With Skrmetti, the Supreme Court Ends Another Threat to Democracy.
Posted by Ed Folsom, June 18, 2025.
(Photo Supreme Court Historical Society)
Today’s Supreme Court decision in United States v. Skrmetti knocks down a judicial threat to democracy. Skrmetti examined the constitutionality of a Tennessee statute that makes it illegal to perform what is widely and euphemistically called “gender affirming care” on minors. Specifically, as described in Skrmetti:
“[T]he law prohibits a healthcare provider from ‘[s]urgically removing, modifying, altering, or entering into tissues, cavities, or organs of a human being,’ or ‘[p]rescribing, administering, or dispensing any puberty blocker or hormone,’ for the purpose of (1) ‘[e]nabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex,’ or (2) ‘[t]reating purported discomfort or distress from a discordance between the minor’s sex and asserted identity’” (statutory citations omitted).
The case threatened democracy in that the plaintiffs sought to have the statute, enacted by a majority of the democratically elected representatives of the Tennessee legislature, blocked by un-elected judges. Initially, the District Court issued a partial injunction against enforcing the statute, based on a perceived violation of the equal protection clause, but the Sixth Circuit Court of Appeals reversed that ruling. Today, the U.S. Supreme Court held that the statute does not violate the equal protection clause. Tennessee’s democratic will goes unmolested.
The Supreme Court found that the Tennessee legislature has legitimate concerns about bad effects from “gender affirming care” for minors that consists of transition surgery, hormone treatment and puberty blockers. The Court also found that the statute is rationally related to the legislature’s concerns. Because the constitution does not require anything more than a rational basis for the legislation, the Court did not subject the statute to any higher level of scrutiny.
In a nod to democracy, embodied in the functioning of the legislative branch and the separation of powers, the Court’s plurality opinion concludes:
“[T]he calculus of effects, the manner in which a particular law reverberates in a society, is a legislative and not a judicial responsibility.
“This case carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field. The voices in these debates raise sincere concerns; the implications for all are profound. The Equal Protection Clause does not resolve these disagreements. Nor does it afford us license to decide them as we see best. Our role is not ‘to judge the wisdom, fairness, or logic’ of the law before us, but only to ensure that it does not violate the equal protection guarantee of the Fourteenth Amendment. Having concluded it does not, we leave questions regarding its policy to the people, their elected representatives, and the democratic process.”
The three dissenters would have applied a heightened level of “intermediate” constitutional scrutiny to the Tennessee legislature’s actions, on the purported grounds that the statute discriminates based on sex and transgender status.
Applying an intermediate level of scrutiny would have required the Court to exercise more of its own judgment in the matter. The rational basis test is very deferential to the legislature. Intermediate scrutiny is less deferential, requiring a court to decide the importance of the government’s objectives and how strongly related the legislative action is to achieving those objectives.
Intermediate scrutiny would require the Court to decide how harmful and how effective gender transitioning surgery, hormone treatment, and puberty blockers are (Are they effective treatments for minors? How effective? Do they harm minors? How much? Is the legislature’s means of stopping the harm effective? Could more effective means have been used? etc.). This would thrust the Court into the midst of a contentious medical and scientific debate, substituting legislative judgments with the Court’s own. Because this judicial review process interferes in the democratic process, the Court can only legitimately engage in it when the constitution requires it. Here, the six justices in favor of the Court’s ruling found that the constitution does not require them to meddle with the legislature’s judgment.
Also, for the Court to make the necessary determinations under intermediate scrutiny would necessarily involve the Court making calls based on the opinions of experts in the field. The Plaintiffs attempted to make the case that scientific consensus is all in favor of surgery, hormone treatment, and puberty blockers for minors, with no room for any serious dispute. On the other hand, experts in some European countries, with extensive experience in these matters, now conclude that the harm to minors from such treatments outweighs any scientifically demonstrable benefits. Are the courts, including the U.S. Supreme Court, even the desirable, let alone legitimate, forum for deciding this battle of experts? Justice Thomas especially doesn’t think so. In his concurring opinion, Thomas points out:
“When this Court has…given exalted status to expert opinion, it has been to our detriment: Past deference to expertise provided the theory of eugenics added legitimacy and considerable momentum, with this Court throwing its prestige behind the eugenics movement in its 1927 decision upholding the constitutionality of Virginia’s forced-sterilization law.” (internal quotation marks and bracketing omitted).
As the Supreme Court once did with eugenics, it would be a very bad thing for the Supreme Court to once again give an imprimatur of legitimacy to what is actually just fashionable mad science – in fact, fashionable mad political science. Just you wait and see…
Related Post, June 20, 2025: Given the reaction from much of the community of “experts” to Skrmetti, and in light of Justice Thomas’s observation above, I give you the link below to a related post. The post recounts the historical relationship between progressivism and that other weird, mad political science of eugenics; a weird mad political science whose zeitgeist preceded the current weird mad political science of genital mutilations, cross-sex hormone treatment and puberty blockers for minors. Did you know that the University of Maine taught courses on eugenics back when there was a great scientific consensus around it, before the German National Socialist Workers Party gave eugenics its bad reputation? You didn’t know that? Well, read on then.
