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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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