The Supreme Court Gets Back to Work

The two cases of transgender athletes present distinctive aspects. For one, Hecox changed her mind about filing suit: She said she no longer wanted to play sports at BSU and that the Supreme Court should consider the case moot. The justices said they would rule on that issue after oral arguments. Pepper-Jackson, meanwhile, has launched what’s called an “as applied” challenge, meaning she’s not claiming the ban could never stand, but that it is unconstitutional and discriminatory as it applies to her, given that she transitioned at a young age and took puberty blockers followed by other hormone therapies to prevent standard male puberty. (Last year, in US v. Skrmetti, the Supreme Court upheld Tennessee’s ban on such treatment for minors—a harbinger of this case.) BPJ lost at the district court level but won on appeal in the Fourth Circuit and was able to continue playing during the litigation. Her recent relative success as a high school student in the shot put and discus events has become a subject of controversy; her lawyers claim her prowess was exaggerated, while the governor of West Virginia complained about her participation in a statewide tournament (where she came third in the discus event). A central question in these cases is what and who was supposed to protect Title IX, the federal anti-sex discrimination law that has enabled high school sports for girls and women in recent decades. It’s a safe bet that the oral arguments will include a lot of assertions about the physiology of children and adults as well as reflections on the emotional and social significance of sports and deep questions of identity and equity.

Next week, the Court will hear oral arguments in Trump v. Cook, a case that came before the justices on the emergency docket — it involves a lower court judge’s stay of Trump’s removal of Federal Reserve Governor Lisa Cook from her position. Broadly speaking, this is related to the Trump v. Slaughter case, on the direction of independent agencies, which was argued in December. In Slaughter, the justices should allow Trump to fire Federal Trade Commission member Rebecca Slaughter without cause (and, in doing so, overturn Humphrey’s Executor, a 1930s precedent that allowed Congress to prevent heads of agencies headed by multiple commissioners or governors, like the FTC, from being fired at will by the president). But Cook’s case is different, for several reasons. The Supreme Court has in the past indicated that the Fed’s independence is distinct and worth safeguarding. The credibility of the Fed is also important for both the United States and the global economy. And while Trump claims he fired Cook for cause, it’s unclear how good his cause was. The Trump administration accused her of engaging in mortgage fraud; the question in this case is whether the Court is supposed to take this statement literally. (His administration has made the same accusation against other opponents, such as New York Attorney General Letitia James. Both James and Cook have denied the allegations.)

Oral arguments in one of the term’s most important cases, Trump v. Barbara, on whether Trump can order the denial of birthright citizenship to certain babies born in the United States, have yet to be scheduled. There is perhaps no other case in which judges will have to state their allegiance as clearly as in this one. This decision may also not be made before the end of June, or even the beginning of July. What will the justices say if they announce, during the week when the country celebrates the two hundred and fiftieth anniversary of the Declaration of Independence, that the meaning of citizenship has somehow changed? The Court does not appear entirely in Trump’s hands; before Christmas, alongside the state of Illinois, he upheld a lower court order blocking Trump from deploying a federalized National Guard to Chicago and its suburbs. At the same time, the Court managed to leave open questions about what Trump might do with the Guard, and even with the regular military, in the future.

There’s much more, including a challenge the justices will hear March 2 against a law restricting gun ownership for habitual drug users — a law under which Hunter Biden, the former president’s son, was convicted, before his father pardoned him. Another case to be scheduled involves a Mississippi law allowing mail-in ballots to be counted if they arrive up to five days after Election Day, if they are postmarked by Election Day. As might be expected, discussions surrounding the case have been filled with accusations of election fraud. Politics and law are never that far apart. This spring, before this Supreme Court, they could be almost inseparable. ♦