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Notes -
[disclaimer: I'll try to keep personal feelings and experiences out of this one, simply because I don't think most readers here are going to want to hear it, but it will inevitably color my takes.]
LGBT Talk / Conversion Therapy: Chiles v. Salazar
SCOTUS holds:
The opinion, by Gorsuch and joined by a somewhat surprising seven other justices, is pretty standard free speech fare: the statute bans one view and not the other, the state offers little if any historical or legal support for its ban, and it's both an outlier and a recent outlier. The state tried to compare the ban here to requirements to disclose factual, noncontroversial speech during commercial activities, and ran into a brick wall when the case formalizing that standard did a Solomon-level splitting to start with.
The concurrence, by Kagan and joined by Sotomayor, tries to cabin this ruling to its four corners, and saying that viewpoint-neutral restrictions on medical speech would have a much lower bar to pass. Where the state here banned only one side of a controversial topic, but encouraged the other, a law that merely banned this topic in this context entirely could merely need evidence that the state's interests were significant enough and connected enough. Given that we're talking Colorado, here - home of Masterpiece Cakeshop - it's not impossible that the state will try to squeak a neutral-in-theory rule under this view.
It's... somewhat difficult to imagine what that would look like, though. Kagan, during oral arguments, motioned toward a theoretical law that prohibited violating the standard of care, but that would be so wide as to revive the nondelegation doctrine, not least of all because that can range from a creature of statute to a PDF thrown together by randos to five competing and conflicting opposing philosophies. A genuine universal ban by counselors on LGBT-related talk therapy would impact the LGBT movement far more than it would social conservatives. The Colorado statute here specifically excluded "Assistance to a person undergoing gender transition" for several reasons, but the necessity for such therapy before most reasonable doctors would recommend surgical or serious chemical interventions is no small part of it. Restrictions on types of therapy might be more easily be tailored to only hit one side or the other, but while aversive- or confrontational-focused conversion therapy are common focuses for progressive outrage (whether the underlying incident was genuine or not), they're both little-used and little-liked even by social conservatives now, and a restriction that leaves sexual orientation change talk therapy on the table is likely to be seen as an unacceptable compromise.
The dissent is, no surprise, Jackson, and it's a doozy:
There are steelmen to the Colorado law. Chiles does not contest it as applied to aversives, and even if they did work, they're well-within the bounds of behaviors that states have long-regulated (and which social-conservatives have argued for regulating as recently as Skrmeti). A lot of these programs don't work, don't seem to care that they don't work, and are unwilling to consider alternative approaches that would fit their goals or the goals of their patients but would not match expectations (caveat: not all of them, and some like the SF Kaiser clinic might have been a little more open-minded than the already-libertine-seeming publicly-disclosed records). There are a mass of complicated First Amendment caselaw, epicycle on epicycle, that have left too many opportunities for motivated justice to find outlier or non-representative historical support for hilariously unconstitutional arguments.
Jackson's dissent bulldozes them. She tries to draw the statute here as merely incidentally restricting speech coincidental to restrictions on conduct, by defining conduct to include wide varieties of speech so long as the regulators motivations were pure. Her view of the First Amendment and this statute do not merely condone prohibitions far broader than cruel or harmful ones. One note compares the law here to the speech requirements in Casey, where abortion providers were required to give 24-hour notice of the possible risks and complications of procedures - but the law in Casey specifically required providers to give both the risks of abortion and carrying the fetus to term (and other alternative procedures).
It's just a mess, and it's not just me saying that: Kagan and Jackson have dueling footnotes over it.
I'm genuinely confused what Jackson's goal is, here. Bulverism's a fun sin, and all, but for all I've been unimpressed by her Munsingwear asides, I'd at least expect some sort of deep strategic or tactical focus, and it's not just me finding it jank at best (cw: ai analysis of legal documents, aka worth about as much as you paid for it). If the best she's aiming for is to throw the First Amendment to the proverbial wolves of whatever third-party organization can define professional standards, it seems a dissent like this will only motivate people to burn those orgs down faster, and damn whatever happens to the commons in the process.
