Judges

 I've been listening to the Supreme Court's oral argument from yesterday in the dispute over Tennessee's ban on transgender medical care—more specifically, on hormone treatment and puberty blockers for minors—unless the minors are using these treatments to "appreciate" their sex assigned at birth. I was wholly persuaded by the plaintiffs' arguments in the case that there is no way to avoid the conclusion that the bill makes a classification by sex, and therefore at the very least should be subjected to intermediate scrutiny. After all, the bill does not ban testosterone for males, but does so for females. 

Of course, the bills' proponents can retort that "there is no sex classification here, because each sex can receive hormone treatment consistent with its assigned sex." But this is like saying that racial segregation of drinking fountains was not a racial classification, because each race could use a drinking fountain—so long as it used the drinking fountain assigned to its race. Elizabeth Prelogar, arguing for the government, made this point eloquently. The essence of group classification, she observed, is to say that each group must do the thing assigned to its group. So, yes: Tennessee's law is making a sex-based classification. 

Several of the conservative justices, of course, seemed hesitant to reach this conclusion (even though it is logically unimpeachable). Several of them cited competing claims and sets of medical evidence showing that, at the very least, there is still ongoing debate within the medical and scientific communities about the effectiveness of these treatments for gender dysphoria in minors. They further argued that the courts were especially poorly equipped to wade into these medical issues (though I would think this point counsels equally strongly against state legislatures wading into them, and overriding doctors and families). 

But counsel for the plaintiffs, Mr. Strangio of the ACLU, pointed out that there have been other recent cases in which the medical consensus was similar unsettled, but the Supreme Court nonetheless insisted that courts apply heightened scrutiny. He pointed specifically to pandemic-era litigation over COVID-19 restrictions. The court in that case did not hesitate to require state legislation to pass heightened scrutiny requirements—such as tailoring, using less restrictive means, and demonstrating a legitimate state interest—when COVID restrictions implicated constitutional rights, such as religious exercise. 

It really wasn't a very complicated or difficult point. But Justice Roberts really seemed to struggle with it. He's usually perfectly sharp from the bench; but he wasn't yesterday. First, he asked Strangio to revisit the comparison to the COVID-19 litigation. But then he hesitated, because he suddenly couldn't remember whether Strangio was the one who had made this point. Strangio diplomatically replied: "I think it was me," before laying out the argument a second time. Yet, Roberts still seemed baffled. He said: "well, I don't want to relive the COVID litigation," to which Strangio replied: "You and me both, your honor." 

Most of all what the interchange reminded me is that—well, to put it indelicately, many of the justices are in fact getting old. Roberts's difficulty in grasping a fairly simple point and uncomplicated comparison to recent court decisions raises the concerning possibility that attorneys for plaintiffs might actually have the better logical argument here—but might lose anyway just because many of the justices simply don't understand them. 

One is reminded all over again that perhaps the Supreme Court—which is tasked with ruling on the most arcane and logically-intricate questions of law—is the very last place where it was wise to install a gerontocracy. And yet—that is what we have done. Many of the people upon whom it is most incumbent to understand abstruse logical points of the law may be the ones least able to do it. And yet, that is how we have chosen to structure our constitutional order. I am reminded of a line from Dario Fo's Accidental Death of an Anarchist that underlines the absurdity of this well:

Being a judge, one character in Fo's play observes, has "got to be the best job in the world. Mainly because they never retire. At an age when your average working man's on the scrapheap—fifty-five, sixty—because he's slowing down a bit... that's when a judge's career really takes off. Worker on a production line's past it at fifty [....] Whereas for a judge, it's the opposite: the older and more gaga—I'm sorry, 'delightfully eccentric'—they get, the more they're promoted. There they are, little old blokes [...] And these people have the power to destroy someone's life or save it." (Nye trans.)

God help us!