Advisory Opinions - Skrmetti and Certiorari

Episode Date: June 19, 2025

Sarah Isgur and David French break down the Supreme Court’s 6-3 decision to uphold Tennessee’s law that bans transgender medical intervention for minors. It’s about age, not sex. The Agenda:—Banning TikTok—Trump defies Congress—Tennessee’s ban on certain medical treatment for transgender minors—Queasy about judge-made doctrines—The girls are fighting—Just call it cert Show Notes:—Jack Goldsmith on Iran This episode is brought to you by Burford Capital, the leading global finance firm focused on law. Burford helps companies and law firms unlock the value of their legal assets. With a $7.2 billion portfolio and listings on the NYSE and LSE, Burford provides capital to finance high-value commercial litigation and arbitration—without adding cost, risk, or giving up control. Clients include Fortune 500 companies and Am Law 100 firms, who turn to Burford to pursue strong claims, manage legal costs, and accelerate recoveries. Learn more at burfordcapital.com/ao. Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings, ⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠click here⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠⁠. Learn more about your ad choices. Visit megaphone.fm/adchoices

Advisory Opinions is presented by Burford Capital, the leading finance firm focused on law. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. Siren, siren, we got the Scrumetti decision from the Supreme Court. We'll be talking about that. We got some other pretty boring decisions. Legal authority to attack Iran, and how to

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Employee pricing is on for a limited time. Visit your local GMC dealer for details. All right, David, I want to start with something else that I now want to top every podcast that we do from now on with. It has been 149 days that the president has refused to enforce a law duly passed by Congress and signed by the president of the United States to, in all respects, ban TikTok in this country. President Trump is now considering his third delay, except there's no such thing in the law.

They're giving no legal justification for doing this, and no one seems to care. But I care, David. It's been 149 days of actual, just total lawlessness from the executive branch, and I plan to keep count now. I'm glad you're doing this, Sarah, because I've been thinking about this as well. And let's be clear, this is not defying the Supreme Court.

They're not defying a Supreme Court order. They're defying a, he's defying a statute passed by Congress that was upheld by the Supreme Court. So the defiance here is he's just absolutely flying in the face of Congress. And so this is, there's no legal justification for this at all. Zero. He has no leg to stand on at all. Zero.

And yet he's doing it anyway. Nobody's talking about it. Well, nobody except us. Well, this is the thing. Everyone wants to talk about the constitutional crisis with immigration or with reductions in force. Like those are debatable, we've debated them. This isn't debatable.

So if you want to attack the Trump administration for lawlessness, I'm handing you the club with which to do it. But you know, as I said, I'm gonna do it for every episode from now on. So 149 days today. Let's see how far we get. David, we got the Scrametti decision from the Supreme Court. This was about Tennessee's law banning transgender medical intervention for minors. It was 6-3, no surprise there. The chief wrote the majority opinion. We had concurrences by Thomas, Barrett, and Alito. The dissent was authored by Sotomayor. Then

Kagan wrote a separate dissent not joining all of Sotomayor's dissent, but most of it. I've got a lot of reading to do to set up what some of the questions were here, but David like billboard, the big questions were, do you think that this discriminates on the basis of transgender status? Do you think the transgender status is a protected class? When we think about cases like Bostock that were in the employment context about discrimination on the basis of sexual orientation or gender identity, and remember that was written by Justice Gorsuch, held that Title VII did protect against those types of discrimination, that

was Title VII, that was statutory, it was Congress. This case is the equal protection clause of the 14th Amendment. So it's different than Bostock, but how different is it? Don't worry, the justices all have thoughts on that too. Before I get into reading portions of the chief's opinion, David, explaining how he answered those two billboard questions, initial thoughts.

Yeah, you know, this is a case with a lot of opinions. It's long opinions, or the opinions are long, but it's very simple. It's very simple. The headline of the piece I wrote about this last year when it was argued was, the Tennessee case is about age, not sex. And the opinion is saying in so many words,

this is about age, not sex. And then when something is about age, not sex. And then when something is about age, especially age and regulation of access to medical treatment, this is very squarely within traditional state government authority under the most or the least restrictive form of review, rational basis review.

So I think that this question, age or sex, this is what Justice Robert spins most of his opinion talking about. That's the key question of this case. And I think it was rightly decided, age not sex, but that's super cursory. You've got a lot of reading to do, Sarah. I do.

So, okay, the first question is, was this discrimination on the basis of transgender status? Five justices say no to that. Alito is actually going to break off on that question and we'll get to why later. So let's, I'm going to read here some chiefy words from the majority opinion. Remember we have 118 pages total. So if you think I'm reading too long, just know, at least I'm not reading 118 pages to you.

Uh, this is first going to describe the law, SB1, in Tennessee. SB1 bans the use of certain medical procedures for treating transgender minors. In particular, the law prohibits a healthcare provider from surgically removing, modifying, altering, or entering into tissues, cavities, or organs of a human being, or prescribing, administering, or dispensing any puberty blockers or hormone for the purpose of enabling a minor to identify with or live as a purported identity inconsistent with the minor's sex, or treating purported discomfort or distress from a discordance between the minor's sex and asserted identity.

Among other things, these prohibitions are intended to, quote, protect minors from physical and emotional harm by encouraging minors to appreciate rather than become disdainful of their sex. So, again, we're looking at the question, does this discriminate on the basis of transgender status? Also, note though, SB1 does not restrict the administration of puberty blockers or hormones to individuals 18 and over. Second, SB1 does not ban fully the administration of such drugs to minors either. A healthcare provider may administer puberty blockers

or hormones to treat a minor's congenital defect, precocious or early puberty, disease, or physical injury. Okay, so are we discriminating on the basis of transgender status? Back to the chief. The 14th Amendment's command that no state shall deny to any person within its jurisdiction the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another with resulting disadvantage to various groups or

persons. We have reconciled the principle of equal protection with the reality of legislative classification by holding that if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.

