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The biggest case of the term, so far, is being argued this morning and there is anticipation in the chilly Washington air. Demonstrators on each side of United States v. Skrmetti, the dispute over access to puberty blockers and hormone therapy for transgender teenagers, have arrived early in front of the court building and will still be there when the argument is finished after noon.
Inside the courtroom, I recognize a few lawyers in the bar section who were here yesterday when several members of the National Trans Bar Association were sworn into the Supreme Court Bar. (Today might have been the group’s first choice, but it can be quite competitive to secure such slots.)
Among the individuals who will be sworn into the Supreme Court Bar this morning is Tennessee Attorney General Jonathan Skrmetti, a Republican, who coincidentally is the named respondent in today’s case. The last time such a prominent lawyer who was involved in a case joined the court’s bar 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 Association, a case about sports betting.
In the justices’ guest box, I see either Dr. Patrick Jackson, the husband of Justice Ketanji Brown Jackson, or his twin brother, the lawyer William Jackson. Each has attended arguments before, and I have probably mistaken one for the other, as Justice Jackson described in her memoir as having once memorably done herself when all three were undergraduates at Harvard.
Ashley Kavanaugh, the wife of Justice Brett Kavanaugh, is also in her seat in the guest box today.
In the press section, I am fortunate today to be seated next to Melissa Brown, the state political reporter for The Tennessean newspaper of Nashville. She points out some of the Tennesseans who are 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 law, SB 1, at the center of the case.
Also here, according to Brown, is one of the plaintiff families: a 16-year-old transgender girl identified in court papers as L.W. and at least one of her parents (as best Brown can see). Three transgender teens, their families, and a Memphis doctor who treats transgender youth brought the suit against the state officials responsible for enforcing the SB1 ban.
When the justices take the bench, and the bar induction is complete, Skrmetti moves over to a seat at the Tennessee counsel table.
U.S. Solicitor General Elizabeth Prelogar is making perhaps her last argument as SG before President Biden and his administration leave office. (However, the current administration will still be in office for the first week of the court’s January sitting. The one logical case in which Prelogar might show up to argue as an amicus would be Free Speech Coalition v. Paxton, about the Texas law that seeks to impose age-verification measures on certain websites offering sexually explicit material.)
Prelogar is sharing argument time with Chase Strangio of the American Civil Liberties Union, who is representing the private plaintiffs, including L.W.
Today, Strangio becomes the first known or openly transgender lawyer to argue before the high court. Asked about this yesterday on a press call, Strangio deferred to the team of lawyers at the ACLU who work on transgender cases and said he was “truly honored” to have this opportunity.
Chase Strangio arguing for the private plaintiffs. (William Hennessy)
On the day’s call sheet, Prelogar and Strangio each are slated for 15 minutes of argument, while Tennessee Solicitor General Matthew Rice is slated for 30 minutes. But anyone who has been to Supreme Court arguments knows that these are mere suggestions. Actually, the court hews to those times for its free-for-all rounds, but it is the seriatim round that tends to get out of hand. Prelogar will face about 45 minutes of seriatim questioning, Strangio about a half hour, and Rice barely five minutes.
Prelogar faces some tough questioning from the court’s conservatives, including Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, who grills her for a prolonged period about “the state of medical evidence at the present time.” There is a fair amount of discussion about recent transgender treatment developments in Sweden, Finland, and the United Kingdom.
Strangio also faces tough questions, but is well prepared with page citations to briefs and the Joint Appendix to back up 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 has expired just as a justice has asked a question, Strangio asks the chief justice if he may 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 heightened scrutiny on state laws that bar transgender girls and women from female athletics. Those might survive such a level of scrutiny, he suggests, because “it’s wholly different state interests that are being asserted.” He leaves aside any details about himself and the ACLU challenging those laws.
Rice gets his toughest questions from the court’s liberal bloc, Justices Sonia Sotomayor, Elena Kagan, and Jackson.
“You might have reasons for thinking that it’s an appropriate regulation,” Kagan says, “and those reasons should be tested and respect given to them, but it’s a dodge to say that this is not based on sex, it’s based on medical purpose, when the medical purpose is utterly and entirely about sex.”
Rice replies, “Justice Kagan, we think … that’s a request for a substantive right to engage in non-conforming behavior. We don’t think it’s actually drawing a line based on sex.”
In her rebuttal, closing out the lengthy argument, Prelogar goes to one of her preferred rhetorical tools.
“Finally, I think the court should think about the real-world consequences of laws like SB1,” she says. She refers 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 was throwing up before school every day,” Prelogar says. “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 now thriving. But Tennessee has come in and categorically cut off access to Ryan’s care, and they say this is about protecting adolescent health, but this law harms Ryan’s health and the health of all other transgender adolescents for whom these medications are a necessity.”
The case is submitted. Some of the advocates will go outside to address their supporters on either side. The debate on this contentious issue won’t be settled today.
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