Dem
47
GOP
53
George W. Bush was wrong. He wasn't the decider. Congress isn't the decider. Whenever there is a tough public policy decision to be made, John Roberts & Co. are the deciders. It's always like that these days.
True to form, yesterday the Supreme Court held oral hearings on another contentious case. It is about a Tennessee law that bans gender-affirming care for minors. Supporters of this care want the Supreme Court to strike down the Tennessee law saying that it harms trans kids. Supporters of the law say it protects impressionable children from irreversible genital mutilation, arguing that it should be up to elected legislatures, not the courts, to make laws about health care.
The discussions were wide ranging, covering how other nations deal with the issue, the Supreme Court precedent that prevents employers from firing workers merely because they are trans, and the role of parental rights. From a legal point of view, the issue is whether laws preventing discrimination based on sex are at play here. Those laws generally were intended to prevent men from getting some advantage over women or vice versa. They certainly didn't deal with hormone therapy or surgery on minors. What makes it hard to oppose the Tennessee law based on sex discrimination is that the Tennessee law bans turning boys into girls and girls into boys equally. Supporters of the law say that it clearly does not favor one sex over the other, which is what the court cases about sex discrimination are about.
The case was brought by three families and a doctor. The law prohibits doctors from prescribing puberty-delaying medication, hormone therapy, or surgery to treat what the law calls "purported discomfort or distress from a discordance between the minor's sex and asserted identity."
The case is nominally about whether the doctor may prescribe treatments that the families want but is prevented from doing so by the law. But it could affect many other situations, such as bathroom usage, who can be on which sports team, whether Medicaid and Medicare can pay for gender-affirming care, and much more.
It is always hard to judge how the justices will vote based on oral hearings, even ones as long as 2½ hours, like yesterday's. Sometimes the justices like to play devil's advocate, just to see how the lawyers will respond. However, one hint is that Chief Justice John Roberts said: "The Constitution leaves that question to the people's representatives, rather than to nine people, none of whom is a doctor." That sounds like a vote to keep the law, but maybe not.
One justice who didn't say anything during the hearings is Neil Gorsuch. Maybe he hasn't made up his mind yet. If so, he might end up being the deciding vote. (V)