So here's now the chief speaking for five of the justices. First, SB1 classifies on the basis of age. Health care providers may administer certain medical treatments to individuals 18 and older but not to minors. Second, SB1 classifies on the basis of medical use. Health care providers may administer puberty blockers or hormones to minors to treat certain conditions but not to treat gender dysphoria, gender identity disorder, or gender incongruence. Classifications that turn on age or medical use are subject to only rational basis review. When, for example, a transgender boy whose biological sex is female takes puberty blockers to treat his gender incongruence,

he receives a different medical treatment than a boy whose biological sex is male who takes puberty blockers to treat his precocious puberty. For reasons we have already explained, changing a minor sex or transgender status does not alter the application of SB1. If a transgender boy seeks testosterone to treat his gender dysphoria, SB1 prevents a healthcare provider from administering it to him. If you change his biological sex from female to male, SB1 would still not permit him the hormones he seeks because he would lack a qualifying diagnosis for the testosterone, such as a congenital defect, precocious puberty, disease or physical injury. The transgender boy could receive testosterone only if he had one of those permissible diagnoses, and if he had such a diagnosis, he could obtain the testosterone regardless of his sex or transgender status.

Under the reasoning of Bostock, for example, neither his sex nor his transgender status is the but for cause for his inability to obtain testosterone. So David, the answer from five of the justices is this does not discriminate on the basis of transgender status. It discriminates on age, which is not protected, and on your medical diagnosis. But here's what I want to push you on, David. If the medical diagnosis sits directly on top of one's transgender status, and so for our purposes here in this conversation, everyone who we say is transgender also can be diagnosed with gender dysphoria, then aren't we discriminating on the basis of transgender status?

It just happens to be that that is one-to-one with a medical diagnosis? Well, no. And here's why this is a kind of, there will be kind of a long answer to this question, but let's begin with a pretty simple proposition. Proposition one is you have two individuals, John Senior, who has gender dysmorphia and is seeking puberty, and well, obviously John Senior is older, wants surgical intervention to deal with gender dysphoria.

And John Junior, who's 15 and wants medical intervention. Under Tennessee law, John Sr. can get that medical intervention. He can have that medical treatment. John Jr. cannot. The distinction there isn't the transgender status. The distinction there is the age. And what's also important to know is that the Tennessee law doesn't ban all gender affirming, quote unquote, treatment for minors. So for example, social transitioning is not banned here. What is banned is a specific set of medical practices

that in the estimation of the Tennessee legislature are harmful to minors. And so they're not actually saying you can't receive any gender affirmation at all as a transgender minor in the state of Tennessee. What they are saying is there are specific medical interventions that the legislature has looked at and said for there are specific medical interventions that the legislature has looked at and said, for minors, these medical interventions are more harmful than they are beneficial. And so in that circumstance, and this is again based on, and Roberts goes through a lot of

evidence from overseas and elsewhere to demonstrate that there are reasons to think this, that there are, for example, nations in Europe that originally had somewhat led the charge on medical gender transition for children are now pulling way back from that. And so this looks less like, well, we're taking categorical aim at gender identity and a lot more like there is a specific set of medical treatments that are tied at gender identity, and a lot more like there is a specific set of medical treatments that are tied to gender identity that at people at a certain age are dangerous and have long-term side effects.

Those are different kinds of analyses. For example, if you had a law, let's say you had a treatment for a disease, you know, let's just, you know, come up with a disease. Let's say you had a treatment for pneumonia and that the clinical trials found that for adults it seemed to be effective, but for kids it was less effective and perhaps dangerous. Nobody would bat an eye at a legislator saying, well, then we're going to ban it for kids. The reason why this is so controversial is, yes, one,

I do think there are some people who would like to use elements of the law to try to eradicate transgender status entirely. I do think those people exist, but I don't think that is not what this law is doing, not even close. Instead it's saying there is a medical diagnoses for which certain treatments the legislature has determined are too dangerous, are too risky for minors. And so that is a medical-based determination,

not a status-based determination, not a status-based determination. And so I think they would have a much stronger argument if that this was a status-based determination, if the law somehow purported to ban transgender identity or any kind of gender-affirming interaction with transgender individuals below the age of 18. No, this is banning a certain set of medical treatments that the legislature deems to be dangerous.

All right. I want to walk through the concurrences here because as I said, Justice Alito concurred in the judgment certainly, but he actually said he was uncomfortable with deciding that this wasn't based on transgender status, but this gets us to our second question. Let's assume that it was discrimination on transgender status. What's wrong with that? Is our transgender individuals a protected class under the law?

Real quick, Clarence Thomas has a concurrence. I'm going to summarize it like this. This is not the Boss Dot case, which separately totally sucks also, and experts are the worst. To read one paragraph from his, the views of self-proclaimed experts do not shed light on the meaning of the Constitution. Thus, whether major medical organizations agree with the result of Tennessee's democratic process is irrelevant. To hold otherwise would permit elite sentiment to distort and stifle democratic debate under

the guise of scientific judgment and would reduce judges to mere spectators in construing our Constitution. CT doesn't hold back. Not ever. Okay. Then we have Justice Barrett. So, here's what her concurrence is about. Justice Barrett joined Justice Thomas's concurrence.

