You are so right, but to my mind it is not surprising that the briefs for the United States left that out. Keep in mind that the US did not raise parental due process rights, and the Court did not accept the intervenors' parental due process rights question. DOJ is a rather cautious litigator. They're going to stay on solid ground as muc…
You are so right, but to my mind it is not surprising that the briefs for the United States left that out. Keep in mind that the US did not raise parental due process rights, and the Court did not accept the intervenors' parental due process rights question. DOJ is a rather cautious litigator. They're going to stay on solid ground as much as possible. I think Coney Barrett was trying to shift the argument into Dobbs territory. Alito made it very obvious that he was going to do that. It's generally in the cases involving the constitutional principle of "due process of law" that we see discussions of state "evolution." Dobbs is the graveyard of substantive due process, such as the right to privacy or the right to gender autonomy. Along with that comes requirements of proving that the protection sought is "deeply rooted in U.S. history and tradition." With textualists and originalists continually moving the goal posts, they can easily argue that the right of children to change sex/gender is not so rooted. So I think keeping away from that minefield was the right decision for the US. I believe that's why Prelogar didn't answer the question, and Chase did answer it. That's also what all the questions about trans people in sports were trying to accomplish, but we can discuss that another time.
We're in virtual lockstep. I don't have any significant criticisms of Prelogar or Strangio. I think their strategic choices were sound, to the extent that I'm even qualified to judge.
I'd be curious to hear what you have to say about my most recent post on Pervert Justice.
I'm agreeing on both of your comments in this thread, but this one is especially poignant. Prelogar and Strangio were just asking the Supremes to send the case back to the appeals court for heightened scrutiny, and with the Roberts court, shorter has got to be better, because you don't want to give Alito (especially) a chance to start blathering about the UK and Sweden or some damn thing.
But if they had included a description of historical de jure discrimination against trans people, that could have been begging for a discussion that wasn't necessary for the Supremes to send the case back.
You are so right, but to my mind it is not surprising that the briefs for the United States left that out. Keep in mind that the US did not raise parental due process rights, and the Court did not accept the intervenors' parental due process rights question. DOJ is a rather cautious litigator. They're going to stay on solid ground as much as possible. I think Coney Barrett was trying to shift the argument into Dobbs territory. Alito made it very obvious that he was going to do that. It's generally in the cases involving the constitutional principle of "due process of law" that we see discussions of state "evolution." Dobbs is the graveyard of substantive due process, such as the right to privacy or the right to gender autonomy. Along with that comes requirements of proving that the protection sought is "deeply rooted in U.S. history and tradition." With textualists and originalists continually moving the goal posts, they can easily argue that the right of children to change sex/gender is not so rooted. So I think keeping away from that minefield was the right decision for the US. I believe that's why Prelogar didn't answer the question, and Chase did answer it. That's also what all the questions about trans people in sports were trying to accomplish, but we can discuss that another time.
We're in virtual lockstep. I don't have any significant criticisms of Prelogar or Strangio. I think their strategic choices were sound, to the extent that I'm even qualified to judge.
I'd be curious to hear what you have to say about my most recent post on Pervert Justice.
I'm agreeing on both of your comments in this thread, but this one is especially poignant. Prelogar and Strangio were just asking the Supremes to send the case back to the appeals court for heightened scrutiny, and with the Roberts court, shorter has got to be better, because you don't want to give Alito (especially) a chance to start blathering about the UK and Sweden or some damn thing.
But if they had included a description of historical de jure discrimination against trans people, that could have been begging for a discussion that wasn't necessary for the Supremes to send the case back.