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The U.S. Supreme Court issued its decision in United States v. Skrmetti.
In a 6-3 decision, it held that:
The outcome was more or less decided by the threshold question: which type of review applies? There are 3 options:
The Tennessee law at issue didn't fall into category 1, so the argument was about whether it was category 2 or 3. Per the Court:
Once the law fell into category 3, that was pretty much that. There is some wiggling around to deal with Gorsuch's opinion in Bostock (which is what causes Alito to concur in parts of the opinion rather than the full thing since he dissented from Bostock), but Gorsuch joined this opinion in full, so apparently he didn't have a problem with the Court somewhat limiting Bostock here.
As one might expect, Sotomayor, Kagan, and Jackson dissented--they think intermediate scrutiny should apply. I cannot impartially comment on Sotomayor's dissent because most everything of hers that I read makes me think that Larry Tribe was, if anything, too kind in his remarks.
I agree with @gattsuru and @ArjinFerman here. This is not a major victory for the red tribe, or a major loss for the blue. It's probably valuable, politically, for Republican politicians to be able to say to their base both that this is a win for "state's rights" and a win against "the trans agenda." I expect red states to increasingly adopt anti-hormone and anti-puberty-blocker legislation, and blue states to explicitly protect it, and probably we will also start seeing "trans your kids by mail" services not unlike what we have with abortion. So the victory will be mostly symbolic (which may count for something, but may not).
It's worth noting that Kagan, though she agreed on heightened scrutiny, declined to join the Court's low-IQ wing to assert that also the law failed under heightened scrutiny. Once again she shows herself to be, by a wide margin, the most competent jurist on the Court's left wing.
It's also worth noting that this is not quite correct regarding intermediate scrutiny:
Intermediate scrutiny applies to laws that discriminate on the basis of sex. Merely containing classifications is not sufficient. What's the difference? Well, the minority tries to claim that there's no difference; the law mentions sex, therefore the law is about sex, therefore intermediate scrutiny. But the majority points out that there are many laws obviously dealing with sex, that do not warrant intermediate scrutiny. The most obvious, of course, is any law dealing with pregnancy. Only women (sexually mature human females) can get pregnant. Every law dealing with the classification of "pregnant" contains a sex-based classification. But the discrimination in such laws is grounded in a medical status (pregnancy) rather than in sex. In this case, the discrimination is based on age (the state is denying both minor males and minor females cross-sex hormones and puberty blockers) and medical status.
Incidentally, this is why the late Justice Kennedy's opinion in Obergefell is and has always been such a mess. Laws denying males the right to marry males don't discriminate on the basis of sex because everyone has the right to marry someone of the opposite sex. No one was being denied the right to marry on the basis of sex (any gay person could legally marry someone of the opposite sex...), but on the status of not being part of a consenting heterosexual dyad. What the left wanted out of that case was for intermediate (or even strict!) scrutiny to be applied to sexuality, which is obviously a different status than sex. But Kennedy didn't write the opinion that way (he didn't use "scrutiny" analysis at all, instead using history-and-tradition, which is transparently nonsense). Even post-Bostock, sexuality still hasn't been formally adopted by the Supreme Court as a "suspect class."
Despite the utterly bizarre attempt by Biden and Harris to declare the "Equal Rights Amendment" passed (how was he not called an attempted dictator for that?), the fact is that even "heightened scrutiny" on sex is utterly without grounding in the Constitution of the United States. Which brings us back to Skrmetti: a real win for conservatives here would have been a majority declaration that sex and gender are not suspect classifications at all, that sex and gender relevant regulation all belongs in the "rational basis" bin.
Never going to happen, I know. But that's what an unqualified victory would look like, here. This decision ain't it.
Is this really necessary? Presumably the reason they're low-IQ is because you disagree with their reasoning, and not because you have access to information that hasn't been made public. As much as I'd like to, there's a reason I don't refer to Trump as the moron-in-chief or whatever.
They're stupid by the standard of Supreme Court justices. The late RGB, although I ideologically disagreed with her, could actually argue the case for a living, prescriptive constitution. Sotomayor and Ketanji are unashamed diversity-hires whose dissents are so embarrassing that I'd credit them to their clerks to save face.