Justice Thomas is going to join Justice Barrett's concurrence and Justice Alito's concurrence is going to have a lot in common with Justice Barrett's concurrence as well. So here's Justice Barrett. This court has not recognized any new constitutionally protected classes in over four decades and instead has repeatedly declined to do so. To determine whether a group constitutes a suspect class akin to the canonical examples of race and sex, we apply a test derived from the famous footnote four in United States versus Caroline products. That's from 1938 by the way, that was the milk case, filled milk, and a state law banning filled milk. This came after the court had struck down all of these state and federal laws on economic issues because they had found

these economic rights to liberty. You see the court turning around this time and this is where they're going to come up with rational basis review. You know what? And like, Frankfurter is going to lead the charge on deference to the legislatures. If they have some rational reason for doing it, we're not policymakers. We should defer to the legislature. So they're like, filled milk? Yeah, there's a rational basis for banning filled milk. All good with us.

And then in footnote four, they're like, okay, but one could imagine a law that we're not going to give deference to. And here I'll now go back to Justice Barrett's opinion about that footnote where she's quoting it. Prejudice against discrete and insular minorities may be a special condition which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities and which may call for a correspondingly more searching judicial inquiry.

This is where we're going to get strict scrutiny from David. It's footnote four of Caroline products. So the opinion is rational basis and footnote four creates what we're going to call strict scrutiny back to Justice Barrett. We consider whether members of the group in question exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group, whether the group has, as a historical matter, been subjected to discrimination, and whether the group is a minority or politically powerless. The test is strict, as evidenced by the failure of even vulnerable groups to satisfy it. We have held that the mentally disabled, the elderly, and the poor are not suspect

classes." And then she goes on to ask whether transgender status should be a suspect class. And she basically says, it's not immutable. People can identify as transgender at different ages, at different points, they can de-identify as transgender, so not immutable, and not discreet. She quotes from including some of the briefs in front of the court that transgender status can encompass any number of definitions and not a singular identity, so not discreet. Then she says, the second factor, whether the group has, as a historical matter, been subjected to discrimination also poses a problem for the plaintiff's argument. For purposes

of the 14th Amendment, the relevant question is whether the group has been subject to a longstanding pattern of discrimination in the law. In other words, we ask whether the group has suffered a history of de jure discrimination. The focus on de jure discrimination is not only theoretically sound, it also is judicially manageable. Courts are ill-suited to conduct an open-ended inquiry into whether the volume of private discrimination exceeds some indeterminate threshold. By contrast, they are well equipped to analyze whether there is a history of legislation that has discriminated against the group in question. Alito in his concurrence basically comes down the same way. He says he's uncomfortable with saying this isn't discrimination on the basis of transgender

status. He says, I would assume for the sake of argument that SB1 classifies on the basis of transgender status, but then goes on to say transgender status is not immutable. And as a result, persons can and do move into and out of the class. Members of the class can differ wildly among themselves and it is often difficult for others to determine whether a person is a member of the class. And transgender individuals have not been subject to a history of discrimination that is comparable to past discrimination against the groups we have classified as suspect or quasi-suspect.

It goes on to quote, by the way, one of my favorite lines from VMI, the case about sex discrimination written by Justice Ginsburg David. We have acknowledged that the physical differences between men and women are enduring and remain cause for celebration. Lol. But he notes also that poor people

have not been considered a suspect class despite the fact that poor people have not been considered a suspect class, despite the fact that poor people have often been subjected to harsh and disrespectful treatment. A class defined by poverty is too large, diverse, and amorphous to qualify as suspect or quasi-suspect. So okay, that's now everyone in the majority, David. It's six-three on the decision, five that this doesn't discriminate on the basis of transgender status, and three that even if it did transgender status is not a suspect class for the purpose of heightened scrutiny. So here's my question to you David. If I had a law in 1995 that barred someone from becoming a public school teacher if they were HIV positive. What level of scrutiny does that get?

In 1995, if you're barring someone who has HIV, that would be rational basis review. Explain. The status of HIV positive is not a kind of immutable characteristic from birth, like race, sex, etc. No, but once you are HIV positive, it's immutable in 1995. Right, it is. However, also in 1995, we also knew it's immutable, but also transmissible. And we did not know fully the reasons and how it would be transmissible.

We were still in a learning process. Yeah, that might be an argument for why it meets a heightened scrutiny, but it doesn't get you out of heightened scrutiny. My point here, I hope, is that a medical diagnosis, like if you assume the gender dysphoria sits right on top of transgender status, simply answering that first question by saying, no, it's not discrimination on the basis of transgender

status, it's discrimination on the basis of medical diagnosis. Well, I think this is a one-to-one medical diagnosis to status as HIV was a medical diagnosis that there were discriminatory laws about at the time. For all the reasons you said, David, and I think they would have passed heightened scrutiny because we didn't know how it was transmitted completely clearly at that point. Maybe I'm picking the wrong year in 1995 for that purpose, but- Yeah, I can't remember when we knew what we knew. Sure, pick 1988.

But regardless, that's my legal point at least, is one can definitely imagine discrimination on the basis of medical diagnosis that would certainly feel a lot pretty invidious. Well, also let's not forget hovering over this conversation is another case, Romer v. Evans. So this is still good, it's still good law, and it's also part of the equation. And what Romer v. Evans says, in essence, at least as I read it, is that, okay, we don't even have to get into this,

are you part of a suspect class or not equation, if you have enacted a statute or a law out of a, quote, bare desire to harm a politically unpopular group. So there's sort of the Romer v. Evans hovering over this that also says, okay, suspect class, not suspect class, we'll put that aside for the moment. And if we find that this law was enacted out of bare hostility, then, so if you had,

let's say to continue with your AIDS example, let's suppose it's not in 1985 or 88 or whenever we had a lot of ambiguity. You just decided even though there was no evidence that HIV was going to be transmissible by a teacher, there was no evidence that impacted the ability to do the job, you just don't like HIV positive people, then you're running into the Romer V. Evans problem, that there is a bare desire to harm a politically unpopular group.

