Josh Blackman | 12.4.2024 12:49 PM
I've just finished listening to the 2.5 hour oral argument in Skrmetti. A majority of the Court seems prepared to uphold the Tennessee law. There may even be seven votes for that outcome. But as always, Justice Kagan is in the middle, trying to broker a compromise that preserves future challenges for transgender litigants.
I do not have the transcript yet, so this post will based on my best recollection. I'll post from the transcript later.
Solicitor General Prelogar argued that the Tennessee law imposes a sex-based classification. But Justice Kagan pushed her former law clerk whether the law imposed a different type of a classification--on the "status" of being transgender. I immediately thought of Cleburne and Romer, which both imposed some sort of quasi-suspect classification that was subject to Rational Basis "Plus Bite" scrutiny. Here is how Randy and I describe these precedents in 100 Cases:
Nevertheless, in two Equal Protection Clause cases the Supreme Court took a different approach. In City of Cleburne v. Cleburne Living Center, Inc. (1985) and Romer v. Evans (1996), the Court applied what is sometimes called heightened rational basis scrutiny, even though the classifications at issue were not suspect or quasi- suspect. In these atypical cases, the Court returned — at least temporarily — to the type of rationality review articulated in Carolene Products. . . .
In Cleburne and Romer — two Equal Protection Clause cases — the Court employed heightened rational basis scrutiny despite the absence of a suspect or quasi-........