Some Thoughts on United States v. Skrmetti

Equal Protection Methodology Both Is and Isn't Changing with the Times

United States v. Skrmetti is an important opinion for many reasons, including because it sheds light on the Court’s equal protection methodology. I offer three tentative points here: (i) Justice Barrett’s anti-subordination analysis is awkward in light of modern anti-classification case law; (ii) the dueling opinions largely elide complications regarding sex and medical-treatment classifications, leaving the hard analytical work to us, the readers; and (iii) Skrmetti can be viewed as a conservative Roper v. Simmons.

1. When evaluating whether there is a suspect or quasi-suspect class, does the inquiry focus on a particular group or on the classification that defines that group (as well as other groups)? For example, is the question whether African-Americans represent a protected group, or whether race is a protected classification?

Justice Barrett’s concurrence appears to focus on groups, consistent with the famed Carolene Products framework (which she quotes). For instance, she asks “whether a group constitutes a ‘suspect class’ akin to the canonical examples of race and sex.” Yet this sentence is confusing in that “race and “sex” aren’t themselves groups but rather classifications that define various groups. Race can define the group of white people, for instance, and sex can define the group of men.

Barrett also appears to focus on groups later in her opinion, noting for instance: “Nor is the transgender population a ‘discrete group,’ as our cases require.” And later she asks “whether the group has, ‘[a]s a historical matter, … been subjected to discrimination.’” Analogously, we might ask whether African-Americans or women constitute groups that are discrete and subject to discrimination.

Yet this group-focused approach is odd because modern equal protection case law focuses on classifications. White people and men can and often do benefit from equal protection case law, even though their relevant groups have not been historical targets of discrimination. To wit, the groups of men and white people have been less targeted by discrimination than the group of transgender people. Yet Justice Barrett appears to apply equal protection doctrine to support the rights of men and white people, even as she denies similar protection to transgender people.

In sum, if what the law really cares about is classifications, then it would seem more sensible to train attention on those classifications. Or conversely, if the law is really trained on group subordination, then it would seem more sensible for the law to care about distinctive, discriminated-against groups.

This problem is less severe for the dissenters. Like Barrett, they focus on groups. But their overall jurisprudence is more oriented toward group subordination and less committed to classification-based enforcement. That is why, for example, they are more supportive of race-based affirmative action.

2. The various opinions’ focus on whether there is or is not a sex classification strikes me as overly doctrinaire. The law in Skrmetti poses a complicated issue that involves classifications based on (at least) age, sex, and medical treatment. So the majority is correct that something significant besides simple sex discrimination is at issue. And the dissent is correct that a kind of sex classification is also at issue.

What to do in this situation is not obvious, either from first principles or under the case law. It is plausible that, under the present circumstances, substantial deference to the political branches is appropriate. The majority makes this point repeatedly, such as when it opines at length on the Cass Report and recent legal developments in England, but it does not own up to the novelty of that argument.

Instead, the Court insists that there is no sex classification. Remarkably, the Court accurately recites the dissent’s elaborate arguments showing the role that sex classifications play in the state law. But the majority then bats these arguments aside with a series of conclusory assertions and Rehnquistian fiats.

Take the following paragraph, which responds to one of the dissent’s most detailed arguments with a seeming tautology, a conclusory reassurance, and a fiat:

But a prohibition on the prescription of puberty blockers and hormones to “[e]nabl[e] a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex,” Tenn. Code Ann. §68–33–103(a)(1), is simply a prohibition on the prescription of puberty blockers and hormones to treat gender dysphoria, gender identity disorder, or gender incongruence. A law prohibiting attendance at a religious service “inconsistent with” the attendee’s religion may trigger heightened scrutiny. A law prohibiting the administration of specific drugs for particular medical uses does not. See Vacco, 521 U. S., at 799–808.

What the majority is doing is not uncommon. The Court has a plausible if uncertain doctrinal path open to it, and it provides the reader with pointers and raw material to get there. But it also overstates and oversimplifies its position. Perhaps the majority justices haven’t worked out among themselves quite how to connect the dots, or they would like to cloak themselves in a mantle of conventionality rather than innovation.

It then falls to the opinion’s readers to see through the bluster and grapple more seriously, candidly, and experimentally with the hard questions.

3. Skrmetti is a conservative Roper.

In 2005, Roper v. Simmons held that the Eighth Amendment prohibited the execution of criminal offenders who were under 18 when they committed their offense. Justice Kennedy authored the majority opinion, joined by four liberal justices. Justice O’Connor dissented, as did Justice Scalia for the other conservative justices.

