Supreme Court justices treat the court like a town hall in the culture war

At first glance, the U.S. Supreme Court’s decision to hear a lawsuit brought by the Biden administration challenging Tennessee’s ban on transitional care for transgender minors appears to be a case that the Supreme Court should really decide.

Various lower federal courts have reached different conclusions about similar laws — sometimes allowing the bans to stand and sometimes striking them down — and resolving a disagreement among the appellate courts is one reason the review is being granted. In fact, for some legal experts, it was all but preordained: “The Supreme Court had to decide from the start how to reconcile state bans on sex-affirming medical care with its approach to sex discrimination,” Steve Vladeck, a professor at the University of Texas Law School and CNN commentator, told the network on Monday.

But appearances can be deceptive.

So far, the justices have stayed out of the quagmire of transgender issues, refusing to address how different states handle which bathrooms transgender students can use and who can play on which sports teams. While they allowed a ban on transgender treatment in Idaho to stand, that case was not decided on the facts, only on whether a federal court could block the law from being implemented, as the case continued to be litigated in lower courts.

The Idaho case — which is on the court’s emergency docket — produced a number of dissenting and concurring opinions, mostly focused on the extent to which individual federal courts can issue injunctions that affect more than just the parties before them, the so-called “universal injunction.” In that sense, the Idaho case was more of a sideshow on an issue that is a thorn in the side of some justices, such as Neil Gorsuch, who expressed irritation that lower court judges are trying to “govern an entire state or even the entire nation from their courtroom.”

Presumably, in Gorsuch’s view, only Supreme Court justices are allowed to run the country from their courtrooms. But this passing discussion of the merits of Idaho’s transitional care ban and the avoidance of past transgender issues shows that the justices know how to stay out of it when they want to.

According to the Human Rights Campaign, nearly half of all states now have bans on this type of medical treatment. That means about 39 percent of transgender youth live in states that prohibit them from accessing this type of health care. This trend is dangerous and unfair to these youth, and reflects the success of the right’s efforts to attack LGBTQ+ Americans by any means possible.

Yet the Supreme Court is unlikely to put an end to this biased and hateful effort to revert the United States to the Christian nationalist fantasy of a country where there are no LGBTQ+ issues and no LGBTQ+ people.

The court’s new ultraconservative majority—the rich harvest of decades of work by the Federalist Society—now has the power to realize both the embittered dreams of Justices Samuel Alito and Clarence Thomas and the Young Turk ambitions of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

The repeal of half a century of women’s health protections in the Dobbs case, the roe is an example of this power. At its core, Dobbs is an attack on the constitutional right to privacy, which is the basis for Roe v. WadeAnd the destruction of roe Protections opened the floodgates for attacks on an unlimited number of protections for women and LGBTQ+ people through the means of medicine and health care.

Finally, Roe v. Wade It merely upheld a medical procedure, and the overturning of that procedure was an indication that the Supreme Court does not have to listen to doctors on health issues.

Following the reasoning behind the Dobbs ruling (which returned the abortion issue to the states), the justices could have allowed the same result for transgender health care.

Although such a hodgepodge of laws would affect patient care, it would be consistent with a supposedly conservative view that such questions should be left to the states, not the federal courts. But that is not really the truth of conservative views or the views of the judges. Rather, the judges believe they are qualified to question the standards of medical care for transgender youth under the guise of deciding “constitutional” questions.

Moreover, the squeamish elite judges may feel more comfortable deciding “health care” matters than deciding toilet issues.

When the case is heard in the next legislative session, there will likely be a veritable town hall meeting where right-wing legal theories are debated and ultimately expressed in a dizzying array of approvals and disapprovals. It will be an opportunity for old-school justices like Clarence Thomas to point out the absence of LGBQT+ issues in the Constitution and/or for Alito to speculate about what his 17th-century witch-hunting idol, Matthew Hale, would have said about transgender medical care. And it will be an opportunity for the liberal justices to express their likely futile concern for protecting transgender youth.

It’s tempting to say that America and transgender youth would be better served if the case were never heard at all, because it would at least avoid enshrining anti-LGBTQ+ hatred in the Constitution. But the seeds for this fight were planted decades ago, and denying certiorari would only be a temporary panacea.

The real solution is political: it must confront the deep hatred and prejudice that underpins the politics of the far right. It must also completely redesign the US Supreme Court, both in terms of its size and its ethics.

Until then, we must listen to this Court and its alleged machinations in interpreting the Constitution, behind which lies a powerful religious and social agenda.