I had initially wondered whether Donald Trump’s election as our next president might lead to a deferral of the upcoming (December 4) oral argument in United States v. Skrmetti and ultimately to a dismissal of the case. I now think not. Let me explain why.
Some quick background: In Skrmetti, the Biden administration is contending that a Tennessee law that bars health-care providers from administering puberty blockers and cross-sex hormones to children as treatment for gender dysphoria violates the Equal Protection Clause. As I have outlined in several posts, the Biden administration’s legal claims rest on outrageous misrepresentations of the medical evidence and on a refusal to acknowledge the shocking scandal that underlies WPATH’s supposed “evidence-based guidelines.” Plus, if the Court were to commit the gross folly of concocting a new rule that laws affecting individuals who identify as transgender are subject to heightened scrutiny under the Equal Protection Clause, it would spend the next two decades sorting through the hornet’s nest of impenetrable disputes that such a rule would present.
President-elect Trump’s Department of Justice will surely repudiate the Biden administration’s position in this case and agree that the Sixth Circuit’s excellent ruling should be affirmed. But the private plaintiffs below, who have filed their own brief (in their capacity as respondents) in support of the Biden administration and who have even been granted oral-argument time, would remain as parties adverse to Tennessee. As Justice O’Connor summed it up in a different case a few years later, her majority ruling in Director of Office of Workers’ Compensation Programs v. Perini North River Associates (1983) “holds that, once a case is properly brought here, the case-or-controversy requirement can be satisfied even if the parties who are asserting their adverse interests before this Court are not formally aligned as adversaries.” In Perini just as here, the private party adverse to the defendant was nominally aligned with the defendant as a respondent in the Supreme Court.
If there is any doubt about the soundness of that adverseness holding, the Court could at some point (either before or after DOJ reverses its position) simply grant review of question 1 in the private plaintiffs’ still-pending certiorari petition. There would be no reason for any further briefing. And, especially in the absence of a request by either the United States or Tennessee, there is similarly no reason to defer oral argument.