SCOTUS takes up trans care case—as key LGBTQ civil rights lawyers face scrutiny in Alabama

The Supreme Court will hear a case over Tennessee's ban on gender-affirming care for minors. And: Sanctions hearings began in the Alabama judge-shopping inquiry.

The U.S. Courthouse in Montgomery, Alabama.

MONTGOMERY, Ala. — When the U.S. Supreme Court announced on Monday morning that it would be hearing a case in its next term over whether bans on gender-affirming medical care for minors violate equal protection guarantees, some of the leading lawyers fighting for transgender people’s rights were already preparing to gather.

They weren’t coming together, however, to discuss the case over Tennessee’s ban, United States v. Skrmetti, in which the court granted certiorari in its Monday orders. Instead, they were headed to a second-floor courtroom of a federal courthouse in Alabama, awaiting U.S. District Judge Liles Burke.

Burke, a Trump appointee, began hearings on Monday on whether to sanction up to 11 of the lawyers who brought challenges to one such ban in Alabama and have faced a two-year investigation into allegations of judge-shopping that initially were raised by Burke himself in an order closing one of the cases in April 2022.

The juxtaposition of the two events made the importance of this moment for the treatment of transgender people in this country undeniable — not to mention centering broader questions about the role of our courts and the stability of our democracy.

While the nation began reacting to the news that the justices would be hearing the case over Tennessee’s ban in the fall, several key national lawyers involved in the challenges to the many bans across the country — including at least one lawyer representing the challengers in the Tennessee case — spent the day more or less sidelined in Burke’s courtroom as Burke held the first two of 11 “show cause” hearings before he decides whether to issue sanctions for taking actions that the lawyers say violated no rules and, at the least, are not sanctionable.

Trans people across the nation found out Monday that this conservative Supreme Court is preparing to hear a case over their rights.

At the same time, in proceedings that were first secret and even now remain dramatically undercovered in the mainstream media, federal judges in Alabama have been investigating and harassing the lawyers fighting to defend those trans people’s rights as this litigation has been ongoing across the country and making its way to the Supreme Court.

As the 25 or so people in Burke’s courtroom for Monday’s hearings left around 3 p.m. Central Time, little was resolved. It was clear, however, that these fight are not just central to the rights and lives of trans people but also essential to understanding how any of us might have our efforts to seek protections from the courts stymied — or worse.

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Cert grant

At 9:30 a.m. Eastern Time, the Supreme Court announced it would be hearing a case in its next term asking “[w]hether Tennessee Senate Bill 1 … violates the Equal Protection Clause of the Fourteenth Amendment.”

The court had been considering three petitions raising questions over Tennessee and Kentucky’s bans coming out of a decision from the U.S. Court of Appeals for the Sixth Circuit in September 2023 holding that the bans are likely constitutional. Because of that ruling, those states’ bans were going to remain in effect, leading to the petitions. Chase Strangio, representing the Tennessee plaintiffs and with the ACLU, previously spoke with Law Dork about the challengers’ reasons for going to the Supreme Court.

“Ultimately, the calculus for us was to fight with everything we have to tell this court that the lower courts have gotten it wrong,” Strangio, the deputy director for transgender justice within the ACLU's LGBT & HIV Project, told me. “Is that scary? Of course it is.”

The court on Monday granted the petition brought by the Biden administration and took no action on the petitions brought by the challengers to the two bans.

The primary distinction is that the Justice Department’s petition only raised the question of whether the Tennessee ban violates the Equal Protection Clause. The petitions filed by the challengers to the Tennessee and Kentucky bans differed from one another, but both raised a Due Process Clause claim relating to parental rights. Here, for example, is how the Tennessee challengers framed their questions:

But, on Monday, the court, in granting the Justice Department’s petition, only agreed to hear the equal protection question.

Notably, though, because the Justice Department had intervened in the Tennessee case brought by the challengers, that means those challengers will be parties to the case at the Supreme Court. They are represented by Strangio and the ACLU, as well as Lambda Legal and Akin Gump Strauss Hauer & Feld LLP.

It’s impossible to read too much into justices’ decisions — particularly cert grants, considering we have no idea who voted to grant cert. All that we know is that at least four justices had to vote for cert. Nonetheless, my first reaction to the news on Monday was that it would be very odd and an extreme waste of judicial resources for the justices to go through everything involved with hearing this case on the equal protection grounds all to reject the equal protection claim and then have a circuit split emerge surrounding the same laws on the due process claims.

An important question about this grant is the political timing. This almost surely is a case in which a Trump administration Justice Department would take a different position. Even if the White House changes hands, however, the plaintiffs obviously would still be opposing the Tennessee law. As such, I think the primary issue here is the political one: This is now a high-profile case that will be on people’s minds — whether because arguments were already heard or about to be heard — as they vote in the fall. The Supreme Court was always on the ballot — but now the justices gave us one more reason to remember that.

Law Dork will have much more on this case in the weeks and months ahead.

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Show cause

At 9:30 a.m. Central Time, about two dozen lawyers and a few members of the media sat in Courtroom 2F of the U.S. Courthouse in Montgomery waiting on Burke to begin the first of 11 “show cause” hearings — the end result of the two-year judge-shopping investigation covered extensively at Law Dork.

The 11 lawyers subject to the hearings are part of two groups of lawyers who filed and later dismissed independent challenges to Alabama’s ban in April 2022. Many of them, the lawyers they have representing them in the show cause hearings, and a lawyer from the Alabama Attorney General’s Office were in court on Monday.

Although I’ve covered this in depth, here’s a brief summary of the day that led us here.

