Supreme Court Justice Ketanji Brown Jackson Begins New Term

Justice Ketanji Brown Jackson has returned from her summer break and is diving into the new term with her usual analytical perspective.

Jackson, along with her fellow justices, recently engaged in oral arguments on several cases, including Chiles v. Salazar. During a session this Tuesday, one of Jackson’s queries encouraged lawyers to reference the First Amendment.

The case was brought forth by Kaylee Chiles, a therapist and evangelical Christian. Under Colorado regulations, Chiles cannot verbally discourage clients from pursuing same-sex relationships or gender transition.

Justice Jackson posed a clarifying question to Chief Deputy Attorney General Hashim M. Muppan, who supported Chiles’s argument.

“So, can I ask you a broader question? Why isn’t this regulation actually equivalent to [United States v. Skrmetti]?” Jackson inquired. “Despite there being two constitutional provisions involved, they seem to work similarly, which raises questions about judicial scrutiny applying here.”

In USA vs. Skrmetti, the court determined that certain medical procedures for transgender minors in Tennessee aren’t scrutinized under the Equal Protection Clause of the Fourteenth Amendment.

“Well, the Skrmetti Act involved rules based on age and treatment,” Muppan noted.

Jackson responded, explaining that in Skrmetti, the state intended to restrict gender-affirming medical care for minors. “We allowed that, understanding the nuances of the constitutional argument, but states can indeed impose bans.”

“In this instance, states aim to prohibit gender-related talk therapy, but now we’re faced with the First Amendment, which limits state actions. I’m, frankly, quite concerned about parity in this matter,” Jackson wrapped up.

Jackson’s comments hint at a broader philosophical debate about therapy and its categorical distinctions.

Jackson thoughtfully engaged Muppan in the discussion.

It’s possible Jackson found it challenging to distinguish between regulating speech and banning medical practices.

Some commentators noted Jackson’s interrogation technique, suggesting it revealed deeper insights into the Supreme Court’s handling of cultural issues.

At one point, Jackson wondered aloud, “There are about 25 states with similar laws. Is there evidence of harm resulting from this?”

It’s a noteworthy point, as the popularity of a practice doesn’t necessarily correlate with its benefits.

Interestingly, even Justice Elena Kagan expressed doubts about the constitutionality of Colorado’s law.

Kagan presented a scenario involving two doctors discussing a gay patient.

“If one doctor says, ‘I know you’re gay, and I’m here to help you accept that,’ while another insists, ‘I know you’re gay, and I’m here to help you change that,’ one perspective is legitimate and the other isn’t. That feels like perspective discrimination,” Kagan remarked.

Defense attorneys aligned with Kagan, asserting that certain medical practices need individualized consideration.

“Healthcare must be treated distinctly—when you remove one harmful practice, you’re essentially deeming the rest permissible based on their perceived safety,” the attorneys pointed out.

This raises the question of what constitutes harmful behavior, which could, in some cases, simply involve affirming a child’s identity.