American Federalism and Equal Protection: Transsexual Children in Tennessee

On June 18, 2025, the U.S. Supreme Court ruled that a Tennessee law blocking transsexual children from being able to undergo puberty-blockers and gender-changing surgeries does not violate the Equal Protection clause of the U.S. Constitution. The court’s 6-3 opinion in U.S. v. Skrmetti was reported at the time to fall “largely along conservative-liberal lines.”[1] By this is mean ideological lines, both moral and political in nature. Such is grist for the mill for the broad judgment of an electorate, in what is otherwise known as popular sovereignty, which is superior to governmental sovereignty in a republic. Add in the fact that Tennessee is a member-state in a federal system in which the U.S. Supreme Court is on the federal level, and the broad judgment of the electorate takes on more significance to the extent that a federal system of an empire-scale union is in part supposed to take into account and protect interstate ideological differences that defy one-size-fits-all union-level policies. In other words, as cultural heterogeneity can be expected in going from state to state in an empire-scale union-of-states, efforts “from the top” to impose a single policy on every state do not allow the federation to breath. Political pressure could be expected to build over time if such a suffocating tendency eventuates, with the risk of dissolution increasing over time as if depreciation.

The full essay is at "American Federalism and Equal Protection."

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1. Josh Gerstein, “Supreme Court Upholds Tennessee’s Ban on Gender-Affirming Care for Minors,” Politico.com, June 18, 2025.

The Ministerial Exception: A Religious Right to Discriminate

In early 2012, the U.S. Supreme Court recognized, for the first time ever, a “ministerial exception” to employment discrimination laws, saying that churches and other religious groups must be free to choose and dismiss their leaders without government interference. In his written opinion, Chief Justice Roberts wrote, “The Establishment Clause [of the First Amendment to the U.S. Constitution] prevents the government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.” The wrench in the works here concerns the matter of delimiting the exception, given the inflation in what constitutes “ministerial” in terms of tasks.

The full essay is at "The Ministerial Exception."

Westboro Church's Anti-Gay and John Galliano's Anti-Semitic Opinions: The U.S. and E.U. Contrasted

The First Amendment protects free speech in the U.S. even if it is as hurtful as signs at a Marine funeral proclaiming "Thank God for Dead Soldiers," the U.S. Supreme Court ruled on March 2, 2011. The Westboro Baptist Church celebrated the death of Lance Cpl. Matthew Snyder in Iraq with signs such as "God Hates You," along with anti-gay messages at his funeral in Maryland in 2006. The late Marine's father sought damages for emotional distress. An appellate court had reversed the $5 million award granted by a district court, and the U.S. Supreme Court concurred with the appellate court's decision.  The Wall Street Journal notes that "Chief Justice Roberts nodded to the wrenching set of facts in the case, writing that 'the applicable legal term— 'emotional distress'—fails to capture fully the anguish Westboro's choice added to Mr. Snyder's already incalculable grief.'"  Crucially, however, the justices of the majority opinion would not fall to the temptation of acting on the emotion that naturally follows hearing of such harm.

Interestingly, on the same day as the American high court's decision, the designer John Galliano was being fired by Dior's CEO and investigated by the French police (for inciting racial hatred with anti-Semitic statement, which is illegal in at least the French and German states of the EU) for having made anti-Semitic insults to a couple with whom he was arguing late at night in a trendy bar (cafe) in Paris. There, the emotions got the best of both the designer and those who reacted to the video posted of his comments (albeit showing only a part of the argument). Perhaps a grieving father at his son's funeral reading signs that thank God for dead American soldiers can be likened to a Jewish couple at a bar hearing that they are lucky their grandparents or parents were not exterminated by the Nazis. It is difficult for the rest of us to know how either feels, or how to compare the pain.

