More SCOTUS Wishcasting

Trans kids, parental rights, and Mahmoud v. Taylor

A couple of weeks ago, ranting about the crime that was SCOTUS’s Skrmetti decision, I floated one of my fantasies:

I keep thinking that, whatever structural reforms we might dream of for the Supreme Court, in whatever Cloud Cuckoo Land they might occur, we need a counter to stare decisis, the guideline that “we stand by our past decisions.”

Call it infirmare decisis: “We invalidate our past decisions.” A thoroughgoing review of absolute garbage precedents still on the books that the Court takes up to get rid of obviously bad decisions that still stand as “good law,” that is, not yet officially and formally overturned. Normally, you need a case to rise to SCOTUS to challenge such precedents, but only the Right has the power to do such things. Constitutional normies never dare, because they respect norms. So you don’t see cases filed that, say, try again to get poor people recognized as a “suspect class” for the purposes of the Equal Protection Clause, all while we are living through massive, one-sided class war. You don’t see SCOTUS reexamining whether or not there is a substantive right to education because of a Lewis Powell swing vote fifty-plus years ago. You still have Geduldig on the books, propping up Dobbs and making Skrmetti possible thanks to the attitudes about women’s proper place in the home and the ignorance of dudes circa 1974. I tend to think of it like a Truth and Reconciliation Commission for Past Supreme Court Decisions, focused on the reasoning and evidence upon which they were based.

How that would or could work, I have no idea. Then again, I have no idea how we could ever get the structural reforms to the Supreme Court passed and implemented either, yet these are pitched as just barely within the realm of political possibility or imagination, like getting rid of Citizens United or reforming the Electoral College or pulling off a Convention of the States that isn’t instantly corrupted by some MAGA-Tea-Party-Federalist-Society-Leonard-Leo hanky-panky.

I’m thinking of this fantasy again after having read Chris Geidner’s piece at Law Dork on parental rights.

SCOTUS's parental rights messages: Protect anti-LGBTQ views, ignore LGBTQ people

Geidner is normally very lucid, for all that he has to find a balance between his con-law audience (which includes heavyweight specialists) and regular folks, but this piece gets a little murky to me. So my takeaway will be ugly and limited in some ways, but please follow along.

What About The Parents?

If you’ve seen laws passed hither and yon against gender affirming care for trans kids, you might have—reasonably, oh so reasonably—asked WTF state legislatures think they are doing, overriding the choices of the parents of trans kids, in consultation with doctors, to pursue gender affirming care.

I mean, doesn’t this go straight to the question of parents’ right to direct the care of their minor children as they see fit? And not in some whackadoo, fringe, contra-science way like insisting they can stave off COVID with horse dewormer or battle measles with cod liver oil and Vitamin A? Every medical association with any kind of dog in this hunt says gender affirming care is legit, saves lives, works, etc. ad infinitum, despite what transphobes and TERFs claim to the contrary.

Yet the case in Skrmetti focused pretty exclusively on equal protection of the laws and sex discrimination. That alone was a slam dunk, yet the Court’s majority of bigots weaseled its way around obvious reality by claiming the discrimination wasn’t among kinds of people, no, just among kinds of treatments for kinds of conditions (said conditions affecting only trans folks, of course).

Why, oh, why, wasn’t the whole matter of parents’ rights to choose what they feel to be in the best medical interest of their children addressed?

Well, because SCOTUS didn’t want to address it.

Call it Bigots’ Choice.¹

When the Supreme Court takes a case (grants certiorari), it also gets to dictate which specific legal questions it will address in that case. And when six of nine of the justices are in the tank for the conservative legal movement, the specific question they choose to address is where the deck first gets stacked.

When Tennessee (and Kentucky) decided to screw over trans kids, parents sued. Their arguments included the equal protection claims we saw in Skrmetti, but also the parental rights arguments that immediately jump out to anyone who has watched the political Right whine about masks and vaccines as the country went through the biggest pandemic in a century.

The Biden Justice Department joined with the effort to fight the anti-trans laws, but DOJ focused only on the equal protection claims. That case got taken up by SCOTUS, eventually becoming U.S. v Skrmetti.

What about the parental rights arguments? What about the argument that said, Hey, we’re parents of a trans kid who is miserable and maybe has suicidal ideation and wants to transition, and we want what’s best for them, and we’ve been working for years with doctors and shrinks who specialize in this area, and this is the course we want to follow for our child, and the state government has no right to override our ability to decide what’s best for our kid?