As much as I support the norms here about charity and civility in communication, I have to agree as well. Just read some of Sotomayor's writing. I wasn't really following the issue at the time when the opening was being debated in the first Obama admin. Everyone knew that he was going to appoint a woman, and probably a minority, and I assumed that all the eligible judges were interchangeable. Then some time later I found myself reading one of her dissents entirely unprepared for the experience. I was appalled. This was obviously someone who had gone though life without ever having anyone correct her or challenge her on anything serious. She has a reputation as a bully which I 1000% believe. I wouldn't call her stupid in absolute terms; she's probably a bit above average for the nation as a whole. She was certainly very good at school and skilled at navigating bureaucracies. She probably would make an ok, or at least not totally disappointing local politician. A lot of people have accused a lot of justices of being concerned primarily with the results of their decisions, cleverly twisting the laws to produce the desired political victory for their side. She doesn't even both with the pretense of respect for the law.
By the standards of supreme court justices, she is stupid.
https://www.nationalreview.com/news/sotomayor-admits-every-conservative-supreme-court-victory-traumatizes-her/
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From where I sit, I can't really detect any reasoning at all in decisions like this? How could the law possibly fail under heightened scrutiny, given the fact that it's banning a treatment for certain off-label uses for both sexes? Leftist political argumentation baffles me, and looking at all the different ways to analyze things in a conservative way (textualist, originalist, etc), I fail to find any similar differentiation on the left side of the law. This isn't the first time I've felt this way about left wing judges. They seem to be far more activist. In defense of the low IQ remark, I recall Justice Jackson having some really dumb dissents, though I do not recall any right now.
Because falling under heightened scrutiny would produce the desired result. That's it.
Jackson can play the game. I find her unimpressive as well but she seems at least aware that her arguments should have, well, arguments. She knows the law ok and will go through with the ritual of tortured interpretations and equivocations to forward the Cause. The conservatives do this too; don't be blinded by agreeing with them. Although I would argue the current group are much better at it. Sotomayor doesn't care at all, nor does she put more than a token effort to try to hide it. Her writings look superficially like a considered legal decision, but even to a non-lawyer if you apply any scrutiny at all many of them completely fall apart into the absurd.
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Breyer wrote a book defending his "pragmatism"--you could read it and see what you think. I haven't read it.
I agree with your general point. The liberals on the court have a tendency towards viewing a case through the lens of "do I agree with the policy at issue," and then proceeding from there. The conservatives are more likely to come out all over the place depending on where their textualism or originalism takes them. When I heard him speak in the early 2000s, Scalia was quite critical of the "hippies" in Texas v. Johnson but thought the first amendment required that result. Thomas' dissent in Lawrence v. Texas noted he thought the law at issue was "uncommonly silly" and he'd vote to repeal it if he were in the Texas legislature, but that it was constitutional since there is no general right to privacy. That sort of "I don't like this law/conduct, but I think the constitution allows/protects it" conclusion seems to only come from one side of the Court.
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To steelman, let's start with a different hypothetical law: African-Americans are prohibited from using metformin, and whites from using topiramate, for the treatment of weight loss, and for the sake of the hypothetical, assume that both formulations are off-label. In one sense, these are neutral laws, where both are prohibited from using a drug for a given diagnosis. In another sense, they aren't: one race is prohibited from using one drug, and another from another entirely different one. Recognizing them as 'similar enough' risks a bunch of absurd arguments, like banning one from doing something very common and the other from doing something that's facially similar but never actually desired. Similarly, it'd be nonsensical for it to be perfectly okay to do these laws as one unit, but consider them discriminatory if the state enacted them piecemeal.
That doesn't necessarily make them good or bad policy. Hence some of the specificity in my hypothetical: there actually are some reasons you might want gender- or race-specific restrictions on those two specific weight loss drugs. But because the aftermath of Caroline Products is such a clusterfuck, almost everything passes rational basis scrutiny, and the exceptions are so unusual that they're usually treated as some special not-really-just-rational-basis example. Heightened scrutiny is necessary before courts even consider whether a law's motivations are more than pretextual.
((This distinction is kinda what nara_burns is complaining about as a distinction between Kagan and the other left-leaners on the bench: Kagan recognizes that this is still an early preliminary injunction hearing and SCOTUS has had relatively little briefing on the facts, so it's should still be plausible for the state to present support for the bans that would survive intermediate (or even strict!) scrutiny.))
There's a lot of flaws to this steelman: the Caroline Products footnotes are completely unmoored in actual constitutional text, what types of discrimination and categorization gets protected is a result of arbitrary coincidence or political demand more than real analysis, courts routinely put their thumbs on whether a particular law is analyzed under one framework or another, so on.
((It doesn't help that the majority in this opinion is muddled, even by the low standards of a Roberts opinion. Whether a particular patient can be diagnoses with "male-pattern hair growth" is absolutely tied to biological reality, but that biological reality is a result of sex. And that's the example Roberts picked!))
