The Supreme Court delivered a string of major losses for liberal Americans in recent weeks. Two in particular stand out: In United States v. Skrmetti, the Court’s conservative majority upheld a state law outlawing minors’ access to puberty blockers and hormones to treat gender dysphoria. In Mahmoud v. Taylor, the justices created a new constitutional entitlement for religious parents to shield their children from learning about LGBTQ people in public schools.
Defeats like these have become the norm since Donald Trump jolted the Court rightward. For many progressives, the narrative is straightforward: Ambitious, doctrinaire, Republican-appointed justices are systematically dismantling liberal precedents over the impassioned but impotent dissents of their Democratic-appointed colleagues.
This account accurately captures the speed, scope, and partisanship of the Court’s conservative counterrevolution. Yet it obscures a difficult truth: Progressive lawyers paved the road to these losses. Rulings such as those in Skrmetti and Mahmoud are the predictable consequences of liberal litigation strategies that invite a hostile Court to codify an agenda that the Court’s conservative majority was handpicked to establish.
The Supreme Court cannot act without cases. It cannot initiate litigation. To reshape doctrine in the ways the justices want, they depend on litigants to bring suits to them. Both of these cases represent unforced errors; liberal lawyers chose to fight for ideas the justices were explicitly appointed to oppose. Poorly chosen liberal challenges are a gift to a conservative majority eager to recast constitutional law.
Progressive lawyers need a strategic recalibration, something I argue in a forthcoming Cornell Law Review article. They need to stop reflexively turning to federal courts, and especially the Supreme Court. Avoiding high-risk, high-profile litigation in inhospitable forums does not mean abandoning constitutional advocacy. It means redirecting that advocacy toward the democratic arenas of constitutional politics, such as legislatures, ballot initiatives, grassroots organizing, and the broader public square. In these spaces, progressives can build popular support, blunt the impact of adverse rulings, and shape the constitutional culture that, over time, influences judicial doctrine itself.
The Skrmetti case began in April 2023, when the American Civil Liberties Union sued Tennessee to block the state from banning certain treatments of gender dysphoria for minors. (I’d worked at the ACLU as a legal fellow a year earlier but had no involvement in the case.) After an initial trial-court victory for the liberal plaintiffs, the state appealed the decision to the Sixth Circuit. That court overturned the lower court’s decision and upheld the ban.
The ACLU could have accepted this regional setback. The Sixth Circuit’s decisions bind just four states—Michigan, Ohio, Kentucky, and Tennessee. Although the outcome was surely painful for the plaintiffs, the ruling did not overturn other lower-court decisions protecting transgender rights that had been decided in other states. Declining to appeal need not constitute an endorsement of the decision. Rather, it would have reflected a pragmatic assessment that the Court’s conservative justices were more likely to amplify than alleviate harm.
Instead, the ACLU (later joined by the Biden administration) petitioned the Supreme Court to review the case. The Court’s conservative majority obliged and accepted the case for full review in June 2024. The decision written by Chief Justice John Roberts earlier this month, which was joined by all of his fellow Republican appointees, is the unhappy result.
In concrete terms, the decision allows states with previously blocked bans to seek their restoration, and emboldens states without bans to enact them, assured of constitutional cover. Yet when the Supreme Court adjudicates, it does more than resolve a dispute between two parties. It shapes the trajectory of constitutional interpretation and political contestation. Its rulings influence not just courts and legislatures but also public discourse and perception. By affirming the result and much of the rationale of the Sixth Circuit—and condoning the open animus toward transgender people voiced by Tennessee lawmakers—the Court didn’t merely uphold one type of law. It radiated anti-transgender sentiment in explicit constitutional doctrine and the wider constitutional culture that shapes politics, law, and public dialogue.
Legally, Skrmetti deprives transgender advocates of a key sex-discrimination argument and signals to lower courts that the highest court takes a skeptical view of transgender-rights claims made under equal-protection law. Politically, it encourages Republican officials to pursue even more restrictive laws targeting transgender people. Attorney General Pam Bondi and other Trump-administration figures praised the ruling and vowed to escalate their crackdown on transgender rights, including access to gender-affirming care treatments for minors in blue states.
