Chris Geidner Doesn’t Think We Should Pretend to Know Where Justice Barrett Stands
An interview with Chris Geidner of Law Dork about what he thinks happened at oral arguments in US vs Skrmetti and whether journalists should smooth the way for the high court to uphold bans on gender-affirming care for youth.
photo by Piper Bly
by Assigned Media
Chris Geidner, who writes on Substack as Law Dork, is one of the top legal journalists currently covering the Supreme Court. After oral arguments in the gender-affirming care ban case, U.S. v. Skrmetti, he spoke with Assigned Media about what he went in looking for, what he thinks he heard, and why he doesn’t think reporters should be declaring the case lost for trans youth and their families just yet.
Assigned Media: One of our reporters was present at oral arguments, but it was our very first time. You’re an old SCOTUS hand. So, what were you looking for? What were you listening for? And, did you hear it?
Chris Geidner: The questions going in were, in light of Bostock, where were [Supreme Court Justices] John Roberts and Neil Gorsuch?
AM: Because, in Bostock vs Clayton County, they both voted that anti-trans discrimination was actually a kind of discrimination based on sex, right?
Geidner: Yes. So, going into the day, that’s where I was looking. And, the sort of side question was, how much were [Justices] Kagan and Sotomayor really fighting for this? Because, as you know, Bostock was the sexual orientation case, it wasn’t the gender identity case. The gender identity aspect of that wasn’t a huge part of the discussion. This was a stand-alone trans case, and I was interested in seeing how Sotomayor and Kagan, who are not young, were going to handle this.
I was watching to see if Sotomayor and Kagan were fighting, and if they did, clearly, get it. But we got in there yesterday and Sotomayor was going to the actual harms of the individual plaintiffs, and then certainly Justice Kagan was showing comfort with some of the terminology, talking about trans young people, and cis young people, and that was a very important thing.
And then, we did see the other side too, which was the opposite. And, in some ways it was better than it could have been?
AM: How do you think it could have been worse?
Geidner: Well, I mean, [Justice] Alito got about as bad as it could have gotten. But I don’t think [Justice] Thomas was nearly as bad as it could have gotten. There were very bad legal and substantive things to what we got from [Justice] Kavanaugh and the Chief Justice yesterday, but I do think it’s important that neither were, or certainly Roberts, were not based in anti-trans stereotypes.
AM: It’s… something.
Geidner: Kavanaugh approached it a little bit when he started equating harms in one of his questions towards the end, to Chase [Strangio of the A. C. L. U.] where he basically said if we’re gonna have harms on both sides no matter what we choose, speaking about detransitioners as someone is gonna be harmed, and I think Chase and his response was, well, they’re not equal harms. This one is a very very very small group.
AM: How about Justice Ketanji Brown Jackson? It seemed like a really interesting and powerful moment, when she spoke about the similarities with Loving vs Virginia [which ruled bans on interracial marriage were unconstitutional discrimination based on race despite the fact that black and white people were equally banned from marrying each other]?
Geidner: I think, well, bluntly the question when raising a Loving analogy, or any race-based analogy is, well, is it actually similar. And, for me, as the cis white gay guy, am I going to be the one to make a Loving analogy? Probably not. So, I do think it was an example of why it was important that a Justice Jackson is on the bench, that you can have a black woman making a Loving analogy that is going to come across very differently than if Kagan had said the same exact words.
AM: What was going on with Justice Amy Barrett?
Geidner: I think that Barrett was interesting. I think that she was skeptical, I don’t think that it’s an area that she’s delved into deeply…
AM: She seemed surprised to learn that there were once laws against crossdressing. And that seemed, also, perhaps to be news to the Solicitor General, Elizabeth Prelogar.
Geidner: She didn’t have an answer to that question about de jure discrimination. And that’s why I think it was important that Chase was there. But, I think, in terms of Barrett what I saw was somebody who was taking the case on its terms. And, that’s what I wrote yesterday, that her statements did not look like Alito’s, did not look like Thomas’, did not even look like Kavanaugh and Roberts. She did not have a solid position on anything, she was engaging on all areas, including on the question of parental rights, which wasn’t part of this case.
AM: I want to change gears and ask you about the difference between Prelogar and Strangio, who seemed extremely comfortable and poised and well-prepared, and Matthew Rice [the Solicitor General of Tennessee] who kinda seemed like he almost fell apart under questioning by Kagan and Sotomayor?
Geidner: I mean, Rice did poorly. That’s the beginning, middle, and end. I think the time he was at the podium alone showed that’s where it went.
It’s normally nearly even time, for both sides. One would have expected Rice’s time to go, at a minimum, for an hour. And it was 30 minutes.
But the truth was, there wasn’t much more to argue. Nobody thinks that these laws pass intermediate scrutiny.
AM: OK, so, wait. Backing up a second, there. It did seem as though the justices, especially the conservative justices, were asking Strangio and Prelogar to defend the medical evidence, as if they were trying to decide what they thought on intermediate scrutiny, maybe?
Geidner: Well, they could decide. The justices can do what they want.
They’ve got the case in front of them, they’ve got the sixth circuit opinion, they can affirm it, they can vacate it, they can do the thing that Chase and Prelogar are asking for, to set the level of scrutiny, simply set the level of scrutiny and send it back.
The court has everything. So, they could look at the record and decide intermediate scrutiny applies and then apply it, they can even take things that are out of the record, like Alito was in bringing in things like Sweden and the Cass Review from the Fox News chyron that’s running in his brain.
Or, if it’s rational basis, they could just affirm the Sixth Circuit in saying that it passed rational basis or, as Chase and the A. C. L. U. are arguing, even if it’s rational basis you still have a responsibility not to stop there. You don’t get to get away with saying Jeff Sutton said this at the Sixth Circuit so we affirm, Chase was saying, you’re gonna have to do the work, again.
AM: Last question. It feels like everyone knows, because it’s in most of the biggest newspapers, that this case is not expected to be a win for the trans youth, or for their families, or for the A. C. L. U. So, could you just take me through, uh, why is that what everyone knows?
Geidner: Well, I mean, I’ll take you through why that’s not what I wrote.
There’s two things. First, I don’t think that it’s reporters’ jobs to do the dirty work of the justices. If they’re not willing to say things reporters shouldn’t pave the road for them to have an easier path, and I do think that’s what a lot of people did yesterday.
The bottom line is, for any Supreme Court case, you need to get to five. You need five votes. So what are the five votes, and for what reasoning? Kavanaugh and Roberts said something very different than Alito… and Thomas? So for those reporters who are saying it’s so obvious, I want you to point to what Barrett said yesterday that leads them to that absolute conclusion.
And, I don’t think there is something that leads to that. So I think that the bottom line is that what a lot of people said was that this is a conservative court and they seemed to be very willing to defer to state legislative judgements, I think that Gorsuch’s silence confused people, but equating silence with the idea that he would not be joining the Democratic appointees in an opinion isn’t what a journalist should do.