Day: June 24, 2025

Last week, the Senate Judiciary Committee held a hearing on the Biden administration’s last-minute pardons, many of which appear to have been signed by autopen. Although autopens are used regularly by politicians for all sorts of reasons, the pardons raise profound constitutional questions because of lingering concerns about Biden’s competency. The issue most commonly discussed is whether he understood what was being done in his name. But there is an even more fundamental question about delegation: When the Constitution says that the president “shall have Power to grant … Pardons for Offenses against the United States,” does it require the president himself to make the decision? Or can he leave it to others?

The pardon power developed for centuries among the English, prompting Chief Justice John Marshall to observe in 1833 that we must “adopt their principles respecting the operation and effect of a pardon.” Most central of those principles was that the pardon power was an absolute prerogative, meaning it was a power so personal to the monarch that it couldn’t be delegated.

This personal character of the prerogative was recognized by the English judges in a 1604 resolution on dispensations. A dispensation and a pardon were so closely related that they were often considered variations of the same power. Whereas the one was a retrospective exercise of mercy, the other was a prospective exercise of mercy—the key point being that they both were non obstante grants, meaning grants made notwithstanding the law.

Although the prerogative to pardon offenses or dispense with the law was personal in the monarch, Queen Elizabeth, in her desperation to raise money, she sold part of it—to be precise, she sold the power to dispense with a penal statute. The purchasers could determine who would get a dispensation, and the Lord Chancellor, or Keeper of the Great Seal, would then issue a dispensation as directed. This privatization, however, impinged on the personal authority of the monarch, so, in 1604, the judges were asked to consider the grant’s validity.

The judges unanimously resolved that the grant was “utterly against law.” The dispensing power involved a “confidence and trust” that was “inseparably joined and annexed to the royal person of the king in so high a point of sovereignty.” So “the king cannot commit the sword of his justice, or the oil of his mercy, concerning any penal statute to any subject,” and that these powers “cannot by law be transferred.”

Chief Justice Edward Coke similarly explained that “the royal power to pardon treasons, murders, rapes, &c. is a prerogative incident solely and inseparably to the person of the King.” At the end of the century, Chief Justice Holt said: “The power of pardoning all offences is an inseparable incident to the crown and its royal power.”

Of course, the king, like a president today, did not personally draft pardons; consequently, there was ample room for deception. In response, medieval statutes and common law doctrine sought to ensure that the king himself made the decision and did so without being misled. As summarized by the leading eighteenth-century law dictionary, a statute of Edward III required that “the king should be fully inform’d before he pardon’d any felony” so that “he himself might be apprised of the matter.” Although the statute already was defunct, it was a reminder that the decision belonged to the king alone.

Can a pardon made by the wrong person be held void in the United States? A powerful hint comes from the 1782 Virginia case of Commonwealth v. Caton et al. Although the three defendants had briefly joined the British and had therefore been convicted of treason, the House of Delegates pardoned them.

The Virginia Constitution permitted a statute to locate the pardon power in the House of Delegates—this already being a hint that when a constitution permitted a transfer of the power, it said as much. The problem for the defendants was that the Treason Act, under which they were convicted, provided for a pardon only by both legislative houses. Although the House pardoned the three traitors, the Senate concluded that, under the Constitution, it shouldn’t add its approval. The high sheriff in Richmond therefore, found himself in a quandary. He had a court rule ordering him to execute the prisoner and a pardon resolution from only the House.

When the case eventually reached the Court of Appeals, Attorney General Edmund Randolph dramatically abandoned his prosecutorial posture to support the claim of the prisoners that the treason statute was unconstitutional for transferring the pardon power to both legislative houses. Believing that “my office does not extinguish that respect, which I shall owe to the constitution,” Randolph declared “that every law against the constitution may be declared void.”

The court ultimately upheld the statute, apparently on the theory that the Constitution merely set a minimum level of legislative approval, without barring a statute from setting a high level. The Court’s President, Edmund Pendleton, emphasized, however, that if the statute locating the pardon power in both houses had been “repugnant to the Constitution,” he would have held it void. It was a question “from which … I will not shrink, if ever it shall become my duty to decide it.” Any transfer of the pardon power was entirely justiciable.

The history confirms that the Constitution’s location of the pardon power is significant. The president must make the decisions, and the courts can hold pardons void if the decisions are made by others. 