Justice Amy Coney Barrett’s Skrmetti concurrence—joined in full by Justice Clarence Thomas and substantively endorsed by Justice Samuel Alito—goes further in inviting discrimination against transgender people. Before oral argument, some progressives had hoped that Barrett would serve as a swing vote to strike down the law. Instead, she staked out a position even more extreme than the majority opinion, writing that transgender people do not qualify as a suspect or quasi-suspect class under the equal-protection clause.
Her reasoning, if embraced by lower courts, would uphold sweeping discriminatory policies targeting transgender adults—such as bans on receiving gender-affirming care and using public facilities—under the guise of “legitimate regulatory policy.” And it telegraphs to lawmakers agitating for more aggressive attacks on transgender people that the Court will not stand in their way.
Advocates should know that this is a risk they are taking. Supreme Court justices have little stopping them from addressing unraised issues and disturbing unrelated precedent. The Roberts Court has made something of a habit of doing so, with its conservative justices frequently reaching to decide questions not before them. In Skrmetti, instead of merely applying precedent on the appropriate standard for evaluating Tennessee’s law and then remanding to the Sixth Circuit for further proceedings, the conservative majority decided the law’s constitutionality outright—an aggressive and unnecessary move.
That this was totally avoidable underscores that liberal advocates would be wise to refrain from channeling long-shot cases to unsympathetic courts—not just the Supreme Court but many federal appellate courts as well, which are filled with ideologically vetted conservative judges from the previous Trump term. Even if liberals do occasionally win at appellate courts, those victories can prove Pyrrhic, setting up conservatives with a fast track to the Supreme Court.
Mahmoud v. Taylor offers a cautionary tale of initial liberal wins turning into bigger defeats. After adding books with LGBTQ characters and themes to elementary curricula, the public-school district in Montgomery County, Maryland, created a notice and opt-out system for parents who wanted to withdraw their kids from instruction with the materials. The district later removed the opt-out system following protests from LGBTQ families that found it stigmatizing and discriminatory.
Then a coalition of Muslim and Christian parents with young children objected to the removal. By all accounts, these parents were sincere in their religious convictions. They sought accommodations that neighboring school districts had given similarly situated parents; none wanted to ban the books entirely from the school. Many of the objecting parents were comfortable with their kids reading the books at more advanced ages. Yet the district refused to compromise, dismissing hundreds of parental complaints requesting a restoration of the opt-out. What could have been resolved through negotiation transformed into a culture-war flash point and a lawsuit.
From the outset of litigation, the school district should have seen the warning signs. The Becket Fund, a powerhouse religious-liberty organization that has won eight (and lost zero) Supreme Court cases in the past decade, represented the parents in their suit, and conservative media outlets regularly covered even routine procedural developments. That should have alerted the district that the stakes were far greater than local policy.
A strategic retreat—restoring the opt-out and pursuing legal maneuvers to moot the case, including after the Court granted certiorari—would have shown prudence, not capitulation. Instead, the district pressed on. Its temporary wins at the trial and appellate stages then teed up the Supreme Court reversal that has now reshaped constitutional doctrine nationwide. In ruling for the parents, the Roberts Court extended a nearly unbroken streak of favoring free-exercise claimants, largely conservative Christians.
Mahmoud imposes a rigid, nationwide rule that sharply limits schools’ ability to balance inclusion with parental concerns. Discovering a new constitutional right for parents to opt out of teaching “subtle” themes that conflict with their religious beliefs, the decision strips locally elected school boards of the power to make nuanced curricular judgments and hands it to federal judges. It saddles schools with new administrative burdens, inhibits the development of pluralistic curricula, and invites ideological censorship masquerading as religious accommodation.
Ironically, a local effort to affirm LGBTQ dignity in a county of 1 million residents led the Supreme Court to inflict a blow to that dignity across a nation of 340 million. Much was lost in the crossfire. As Justice Sonia Sotomayor warned in her dissent, Mahmoud threatens the “very essence” of American public education and democracy.
