⏰BREAKING
The Department of Justice has submitted a letter to the clerk of the U.S. Supreme Court notifying it of a change in position over "gender affirming care" for minors, which directly impacts the constitutional challenge to Tennessee's ban in U.S. v Skrmetti.
BUT the U.S. DOJ is NOT withdrawing its petition for cert (review) and pulling itself from the case.
Instead, the Deputy Solicitor General writes:
Nevertheless, the United States believes that the confluence of several factors counsels against seeking to dismiss its case in this Court. The Court’s prompt resolution of the question presented will bear on many cases pending in the lower courts. Since granting certiorari last June, the Court has received full briefing and heard oral argument, including from the private plaintiffs, who have participated in this Court as respondents supporting the United States at the merits stage and who remain adverse to the state respondents in a dispute that has not become moot.
Accordingly, the Court may resolve the question presented without either granting the private plaintiffs’ pending petition for a writ of certiorari, see L.W. v. Skrmetti...or requesting further, likely duplicative briefing from the same parties about the same court of appeals judgment in the underlying suit between the private plaintiffs and the state respondents.
This was the best possible position for DOJ to take.
The court has heard all it needs to hear on the constitutionality of state bans on gender affirming care for minors. Briefing is done, oral arguments are done.
And though the official position of the U.S. is now different than it was under Biden, the issue remains salient, and the Court should still resolve it.
Failing to do so means trans-identified children will continue to suffer gender butchery in the states while litigation proceeds. States have a constitutional right to protect vulnerable children (my scholarship on the issue is included in the reply).
Now, we wait to see what SCOTUS will do.
The Department of Justice has submitted a letter to the clerk of the U.S. Supreme Court notifying it of a change in position over "gender affirming care" for minors, which directly impacts the constitutional challenge to Tennessee's ban in U.S. v Skrmetti.
BUT the U.S. DOJ is NOT withdrawing its petition for cert (review) and pulling itself from the case.
Instead, the Deputy Solicitor General writes:
Nevertheless, the United States believes that the confluence of several factors counsels against seeking to dismiss its case in this Court. The Court’s prompt resolution of the question presented will bear on many cases pending in the lower courts. Since granting certiorari last June, the Court has received full briefing and heard oral argument, including from the private plaintiffs, who have participated in this Court as respondents supporting the United States at the merits stage and who remain adverse to the state respondents in a dispute that has not become moot.
Accordingly, the Court may resolve the question presented without either granting the private plaintiffs’ pending petition for a writ of certiorari, see L.W. v. Skrmetti...or requesting further, likely duplicative briefing from the same parties about the same court of appeals judgment in the underlying suit between the private plaintiffs and the state respondents.
This was the best possible position for DOJ to take.
The court has heard all it needs to hear on the constitutionality of state bans on gender affirming care for minors. Briefing is done, oral arguments are done.
And though the official position of the U.S. is now different than it was under Biden, the issue remains salient, and the Court should still resolve it.
Failing to do so means trans-identified children will continue to suffer gender butchery in the states while litigation proceeds. States have a constitutional right to protect vulnerable children (my scholarship on the issue is included in the reply).
Now, we wait to see what SCOTUS will do.
The Deputy Solicitor General's letter to the Supreme Court clerk: supremecourt.gov/DocketPDF/23/2…
My legal memo on the constitutionality of state bans on "gender affirming" care for minors: heritage.org/gender/report/…
Some additional context & explanatory background. If the U.S. has swapped positions in U.S. v. Skrmetti, why isn't the case dismissed?
I'll explain:
Parties in litigation must be "adverse" to one another.
And now, the U.S. no longer thinks these state bans are unconstitutional, but believes them to be constitutional. The DOJ aligns with Tennessee ("Skrmetti" in the litigation).
Based on its E.O. prohibiting federal funding for "gender affirming" care, it's clear the Trump Admin would never have sued Tennessee in the first place, so the DOJ is no longer "adverse" to TN.
Does this render the case "moot" (i.e., the case or issue is no longer relevant/practical/live) ?
No - and here's why:
Remember that this case began as a suit by private plaintiffs seeking access to gender-affirming medicine ("L.W.", and others) and challenging the constitutionality of the Tennessee ban.
They remain an active party to the litigation and now stand in opposition to both the United States and the state of Tennessee.
Listeners may remember that transgender lawyer Chase Strangio of the ACLU argued on behalf of the private party, L.W., during oral arguments in December. And Chase admitted that L.W.'s position was exactly the same as the then-Biden Administration's: i.e., that the law was unconstitutional.
Which means that the private party/L.W. is not only still "adverse" to the defendant/respondent state of Tennessee, now, they are also "adverse" to the position of the United States.
So the show can go on.
I'll explain:
Parties in litigation must be "adverse" to one another.
And now, the U.S. no longer thinks these state bans are unconstitutional, but believes them to be constitutional. The DOJ aligns with Tennessee ("Skrmetti" in the litigation).
Based on its E.O. prohibiting federal funding for "gender affirming" care, it's clear the Trump Admin would never have sued Tennessee in the first place, so the DOJ is no longer "adverse" to TN.
Does this render the case "moot" (i.e., the case or issue is no longer relevant/practical/live) ?
No - and here's why:
Remember that this case began as a suit by private plaintiffs seeking access to gender-affirming medicine ("L.W.", and others) and challenging the constitutionality of the Tennessee ban.
They remain an active party to the litigation and now stand in opposition to both the United States and the state of Tennessee.
Listeners may remember that transgender lawyer Chase Strangio of the ACLU argued on behalf of the private party, L.W., during oral arguments in December. And Chase admitted that L.W.'s position was exactly the same as the then-Biden Administration's: i.e., that the law was unconstitutional.
Which means that the private party/L.W. is not only still "adverse" to the defendant/respondent state of Tennessee, now, they are also "adverse" to the position of the United States.
So the show can go on.
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