitutional problem.” She continued, “Statutes (including regulatory statutes) should be read, if possible, to comport with the Constitution, not to contradict it.”
Justice Kavanaugh wrote separately basically affirming the intelligible principle test and saying he believes delegation is a bigger concern when Congress is delegating to “independent agencies” than to executive agencies, which are more politically accountable. Justice Jackson also concurred, observing her skepticism toward the private nondelegation doctrine.
Justice Gorsuch, joined by Justices Thomas and Alito, dissented, saying sure, Congress offered many guiding principles, but it was almost too many principles—forcing the FCC to balance them all, to figure out which programs to support, and then how to pay for them. And not only that, but it gave the FCC power over the power to tax, which as we all know, is the power to destroy. He would reconsider whether the “intelligible principle” test is doing its job.
Justice Thomas, lately
Some interesting concurrences from Justice Thomas at the end of the term. In Gutierrez v. Saenz, he wrote that the Fourteenth Amendment’s Due Process Clause only protects liberty in terms of freedom from physical restraint. A narrow view, and one that ignores the fact that nearly every government prohibition is backed by threat of physical restraint. In Medina v. Planned Parenthood, he questioned the scope of Section 1983, saying courts have let it exceed its original limits. (As someone who sues under 1983 for a living, I’d argue it’s been eviscerated.) And in Mahmoud v. Taylor, he suggested that one reason sex education is constitutionally suspect is because it wasn’t around at the time of the Founding.
Universal injunctions are dead; long live class actions
After suffering numerous nationwide injunctions in district court, including an injunction against its new birthright citizenship rule, the Trump administration challenged this practice—and it largely won. In Trump v. CASA, the Court limited the judiciary’s ability to issue injunctions beyond the parties in the case while affirming that courts can craft far-reaching remedies when necessary to protect the parties before them. It did, however, keep open various other avenues for plaintiffs to get broad results—like class actions and Administrative Procedure Act claims. It therefore struck a balance between the worst abuses (courts issuing nationwide injunctions just because they think the issue is REALLY important) while affirming that courts play a critical role in preserving individual rights.
Like most things, we’ll have to see how it actually plays out in practice. In the short term, the decision means that lower court orders will technically apply only to the parties in the case, meaning the government can then continue breaking the law until someone else finds a lawyer and goes back into court to get their own injunction. But the prospect of sanctions might decrease that risk in the long run. And class actions will likely fill the void for many plaintiffs formerly getting the benefit of nationwide injunctions.
What could’ve been?
Justice Alito recently said that one of the biggest disappointments of the term was the Court’s failure to take up two of PLF’s cases seeking to end racial discrimination in K-12 schools. Gratifying (though a grant would’ve been more gratifying).
In which I prove my value to… SCOTUSblog?
My first column in SCOTUSblog’s In Dissent series covers one of the most iconic dissents ever: Justice Scalia in Morrison v. Olson. That’s the case that gave us: “This wolf comes as a wolf.” And he was right.
One more issue to go. If you’ve made it this far, you’re a true SCOTUS lover.