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The Supreme Court’s naked partisanship continues today

Tennessee passed a law last year that bans trans kids from receiving medical treatments such as puberty blockers and hormone therapy if those treatments are prescribed to help them transition. Today the Supreme Court heard oral arguments on whether the law is constitutional. Ian Millhiser explains that the legal question at issue is whether the law discriminates based on sex:

While Matthew Rice, the Tennessee solicitor general defending his state’s law, tried many times to deny that this law classifies based on sex, he eventually admitted that it did after being pressed by Justices Sonia Sotomayor and Jackson.

Jackson, for example, asked Rice whether this law would permit a boy who seeks testosterone because he wants to deepen his voice and otherwise enhance his masculinity to receive that treatment, and Rice eventually conceded that, under the specific law at issue in this case, the boy could. Rice then eventually admitted that, if a girl sought the same treatment for the same purpose — to deepen her voice and to make her body appear more masculine — Tennessee’s law would prohibit her from receiving the treatment.

This matters because, in United States v. Virginia (1996), the Supreme Court held that “all gender-based classifications” are subject to “heightened scrutiny,” meaning that the law is treated as presumptively unconstitutional and the state has to prove that its law was not enacted for impermissibly sexist reasons.

It appears likely that this case will split almost perfectly along partisan lines. The three liberals all said that sex discrimination is sex discrimination and it's illegal. Five (and maybe all six) of the conservative justices spent their time casting around for why this should be an exception, eventually landing on the idea that medical procedures are different and judges shouldn't presume to stick their noses in.

That's the most dismal thing about this case: that it's so nakedly partisan. The principle at hand—is this sex discrimination?—is in no way either liberal or conservative. On the one hand, you could legitimately argue that the hypothetical sex discrimination in this case is minuscule and shouldn't stand in the way of the state's interest in protecting minors—regardless of whether you agree with the state. But you could also legitimately argue that, as with freedom of speech, even small violations need to be rigorously pushed back.

But because the case happens to be about trans rights, everyone finds a way to make a technical question into a partisan one. Does anyone believe, for example, that if this were a law banning the removal of tonsils in girls the justices would line up the same way?

Now, I'd add that the conservative stand in this case displays a lot of chutzpah coming from a group of justices who recently overturned Chevron on the grounds that judges are perfectly capable of evaluating highly technical issues and shouldn't have to defer to anyone's expert judgment. But that's now inconvenient, so presumably we'll end up with some kind of doctor exception where judges should defer.

The Supreme Court has always been political, but has it ever been so nakedly political? In boring regulatory or tax cases the justices still cross party lines just fine. But in hot button culture war cases, you have to know little except whether the president who appointed them had a D or an R next to his name. They barely even bother trying to hide it.

75 thoughts on “The Supreme Court’s naked partisanship continues today

  1. FrankM

    The answer to your question is yes. This has been the most nakedly partisan court in my lifetime, but SCOTUS has frequently been political in the past. The Hughes courts of the 1930's simply declared everything FDR wanted to do was unconstitutional. It's not hard to find other examples.

    1. J. Frank Parnell

      Don't forget the Taney Court supporting slavery in 1857, also the 1894 Supreme Court ruling that the Sherman Anti-Trust Act could be used to stop unions from striking. We tend to remember Brown v Board of Education, Loving v Virginia, and Roe v Wade, but often as not throughout our history the Supreme Court has been a reactionary force working prevent social progress.

      1. Altoid

        "often as not throughout our history the Supreme Court has been a reactionary force working prevent social progress"

        And how, and well said. Look at its record on railroad regulation by the states in the late 19C, on states' ability to regulate working hours and conditions in that period and through the early New Deal, in addition to other themes mentioned in this thread. Given its direction since probably the late Burger days, the era we think is most characteristic of the court's role has been only a brief sparkle of regard for human equality and dignity in a rarely-punctuated darkness.

        Given which, realism about this particular court should tell us that it's never a simple matter of evaluating the facts of a case against a law, when four of our solons have agreed that a case needs their attention. This case was and is almost purely political, because the law in question originated for political reasons, and accepting the case was a political act. At least four of our robed overlords have a point they want to make.