For too long, the history of race relations in the United States has been misrepresented as a battle between “progressive” liberals, supposedly partisans of policies that benefited racial minorities, and “conservatives” trying to block their advancement. Jonathan Bean’s Race and Liberty, of which the first edition appeared in 2009, constitutes an invaluable corrective to that portrayal. A partisan of the “classical” liberal tradition—the liberalism of the American Founders, who believed in the Lockean doctrine of limited government, aimed at securing the equal rights of all individuals—Bean (history professor at Southern Illinois University) provides a collection of over 75 documents, accompanied by helpful, brief editorial commentary, which correct the record. The readings cover not only relations between “whites” and racial minorities, but also immigration policy.

Besides an introduction and conclusion, Race and Liberty contains eight chapters, chronologically arranged, from 1776 to the present. As Bean explains, the classical liberal tradition “dominated the civil rights movement” from the outset. Classical liberals “fought slavery, lynching, segregation, imperialism, and racial distinctions in the law,” while defending what Bean calls the “’natural right’ of migration to America.” Yet contemporary academics misrepresent this tradition, even denouncing the classical-liberal goal of color-blindness in government policy as “objectively racist.” In place of the individualistic outlook of classical liberals, today’s racial “progressives,” such as Ibram X. Kendi, favor “group rights” (which incidentally favor the interests of the particular individuals who espouse them).

Bean rightly begins with early, eloquent American denunciations of slavery, on behalf of the principles of the Declaration of Independence as well as Christianity, by free blacks, including James Forten (1813) and David Walker (1829), along with Northern ministers. This chapter also contains the successful courtroom statements on behalf of the liberation of the slaves on the captured Spanish ship the “Amistad” (1841) by the evangelical businessman/abolitionist Lewis Tappan, by three of the slaves themselves, and by their legal spokesman John Quincy Adams. The chapter concludes with Frederick Douglass’s celebrated 1852 Fourth of July Oration.

The next chapter, “The Republican Era (1854–1876),” includes the libertarian Lysander Spooner’s 1860 speech asserting the unconstitutionality of slavery; excerpts from the Republican Party platforms of 1856 and 1860 opposing slavery’s extension (a theme repeated in Lincoln’s First Inaugural Address), and Douglass’s 1863 statement on “The Mission of the [Civil] War.” (In the last case, however, one must correct Douglass’s charge that Lincoln’s response to Horace Greeley that his primary aim was to preserve the Union with or without slavery indicated a lack of “moral feeling.” Douglass failed to acknowledge Lincoln’s political situation, needing to preserve support for the war among the Union population, not all of whom were abolitionists, and the fact that Lincoln never reneged on his commitment to preventing the extension of slavery on account of its wrongness, a stand that had originally set off Southern secession. And Lincoln had to know that a Union victory would end slavery (witness the Emancipation Proclamation).

Bean then provides documents illustrating the controversy over emancipation immediately after the war: an excerpt from the infamous Mississippi Black Code of 1866; editorials from Harper’s Weekly that helped impel Congress to enact the Civil Rights Act that same year, aimed at overturning such codes; and the Ku Klux Klan Act of 1871, accompanied by testimony before Congress and a letter to President Grant portraying the horrors inflicted by the Klan.

As Bean reports in his third chapter, “Colorblindness in a Color-Conscious Era (1877-1920),” following the withdrawal of Federal troops from the South after the 1876 election, the former Confederate states imposed (in Douglass’s words) “slavery by another name” on nominally emancipated blacks, even as spokesmen for freedom like Douglass, Massachusetts Republican Senator George Hoar, Booker T. Washington, and NAACP president Moorfield Storey insisted on securing equal rights for all individuals. (Repeatedly, Federal legislation to effectuate that goal was blocked by Southern Democratic filibusters.)

In this chapter, Bean broadens his focus to highlight Republican-Libertarian opposition to exclusionary laws aimed at Chinese immigrants, as well as to imperialism (the Spanish-American War) and the denial of Native Americans’ property rights, along with actions designed to secure the property rights of American Indians. He stresses how classical liberals such as Douglass, Storey, and Louis Marshall (self-made Jewish businessman, founder of the American Jewish Committee, critic of Harvard’s quotas on Jewish admission, and lawyer for the NAACP), dismissed by progressives as “reactionaries,” favored the policy of self-help and therefore sided with business, in opposition to racially discriminatory labor unions, seeing in “capitalism” (as Howard University dean Kelly Miller put it) the means of Negro advancement. In a point that Milton Friedman would echo decades later in Capitalism and Freedom (quoted by Bean), businessmen as such have no interest in discrimination; they just seek to hire the best-qualified, most industrious workman at the most reasonable price. (To illustrate, Bean cites letters from a Georgia railway company to public authorities opposing Jim Crow laws as an inconvenience to its business, followed by letters from white citizens making the same complaint.)