Some smaller notes:
A bigger note: Even on the strict law-of-the-case matter, this is going to be a mess. There's been active lawsuits dating back to at least California's SB 1172 in 2012, which was upheld by the Ninth Circuit in 2013, in a case that SCOTUS named and shamed in 2017. There's been a circuit split since 2020's Otto v. City of Boca Raton; cases had reached SCOTUS as far back as 2014, and as recent as 2023, only to have cert denied. 23 states have laws that are near mirrors of this one, another 4 states have partial variants. One was overturned days after SCOTUS granted cert in this case. I... do not expect clarity from the First, Second, Third, or Ninth Circuit in the next year, outright. We might not know for the Tenth Circuit, or just the bounds of Colorado, specifically, in a year.
From a legal realism perspective, it doesn't 'matter'. This specific law hadn't been enforced yet, and indeed (despite that decade-plus legal limbo and wide spread), I couldn't find any clear cases of legal enforcement. If a licensing board was going to pull a therapist's card over this sorta thing, they can readily and rapidly find other
fig leafscauses, even while focusing on the exact same therapy.From a more pragmatic one than even that, though, the court's intransigence seems likely to have a longer-term impact. At minimum, this points to a no-go-zone for a philosophy, and one that's been allowed to sit for well over a decade: whatever natural resistance the psychiatric world might have toward social conservatives, this one there on top of that, and coincidentally no one in good standing with the APA will ever argue in favor of these policies, a note that should be relevant even or especially if they are clearly wrong. Therapists are more law-abiding than average (at least on the job), and even a purely illusory law will lead the marginal therapists to be just that little bit more cautious, even if only in extreme outlier cases.
I benefited from conversion talk therapy. Nobody claimed a particularly high success rate, but I got the impression that most of these therapists thought a majority of people improved somewhat. I never heard discussion of aversive practices, I didn't get the impression it was common or normal, or even really part of the same world. Everybody was religious and had strong views about family systems and the like. It was, mostly, fairly standard therapy with some unusual homework exercises centered around a self conception as a man/woman designed by God for that role. These therapists took other, non-conversion therapy clients and cases, I suspect the bulk of their clientele were dealing with trauma or whatever. The list I was given was, overwhelmingly, male, and a few women were highlighted for those that preferred a woman to talk to(this was, clearly, intended for women who don't feel comfortable discussing certain things with men). Unlike with most therapists, they freely and frequently recommended talking to someone else, changing therapists often, etc, as it was thought that different people specialized on different specific issues within the complex that causes homosexual ideation. The theory of treatment was based on a book written by some Dutch reactionary psychiatrist, this was freely shared with me and I read it out of curiosity(unfortunately, I purchased it on an old kindle account which I no longer have access to).
I should note that it did, factually, work in my case. I not only lost disordered urges but also became more stereotypically masculine, developed a greater interest in sports and the like. I'm happier for it.
As far as the vote pattern goes, it seems like the most intelligent liberal justice is attempting to mitigate the damage done to state mandation of official social liberalism. This is an issue in which I am, of course, keenly interested in given my ideological views, but it does seem like Kagan and Sotomayor recognize at least some constitutional limitations, whereas KJB simply rambles in favour of whatever the current dem party line is. No wonder Kagan is reportedly tired of her.
Most of the information I've seen suggests that formal use of 'hard' aversive stimuli (eg, electric shocks, physical impacts, harsh chemicals) fell out of favor by the mid 1980s. There's claims of it since, but they tend to revolve around extremely marginal cults and/or really sketchy political activist backstories. Even before it was marginalized in the social conservative sphere, it was considered (probably reasonably!) as likely to backfire, end up with asexual or otherwise less-sexually-functional-than-before outcomes, or trigger even weirder behaviors in the Nicholas Cummings side of the sphere.
