By Anderson Conkle

Abstract

This Article examines the Supreme Court’s emerging role in contemporary cultural debates through analysis of two significant cases in the 2024-2025 term. Through examination of (i) U.S. v. Skrmetti and (ii) Free Speech Coalition Inc. v. Paxton, it demonstrates how the Court’s conservative majority may reshape both transgender rights and online content regulation. The Article argues that these cases represent a decisive shift toward direct judicial engagement with contentious social issues.

I. The War in Context

With the Court’s contentious and much-accursed ruling in Dobbs v. Jackson Women’s Health Organization,1 much of the public was made forcibly aware of the power that a 6-3 conservative Court holds. This power was further demonstrated in the most recent term of the Supreme Court of the United States,2 in which the Court targeted the administrative state, exemplified by its parochial overturning of Chevron deference.3In this upcoming term, the Court seems to set its sights on another target: the culture war.

II. Transgender Rights and Constitutional Protections

In what feels like an obligatory conclusion to the increasingly vitriolic attacks against transgender individuals, SCOTUS will hear U.S. v. Skrmetti this coming term.4 The case centers on an equal protection challenge to Tennessee S.B. 1, which prohibits medical care for transgender minors.5

Examining the Court’s precedent leads to what should be a clear interpretation of the facts of the case. SCOTUS held in Bostock v. Clayton County that sexual orientation falls under Title VII by “sex stereotyping” or treating individuals differently based on sex.6 The Court specifically noted that discrimination based on sex includes firing a male employee for having a husband while permitting the same for a female employee.7

However, Tennessee argues that S.B. 1 represents no sex-based discrimination since both cisgender and transgender children alike are denied access to transgender medical care.8 Besides the intentional non-addressal of cisgender children’s ability to receive identical treatment and prescriptions aligning with their purported “sex,” the bill callously disregards any evidence supporting the safe, tested use of puberty blockers and hormone replacement therapy for transgender individuals of all ages.9 By directly reflecting rhetoric used by Republican higher-ups through language like “enable a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex; or treat purported discomfort or distress from a discordance between the minor’s sex and asserted identity,”10 a rule in favor of Tennessee could signal a codification of current anti-trans rhetoric for individuals of all ages. Lastly, only two of the five justices who narrowly decided Obergefell remain on the Court—an ominous sign for this case.11

III. Online Speech Regulation and First-Amendment Implications

Representing another aspect of the Court’s insertion into the culture war, Free Speech Coalition, Inc. v. Paxton focuses on a challenge to forced age verification online as required by Texas H.B. 1181.12 After its implementation in September of 2023, users must verify their age using state identification before visiting websites that host content that is more than a third composed of “sexual material harmful to minors.”13However, with language as vague as “[content which] taken as a whole, lacks serious literary, artistic, political, or scientific value for minors,” it’s easy to imagine a state actor labeling certain contentious content as a violation of Texas H.B. 1181.14

The immediate response to the enactment of this bill by organizations like the International Centre for Missing and Exploited Children, the National Coalition Against Censorship, and the Center for Democracy and Technology was to accurately label the measure as infringing upon First Amendment rights and as chilling the speech of individuals online.15 Affording the ability to define certain content as “harmful to minors” and in doing so censor it from large swaths of the population clearly represents an unconstitutional, content-based restriction on speech.16

Looking to precedent presents an interesting challenge for this case since SCOTUS’ analysis of “obscene” content has varied greatly over time. As the respondent correctly identifies, SCOTUS argued that speech can be limited if it is demonstrated to be “obscene as to youths” in Erznoznik v. City of Jacksonville.17 However, in Reno v. ACLU, the Court distinguished between “indecent” and “obscene” sexual content, writing “we have made it perfectly clear that ‘[s]exual expression which is indecent but not obscene is protected by the First Amendment.’”18 Following this trend, in Ashcroft v. ACLU the Court ruled the Child Online Protection Act’s efforts to restrict content defined as obscene by “contemporary community standards” as unconstitutional given the ever-changing and often unfair standards of certain communities.19Despite these inconsistencies, though, a 6-3 conservative Court may still be positioned to uphold the law as it represents an introductory attempt to realize Project 2025’s goal of the complete elimination of pornography.20

IV. Looking Forward

U.S. v. Skrmetti and Free Speech Coalition, Inc. v. Paxton represent a twofold intrusion of the Court’s recent bid for power in the culture war, but they do not reflect all that this term can hold.21 In the shadow of the recent general election, SCOTUS’ position and power have only been further brought into question.22 With an unobstructed, entirely-Republican government, it’s impossible to tell just how much SCOTUS will be empowered to make decisions that would otherwise be considered extreme. Undoubtedly, the rest of this term will serve as a marker for what an increasingly conservative Court will look like as Trump will likely have opportunities to appoint yet more justices.23