What about that argument?

Religious Parents Matter, Others Can Piss Off

Well, SCOTUS just released its decision in Mahmoud v. Taylor, the Pride Puppy case, where they sang the praises of parents’ right to direct the religious upbringing of their children.

SCOTUS said this right is so important that it overrides the ability of an entire public school district to even have picture books available for reading time² if they so much as acknowledge that gay marriage is a thing, that kids have gay uncles and gay parents, that trans folk exist.

Why? Because the mere existence of such materials constitutes an intolerable burden to the right of religious families to bring up their children in the faith they choose (if that faith happens to preach and teach that LGBTQIA+ folks are, you know, abominations and such-like).

So, for SCOTUS, parental rights seem to really matter, right?

Clarence Thomas’s concurrence in Skrmetti went on a tear about how it’s not even clear that trans kids could ethically consent to gender affirming care, they’re so young and impressionable. Nowhere in that rant could I find any indication that these poor trans kids are anything but atomized individual street urchins, living alone in cardboard boxes with no support network, no kin at all. Thomas argumentatively erased the parents of trans kids from the court record here.

Thomas erases the fact that trans kids have parents because otherwise, that raises the looming open question of parental rights to help guide and direct their children’s health care—a fact that the Court choose not to address when it took up the Biden DOJ’s equal protection claim, but not the parental rights claims raised by the private plaintiffs living in Tennessee and Kentucky.

So what of those parental rights claims, those private plaintiffs out of Tennessee and Kentucky? Did they just…disappear? Hell no. SCOTUS may have ignored them when it took up the Biden DOJ version of the argument on equal protection, but the parental rights arguments still exist, and the lower courts have still weighed in on those.

Here’s Geidner:

…the individual plaintiffs also claimed that the laws violated the constitutional rights of parents to direct the upbringing of their children, including medical care decisions, and the district court judges had agreed they were likely to succeed on those claims as well. The Sixth Circuit reversed on those claims, too, so the individual plaintiffs asked the justices to take up that issue as well.

So, district courts ruled that, Yep—sure looks like you parents of trans kids are likely to win on this whole parents’ rights argument, but the Sixth Circuit shot that idea down (in a torrent of bullshit). The parents had the right to appeal to the Supreme Court, and they did. SCOTUS took up the question of equal protection, and ruled in their gerrymandered logic that discriminating against trans kids wasn’t really discriminating against trans kids, if you simply disbelieve in the existence or value of trans kids.

But the question of the rights of the parents of trans kids didn’t go away when Skrmetti dropped. SCOTUS just ignored it. Because they have the power to do so. They have the power to pick and choose which specific legal questions they will ponder and twist to fit their agendas, and they did so with the 14th Amendment’s guarantee of equal protection under the law as regards this tiny minority of children.

So whither the rights of these kids’ parents? Is there hope for gender affirming care in the 25+ states that have targeted helpless kids and teens via this legal avenue?

Geidner has a partial answer.

Less than 72 hours after the U.S. Supreme Court upended First Amendment law to provide religious parents with what Justice Sonia Sotomayor called a “veto” over public school decisions in a case over books with LGBTQ characters, the justices made abundantly clear that Mahmoud v. Taylor must not be seen as a parental rights case.

It is, of course. It’s just a parental rights decision that is only available to certain parents — those with religious claims.

On Monday, the court showed the shallowness of its parental rights concerns when the court denied review in two other parental rights cases — involving bans on gender-affirming medical care for transgender minors.

The above cases were the parental rights cases, upheld by the district courts, but shot down by the Sixth Circuit, and appealed to the Supreme Court. They were the ones where parents said, “Hey, these laws violate parents’ rights to direct the medical care of their children, which y’all say is so sacred, so hear our case and apply the same standard.”

And just the other day, after waxing so lyrical about how important it is for parents to be able to bring up their kids in the faith they have chosen, SCOTUS said, No, we aren’t going to hear a case about how important it is to raise your kids to maturity against the threat of suicide that your state has just compounded by barring them from treatment every medical association not founded in the past five years to wage an opportunistic culture war says they need.

