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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.