Skrmetti and Chief Roberts's Immoderate Middle Ground Jurisprudence

The Supreme Court’s ruling in United States v. Skrmetti, holding Tennessee’s ban on gender-affirming” care for minors to be an appropriate exercise of the state’s reasoned democratic judgment wasn’t terribly controversial. Indeed, it could be called predictable insofar as the justices had signaled during December’s oral arguments both their distrust of the purported science underlying gender transition procedures for minors and their wariness of interference with the democratic process in Tennessee. But the Skrmetti court eschewed an opportunity to clarify whether equal protection challenges brought by transgender individuals would demand heightened scrutiny review, leaving open a significant—if not inevitable—avenue of legal challenge to laws regulating conduct based on gender identity. This was due in large part to the majority opinion of Chief Justice John Roberts, the lone architect of the Court’s middle-way jurisprudence.

Concerned with institutional credibility and acutely aware of public criticism (most recently rebuking President Trump over his call to impeach certain judges), Roberts’s intractable moderation seems proportionately related to the level of political controversy attending any one case. And so, in Skrmetti, arguably the highest-profile case of October’s term, the notion of moving beyond discussions of legislative discretion and the democratic process to designations of transgender claimants as a new suspect class for purposes of Equal Protection Clause analysis may have given the Chief heartburn.  

As Chief Justice, Roberts has the power to assign authorship of opinions when he is in the majority. While he regularly keeps the pen for himself in cases of greatest national import (see Trump v. United States), Roberts’s assignment power allows him to restrain, expand, or otherwise influence the court’s holding.

In 2012, the Chief Justice confounded conservatives with his opinion for a divided majority in National Federation of Independent Business v. Sebelius. While only four of the liberal Justices found the Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance constitutional under the Commerce Clause, Chief Justice Roberts adopted a saving construction of the individual mandate, instead finding it to be a valid exercise of Congressional taxing authority. In 2020, Roberts was the swing vote in June Medical Services v. Russo, siding again with the four liberals, but concurring only in the judgment that requiring doctors performing abortions in Louisiana to have local hospital admitting privileges was an unconstitutional burden on access to abortion. In 2022’s Dobbs v. Jackson Women’s Health the Chief voted with the conservatives but wrote a solo opinion, concurring only in the judgment and urging an incrementalist approach that would have avoided overruling Roe v. Wade while simultaneously allowing Mississippi to impose a near ban on abortions after 15 weeks of pregnancy.

Roberts’s moderation was more than evident in Skrmetti. In his majority opinion, he wrote that Tennessee’s law drew distinctions based on age and medical diagnosis only, and was therefore subject to rational basis review. Hewing closely to Geduldig v. Aiello, Roberts opined also that there was a “lack of identity” between transgender status and the medical diagnoses excluded in SB1, and that the law therefore did not discriminate on the basis of gender identity. Taking a page from the Dobbs playbook, the Chief wrote that controversial policy issues were best left to the people, their elected representatives, and the democratic process. This was especially so, he wrote (citing Gonzales v. Carhart), in areas of medical or scientific uncertainty. In addition to all this, Roberts conceded the use of the Left’s preferred and unnatural semantics on gender identity, noting in a footnote: “We use ‘transgender boy’ to refer to an individual whose biological sex is female but who identifies as male, and ‘transgender girl’ to refer to an individual whose biological sex is male but who identifies as female.”

Despite that ideological concession on gender identity and the Court’s cabined analysis, Skrmetti’s modest opinion left much to be desired by the justices of both the Court’s liberal and conservative wings.

The opinion prompted Justice Sonia Sotomayor (joined by Justices Jackson and Kagan) to lament that “By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims.” Applying Bostock v. Clayton County’s reasoning, Sotomayor argued that SB1 discriminated on the basis of sex because it intentionally penalized members of one sex for traits and actions that it tolerates in another. With the liberal wing’s intransigence on full display in Skrmetti, one wonders whether Roberts’s anchored moderation and judicial restraint are more akin to judicial passivism.