(Although I was under the impression van den Aardweg himself was prone to flirting closer than most talk therapy-focused groups: there's always some fuzzy edges between exercise as process versus exercise and punishment, but the whole Failed Male and Failed Social Relationship framework seemed prone to leaping off that edge, in addition to just being hilariously wrong in a number of cases I know firsthand.)
Yeah, that's not unprecedented or unbelievable. I was trying to keep to the legal arguments above, but the factual side of this is an ungodly mess.
My impression is that there's a small portion of people (either bisexual or malleable for other reasons like their approach to sexuality or very pressing in the 'every hole is a goal' sense sex drives) for whom even the 'standard' form of Man Up works, or could probably even work themselves into a pretty wide variety of results in the Dodo Bird Verdict sense. There have been a few bihackers that were successful going the other direction, and happy with it, and I kinda do have to mention that there's a ton of guys who were perfectly straight and then spent some time in the furry fandom and discovered Oh No He's Hot.
But the flip side is that a lot don't, even within the small group who seek this out the hardest: a large portion who try are only able to shove down same-sex interests for short periods, or they're able to function with women but still crave men in ways that they're not really comfortable with. Likewise, you get bihackers that aren't grossed out by gay sex anymore, but wouldn't actually look out for the stuff, or might struggle to even top (or even top the 'most gay lite' guy available, cw: furry comic).
I'm not kidding when I say Cumming's 14% number seems really optimistic.
The flip side to that is that we've got a lot more tooling available, now. At the moderate level, there was a long-standing theory that gay guys just needed to have a couple good rounds of 'healthy' sex with a woman to Become A Man, and contra the invasive therapies and wireheading from erwgv3g34's older example, these days some gay guys can do it with a Little Blue Pill and a weekend in Vegas. It doesn't work -- a few still can't get it up or keep it up, and a much larger number can pump away and just don't really feel satiated at the end -- but it seems like it should be something that redefines how a lot of frameworks around everything here should go, and it really hasn't.
People having widespread changes to their sexuality as a result of hormonal supplementation is common, if not universal.
(At the more extreme, I'd expect rTMS to have some impact, and while I think experimenting like that is a terrible idea regardless of what you're trying to change your mind on, it's far from the most terrible idea to get massive support and grants. On the flip side, I can understand why both social conservatives and LGBT advocates think it's a really dumb weapon to invent and then leave around for someone else to mandate!)
On the flipside, with the possible exclusion of the Kaiser SF program, it's weird how messy "improved somewhat" is as a term of art. Does that mean they were still gay, just got perceived hypersexuality under control? Still gay, but could run on the masc4masc side of grindr? Still gay, but less conflicted about it? Could they now have sex with their wives, and if so did they enjoy it or see it as a chore? Or did they have reduced same-sex attraction, in the sense that they jorked it to gay porn instead of cheating on their significant other? Because some of these endpoints -- even and maybe especially if they are desirable for the patients in question -- seem like they could be confronted in ways that don't revolve around 'changing orientation' as the central result, rather than a rare side effect.
Even assuming as a given the whole progressive mainstream philosophy as true, there’s a lot of this stuff that could be relevant and interesting and important, completely divorced from sexual orientation change, and they’re not looking into it deeply either.
I think using positive punishment in order to create a conditioned response is just a very, very bad idea to do to people and can mess them up in ways that we don't fully understand. #JusticeForLittleAlbert
Ok, this is one of your sentences I had to read thrice before I got it. I thought you were talking about the straight-to-gay people here (I guess you call them the 'bihackers'?) and I was genuinely confused for a few minutes because I thought you were saying "they could only shove down" in the sense of "avoid throwing up because of" same-sex interests for short periods, and I was trying to discern how that was different from your next sentence about the guys who were no longer grossed out by gay sex. It took me longer than I care to admit to understand you meant "repress" and not "keep a full stomach on", which are very much the opposite thing.