So that's an interesting little caveat here that hovers over everything, which is kind of an additional backstop of protection without creating a suspect class. And I could easily imagine, given some of the rhetoric that you hear from parts of the right against transgender individuals I could easily imagine a law or Regulation aimed at transgender individuals that wouldn't meet the Romer v. Evans test and we talked about this in the context of military service What does the evidence say about transgender individuals and military service And if the evidence says that there is in fact no impediment to

effective service, but you're banning people anyway, then that might be a Romer v. Evans problem. Versus if there is evidence that transgender status does degrade your military readiness, then the military is going to have a free hand here. And so I think that any discussion of classes and suspect classes and hostility is incomplete unless it includes the Romer v. Evans kind of caveat that hovers over everything. Well, to go back to something that Justice Thomas said

in an opinion from last week, are the judge-made doctrines here by which I mean rational basis and heightened scrutiny, whether it's strict scrutiny or intermediate scrutiny, are they helping make this clearer or are they muddying it? I think they're helping make this clearer. I mean, when I was agreeing with Justice Thomas on McDon McDonald Douglas, for example, that's because it's a unnecessarily complex judge-made rule. It's not that it's a judge-made rule. The fact of the matter is that the Constitution, the language of the Constitution, it is very

plain but it is incomplete. It is plain in articulating particular values, such as very plain in saying Congress shall make no law, you know, bridging the freedom of speech or the free exercise of religion or that equal protection under the law is mandated. But these broad statements do not get to all of the particulars.

And so the judges are always going to hit the question of how do we apply broad principles into very discrete and individualized factual circumstances while doing it in such a manner that every case isn't a case-by-case analysis, that precedent does matter. But this is the problem. The judge made doctrines like this are meant to provide a shortcut in a lot of ways,

like, ah, it's heightened scrutiny. So we can skip to the heightened scrutiny part or it's rational basis. So we get to skip to that part. But then we end up fighting over whether you get to skip to that part instead of actually about the law. So for instance, you can imagine several laws about the mentally disabled, some instance, you can imagine several laws about

the mentally disabled, some of which make a lot of sense and we would defer to the legislature because they're not discriminatory in the traditional sense. They have a purpose to protect the mentally disabled or to protect the community, something to that effect. But one could also imagine laws about the mentally disabled that don't do that at all and are simply invidious forms of discrimination because mentally disabled people are yucky or whatever else. But if we just said that mentally disabled people, for instance, don't get heightened scrutiny, so you're in rational basis, we no longer distinguish between those laws because we just said like, oh, we defer whether they're yucky or meaningful, they're rational basis review. And I think that's what makes me a little bit queasy about all judge-made doctrines.

If they actually were a shortcut, I'd like them, but instead, it's not a shortcut. We just argue about whether to take the shortcut then. They're all judge-made doctrines though, Sarah. That's the thing. Like Clarence Thomas, who went on a screed against a judge-made doctrine, articulated a judge-made doctrine with Bruin, text, history, and tradition.

Totally a judge-made doctrine, totally. And so it's not whether we'll have them. I think the Clarence Thomas, the Clarence Thomas dissent in the, you know, in the McDonnell Douglas framework is that this is a dumb judge-made doctrine. Judges, be careful about your judge-made doctrines. When statutes are reasonably clear,

why do you need four additional steps that you've imposed? Use restraint and how many hoops you're gonna make people jump through. But I don't think there's any way at all to avoid the concept of a judge-made doctrine because text, history, and tradition is every bit as judge-made as strict scrutiny. Okay, here's my next question. Justice Barrett and her

concurrence is making that distinction between de jure discrimination and de facto discrimination and basically saying that the Equal Protection Clause and that sort of question over who is a suspect class under the Equal Protection Clause is all about de jure discrimination because it's about equal protection of the laws. So if you have not had equal protection of the laws in the past, that is sort of evidence that you're in a suspect class in a way that de facto discrimination gets messy, really messy. What counts? What's enough? What do you point to? People saying mean things on Twitter, would that be evidence or not? I mean, everyone has mean things

said about them on Twitter about something or other. I mean, Karen, right? Not me. Not me, Sarah. Are white women now a suspect class because it's very popular to call them Karen's online. because it's very popular to call them Karens online. But obviously, David, this is treading new ground and it's one that only Justice Thomas seems to sign on to. I'm curious what your reaction. She had brought it up in oral argument. We talked about it a little after the oral argument. I found it fascinating then. I find it fascinating now, in part because whether you agree or disagree with it, it showcases Justice Barrett just thinking differently than the rest of the justices, conservative or liberal or anything else. And I like that. Again, I don't even know if I agree or disagree with it, but I like that she's raising an issue nobody else even thought of. The parties hadn't thought of it. I found it fascinating as well. I need to, like you, Sarah, I need to think it through a bit more. But my early impression is pretty favorable in this sense because by saying that what we're really looking at

is de jure discrimination, which of course existed in spades when it came to race, has existed in spades when it's come to alienage, it's existed in spades when it's come to alienage, it's existed in spades when it comes to sex for sure. The phrase is equal protection under the law and also if there is de facto discrimination it still leaves huge amounts of room for legislative intervention for the non-discrimination statutes like Title VII and Title VI and Title IX, or the various state human rights laws,

for example. So if you have a lot of de facto discrimination, where you have private entities, private citizens engaging in invidious discrimination, that is a prime arena for the enactment of nondiscrimination law. That is where you have that crying need for non-discrimination law. But does that mean that there is a violation of the concept of equal protection under the law sufficient to raise to the create a suspect class? It's interesting, it's very interesting.