In 2025, is there truly any consensus to be built?

Three of the justices identified Roberts’s missed opportunity to clarify equal protection clause jurisprudence. Justices Thomas, Alito, and Barrett authored or signed on to opinions arguing that Tennessee’s law drew distinctions based on transgender status but that those distinctions were immaterial as “transgender status” was not a suspect or quasi-suspect class. Justice Barrett, joined by Justice Thomas, wrote that “Because the Court concludes that Tennessee’s Senate Bill 1 does not classify on the basis of transgender status, it does not resolve whether transgender status constitutes a suspect class…I write separately to explain why, in my view, it does not.”

She continued that “Beyond the treatment of gender dysphoria, transgender status implicates several other areas of legitimate regulatory policy—ranging from access to restrooms to eligibility for boys’ and girls’ sports teams.” Joined by Justice Thomas, Barrett added that if laws singling out transgender people required heightened constitutional scrutiny, “then the courts will inevitably be in the business of closely scrutinizing legislative choices in all these domains.” Barrett also noted that the distinction between private animus and de jure discrimination was critical, and that the singular focus on de jure class discrimination was both judicially practical and theoretically sound. Focusing the test on de jure state action, she wrote, would provide much needed clarity on whether or not a class was politically powerless—one of the methods the Court used in United States v. Carolene Products to determine whether a group was part of a “discreet and insular minority” and in need of suspect class status.

Justice Alito, too, agreed with the majority that the law did not distinguish on the basis of sex, but clarified as Justice Barrett did that if the law drew distinctions based on transgender status, that should not change the court’s analysis because “neither transgender status nor gender identity should be treated as a suspect or ‘quasi-suspect’ class.” Focusing on the fact that transgender status was not immutable (perhaps another predictable outcome, given Alito’s colloquy with ACLU transgender attorney Chase Strangio on the issue during oral arguments), Alito urged that the “important question has divided the Courts of Appeals, and if we do not confront it now, we will almost certainly be required to do so very soon.”

Tackling the equal protection clause analysis head-on would have required Roberts to honestly assess the Court’s historical unwillingness to create additional suspect classes for which to impute de facto constitutional protection. As Barrett wrote: “The test [for recognition of suspect classes] is strict, as evidenced by the failure of even vulnerable groups to satisfy it: We have held that the mentally disabled, the elderly, and the poor are not suspect classes.”

Following the gaping hole in Equal Protection analysis in Skrmetti, activist litigators are already pushing through. Karen Loewy, senior counsel and director of Lambda Legal’s constitutional law practice, told reporters recently that organizations challenging state bans to “gender affirming” care have other legal options available to them. She noted that “The Supreme Court did not endorse the entirety of the lower court’s ruling; it did not mandate or even greenlight other bans on gender-affirming medical care, even for young people, or other forms of discrimination.” She continued, “It really is about how it viewed Tennessee’s in this specific way, and left us plenty of tools to fight other bans on health care and other discriminatory actions that target transgender people, including other equal protection arguments about transgender status discrimination, about the animus-based targeting of trans people.”

Was this the opportunism that Alito, Barrett, and Thomas sought to prevent?

Roberts’s commitment to middle-way thinking has yielded some of the modern court’s most significant opinions. But as some scholars have called him, “a committed incrementalist,” his opinions, like those in Skrmetti, will always leave conservatives wanting more. Whether he is interested in institutional legitimacy or attuned to public criticisms of partisanship, one thing is clear from the Chief’s opinions in Skrmetti and beyond: more challenges will come. Indeed, some already have.

Still up for consideration at the Court are the pending cert petitions in Crouch v. Anderson and Folwell v. Kadel. Both cases involve challenges to state health insurance programs excluding sex-change surgeries from coverage. And in both, petitioners argue the programs violate the Equal Protection Clause by discriminating on the basis of “transgender status,” which is, they argue, a class deserving of heightened scrutiny.

Middle way notwithstanding.

Sarah Parshall Perry is Vice President and Legal Fellow at Defending Education.