I thought about making a matrix joke, but then I realized that making a matrix joke about gender and sexuality wasn't particularly original.
Wait, is the point that the 'most gay lite guy available' is a trans man with a vagina? I will admit that I've found some people who call themselves trans men attractive, but this is on the "I have changed literally nothing about my appearance--I am now wearing masculine clothing but I've done nothing irreversible--I am a proud trans-masc-femboy and this is a masculine pink skirt I'm wearing" spectrum of trans men, or in other words the ones where they could just say 'I am a woman' and no one would think anything of it. When male-pattern hair or surgeries start getting involved that's where my brain nopes out. I suppose that's a long-winded way of saying I'm not attracted to trans men.
I mean, this doesn't not sound like someone's kink. We already live in a world in which gay hypnosis pornography exists.
Yeah. There's still some small groups trying it for smoking cessation and addiction therapy, but even in that specific context it's controversial, and for a reason. When using it with sexual arousal, it seems like giving people really unpleasant BDSM kinks is kinda the best-case scenario, and broad hangups or extreme social discomfort more likely. But like the lobotomy, it was popular for a time.
My apologies. This last interpretation is the correct one: of the small group of gay men who actively search out therapy to become less gay or more straight, a large majority either only find themselves 'less gay' in that they're able to go more time without a strong hunger for gay sex, or 'more straight' in the sense of having the ability to have sex with women but not the ability to enjoy it or to find it preferential to sex with men, and in both cases not being any more comfortable with their same-sex attraction.
This is separate from bihackers (mostly straight-to-bisexual-seeking), where there are a small number of unequivocal success stories who aren't sure if they became bisexual or just became comfortable being bisexual, a tiny number who had organic changes cause overt and undeniable differences in attraction (mostly trans people on hormones, kontextmashine's brain tumor), and then a large majority where it couldn't change their likely romantic (or grindr) focuses even as they became comfortable.
Uh... I was kinda trying to motion around really-really-feminine guys, regardless of the anatomical side; that's just a comic that's really explicit about it without being actual porn on the same page.
But it does apply there, too. I'd kinda naively expected trans men with vaginas to maybe be less psychologically difficult for a 'straight' man trying out gay sex, (and a lot of trans guys reasonably don't like being seen as training wheels), if only in a 'it's nothing you haven't
seenfucked before' sorta way, but your specific reactions seem fairly common for guys who strongly prefer women. Even well before male pattern baldness or mastectomy, most normally-straight guys, no matter how much they've gotten used to the idea of men having sex, aren't into a bit of even soft and downy chest hair. Go figure on that one!For that specific comic, with the warning that it's almost certainly too much information :
Fair. And since I do have an actual orientation play kink, if one that doesn't overlap much with conversion therapy or orientation change (or mind control), so that also makes this whole matter complicated to talk about. I definitely don't want to mix real-world advice and smut-world logic, or pretend that pulling psychoanalysis from smut is going to give some broad and consistent view of human thought.
But I also have to recognize the limits of my introspection, so I can't just say I'm looking at the topic completely dispassionately, either for or against.
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How did it work for you? Were you exclusively homosexual before, and are now 100% straight? Or did you reinforce an existing attraction to women?
What kind of homework exercises? I hope you don’t mind me asking - the stereotypical media depiction of conversion therapy is “teenager gets sent to an abusive camp against his will, pretends that it works on him and then has a happy gay adult life”, so how it actually goes on is something I don’t think many people know of.
I’m bisexual myself and despite my best efforts, I never felt like base attraction was something I could exert real control over. Behaviour, yes, but not the underlying desire.
EDIT: is the Dutch book you’re referring to from Dr. Gerard J. M. van den Aardweg by any chance?
When I said something about 'the sticks of men's enforcement,' I didn't particularly mean 'putting rocks in people's shoes and having them walk around,' but I suppose that's not too far off from what I meant.
