The Sound of Silence in Skrmetti

About twenty minutes after oral arguments wrapped in Skrmetti, I wrote a quick summary of how I expected Justice Kagan to snatch a victory from the jaws of defeat. Here, I will offer further insights on Justice Gorsuch. Though he didn’t say anything on the transcript, Loper Bright taught us about the sound of silence.

I asked a few people who were in the Court about Justice Gorsuch’s demeanor. One said, “He just sat there. Expressionless.” A second said his demeanor was “I’m sitting back in my chair and not planning to ask anything or reveal anything of my thinking about this case.”

But a third offered this useful observation:

I was in the courtroom for the argument. You may be interested to know that after the second petitioners’ lawyer finished, Gorsuch and Barrett had a very animated conversation in whispers. Several rounds of talking into each other’s ears.

I don’t know what they said, but they both seemed to agree about something. Smiles all around, nodding of heads, and some gestures that signify “you get it” coupled with that.

Maybe Barrett and Gorsuch were exchanging recipes for turkey chili and turmeric steak rub. But I think it more likely they were talking about the case. Now was their agreement about applying rational basis scrutiny or applying heightened scrutiny? I lean towards the former, but I cannot be sure. To paraphrase Justice Alito in Obergefell, I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their chambers, but if they repeat those views in public, they will risk being labeled as bigots.

Finally, a colleague who was not in the Court offered this recollection:

In my experience, in cases where the opposing parties are an individual vs. the government, Justice Gorsuch’s total silence at oral argument means a vote for the government. I don’t have the capability of doing some big study to prove this, but you probably do. In any event, if I’m right this means that Gorsuch will vote to uphold the law.

This is something that can be tested empirically. Ahem, Adam Feldman.

Speaking of Justice Alito, I think he enjoyed making this statement a bit too much:

So my question is: Why should we look to Bostock here? Bostock involved the interpretation of particular language in a particular statute. And this is not a question of statutory interpretation. It’s a question of the application of the Equal Protection Clause of the Fourteenth Amendment, and the Court has addressed the — the question of how an equal protection claim should be analyzed when the law in question treats a medical condition or procedure differently based on a characteristic that is associated with just one sex. And that was Geduldig in 1974, reaffirmed in Dobbs in 2022. And neither Bostock nor Dobbs saw any connection between the Bostock reasoning and the Geduldig/Dobbs standard. Bostock did not mention Geduldig, and Dobbs did not mention Bostock. So why should we — we look to this Bostock-type reasoning here?

I think the Trump Administration lets this case ride, and it goes to a final judgment.

The post The Sound of Silence in Skrmetti appeared first on Reason.com.