SCOTUS Puts Skrmetti SDP Case Out Of Its Misery

Last week I speculated what would happen to the ACLU’s cert petition in Skrmetti that raised the Due Process issue. I wondered if the Court would GVR the parental rights issue in light of Mahmoud.

Today’s order list denied review in L.W. v. Skrmetti. There were no recorded dissents. It seems the Due Process claim is now dead. The Tennessee law, and others like it, will now go into effect.

Indeed, the Court GVR’d several related cases. First, West Virginia excluded treatment for gender dysphoria from Medicaid. The Fourth Circuit held this exclusion violated the Equal Protection Clause. Second, North Carolina excluded treatment for gender dysphoria from the state employee health plan. The Fourth Circuit likewise ruled against the state. Third, Idaho denied Medicaid coverage for sex-reassignment surgery. After Skrmetti was argued, the Ninth Circuit found this ruling was unlawful.

These issues will bubble back to the Court in a year or so. Let’s see if the Fourth Circuit can see the writing on the wall. Speaking of which, guess which Circuit was the “Biggest Loser” at the Court this term? No, it was not my beloved Fifth Circuit.

David Lat explains (based on Adam Feldman’s Stat Pack):

Some circuits got reversed a lot. Subjectively and anecdotally, it felt to me that the Fifth Circuit took it on the chin this Term in terms of reversals. But if you look at reversals in percentage terms, the First, Fourth, Ninth, and Tenth Circuits were the most reversed, all with a 100 percent reversal rate—based on two, eight, four, and five cases decided by SCOTUS, respectively. So with a 0-8 record before the justices, the Fourth Circuit was the “biggest loser,” in terms of the court with the highest reversal rate and the highest total number of cases. (The Ninth Circuit had three cases that were dismissed as improvidently granted.)

The Fifth Circuit didn’t do that badly. The Fifth Circuit had the most total cases reversed (10), and some were high-profile—such as Bondi v. VanDerStock (a statutory-interpretation case about “ghost guns”), Kennedy v. Braidwood Management (an Appointments Clause challenge to an Affordable Care Act-created task force), and FCC v. Consumers Research (a nondelegation challenge to the FCC’s “universal service” scheme). But the Fifth Circuit wound up with a 77 percent overall reversal rate, since it was also affirmed in three appeals—including the closely followed Free Speech Coalition, Inc. v. Paxton (a First Amendment challenge to an age restriction for pornography websites).

I think the reversal rate should include GVRs as well.

Stay tuned for more.

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