In any case, that any human being would want to hurt another so much is truly a sad commentary on our species that otherwise vaunts itself as being in the image of God. Perhaps the question is what kind of God is being envisioned here. A vengeance is mine, sayth the Lord sort, which Nietzsche condemns in his writings as already discredited on account of having such a sordid divine attribute as vengeance?  The deed is done, according to Nietzsche.  So too, the pain has already been inflicted on the grieving parents and the Jewish couple.  The rest is merely mopping up. 

I contend that the impulsive reaction in Europe to the fashion designer's drunken anti-Semitic slurs is inferior to the majority opinion of the American court in the Westboro case because the tolerance of reason is more in keeping with a free society than is vengeance or retribution against a disliked opinion. 

The full essay is at "Anti-Gay and Anti-Semetic Statements."

Chief Justice John Roberts: Federalism Beyond Medicaid

“As chief justice, Roberts has been extremely careful with the institutional reputation of the court.” So says one of the lawyers who filed a brief to unhold Obama’s signature health-insurance law of 2012. Even so, the Roberts court had since 2005 cut back on campaign spending limits, gun control laws, procedural protections for criminal defendants, and the government’s authority to take race into account in college admissions decisions. The question of the reach of federal power, which is at the heart of the case on the health-insurance law, has been less salient, particularly relative to the Rehnquist court, according to Sri Srinivasan, principal deputy solicitor general for the U.S. Government at the time of the case.

The last time the U.S. Supreme Court had “ruled that a major piece of economic legislation was beyond Congressional power to regulate commerce was in 1936, when the court struck down minimum-wage and maximum-hour requirements in the coal industry.” Not long after he joined the U.S. Court of Appeals for the District of Columbia Circuit in 2003, Roberts argued unsuccessfully that the commerce clause should not be used by Congress to protect an endangered species—a toad—which “for reasons of its own, lives its entire life in California.” That is at least predominately not an economic objective, however, and the Morrison and Lopez cases in the Rehnquist court had dealt with non-economic objectives through the commerce clause.

                            John Roberts, Chief Justice of the U.S. Supreme Court                       Brendan Hoffman/NYT

Roberts’ general view regarding the commerce clause can be grasped from what he said at his confirmation hearing to be the Chief Justice. “It is a broad grant of power,” he said. Congress “has the authority to determine when issues affecting interstate commerce merit legislative response at the federal level.” If he meant that Congress has the definitive authority to assess whether a proposed Congressional law fits within the commerce clause, Roberts was putting Congress in a conflict of interest in terms of Congressional power.

Concerning the conflict of interest, the vested interest that Congress has in its own authority can be expected to weigh heavily in any self-determination concerning whether the commerce clause applies to a piece of legislation. Separation of powers does not forestall the Court from its responsibility to interpret the U.S. Constitutional through judicial review of Congressional laws. Even if it can be assumed that lawmakers who voted for Obama’s health-insurance law believed the commerce clause justifies the mandate, those lawmakers should not have the final say in judging the matter of their own use of power. Otherwise, there is little in the U.S. Constitution that can limit government, and this is what a constitution does for a living.

Fortunately, Roberts did not leave the matter of the health-insurance mandate to Congressional judgment in the oral arguments. Like some of the other justices, he expressed concern over the power of Congress to create commerce by forcing citizens to purchase a product even so that the manner of payment for healthcare could be better regulated. Such a concern was hardly new. His observation on the following afternoon concerning whether the Congressional expansion of Medicaid violates the states’ sovereignty, and thus federalism, is more stunning as a rebuke on Congressional power.

At issue in the oral arguments over Medicaid was whether the discretion of the Secretary of Health and Human Services to withhold all federal funding for Medicaid should a state government refuse the expansion financed 90 percent by the U.S. Government constitutes coercion. Justice Breyer suggested that such a threat was not rational and thus could not stand as viable discretion, even given the statute’s allowance. However, Justice Scalia pointed out that a statute itself need not be rational. Even if coercion is not involved in offering a gift of federal money, the threat to withhold what the state had been accustomed to receive could constitute coercion because the states had already become dependent on the federal trough.