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Did you read the dissent? Heightened scrutiny applies when the state makes legal distinctions based on sex. Any reasonable reading of the Tennessee law does this. If a 13-year-old girl starts developing unwanted facial hair, a doctor can prescribe certain medications that he would be prohibited from prescribing if a 13-year-old boy had the same complaint. You can argue semantics and say that this technically wouldn't be a prescription to treat gender dysphoria, but I don't think the legislature's goal was to make sure doctors coded such prescriptions differently. You don't have to agree with this interpretation, but saying that it's so completely devoid of reasoning so as to question the intelligence of the person who expressed it doesn't make sense.
This is sophistry. The distinction in sex between a 13-year-old girl and a 13-year-old boy developing facial hair is not a legal one, it's a biological one -- one is abnormal and the other is normal. That the law recognizes there's a distinction does not mean it's making legal distinctions based on sex.
It's a 2-step analysis. First, you have to determine whether or not the law itself makes a distinction based on sex. This is a legal question, not a biological one. If you determine that it does, only then do you get to consider biology, since step two then asks if the distinction is "substantially related to an important government interest". The Tennessee law doesn't even pretend that this isn't a sex-based distinction. Hell, the law finds it necessary to define "sex" to eliminate all ambiguity. Yet the majority puzzlingly finds that it doesn't to avoid having to get to step 2.
Not really. If the law says "you can't change sex" to both sexes, it's not a sex-based legal distinction. It's a sex-based biological distinction, because how exactly you'd go about changing your sex is a biological matter.
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There was the time she made a basic mathematical error in one of her dissents in a college discrimination case if memory serves.
You're probably thinking of the time Justice Jackson claimed that black children are nearly twice as likely to survive if they have a black physician. This was part of her dissent in the Harvard admissions case, in which her dissent was in favor of Harvard's racial discrimination practices.
She was making an argument that racial admissions are a matter of life and death, because the lives of black children hinge on racial preferences getting black doctors into schools like Harvard, with the proof being the (bad) study.
Haha, this was actually what I was thinking of, I think. Quoting that study exposes you as a redditor. We need less redditor justices!
Fewer. We need fewer redditor justices.
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I often disagree with Kagan, but she's clearly not an idiot. Sotomayor and Jackson appear to actually be of noticeably below average intelligence within the profession, and certainly among appellate justices. Jackson in particular told us everything we needed to know about her intelligence when she asked, "what is a woman?" Tribe's characterization of Sotomayor (linked in this thread) as "not nearly as smart as she seems to think she is" is also widely shared by people who "have access to information that hasn't been made public," as you put it.
To be quite clear: this is not, at all, about substantive disagreement (I also regard Kavanaugh as of sub-par intelligence for a SCOTUS justice). I don't say they're low-IQ to boo-outgroup them; Kagan is definitely my outgroup. Sotomayor and Jackson are dim bulbs. I'm not evaluating their politics, I'm evaluating their apparent intelligence, and I find it noticeably and objectionably lacking.
If you read Tribe's comments in context it's clear that he's referring to her having a certain arrogance where she thinks she'll be able to persuade conservatives where she's more likely to put them off. It was more a comment about her personality than her intelligence, and why Kagan would be better in the role of Kennedy-influencer. In any event, Tribe later said that he was proven wrong. As for Jackson, she didn't ask that question, she gave a non-answer to a gotcha posed by Marsha Blackburn, who appeared less interested in determining Jackson's qualifications or judicial philosophy than in going on a rant about Lia Thomas and talking about how progressive education led to mind rot. Seriously, how was she supposed to answer? What could she have possibly said that would have satisfied Ms. Blackburn and earned her vote? From Lindsey Graham's questions about her faith to the softballs Democrats were lobbing, the whole thing was a dog and pony show, everyone knew this going in, and she was given specific preparation to not answer any questions if she could help it. Yeah, she gave an idiotic answer, but it was an idiotic question.
Anyway, the reason for my comment wasn't to specifically say that you were engaging in boo-outgroup, just that it comes across as below the standards of this board to imply that someone who has risen to the rank of Supreme Court Justice acts the way they do because of low intellectual capacity. I've been here since 2017 and I have yet to be modded once. I rarely report comments, though I also get pissed off when troublemakers decide to argue with the mods. Whenever I see someone people tying themselves in knots trying to explain and/or justify Trump's latest Outrage of the Week, I'm tempted to respond by simply saying that Trump is obviously too stupid to engage in anything approaching coherence and that his supporters, almost without exception, are too stupid to notice that he's incoherent, and that if you want to bemoan the decline of conservatives in academia then maybe it's time to consider that it isn't so much persecution as it is proof that conservative ideas are simply unappealing to anyone with half a brain.
