The Supreme Court’s Skrmetti ruling highlighted splits within the Republican-appointed supermajority. Justices Amy Coney Barrett, Clarence Thomas and Samuel Alito showed they’re ready to go even further against transgender rights than the majority went Wednesday when it upheld Tennessee’s ban on gender-affirming care for minors.
The decision also spotlighted a split, of sorts, within the court’s Democratic-appointed minority.
Justice Elena Kagan signed on to most of Justice Sonia Sotomayor’s dissent, which Justice Ketanji Brown Jackson fully joined. All three agreed that the majority was wrong to say the ban didn’t warrant harsher judicial scrutiny.
Yet, Kagan didn’t join the final section of Sotomayor’s dissent that went on to apply heightened scrutiny to the state law. Kagan would’ve sent the case back for further review under what she, Sotomayor and Jackson believed to be the correct constitutional standard.
The decision also spotlighted a split, of sorts, within the court’s Democratic-appointed minority.
Of course, what any of the dissenting justices would’ve done is irrelevant from a practical perspective. And to be sure, the difference in approach between Kagan and the other two Democratic appointees is relatively slight — after all, she joined much of Sotomayor’s dissent. If it were the first time that any such split (however slight) occurred, then it would hardly be worth mentioning.
But it’s only the latest instance of Sotomayor and Jackson going further than Kagan.
To take a starker recent example, Kagan was silent when Jackson and Sotomayor dissented from the court’s May 30 decision to side with the Trump administration on temporary legal protections for more than 500,000 immigrants. The majority let the government “do what it wants to do regardless, rendering constraints of law irrelevant and unleashing devastation in the process,” Jackson wrote, joined by Sotomayor. Those two justices were likewise the lone dissenters from the court’s June 2 refusal to hear an appeal alleging race discrimination. Again, it’s important not to draw any extreme conclusions from the different approaches taken within the court’s minority wing. While Kagan concluded her brief dissent Wednesday with the customary “I respectfully dissent” and Sotomayor simply wrote “I dissent,” noting that she was doing so “in sadness,” it’s unlikely that Kagan holds the majority’s work in any higher esteem. Indeed, while Kagan is arguably the most moderate of the three Democratic appointees, she has offered some of the strongest criticism of the majority in dissents throughout her career. That she picks her spots, as she did in issuing a more conservative dissent here, highlights how far off the rails the majority goes. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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