Americans were amazed during then-Supreme Court nominee Ketanji Brown Jackson’s Senate confirmation hearing when she could not or rather, would not, answer Sen. Marsha Blackburn’s (R-TN) simple question: What is a woman?
Brown Jackson replied, “No. I can’t.”
Blackburn pressed, “You can’t?”
The nominee said, “Not in this context. I’m not a biologist.”
KBJ came dangerously close to that level of vacuity on Wednesday during oral arguments in the case of United States v. Skrmetti. The question before the Court is whether Tennessee Senate Bill 1 (SB1), which prohibits gender-transition treatments for minors, “violates the Equal Protection Clause of the Fourteenth Amendment.”
U.S. Solicitor General Elizabeth Prelogar argued that laws prohibiting such treatments constitute “sex discrimination” because a minor’s gender is a determining factor in accessing specific medical care for transitioning.
Brown Jackson took things even further, suggesting parallels between this case and Loving v. Virginia, a 1967 case that struck down laws banning interracial marriage.
She continued:
I’m thinking in particular about Loving v. Virginia, and I’m wondering whether you thought about the parallels, because I see one as to how this statute operates and how the anti-miscegenation statutes in Virginia operated….The question was whether it was discriminatory because it applied to both races and it wasn’t necessarily invidious. … But, as I read the case here, the court starts off by saying that Virginia is now one of 16 states that prohibit and punish marriages on the basis of racial classifications. And when you look at the structure of that law, you know you can’t do something that is inconsistent with your own characteristics is sort of the same thing.So, it’s interesting to me that we now have this different argument and I wonder whether Virginia could have gotten away with what they did here by just making a classification argument the way that Tennessee is in this case….
I mean, these laws, the law here [SB1] operates in the same way. The question of can you marry this other person depended upon what your race was. You could marry the other person if it was the same, consistent with your race. … If you couldn’t, I take your law to be doing basically the same thing.
Tennessee Solicitor General J. Matthew Rice replied, “Giving testosterone to a boy with a deficiency is not the same treatment as giving it to a girl who has psychological distress associated with her body.”
Prelogar responded, “Yes, I think there is absolutely a parallel between any law that says you can’t act inconsistent with the protected characteristic. … ”
[Full oral arguments can be viewed on C-SPAN.]
Brown Jackson and Prelogar may be the only two individuals who equate allowing a minor (who more often than not is simply a confused adolescent who is likely to change their mind) to undergo irreversible medical treatments, to Virginia lawmakers who wanted to ban interracial marriage in the 1960s.
It was a remarkable statement for anyone to make. But, coming from an associate justice of the Supreme Court, it was alarming.
Reactions to Brown Jackson’s “legal analysis” were not kind.
RedState’s Jeff Charles summed up KBJ’s profoundly stupid remarks best of all: He wrote: “It’s only funny until you remember that these nutjobs have lifetime appointments on the highest court in the land.”
Brown Jackson needs to recognize that the cultural landscape is shifting. Under the Biden administration, the pendulum swung as far to the left as it possibly could. This demanded that even the most extreme views on race and social justice be entertained. However, last month’s election sent a clear message: voters are rejecting “woke” policies in favor of fairness and justice.
Those who continue to focus on divisive issues like pronouns or advocating for transgender participation in women’s sports risk being left behind in this changing climate.
Unfortunately, as Charles pointed out, Brown Jackson and her like-minded colleague, Associate Justice Sonia Sotomayor—who compared the risks of transgender treatments to taking aspirin on Wednesday—are appointed for life.
Elizabeth writes commentary for The Washington Examiner. She is an academy fellow at The Heritage Foundation and a member of the Editorial Board at The Sixteenth Council, a London think tank. Please follow Elizabeth on X or LinkedIn.
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