The reality is, the Chief Justice said, the states have “since the New Deal” cheerfully accepted federal money. “It seems to me that they have compromised their status as independent sovereigns because they are so dependent on what the federal government has done.” He could well have ended his statement with “has given.”  Of course, the “gifts” of federal money have come with strings, and the expansion of Medicaid that was at issue in the oral arguments is no exception. Indeed, the expansion is backed up by an explicit threat of withholding the existing funding should a state government refuse. Beyond the question of whether either the strings or the threat constitute coercion, Justice Roberts’ broad constitutional observation of compromised independent sovereigns transcends the issue of Medicaid. American federalism itself has been compromised.

The state governments, which together constitute a system of government within the federation, have become like dependent vassals from decades of taking money from the General Government of the Union. States implementing federal statutes constitutes decentralized consolidation, not federalism. The federal model constructed in convention in 1787 requires two systems of government, each of which is sovereign in its own domains of power authorized by a constitutional document. A reduction to one sovereign is like collapsing one lung, and the person is compromised. What were to be sovereigns having residual power and able to serve as a check on overreaching by another sovereign, the federal government—one of limited powers—had been compromised by dependency. As salubrious as gift-giving is, if the practice makes others dependent over time, sickness impairing liberty is bound to result.

In a unanimous decision in 2011, Justice Kennedy wrote that limiting the power of the U.S. Government “protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions. By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake.” When a government in a federal system of public governance (e.g., the U.S. Government) is allowed to encroach on the domains of another system of government in the federation (e.g., the state governments), the precedent is established by the deed itself whereby the constitutional parchment is relegated or rendered wholly impotent in constraining government. As providing constraints on government is the job of a constitution, the constitutional basis of governance itself is compromised when one government in a federal system gets away with monopolizing the governmental sovereignty. Ultimately, the rule of law is compromised here by power aggrandizement—an addiction to power that operates in denial of constraints.

Regardless of whether the states were at fault in taking so much federal money or Congress had over-reached even in offering the gifts (gifts with strings), the federal system itself is out of balance, or sick, because the states are no longer governmentally sovereign. To prescribe a treatment, the medicinal focus must go beyond questions of fault to arrive at remedies oriented to restoring health to the system as a whole. That is to say, the focus must be on the overall system of federalism. Deferring to the patient (i.e., Congress), saying in effect, heal thyself, is a recipe for death. With the people largely unconscious, the media and popular politics myopic, and the presidency too often issue-oriented and partisan rather than oriented to the whole, Chief Justice John Roberts may hold the fate of the patient in his hands.

 

Sources:

Adam Liptak, “In Health Act, Roberts Given Signature Case,” The New York Times, March 12, 2012.
http://www.nytimes.com/2012/03/12/us/health-care-act-offers-roberts-a-signature-case.html?pagewanted=all

Adam Liptak, “On Day 3, Justices Weigh What-Ifs of Health Ruling,” The New York Times, March 29, 2012. http://www.nytimes.com/2012/03/29/us/justices-ask-if-health-law-is-viable-without-mandate.html?pagewanted=all

Adam Liptak, “Appealing to a Justice’s Notion of Liberty,” The New York Times, March 30, 2012. http://www.nytimes.com/2012/03/30/us/justice-anthony-m-kennedy-may-be-key-to-health-law-ruling.html

Juggling the Court and the Constitution: Chief Justice Roberts

Charles Krauthammer proffers a pithy summation of the U.S. Supreme Court Chief Justice’s majority opinion on Obama’s health-insurance law of 2010: “Law upheld, Supreme Court’s reputation for neutrality maintained. Commerce Clause contained, constitutional principle of enumerated powers reaffirmed.” Translation: the Court is not judicially activist, the 5-4 majority is not down party-lines, and federalism is protected. Essentially, John Roberts was able to dodge some bullets while doing what he needed to get done, philosophically. Turns out the guy is pretty smart after all. More than met the eye may have been behind President Bush’s decision to nominate him to be the Chief Justice.

