An Originalist Analysis of United States v. Skrmetti

Balancing Constitutional Text and State Authority

Introduction

On June 18, 2025, the Supreme Court, in a 6-3 decision in United States v. Skrmetti, upheld Tennessee’s Senate Bill 1 (SB1), which bans gender-affirming medical treatments, such as puberty blockers and hormones, for minors with gender dysphoria. The majority opinion, authored by Chief Justice John Roberts, applied rational basis review, finding the law constitutional under the Equal Protection Clause of the 14th Amendment by classifying based on age and medical purpose, not sex or transgender status. Concurring opinions by Justices Thomas, Barrett, and Alito, and dissenting opinions by Justices Sotomayor and Kagan, reveal a deep divide over the appropriate level of scrutiny and the role of judicial review in regulating medical practices for minors. From an originalist perspective, which prioritizes the Constitution’s text and its meaning at the time of ratification, this column evaluates each opinion, assessing fidelity to the 14th Amendment’s original understanding and the proper scope of state authority.

Majority Opinion: Chief Justice Roberts

Chief Justice Roberts’s majority opinion holds that SB1 does not violate the Equal Protection Clause, as it classifies based on age and medical purpose, not sex or transgender status, and satisfies rational basis review. From an originalist perspective, this approach aligns with the 14th Amendment’s text, which guarantees “equal protection of the laws” but does not explicitly mandate heightened scrutiny for classifications unrelated to race or other historically suspect categories at the time of ratification in 1868. The Equal Protection Clause was primarily intended to protect newly freed slaves from discriminatory state laws, with no evidence that its framers contemplated sex or transgender status as protected classes requiring heightened scrutiny.

Roberts’s reliance on rational basis review, citing precedents like FCC v. Beach Communications, Inc. (1993), reflects judicial restraint consistent with originalism’s deference to state legislatures absent clear constitutional violations. By emphasizing Tennessee’s legitimate interest in protecting minors from potentially harmful, irreversible treatments, Roberts avoids imposing modern policy preferences on the Constitution’s text. His distinction from Bostock v. Clayton County (2020), which addressed employment discrimination under Title VII, correctly limits that precedent’s reach to statutory, not constitutional, interpretation, preserving the 14th Amendment’s original scope.

However, Roberts’s invocation of Geduldig v. Aiello (1974) to argue that not all sex-referencing laws trigger heightened scrutiny is less persuasive from an originalist lens. While Geduldig supports his conclusion, its reasoning relies on post-ratification judicial gloss rather than the 14th Amendment’s historical context. An originalist might prefer a clearer textual analysis grounding SB1’s permissibility in the absence of any 1868 understanding that medical regulations for minors implicate equal protection guarantees. Nonetheless, Roberts’s deference to Tennessee’s legislative findings, bolstered by scientific uncertainty (e.g., the Cass Review), upholds the originalist principle that states retain broad authority over public health and welfare unless explicitly constrained by the Constitution.

Concurrence: Justice Thomas

Justice Thomas’s concurrence, joined by no other justice, offers the most robust originalist critique, challenging the Court’s modern equal protection jurisprudence itself. He argues that the Equal Protection Clause, as understood in 1868, does not support heightened scrutiny for sex-based classifications, let alone transgender status, and calls for revisiting cases like United States v. Virginia (1996). Thomas contends that the clause was meant to prohibit arbitrary state discrimination, primarily against racial minorities, and that extending heightened scrutiny to new categories lacks textual or historical basis.

From an originalist perspective, Thomas’s approach is exemplary. He anchors his analysis in the clause’s original public meaning, citing historical evidence that its framers focused on racial equality, not sex or gender identity. His skepticism of judicially created tiers of scrutiny aligns with originalism’s rejection of evolving constitutional standards detached from the text’s fixed meaning. Thomas’s discussion of SB1’s risks, referencing medical evidence like the Cass Review, reinforces the state’s police power over health regulations, a domain clearly reserved to states under the 10th Amendment’s original understanding.

However, Thomas’s broad call to overhaul equal protection doctrine may exceed the case’s necessities, risking accusations of judicial overreach-an irony for an originalist. While his historical analysis is compelling, a narrower focus on SB1’s constitutionality under the clause’s original meaning would suffice, avoiding speculative dicta that could unsettle established precedent unnecessarily.

Concurrence: Justice Barrett

Justice Barrett’s concurrence, joined by Thomas, supports the majority’s rational basis review but focuses on why transgender status does not qualify as a suspect class under equal protection precedent. She argues that suspect classes require a history of de jure discrimination, immutable characteristics, and political powerlessness-criteria she finds lacking for transgender individuals due to their diverse identities and absence of uniform historical discrimination. Barrett warns that heightened scrutiny could entangle courts in policy debates over issues like restroom access, advocating judicial restraint.

From an originalist perspective, Barrett’s concurrence is partially successful. Her emphasis on judicial restraint and deference to legislatures aligns with the 14th Amendment’s limited role in constraining state authority absent clear textual violations. Her analysis of suspect class criteria, while rooted in modern precedent like Cleburne v. Cleburne Living Center, Inc. (1985), indirectly supports an originalist view by rejecting novel expansions of protected classes not contemplated in 1868. The framers of the 14th Amendment did not address transgender identity, and Barrett’s refusal to recognize it as a suspect class respects that historical silence.