A number of documents Bean selects further exhibit Republican support for black equality. These include addresses in the next chapter by Warren Harding (speaking in Birmingham!) denouncing lynching and the KKK and favoring equality of educational opportunity (1921); by Calvin Coolidge opposing white racism (1924), emphasizing blacks’ military service in World War I; and Herbert Hoover’s desegregation of the Commerce Department (1928). (By contrast, it was “progressive” Democrat Woodrow Wilson who had imposed segregation in Federal offices.)

Further, in the following chapter on “The Roosevelt Years,” Bean goes on to note the ostensibly “liberal” (in a new, “pragmatic” sense) Franklin Roosevelt’s failure to support anti-lynching laws; his refusal to authorize any increase in the immigration of Jewish refugees from Europe, consigning millions to death at the hands of the Nazis; and his discriminatory internment of Japanese-Americans once World War II began, despite lacking evidence of any disloyalty on their part. (Back in 1925, Roosevelt had published a newspaper column warning that having Japanese immigrants in California was a “nightmare” and expressing “repugnance” at the resultant danger of interracial marriage.)

Meanwhile, it was the anti-New-Deal Republican representative Hamilton Fish, mocked by Roosevelt, who repeatedly championed anti-lynching bills in the House, the African-American and Republican journalists (respectively) George Schuyler and R. C. Hoiles who opposed the internments, and the cantankerous libertarian H. L. Mencken who denounced both lynching and the internment and even advocated opening America to all Jewish refugees. (As the noted black writer Zora Neale Hurston observed, Roosevelt won black support, despite his unconcern about lynching, largely by increasing federal welfare programs.)

Republicans did not abandon their pro-civil rights stand after the New Deal era. Bean includes speeches by the conservative Republican leader Robert Taft, plus a minority report by Republican senators Styles Bridges and Bourke Hickenlooper, calling (successfully) for the Senate to refuse to seat the outrageously racist, demagogic Mississippi Democrat Theodore Bilbo. Those selections are followed by a magazine article by New Deal opponent Hurston, praising Taft’s record of legislative action promoting the rights of African-Americans, and (through the Taft-Hartley Act) “protect[ing] Negroes’ right to work regardless of … discriminatory union rules.” Applauding Taft as a liberal in the original sense, Hurston denounced FDR’s policies for promoting dependency, while “leaving Government in the hands of a few.”

While referencing pioneering judicial decisions from this period, including Brown v. Board of Education and Loving vs. Virginia, striking down state laws banning interracial marriage, Bean also includes a 1956 speech by anti-New Deal baseball executive Branch Rickey, who had integrated the major leagues by signing Jackie Robinson, calling the practice of colorblindness “a call from God.” He also includes an excerpt from Martin Luther King’s 1963 “I Have a Dream” speech, frequently quoted by “classical liberal opponents of race preferences,” expressing the hope that his children would live “in a nation where they will not be judged by the color of their skin but by the content of their character.”

Although so-called progressives often accuse their libertarian opponents of racism, Bean’s documents prove otherwise. For example, he includes Barry Goldwater’s speech explaining why he voted against the 1964 Civil Rights Act on constitutional—not racial—grounds, since the senator foresaw that the law would (as Bean summarizes) “enable bureaucrats and judges” to use it to justify “treating members of certain government-designated groups more equally than others.” Though that was a consequence denied by the Act’s leading senatorial sponsor, Hubert Humphrey, it didn’t take long for Goldwater’s prophecy to be fulfilled (as described in an excerpt from Harvard sociologist Nathan Glazer’s 1975 book Affirmative Discrimination). Goldwater, Bean emphasizes, was no racist: a longtime member of the NAACP and the Urban League, as Arizona governor, he had integrated the state’s national guard and supported integration of Phoenix’s public schools.

For a different example of how purportedly benign progressive policies injured blacks, Bean prefaces Goldwater’s statement with an excerpt from (future Reagan adviser) Martin Anderson’s prescient 1964 book The Federal Bulldozer, which describes how “urban renewal” policies—championed by reformist Democrats—destroyed respectable working-class neighborhoods, whose residents were channeled into monstrous “housing projects” that became cesspools of crime and disorder (and often later had to be torn down).

