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I am still enough of an institutionalist that it pains me to hear Supreme Court justices embarrassing themselves on the bench. So as I listened to Supreme Court Justice Samuel Alito engaging with Solicitor General Elizabeth Prelogar during oral argument in the case challenging Tennessee’s ban on the provision of gender-affirming drugs for minors earlier this month, I couldn’t help but cringe.
Shuffling through papers that he suggested were studies from various European countries that urged caution in the provision of puberty blockers to teens, Alito engaged in a “gotcha” line of questioning, insisting that Prelogar—the meticulous and unmatched litigator who has masterfully led the solicitor general’s office under President Joe Biden—had somehow misled the court about the accumulated scientific consensus on the effectiveness of puberty blockers for teens experiencing gender dysmorphia. His derisive tone and relentless questioning were typical for Alito and not what concerned me.
It was instead the contempt that Alito showed for the rules that govern the boundaries of litigation in our system. None of the studies he referenced as the basis of his questions to Prelogar had been part of the record in the case. None had been presented before the judge who tried the case. Justice Alito appeared to have, as the saying goes, “done his own research,” which he was now injecting into the case. And this embarrassed me.
It is not difficult for a civil rights lawyer to criticize the conservative-controlled court’s aggressive and transparent efforts to erase the legacy of the Warren court’s jurisprudence.
What has received too little attention is how this court’s headlong rush toward achieving its ideological aims is undermining the rules that govern our system of litigation in its wake.
Alito’s performance during the argument in U.S. v. Skrmetti was a case in point. For the Supreme Court—the highest appellate court—to engage in sustained and aggressive questioning of an attorney about factual data outside the record that was never subjected to the crucible of litigation is a violation of the most basic rules that define the roles and boundaries of our three-tiered federal court system. The record developed at trial in a case is bound by the evidence accepted and the findings made by the district court judge. Appellate judges can only dislodge the trial court’s factual findings if they are clearly erroneous—a high and mostly unreachable standard. In no instances can appellate courts add evidence to the record. They are limited to remanding a case back to a trial court to receive additional evidence. But that is not what Justice Alito was doing. And it wasn’t a one-off question by Alito.
Justice Alito’s reliance on the cautious approach followed recently by European countries in setting boundaries for the provision of gender-affirming care to minors was in and of itself a revealing and shameless reversal of his long-standing public and adamant insistence that “we should look to our own laws and traditions” rather than that of other countries in deciding questions related to individual rights. Chief Justice John Roberts, for his part, seemed unbothered by Justice Alito’s invocation of new laws in Britain restricting access to puberty blockers for minors. This is the same Chief Justice Roberts who in in 2005 famously disparaged the use of foreign law in U.S. judicial decision-making by saying that “looking at foreign law for support is like looking out over a crowd and picking out your friends. You will find them.” This time, Roberts’ concern was limited to one of judicial competence: “Should we follow the United Kingdom’s position from three years ago? Or the United Kingdom’s position now?”
For years civil rights litigators have accepted that the conservatives on this court will not be influenced by foreign law, or by policy practices of foreign nations. Is that still true? Should our briefs now make references to such sources? Or are they only relevant when they reinforce substantive positions already held by the conservative justices?
There were other moments that would mystify any experienced litigator, as when Justice Brett Kavanaugh asked with plaintive sincerity “who decides?”—seeming to earnestly question the boundaries of judicial power. Kavanaugh’s concern seemed to focus on the court’s role in deciding hotly contested issues, especially when there is a claim that the scientific community is split on the effects of a particular practice prohibited by law. Shouldn’t courts leave it to the states in those circumstances, Kavanaugh mused. “Who decides?” he asked, as though the entire legal framework of segregation and white supremacy the court struck down in Brown v. Board of Education and its progeny were not built upon the “science” of eugenics and the dangers of “race-mixing,” and as if the “state’s rights” movement itself was not advanced with full knowledge that “leaving it to the states” would mean the exclusion of politically powerless groups from the protections of full citizenship.
