SCOTUS Scoop: Nobody (except the government) likes rational basis
We (and the Court) are back! Hope everyone had a happy and healthy Thanksgiving. This year I’m grateful that unlike Dayton, OH, my city hasn’t criminalized charity… yet.
This week the Court heard a highly anticipated case involving a law that bans surgeries, puberty blockers, and other gender affirming care for minors. But before we get to the arguments in that case…
Vape wars
On Monday the Court heard a case that highlights the difficulty individuals and businesses have navigating the complex federal regulatory thicket created by the expansive administrative state. A vaping company, Wages and White Lions Investments, LLC, challenged the FDA’s denial of their application to market a new e-cigarette product. White Lion accused FDA of creating a moving target that was effectively impossible to satisfy. The Fifth Circuit agreed and set aside FDA’s denial, concluding that the agency had committed a “regulatory switcheroo.” For example, at times it had said that “no specific studies” were needed to get approval, but it later turned around and faulted the company for not submitting those very studies with its application.
What’s more, the agency told e-cigarette manufacturers that submitting marketing plans was “critical,” but later it declined to read “a single word” of the plans. The Fifth Circuit called FDA’s actions “the regulatory equivalent of Romeo sending Mercutio on a wild goose chase—and then admitting there never was a goose while denying he even suggested the chase.”
In recent years, the justices have been sympathetic to claims of administrative overreach, but they were less sympathetic to White Lion. They questioned whether FDA had really changed positions. Justice Brett Kavanaugh wondered why White Lion couldn’t simply reapply with the new evidence rather than requesting that a court overturn FDA’s decision and require the FDA to reconsider.
White Lion’s attorney responded that if forced to start again from scratch, White Lion will have to “close their doors,” because even though FDA is supposed to make decisions within 180 days, it’s been taking 3 or 4 years and the company “can’t afford to wait that out.” As a matter of fairness, he argued, the agency should be forced to re-open the current application and give the company another shot.
But as a practical matter, the regulatory landscape might shift again soon, as incoming president Donald Trump has promised to “save vaping.”
The United States isn’t the only country that takes property…
On Tuesday the Court considered whether Hungarian Holocaust survivors can move forward with a lawsuit seeking to recover property that was confiscated by the Hungarian government.
During World War II, Hungary engaged in a campaign to “steal from and exterminate the Jewish People.” It confiscated the belongings of its Jewish citizens before shipping them off to concentration camps, where the vast majority of the country’s Jewish population was murdered. In 2010, a group of survivors and their heirs sued Hungary and its state-owned train company seeking damages for their stolen property. Foreign countries generally cannot be sued in American courts, but the Foreign Sovereign Immunities Act carves out several exceptions. Relevant here, a party can bring a lawsuit where a country takes property in violation of international law and the property or “any property exchanged for such property” is either 1) located in the United States in connection with a commercial activity, or is 2) “owned or operated by an agency or instrumentality” of a foreign country that engages in commercial activity in the United States.
Last year a federal court ruled that even if the plaintiffs couldn’t identify where their property is at this moment, they could proceed because the Hungarian government and its national railway had liquidated the stolen property and commingled it with their other funds, and those funds have now made their way to the United States. According to the court, this commingling means the survivors’ property was “exchanged” for property that is now located in the U.S.
Hungary (as well as the United States government, which argued in support of Hungary), argues that commingling the stolen property with its general treasury funds does not qualify as exchanging the property for those funds. Moreover, if the Court were to accept the survivors’ theory, it would open every country that seizes property and liquidates it to lawsuits in the United States. The federal government agreed strongly enough to seek argument time in the case, and it warned that if the Court were to expand foreign liability in U.S. courts, other countries might retaliate and expand liability for American actors in their own courts. Tit for tat.
As several justices noted at oral argument, the flipside is that under Hungary’s theory, countries can very easily steal property and liquidate it to avoid lawsuits in the U.S. As attorney Shay Dvoretzky argued in favor of the survivors, Hungary’s rule limit FSIA’s exceptions “to barter economies and inept regimes.”
Justices Roberts, Thomas, Sotomayor, Kavanaugh, Barrett, and Jackson all appeared to side with the government. Justice Barrett, for example, offered a hypothetical wherein she stole Justice Gorsuch’s car, sold it for cash, then bought a painting that appreciated in value. If she then sold the painting to buy a beach house, she asked, would it really be true that she exchanged the stolen car for the beach house? The United States’ attorney argued that perhaps if the car was worth $20,000, then you could say the car was exchanged for $20,000 of the beach house. But Justice Barrett would have gone further and asked why it should ever be considered an exchange after the first step. She also noted that the survivors likely had other forums to make their claims, including Hungarian courts.
Justices Alito and Kagan appeared more sympathetic to the survivors, while Justice Sotomayor was somewhere in between. Justice Alito pointed out that FSIA was enacted precisely because Congress had thought previous jurisdictional rules too narrow, and yet under the government’s reading, it would be difficult if not impossible to establish jurisdiction in most cases. He also didn’t buy the United States’ concerns about retaliation.