For advocates in the progressive legal world, deprioritizing litigation will require a theoretical shift, a move away from the court-centric constitutional vision that has defined progressive legal thought since the Warren and early Burger Courts and has been sustained by occasional liberal victories in the Rehnquist and Roberts Courts. It will necessitate recognizing that the Court is not the sole or even primary engine of constitutional interpretation.
The Court’s pronouncements on constitutional law are important, of course. But other institutions and spaces—legislatures, referenda, classrooms, workplaces, media, even group chats and other parts of the public square—have a role to play in the articulation of constitutional ideas. De-emphasizing the courts as sources of legal interpretation and policy change can allow progressives to correctly conceptualize constitutional politics as a participatory, democratic project with institutional and noninstitutional dimensions, not a top-down one outsourced to nine people on the Supreme Court.
The public’s views should matter a great deal. No Court, however reactionary, operates in a vacuum or with impunity. Justices are shaped by the same gravitational social and political forces as everyone else. As Justice Benjamin Cardozo observed in 1921, “The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.”
Polling shows that most Americans, including four out of every five Republicans, support restrictions on gender-affirming care for minors. Even in liberal Maryland, two-thirds of voters oppose LGBTQ-focused curricula for young students. Asking a conservative court to override that sentiment—to go where many Democratic voters have yet to go—was never viable. Without public opinion on their side, liberal litigators had little leverage or hope of winning.
I saw this disconnect up close at the ACLU. My colleagues were smart and dedicated, carrying the immense emotional weight of fighting for the fundamental dignity of vulnerable people in a climate of growing prejudice and political attack. But many treated any doubts about transgender rights as simple bigotry. Although this approach foregrounded empathy for transgender people, it often failed to genuinely engage with the majority of Americans, who had questions about athletic competition and medical decisions for minors.
Rather than speak directly to these concerns, liberal litigators sometimes scorned public opinion, confident in the righteousness of their views. As a recent New York Times Magazine feature revealed, the legal advocates behind Skrmetti operated from academic and activist theories of sex and gender that were out of the mainstream. While public support for transgender rights and the medical consensus on treatments for minors’ gender dysphoria fractured, advocates such as the ACLU doubled down on rhetorical purity rather than persuasion. In one widely shared post, the ACLU declared, “Men who get their periods are men. Men who get pregnant and give birth are men.” Another post dismissed as a “MYTH” the near–universally held view that “sex is binary, apparent at birth.” This kind of messaging garners engagement in insular, algorithm-driven online spaces but does not create a cultural foundation that moves skeptical voters and conservative judges. A political and legal strategy anchored in Judith Butler is not going to convince Brett Kavanaugh.
This recalibration doesn’t mean giving up on litigation altogether. But it does mean approaching it with greater realism, aiming for incremental change, not sweeping wins. It requires reading the judicial landscape honestly, studying conservative legal thinking carefully, recognizing when legal action may do more harm than good, and accepting some losses in order to preempt even bigger ones. For example, the Sixth Circuit’s Skrmetti opinion, written by Chief Judge Jeffrey Sutton, clearly foreshadowed where Roberts, Kavanaugh, and Barrett were likely to land, given Sutton’s influence on contemporary conservative legal thought and the intellectual proximity of his approach and their own. Ditto for Judge A. Marvin Quattlebaum Jr., a Trump appointee to the Fourth Circuit who dissented in Mahmoud.
There’s a revealing paradox in contemporary liberal legal advocacy at the Supreme Court. Many progressives describe the current Court as dangerously rogue and reactionary. Yet their actions suggest a lingering faith in the Court’s legitimacy and potentiality as an agent of progressive change. This dissonance surfaces when an ACLU lawyer who calls the Supreme Court a “vile institution” is the same person who brought Skrmetti to it. Ultimately, a Court that cannot be trusted to protect rights should not be empowered to undermine them.
The path forward lies in organizing, legislating, and persuading, not in supplicating before an antipathetic bench. If they take this new path, progressives may find that they can cultivate constitutional power in places the Court cannot reach.
The post The Left’s Litigation Trap appeared first on The Atlantic.