Still, “there’s no perfect way out,” Justice Kavanaugh whined, as though the entire project of actual judging was simply beyond him.
Chief Justice Roberts likewise seemed prepared to adopt a kind of false judicial modesty, deeming courts “bereft of expertise” and insisting that such a matter might be best left “to the people’s representatives.” God forbid this court is ever faced with an actual challenge to Brown.
Kavanaugh and the chief’s musings were so disturbing that it forced Justice Ketanji Brown Jackson to jump in and exclaim that she was “getting worried” by the line of questioning, which appeared to disregard our long-standing equal protection jurisprudence. First reminding the court that these arguments were the same as those made “back in the day, the ‘50s, ‘60s, with respect to racial classifications,” Justice Jackson noted that in Loving v. Virginia (the case that challenged state bans on interracial marriage), “those same kinds of scientific arguments were made.” Justice Jackson’s intervention hopefully reminded her colleagues that both Kavanaugh and the chief’s judicial modesty approach would have allowed states to render the marriages of at least two of the court’s justices null and void, and more importantly would as she stated “undermine the foundations of our bedrock equal protection cases.”
As Prelogar and counsel for the respondents Chase Strangio reminded the justices repeatedly, they had really only one thing to decide in Skrmetti—whether the Tennessee law was a sex-based classification that required higher scrutiny for review. This was not a difficult question as the Tennessee law explicitly made reference to “sex” in its very text. But repeatedly, the conservative justices seemed to want to wrestle with the policies behind the Tennessee law—matters that would appropriately be addressed in the first instance by the courts below on remand under the appropriate level of review. But it was clear that the conservative justices wanted more. They wanted to wade into an analysis of what they clearly regard as the harm of administering puberty blockers to minors.
Why do all these rejections of previous norms and rules of litigation matter, one might ask? What difference does it make how the court strips away rights and protections? What matters is that they do it, and that the lives of millions of Americans will be affected, surely? In my view, the way they do it matters because the conservative justices in their haste and stubborn determination are pulling down not only long-standing substantive protections for marginalized people, but also the standards that hold our system of litigation together.
Whether it is ignoring the trial record in a case when that record is unhelpful to the outcome the justices have decided (see SSFA v. Harvard and University of North Carolina); misreading the record to reinforce a claim of harm (Kennedy v. Bremerton—thank goodness for photographs!); deciding consequential cases in which it is evident that the named plaintiffs lack standing and in which therefore there is no true case or controversy (303 Creative LLC); jettisoning long-established precedent without clearly establishing the predicate of conditions the conservatives justices themselves have over many years identified as the proper foundation for abandoning stare decisis (Dobbs v. Jackson Women’s Health Organization; Loper Bright Enterprises v. Raimondo)—these are all instances in which how the court reached its decisions undermined the long-standing policies and practices that govern our system of litigation.
Litigation is dependent on a set of expectations that help lawyers identify when a case should be pursued, what constitutes an appropriate plaintiff, where a case should be filed, how much to allocate to the expensive costs of discovery and trial, what kind of evidence and testimony, including expert testimony, should be necessary, and later when an adverse opinion should be appealed and on what grounds.
But those judgments are difficult to make when the court has elevated its own outcome-focused agenda over adherence to an established and consistently applied set of litigation rules. Our entire profession should be concerned about the court’s increasingly cavalier treatment of the rules and long-standing practices that allow lawyers to effectively develop litigation strategy and anticipate outcomes, whether they are beneficiaries of the court’s excesses or not. The very concept of the rule of law is premised on an expectation of stability and consistency in how law is practiced, not just what laws will be applied and to whom.
We have yet to see what the court will do with the Skrmetti case. But if recent cases, and the oral argument, are anything to judge by, at least some of the conservative justices seem prepared to get to the outcome they have decided by any means necessary. More and more, the conservative majority’s approach has put the rules and norms that govern our system of litigation in the crosshairs as much as the substantive rights of marginalized groups.
