When it comes to oral arguments in court, it can sometimes be difficult to predict how judges will rule based on their questions to the lawyers. But what about when a judge is silent?
That’s the case with Justice Neil Gorsuch, who was quiet during Wednesday’s high court hearing in United States v. Skrmetti. His colleagues were busy quizzing the lawyers in a challenge to a Tennessee law banning gender-affirming care for minors. The case has national implications for other states with similar laws and for transgender rights more broadly.
Heading into the hearing, the Trump appointee was a justice to watch because he authored a 2020 ruling protecting transgender rights in the workplace. The legal issue in this case isn’t exactly the same, but there’s some overlap, generally speaking.
Yet, the queries the rest of the justices posed suggested that a majority of the court might be on the state’s side regardless of what Gorsuch does. NBC News reported:
It did not appear based on a lengthy oral argument that conservative justices believed that the law constitutes a form of sex discrimination that would mean courts have to give it close scrutiny. The court’s three liberal justices all appeared to view the law as classifying people by sex.
So if it’s only the three Democratic appointees who vote against the state, then Gorsuch’s vote wouldn’t be needed to make a majority. But if there’s some wiggle room on the six-justice Republican-appointed side, then the thoughts behind his silence could matter more. A decision in the case is expected by the summer. 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 Donald Trump’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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