Beyond judicial skill, the Chief Justice presides at the U.S. Supreme Court. He is thus oriented institutionally (i.e., as per his unique position there) to act in the Court’s institutional interest. In Krauthammer’s words, “Institutionally, he is chief justice and sees himself as uniquely entrusted with the custodianship of the Court’s legitimacy, reputation, and stature.” That is to say, John Roberts as Chief Justice is more than a justice. To put it crassly, he was interested in what the popular press was saying about the Court while it was deliberating, whereas at least one of the other justices (Thomas) made an effort specifically to avoid looking at the press. Roberts was right to have one eye on how the reputation of the Court might be affected, and Thomas was right to have both of his eyes diverted so as not to be improperly swayed by public opinion. This is not to say that Roberts laid himself open to such influence; there is a difference between popular opinion on the law that is “under the knife” and how the Court could suffer in the public square as a result of a ruling. It is perfectly legitimate for the Chief Justice to have one eye on the latter.

The distinction between being the president of the Court—essentially presiding over it as the steward of its long-term viability—and being a “mere” justice on the Court means that the Chief Justice can be expected to be a “different kind of animal” from that of a justice. From the vantage point of the latter, the Chief Justice may look like a politician, and in fact there may be some political considerations involved in safeguarding even a long-term reputation. The mix of politician and judge seems a bit like that of oil and water—only the latter being reckoned by the jurisprud as pure. Hence John Roberts’ behavior probably struck the other justices as odd at best. However, I suspect that the people “in the know” involved in the selection of the Chief Justice had been well-aware that John Roberts was distinct in ways that would differentiate him from the other justices.

 U.S. Chief Justice John Roberts

Roberts had to be both politician and justice in crafting a majority opinion that would both protect the Court and safeguard federalism (or what is left of it, anyway). I suspect that in this dual-role, Roberts had the rare view that perhaps only leaders in Congress and the President get from time to time—namely, that of the big picture, wherein the trees of one’s days give way to the contours of the forest, both constitutionally and historically. From this summit, the United States is seen as if from a distance measured in terms of oceans of time, and “doing the right thing” can take on added importance because the precariousness of the thing awash in a sea of history yet to be made. 

 Crucially, with the perspective comes a recognition that is apart from any pressing ideological, philosophical, political or even judicial interests. The United States is perceived as an entity that is itself in need of protection apart from whatever way the currents of the day happen to be going. This recognition is what really distinguishes presiding from partisanship. The latter is relativized in importance. With the height of the position comes power such as can shift the contours of a nation’s trajectory for decades, yet also at this height is a humbling sense of responsibility. Ironically, those of less power act with much less responsibility and thus are more dangerous. The distinction here can be thought of as that which exists between transformational and transactional leadership, though the typically organizational application of transformational leadership mislabels or belies its true home, which is societal and historic. 

I suspect that in deliberating on the case, John Roberts perceived that he had not only signficant power in terms of a major piece of legislation in deciding which "side" would be the majority, but also the overriding responsibility to protect the Court itself, and indeed the viability of the U.S. system of governance (including the federal institutions and federalism itself). He was in a position institutionally that called him to rise to the occasion in terms of safeguarding the system itself. 

Theoretically speaking, being systemic in its orientation, the presiding function is consistent with  systemic leadership. The broad vision of such leadership transcends the issues and pressures of the day. To be sure, the more immediate strategic factors cannot be totally ignored. In fact, juggling the enlightened leadership vision that is oriented to the presiding function with the more short-term or issue-oriented strategic or political elements is of value in high positions. This composite in turn can be referred to as strategic leadership. Rather than being a fault or evidence of personal frailty, managing this task is quite proper to the office of Chief Justice.

Source:

Charles Krauthammer, “Why RobertsDid it,” National Review Online, June 28, 2012.