VIEW FROM THE COURT
By Mark Walsh
on 4 December 2024
at 18.50
Protesters outside the court on Wednesday. (Katie Barlow)
The term’s biggest case yet is being debated this morning, and there is anticipation in the cool Washington air. Protesters on either side of United States v. Skrmettithe dispute over access to puberty blockers and hormone therapy for transgender teenagers has arrived early in front of the courthouse and will still be there when the discussion ends after 1 p.m.
Inside the courtroom, I recognize a few attorneys in the Bar Section who were here yesterday when several members of the National Trans Bar Association were sworn in as Supreme Court Attorneys. (Today might have been the group’s first choice, but securing such slots can be quite competitive.)
Among the people who will be sworn in as Supreme Court attorneys this morning is Tennessee Attorney General Jonathan Skrmetti, a Republican who happens to be the named respondent in today’s case. The last time such a prominent attorney involved in a case joined the court’s bar on the same day was in 2017, when then-New Jersey Gov. Chris Christie was sworn in before what was then called. Christie v. National Collegiate Athletic Associationa sports betting case.
In the judges’ guest box, I see either Dr. Patrick Jackson, the husband of Judge Ketanji Brown Jackson, or his twin brother, attorney William Jackson. Each has participated in arguments before, and I have probably confused one with the other, which Justice Jackson described in her memoirs as having once memorably done herself when all three were undergraduates at Harvard.
Ashley Kavanaugh, wife of Justice Brett Kavanaugh, also takes her place in the guest box today.
In the press section today, I am fortunate to sit next to Melissa Brown, the state political reporter for The Tennessean newspaper in Nashville. She points to some of the Tennesseans in the courtroom, including Gov. Bill Lee, state House Majority Leader William Lamberth and state Senate Majority Leader Jack Johnson. All three are Republicans, and all supported the state bill, SB 1, at the center of the issue.
Here, too, according to Brown, is one of the plaintiff’s family: a 16-year-old transgender girl identified in court papers as the LW and at least one of her parents (as best Brown can see). Three transgender teenagers, their families and a Memphis doctor who treats transgender youth filed suit against the state officials responsible for enforcing the SB1 ban.
As the judges sit on the bench and bar introductions are complete, Skrmetti moves over to a seat at the Tennessee bar table.
US Attorney General Elizabeth Prelogar may make her final argument as SG before President Biden and his administration leave office. (However, the current administration will still be in office during the first week of the court’s January session. The one logical case in which Prelogar could appear to argue as an amicus would be Free Speech Coalition v. Paxtonon the Texas law that seeks to impose age-verification measures on certain websites that offer sexually explicit material.)
Prelogar shares discussion time with Chase Strangio of the American Civil Liberties Union, who represents the private plaintiffs, including LW
Today, Strangio becomes the first known or openly transgender lawyer to argue before the High Court. When asked about this yesterday on a press call, Strangio addressed the team of attorneys at the ACLU working on transgender cases and said he was “truly honored” to have this opportunity.
Chase Strangio is arguing for the private plaintiffs. (William Hennessy)
On today’s call sheet, Prelogar and Strangio are each scheduled for 15 minutes of argument, while Tennessee Solicitor General Matthew Rice is scheduled for 30 minutes. But anyone who has been to Supreme Court arguments knows that these are mere suggestions. In fact, the course sets up these times for its free-for-all rounds, but it’s the series round that tends to get out of hand. Prelogar will face about 45 minutes of serial questioning, Strangio about half an hour, and Rice just under five minutes.
Prelogar faces some tough questions from the court’s conservatives, including Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, who grilled her at length about “the state of medical evidence at this point.” There is a lot of discussion about recent developments in the treatment of transgender people in Sweden, Finland and Great Britain.
Strangio also faces tough questions, but is well-prepared with side citations to the briefs and the joint appendix to support his arguments that the Tennessee law creates sex-based classifications that violate the 14th Amendment’s equal protection clause. When his red light comes on to indicate his time is up, just as a judge has asked a question, Strangio asks the head judge if he can answer. (Roberts, who always seems to appreciate the request even as some advocates barrel through their red lights, says “sure”).
He also deftly handles a question about the effects of increased scrutiny on state laws that exclude transgender girls and women from women’s athletics. They might survive that level of scrutiny, he suggests, because “it’s a completely different state interest being asserted.” He leaves aside all the details about himself and the ACLU challenging these laws.
Rice gets her toughest questions from the court’s liberal bloc, Justices Sonia Sotomayor, Elena Kagan and Jackson.
“You may have reasons to believe that this is an appropriate regulation,” Kagan says, “and those reasons should be tested and respected, but it’s a dodge to say this is not based on sex, it’s based for medical purposes, when the medical purpose is entirely about sex.”
Rice responds: “Justice Kagan, we think … it’s a request for a real right to engage in nonconforming behavior. We don’t think it actually draws a line based on sex.”
In his rebuttal, which closes the long argument, Prelogar turns to one of his favorite rhetorical devices.
“Finally, I think the court should think about the real-world consequences of laws like SB1,” she says. She’s referring to one of the plaintiffs challenging the Tennessee law, identified in court papers as Ryan Roe, a 16-year-old transgender boy who relied on testosterone treatments to deal with his gender dysphoria.
“Ryan’s gender dysphoria was so severe that he threw up before school every day,” says Prelogar. “And Ryan has told the courts that getting these medications, after a careful consultation process with his doctors and his parents, has saved his life. His parents say he’s thriving now. But Tennessee has come in and categorically cut off access to Ryan’s care, and they say this is about protecting the health of young people, but this law is harming Ryan’s health and the health of all other transgender youth for whom these medications are a necessity.”
The case is submitted. Some advocates will go outside to address their supporters on both sides. The debate on this contentious issue will not be settled today.