At the beginning of Friday, April 15, 2022, in a week in which both cases were transferred to different judges in ways the lawyers had not expected — for a total of four transfers — one of the cases was assigned randomly, but unexpectedly, to Burke. Then, just before the close of business that day, which was Passover and Easter weekend, Burke scheduled an in-person status conference in the case for the next Monday morning in that case, Walker. About 30 minutes later, the judge with the other case, Ladinsky, transferred that case to Burke as well, outside of random assignment and with no notice or explanation. Burke, meanwhile, was the judge who lawyers on the teams with local knowledge had considered the worst draw for their clients. Given the unexplained transfer, thoughts about Burke, and scheduled Monday hearing, the lawyers on both teams decided to voluntarily dismiss their cases under Rule 41. There was an intention to ensure the law would still be challenged (and it was), but the lawyers did not have that plan settled when the cases were dismissed.

Burke thought all of this suggested judge-shopping, which prompted an investigation from a panel of three judges from across the state. The panel subjected the lawyers to a gag order, insisted the process was “not adversarial” and ignored due process concerns, and ultimately concluded that 11 of the lawyers involved had engaged in misconduct. The panel then turned the report over to Burke to decide what to do next. The show cause hearings are that — asking the lawyers to “show cause” why they should not face sanctions for the misconduct findings. All 11 lawyers filed responses in May, while maintaining objections to the underlying process of the three-judge panel. The lawyers disputed the panel’s factual conclusions, questioned the legal underpinning of the panel’s report, and argued that the panel’s report is unreliable because of the due process concerns and other legal questions. The responses also highlight what should be definitive: Plaintiffs have an unconditional right under Rule 41 to voluntarily dismiss a lawsuit before defendants take certain actions not at issue here.

Burke held two of the show cause hearings Monday — for Michael Shortnacy and Kathleen Hartnett, the two national private law firm lawyers who remain a part of the inquiry. With a ruddy face and a trim haircut, Burke took to the bench in the Middle District of Alabama court in Montgomery — his normal chambers are in the Northern District of Alabama — a little past 9:30 a.m. CT.

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Read all of the Law Dork coverage of the Alabama judge-shopping inquiry here.

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The three-plus hours of questioning were surreal, as Burke focused repeatedly on questions that boiled down to how he would have litigated cases — with only a few questions about the legal standards for assessing whether the lawyers had violated any rules or committed any sanctionable conduct.

It became clear throughout the day that Burke remains unconvinced that, as the lawyers claim, the decision to dismiss was made in a complex, fast-moving week with many unexpected developments such that, as Hartnett told Burke, “It was a train wreck that was going to happen, and I didn’t want it to happen in front of your honor” at the Monday status conference.

Instead, the lawyers dismissed the cases under Rule 41 to give them time to “regroup,” as Hartnett said. Time, she noted, was of the essence in the dismissal because, under Rule 41, the plaintiffs only could file such a dismissal before the state filed an answer — a move the state could have taken at any time.

For Burke, though, he asked both Shortnacy and Hartnett — two law firm partners with substantial experience who have now spent two years defending what they maintain were the best actions they could take for their clients — a version of two questions that showed his narrow focus.

“I was randomly assigned Walker,” he noted to Shortnacy of the case he had transferred to him in the morning of April 15. “If I’m randomly assigned that case, how does it cause panic when I get both of them?”

Shortnacy, responding with what appears to have been the universal view of the lawyers across both groups, said that when U.S. District Judge Annemarie Axon transferred Ladinsky, the first-filed case, sua sponte — meaning, on her own — “it was confusing and upsetting to the group.”

When Burke insisted later that such reassignments for no stated reason and with no notice happen often, Hartnett responded, “That’s not my experience.”

Burke’s other point was that — as he asked both Shortnacy and Hartnett — “But for the case being reassigned to me, do you still dismiss?”

Shortnacy responded that there were “a number of ‘but for’ factors,” and Hartnett repeated a point made throughout the investigation, her response to the show cause order, and on Monday, that — due to questions about who on her case’s team could be at the Monday status conference — a primary concern of hers was about the status conference, a concern that was only heightened once both cases were before Burke and additional questions relating to that could have come up at the status conference.

The only actual legal matter that Burke discussed at any length with both lawyers on Monday was the case on which he has hung his proverbial hat, a 2003 decision from the U.S. Court of Appeals for the Eleventh Circuit, In re: BellSouth. Burke focused on this statement for the court:

We have no difficulty concluding that a contrivance to interfere with the judicial assignment process constitutes a threat to the orderly administration of justice.   Every court considering attempts to manipulate the random assignment of judges has considered it to constitute a disruption of the orderly administration of justice.

Seems relevant — but only if you have no idea of what the court was writing about when it was talking about “contrivance.”

As Harnett explained in her response to the show cause order:

BellSouth involved a party hiring Judge U.W. Clemon’s nephew in an attempt to get Judge Clemon to recuse. The court found that hiring an attorney for the purpose of recusing a judge was “a contrivance” and an “attempt to manipulate the random assignment process.”

A far cry from a Rule 41 dismissal.

To that, Burke asked Shortnacy about whether a Rule 41 dismissal could be “used to commit misconduct.” Shortnacy — who maintained, as did his lawyer, that he committed no misconduct — answered directly that the dismissal right is “absolute.”

Pushed further by Burke, he held strong, “My reading of the caselaw is that it is unconditional.”

Burke issued no ruling in either hearing, although he had suggested at the outset of Shortnacy’s hearing that he expected, based on the submissions, to dismiss him from the hearings without sanction. The remaining nine show cause hearings are set for Thursday and Friday — although Burke suggested that they could go into Saturday.

Law Dork will continue to cover this story in depth.