Justice Sonia Sotomayor, one of the court’s three liberals, wrote a scathing dissent criticizing her conservative colleagues’ decision to uphold a state ban on some medical treatments for transgender youths.
The justice said that the court had retreated from “meaningful judicial review exactly where it matters most,” adding that “the court abandons transgender children and their families to political whims.”
Justice Sotomayor also took the rare step of reading her dissent from the bench during the opinion announcement on Wednesday, a move typically reserved to emphasize a justice’s extreme displeasure with a decision.
She took issue with the majority’s view that questions about such medical treatments should be resolved by “the people, their elected representatives and the democratic process.” In her 31-page dissent, she argued that “judicial scrutiny has long played an essential role” in guarding against efforts by lawmakers to “impose upon individuals the state’s views about how people of a particular sex (or race) should live or look or act.”
Justice Sotomayor pointed to landmark Supreme Court cases that pushed back against discriminatory laws and policies. She cited United States v. Virginia, the 1996 case in which the court struck down Virginia Military Institute’s male-only admissions policy, along with Loving v. Virginia, the 1967 case that declared state laws prohibiting interracial marriage unconstitutional.
“Those laws, too, posed politically fraught and contested questions about race, sex and biology,” the justice wrote. In the interracial marriage case, she wrote as an example, Virginia had argued that if the court intervened in the matter, it would find itself in a “bog of conflicting scientific opinion upon the effects of interracial marriage, and the desirability of preventing such alliances, from the physical, biological, genetic, anthropological, cultural, psychological and sociological point of view.”
Her dissent was joined fully by Justice Ketanji Brown Jackson and, in part, by Justice Elena Kagan.
Although justices often include “respectfully” in the essay explaining their dissents, Justice Sotomayor wrote only this: “In sadness, I dissent.”
Abbie VanSickle covers the United States Supreme Court for The Times. She is a lawyer and has an extensive background in investigative reporting.
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