Of course, I don't do this, and if I did I'd probably be reported on a bunch, and I'd probably be given some leeway at first because of my history here, but eventually patience would run thin and I'd have to start eating bans. And whoever reported me and the mods would be correct to smack me for it, because, despite the fact that I can point to all kinds of evidence supporting the idea that Trump and Trump supporters are generally all morons, that isn't really productive and isn't the kind of discourse I expect here. So when I see it coming from a mod it's disappointing, and when I see it trying to be justified on the grounds that Larry Tribe once said this and "Did you hear what she said to the Senate Judiciary Committee?" it makes me wonder if I should just say "Fuck It" and see what I can get away with. Unless, of course, you're telling me that I'm perfectly within the rules to do that, in which case I won't do it all the time, but you can count on me referring to Alito and Thomas as the "low IW wing" in the future.
This does not seem clear to me at all.
He's a partisan. I trust his unguarded opinion about someone whose status was in the moment unimportant to his tribe, above anything he said later in public when he was likely to be speaking more to save face or engage in "yay ingroup." I'm applying something like a Bayesian version of the "statements against interest" rule, I guess.
Sorry--looks like I dropped a word ("was") from that sentence, mea culpa. You are correct; she was asked "what is a woman" and her answer was "I'm not a biologist," which is a stupid answer even assuming she is a hardened partisan. Someone who believes "woman" means what trans advocates want it to mean ("a person who identifies as a woman"), should have answered in a way that would not imply that the answer was grounded in biology at all. Her answer wasn't just a pointless dodge, it was a bad dodge. If you think it would be more charitable to characterize her answer as a lie than as stupidity, like... okay? But that's not actually clear to me. (I also disagree that the question was a "gotcha." It's not a "gotcha" to ask someone a question that requires them to either admit to the force of biological reality, or speak lies and prevarications in service of one's ideological paymasters. But that is a different discussion I think.)
Two people can be idiots at the same time!
I am opposed (and increasingly opposed every passing year) to the deference shown the judiciary by lawyers, journalists, and the public. Specifically, you are probably familiar with attorneys being disciplined and sanctioned for impugning judicial integrity in court proceedings; I regard that as a blatant violation of the First Amendment. My experience with law practice and legal academia is that there is a prevalent attitude of deference to the judiciary, not only to its supposed impartiality, but to its competence. I think that is both mistaken and a little bit disgusting, especially as the judiciary has become increasingly professionalized. One does not "rise" to the rank of Supreme Court Justice, because these people are not above anyone. Especially when they are explicitly affirmative action selections. Even the brightest SCOTUS justices are approximately comparable to your typical tenured professor in an R1 university (except that university professors do more real, actual work than appellate justices, but again--different discussion). SCOTUS justices just are not that special--and even then, Jackson would not be a SCOTUS justice if she were a white man. Probably she would not even have been admitted to Harvard Law, though we don't know for sure because apparently it's "racist" to ask about her LSAT scores--even though legislatures often demand such information from judicial appointees. (Seriously, have you ever listened to a state legislator who graduated from Fly By Night Law with a 2.1 GPA harangue an appointee over going to State Law with a 160 LSAT? The chutzpah of elected officials really is something else!)
I think it's important to be able to discuss people's intelligence, not just in absolute terms but relative to the intelligence of others. I am not a blank slatist. Apparently you're not the one making them, but I know I have seen posts here discussing Trump's intelligence and mental functioning, and in the past those conversations were also had about Biden. "Trump seems to be showing himself less intelligent than past U.S. Presidents, and here is why..." is an argument I would identify as within bounds, provided the rest of the post were sufficiently backstopped, not needlessly inflammatory, etc.
Now--very importantly--generalizing that to the intellect of "his supporters, almost without exception" or to "conservatives" generally, would be out of bounds. Why? Because of the rule about focusing on specific individuals or groups rather than general ones. Arguing that a person is stupid, and providing evidence for why that is the best explanation of what they said or did (in particular, explaining how you are not using "stupid" as a stand-in for mere disagreement), is a very different thing than characterizing an entire group (especially, an ideological group) as stupid.
I also am of the view that Trump is not very smart (though he does sometimes seem to possess remarkable cunning). You're welcome to say it, when it seems relevant, and I doubt you'll get many reports for doing so (though I couldn't say for sure). Frankly, if you brought real evidence that "Trump supporters are generally all morons" that might be an interesting post! But it would require you to actually bring such evidence, and it would have to be pretty strong to counterbalance the "bring evidence in proportion" rule, and frankly "Trump supporters" are a sufficiently diverse group that you would be on very thin ice. But hey, we've had Jew-obsessed posters manage to get away with quite a lot of bullshit by adhering to the letter of the law; if you wanted to become a raving anti-Semite but with MAGA instead of Jews, that could be novel and interesting. (With apologies to my fellow mods for even suggesting such a thing.) Just notice that most of the raving anti-Semites here do eventually get themselves banned over it. Very few manage to keep the touch sufficiently light.