        Their biggest problem is finding the arguments that will sound legalistically plausible enough to bring along a fifth denizen of the building. Whether they succeed will have very little to do with how legally sound and logically consistent their arguments are. (And least of all if Roberts writes the opinion himself, btw.)

  2. Joseph Harbin

    I'd add that the conservative stand in this case displays a lot of chutzpah coming from a group of justices who recently overturned Chevron on the grounds that judges are perfectly capable of evaluating highly technical issues and shouldn't have to defer to anyone's expert judgment.

    And Dobbs, of course, overturning Roe. The R justices’ sexism is showing. “They barely even bother trying to hide it.”

  3. lawnorder

    It seems to me that it's straightforward and even honest for the conservatives to rule that "yup, it's sex discrimination, but it's for the protection of children and so not impermissible". "Honest" in this case means that they believe it to be true, not that it actually is true.

    1. Five Parrots in a Shoe

      Protecting kids from what, exactly? Care that they insistently, persistently, and consistently say that they want, and that their doctors and parents agree they need? "Protecting" people from that kind of thing isn't supposed to happen in free countries. I liked conservatives better back when they understood that.

      1. lawnorder

        There's an old saying that I firmly believe in. "Know thine enemy." From the conservative viewpoint, the kids are being protected from "mutilation".

    2. MF

      It is literally discrimination. And this is entirely proper.

      For example, if a doctor examines two adolescents and both are beginning to develop breasts that is normal development for the female and a likely endocrine disorder for the male. Similarly, if both are beginning to show beards and deeper voices that is normal development for the male and a likely endocrine disorder for the female.

      In both cases, the doctor should send the healthy patients on their way and begin treating the patients with disorders. This obviously discriminates between males and females, but it is not discrimination AGAINST anyone. (Indeed, if you think this is discrimination againsts someone, against which of these four hypothetical patients?)

      It is perfectly reasonable and Constitutional to allow doctors to use medical drugs to treat disorders but not to change people's bodies in whatever way they wish. For example, it is also perfectly Constitutional to tell doctors that they can prescribe testosterone for males with low testosterone but not for males with normal testosterone who want to bulk up for body building competitions.

        1. jdubs

          Good luck. There has always been a large social movement who feels that discrimation is just and proper (maybe required!) as long as it is directed at the right people (always the lesser people, not them).

          Comically stupid MF admits it's discrimination, but the good kind of discrimination because he supports the outcomes imposed on others. Then he laughingly backtracks and tries to tell us it isn't actually discrimination when you like the results.

        2. lawnorder

          You may have a point in a moral sense, but as a matter of law case authorities say merely that laws that are facially discriminatory invite "heightened scrutiny", not that they are always impermissible.

        3. MF

          So I guess we must end all women's sports? After all, it is literally discrimination when I am not allowed to join the woman's soccer team because I am a man.

      1. jdubs

        1st argument - It is discrimination but it's OK because I like it.

        2nd argument- It is clearly discrimination. byt it isn't actually discrimination.

        3rd argument - Discrimination I like is acceptable because it's also acceptable to make medical decisions that are not sex based.

        Lol, dumpster fire of logic here.

      2. aldoushickman

        "In both cases, the doctor should send the healthy patients on their way and begin treating the patients with disorders. This obviously discriminates between males and females,"

        The issue isn't whether or not the doctors, patients, and parents can decide to "discriminate" based on the individual cases before them, but whether the STATE OF TENNESSEE's discrimination should be subjected to strict scrutiny or not. You've got it exactly backwards. This is an exercise of state power being examined, not the actions of individual doctors.

      3. Crissa

        Ahh, yes, the state knows more about the gender of children than doctors and, well, the individuals themselves?

        Gross, MF. But that's what we get from someone who supported a murderer who attempted to run people over in a crosswalk and satisfied himself with shooting one instead.

        Either these medications are dangerous, or they aren't. And the evidence says that those with persistent gender presentation have a one percent regret rate. Which is, by the way, lower than pretty much everything.