There's nothing wrong with sports, fishing, working on cars, and fixing things in some vague sense, although that does lean a bit towards a red tribe and slightly older application of masculine behavior, where a lot of younger guys are fixing computers and installing cat6 in their walls, doing carpentry, and yeah, playing sports/roughhousing alongside competitive gaming or local multiplayer as a bonding ritual. I don't know about putting rocks in your shoes (and that seems very old school Catholic to me, they might as well have been wearing cilices), but it is true that men generally admire competence, doing, endurance, skill, camaraderie, pursuit of an ideal, and stoicism, and I'd count myself among them. I'm willing to admit I'm stereotypical enough to be a fan of Marcus Aurelius.
I do think that sexual attraction is malleable to some degree, and it's probably not all that hard to get someone who's 80% attracted to women to be 99% attracted to women, and perhaps even vice versa. There's probably some segment of the bisexual population for which sexual attraction can be a conditioned stimulus in one direction or another, but I suspect that it would be impossible to make a gay man exclusively attracted to women just as much as it would be impossible to make a straight man exclusively attracted to men.
Did you want to exert control to change your base attraction?
Do you see a link between reinforcing those “masculine” behaviours and it decreasing your attraction to men? Sports and roughhousing especially. Nothing like seeing a hot fit guy take his shirt off in the locker room, or wrestling with the boys, to set a bicurious man straight…
I agree. In my opinion, conversion therapy of that kind is essentially medical fraud, in that it’s extracting money from gullible patients (or parents) for a “treatment” that cannot possibly work. The free speech argument could be used for a priest or a self-help coach, not a licensed therapist.
Yes, and I tried my best! I didn’t want to be attracted to women for various reasons. But in the end feeling guilty over it didn’t help, and there’s no real point trying to repress it.
No, probably not. I think if you're really interested in the masculine form, getting close and personal with it is probably going to be erotic. But more specifically, this world is full of gay bodybuilders and straight guys with a complicated relationship to sports.
My point was not really an apologetic for conversion therapy but was a personal reflection, I guess, on masculine norms and behaviors I see in myself and male friends, which I don't think have much to do with sexual orientation. Obviously, masculine norms are a sore spot for me and neither myself nor my father are very invested in sports culture, cars, or fishing, so I'm often a little amused and a little confused at this being considered constitutive of male identity. The overall topic is a Supreme Court decision, so in that connection, you can read what I said as as an urquan obiter dictum that's not really about the topic of conversion therapy.
I think conversion therapy is unlikely to work. That said, I have a very critical view of many of the therapeutic modalities that licensed psychotherapists often make use of in their practice, like psychodynamic and humanistic methods that are re-headed 20th century woo, but nevertheless popular. The US government actually sometimes pays for veterans to receive EMDR therapy which supposedly 'works' and is 'evidence-based' in treating PTSD, but its actual theoretical basis of bilateral hemispheric stimulation is... wildly dubious, at best, and Wikipedia lists it on the pseudoscience category (same as conversion therapy, humorously enough) because there's no evidence its unique factors do anything.
Basically all therapies are evaluated on the basis of patient self-report, which means that patients' belief that something will work may be as important as any actual therapy method. This means that a huge portion of licensed therapists are, from my point of view, just extracting money from gullible patients for treatments that aren't based on any reasonable theory of how the human brain and mind work -- and nevertheless some of those patients, afterwards, say "wow doc, joie de vivre! joie de vivre!"
I don't really love the whole teen pray away the gay summer camp thing, and Lord knows residential programs intended to cough straighten-out religious youth are often questionable-to-evil, but I have serious concerns that singling out conversion therapy as a broad concept becomes an isolated demand for rigor from a profession for whom 'rigor' means 'lots of people said they liked it.
