But the main point there for a legally educated audience is that we shouldn't be comparing Skrmetti to past equal protection victories, we should be comparing it to past equal protection losses. This provides a better understanding for how Skrmetti could go so badly before the court that recently decided Bostock and also a better idea of which other equal protection claims are at risk going forward.
Our focus on the reasoning of controlling precedent (as was drilled into us in law school, I do understand we don't get it out of nowhere) makes us reluctant to pull wisdom from Plessy or Baker v Nelson, but that's where we have to look when we want to learn why things fail. When we think that claims **only** fail because they can't pass a particular prong of a particular test, we are choosing not to see the human work -- and human bias -- in the act of judging.
She was spot on, and gave her side the best chance. It's just clear that the court does not consider itself bound by any precedent (even its own) & wants to wade in to the culture war. One of the things we can do is continue to point out that the institution has lost its legitimacy. -A
Keeping in mind that nothing the Roberts court does should surprise anyone, I do wonder if the court might reasonably send the law back to the appellate court for intermediate scrutiny. That was the ask, after all.
If they really DO say, "naw, dawg, routine scrutiny is fine", that's a floodgate opening early in Trump 2.0. If they send it back, OF COURSE the case will be appealed, no matter what the appellate outcome is, but the least ideological right-wing justices might prefer to kick this can down the road.
I was interested in understanding the legal questions in this lawsuit and listened to your podcast after searching podcasts for “skrmetti”. It was a helpful listen but you got a lot wrong in how you presented a lot of the medical information. Perhaps your show is just for lawyers but if its also for laypeople, I think it might be helpful to challenge some of the underlying assumptions you presented as facts of the case; it would certainly make for a more interesting legal discussion and may make you and your listeners less distressed about the anticipated outcome.
It's always interesting to hear from folks who long for a return to the Dark Ages when religion set the standard for all facets of daily life, and the average lifespan was <30 years of age.
When lawyers and religious zealots decide they know more about medical matters than do doctors, those who can least protect themselves suffer the most.
I had to read this comment a couple times to figure out if you were demeaning or defending me because their is an argument to be made that this field of medicine is an (un)ethical outlier in terms of evidence-based practice due to ideological capture (i.e. tits policy and practices are aligned with those of the Dark Ages of medicine).
And for the record, i am neither a lawyer nor a religious zealot. I am a an life-long agnostic coastal progressive and a former medical social worker (adolescent specialist) with an interest in the law/legal questions in this case.
You are free to go straight to insults. I have made it a practice to choose humility and curiosity. As such, responses like yours, from someone who seems liberal and progressive (because you follow this podcast), surprise me and i am curious about why a person who stake such values would feel so comfortable - not just rejecting an idea just because it doesn’t align with their tribes dogma but goes straight to insults without any engagement. Why take any time at all if not for moral certainty and smugness (which align with more classic right wing ideological attributes)? Also makes me feel embarrassed when the accusations about left wing elitism play out.
I’m amazed a state can claim to have a legitimate interest simply by saying “we have a legitimate interest” without having to explain what that interest is.
You know, it seems weird in a vacuum, but consider how this plays out in ordinary life.
If your county council decides to make the two-way street in front of your house one-way, and that inconveniences you, we don't want to turn that into an equal protection case. We want the government to be able to say "yeah, we have a legitimate interest in controlling traffic to make things less annoying for our citizens, and our planning department thinks the best way is to make this road one-way, even though we're sorry to inconvenience this one guy."
And that SHOULD be the end of it in that scenario. Now, if you find out the council is making all the roads one-way in black neighborhoods, that's a different matter. But in general, no, we don't want courts second-guessing routine legislation.
Our point is "banning all gender-affirming care" ISN'T "routine legislation." -A
I know. It brought me no joy to write it, but we held out a sliver of hope on the show that perhaps there would be a weird Gorsuch/Roberts bloc that would hold, or perhaps Justice Barrett wouldn't be the cardboard cutout on gay rights issues that people paint her as, or...
And none of that came to pass. So I think we need to be forewarned and forearmed about what's going to happen.
I've been thinking about yesterday's oral arguments all day tbh...do you think the greater long con/ end-game for this case and similar ones is the elimination of sex-based discrimination protections altogether?
At the risk of crass self-promotion, I started a comment here that ended up way too long to be a simple comment, so I published it at Pervert Justice.
You can find the whole thing here:
https://pervertjustice.substack.com/p/what-the-media-wont-tell-you-about
But the main point there for a legally educated audience is that we shouldn't be comparing Skrmetti to past equal protection victories, we should be comparing it to past equal protection losses. This provides a better understanding for how Skrmetti could go so badly before the court that recently decided Bostock and also a better idea of which other equal protection claims are at risk going forward.