So yeah, I wanna mull this over. And listeners, I'd love your thoughts in the comments. I'll read this portion from her concurrence. The 14th Amendment constrains state actors, not private conduct. And so she's noting that because we presume that state actors abide by the Constitution, the fact of private discrimination,

which is not itself unconstitutional, even if morally blameworthy, does not provide a basis for inferring that state actors are also likely to discriminate and thereby violate the Constitution. That's the real sentence to unpack, David. Do you agree with that? That if there is rampant private discrimination, we can all point to it, but it never makes it into law. Is that evidence that state officials would also be likely to have discriminated against this group that is so universally privately discriminated against?

Or without it ever getting into a law, is it proof that actually, for whatever reason, state officials behave very differently than the public at large? I can make some arguments both ways on that. Like if it hasn't made it into a law, how much private discrimination could there be when like the representatives sort of come from the public that is you're saying at least, engaging in widespread private discrimination. I guess it would be evidence to me that there's not widespread discrimination if it didn't at any point make it into the law.

And like, for instance, when we're dealing with transgender status, nobody is saying that there's zero de jure discrimination in any laws. They can point to laws that ban someone from wearing the clothing of another gender, like going back like 100 plus years. Of course, we have the transgender status

in the military, stuff like that. As it applies to this case, it's not an all or nothing situation here either. It's far more of an interesting theoretical conversation about what de jure segregation tells us and whether it's required. Well, and obviously, one giant flaw in my articulation that says, hey, if it's de facto private discrimination, that's ideal for legislators to intervene. That's the ideal place for legislators to intervene is if you have widespread de facto private discrimination, the democratic process, as we learned from the South, is not going to yield non-discrimination protections.

Well, not just from the South, think Blaine amendments. Like you have widespread Catholic discrimination first, and then it's gonna make it into the laws. I think that is in some ways the most common way in which discrimination becomes de jure. It starts as de facto. So if you're saying you have de facto, but you don't have de jure,

I guess I have a question of whether you actually have the de facto. Maybe it's too early. Yeah, if it's de jure, I guess I have a question of whether you actually have the de facto. Maybe it's too early. Yeah. If it's de jure, it probably means it's been de facto for a bit. Right. And so we don't, it's not a chicken and egg problem. We know, we know the sequence. And maybe the point here is that, um, it doesn't matter too much. It's going to be the very, very rare situation where the two would be totally lopsided. There's a huge amount of de facto discrimination, but no de jure discrimination, unlikely, or vice versa, where there's a huge amount of de jure discrimination, but no de facto discrimination. That's never happened ever that I'm aware of. And as I said, I don't think it cuts particularly cleanly

in this case where you have some, but like how much is enough? That was always gonna be the question. And then if you have just purely malicious legislation, just where it appears very clear that this is just aimed at hurting people, you've got the Romer v. Evans solution hovering over as well.

So I like you, I do, and I do wonder in what concrete context, I suppose it's gonna come up, the suspect class question may come up again in a more salient way when you're talking about sports or say intimate spaces, things like that. That's where it'll come up in a much more salient way. Which if you're bringing one of these cases,

you've now got three votes that it is clearly not a suspect class. They talk about the fact that if it got heightened scrutiny as a class that would affect things like bathrooms, sports, any laws dealing with those or just local, you know, state actor officials. So three votes, yes, Barrett, Alito, and Thomas, which means you've got three votes at least that didn't say where they are. the chief, Justice Kavanaugh, and really surprisingly or not, Justice Gorsuch, who wrote Bostock. We don't have

him joining any concurrences. We don't have him writing separately. I mean, Bostock hangs over this whole case and we got nothing. In a lot of ways, if you are, let's say you are a transgender rights activist. In a lot of ways, this was the worst case for you to have your first case at the Supreme Court. And the reason why, there were a couple of reasons why it's the worst case. One is it involves kids where you've got a lot more traditional legislative authority over children. It involves kids where you've got a lot more traditional legislative authority over children.

It involves medical treatment. Well, if you think the state has a lot of legislative authority over children, it's got even more when it's talking about medical treatments of children. And then laying on top of that was this case over the years since these cases started, the state of medical research has shifted and changed to the point where now these treatments have been seen to be more perhaps harmful than beneficial in a number of jurisdictions where that no one would claim credibly are hostile or inherently hostile to transgender individuals have said whoa

we needed to tap the brakes on this. So you had children, medical treatments involving children with an evolution in the scientific analysis of the medical treatments involving children. That's not the case. That is not your case to be trailblazing on transgender rights. Bostock was. Bostock was, absolutely, at having much better, you know, your tattoo, Sarah, different facts, very much different factually, much different from a statutory background, much different, much more favorable. This one was about the inverse of Bostock, I'd say.

Okay, let's take a quick break there and keep talking about the dissents when we get back. All right. I want to read a couple of sections from the two dissents. As I said, you had Justice Sotomayor writing the main dissent. Justice Kagan only joined part of that and then wrote separately. So here's from Justice Sotomayor's dissent. This case presents an easy question. Whether SB1s ban on certain medications applicable only if used in a manner inconsistent with sex

contains a sex classification. Because sex determines access to the covered medications, it clearly does. Yet the majority refuses to call a spade a spade. Instead, it obfuscates a sex classification that is plain on the face of the statute, all to avoid the mere possibility that a different court could strike down SB1

or categorical healthcare bans like it. The court's willingness to do so here does irrevocable damage to the Equal Protection Clause and invites legislatures to engage in discrimination by hiding blatant sex classification in plain sight. It also authorizes without second thought untold harm to transgender children and the parents and families who love them. Because there is no constitutional justification for that result, I dissent." Now, this is Kagan's, again, she leaves Justice Sotomayor's dissent on this one point. I take no view on how SB1 would fare under heightened scrutiny and therefore do not join

part five of Justice Sotomayor's dissent. The record evidence here is extensive, complex, and disputed, and the Court of Appeals, because it only applied rational basis review, never addressed the relevant issues. So Kagan is agreeing that this is discrimination on the basis of transgender status, that it does trigger heightened scrutiny. But she says, based on that, I would just send it back down

and let the lower courts work out whether nevertheless, because this involves, for instance, minors in healthcare, that it would pass heightened scrutiny because there is such a compelling government interest. Justice Sotomayor and Justice Jackson would say, no, it cannot pass. There is no compelling government interest for this law.