I'm not sure what the situation is like in various countries of Europe, but unfortunately, in the US, even the licensing system doesn't do much to prevent significant ethical breaches and therapeutic abuse. There's some wildly dark quackery that licensed therapists claim is therapeutic and whose damage goes far beyond conversion therapy. Jodi Hildebrandt used her sway over Mormon couples to separate children from their fathers because dad occasionally watched a pornhub video, and also prescribed much worse in terms of direct physical abuse and starvation of children for disobedience. Nevertheless -- licensed counselor, with the stain on her record prior to her criminal conviction being her violation of patient confidentiality, not the fact that her psychological and therapeutic theories were, let's say, not on this side of sanity.
Licensed therapists are already permitted to practice therapy that includes elements of a spiritual or religious tradition if this is disclosed and desired by the patient, and many people of faith explicitly seek out counselors who share their worldview (which, given how significant patient belief in the therapeutic modality is, probably means this is more effective for them). It's hard to meaningfully distinguish this from spiritual woo, quackery, and even conversion therapy to some extent, and the freedom of speech concern is that this targets the therapeutic desires of people of faith in a way that violates the fundamental principle of psychotherapy that patients are the ones in charge of shaping treatment goals. At some point, what you're saying is not that therapists can't try to convert their patients' sexuality or gender identity, it's that patients can't desire anything that rhymes with sexuality or gender identity conversion, and that's where the freedom of speech/expression concern comes into view.
If what you're calling for is something more akin to a complete rewrite of standards for psychotherapists and counselors as a profession, or criticism of parents using psychotherapy as a worldview weapon against their children -- I'm with you. But there are some deeper concerns in play.
Ah, this took a turn I didn't expect. I can understand why a bisexual man might not want to be attracted to men (while pursuing a heterosexual marriage, for example), but it's interesting that a bisexual man or trans person might find being attracted to women distressing or guilt-inducing. I really like being attracted to women because women are pretty awesome, but also my pattern of attraction is almost exclusively to femininity, so I suppose it just works to my advantage.
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That sounds correct, but I could not reproduce his full name on command.
I was bisexual beforehand, and not encouraged to befriend other patients. Support group dynamics were seen as unhealthy and to be avoided, and no residential programs existed in this world that I am aware of for that reason. So I do not know if this would have been successful for obligate homosexuals but that case was stated to be very rare- I don’t know if this was bubble effect or not.
I had homework that was a mix of standard therapy fair(journaling etc) and developing positive conceptions of myself as stereotypically masculine- bear in mind a positive stereotype of masculinity as conceived by conservative Christian clergy assisted by reactionary philosophers, there were no hooter’s trips etc. The most unusual thing I was asked to do was to admire myself nude and then in my underwear in the bathroom mirror, I think to appreciate the connection between my body and tendencies, but most of it was stuff like growing an appreciation for sports(this meant playing, not watching), doing stuff with my dad/grandad(fishing and working on cars were recommended), learning a new (tangible and masculine)hobby, and so on and so forth. I have no doubt that if I had been noticeably out of shape fixing that would have been considered part of the program, but I wasn’t and weightlifting wasn’t pushed- although undergoing physical discomfort and self discipline was, this mostly meant things like ‘not hitting the snooze button on your alarm’ and ‘walking around with rocks in your shoes all day’. There was actually a lot of attention paid to self image, I think I remember there being clear reasons for that in the book but not what they were. I was supposed to have straight male friends.
Interesting. This kinda supports my hypothesis that people who say homosexuality is a choice tend to be bisexual - it literally is when you’re attracted to both sexes!
At least they’re honest about it not being very effective on exclusive homosexuals, but calling that working conversion therapy feels like a stretch. It’s like having a program that can supposedly convert vegans into carnivores, but it actually just makes people who already eat meat stop eating vegetables.
In the LGBT community it’s already a meme that most bisexuals end up marrying someone of the opposite sex, even in progressive social settings. Add even the slightly bit of social pressure and encouragement to focus on your heterosexual attraction, and pretty much any “conversion therapy” would work.
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Just to make sure I follow, is the TL;DR of this that it's illegal to not maximally encourage trans/queerness in therapy, even when neutrality is what the client is asking for?
Or is this sort of therapy really just laundered gay conversion treatment?
