The U.S. Supreme Court’s decision in United States v. Skrmetti exemplifies judicial restraint — the judicial philosophy that courts should hesitate to override democratically-enacted legislation unless it is clearly unconstitutional.
Recognizing that numerous European countries had placed restrictions on sex reassignment procedures for minors, Tennessee enacted a law prohibiting the performance of sex-reassignment surgeries and administration of puberty-blocking hormones on individuals younger than age 18.
The challengers of the law argued that it violated the Equal Protection Clause of the Fourteenth Amendment by making impermissible sex-based classifications. Tennessee countered that the law was instead about age restrictions and safety limitations on medical procedures.
Under the Equal Protection Clause, laws that make classifications on the basis of race, religion or national origin are subject to strict scrutiny. Under strict scrutiny, the government must show that it has a compelling reason for enacting a law that makes a classification on those bases, and that the law is narrowly-tailored to achieving that purpose.
Sex-based classifications are subject to only intermediate scrutiny, because the biological differences between the sexes provide logical, permissible reasons for treating men and women differently in certain circumstances. Under intermediate scrutiny, the government must show that it has an important interest in making a sex-based classification, and that the law is substantially related to that purpose.
All other legal classifications, such as those based on age, are subject to the lowest form of judicial review, known as rational-basis scrutiny, under which a law must only be rationally-related to advancing a legitimate governmental interest.
The Supreme Court concluded that rational-basis review applied to the Tennessee law because it was an age-based medical restriction that applied to all minors regardless of their sex and further held that the Tennessee law passed the rational-basis test because it was rationally related to the legitimate government interest in protecting the health and safety of minors, as the legislature enacted the law out of concern for the medical uncertainty, irreversibility and potential adverse impacts of the effects of sex reassignment procedures on minors.
The Supreme Court noted the importance for state legislatures to have a certain degree of latitude in creating policies to address new social questions. As Chief Justice John Roberts noted in the court’s opinion, “This case carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field.” The court further wrote that although “the voices in these debates raise sincere concerns … the Equal Protection Clause does not resolve these disagreements.”
The case was not about whether states should enact laws like that of Tennessee, but rather whether the Constitution allows the states to experiment with such a social policy. As Roberts explained, the Supreme Court’s role “is not to judge the wisdom, fairness, or logic of the law before us, but only to ensure that it does not violate the equal protection guarantee of the Fourteenth Amendment. Having concluded it does not, we leave questions regarding its policy to the people, their elected representatives, and the democratic process.”
Every constitutional challenge to laws duly enacted by the legislative branch revives the age-old question and debate, present since the dawn of our constitutional republic, about the proper role of an unelected judiciary in reviewing the validity of laws created by the citizens’ representatives. Skrmetti follows a long tradition of deferring to the legislature to determine how to best address new social questions.
There are many circumstances where the Constitution does indeed place limits on what policies can be enacted through the democratic process, but that is when the Constitution specifically enshrines a particular constitutional right that legislatures may not restrict. As Justice Robert Jackson famously wrote, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts.”
But when the Constitution does not specifically speak to a particular issue, it is instead to be decided through the processes of representative government in the legislative branch, not the judiciary.
Although advocates of judicial restraint now transcend the political spectrum, it was originally pioneered by liberal jurists during the Progressive Era when the Supreme Court frequently struck down expansive government programs and regulations.
In New State Ice Co. v. Liebmann, Supreme Court Justice Louis Brandeis famously argued that state legislatures, as laboratories of democracy, must have latitude to address changing circumstances without the intervention of the courts, writing: “To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”
Unlike widely-accepted bedrock constitutional principles, such as freedom of speech, the question of whether children have a right to undergo sex reassignment procedures is highly contested. The court’s choice to let this debate play out in the state legislatures, rather than in the courts, shows that it does not view itself as having a political role.