Our focus on the reasoning of controlling precedent (as was drilled into us in law school, I do understand we don't get it out of nowhere) makes us reluctant to pull wisdom from Plessy or Baker v Nelson, but that's where we have to look when we want to learn why things fail. When we think that claims **only** fail because they can't pass a particular prong of a particular test, we are choosing not to see the human work -- and human bias -- in the act of judging.
Very interesting - I think you might like tomorrow's show; we touch on some similar themes. Thanks for sharing! -A
I listened to most of the argument. Thank you for this clear summary. I often fail to really see how badly and argument is going.
But, Damn, Preloger is good.
She was spot on, and gave her side the best chance. It's just clear that the court does not consider itself bound by any precedent (even its own) & wants to wade in to the culture war. One of the things we can do is continue to point out that the institution has lost its legitimacy. -A
Gorsuch was so uncharacteristically silent that I briefly considered calling in a wellness check. I assumed he'd had a stroke.
Keeping in mind that nothing the Roberts court does should surprise anyone, I do wonder if the court might reasonably send the law back to the appellate court for intermediate scrutiny. That was the ask, after all.
If they really DO say, "naw, dawg, routine scrutiny is fine", that's a floodgate opening early in Trump 2.0. If they send it back, OF COURSE the case will be appealed, no matter what the appellate outcome is, but the least ideological right-wing justices might prefer to kick this can down the road.
Goal: the government defines all ‘legitimate medical treatments’ - for everyone, not just kids, but mostly women and kids.
In principle, i don’t want medicine legislated, but there does need to be some recourse/protections for unethical practices.
Is the dismissive, patronizing use of the term “purported” in the proposed law a common legal usage?
I was interested in understanding the legal questions in this lawsuit and listened to your podcast after searching podcasts for “skrmetti”. It was a helpful listen but you got a lot wrong in how you presented a lot of the medical information. Perhaps your show is just for lawyers but if its also for laypeople, I think it might be helpful to challenge some of the underlying assumptions you presented as facts of the case; it would certainly make for a more interesting legal discussion and may make you and your listeners less distressed about the anticipated outcome.
You are a laugh riot, you are.
Compelling argument.
It's always interesting to hear from folks who long for a return to the Dark Ages when religion set the standard for all facets of daily life, and the average lifespan was <30 years of age.
When lawyers and religious zealots decide they know more about medical matters than do doctors, those who can least protect themselves suffer the most.
tldr; GFY
I had to read this comment a couple times to figure out if you were demeaning or defending me because their is an argument to be made that this field of medicine is an (un)ethical outlier in terms of evidence-based practice due to ideological capture (i.e. tits policy and practices are aligned with those of the Dark Ages of medicine).
And for the record, i am neither a lawyer nor a religious zealot. I am a an life-long agnostic coastal progressive and a former medical social worker (adolescent specialist) with an interest in the law/legal questions in this case.
<eye-roll>
Another compelling argument.
I craft my responses to accomodate the competence of the end recipient.
You are free to go straight to insults. I have made it a practice to choose humility and curiosity. As such, responses like yours, from someone who seems liberal and progressive (because you follow this podcast), surprise me and i am curious about why a person who stake such values would feel so comfortable - not just rejecting an idea just because it doesn’t align with their tribes dogma but goes straight to insults without any engagement. Why take any time at all if not for moral certainty and smugness (which align with more classic right wing ideological attributes)? Also makes me feel embarrassed when the accusations about left wing elitism play out.
I’m amazed a state can claim to have a legitimate interest simply by saying “we have a legitimate interest” without having to explain what that interest is.
You know, it seems weird in a vacuum, but consider how this plays out in ordinary life.
If your county council decides to make the two-way street in front of your house one-way, and that inconveniences you, we don't want to turn that into an equal protection case. We want the government to be able to say "yeah, we have a legitimate interest in controlling traffic to make things less annoying for our citizens, and our planning department thinks the best way is to make this road one-way, even though we're sorry to inconvenience this one guy."
And that SHOULD be the end of it in that scenario. Now, if you find out the council is making all the roads one-way in black neighborhoods, that's a different matter. But in general, no, we don't want courts second-guessing routine legislation.
Our point is "banning all gender-affirming care" ISN'T "routine legislation." -A
You should read my current Pervert Justice post. What you're talking about is the norm rather than the exception.
Cold comfort indeed 💔
I know. It brought me no joy to write it, but we held out a sliver of hope on the show that perhaps there would be a weird Gorsuch/Roberts bloc that would hold, or perhaps Justice Barrett wouldn't be the cardboard cutout on gay rights issues that people paint her as, or...
And none of that came to pass. So I think we need to be forewarned and forearmed about what's going to happen.
Sorry. -A
I've been thinking about yesterday's oral arguments all day tbh...do you think the greater long con/ end-game for this case and similar ones is the elimination of sex-based discrimination protections altogether?