Gloomy MSNBC Pre­tends SCOTUS Strik­ing Down Hor­mones For Minors Would Be Hyp­o­crit­i­cal

For­mer U.S. Attor­ney and cur­rent MSNBC legal ana­lyst Bar­bara McQuade was dis­tressed on Wednesday’s edi­tion of Andrea Mitchell Reports as she tried to argue that the Supreme Court would be hyp­o­crit­i­cal if it decides to uphold Tennessee’s ban on gen­der-alter­ing care for minors.

Mitchell asked McQuade to break out her crys­tal ball, “And while we’re lis­ten­ing to the argu­ments based on what you heard, how is this 6‑to‑3 con­ser­v­a­tive major­i­ty Court like­ly to rule?”

McQuade replied that, “Well, I’m trou­bled by a cou­ple of things that I’ve heard in the argu­ments today. Of course, it’s a hard ques­tion, but what the Court is sup­posed to decide here is whether this vio­lates the Con­sti­tu­tion by mak­ing a deter­mi­na­tion on the basis of sex, not whether it is good or bad pol­i­cy. That is some­thing for leg­is­la­tures and doc­tors to decide.”

The oth­er side of the coin is the ques­tion of whether a state can reg­u­late med­i­cine, the answer to which is clear­ly yes. There­fore look­ing into the state’s jus­ti­fi­ca­tion for the ban makes com­plete sense. Still, McQuade lament­ed, “Hear­ing things like Jus­tice Kavanaugh look­ing to Europe as a mat­ter of pol­i­cy and what they’ve tried to do there is con­cern­ing.”

McQuade was also dis­pleased with “Chief Jus­tice Roberts, who seemed to sug­gest that judges aren’t experts when it comes to med­ical care and so isn’t that some­thing we ought to leave to the deci­sions of law­mak­ers and doc­tors? It’s just such an about-face from some of the things they do agree to delve into.”

Is it? This Court’s most con­tro­ver­sial rul­ing was the Dobbs case, where the Court did exact­ly what Roberts sug­gest­ed by extract­ing itself from the abor­tion debate and kick­ing the ques­tion back to law­mak­ers.

How­ev­er, McQuade con­tin­ued, “I also heard Jus­tice Jack­son say that she was very con­cerned and ner­vous about the Court say­ing maybe we should­n’t get involved in this at all, and so it may be that they’re look­ing for an out to avoid mak­ing this deci­sion and allow the Ten­nessee law to be upheld, and so that is a con­cern I have.”

Ulti­mate­ly, to believe McQuade and Tennessee’s oppo­nents, you need to believe that acknowl­edg­ing that males and females are dif­fer­ent is the same thing as dis­crim­i­na­tion. If that is true, then sex-spe­cif­ic sports and restrooms are also uncon­sti­tu­tion­al.

Here is a tran­script for the Decem­ber 4 show:

MSNBC Andrea Mitchell Reports

12/4/2024

12:43 PM ET

ANDREA MITCHELL: And while we’re lis­ten­ing to the argu­ments based on what you heard, how is this 6‑to‑3 con­ser­v­a­tive major­i­ty Court like­ly to rule?

BARBARA MCQUADE: Well, I’m trou­bled by a cou­ple of things that I’ve heard in the argu­ments today. Of course, it’s a hard ques­tion, but what the Court is sup­posed to decide here is whether this vio­lates the Con­sti­tu­tion by mak­ing a deter­mi­na­tion on the basis of sex, not whether it is good or bad pol­i­cy. That is some­thing for leg­is­la­tures and doc­tors to decide. 

And so hear­ing things like Jus­tice Kavanaugh look­ing to Europe as a mat­ter of pol­i­cy and what they’ve tried to do there is con­cern­ing. There were oth­er jus­tices includ­ing Chief Jus­tice Roberts, who seemed to sug­gest that judges aren’t experts when it comes to med­ical care and so isn’t that some­thing we ought to leave to the deci­sions of law­mak­ers and doc­tors? 

It’s just such an about-face from some of the things they do agree to delve into and I also heard Jus­tice Jack­son say that she was very con­cerned and ner­vous about the Court say­ing maybe we should­n’t get involved in this at all, and so it may be that they’re look­ing for an out to avoid mak­ing this deci­sion and allow the Ten­nessee law to be upheld, and so that is a con­cern I have.