David, one of the examples that Justice Sotomayor gives is you call the doctor and say, my child has unwanted facial hair. I need this treated. The doctor has to ask in Tennessee then, what sex was your child born as? Because if your child has unwanted facial hair and they were born as a girl, they can be treated for that.

Here's suitism, right? If your child has unwanted facial hair because they're a boy, then they can't be treated for it. And Justice Sotomayor's point is, clearly, if the next question you have to ask is what sex is your child, then that is discrimination on the basis of sex, which is what the Equal Protection Clause forbids under intermediate slash heightened scrutiny. Now, the chief justice says, no, because for one of those people, they have a medical condition called hirsutism. And for the other one, they have a medical condition called gender dysphoria. And what the law says is you

can treat one of those medical conditions for a minor. And on the other one, you can't treat the medical condition while they are a minor. That, I mean, to me, that feels like the entire debate in a nutshell. Yeah. And I, you me, that feels like the entire debate in a nutshell. Yeah. And reading the dissents, I just don't... They never effectively got around the John Jr. versus John Sr. question. If this is a transgender-based... If this is a classification based on sex, it's a classification based on transgender status, why can John Senior get all the treatments

and John Junior not? But David, okay, you're saying that the age distinction is super relevant here and I'm not sure I agree with that. Okay, let me ask this question. Imagine this law had no age distinction in it at all. So the ban on trans on medical treatment for gender dysphoria applied regardless of age. You don't think that it discriminates on the basis of sex. You think it discriminates on the basis of medical diagnoses, correct? Right, right. So the age part's irrelevant. That could apply to adults as well. It still wouldn't discriminate on the basis of sex, correct? Right, right. So the age part's irrelevant. That could apply to adults

as well. It still wouldn't discriminate on the basis of sex, correct? No, the age part is super relevant when it comes to the medical diagnosis, okay, because the question is what is the effectiveness of the treatment for people below a certain age? At issue is not, in this case, the effectiveness of the treatment for people above a certain age. The question here at this case is the entire, the medical argument here applies to the application of this kind of treatment to young people. Well yeah, in this case, but if you don't think it discriminates on the basis of sex, you think it discriminates on the basis of medical diagnoses, I don't see why you couldn't have it for adults then.

You can regulate medical care for adults, absolutely. This is a long-standing but the analysis is different because the evidence will be different. But all you're saying is the evidence might be more persuasive that there is a rational basis because it applies to minors. But the age distinction isn't the thing that makes it non-discriminatory on the basis of transgender status. It's non-discriminatory on the basis of transgender status because it's discrimination on the basis of a medical diagnosis.

So imagine a hypothetical where a state passes a law that there's public pools. And if you're under 18, you can only go to the public pool if you're white. But if you're over 18, everyone can go to the public pool. The age distinction there wouldn't cure the law. We wouldn't say that's discrimination on the basis of age, which therefore isn't a heightened class. We would say, yeah, there's an age distinction,

but separately there is also a race distinction. And we can look at the race distinction so that you could still say the public pools are only open to children or not children as it were, but you can't tack on another discrimination and say it's cured because it's actually just discriminating on the basis of age. Well, and the way that that kind of hypo

would be applicable here is if Tennessee had a law that said all adults can receive transgender affirming care and minor girls can receive transgender affirming care and minor boys cannot. That would be, you would have below a certain age, there would be a sex distinction below the age. And the fact that the sex distinction happens with children would not be relevant to the analysis. You would have the sex distinction that would still be staring you right in the face. Here what you have is a medical diagnosis

for which treatment is prescribed. And the evidence indicates that when that treatment is applied to children of either gender, it has negative side effects that are not overcome by the positive benefits. Now, if you have a case where the state said, we're going to try to ban all transgender treatments, gender affirming treatments for people of all ages,

including adults, including in circumstances where the medical evidence is substantially different, you're going to have a very different analysis when it comes to the adults. The issue here was you have a distinction involving age, that distinction involving age is rational because of the evidentiary framework around the age difference. And so that's why the age difference was really the relevant sorting category here

and not the sex difference. All right, David, let's leave it there. And when we get back, we'll talk about the rest of the Supreme Court cases and how to pronounce that word. We'll be about the rest of the Supreme Court cases and how to pronounce that word. We'll be right back. All right, David. Well, as I promised, this is going to be pretty quick to run through the rest of the cases

that were handed down Wednesday morning. Oklahoma versus EPA and EPA versus Calumet Shreveport refining. Shout out to all our Shreveport fans out there. This was on proper venue for filing your EPA claims. Justice Thomas wrote both of them. You had a Gorsuch descent in one of them, which is relevant because the other case was the Nuclear Regulatory Commission versus Texas. Now, David, this case was ever so slightly more interesting about whether only an aggrieved party may obtain judicial review of a commission licensing decision. But David, here's what made this one a little bit more interesting.

It was an opinion written by Justice Kavanaugh joined by Robert Sotomayor, Kagan, Barrett, and Jackson with Gorsuch, Thomas, and Alito dissenting. You did have that 3-3-3 distinction with my three honey badgers in dissent, Gorsuch, Thomas, and Alito. We actually have not seen much of that lineup in the last few weeks of decisions getting handed down. Boy, this one is not at all an ideological decision along that other six, three access, but nevertheless worth pointing out.