      4. lawnorder

        In dealing with gender dysphoria, changing people's bodies IS the approved treatment for the disorder. "In whatever way they wish" simply does not enter the picture. Bodies are changed in the way most beneficial to the patient;

  4. pjcamp1905

    Medical procedures ARE different because they're private. Judges shouldn't stick their noses in and neither should legislators. This is a decision that is only the business of the child, their parents and their doctor.

    And no, this isn't the most nakedly partisan court in history. It isn't even close. Or do you not recall Plessy v. Ferguson?

    1. Ogemaniac

      There is a pretty high bar for government interference in family choices, especially if it is child-driven and led agreed to by both parents and doctors.

  5. akapneogy

    " .... eventually landing on the idea that medical procedures are different and judges shouldn't presume to stick their noses in."

    So sex discrimination is the default position of the justices?

  6. cmayo

    I fail to see how keeping kids from affirming who they are is "protecting minors."

    How fucking despicable to even suggest such a fucking thing.

        1. MF

          In short, you have no answer to why you would allow bodily autonomy to children in one respect but not another.

          After all, for a thirteen year old to have sex with a forty year old seems a lot less serious than for him/her to take puberty blockers and forever change how his/her body develops.

          1. jdubs

            The involvement of counseling and medical professionals identifying a health concern and benefit certainly seems like a fairly obvious difference.
            The lack of a health benefit for underage sex seems like another one.

            This seems pretty obvious....but the angry bigot pounding away at the keyboard turning the focus to sex with underage children isn't a surprising turn of events.

        2. Crissa

          At least give a definitive answer like cmayo, jdubs, or lawnorder did...

          But more engagement than that is not appropriate, of course.

      1. lawnorder

        The usual theory is that teenagers who have sex with older adults are being exploited and it wasn't actually their free choice. The problem with that is that sometimes it IS the teenager's free choice, in which case the moral issues get a bit murky. Legislators make somewhat arbitrary choices, both in age of consent and in crafting such things as "close in age" exceptions. It makes no sense to me that a fifteen year old girl can consent to sex with her seventeen year old boyfriend the day before his eighteenth birthday with no legal issues, but the next day she's deemed incapable of consent and he's a rapist. Likewise, it makes no sense that a sixteen year old can consent on one side of a state line but not on the other, when the difference may be one step.

        1. emjayay

          Same thing with abortion laws. It makes no sense that a woman can get an abortion or not on one side of a state line but not on the other, when the difference may be one step. The Roe rules were also somewhat arbitrary since it's about human development, not machines.

          1. lawnorder

            The presumption in laws requiring underage girls to get parental consent is also backward. It should be presumed that becoming a mother will be harmful to a teenaged girl and parental consent should be required to permit a teenager to carry a pregnancy to term, with no consent being required for an abortion.

      1. Crissa

        And the pro-bigotry troll goes straight for the bigotry.

        Notably, there are no 'golden retriever' brain structures in humans, we don't completely share DNA, we barely share hormones as mammals.

        In the real world, there are individuals who fall afoul of the modal distribution of sex and end up between or on the other side of the apparent binary.

        Dogs? Really? Gross, dude.

  7. MrPug

    This is why constitutional law is the dumbest kind of law. The simple question should be does the state get to intervene in medical treatment that should be between the family and medical professionals, full stop, end of fucking day.

    1. Ogemaniac

      There are relevant questions to be asked to determine if state interference is justified:

      1: Is this activity understood by the medical community to be significantly positive, significantly negative, or about neutral

      2: Does the child agree to this choice?

      3: Do the parents agree to this choice?

      4: Did the parents teach the child the activity is beneficial?

      Conservatives regularly inflict far more harmful choices on their children (antivax, poor food habits, guns in homes, etc) and do so either without the consent of the child or by having instilled those habits and values. This makes any of these far worse than gender affirming care, which appears neutral to positive, and is child driven, not parent driven. The government effectively never interferes with neutral intra-family choices, nor should it.

      1. Crissa

        I'll note that not only has MF supported the murder of pedestrians who complain at being run into by cars...