Roper partially relied on two descriptive points. First, states were moving away from capital punishment for offenses committed by minors. Second, the international community generally did not allow execution for offenses committed by minors. Both of these points were highly controversial, particularly the Court’s use of foreign law.

Even though the Roper majority was clear that it cited foreign materials only as “confirmation” of the Eighth Amendment conclusion, Justice Scalia was incensed. For instance, Scalia wrote: “the basic premise of the Court’s argument—that American law should conform to the laws of the rest of the world—ought to be rejected out of hand.” And he added that “The Court’s special reliance on the laws of the United Kingdom is perhaps the most indefensible part of its opinion.” I remember this era, and the Court’s discussion of foreign law was indeed extremely controversial among conservatives.

Yet Skrmetti largely parallels Roper. Early on, the Court writes:

In the last three years, more than 20 States have enacted laws banning the provision of sex transition treatments to minors, while two have enacted near total bans.

Meanwhile, health authorities in a number of European countries have raised significant concerns regarding the potential harms associated with using puberty blockers and hormones to treat transgender minors.

The Court’s subsequent discussion includes references to England, Finland, Sweden, and Norway. And, as noted, the Court concludes its overall argument with a discussion of the Cass Report and related changes in English law—essentially the same jurisdiction whose invocation had so outraged Scalia twenty years earlier.

The Court was defensive about its replication of arguments once verboten among right-thinking conservatives. So the Court added this CYA paragraph:

We cite this report and NHS England’s response not for guidance they might provide on the ultimate question of United States law, see Schriro v. Summerlin, 542 U. S. 348, 356 (2004) (contemporary foreign practice is “irrelevant” to constitutional interpretation), but to demonstrate the open questions regarding basic factual issues before medical authorities and other regulatory bodies. Such uncertainty “afford[s] little basis for judicial responses in absolute terms.” Marshall v. United States, 414 U. S. 417, 427 (1974).

What to make of this? For starters, the citation to Schriro is carefully chosen. The opinion by was Scalia himself, the year before Roper. And Scalia cited international authorities in holding that a particular constitutional right (relating to juries) wasn’t retroactively applicable in habeas proceedings. One might think that this citation undermines Scalia’s Roper dissent. For the Skrmetti majority, however, it shows that Scalia wouldn’t mind what the Court has now done.

The Court’s parenthetical gloss on the Schriro opinion is also overstated. According to the Court (as quoted above), Schriro said that “contemporary foreign practice is ‘irrelevant’ to constitutional interpretation.” Yet Schriro was more careful, stating that foreign law is “irrelevant to the meaning and continued existence of that right [to jury trial] under our Constitution,” not to all interpretation. Moreover, Schriro probably understood itself to be engaged in a statutory or remedial inquiry under Teague, and not to be doing constitutional law. By contrast, Skrmetti is a constitutional case.

At any rate, Skrmetti clearly trades on the foreign law sources it discusses and gives pride of place, both before and at the conclusion of the Court’s argument section. Sure, modern foreign sources do not tell us what the words of the Constitution mean; in that respect, Schriro was uncontroversially correct. But foreign sources can—and, in Skrmetti, did—inform the application of those words today. For most people, that application or elaboration of constitutional norms would count as part of “constitutional interpretation.” And, however it is classified, it is extremely important.

But if Roper and Skrmetti are parallel they are also mirror images, albeit for reasons that the Skrmetti majority did not explain. Roper looked to national and international trends and consensus to establish a liberal constitutional right. By contrast, Skrmetti looked to national and international trends and dissensus to reject a liberal constitutional right. In this sense, Skrmetti is a conservative version of Roper.

The two cases are also mutually supportive. True, one could conceivably think that international law can defeat rights claims but never sustain them. But that view would be hard to sustain—and it wasn’t Scalia’s view in Roper. As he put it: “I do not believe that approval by ‘other nations and peoples’ should buttress our commitment to American principles any more than (what should logically follow) disapproval by ‘other nations and peoples’ should weaken that commitment.”

Scalia’s emphasis on logic is apt. If adverse trends and dissensus are a reason not to find a right, as Skrmetti reasoned, then favorable trends and consensus must at least remove an obstacle to finding a right, much as Roper concluded. Skrmetti and Roper can thus be viewed as two sides of the same coin.

So, even as Skrmetti moves the law in the opposite ideological direction, it offers indirect support to Roper’s methodology. And Roper in turn provides support for Skrmetti. Here as elsewhere, today’s conservative majority at the Court is helping itself to the kind of informal, functionalist argument that Justice Kennedy and the liberal justices employed two or more decades ago.