The statute provides for a fine, probation, or loss of license for a licensed therapist from practicing "conversion therapy", defined as:
with exceptions for :
The state further argued, not very credibly, that the law only really would apply to specific changes to sexual orientation or gender identity, and not changes to gender expressions or sexual attraction despite the clear text of the statute. In theory, it would also prohibit trying to teach a straight man how to be gay? Since the law was never applied, it's hard to say much about either hypothetical.
The plaintiff here was only asking in regards to cases where the client asked for that specific assistance, so this decision could plausibly be read to apply only when the client is specifically asking for not-queer/trans advice, though that's going to depend on what the lower court does when (if) issuing the injunction.
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I appreciate the write-up. When I saw the decision, I was hoping you’d have something to say about it. That said, I couldn’t make sense of this:
Essentially, if you were a social conservative considering a career in family or teen therapy, for almost a decade and a half, it's been open and common knowledge that these laws were present, informed a variety of professional accreditation bodies, and would be used as evaluation criteria during training and mentorship programs. The prospective therapist would be faced with patients who would want advise, the therapist want to give what they believed to be correct advise, and they would be required to give what they believed to be wrong advise or risk their entire future professional career. Depending on area of focus, local demographics, workload, and specific philosophy, a rough Fermi estimate gives a monthly or every-other-month basis?
((Assume 20 scheduled slots a week, an average of two clients per slot, gives 160 patients per month; demographic estimates for LGBT from 2012 was 3%, so five LGBT clients a month, but presumably not all of them will be having issues related to sexual orientation, and not all of those issues will be solved by 'calm down on the gay/gender' stuff even by the most social conservative perspective. The rate's a lot faster if you filter for specific fields or use more recent demographic numbers.))
Because there's a long training pipeline and a large monetary investment for therapists - Colorado requires a Master's degree and two thousand hours of post-graduate training for at least some categories - that can't be readily transferred, these incentives push people away very early in their career. There's a wide variety of other problems behind the pipeline issues, but it's still a cause for some of the pipeline issues, and many of them feed on themselves such that each marginal restriction makes the next more capable of dissuading potential outsiders.
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I can only take it that Justice Jackson thinks firmly that Roe (which admittedly has not been relevant precedent in quite a while) was wrong on the notion of doctor-patient confidentiality overriding state lawmakers. Not that it was ever applied to literally any other case, but I'm surprised to see it so explicitly put down.
You are forgetting the disruption fields created by Roe/Casey that were so large as to create "no free speech" zones around people entering
abortion clinics"health care facilities."I like this string of cases because the Supreme Court got roped into literal line drawing. Eight-foot radius no free speech zones are fine. Thirty five-foot radius no free speech zones are a grotesque violation of rights.
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Thanks for this writeup, an interesting case. I'm sure Kagan regrets that someone like Jackson is going to be her ideological ally until she retires.
Do you see any more interesting cases on the horizon for this term? Do you see anything that's likely to get granted cert this term? Especially any gun cases?
Absolute biggest is the birthright citizenship case, Trump v. Barbara. Probably drops last day of the term, between the late sitting and its controversial nature win or lose. The Trump EO is less obviously crazy than it seems at first glance, and Native Americans needing a separate statute for automatic citizenship is both a good argument in Trump's favor and what should be the correct solution here, but it's literally unprecedented stare decisis issues and I think it ends up with Roberts punting to Congress if anything is gonna change, maybe two dissenters. Other immigration cases are pretty well-known and not hugely likely to be ground-shaking. Noem v. Al Oltro Lado is gonna blow up and also be just embarassingly stupid.
Trump v. Slaughter is the big independent agencies question, and it's kinda a fact-specific mess, but whatever lines it draws are going to be weird and novel and probably impactful, if for stupid reasons. And the media's gonna love the name.