        ...there's no evidence conversion therapy results in less harm than good. In fact, there's no evidence of the efficacy for conversion therapy at all. Hence being banned, as it's just torture.

    2. aldoushickman

      "This is why constitutional law is the dumbest kind of law."

      not even remotely. What you have posed is a policy question, and while you and I agree fully on what the answer to that question is and ought to be here, the question before the court is whether or not the Tennessee legislature is allowed to arrive at a different answer.

      I definitely think that multiple members of this SCOTUS are not approaching this question in good faith and are instead interested in securing *their* desired policy outcomes, but the question of what statutes a legislature can and cannot enact is not a "dumb[] kind of law."

  8. D_Ohrk_E1

    I listened to the whole thing. I didn't think they were split along partisan lines 6 - 3.

    The only ones who appeared set in affirming the ban as written were Alito, Thomas, and Roberts. Gorsuch was silent. Kavanaugh and Coney-Barrett were searching for ways to slice this thing up. The three "liberal" justices were having a field day beating up the Tennessee AG. They also had fun poking holes in Alito's arguments. SG Prelogar, too, appeared to have a fun time taking down Thomas, Alito, and Roberts. She's a gem. Future member of SCOTUS.

    1. Austin

      Don’t feed this fucking troll. It gives no shit about actual real children who specifically and repeatedly must ask for this treatment, and their parents agree to it so they don’t commit suicide. It merely is a monster pretending to care about the children.

      Transgender care is nobody’s fucking business other than the patient, the doctor and the parents if the patient is underage. That’s it. Nobody else’s life is affected, therefore nobody else should get a say. Mind your own goddamned business RAB.

      1. Leo1008

        @Austin

        You are part of the problem.

        And the idea (which you do seem to promote) that parents must consent to transitions for minors in order to prevent suicide is a genuinely despicable, utterly partisan, and deeply discredited attempt at gaslighting.

        You are what's wrong with the modern Left.

        1. Crissa

          Ahh, yes, Leo.

          In the real world, not one is 'transitioning' their children.

          These kids are getting the chance to express themselves how they wish to. Medical intervention is the last step, and only used when the other steps are insufficient for the patient.

          These treatments are both reversible and never done without persistent, ongoing, years' long request by the patient and only the patient.

          This is no different than treatment for precocious puberty - symptoms of puberty are causing distress, and so they're delayed by a year or several until they don't.

          Period.

          Also, no, RAB has no points. The standards of care, when applied to children, have never found more than a 1% regret rate. That means that less than one in a hundred treated ever regrets starting treatment at all.

  9. Anandakos

    Well, I'd venture that Dred Scott v. Sanford was even more "nakedly partisan". The Court was full of Jacksonian Democrats and their first dictum was "Don't you be touchin' that propitty, Yankee!"

  10. QuakerInBasement

    "But that's now inconvenient, so presumably we'll end up with some kind of doctor exception where judges should defer."

    But if there's a pregnancy involved, the doctors don't understand anything! Only state legislatures and, well, courts can properly decide.

  11. Leo1008

    Neither Kevin nor the Left has a leg to stand on in regard to accusing Republicans of "naked partisanship" on the topic of trans rights.

    This is, to be clear, a topic to debate. And it does call for nuance. But no one has done more to trample on the debate and the nuance of trans rights than Leftist activists. And anyone unwilling to admit this obvious fact is not plugged into the consensus reality in which most of us live.

    Kevin has not, in my opinion, done enough to criticize the egregious excesses of the trans rights movement. And that lamentable lapse is almost certainly due to his own tribal affiliations. But, whatever the cause may be, it robs him of any semblance of credibility on the topic.

    When Republicans overreach on the issue, he issues these long blog-posts about their behavior. Fair enough. But what about when JK Rowling receives death threats from Leftists (and her family members are doxxed at their schools) for declaring that all people should be free to live as they please but biological sex is real? And, yes, that is a fair description of what has happened. Again, please check in with reality.

    If the recent election wasn't enough of a wake up call then nothing ever will be. There is well-documented evidence that the insane demands of the Leftist trans activists were used with devastating effect against Harris (due to her support for trans surgeries for prisoners - or whatever the hell it was).

