SCOTUS Watch

Order List

The Supreme Court on Monday agreed to weigh in on a procedural question arising from a pregnancy discrimination case – specifically, whether a defendant can raise an affirmative defense (that is, a legal excuse or justification) later in the proceedings when it did not raise that defense in the answer to the plaintiff’s complaint.

After a brief order list, Sotomayor (with Jackson) spends some time explaining why the justices should have taken a criminal justice case. Finding troubling criminal justice cases that suggest the arbitrary nature of the criminal justice system is her thing.  

(The opening link provides more details) 

Opinions 

Happy Trans Visibility Day, which once was allegedly an anti-Easter plot or something, since it coincidentally overlapped that year. By chance, the justices decided the conversion therapy case.

Justice Gorsuch having the opinion (which, like multiple other opinions he had in cultural war cases, was procedurally dubious) was a bad sign. Worse, only Jackson dissented. It was a good dissent. 

(Jackson used a Calvinball ruling -- see Breyer's angry dissent -- to her benefit. Okay. But realistically, that is how it is going to be. Selective application.) 

The conservatives upheld anti-trans care policies, even though such policies clearly have ideological motivations. This time, when trans people are protected, the regulation is suddenly thought control.

The law involves the regulation of people with a state license to practice medicine and only covers minors. So, it is not about the conversion therapy of adults or therapy by unlicensed people, including clergy. 

Under this logic, any medical treatment delivered through words rather than instruments could now carry First Amendment protection—a framework that could shield a doctor who encourages a patient to commit suicide, a dietician who tells an anorexic patient to eat less, or a therapist who deliberately steers a vulnerable client away from life-saving treatment. It could also extend well beyond medicine: a financial advisor who talks an elderly client into a bad investment is exercising speech-based professional conduct, as is a lawyer who gives harmful legal advice.

Not good. Kagan (with Sotomayor) concurred in full, citing an alleged limitation. But, as Jackson noted, the limitation in context is fictional. If they concurred strategically, Gorsuch's language is far from restrained.

The opinion says strict scrutiny is required. Some misleading coverage aside, the Court did not strike down the law. Colorado has a higher test to meet. 

But that is usually an uphill battle. Gorsuch's rhetoric, as SCOTUSBlog flags, is also not reassuring:

But the Supreme Court also strongly hinted that the ban would fail that test. In his 23-page opinion, Gorsuch stressed that in cases like Chiles’, Colorado’s ban “censors speech based on viewpoint.” Because the First Amendment “reflects … a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth,” Gorsuch continued, “any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments.”

The possible Robert Kennedy Jr.-ing of medical care is not ideal. I say that even if the opinion leaves open a way to uphold this law (strict scrutiny met) or to craft another policy that will protect children. 

Kagan, in the past, disliked "Lochner-ing" or the weaponizing of the First Amendment. Blah. 

Upcoming

The conference was on Thursday, given the Easter weekend. Monday will be an Order List. They then take a two-week break until April 17th. 

Birthright Citizenship Trivia

Trump showed up for the birthright citizenship oral argument (left after the solicitor general was done), which would be the first time a sitting president did so. Notably, he picked this case to do so.

Talk about this being an "attempt to intimidate the justices" seems a tad overblown. Separation of powers? Eh. Members of Congress show up. 

Nixon and John Quincy Adams argued cases. Lincoln, too (a more forgotten detail). Not while in office, of course. Taft became Chief Justice. Ditto. 

John Marshall served as Secretary of State briefly after becoming Chief Justice. The Constitution does not -- unlike for members of Congress -- clearly ban that sort of thing. Justices also served in diplomatic roles. Robert Jackson was a prosecutor at Nuremberg.