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Notes -
And we're back, with the final Supreme Court decisions in merits cases for this term.
First up is West Virginia v. B. P. J. in which a 6-3 court holds that state segregation of sports by biological gender violates neither Title IX nor the Equal Protection Clause of the 14th amendment. Technically it's 9-0 on the Title IX question but 6-3 on the equal protection angle. This opinion also covers Little v. Hecox which was a case on the same question out of Idaho.
Next, we have National Republican Senatorial Committee v. Federal Election Commission in which a 6-3 court rules that limits on campaign coordination with political parties is a violation of the first amendment. The FEC has other rules, the court rules, that prevent the appearance of corruption and these rules do not serve that purpose.
Finally, we have Trump v. Barbara in which a 6-3 Court (with Kavanaugh, Roberts, and Barrett joining Kagan, Sotomayor, and Jackson) find that the citizenship clause of the 14th amendment applies to children born to parents here unlawfully or temporarily. Technically Kavanaugh concurs with the ruling because he believes Congress' codification effects this rule, rather than the 14th amendment requiring it. This is much closer than I was expecting it to be after the oral argument.
Outcome-wise I don't think any of these were too surprising. Gorsuch has a concurrence in B. P. J. where he talks about how this opinion is consistent with Bostock (where he was the author). The Barbara concurrences and dissents and opinion run to 194 pages which gives some sense for why it may have taken so long. I obviously have not read them all in full yet but I imagine they're going to be full of different takes on the same historical sources.
I'm still digesting it all, but I read Kavanaugh as stronger than that. I think he affirmatively believes that 14A would allow the exact same rule as the EO, but only if it was done by statute. That is, on the 14A Constitutional question, the vote was 5-4.
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Re trans and sports.
Read this ESPN article. It is a lesson in how to editorialize a purported “straight” news story (no pun intended).
https://www.espn.com/college-sports/story/_/id/49225515/supreme-court-upholds-state-laws-banning-transgender-athletes
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Mostly accurate. The majority found that it was essentially same question, but the specific facts were less favorable to the three dissenters. In the dissent they argue that Little v. Hecox was moot, and focus on entirely on West Virginia v. B. P. J..
My general impression is that this is both to to square with Bostock v. Clayton County, and to set the ground for potential future cases where the question of: Does Title IX require schools to exclude transgender girls from girls’ teams. My speculative read, is that, the funding clause argument Gorsuch makes suggests that since it's not explicitly notified to the funding recipients that Title IX forbids the use of biological sex for grouping, using biological sex is allowed. This might also suggest that since it's not explicitly notified to the funding recipients that Title IX forbids the use of some other definition of sex, using some other definition is allowed.
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My expectations I guess were wrong on birthright especially with already having a 5-4 vote. I thought Robert’s would jump on Kavanaughs view and give the legislature a crack at it. On one hand you only need to flip 1 vote how to get rid of it, but it’s Alito and Thomas who get appointed next. Barrett will be around for a long time. Kavanaugh is in favor of striking it down but will he break with precedence now on a 5-4 vote. Basically can retry this if the right justice dies soon.
I guess I get a small win on predictions being one of the few in the camp it was in play.
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To add more information gleaned from scotusblog live chat:
I think perhaps Title IX could be read to require segregating sports by biological gender, but if the Court's going to take up a Title IX case I'd much rather they just strike it down.
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