Sarah, I don't have a lot to say about those other cases. And by saying I don't have a lot to say, what I really mean is I don't have anything to say about those cases because for the sake of brevity and efficiency, I wanna get to the case that actually does interest me a bit. This is called Pertue versus Richards, Robert's opinion. And I'll just read a little bit. Prisoner Litigation Reform Act of 1995

requires prisoners with complaints about prison conditions to exhaust available grievance procedures before bringing suit in federal court. In some cases, the question whether a prisoner has exhausted those procedures is intertwined with the merits of the prisoner's case. Respondent Kyle Richards is a prisoner in Michigan. He alleges he was sexually abused

by the petitioner Thomas Pertue, a prison employee. He also alleges that when he tried to file grievance forms about the abuse, Pertue destroyed them and threatened to kill him if he filed more. Well, that's one way to suppress whistleblower complaints. Richard sued Pertue for violating his constitutional rights, including his First Amendment right to file grievances. Pertue responded that Richard had failed to exhaust available grievance procedures as required by the PLRA. The parties agree that the exhaustion and First Amendment issues are intertwined because both depend on whether Perttu did in fact destroy Richards' grievances and retaliated against him.

The question presented is whether a party has a right to a jury trial on PLRA exhaustion when that dispute is intertwined with the merits of the underlying suit. Now, what's interesting about this outcome is to make a long story short, the Supreme Court, a five justice majority held that he does get a jury trial when the issues are intertwined.

But what was fascinating is he was saying that the prisoner was saying, I get one on the basis of the Seventh Amendment. The Seventh Amendment gives me this constitutional right to a jury trial. What the court said is, no, no, no, actually it's the statute, the construction of the statute that gives you the jury

trial. And why this is interesting so much, the statute actually doesn't explicitly do that. It's an implication from the statute. And so what the court held was this was that when the PLRA was enacted, it was well established that factual disputes intertwined with claims that fall under the Seventh Amendment should go to a jury. This was based much more on common law than the Constitution. And so you have this very interesting five justice majority, that's Roberts, Sotomayor, Kagan, Gorsuch, and Jackson, Barrett in opposition with Thomas Alito and Kavanaugh. Now, what's fascinating about this is we just talked about

the Barrett opinion, the Barrett profile in the New York Times, demonstrating that she has been sort of departing from the Alito Thomas world more. Well, we've had two cases today where she has hewed more towards the Alito Thomas world more. Well, we've had two cases today where she has hewed more towards the Alito and Thomas side of the argument than she has hewed to the Roberts

or much less the Kagan or the Sotomayor side of the argument. So A, this was interesting just on the issue of, hey, the court said, hey, we're not gonna decide this on seventh amendment grounds. The statute gives this right, even though it's not really clearly in the statute. And also, number two, Barrett in dissent with Thomas Alito in Kavanaugh, just showing she's a confounder. She's a confounder, Sarah. Just when you think, just when you think, you've got it all

figured out. Here comes Justice Barrett and says, I contain multitudes. And that other EPA case where Gorsuch was dissenting, the chief joined him there as well. So they're like part of a buddy comedy at this point. All right, David, here's my next question to you, which is on the legal authority to attack Iran. Do you have a few thoughts? Yeah, just a few very quickly. So JD Vance put out a tweet the other day that was essentially

sort of defending the administration's approach to Iran from critics on the more isolationist right. I think JD may well agree with sort of the Tucker wing, but he's a loyal vice president. And he basically said, look, this is totally up to Trump, whether we attack and he's earned your trust, trust him to make the right call. And this sort of, this is up to Trump on whether to attack another nation kind of raised my hackles a bit because the constitution gives the power to declare war to Congress, gives the commander in chief authority to the president. I thought it'd be interesting to break down that explanation just a bit

and why as a matter of law, domestic law, Chady Vance is probably right, but he shouldn't be right. And what I mean by probably right, but shouldn't be right is by both history and statute, the war-making authority of the American president has been expanding dramatically. As Jack Goldsmith lays out in an excellent post on his substack, it's moved from common sense that the president has authority to engage in immediate actions of self-defense. So for example, if we think that if there's an attack underway, you don't have to go to Congress,

like FDR doesn't have to phone Congress in the middle of Pearl Harbor and say, cease fire until I get Congress is okay to open fire. Of course not, you defend yourself. Then there's the concept of anticipatory self-defense. If a president thinks we're just about to be attacked, I can't go to Congress in time. things, we're just about to be attacked. I can't go to Congress in time. You fire away to preempt the attack. Yes. Then that's been extended into collective self-defense. So for example,

or self-defense of American citizens abroad. So for example, if Houthis are firing missiles or Iranians are firing missiles to Israel, We got a lot of American citizens there and Israel and ally. Can we defend American citizens immediately? Yes. Can we defend our ally immediately? Yes. But is this one of those situations? Attacking Iran to destroy its nuclear program? That seems much less preemptive or even responding to an imminent attack. It sounds much more preventative, which setting aside the international law of armed conflict around preventative or surely preventative

would require an act of Congress or it would require authorization by Congress. That's what Bush did when he got an authorization for the use of force against Iraq. I think that's what Trump should do here. He's not doing it, but why not? Is this violating domestic law? Well, the War Powers Resolution, Sarah, in an interesting way, which was something that was designed to limit presidential

powers, actually kind of sort of gives presidents about 90 days of free war. It's a 60... you notify Congress, Congress... you have 60 days to prosecute the military conflict. If Congress doesn't ratify the engagement, then you've got like 30 days to wind it down in a way that was designed to limit presidential authority and does to an extent, although presidents don't like to acknowledge it. But the reality is, looking at it as a president, you would think, I can do what I need to do for 60 days at the very least. So I just think it's worth putting a pin in. One of the reasons why we're not having a big national debate over whether or not Trump needs to go to Congress, We're not having a big national debate over whether or not Trump needs to go to Congress

