The Outsider Perspective Issue 474

Title IX, of all things, should make conservatives cautious about judicial creativity here. The statute did enormous good by expanding women’s educational and sporting opportunities. If courts reinterpret it to require access to the female category based on gender identity, they risk converting Title IX from a shield for women’s sports into a tool that dissolves the category it was meant to protect.

Civil rights law still has to operate through administrable lines, especially in K–12 settings. If the country wants a new national standard—say, a separate “open“ division or sport-by-sport eligibility rules built around competitive equity—legislatures can debate it publicly, write it precisely, and own the consequences.

What courts shouldn’t do is treat “sex“ as a moving target under Title IX, or convert equal protection into a mandate for medicalized exceptions that schools can’t implement cleanly.

A narrow, disciplined ruling is available. Uphold these state laws as permissible sex-based team designations, and say explicitly that the Court is not deciding whether states that choose transgender-inclusive policies violate the Constitution.

In a pluralistic country, that’s the proper posture: let states argue it out, let voters hold officials accountable, and let Congress speak clearly if it wants to nationalize a different rule.

But don’t pretend you can protect women’s sports while making the women’s category negotiable. A category you can’t enforce is a category you don’t really have.

One last point, I’m ignoring the liberal justice arguments. None of them is worth even considering. The least important is Justice Ketanji Brown Jackson. Last term, I thought, perhaps her clerks were letting her down. She routinely appeared unprepared for oral arguments, produced poorly written long screeds, and made arguments with no basis in law or fact.

This term, we’ve learned it’s not the clerks. It’s her. There’s just no other way to put it: she doesn’t belong on the Supreme Court. Her performance on this case alone was embarrassing. She didn’t know basic points of law, that I’d assume any Con Law 1 student would understand.

This isn’t a partisan criticism, either. If I polled conservative lawyers on the Supreme Court Justices, Justice Elena Kagan would have high popularity. She is easily the best writer on the Court and one of the smartest to ever sit on the Court. That’s the opinion from conservatives from Scalia on down.

Justice Jackson makes points that make you question how she has a law degree. I’ve heavily criticized Justice Sonya Sotomayor and don’t consider her a good justice. But Jackson makes Sotomayor look good in comparison. And that’s astonishing to think when you’re dealing with cases at the level we are now. It’s shocking to watch. Biden is going to go down as one of the worst presidents, and having nominated one of the worst justices.