Seeking justice by changing the subject.
Conservative jurisprudence has been casting about for over 40 years, trying to find an anchoring ground or even a stable definition of “originalism.” But with the advent of Justice Brett Kavanaugh to the Supreme Court and the decision in Dobbs v. Jackson Women’s Health Organization (2022), overruling Roe v. Wade (1973), the tagline for conservative jurisprudence might now be, “Conservative Jurisprudence: Seeking Justice by Changing the Subject.” And the mission statement: “We carefully, and steadily, steer around those questions of moral substance that stand at the heart of our gravest cases.”
In the Dobbs case, Kavanaugh took his bearings by noting that the country was deeply divided on this contentious matter. One notable sign, he said, was that “many pro-life advocates forcefully argue that a fetus is a human life”—”forcefully argue,” as though there is no long-settled, empirical truth on this matter, found in all of the textbooks of embryology, as though there never could be a truth of the matter. In other words, in this mode of conservative jurisprudence, the judges must affect not to know the plainest objective truth that bears on the practical judgment here.
The American regime began with the declaration that the reigning purpose of any legitimate government was to secure those rights that flowed by nature to human beings, those beings found in nature between animals and angels. But now we have products of the best colleges and law schools who cannot give an account of that very creature who is the bearer of rights and the object of the law’s protection. (The late Justice Scalia famously noted in 1992 that the “whole argument” about abortion is whether that nascent life in the womb is a human being, and “there is of course no way to determine that as a legal matter; it is in fact a value judgment.”)
Kavanaugh’s opinion evidently marked the price that Justice Samuel Alito had to pay for the vote to overrule Roe v. Wade. The Court would simply declare that federal judges had no ground to declare a “constitutional right to abortion.” But the Court would not recognize the growing child in the womb as a human being—with all the protections that flow to that human being under the Constitution. If that cardinal point had been recognized, the 14th Amendment would have kicked in. Congress—and federal judges—could intervene when blue states refused to extend the protection of the law to a whole subset or class of human beings.
Recently, in U.S. v. Skrmetti (2025), the Court had the chance to contain another cultural wildfire, this one ignited by Justice Gorsuch (the successor to Justice Scalia) when he put wind in the sails of transgenderism as a constitutional right in Bostock v. Clayton County (2019). True to form, conservative jurisprudence hemmed in the edges of the blaze while dodging the core issue and failing to fight the fire at its source. In Skrmetti, the legislature in Tennessee barred the disfiguring surgeries and treatments of “gender-affirming care”—even when parents, terrified by threats to the mental well-being of their children, were ready to take leave of their sober judgment and order up such treatments. When the law was challenged, the federal appellate court in the Sixth Circuit concluded that the legislature had evidence enough of the harm rendered by these surgeries that there was a rational justification for this law. When the case reached the Supreme Court, Chief Justice Roberts was content to sustain the judgment of the appellate court with the same reasoning.
One good outcome was racked up, but once again the conservative judges backed away from the hard truth at the core of these cases and took “the low door under the wall.” They were willing to settle with the conventional rationale, good enough to get through the day. But they turned away from the truths that supplied the deepest, most compelling justification for the law in Tennessee: that the whole scheme of science fiction surgeries and the fables of gender-affirming care were predicated on a falsehood. These celebrated surgeries may produce cosmetic prodigies, planting fake penises or faux vaginas; they can permanently disfigure and render their patients sterile. But the one thing they cannot do is change a male into a female or a female into a male. As my colleague Gerard Bradley has so concisely put it, “Sex is immutable…. The indelible biological differences between male and female inhabit every one of the human body’s trillions of nucleated cells.”
In foregoing this course of argument, the conservative justices chose a path that had the advantage of being familiar, even though it meant bypassing an inescapable, objective truth. This despite the fact that the truth in question is a matter of sound biology and has nothing at all to do with religious beliefs.
In handling the Skrmetti case as it did, the Court virtually invited the challenge it just heard in the case of Chiles v. Salazar. Kaley Chiles is a licensed professional counselor in Colorado. Her counsel takes the form of conversation or “talk,” and she has specialized in dealing with clients troubled by addiction, trauma, sexuality, and gender dysphoria. She sees herself as quite vulnerable now to a law passed in 2019 that bars “conversion therapy.” She and her backers in the litigation have cast this as a problem of “coerced speech,” with the authorities in Colorado violating one of Justice Scalia’s key tests by banning speech based decisively on the “perspective” it brings to these cases. Which is to say, Ms. Chiles readily conveys her judgment that these “gender-affirming” treatments are harmful, with enduring, tragic, and irreversible effects. In most cases, the dysphoria will simply ease away as children get older and gain a firmer hold on the world. The authorities argued that Ms. Chiles is engaged in medical treatment. Her defense is that she prescribes no drugs and deals only in words.
But once again, to contest the case as “coerced speech” is to take the “low door under the wall” and skirt the key philosophical issue. That issue is the one Lincoln caught with a steely logic in his famous address at the Cooper Union in February 1860. “If slavery is right,” said Lincoln, “all words, acts, laws, and constitutions against it, are themselves wrong, and should be silenced, and swept away.” If he conceded the rightness of slavery, then he could go along with the demand that inflammatory abolitionist literature be screened from the national mails. “Holding as they do that slavery is morally right, and socially elevating,” he said, the defenders of slavery “cannot cease to demand a full national recognition of it, as a legal right, and a social blessing. Nor can we justifiably withhold this, on any ground save our conviction that slavery is wrong. Their thinking it right, and our thinking it wrong, is the precise fact upon which depends the whole controversy” (emphasis added).
George H.W. Bush appointee David Souter, in one of his earliest cases on the Supreme Court, sustained the policy of barring people receiving federal funds, in public or private institutions, from recommending abortion as the way to treat an unwanted pregnancy. The Bush Administration regarded abortion as something undesirable and wrongful, a thing not to be promoted by the government. The legislators in Colorado look upon transgender care as an unalloyed good, something that deserves to be promoted with every resource of the law. For them it follows that all of those words set against it—the words that cast up challenges and encourage resistance—are words, as Lincoln said, that “should be silenced and swept away.” That Kaley Chiles regards transgender care as something to be resisted is, as Lincoln said, “the precise fact upon which depends the whole controversy.”
For all we know, Kaley Chiles will prevail in this singular challenge. But this is the way that conservative jurisprudence limps along, generating one new wrinkle, or slightly different case, after another, but with each step drifting further from the recognition of what that central question, through it all, had been.
And indeed, Alliance Defending Freedom, which represents Kaley Chiles, has also moved quickly to defend two couples in Massachusetts, both denied the license to act as foster parents because they wouldn’t sign onto the reigning orthodoxy that gender is fluid. But at root, this is the same problem. The law has moved from ordering surgeries in Tennessee to barring foster parents in Massachusetts, and it threatens now to metastasize as the federal courts keep expanding the obligations of private employers to fund transgender surgeries and treatments, in measures ever fuller. It has done so because the people promoting transgenderism believe it to be good.
Nothing can truly fix this like an act of Congress, for the Trump Administration’s executive orders may be swept away in another administration. But in the meantime the confusion that began with Justice Gorsuch in the Bostock case continues to spread widely across the country. Why should the Supreme Court not lend a hand by delivering a mind-clearing lesson, simply reminding us of the inescapable, objective truths about the way we are constituted as human beings? The American regime began with the recognition of those rights that flow to human beings by nature; it cannot be beyond the job description of the justices simply to report anew on how these rights-bearing creatures are constituted.