Of course, classical liberals’ fight for genuine equality did not end with the Civil Rights Act. In subsequent decades, they battled new race-based policies, starting with the Equal Employment Opportunity Commission’s 1965 demand that employers report the race of their employees. Although this requirement was ostensibly designed to facilitate “affirmative action” against racial discrimination, it was initially opposed, Bean notes, by the NAACP and other civil-rights groups because of its echoes of Jim Crow. But ironically, Republican President Richard Nixon’s Labor Department, seeking to overcome the effects of longtime labor-union discrimination against blacks in the construction industry, institutionalized a new definition of affirmative action, requiring Federal contractors to report “deficienc[ies]” in their “utilization of minority groups and women,” underutilization being defined as “having fewer minorities or women than would reasonably be expected by their availability,” and to institute “goals and timetables” for remedying such deficiencies.

Nixon’s policies were a foretaste of what later was called “disparate impact theory,” the notion that if the proportion of minorities or women in a given occupation were lower than those in the “available” population, such disproportion must be assumed to be the consequence of discrimination, and hence subject to executive or judicial correction. And Bean then quotes Justice John Paul Stevens’s opinion in the 1978 Bakke case, a “tortured” decision that purportedly banned “benign” racial discrimination in medical school admissions but “encouraged institutions to wrap their discriminatory practices in the new mantle of ‘diversity.’”

One of the best responses to the Bakke ruling, included by Bean, is black, libertarian scholar Anne Wortham’s dismissal of it as “a decision against meritorious achievement.” Her case for rewarding individual accomplishments rather than group accomplishments has been seconded by other prominent contemporary African-American writers that Bean cites (most notably Thomas Sowell). The recent “triumph of the color-blind Constitution,” as Bean terms it, at the judicial level, was the Supreme Court’s 2023’s Students for Fair Admissions v President & Fellows of Harvard College ruling, from which he quotes the opinion of Chief Justice John Roberts (“the way to stop discrimination on the basis of race is to stop discriminating on the basis of race”) which followed Justice Clarence Thomas’s ruling in the 2007 Seattle School District case.

Bean’s last chapter also includes solid arguments against “black reparations” by African-American writers Coleman Hughes and Wilfred Reilly. And it provides defenses of liberal (legal) immigration as beneficial to the United States, so long as that is combined with policies aimed at assimilation rather than ethnic separatism. In this connection, however, Bean makes one error, claiming that classical liberalism authorizes “a natural right to immigrate.” While all individuals have a right to emigrate, nobody has a natural right to immigrate. Though humane, liberal nations should aim to accommodate refugees fleeing serious persecution, every nation has the authority to decide whom to admit.

In their dissent in Dobbs v. Jackson Women’s Health Organization, Justices Breyer, Sotomayor, and Kagan observed that the Constitution “puts some issues off limits to majority rule.” Everyone agrees with that. The argument comes over which issues are part of the “some” that are off limits to majority rule and which are subject to majority rule. The Court determines, as a practical matter, where the Constitution draws the line between policies that popular and legislative majorities can constitutionally enact and policies that those majorities cannot enact.

United States v. Skrmetti, the recent case in which the Supreme Court held that a Tennessee law restricting sex transition treatments for minors did not violate the Fourteenth Amendment’s Equal Protection Clause, is the most recent entry in the necessarily iterative process of deciding just where those lines are drawn.

The central legal dispute between the justices in Skrmetti may sound dauntingly technical to the layperson. It concerns the level of scrutiny that lower courts (and the Supreme Court) should apply to review the Tennessee law. “The only question this Court must decide,” Justice Sotomayor wrote in her dissent, “is whether the Constitution required” lower courts to apply “intermediate scrutiny” when reviewing Tennessee’s law.

At stake in what may seem to be formalistic legalities, however, is the matter of whether the great contentious questions of our day will be decided by state legislatures and democratic institutions, or by lawyers and judges. Insofar as courts contrive new categories for heightened scrutiny, they take more and more substantive questions of policy debate out of the hands of the people and their representatives. While today we commonly pit individual liberty against majority rule, for much of US history, collective self-government was understood to be a crucial element of what it meant to be free.

To understand the Skrmetti arguments, we need first to take a step back to view the larger jurisprudential canvas on which the justices are painting.