Those aren't the only grounds, those were just the easiest and most obvious grounds. Other posters have fleshed out other relevant concerns.
Now, having laid all of that out--I could have written that post better. Your concern is valid, and I will try to adjust accordingly. For whatever it is worth, I regarded my mention of the low-IQ wing as a bit of throwaway flavor text expressing my respect for Kagan (despite disagreeing with her). I really do have no respect at all for the intellects of Sotomayor or Jackson, based on many hours of reading and listening to their words, and I think that they are excellent examples of how the "affirmative action" approach to political appointments genuinely harms real institutions. But as that was not the point of my post, I probably should not have included it as a throwaway line, at minimum because it apparently created significant distraction from the actual substance of my post.
I... think that's a typo? Maybe? If not, you'll have to tell me what IW is. Assuming you mean IQ--I have seen many people on the Left criticize Thomas as an affirmative action appointment, and maybe that is true; partly I have a less firm opinion of him because he stayed quiet in oral arguments for so many years. But Alito is quite sharp, this just would not be a plausible criticism of him. If you wanted to plausibly identify a "low-IQ wing" on the right it would need to be, like, Kavanaugh and Thomas, and off the top of my head I can't think of any cases where they went in together against the rest of the conservatives.
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I would bet dollars to donuts that no SC justice is actually below average IQ, even among lawyers or judges. Maybe appellate courts, but I don’t think the bar is actually that high.
Partisan, yes. Political, obviously. But those are not always correlated against intelligence.
Googling "American lawyer average IQ" gives various estimates in the 115-125 range, with comments that successful lawyers (white-shoe partners, lawprofs, federal judges) are mostly going to be 130+.
I am pretty confident Sotomayor is in the 115-130 range - above average for traffic court lawyers, but well below the average federal judge. KBJ is even dumber than her. Kagan, Alito, Roberts, Kav, Barrett and Gorsuch are all smart enough to be e.g. High Court judges in England. I don't have an estimate on Thomas because so much of what he writes is easy dissents (or increasingly, concurrences) where he applies his simple but wrong (at least according to the majority and stare decisiis) law to the facts.
I suspect Alito is the smartest justice, but it isn't obvious because he is also the most partisan of the smart justices and partisanship makes you act dumber that you are.
Bottom tier: Sotomayor and KBJ. There are random white male judges (who went to unremarkable state law schools) I could pick from my state's court of appeals (not even supreme court) who would leave both in the dust.
Next tier: Kavanaugh and Barrett. Subpar by federal appellate judge standards. Probably still higher than most of the recent retirees from the Supreme Court, though.
Next tier: Thomas (probably higher when younger--some of his opinions interpreting and harmonizing conflicting federal statutes are not for lightweights) and Roberts. Maybe Gorsuch, but maybe he's highest tier. Gorsuch's writing style is excessively casual and sometimes sloppy, which I don't think is a good feature for a justice.
Highest tier: Alito and Kagan.
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Below 100 IQ is improbable. Below the IQ of your average white male county judge is very plausible.
You obviously have no personal experience with the average white male county judge.
Especially the average white male county judge in counties where they are elected. Oh boy.
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It seems just barely possible for KJB? It's pretty clear she just kept getting appointed to higher and higher spots on the basis of her race and gender, and it's entirely possible to me that was enough to get someone a bit dim by the standards of the judiciary, at least, into a high-powered law school.
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That's low IQ by mistake theory. By conflict theory their IQ is fine, but they're being disingenuous in a way that doesn't make sense.
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I will (weakly) defend her non-response on the basis that SCOTUS are the constitutional Platonic philosopher kings, to whom this sort of seems-trivial-but-actually-has-subtlety question like "is the ACA fine for not having insurance a tax?" (whether or not you agree on the depth of this particular question I think the category still stands), and that generally justices are discouraged from discussing potential cases during confirmation hearings.
That said, I quite likely disagree with her answer to the question regardless.
The King in Philosopher-King means conquring warrior, leader of men, and warlord. They are just philosophers, at best.
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New Russell conjugation: I am a Platonic philosopher-king, you engage in hairsplitting pilpul, he says “It depends upon what the meaning of the word is is”
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Oh please, why should anyone expect judges make their decisions based on non-public information, rather than tribalism and ideology?
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