SCOTUS trans care ban case order prompts "what now?" questions in Alabama

Judge Liles Burke appeared to be open to putting proceedings on hold until the Supreme Court rules in the Tennessee case. Similar questions are likely in other cases.

The power of the U.S. Supreme Court to change reality with just a few words — or, here, a case name’s inclusion on a list — was on full display in Courtroom 2F of the U.S. Courthouse in Montgomery, Alabama, on Monday.

U.S. District Judge Liles Burke, who initially blocked Alabama’s ban on gender-affirming care for minors¹ in 2022 before being overturned by a panel of the U.S. Court of Appeals for the Eleventh Circuit in 2023, asked lawyers on Monday afternoon about the effect on proceedings in his court of the Supreme Court’s decision to hear a challenge to Tennessee’s similar ban.

By the end of the day Tuesday, both the Justice Department and private individuals challenging the law asked for proceedings to be halted until the Supreme Court rules.

Burke seemed to tentatively agree with the arguments for a stay as expressed by the private plaintiffs’ lawyer in court on Monday, although he is yet to issue any order.

The near-immediate consideration before Burke, though a function of the previously scheduled hearings, likely precedes similar discussions in other cases across the country.

The Supreme Court granting certiorari in a big case can have sharp, quick effects. It can both prompt rulings from lower courts seeking to get a ruling “on the record” before briefing and arguments at the high court and serve as a reason (or excuse) to step back until the high court rules — depending on the judge or judges involved.

Monday’s grant in the Tennessee case is one of those grants — and trans people, their family, and friends will be dealing with that reality, however it falls out in any given case, over the coming year.

The lawyers were assembled there on Monday due to the ongoing judge-shopping investigation, and everyone appears to agree that any stay would not have any effect on those proceedings, but the last part of the day’s hearing was devoted to the underlying case.

Burke’s preliminary injunction was overturned because the appeals court held that the ban is likely constitutional. That ruling remains on appeal at the Eleventh Circuit, where the challengers asked the full appeals court to review the decision en banc. The underlying case, however, is still proceeding before Burke. In addition to trial being set in the case to begin October 28, the state filed a motion for summary judgment, meaning that it argued there are no factual disputes and it should win on the law. As of now, any opposition to the state’s motion is due by July 1.

Six hours after the Supreme Court granted certiorari in the Tennessee case, however, Burke suggested that the high court’s move could mean the Alabama case, captioned Boe v. Marshall now, should wait for the Supreme Court’s resolution.

As the “show cause” hearings were concluding for the day, he alerted the lawyers that, since everyone was there, he was going to have a brief status conference to check in about the Supreme Court’s order. He asked the lawyer from the state, who had been present in the courtroom throughout Monday’s proceedings, whether he wanted anyone else from the office present for that discussion. A short while later, Solicitor General Edmund LaCour walked in and sat next to the other lawyer.

The lawyer for the challengers, Jeffrey Doss, told Burke that they believed certainly the trial date, and likely everything, should be stayed — aside from the ethics proceedings — pending the Supreme Court’s decision because the court’s decision could change the appropriate standard for reviewing the Alabama law. To continue now, he said, would be a waste of resources.

LaCour, however, balked at that. Although he acknowledged the trial date likely should be put off, he pressed the technically accurate statement that a cert grant by the Supreme Court does nothing to change the law.

He continued, telling Burke that the state provided “many rational bases” for their law, urging Burke to let briefing continue and grant their summary judgment motion under the Eleventh Circuit’s precedent in the preliminary injunction ruling in the case.

“They have their law; it’s in effect,” Doss told Burke in response, a brief and pointed argument that the state doesn’t need any quick action here.

Additionally, and perhaps more effectively to Burke, Doss also argued the resources issues. Specifically, he noted that, if the Supreme Court reverses the U.S. Court of Appeals for the Sixth Circuit’s decision in the Tennessee case next term, any interim ruling on a summary judgment ruling for Alabama here, which the challengers would appeal, would likely then be summarily reversed or vacated by the Eleventh Circuit — sending it back to Burke to reconsider the summary judgment motion.

Shortly after the hearing on Monday, the Justice Department — which had intervened in the Alabama case as it had done in the Tennessee case — made a formal stay request.

On Tuesday, the challengers joined DOJ’s request, stating, “Private Plaintiffs respectfully request that the Court stay all proceedings and deadlines in this matter until the Supreme Court rules on the appropriate standard of review.”

Normally, plaintiffs wouldn’t want a case challenging a state law put on hold for as long as a year, but given that they would be likely to lose under the Eleventh Circuit’s precedent in the case, the unusual posture here makes sense.²

Although Burke didn’t make any decisions on the matter on Monday, he strongly suggested, at the least, that the trial date would go off the books until the Supreme Court rules in the Tennessee case.

Even regarding the summary judgment motion, he expressed concern — with one of the only real light moments I saw from him on Monday. Given current Eleventh Circuit precedent and the potential for a contrary Supreme Court ruling in the future, he said that ruling now could put him in the unusual and unenvious position of being reversed twice — for ruling on opposite sides — in the same case.

Burke suggested a decision could come when the parties return to court for the next day of show cause hearings on Thursday.

1. Yes, this is the judge who lawyers for the challengers considered the worst draw and who is still considering issuing sanctions against some of them. What can I say? This is a complicated tale. But, for this story, that is less important.

2. This paragraph was added after initial publication to provide more context for the various parties’ positions on a stay.