There's a Voting Rights Act case, it's going to Alito unless he pissed multiple other justices off in the last couple weeks (possible; he was trying to throw Robinson to overboard, and with some cause), and it's going to be a massive culture war touchpoint. I'll admit I don't pay a lot of attention to that caselaw, though, and it's possible it vanishes into paroxysms of technicalities. Bost, already released, falls into a similar boat - it's a good thing and important that questionable laws re: voting processes can be challenged, but I don't think the specifics of that case matter much.
For already-argued gun cases, the two big ones are Wolford (Hawaii's "vampire rule") and Hemani ("possession by drug addict" with a ton of other background stuff). Wolford's a gimme and unfortunately also likely to be extremely limited to its four corners as a result -- it's the exact type of law Bruen specifically said not to do, and SCOTUS only granted on the tightest limits of that question -- but Hemani (to my surprise!) is looking like it could be closer or even favorable rather than the pro-gun-control shutout I expected.
Likely? Hard to say.
Trans stuff: Foote v Ludlow is getting a lot of relists; it's basically the question in Mirabelli, squarely presented (if in the most culture-war-heavy loading), the lower court decisions were a charlie foxtrot, there's a messy circuit split. But the facts are contested (and not just whether the kid is genderqueer: the school argues that the 'secret transition' policies might not exist, kinda?), and 303 Creative seems to have given SCOTUS more caution on that. But
There's a few qualified immunity / excessive force cases that are popping up, though I'm pretty convinced that's the libertarian equivalent of Lucy with the football, even compared to gun stuff. I think there's a few cert petitions up around voting policies, but I follow those very loosely.
For gun stuff, there's a bunch of them all scheduled for 4/17 now, but that's not really much info. From most to least likely cert (or GVR)...
Hardware cases: Grok has Duncan v. Bonta around 40%, and it's gotten GVR'd before. I'm... not quite so optimistic, given Snope. Still, Duncan (and Gators and Viramontes and Lamont and Higgins, all getting constantly relisted) are in many ways the last real chance to handle this case as a matter of first impression: every circuit that's going to have a hardware ban has something on final judgement coming up or resolved. Anything after this will get much more circumscribed legal and factual analysis, not to mention how much it would radicalize even the moderates post-Snope. Benson in D.C.'s left a circuit split, technically, even if it's certain to get en banc'd? But Benson's ultimately an as-applied challenge, significantly more controversial than any Safe Professional Nice Guy that SAF and such have brought for their carefully farmed cases, and it's DC. As ironic as it would be for Heller's Gun Question to end up before SCOTUS again over a decade later after Heller II, it just would be a weird case to wait for. But Roberts and Kavanaugh may just want to punt forever.
Concealed carry permits: Gardner is a potential sleeper: critical and strictly federal question, extremely gun-friendly facts, and ultimately is trying to throw an innocent woman in prison for not having a license she couldn't even apply to get. But the facts are hugely specific, it's something that could be thrown as requiring a futile expression and remanded, and SCOTUS has ducked on variants of this question before. It's also a major underdog: Gardner had to file in forma pauperis before the normal gunnie sphere even heard about the case, though she thankfully has real representation now.
Public transportation carry: Schoenthal's also up for cert, but it's an even longer shot. The lower circuit opinion cut an absolute hole in Bruen, but it's not even unusually bad on that at this point, and while public transportation is important, it's important in a way that the justices are near-certain to flinch from.
Prohibited persons: there's an absolute mess of them, they're almost all ugly and controversial cases, so I'd love to say zero shot from a court that ducked questions like "are counterfeit cassettes signs of future violence". But there is Hemani. On the gripping hand, the feds have (temporarily) put an appeal and reversal process for federal prohibited persons, so there's even more reason to punt the question here.
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SCOTUS remanded this case. I expect to see it back in the high court in a couple of years, after the district court finds that Colorado has a compelling state interest in protecting gay children from deconversion or something.
It's definitely possible. I've been wrong on that in Fulton, but the facts of this case are so open-ended and the potential impact so wide, there's more cause to do so.
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