I really, really wanted to like Justice Barrett's concurrence in Skrmetti. Indeed, my initial reaction was optimistic. But after spending forty-eight hours with the opinion, Skrmetti reinforced all of my concerns about Justice Barrett: she is still a scholar trying to approach the law like a law review article, and advance theories without awareness of the practical consequences. To rebut the predictable response, Justice Thomas erred by joining this opinion. Maybe he did so to give his embattled colleague some cover. (I speculated CT did so in 2021.) But I think Thomas will come to regret this vote.
Let's walk through it.
First, Justice Barrett has built her reputation on not deciding issues that are not necessary to decide. Restraint is the name of the game. If so, why did she write this concurrence? The Roberts majority opinion settled the issued on narrow grounds. (And Justice Alito thinks those grounds were contrived.) Barrett does not explain why she addressed whether "transgender status constitutes a suspect class." And if she is willing to resolve this question that is not presented, why did she decline to resolve countless other questions that she thought were not presented? We have no answer. Maybe she will tell us why in her book.
