Back in August 2025, I speculated about why the Court granted certiorari in Chiles v. Salazar, yet denied review two years early in Tingely v. Ferguson, an identical case from the Ninth Circuit. I queried, "Perhaps the climate of the day on transgender issues, in the wake of Skrmetti, make this issue more palatable?"
On Tuesday, the Court decided Chiles. The 8-1 vote was quite lopsided. Only Justice Jackson was in dissent. She articulated a very cramped conception of free speech in the commercial context. Justices Kagan and Sotomayor joined the majority opinion in full. They even wrote that Jackson "reimagin[ed]—and in that way collaps[ed]—the well-settled distinction between viewpoint-based and other content-based speech restrictions." I think Kagan and Sotomayor were correct. Indeed, it was very significant they felt compelled to respond forcefully to Justice Jackson. There have been press reports of how Justice Kagan and Sotomayor are unhappy with Justice Jackson. This opinion may represent those tensions boiling over.
Given that this case was so straightforward, why didn't the Court grant Tingley in 2023. The legal issues are the same. There has been no intervening free speech precedent.