The United States’ attorney responded, “I hope we’re not.”
The Court hears one of the most hot-button cases of the term…
On Wednesday, the Court heard a case likely to upset many no matter how it rules. United States v. Skrmetti involves a Tennessee bill that prohibits minors from accessing surgical and hormonal interventions for the purpose of gender-affirming care. The ACLU, joined by the United States, argues the law constitutes sex-based discrimination in violation of the Equal Protection Clause.
The law broadly prohibits gender transition surgeries, puberty blockers, and hormone therapy for patients under 18, but permits those treatments for minors who need them for other purposes—for instance, because they started puberty too early. The plaintiffs (teenagers, their parents, and a doctor) argue that the law treats them differently than these other patients and deprives them of equal protection.
Notably, the Court will not actually decide whether the law is unconstitutional. Instead, the parties are fighting about what level of judicial scrutiny should apply. In equal protection cases, courts apply one of three levels of scrutiny (rational basis, intermediate, or strict)—a totally made-up and arbitrary thing that distorts constitutional law. And because the level of scrutiny is usually outcome determinative, parties fight tooth and nail to secure whatever level is most advantageous to them.
The ACLU and United States argue that because under Tennessee’s law a male might be able to secure, say, testosterone, whereas a female would not, the law constitutes discrimination on the basis of sex. Sex discrimination, in turn, entitles the plaintiffs to intermediate scrutiny. Tennessee, by contrast, argues that the law does not discriminate based on sex, but rather on the intended purpose of the treatment, and therefore mere rational basis scrutiny applies.
As many justices observed, calling this law sex discrimination seems like an odd fit. After all, Tennessee doesn’t care if the patient is male or female; it cares only that all minors are barred from accessing drugs or other interventions for the purpose of transition. It just so happens that the drugs required to achieve transition are different for each sex, such that males might be blocked from estrogen (whereas females would not be) and females might be blocked from testosterone (whereas males would not be).
As Justice Barrett pointed out, what if there were a drug that universally helped achieve transition for both sexes? At that point, would the ban be sex discrimination? Likely not—which makes the plaintiffs’ arguments seem like a matter of happenstance.
Justice Barrett further noted that a more comfortable fit might be a claim that Tennessee’s law violates the fundamental right of parents to direct the upbringing of their children in violation of the Due Process Clause. That claim, too, would enjoy a higher standard of scrutiny. But the plaintiffs had not brought that claim to the Court.
Justice Kagan also expressed the view that the claim appeared more like discrimination based on trans status rather than on sex. But trans status has not yet been recognized as a suspect class, meaning that under current doctrine, only rational basis scrutiny would apply.
Exactly because the level of scrutiny is so important, Justice Kavanaugh asked whether a decision in this case that the law is subject to intermediate scrutiny will be outcome determinative for future cases, like cases involving participation by trans athletes in sports. If intermediate scrutiny applies, does that doom any other regulations?
Solicitor General Elizabeth Prelogar and Chase B. Strangio (the first openly trans advocate to argue before the Court) assured the justices that any other cases would be distinguishable. Laws regulating participation in sports, for example, implicate the rights of others, whereas Tennessee’s law affects only those parties voluntarily consenting to treatment. Both parties also noted that there were less restrictive laws that Tennessee could impose even with regards to medical intervention. They pointed to West Virginia as an example, which requires minors seeking treatment to secure a diagnosis from two different doctors (among other things).
One interesting takeaway from this case is the epic failure of the rational basis test, which occupies the lowest spot on the three tiers of judicial scrutiny and which everybody seeks to avoid. Rational basis scrutiny is the most deferential standard of judicial review and largely leaves laws to the democratic process.
The problem is that, as Justice Sotomayor points out, the democratic process is cold comfort for people who seek relief in court. In fact, the very reason these people have come to court is because the democratic process has failed them.
Justice Sotomayor is right to point out the failures of the rational basis test to protect people whose rights are trampled by the majority. But the solution is not to raise the level of scrutiny just for certain people. Instead, it’s to recognize that rational basis will always fail political minorities of all kinds (and the smallest minority is, of course, the individual). No one’s constitutional rights should be left to the democratic process. The entire point of the Constitution is to put limits on democracy. All rights and all people deserve meaningful consideration by the Court, even if in the end the challenged law survives that close inspection.
Can’t stop won’t stop trying to prove my value to my employer…
I was lucky enough to be on a panel with former ACLU president Nadine Strossen about a paper I wrote on Myra Bradwell and the tie between free speech and all civil rights. Catch it on C-SPAN. You’ll notice a co-panelist stated that Chief Justice Salmon P. Chase was the only justice to be impeached. I didn’t have a chance at the time to note that she had mistaken Justice Samuel Chase for my man Justice Salmon Chase. But I hope I am able to vindicate his reputation through this email. (You can listen to my podcast paean to him).
Next up at the Court…
The Court will hear four more arguments next week before it breaks for the rest of the year. And maybe it will rule on a certain petition that, by now, you are assuredly aware of.
