In Civitas Outlook, I discussed how the Skrmetti majority refused to even acknowledge the right of the people to govern based on morality. Instead, the Court hid behind technical and legal formalisms. Hadley Arkes states the issue far better than I ever could. Here is a snippet:
The truth that dares not speak its name here is that this wide array of gender-affirming therapies and surgeries is simply predicated on a falsehood. And yet those are the words that the conservative justices apparently see themselves as barred from speaking. Something in conservative jurisprudence holds them back from appealing to the inescapable and objective truth that lies at the heart of these cases. But without it, what were these accomplished jurists able to explain here? What was their ground of justification in overriding the judgments of those parents who were absorbed in the grief and confusion that seized their children? . . . .
The only "instruction" that would be relevant, Justice Thomas, is the unyielding fact that the child is in a state of confusion: he is not occupying some body apart from his own; his sex was not "assigned" at birth but marked inescapably in the organs of reproduction, in the arrangement of his body. His sex is immutable and printed plainly upon him.
Those were the words that Chief Justice Roberts and five colleagues could not move themselves to speak. Or they thought they were constrained from speaking by a jurisprudence that bars them from invoking truths beyond the text of the Constitution—even on the question of what is a human being, the bearer of rights, and when does that "human person" begin? . . .
Without those points in place, the judgment of the Court simply dissolves into a chain of ipse dixits. Why was it not legitimate for the parents of stricken youngsters to order the procedures that might relieve their "gender dysphoria?" Answer: The legislature of Tennessee did not think it a legitimate medical remedy to choose—even though the children and the parents did not share that judgment and were willing to take their risks. One judgment had to prevail, and it was the judgment backed by the power of the State. To put a high finish on it, that "power" represented the authority of a people to govern itself through elected representatives. But when the people speak through their representatives, and override the judgments of parents about their children, they are still obliged to say something more than "we have brute the power to impose this judgment through brute enactment of the law."
Hadley closes by comparing Chief Justice Roberts's decision to Justice Holmes's majority decision in Buck v. Bell.
