Ice by Magneto

We're back — maybe getting a little too scheduled — with one opinion on the docket: West Virginia v. B.P.J. and Little v. Hecox, where the Court held that states may limit girls' and women's sports teams to biological sex without violation Equal Protection or Title IX. First, though, Will collects on a two-year-old prediction when the Court grants Jouppi v. Alaska, an Institute for Justice case about a five-figure airplane forfeited over a six-pack of beer. On the main event, we work through how the opinions are written (no pronouns, no "Lindsay"), what the litigants' Title IX concession did to the case, and whether there is any such thing as an as-applied equal protection challenge. Will makes a big-swing prediction about transgender status and heightened scrutiny, and we ask whether the Court's reasoning can be squared with VMI and the anti-stereotyping cases. Along the way: fencepost problems, Magneto's powers, Magic: The Gathering's crossover-IP wars, scrawny men, and Justice Kavanaugh's ode to the championship trophy.

Highlights

• [00:00:21] Opening: continuing the roll, "starting to get a little scheduled," and record-setting season ambitions

• [00:02:05] Summer interim-docket check-in: a new SG filing on mail-in voting; still no rehearing petition in the birthright-citizenship case

• [00:03:23] Filing-day counting and the classic fencepost problem

• [00:04:50] Will doesn't condone violence, Dan; UFC, violent video games, and Dungeons & Dragons

• [00:07:46] The prediction workflow pays off: Will called the IJ excessive-fines cert push back in May 2024 (Culley)

• [00:08:05] Cert granted in Jouppi v. Alaska: a 5-figure aircraft forfeited over a 6-pack of beer

• [00:09:58] Scorecard methodology: easy predictions, Magneto clauses, and a slugging-percentage proposal

• [00:12:51] Dan's good news: Constitutional Rights in General Private Law, accepted at Harvard Law Review

• [00:13:32] The main event: West Virginia v. B.P.J. and Little v. Hecox — states can keep transgender athletes off girls' and women's teams

• [00:15:25] How the opinions are written: no pronouns, and the majority never says "Lindsay"

• [00:18:44] The Thomas concurrence: suspect class, "biological men and boys who identify as girls," and the Josef Pieper abuse-of-language quote

• [00:21:49] Title IX: the statutory text, the litigants' concession, and what the dissents are trying to preserve

• [00:29:39] The Equal Protection Clause: Skrmetti, two kinds of anti-trans laws, and Will's big-swing prediction on heightened scrutiny

• [00:35:29] VMI's inherent differences, bathrooms, and the anti-stereotyping mainstays (Craig v. Boren)

• [00:43:33] Is there such a thing as an as-applied equal protection challenge? Footnotes 7 and 9, scrawny men, and Nguyen

• [00:52:35] The Ninth Circuit's dropped thread: Idaho's invasive verification testing and the cis-woman plaintiff

• [00:54:41] Justice Kavanaugh, the sports justice: the championship-trophy passage and Flood v. Kuhn lore

• [00:56:52] The flip side: does Title IX sometimes require excluding transgender athletes? Dueling predictions

• [01:00:30] Why this isn't Bostock: Gorsuch, formalism, and a contested Indian-law analogy

• [01:02:49] Sign-off — and a preemptive accusation that Will will game the scorecard by refusing to record

Relevant links

Cases

• West Virginia v. B.P.J. / Little v. Hecox — slip opinion

• Jouppi v. Alaska — Institute for Justice case page

• Culley v. Marshall

• United States v. Skrmetti

• United States v. Virginia (VMI)

• Nguyen v. INS

• Flood v. Kuhn

Commentary & articles

• D'Onfro & Epps, "The Fourth Amendment and General Law" — the Yale Law Journal predecessor to the new Harvard Law Review piece announced on the show

Other

• Divided Argument, "Originalism Hulk" — the back-catalogue episode whose new custom cover art comes up in the Marvel tangent