Susan Shelley: Scrutinizing all the scrutiny of SCOTUS

On Wednesday, the U.S. Supreme Court upheld Tennessee’s Senate Bill 1, a law that bans healthcare providers from “prescribing, administering, or dispensing” medical treatments for minors if the purpose is to enable the child to identify or live as “a purported identity inconsistent with the minor’s biological sex.”

Confusingly, this is the actual holding by the 6-3 majority in the case, United States v. Skrmetti: “Tennessee’s law prohibiting certain medical treatments for transgender minors is not subject to heightened scrutiny under the Equal Protection Clause of the Fourteenth Amendment and satisfies rational basis review.”

You won’t find the words “heightened scrutiny” or “rational basis” in the Constitution, not to mention “quasi-suspect class,” “intermediate scrutiny” and “heightened review,” all terms that were key to the court’s decision.

What do these phrases mean, where did they come from, and why are they determining public policy in the United States?

The answer may surprise you.

Certain types of discrimination are unconstitutional in America because the Supreme Court, over many decades, effectively amended the Constitution in an unconstitutional manner. The justices filled in the blanks caused by the fact that the Constitution has never been amended to ban discrimination on the basis of race or sex.

We have “landmark decisions” where we should have had constitutional amendments.

For example, in 1954, the Supreme Court said in Brown v. Board of Education that school segregation violated the Equal Protection Clause of the Fourteenth Amendment, which says a state may not “deny to any person within its jurisdiction the equal protection of the laws.”

The only problem was that every legal precedent going back to the ratification of the Fourteenth Amendment in 1868 said the Equal Protection Clause did not mean racial segregation was prohibited.

Chief Justice Earl Warren, writing for a unanimous court, declared the history of the Fourteenth Amendment “inconclusive,” though the historical record is more than conclusive. At the time Congress debated the Fourteenth Amendment, the Senate’s own gallery was racially segregated. The public schools in Washington, D.C., were racially segregated and continued to be. The Congress that wrote the Fourteenth Amendment didn’t outlaw segregation. Far from it.

In 1866, Rep. Thaddeus Stevens proposed this sentence for the Fourteenth Amendment: “All laws, state or national, shall operate impartially and equally on all persons without regard to color or race.” It was rejected.

In the 1954 Brown decision, Chief Justice Warren wrote that the court “cannot turn the clock back to 1868,” and must consider education’s “present place in American life.” He cited works of social science with titles such as “Effect of Prejudice and Discrimination on Personality Development.” Footnote 11 in the decision is a bibliography of surveys and studies on “psychological effects” of segregation. The court’s new rules began to take shape.

In another landmark case, Loving v. Virginia in 1967, the Supreme Court struck down a state law that banned interracial marriage. Again, Chief Justice Warren wrote for a unanimous court that the history of the Fourteenth Amendment was “inconclusive.” He declared that “the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination.”

There’s a lot of subjective judgment in the “consideration” of “classifications” and the evaluation of harm from the “effects of prejudice.” You can see an example of it today in the court’s decision in the Tennessee case.

The issue addressed in United States v. Skrmetti was whether there was a “suspect” classification sufficient to justify a level of “scrutiny” applied by the court that would require the state to show a “compelling” reason for the law, or if a “rational” reason was enough. The majority opinion written by Chief Justice John Roberts held that the law “is not subject to heightened scrutiny because it does not classify on any bases that warrant heightened review.” Roberts’ opinion was joined by Justices Thomas, Gorsuch, Kavanaugh and Barrett. Justice Alito joined in part.

As if to illustrate how subjective this entire area of law has become, Justice Thomas filed a concurring opinion, Justice Barrett filed a concurring opinion in which Justice Thomas joined, Justice Alito filed an opinion concurring in part, Justice Sotomayor filed a dissenting opinion in which Justice Jackson joined in full but Justice Kagan joined only in part, and Justice Kagan filed a separate dissenting opinion.

That’s a lot of disagreement, and the case was only two votes from turning out the opposite way.

Just as the Constitution has never been amended to ban discrimination on the basis of race, it has never been amended to ban discrimination on the basis of sex. The Equal Rights Amendment that was proposed in 1972 said this: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.”

Rights spelled out in a constitutional amendment are more secure than rights that emerge from landmark cases. Because of the Nineteenth Amendment, a woman’s right to vote is secure in all 50 states, no matter who is elected president or which judges are appointed to the federal bench.

Most Americans don’t think about amending the Constitution, or think it’s too risky. But it’s the constitutional way. Even if you like the outcome of a controversial Supreme Court case, what’s really risky is having major policy decisions rest on the subjective views of judges building cryptic tiers of “scrutiny.”

Write Susan@SusanShelley.com and follow her on X @Susan_Shelley