How will the court rule in Skrmetti?

As scores of protestors on both sides braved the cold outside the Supreme Court on Wednesday, things got heated inside the court’s hearing room, at least in comparison to your typically staid oral arguments. As the nine justices engaged the advocates in a back and forth on transgender treatments for minors, they did so with at least one eye on what precedent this case concerning a Tennessee law will set. Now, we will wait—potentially until the end of June—for a decision in United States v. Skrmetti (assuming no leaks from inside the court this time).

Chief Justice John Roberts led off questioning with a focus on the medical uncertainty around transgender treatments. Four years ago, in the first major case on COVID restrictions on churches, Roberts disappointed conservatives with a cautious opinion upholding California’s limitations, wherein he noted, “Our Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States to guard and protect. When those officials undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad. Where those broad limits are not exceeded, they should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” That same skepticism of judicial second-guessing will redound to conservatives’ benefit here, with Chief Justice Roberts clearly supportive of the Tennessee legislature’s right to make this determination.

Justice Samuel Alito zeroed in on this medical uncertainty—indeed suggesting to the Biden administration’s attorney that the medical evidence points the other way. He focused on the Cass report, an independent review commissioned by the British government to evaluate transgender treatments. Alito pointed to the review in his questioning, while the Biden lawyer stubbornly stood by her position that the medical “consensus” favored permitting transgender surgeries on kids.

In their questions, Justices Amy Coney Barrett and Brett Kavanaugh looked to the future. Justice Barrett asked what a holding here could mean for parental rights. The court has traditionally recognized a parent’s right to “care, custody, and control” when it comes to their children, including the right to direct a child’s medical care (indeed, many conservatives rely on that principle to fight school policies that hide a child’s social gender transition at school from parents).

Justice Kavanaugh, meanwhile, asked what a decision here would mean for transgender participation in women’s sports—would a constitutional “equal protection” right here also apply there? The Biden Department of Justice attorney responded that it would, although she also backtracked by suggesting the court could add language reserving that question for a future case.

Justice Kavanaugh asked the same question of the American Civil Liberties Union attorney for the private plaintiffs attacking the law, who also said that the same framework would apply, adding the caveat that the interests might be different. In other words, to try to win this case before the court, the liberal advocates were not willing to take a strong stand in favor of transgender participation in women’s sports.

Indeed, the Biden administration’s lawyer retreated on another point as well when she suggested that while Tennessee’s ban on transgender surgeries on minors was unconstitutional, a similar West Virginia ban is constitutional because it contains very narrow override exceptions.

Similarly, the ACLU lawyer conceded to Justice Kavanaugh that a more narrowly drawn state statute could survive constitutional scrutiny. One left-leaning commentator on Twitter described things as “bleak” when that is the position of the Biden Justice Department.

Ultimately, the hearing should encourage conservatives who support Tennessee’s law. The conservative-leaning justices, including Chief Justice Roberts, were clearly sympathetic to the state legislature’s prerogative to set policy in an area of medical uncertainty, especially when its policy is limited to minors for whom the state has a special interest.

Meanwhile, the liberal-leaning justices struggled for solid footing in existing law and precedent, and the Biden and ACLU lawyers similarly were forced into concessions under the weight of law and logic during questioning. I expect we’ll see a narrow opinion upholding the law, written by the chief justice, on deference to elected lawmakers in this area, with a slightly spicier concurrence from Justice Alito and a frustrated dissent from Justice Sonia Sotomayor. But we’ll have to wait to find out.