Justices Samuel Alito and Clarence Thomas have again tipped their hands and shown that ideology guides their Supreme Court judgments more than legal philosophy, according to a report.
The conservative jurists issued conflicting decisions last week in a pair of cases involving parental rights and gender identity, offering contradictory analyses that Slate columnist Hila Keren said "reveal a position of parental rights for me but not for thee."
"If our Constitution protects parents’ autonomy regarding their children’s upbringing, how can the protection apply only to parents who oppose responsiveness to gender-identity issues?" wrote Keren, a professor at Southwestern Law School. "And if Alito and Thomas are so convinced that courts should hear those parents, why do they sound so eager to allow Tennessee to override parents’ support of their children’s gender identity?"
Keren was referring to decisions including one regarding a case called Parents Protecting Our Children v. Eau Claire Area School District. The pair ruked that a petition by conservative parents against a Wisconsin school district offering support to students experiencing gender identity issues should have been granted.
But in an earlier ruling this month, U.S. v. Skrmetti, no concern for parental rights was shown by the two justices when they considered and Tennessee ban on gender-affirming care for children. The concerns of parents of children who will suffer because of the termination of their care was brushed aside, Keren wrote.
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Keren argued that Alito failed to show even minimal commitment to consistency and impartiality in his decisions on the two cases, although she was heartened that three other conservatives — Chief Justice John Roberts and justices Neil Gorsuch and Amy Coney Barrett — refused to consider the premature concerns of parents of children who had not suffered any harm, and she was confused by Brett Kavanaugh's position on the cases.
"His willingness to hear conservative parents in Eau Claire matches his interest in Tennessee’s response in Skrmetti to the argument that the state should have deferred to parents on medical care issues," Keren wrote.
"He was also careful not to join Alito and Thomas’ call to federal judges to delve into difficult constitutional questions, which aligns with his comment in Skrmetti that policy debates might better be left to the democratic process. Time will tell if Kavanaugh will show consistency and support granting the still-pending petition of the parents in Skrmetti or any forthcoming similar petitions that Barrett explicitly invited during oral arguments."