However, Barrett’s reliance on post-ratification precedents like Geduldig and Cleburne dilutes her originalist credentials. An originalist analysis would prioritize the clause’s text and historical context over judicially crafted suspect class tests, which are themselves products of modern jurisprudence. Her concern about policy entanglement is valid but less relevant to an originalist inquiry, which focuses solely on constitutional meaning, not practical consequences.

Concurrence: Justice Alito

Justice Alito’s concurrence, joined by Thomas, agrees with the majority’s outcome but proposes a narrower test: a law does not classify based on sex unless it explicitly creates different rules for all men versus all women. He argues SB1 meets this standard, as it applies uniformly to all minors regardless of sex, and questions whether transgender status warrants heightened scrutiny due to insufficient historical discrimination. Alito’s approach avoids broad implications for other sex-based laws, preserving legislative flexibility.

From an originalist perspective, Alito’s concurrence is more textually grounded than the majority’s. His focus on explicit sex-based classifications aligns with the 14th Amendment’s original intent to prohibit overt, arbitrary discrimination, primarily racial. By limiting heightened scrutiny to laws targeting entire sexes, Alito avoids expanding the clause beyond its 1868 meaning, where medical regulations or gender identity were not constitutional concerns. His skepticism of transgender status as a suspect class further respects the historical context, as no evidence suggests the framers contemplated such categories.

However, Alito’s test risks oversimplifying equal protection analysis by ignoring laws that indirectly discriminate through sex-based proxies, a concern raised in historical debates over covert racial discrimination. An originalist might argue that the clause prohibits state actions lacking a rational, non-arbitrary basis, regardless of explicit classification, though SB1’s health-based rationale likely satisfies this standard.

Dissent: Justice Sotomayor

Justice Sotomayor’s dissent, joined by Justice Jackson and partially by Justice Kagan, argues that SB1 discriminates based on sex and transgender status, requiring intermediate scrutiny. She contends that SB1’s prohibition on treatments “inconsistent with” a minor’s sex inherently ties access to care to sex assigned at birth, violating equal protection principles as articulated in Bostock. Sotomayor warns that the majority’s rational basis review undermines precedent and harms transgender youth, comparing SB1 to historical bans on interracial marriage.

From an originalist perspective, Sotomayor’s dissent strays far from the 14th Amendment’s original meaning. The clause’s framers did not contemplate sex as a suspect class, let alone transgender status, which was unknown in 1868. Her reliance on Bostock, a statutory interpretation case, misapplies Title VII’s modern framework to constitutional analysis, ignoring the distinct historical contexts. Sotomayor’s call for intermediate scrutiny reflects a living constitutionalist approach, prioritizing evolving social norms over fixed textual meaning. Her analogy to Loving v. Virginia (1967) is inapt, as racial discrimination was the clause’s core concern, unlike sex or gender identity.

Sotomayor’s focus on transgender discrimination and harm to minors, while emotionally compelling, lacks historical grounding. An originalist would argue that policy debates over medical treatments belong to legislatures, not courts, absent a clear constitutional violation. Her dissent’s expansive view of equal protection risks judicial overreach, imposing contemporary values on a text meant to address 19th-century concerns.

Dissent: Justice Kagan

Justice Kagan’s dissent, joined only in part by Sotomayor, agrees that SB1 warrants heightened scrutiny due to its sex-based classifications but takes no position on the law’s constitutionality under that standard. She argues that intermediate scrutiny is necessary to detect invidious discrimination and calls for remand to lower courts to evaluate SB1’s justification. Kagan emphasizes the complexity of the record and the Sixth Circuit’s failure to apply the correct standard.

From an originalist perspective, Kagan’s dissent is marginally closer to the text than Sotomayor’s but still flawed. Her focus on heightened scrutiny for sex-based classifications relies on modern precedents like Virginia, which lack clear roots in the 14th Amendment’s 1868 meaning. While her call for remand reflects judicial modesty, it assumes the clause requires scrutiny beyond what its framers intended for non-racial classifications. Kagan’s avoidance of a definitive ruling on SB1’s merits does not salvage her departure from originalism, as the threshold question of scrutiny level already exceeds the clause’s historical scope.

Conclusion

The Skrmetti decision reflects a triumph of judicial restraint, with the majority and concurrences correctly deferring to Tennessee’s legislative authority to regulate medical treatments for minors, consistent with the 14th Amendment’s original meaning. From an originalist perspective, Justice Thomas’s concurrence offers the strongest fidelity to the text, challenging the Court’s modern equal protection framework and grounding SB1’s constitutionality in the clause’s historical focus on racial equality. Roberts’s majority and Alito’s concurrence also align with originalism by applying rational basis review and rejecting novel suspect classes, though their reliance on post-ratification precedents like Geduldig is less textually pure. Barrett’s concurrence, while pragmatic, leans too heavily on modern suspect class criteria, diluting its originalist rigor.

The dissents, particularly Sotomayor’s, diverge sharply from originalism, embracing a living constitutionalist approach that expands equal protection beyond its 1868 meaning. Kagan’s narrower dissent, while more restrained, still assumes a scrutiny level unsupported by the clause’s historical context. Ultimately, Skrmetti upholds the originalist principle that states retain broad authority over health and welfare absent explicit constitutional constraints, leaving contentious medical policy debates to the democratic process where they belong. The decision reinforces the Constitution’s enduring limits on judicial power, a cornerstone of originalist thought.

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