because combination of two things at once, presidents asserting greater authority and Congress abdicating a lot of that authority leads us right here where that JD Vance tweet, as hackle-raising as it was, turns out to be practically and legally correct, at least in the short term. Last up, David, when the Supreme Court decides to take a case unless it's under its original jurisdiction granted in Article 3 of the Constitution, it grants a writ of C-E-R-T-I-O-R-A-R-I. This has been a topic of debate among every law student of how they're going to say that or avoid saying it for basically time and memorial or at least since 1925 when the Supreme Court got most of its discretionary jurisdiction

at that point. If we're doing classical Latin, my understanding is that it should actually be pronounced caretiorari. But nobody, literally nobody has ever said that. Caretiorari, but nobody, literally nobody has ever said that. Caretiorari, have you ever heard that? Never heard caretiorari. I have never pronounced it well, never. It's something about it, it's hard for my mouth to form the word, the certiorari. Certiorari, I have probably pronounced it 18 different ways. And that's why when we go through the Supreme Court justices' different pronunciations,

I like the Kavanaugh pronunciation, cert. Well, David, I found myself not really with extra time on my hands yesterday, but you know, I have a little bit of an obsessive personality at moments. And all of a sudden I realized that I had never heard any of the three Trump appointees say the word Sir Sherari. So I went back through every oral argument transcript back to OT17 to see if I could

find it. And I am here to report to you today that none of the three Trump appointees have ever said the word in any oral argument. All of them have said cert or grant review. And my understanding is even when they read their decisions, which is not publicly available, you have to like be in the court for those, that even there, they're not saying, Sir Shirari, they're saying, we granted review in this case to decide whether X, Y or Z.

But all of the other justices have at one point or another said the word. And they're pretty much all saying it differently. So I thought I would play you the results of my research and with special shout out to our new producer, Nick, who helped me put this together. So first up and maybe most creatively, we have the Chief Justice. But just to stop you there, review on certiorari is not a matter of right. Next up, I would say that Justice Alito and Justice Kagan are very close to each other.

I'll let you decide. We'll do Alito, then Kagan are very close to each other. I'll let you decide. We'll do Alito, then Kagan. Like you can't tell the difference. That there's a probability that we're going to grant certiorari. That we took certiorari on is whether courts should apply. And now we have Justice Sotomayor. Petition them bears on what issues probably would be before the court if certiorari were granted.

OK, I don't actually have Justice Thomas saying it because he actually has not said it since OT 2017, but the ABA Journal says that they did find him saying it at one point and that he pronounces it certiorari. Okay, that's kind of cool. And then last up, Justice Jackson has your problem, David. In the same sentence in USV Martin, which was just argued a couple months ago, she says it twice, but she pronounces it differently each time she says it. So let's hear poor Justice Jackson. I'm with you. I'm with you, Justice Jackson.

I feel you. I'm with you. Yes. 28 USC 1254, which outlines our certiorari jurisdiction. It allows us to hear appeals from lower courts by writ of certiorari granted upon the petition. All right, so David, I think I am firmly in the Alito Kagan camp.

I say certshirari. I don't say Sirshirari, no, sorry, wait, Sirshirari, like the chief. But I don't know, I feel them all and I get why people are trying to avoid it altogether. But like cert is kind of a, I mean, it's a shorthand, it's slang, it's a contraction. Like sometimes you have to use the formal word. Yeah, you do sometimes, but I'm going to minimize those times because I hate self-becloning.

I also think like you though, if I think about it too hard, it changes my pronunciation. Like, oh, they granted certiorari in that? Certiorare? Certiorare? See, I think that's where I change. I think it was Justice Jackson who did my common mistake, which was certiorari, and then sometimes they certiorare. Well, it's really that question between four syllables and five, right? There's certiorare, and then there's certiorshe-or-ari. Like you can have that O in the middle.

But I think that, you know, if you want to be correct, the classical Latin folks actually have a pretty easy to pronounce one, care-te-or-ari. Care-te-or-ari, care, well, it's, you still got the- Nope, you can't do that one either. I can't do it, I can't do it. But Sarah, before we go, before we go, can I tell you a very important moment

happened last night, very important. So you know how we have been talking and debating, is this the shadow docket? Is this the equity docket? Is this the short order docket? Is this the emergency docket? I have long been a proponent for equity docket. I can now state the issue is settled.

I was at an event at the University of Chicago last night. We were talking about the deployment, Trump's deployment to the National Guard at the Institute of Politics. And I should say the LA deployment of the National Guard, he didn't deploy anyone to the Institute of Politics, at least not yet. But we were talking about the National Guard deployment

and a very brilliant third year student at the University of Chicago undergrad asked a very brilliant question, quote, "'Do you think this case will make it to the equity docket?' So Sarah, if it has made it into the ranks of American undergrads, equity docket wins. Well, guess what? The Supreme Court has added an opinion day for this week.

It's Friday morning. David, I think unless we get birthright citizenship on Friday, which I don't expect we will get, we're not gonna hold an emergency podcast on that. So our next episode will drop normal time on Tuesday morning where we'll talk about whatever they give us on Friday. And we also have an hour long interview that Justice Alito just did with the Hoover Institution

out at Stanford. And I can't wait to dive into some of that. Fascinating. Oh yeah. I can't wait to hear that and to talk about it. And it's in the room at the Supreme Court where they have like the Chief Justice's portraits around all the walls. And I've definitely got some thoughts to share with you on different chief portraits.

Next up on Advisory Opinions.