STEVE INSKEEP, HOST:
Amy Howe was also listening to the arguments. She is the co-founder of SCOTUSblog, which covers the Supreme Court. Amy, welcome back.
AMY HOWE: Good morning. Thanks for having me.
INSKEEP: Glad you're with us. As I listened to the audio of the justices, I was reminded of something about this issue. We're constantly told by partisans on either side, this is simple and obvious, and you are evil and horrible if you do not agree entirely with me. And yet, it sounded to me like the justices were wrestling with some of the complexities of the specific situation of girls' sports of different ages and how the law should apply to them. What did you hear?
HOWE: I think that's right. And I think that, you know, if you really want to look at this from the 35,000-foot level, you know, the justices like to say that oral argument is only a very small part of the process, and that's one of the justifications that they raise for not televising oral arguments. You know, they say we get a lot of briefs. But, you know, I think that this case is one where you see the oral argument perhaps really matters. They were wrestling with these issues in real time, and I think the oral arguments show that they were trying to figure out how broadly or how narrowly their ruling is going to apply.
INSKEEP: Oh, this is really interesting. There's the old saying that lawyers should only ask questions they already know the answers to. But I think you're telling me that these lawyers, justices on the bench, were asking questions that they maybe did not fully know the answers to.
HOWE: I think that's right. I mean, I think that a lot of these were genuine questions.
INSKEEP: With that said, what did you hear that made you write a prediction that the court is likely to uphold the laws which would ban trans athletes from girls' sports?
HOWE: You know, I think that the - if you sort of do a head count, you know, justices Samuel Alito and Justice Thomas were relatively quiet. But on the other hand, back when Becky Pepper-Jackson, who was the plaintiff in one of the cases, came to the court a couple of years ago, asking the justices to allow her to compete in girls' sports while the litigation continued, they dissented from the court's decision to let her go ahead. And, you know, it seems like the justices were likely to uphold these laws, but really not decide much else. They've got a lot of issues coming down the pike involving, you know, as they said, locker rooms and bathrooms and passport policies and transgender military members. And, you know, they, I think, are uninclined to say anything that's going to necessarily decide those cases.
But Hashim Mooppan in particular, who is a lawyer representing the Trump administration, said, you can decide this on a very narrow ground, which is that there are regulations issued under federal law that bans sex discrimination in education institutions that receive federal funding that specifically authorize teams separated by sex, which means biological sex, and everybody agreed that - agrees on that. So the justices, he said, don't need to get into issues around whether or not, you know, athletes like Becky Pepper-Jackson and Lindsay Hecox, the plaintiff in the Idaho case, have some sort of advantage or lack of advantage. You can just rule on the issue of this statute.
INSKEEP: Oh, and leave everything - what? - for another day, another case?
HOWE: For another day. Kick the can down the road, which, you know, the justices, you know, sometimes they do like to issue these sweeping rulings, but sometimes they like to kick the can down the road and deal with it another time.
INSKEEP: Did you learn anything listening to these questions that maybe you didn't know about the justices, concerns, thoughts or ideas on this issue?
HOWE: You know, it was interesting because justice - as Nina's story - as Nina's piece said, Justice Gorsuch has been kind of, you know, back and forth on this. He wrote the court's decision in Bostock on federal employment discrimination laws protecting LGBTQ employees. But then he joined the court's decision last year in a case called United States v. Skrmetti, allowing Tennessee's ban on gender-affirming care for minors. But he was the conservative justice who seemed most likely to side with the plaintiffs in this case. So we'll see.
INSKEEP: Interesting. Amy Howe is co-founder of SCOTUSblog. Thanks.
HOWE: Thank you.
(SOUNDBITE OF GENE SIKORA'S "A SONG FOR MARY") Transcript provided by NPR, Copyright NPR.
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