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Notes -
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.
The procedural posture here is also weird, even if no one but Kagan wants to rest their opinion on it. This is an appeal of preliminary injunction that was denied, while other preliminary injunctions or final judgements against other trans minor laws were upheld. Including one where SCOTUS pared back a wide preliminary injunction... to just the plaintiffs).
So now there's a SCOTUS-approved preliminary injunction for an equal protection challenge that SCOTUS just said can't win, sitting in the 9th Circuit. Except they didn't really hold that, they just made it really clear what the breakdown of how they hold the balance of law. Except in this case, the only person treating it like it's not final judgement was Kagan, and that in a minority-of-a-minority dissent.
I'll caveat that there's two forms of rational basis review: the normal form a la FCC v. Beach Communications where the law is upheld even if the government provides no good reason for the statute, so long as the court can imagine a single even incorrect cause; and the Cleburne version where the law is held to be motivated by animus, and then the statute near-always falls even if there is a named good cause. Some of the finangling in the oral args were about that.
Yeah, that's a mess, and I dunno how he's juggling it. Roberts says tries to distinguish by saying the law here distinguished based on a transgender diagnosis rather than sex, using the metaphor of hirsuitism, but since whether someone will be diagnosed with hirsuitism depends on their sex that seems transparently wrong (and he even spells out that this is often called "male-pattern hair growth"). Presumably he's done that because he knows a hard limit on medical exemptions recognizing sex will result in the same law coming right back up with the medical exemption excised, and that's worse from a pragmatic perspective, but as a matter of law it's clear as mud.
Gorsuch signed onto it, so I guess he must agree? Or maybe he didn't want a bunch of circuit court misreadings if this case ended up in a 4/1/1-3 mixed-majority. But the reasoning here's vague enough that red circuits can draw every other transgender case that isn't specifically a CRA thing (and maybe even some that are) as about Skrmmeti-like distinctions, and blue circuits can draw every other transgender case as more like Bostock.
Thomas or Barrett's distinctions are clearer, but in turn they're a lot more strict.
People often forget SCOTUS justices are politicians. Gorsuch wrote Bostock when he was in a DC swamp that was overwhelmingly trans-triumphalist. He almost certainly thought he was HELPING by making it less of an issue. A few years later and its now basically mainstream thought that trans treatments for teens is the modern day lobotomy. He would not write Bostock again.
I think Gorsuch is a kind of hyper-textualist (sometimes to the exclusion of other indications of original public meaning), and the difference between his positions here and in Bostock can mostly be chalked up to the fact that Title VII and the Equal Protection Clause do not, in fact, say the same thing. Title VII is explicitly broader than the Equal Protection Clause in a way that Gorauxh finds dispositive.
I think he was wrong on Bostock to ignore the fact that literally no one thought Title VII had anything to say on the trans issue when it was enacted, but it's a legitimate opinion that other good-faith conservatives and libertarians I know agree with. And Gorsuch hasn't generally shown himself to be a beltway clout-chaser in my opinion. Certainly nothing like Roberts or Kavanaugh. If anything, he has an almost autistic tendency to stick to his guns when he's saying something unpopular.
I'd like to believe that, but Gorsuch wrote Vanderstok: solely a textual interpretation of statute, very well-documented and very clear law, also a complete duck because it'd be unpopular.
I actually think Vanderstok is an example of the same phenomenon. From Gorsuch's perspective, the GCA's definition of "firearm" may be absurdly broad, but that's not his fault. Democracy is the theory that the people know what they want and deserve to get it, good and hard, and all that. Just as in Bostock, the context the words of the statute were written are irrelevant to his analysis.
Maybe I'm insufficiently cynical, but I just don't get the same sense of insincerity from Gorsuch as I get from someone like Roberts. Then again, I don't think Gorsuch is much of a gun guy, so I can't completely rule out that he's just conforming to his peers' opinion that "ghost guns" are scary tools of insurrection undeserving of constitutional protection. He could just be an old school "I don't know why my old hunting rifle isn't good enough for the kids these days" NRA types.
I agree he's more sincere than John "Article III is <Not> Worth a Dollar" Roberts, fair. But I don't see any way to make VanDerStok workable in the same frame as Bostock.
Trivially, VanDerStok isn't clearly saying that the GCA definition of "firearm" is massively broad; that's why it has to keep wavering back and forth from ordinary meaning to what Congress 'meant' to say whenever discussing "artifact nouns". That's very far from Bostock's explicit division from what Congress intended to say from what the statute actually spells out.
But more critically, VanDerStok is a dodge. Gorsuch does not write to say that the GCA definition of "firearm" is so broad as to even cover all of the plaintiffs. He discovers that APA challenges must act as a facial challenge such that no enforcement of the regulation could ever be a valid interpretation of the statute, after the plaintiffs never argued it and the government defending the law disavowed. Even were he absolutely sure that the ghost guns rule were perfectly in line with the statute, he's not actually committing to it, either.
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