    So if the reelection of Donald F*#king Trump will not finally get the Left to admit its own excesses on this issue, then we can seriously start to consider what the second term of President Vance might look like in the 2030s.

    1. iamr4man

      How did the “trans issue” affect the Republicans who selected him in the primaries?Ron DeSantis had all of the positions Trump did but without the utter lunacy and personal repugnant issues. Yet Trump destroyed DeSantis in the primary.
      My point here is that with an election that was as close as the 2024 one was, you could point at any issue and say it was the cause for Harris’s defeat. But the real question is why do so many people just plain like Donald F*#king Trump? I have no answer.

    2. jdubs

      It's funny how the angry know it alls insist that their pet issue was the deciding factor in Trump winning and it's Dems fault for not being angry enough....or something.

      Harris was by no means pro-trans extremist, and while this might be your own personal boogeyman just remember you only know your own anger and bigotry. Lecturing dems on their failure to be as bigoted as you are is certainly your style here, but there is no reason to think that adopting the platform of the anti trans bigots would benefit the party or the people.

      1. Leo1008

        @Jdubs:

        I personally believe that the most common responses from Leftists typically amount to 1) ad hominem, and 2.) straw man. And this is pure straw man:

        "There is no reason to think that adopting the platform of the anti trans bigots would benefit the party or the people."

        But of course I haven't advocated for anyone to adopt the platform of any anti-trans bigots. And if you were responding in good faith, which of course you are not, then you would not have implied as much.

        I do mention JK Rowling by name. And she, of course, is anything but a bigot. Nor is she anti-trans. Here she is recently commenting on her own political persuasion:

        "I'm not an ideologue. I mistrust ideologies ... I've never met an ideologue who wasn't prepared to deny a bit of inconvenient truth to keep their world view intact and I include ideologies with which I find myself in broad sympathy. On the other hand, I am an idealist. I believe in human beings. We are undeniably capable of terrible acts, but the evidence is that we are astoundingly collaborative and mutually supportive, especially when times are hard ... By the old left/right metrics (which I accept have been massively disrupted) I am left wing. Not hard left, but definitely left of centre. However, I believe the left in the West has taken a dangerous and self-defeating turn, embracing a form of identity politics that is fundamentally destructive to values the left once respected, especially freedom of speech and fundamental liberalism. I'm not a tribal person, so I haven't embraced those positions because 'my team' has decreed that's what we're doing now. Yes, I've received a lot of blowback from the left for not meekly accepting the new ethos. But principles aren't dictated by other people's approval."

        I agree with all of that. But if you consider it to be bigotry, then I hope you get whatever help you need.

        1. jdubs

          I know that you label yourself as the 'partisan free bigot' just like Rowling does. Perhaps that impresses you, but...meh...

    3. call_me_navarro

      once i cleared away the spittle i see your main argument is that kevin drum, who is barely one step removed from trans-exclusionist. is too sweeping in his embrace of trans rights?

      wow.

      just, wow.

    4. Crissa

      Why is it a topic for debate, Leo?

      A tiny number of people (in this case children) can be identified for:
      - a reversible,
      - non-invasive treatment,
      - one that all other steps have been exhausted before this is tried and
      - only lasts one to six years,
      - has a regret rate of less than one percent?

      Where's the debate? Trans people exist. Many (maybe most) knew when they were children.

  12. somebody123

    “ The principle at hand—is this sex discrimination?—is in no way either liberal or conservative.”

    are you really this dumb about politics? conservatism is all about the preservation of “natural” hierarchies- man > woman, white > black, straight > gay, rich > poor. Approving of sex discrimination is a basic conservative belief- they’ll call it “separate spheres” or “complimentary roles” whatever, but fundamentally it’s a belief that men outrank women, and anything that messes with that should be illegal.

    Do you not pay attention to, like, life? jfc guy

  13. Narsham

    Let me see if I understand Kevin's post properly:
    The liberal justices assert, in the face of something which is obviously discriminatory on the basis of sex, that the thing is discriminatory on the basis of sex.

