SCOTUS to Fifth Circuit: Do whatever you want

In a case over Texas's 2023 law requiring commercial porn sites to include age verification, the justices let the appeals court ignore precedent. Also: A big trans win.

On Tuesday, the far-right U.S. Court of Appeals for the Fifth Circuit was — yet again — given the go-ahead to ignore precedent from a U.S. Supreme Court increasingly uninterested in the law or even in protecting its role as the arbiter of the law.

Back in 2021 when the Supreme Court allowed Texas’s S.B. 8 vigilante enforcement six-week abortion ban to go into effect, the court twisted itself in knots to claim that the particulars of the law (“complex and novel antecedent procedural questions”) made the high court’s intervention at that stage in the litigation too questionable. This, despite the fact that the law was clearly unconstitutional under Roe v. Wade even as limited by Planned Parenthood of Southeastern Pennsylvania v. Casey. Months later, the court did overturn Roe, but it was law when S.B. 8 was allowed to go into effect.

When the Supreme Court briefly allowed Texas’s S.B. 4 immigration criminal enforcement law to go into effect earlier this year, some members of the court claimed procedural peculiarities counseled restraint from the high court to allow the Fifth Circuit to act (“an exercise of its docket management authority,” Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh, wrote). There, the law was clearly unconstitutional under Arizona v. United States. Although the Fifth Circuit — with apparent guidance from Chief Judge Priscilla Richman — took the note and adjusted course, the Supreme Court had temporarily allowed S.B. 8 to go into effect.

On Tuesday, likely because a law regulating porn was at issue, the Supreme Court decided it didn’t even need to put up the pretense of an excuse for allowing the Fifth Circuit to proceed with a ruling that explicitly disclaimed adherence to Supreme Court precedent.

At issue is Texas’s H.B. 1181, a law that requires two things — age verification on all websites of businesses whose sites include significant porn (more than one-third of the material it publishes) and anti-porn “sexual materials health warnings” posted on those websites. After a district court blocked both provisions, the Fifth Circuit vacated the injunction against the age-verification requirement — which would allow it to go into effect. (The Fifth Circuit upheld the injunction against the health posting requirements.)

Here’s the age-verification requirement:

In the hands of Judge Jerry Smith, one of two Reagan appointees who remain active judges on the Fifth Circuit, Supreme Court precedent that would clearly block this requirement — Ashcroft v. ACLU (Ashcroft II), the 2004 decision addressing the Child Online Protection Act (COPA) — is of little concern. In a striking portion of his opinion, Smith, joined by Judge Jennifer Walker Elrod (a George W. Bush appointee), wrote:

Ashcroft II supplies plaintiffs’ best ammunition against H.B. 1181. After all, despite Texas’s protestations, H.B. 1181 is very similar to COPA. Sure, COPA was criminal, and H.B. 1181 is civil. And COPA allowed age-verification as an affirmative defense, yet H.B. 1181 requires it upfront. But those changes do not affect our analyses here. Ashcroft II, finding that COPA probably failed the narrow tailoring component of strict scrutiny, sent the case back down for trial.

Seems open and shut, yes?

Not on the Fifth Circuit. Smith continued:

But that assumption does not end our analysis. Though Ashcroft II concluded that COPA would fail strict scrutiny, it contains startling omissions. Why no discussion of rational-basis review under Ginsberg [v. New York]? And why no analysis of intermediate scrutiny under Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)? We find those omissions particularly surprising considering that the Court in Reno felt the need to distinguish those at length. See Reno [v. ACLU], 521 U.S. at 865–68.

We see only one answer and therefore only one way to read Ashcroft II consistently with Ginsberg: Ashcroft II did not rule on the appropriate tier of scrutiny for COPA. It merely ruled on the issue the parties presented: whether COPA would survive strict scrutiny.

This is, essentially, rearguing the case — particularly considering that the cases referenced by Smith all preceded Ashcroft II — and then ignoring the Supreme Court’s decision in that latter case.

Judge Patrick Higginbotham, another Reagan appointee (who took senior status in 2006), was — similar to me — struck by Smith’s apparent view that the Fifth Circuit is now empowered to ignore Supreme Court precedent when the Fifth Circuit decides the relevant Supreme Court decisions contain “startling omissions.”

As Higginbotham put it:

[T]he majority’s critique that Ashcroft II contained “startling omissions” regarding its analytical framework ignores that the Supreme Court itself previously found that strict scrutiny applied. In Ashcroft II, the Supreme Court simply treated it as a self-evident proposition that strict scrutiny applied. This Court cannot fault Ashcroft II for applying the level of scrutiny clearly established by Sable and Reno, or for declining to engage in repetitive analysis. And the majority’s implication that the Supreme Court knowingly applied the wrong level of scrutiny merely because the issue was not “jurisdictional” needs no response.

Understandably, those challenging H.B. 1181 went to the Supreme Court, asking for a stay of the Fifth Circuit’s ruling so that the Supreme Court could consider the matter. In response, Texas argued both that the challengers had waited too long to seek Supreme Court intervention and that the Fifth Circuit’s decision would be upheld on appeal by the Supreme Court on its merits if taken.

On Tuesday, the Supreme Court denied the challengers’ stay request. No reason was given. No justices noted their dissent or even issued a statement respecting or concurring with the denial to explain the basis for the action.

And yet, the silence spoke volumes about the freedom that the Fifth Circuit has to ignore Supreme Court precedent when it wishes.

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A big trans care win

On Monday, the full U.S. Court of Appeals for the Fourth Circuit, sitting en banc, issued an 8-6 decision reaffirming the court’s earlier rulings that classifications based on transgender status merit heightened scrutiny under equal protection challenges. The court then went further, applying that to hold that states’ efforts to ban Medicaid coverage of gender-affirming medical care for transgender people unconstitutionally discriminates on the basis of transgender status.

“Appellants … argue that gender dysphoria is not being used as a proxy for transgender identity here because treatment for that diagnosis is not covered for anyone, transgender or cisgender. This argument elides common sense and is inconsistent with Supreme Court precedent about how to approach equal-protection analyses,” Judge Roger Gregory wrote for the court. “This ‘narrow view’ of the Equal Protection Clause—that a law does not discriminate if it applies equally to all—made no sense, the Court said.”

Although technically a response to North Carolina and West Virginia’s arguments, the statement also served as a striking pushback on rulings from people like Judge Jeffrey Sutton on the U.S. Court of Appeals for the Sixth Circuit, who upheld the constitutionality of Tennessee and Kentucky’s bans on gender-affirming medical care for minors.

In the Fourth Circuit cases, in contrast, Gregory concluded, “We hold that gender dysphoria, a diagnosis inextricable from transgender status, is a proxy for transgender identity. And coverage exclusions that bar treatments for gender dysphoria bar treatments on the basis of transgender identity by proxy.”

The appeals court also found that aspects of North Carolina and West Virginia’s coverage exclusions also unconstitutionally discriminated on the basis of sex and violated the Medicaid Act and Affordable Care Act.

For more, see Erin Reed’s coverage of this ruling at Erin in the Morning.