SCOTUS Watch: Anti-Pride Month Edition

Financial Disclosures 

The Supreme Court released financial disclosures, part of the ethical rules currently in place. The SCOTUSblog coverage notes (without adding "and he should have been impeached"):

Justice Clarence Thomas, whose failures to disclose (among other things) private jet and superyacht trips in prior years led to investigations by ProPublica and calls for ethics reform by the justices, did not list any non-investment income, any travel reimbursements, or any gifts for 2024.

Justice Alito delayed providing his probably because he has a lot of investments. It would be helpful if these things were cross-referenced to recusals. 

Opinion Days

If you go to the Supreme Court website, there is a calendar. Click such and such a day and see if anything is scheduled. Wednesday and (eventually) Friday were labeled as days when opinions might come down. They nearly always will be. 

There is no livestreaming of opinion announcements. Nonetheless, reporters live blog them, including at SCOTUSblog and Bluesky. So, for instance, we know how many boxes of opinions are out. Today it was three. That means a bunch of opinions. 

The opinions are released in reverse order of seniority (Jackson to Roberts; any unsigned per curiam comes last). The first was handed down by Kavanaugh, but then it was Thomas handing down a not too divisive case. The next opinion was either Thomas's or Roberts's. A big opinion was likely.  

The Others 

The justices (Gorsuch, with Alito and Thomas dissenting) found a way to avoid a tricky case involving the disposal of nuclear waste on standing grounds. Kavanaugh has done that before.

Thomas handled two environmental cases. Gorsuch (with Roberts, with a relatively rare dissent) disagreed with how he handled it, dissenting in one case and concurring in the other. 

After the big decision, Roberts had a good opinion that expanded access to a jury trial under the Prison Litigation Reform Act. Barrett wrote the dissent there for the other conservatives (minus Gorsuch).  

Some are sneering at the NYT article on maverick Barrett, but it also had multiple people warning "ignorant conservatives and wishful liberals" expecting too much. I did hope she would not be too bad on trans issues. Oh well. So did a trans activist.

Trans Medical Care  

Judge Sutton and the 6th Circuit ruled against same sex marriage, unlike nearly every other court. This led the Supreme Court to take up the issue ten years ago. Sutton was behind the anti-trans ruling, too.

We have a different Supreme Court now. It was risky to bring an appeal. This was not a statutory case involving employment. The regulation of medical care for minors would give the necessary justices more room for concern. Gorsuch, who wrote the Bostock opinion, didn't even open his mouth during the oral argument. The question was how bad it would be. 

Tennessee’s legislature passed the law, known as SB1, in 2023. SB1 emphasizes that the state has a “legitimate, substantial, and compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty.” It prohibits (as relevant here) the use of puberty blockers and hormone therapy for transgender teens while allowing the use of the same treatments for other purposes. 

[The bold is from two linked articles.]

Not good, though it could have been worse. Roberts wrote the majority, though a lot of the 118 pages were concurrences and dissents (Sotomayor dissented from the bench; Kagan didn't join one part while Jackson joined all of Sotomayor's dissent).  

The opinion didn't go far enough for Barrett, Alito, and Thomas. They would have bluntly said that transgender people should not receive heightened scrutiny. Roberts claimed the case didn't bring up the question. Alito was more honest than that. 

Significantly, Tennessee’s law is also quite explicit that the purpose of this law is to ensure that young people do not depart from their sex assigned at birth. The law declares that its purpose is to “encourag[e] minors to appreciate their sex” and to prevent young people from becoming “disdainful of their sex.” That is an explicit sex-based classification. Patients who Roberts refers to as “biological women” are allowed to fully embrace femininity in Tennessee. But a child who is assigned male at birth may not.

Roberts could have done less than he did, given the limited question presented. Kagan separately talked about that. I had hoped perhaps someone like Barrett (not thinking she was so anti-trans) could write a minimalist opinion. Unfortunately, Barrett decided to instead reach out to belittle the risks of trans people.

Roberts didn't go as far as he could. It still is not good. For instance, "We have not yet considered whether Bostock’s reasoning reaches beyond the Title VII context, and we need not do so here." The Bostock author went along with this possibly "applying it to its facts" limitation without comment. 

The Bostock logic should apply to other federal and state legislation with similar "because of sex" language. The "Title VII context" isn't somehow unique. I'm worried about that possible poison pill. 

The opinion cites Dobbs and an old "pregnancy discrimination isn't sex discrimination" precedent to add insult to injury.  The opinion is sort of a bad Roberts special: it has a desired result, sounds reasonable, but the reasoning falls apart with scrutiny. 

Chris Geidner and Erin Reed have more. CG argues there are avenues left open, including when animus is shown. Some, however, (rightly) argue that it was present here. He notes the "disingenuous wordplay" involved. And, this was the better half of the majority.

Erin Reed speaks about how "devastating" the ruling is while also noting its limited reach: 

The case raised foundational constitutional questions: whether transgender people constitute a class triggering higher constitutional scrutiny, whether laws targeting them violate equal protection, and whether the Constitution guarantees their right to access medically necessary treatment. The Court sidestepped nearly all of those questions.

ER covers how the opinion is horrible and poorly argued within the context covered. This includes Orwellian language that uses the criteria of trans people to classify and says the state is not classifying by trans status. A big TBD:

The ruling effectively greenlights medical care bans across the country and may pave the way for broader restrictions, including for adults, while leaving lower court rulings on bathrooms, schools, sports, and employment remain intact—for now.

The opinion, overall, should not be exaggerated to some degree -- it covers a limited ground -- but it is true (to quote Blackmun) that an ill wind blows.  

(Sotomayor provides her dissent "in sadness" instead of "respectfully." She should say "in anger," which is expressed in various parts of her dissent.)  

On a related subject. I watched Newton's Law, an Australian show, on DVD. It had a trans healthcare storyline. Another episode of the enjoyable legal drama involved a property dispute over a dog. A good change that addresses the old "pets are just property" concept was recently put in place.

A recent book about a German sex researcher provides a more open and liberal minded vision that apparently is still ahead of its time a hundred years later.  

Trump Checks In 

Meanwhile, the Trump Administration is continuing its anti-LGBTQ efforts:

President Trump’s administration has ordered a crisis service for LGBTQ youth to close within 30 days in a move that opponents have said will have dire consequences. 

Since federal spending is involved, the Substance Abuse and Mental Health Services Administration referenced "LGB+ youth," editing out trans people. 

To be continued ...