    At least some of the conservative justices "spent their time casting around for why this should be an exception."

    That leads Kevin to decry the naked partisanship of this Court in terms of BOTH liberal and conservative justices?

    Sure looks like one group is being nakedly partisan and the other is, uh, actually attending to the law. Maybe there's some good and recent examples of the opposite phenomenon, but suggesting the whole court is suffering a problem after pointing to only one partisan group displaying that problem seems a bit undiscriminating.

    As for some of the bad faith comments above in the thread: Tennessee legislators passed a law prohibiting medical treatment for a subclass of people. That means politicians interfering in decisions being made by families and doctors. On what grounds is that a reasonable thing to do? How is this not massive state overreach, from either a conservative or libertarian perspective?

    I do want to recognize here MF's laughable effort to conflate doctors performing medical procedures on minors with 40 year old pedophiles, as if children didn't receive life-saving medical care on a daily basis in this country with clearly-established laws establishing who needs to legally authorize that care. MF thinks a surgeon performing an operation that saves a newborn's life is no different from someone who rapes babies. I'd try to come up with an insult here but I can't think of anything harsher to say than an accurate characterization of his actual posts.

  14. geordie

    I unfortunately have backed myself into a conundrum that makes taking a position here very difficult. On the face of it I think gender treatments should be between the doctors, patients and if applicable the parents, but then I remember that female genital mutilation is a thing in some cultures (actually so is male genital mutilation but it's a lot less invasive and way more common). I don't see any easy path to crafting a law that works.

    1. Crissa

      Genital mutilation is sex discrimination, for one, and not done with the patients' permission for two.

      How is this at all similar for a child requesting time to express their gender?

      How is it okay to only treat such requests when they match external genitalia - knowing that of people up to 2% of people don't match their external genitalia because they're intersex (and don't at all) or trans (and look the opposite)?

      The standards of care for trans people requires these requests to be long-term and persistent over years of behavior.

      How is this a debate?

      1. Doctor Jay

        "How is this a debate?" How indeed.

        To my mind - which to be fair is not legally trained as I am not a lawyer, just a person who has read many, many supreme court decisions and a few lower court decisions - this is an open-and-shut case of 14th Amendment violation. The law in question does not meet a "rational basis" test, let alone strict scrutiny.

        They know this. And yet we see all the squirming from people who sold us on "we're just calling balls and strikes". I've got nothing to add to this debate beyond that.

        EXCEPT my best wishes and hopes for you, and your ability to enjoy life and liberty, and pursue happiness.

  15. Aleks311

    We have a whole set of laws that ban minors from doing this or that until they are of age. Anyone care to argue that they're all unconstitutional? And this law applies equally to all minors so apart from the age thing I can't see how it's discriminatory.

    1. jeffreycmcmahon

      The problem with Mr. Drum's commentary is that he gives it the both-sides treatment. It's not all Supreme Court justices that are nakedly partisan, it's the right-wingers specifically, and any analysis that omits that fact is not doing its job.

    2. Crissa

      Because more kids are treated for precocious puberty than there are trans kids who get this treatment - and this law bans trans kids from getting literally the same treatment for precocious puberty as cis gender kids.

  16. Doctor Jay

    If you are someone who thinks it's ok to restrict what a minor child can do, consider that most of those laws are qualified by "without parental consent". With parental consent, they don't apply. A kid can't buy alcohol, but it's legal when Mom or Dad give it to them. And in some cases, it's abusive as hell to give them the liquor, but it's still legal.

  17. gdanning

    >I'd add that the conservative stand in this case displays a lot of chutzpah coming from a group of justices who recently overturned Chevron on the grounds that judges are perfectly capable of evaluating highly technical issues and shouldn't have to defer to anyone's expert judgment.

    This is simply not what the case overtunring Chevron said. Chevron said that courts should defer to agency interpretations of STATUES. But the Loper Bright court noted, "Chevron's presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do." It did NOT say that courts can substitute their judgment for that of agancies re FACTUAL finidngs (eg that a given chemical causes cancer).

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