Now, Geidner notes that SCOTUS’s refusal to take up these cases doesn’t mean the parental rights argument is dead. It’s still out there. But right now, the Sixth Circuit’s decision is the last one standing, and there is no guidance from SCOTUS to apply its decision in Mahmoud (or any other parental rights case) to these trans cases. That’s significant. By not taking up these cases, SCOTUS let’s the Sixth Circuit ruling stand. We’ll have to wait for a different circuit to rule otherwise on a different parental rights case involving trans kids, and then we’d have a circuit split, and only then would SCOTUS be more or less forced to adjudicate the conflict. That could take a long while, and in the meantime, more suffering, maybe death, for more trans kids.

The SCOTUS Six, of course, would probably whine about how Mahmoud is about religion, while the trans cases are about medical care, and those are totally different things. But why? They’d probably say because religion is given pride of place in the Constitution, in the First Amendment, and blah, blah, whereas “medical decision-making” appears nowhere in the text.

I’m sorry. I’d rather have my kids live to ripe old ages as whatever gender they may choose / actually be / invent next week / have downloaded into their skulls by invading aliens while converting to the weirdest damn belief system ever conceived as opposed to remaining “pure” as whatever they are and believe this moment yet drop dead in their tracks.

I’m funny that way.

Thing is, most psychotic evangelicals and Catholics don’t see it this way. Better dead and right with God than long-lived and doomed to hell.

Hence the heavy hand on the scale of Religion vs. well, Life, when it comes to parental rights.

Hence the obvious disdain and dismissal of trans kids and LGBTQIA+ rights in general.

Hence the trails of lesser, but still visible, disdain for every other group lower on the hierarchies of value. Rich over poor, men over women, straight over gay, cis over trans, white over non-white, et cetera ad nauseum.

The less you fit, the more you should just quit. We’ll rig the game against you.

If You Want a Court, You Better Radicalize

Since this post opened with wishcasting about how one job of a reformed or reconstituted SCOTUS should be to revisit toxic-but-still-extant precedents and overturn them, I suppose I can add to my list of fantasies.

I’d like it if we had a mechanism to require SCOTUS to address all relevant questions of Constitutional law in challenges to things like these anti-trans statutes. No more picking and choosing the issues they feel like tackling. Take on the equal protection claims, yes, but take on the parental rights claims as well. And anything else that has risen up to within striking distance of the Court. No more of this piecemeal gerrymandering of the issues, this slaloming around various precedents on the ground that “this is different” when the difference doesn’t seem to make a difference when the lives of real, living people are at stake.

How would this work? Again, I have no clue.

Could this work? Oh, it is to laugh.

So why bring it up?

Because, to my mind, we have boxed ourselves in. If you want to even have a Supreme Court and something resembling a federal judiciary, you’re going to have to start thinking very, very far outside the box of constraining precedents and selective logics, selective choices of issues and questions the imperial Court deigns to take up. You’re going to have to expand the meaning of court “reform” far beyond what anybody right now is envisioning, into the realm of what most folks would call “revolution.”

So long as we still have something like the Supreme Court, it won’t be a revolution, of course, and in that, I’m still pretty “meh” about the project. But what we have in front of us is a longstanding accretion of practices and precedents that allows for almost ideal circumstances to weaponize bad faith and manifest gaslighting that flies by the notice of the American people because it is all draped in legalese and far, far, too much specialized on-boarding.

There are visions available for how a Supreme Court could work, to the benefit of all. These are, however, radical in light of the historical record of what the Court has been and done (most of us elders got our positive impressions of the Court from the brief and exceptional period when the Warren Court expanded rights, a period now 70+ years in the rearview mirror).

If you want to have a Supreme Court, the rot made possible by our accumulated dross has to be dealt with, and structural changes must be made to shore it and the entire federal judiciary up against those who would use it for ends other than justice.

1. Even when the bigots aren’t running the table, there’s the danger of “too many years, too many limousines” and the erudite lawyer-brain alienation from real-world struggles. That is, the tendency of those at the pinnacle of legal prestige to look at cert petitions as a menu for finding interesting legal specimens they would like to bat around, regardless of the impact of real human beings on the ground depending on an answer to the questions the legal issues pose.

2. Without an “opt-out option” that’s so unworkable in practice that the result most likely will be either the scouring of LGBTQIA+ material from the schools or habitual excusals for kids from “religious” objector families such that reading time will look like a political protest in the form of a disgusted walkout.