The Court’s Equal Protection Framework

As a baseline matter, states have “police powers” under which they legislate to advance the health, welfare, safety, and morality of the people. The trick, of course, is that these powers actually be used to advance the general welfare rather than to allow majorities (or minorities) to advance their own interests by oppressing others. Both the national and state constitutions place limits on state government action, seeking to channel state laws to advance the common good. Among these are the Fourteenth Amendment’s requirements, including the Equal Protection Clause.

The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” While the Clause at first reads as a duty for states affirmatively to protect people equally—a reading that Justice Thomas has recently begun to float in concurring opinions, including in Skrmetti—the traditional interpretation of the Clause requires that laws have reasons for the way they classify individuals and treat them differently.

The inquiry into whether a statutory classification is consistent with the requirements of the Equal Protection Clause examines the match between the trait that the law regulates and the mischief the law seeks to remedy.

All state-level legal classifications must pass constitutional muster under the Equal Protection Clause. But judges apply different levels of scrutiny depending on whether the challenged law triggers application of a heightened standard of review.

Given how determinative the level of review can be for the outcome of a case, the main bone of contention between the majority and dissent in Skrmetti circles around whether the classification used by the Tennessee law triggers some level of heightened review.

The Court currently applies three basic levels of scrutiny in its Equal Protection jurisprudence. The lowest level of scrutiny, which is the easiest level for a law to survive, is termed “rationality review.” The highest level of review, which is the hardest level for a law to survive, is termed “strict scrutiny.” Skrmetti hinged on the less-well-defined middle level of “intermediate scrutiny.”

Laws can trigger heightened review by touching on rights the Court has identified as fundamental, by regulating ordinary democratic political processes, or by evincing prejudice against “discrete and insular minorities” such as race, religion, or nationality. Classifications based on sex, however, receive intermediate review, because some but not all classifications based on sex reflect invidious gender-based prejudice.

For both forms of heightened review—intermediate scrutiny as well as strict scrutiny—the government bears the affirmative burden of proving that the law serves a real purpose and that the means the statute employs will achieve the actual legislative purpose.

Under rationality review, the law enjoys the presumption of constitutionality, and those attacking the law must demonstrate that there is no conceivably legitimate or rational basis for the law. Under heightened review, the law is presumed unconstitutional, and the government bears the burden of providing proof that the law serves an important or compelling governmental purpose and that the law will actually achieve that purpose or is necessary to achieve that purpose.

Winning the argument over which level of review judges should apply when reviewing a law often will determine which side wins the case. As Justice Brennan pointed out in a 1958 decision, “In all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome.”

Indeed, the highest and lowest levels of scrutiny imply almost pro forma judicial outcomes. As the late Gerald Gunther’s snide rule-of-thumb put it, rationality review is deferential in theory and non-existent in fact, and strict scrutiny is strict in theory but fatal in fact.

Applying the Court’s Equal Protection Jurisprudence to Skrmetti

The plaintiffs in Skrmetti argued two independent reasons the Tennessee law should receive heightened scrutiny from judges. First, they argued that the Tennessee law classifies on the basis of sex and should, therefore, receive intermediate scrutiny. Secondly, they argued that the law classified on the basis of transgender status, and laws that classify using transgender status should be added to the type of laws that receive some form of heightened review.

The Court rejected both of the plaintiff’s arguments and subsequently upheld the Tennessee law after applying the deferential rationality standard.

Before rehearsing the Court’s arguments rejecting any form of heightened review and therefore applying the rationality standard to review Tennessee’s law, it bears noting that it’s not entirely obvious that the Tennessee law would have failed to be held constitutional if intermediate review had been applied. Indeed, Justice Sotomayor suggests that possibility in her dissent (a point Justice Kagan refused to join). More pointedly, Tennessee argued the physical effects of gender transitions for minors are certain; it is the benefits of the procedures to minors that are uncertain. As a result, the legislation would be justified even under intermediate scrutiny.

Nonetheless, if heightened review applied, Tennessee would have to provide what the Court has termed an “exceedingly persuasive justification” for the law’s classification. And this is more difficult for states to meet than the rationality standard. As a result, the plaintiffs argued that Tennessee’s law discriminated on the basis of sex, and therefore merited at least intermediate review. They argued that the law “creates facial sex-based classifications by defining the prohibited medical care based on the patient’s sex.”

