The Supreme Court Gets Back to Work

There are distinctive aspects to both of the transgender-athletes cases. For one thing, Hecox has changed her mind about bringing the case—she has said that she no longer wants to play sports at B.S.U., and that the Supreme Court should consider the matter moot. The Justices have said that they will decide on that question after oral arguments. Pepper-Jackson, meanwhile, brought what is known as an “as applied” challenge, meaning that she is not arguing that the ban could never hold up, but that it is unconstitutional and discriminatory as applied to her, given that she transitioned at a young age and took puberty blockers followed by other hormone therapies to forestall standard male puberty. (Last year, in U.S. v. Skrmetti, the Supreme Court upheld Tennessee’s ban on such treatments for minors—a harbinger for this case.) B.P.J. lost at the district-court level but succeeded on appeal in the Fourth Circuit, and has been able to keep playing during the litigation. Her recent relative success as a high schooler in shot-put and discus events has become a point of dispute; her lawyers claim that her prowess has been exaggerated, while the governor of West Virginia complained about her participation in a statewide tournament (where she came in third in the discus event). A central question in the cases is what and whom Title IX, the federal anti-sex-discrimination law that has allowed girls’ and women’s school sports to develop in recent decades, was meant to protect. It is a good bet that the oral arguments will include a grab bag of claims about the physiology of children and adults as well as reflections on the emotional and social meaning of sports and on profound questions of identity and fairness.

Next week, the Court will hear oral arguments in Trump v. Cook, a case that came to the Justices on the emergency docket—it involves a lower-court judge’s stay of Trump’s removal of Lisa Cook, a Federal Reserve governor, from her position. In a general sense, it is linked to Trump v. Slaughter, the case about the leadership of independent agencies, which was argued in December. In Slaughter, the Justices are expected to allow Trump to fire Rebecca Slaughter, a member of the Federal Trade Commission, without cause (and, in doing so, to overturn Humphrey’s Executor, a precedent from the nineteen-thirties, which allowed Congress to insulate the heads of agencies led by multiple commissioners or governors, such as the F.T.C., from being fired at will by the President). But Cook’s case is different, for a few reasons. The Supreme Court has, in the past, indicated that the Fed’s independence is distinct and worth safeguarding. The Fed’s credibility is also important to both the U.S. and the world economy. And although Trump says that he dismissed Cook for cause, it’s not clear how good his cause was. The Trump Administration accused her of engaging in mortgage fraud; a question in the case is whether the Court is expected to take this claim at face value. (His Administration has levied the same charge against other opponents, such as the New York attorney general, Letitia James. Both James and Cook have denied the allegations.)

Oral arguments in one of the most consequential cases of the term, Trump v. Barbara, on the question of whether Trump can order the denial of birthright citizenship to certain babies born in the United States, still need to be scheduled. There is perhaps no other case in which the Justices will need to lay their allegiances as bare as in that one. That ruling, too, may not come until the end of June or even early July. What will the Justices be saying if they announce, in the week that the country celebrates the two-hundred-and-fiftieth anniversary of the Declaration of Independence, that the meaning of citizenship has in some way changed? The Court doesn’t seem entirely in Trump’s hands; before Christmas, siding with the state of Illinois, it kept in place a lower court’s order blocking Trump from deploying a federalized National Guard in 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 is more, including a challenge the Justices will hear, on March 2nd, to a law restricting gun ownership for habitual drug users—a statute under which Hunter Biden, the former President’s son, was convicted, before his father pardoned him. Another case to be scheduled concerns 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. Perhaps predictably, the discussions around that case have been rife with accusations of voter fraud. Politics and the law are never all that far apart. This spring, in front of this Supreme Court, they may be almost inseparable. ♦