The Court rejected the plaintiff’s argument, holding that the Tennessee law classified only on “the basis of age” and on “the basis of medical use,” as opposed to the perceived “category” of persons who would be seeking that medical treatment. Neither of these classifications triggers heightened review by courts.

The plaintiffs undoubtedly held at least a reasonable hope that the Court would agree that the Tennessee law classified on the basis of sex, given the outcome of the Bostock case in 2020. With votes including those of Chief Justice Roberts and Justice Gorsuch (who wrote the opinion in Bostock), the Court held that the prohibition of employment discrimination on the basis of sex in Title VII of the 1964 Civil Rights Act applied to discrimination based on sexual orientation and gender identity. The Court controversially concluded that employers fired the plaintiffs in those cases for engaging in behavior that the employers would have accepted had a member of the opposite sex engaged in the same behavior. In other words, if one “substituted” a person of the opposite sex in the circumstances, their treatment would have been different.

The Skrmetti Court responded in two ways to the claim that the Tennessee law discriminated on the basis of sex. First, the Court argued that the substitution test from Bostock simply did not apply to the Tennessee law. Rather, the law classified on the basis of medical usage rather than on the basis of sex:

The plaintiffs and the dissent … contort the meaning of the term “medical treatment.” … For the term “medical treatment” to make sense, … it must necessarily encompass both a given drug and the specific indication for which it is being administered. …

When, for example, a transgender boy (whose biological sex is female) takes puberty blockers to treat his gender incongruence, he receives a different medical treatment than a boy whose biological sex is male who takes puberty blockers to treat his precocious puberty. … The [Tennessee] prohibition does not turn on sex.

Roberts and Gorsuch, both of whom joined the majority opinion in Bostock, rejected the claim that an analogous argument applied to application of the Fourteenth Amendment to the Tennessee law in Skrmetti.

The plaintiffs further argued in the alternative that the Tennessee law discriminated against transgender people and that the Court should expand heightened judicial review to legal classifications relating to transgender individuals.

For the same reasons as he concluded that the Tennessee law did not classify on the basis of sex, Roberts’ opinion for the Court denied that the Tennessee law classified on the basis of transgendered identity: the law classified by age and by medical treatment, Roberts insisted. In arguing that the operative category is “medical treatment,” rather than transgender identity, Roberts avoided the more contentious questions of whether the latter category might trigger heightened scrutiny in other contexts. It also continues the Court’s decided reticence to add to the set of constitutionally protected classes that receive heightened review.

Neither Justice Alito nor Justice Barrett were entirely satisfied by Roberts’ more limited argument. As a result, both wrote concurring opinions arguing that transgender individuals did not meet the requirements of being a “discrete and insular” minority group sufficient to merit heightened review under current law. Transgender activists, after all, emphasize gender “fluidity,” and the reality of detransitioners challenges the idea that transgender status is an immutable characteristic. And it is hard to argue that transgender individuals are politically powerless, another characteristic traditionally used to identify suspect classifications.

Because the Tennessee law did not trigger heightened judicial scrutiny, the Court applied rationality review to the law with the almost inevitable implication that the majority upheld the state’s law.

Outside of the nod at the possibility that the Tennessee statute might survive intermediate scrutiny, Sotomayor’s dissent is a mirror image of the majority’s arguments. Sotomayor writes:

In addition to discriminating against transgender adolescents, who by definition “identify with” an identity “inconsistent” with their sex, that law conditions the availability of medications on a patient’s sex. Male (but not female) adolescents can receive medicines that help them look like boys, and female (but not male) adolescents can receive medicines that help them look like girls.

Sotomayor devotes much of her dissenting opinion to arguing that the Tennessee law classifies on the basis of transgender identity, and that the class of transgender individuals should be included as a discrete and insular minority group.

It is easy to get lost in the levels-of-scrutiny weeds. Beneath them, however, is the perennial and inescapable issue of where the Court draws the line between questions subject to majoritarian resolution and questions immunized from majoritarian resolution. It is clear that the current Court is refusing to extend the line further, if not moving the line back in the direction of deferring more to democratic decision-making relative to earlier Courts.

Nonetheless, it is important to emphasize that, contrary to some of the overheated criticism regarding the jurisprudential trend of the current Court, it is merely adjusting where the line is drawn that “puts some issues off limits to majority rule,” it is not remotely close to erasing the line. Skrmetti represents only an incremental adjustment in the continuing and inescapable process of judicial line drawing between collective self-government and individual rights in America.