The Gavel: Republicans exude confidence on Supreme Court transgender athlete ruling

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The Republican-led states defending their transgender athlete bans at the Supreme Court predict they may even get a liberal justice’s vote.

“I think 8-1 or 7-2 is more likely,” West Virginia Attorney General JB McCuskey (R) told me in an interview this week.

With a decision landing as soon as Thursday, McCuskey has his eyes on Justice Elena Kagan in particular.

“We were very, very encouraged by Justice Kagan’s questioning,” McCuskey said. “She was very, very thoughtful, and it was very clear to me that she understood the weight of what this meant.”

Idaho Attorney General Raúl Labrador (R) is more reluctant to read Supreme Court tea leaves. But he admitted he was feeling good.

“He’s been very optimistic. I’m probably a little bit more superstitious than he is,” Labrador told me with a laugh when I informed him of McCuskey’s prediction.

“I don’t like to count numbers before,” Labrador continued, “but I feel confident that we’re going to have a majority of the court. And I would not be surprised if we get one or two of the liberal justices on some of the issues.”

In coming days, the Supreme Court is set to rule on whether states can legally bar transgender girls from competing on girls’ and women’s school sports teams.

It will impact bans passed in roughly two dozen states. Transgender athletes argue it violates the 14th Amendment’s equal protection guarantee and Title IX, the federal law that prohibits sex discrimination in federally funded schools.

McCuskey and Labrador convinced the Supreme Court to take up the weighty issue. And based on the oral arguments in January, most court watchers I speak to agree that they’re headed for a victory.

“When you watch a male athlete defeat every single swimmer by great lengths, you just realize that this just doesn’t make any sense,” Labrador said. “So, I think what the Supreme Court is doing, is they’re just bringing common sense back to the American people.”

As the clock ticks down to Thursday’s opinion day, a new twist has emerged.

Becky Pepper-Jackson, the teenage transgender girl who challenged West Virginia’s ban, last month won a state title in women’s AAA shot put.

Event results show Pepper-Jackson threw for 11.88 m (38-11.75). The second-place finisher came in at 11.25 m (36-11.00).

It has added fuel to the fire for ban proponents. They say Pepper-Jackson is the latest example of how allowing transgender athletes to compete on women’s sporting teams creates an unfair advantage.

“In West Virginia, the current state champion of the shot put is a biological male who beat every single biological female in the state as a 15-year-old sophomore,” McCuskey said.

Even as he raised alarm, I was struck that McCuskey in our conversation still used female pronouns to refer to Pepper-Jackson. As a minor, the athlete is merely called “B.P.J.” in court filings.

“These are kids, right?” McCuskey explained.

“Which is why I’m very, very thoughtful about how I describe B.P.J., how I describe her pronouns, etc.,” he continued, “is that this is still a 15-year-old child. And she’s been thrust into the national spotlight by legal groups and adults who are trying to use this example as something that is much larger than her specific performance.”

The attorney general told me Pepper-Jackson “will be welcomed by our athletic departments” to play on boys’ teams.

The Supreme Court is set to release more opinions at 10 a.m. EDT Thursday. A decision on Idaho and West Virginia’s transgender athlete bans is expected by early July.

Welcome to The Gavel, The Hill’s weekly newsletter unpacking the intersection of courts & politics from Zach Schonfeld. Email me tips at [email protected] or reach out to me on X (@ZachASchonfeld) or Signal (zachschonfeld.48).

Sidebar

5 top docket updates

Trump nominates Blanche as permanent AG: Trump last week indicated he plans to tap acting Attorney General Todd Blanche to take on the role permanently. He did so on Monday.

Bolton to take plea deal: John Bolton, Trump’s former national security adviser-turned-foe, has reached a plea deal with the government. Two sources familiar with the deal told my colleague Rebecca Beitsch and me that Bolton will plead guilty to a single charge of retaining national security information and pay $2.25 million. He’ll make his next court appearance June 26.

Judge blocks H-1B visa fees: A federal judge blocked Trump’s $100,000 fee for new H-1B visa applications, the latest legal roadblock to his immigration crackdown. The Department of Homeland Security in a statement called the ruling “blatant judicial activism.”

DOJ investigates California election: A federal prosecutor in California has opened probes into alleged voter fraud in the state following its recent primary.

Supreme Court upholds FCC fines: The Supreme Court rejected Verizon and AT&T’s constitutional challenge to massive fines imposed by the Federal Communications Commission over their use of customers’ location data. The companies contended the procedures violated their Seventh Amendment jury trial right.

In other news

Free speech in the legal academy: A new survey conducted by the Foundation for Individual Rights and Expression found that 56 percent of law school faculty at least occasionally feel unable to express their opinions because of how others would respond. The poll found exactly half of liberal faculty felt that way, and the figure climbed to 72 percent for conservative faculty.

SBF asks Trump for pardon: FTX founder Sam Bankman-Fried has formally applied for a pardon, the Office of Pardon Attorney website shows. Bankman-Fried is serving a 25-year sentence on fraud charges tied to the collapse of his cryptocurrency exchange.

Roberts, the wedding officiant: Chief Justice John Roberts officiated billionaire philanthropist David Rubenstein’s wedding on Friday, Axios reported.

In Focus

Checking in on Supreme Court collegiality

Justice Sonia Sotomayor made a subtle show of collegiality alongside Justice Amy Coney Barrett this week.

On Monday afternoon, Barrett treated a group of lawyers and judges gathered for the Supreme Court Historical Society’s annual meeting to an hourlong question and answer session inside the courtroom.

I was listening to the society’s executive director, Jim Duff, introduce Barrett when I noticed Sotomayor slip into the room from the right-side hallway and discreetly took a seat.

Retired Justice Anthony Kennedy sat down in the center section of the front row, in full view of the audience.

But Sotomayor? The liberal justice entered as most were looking the other direction, remaining near that side wall, seemingly trying to keep a low profile. That is, until Duff eventually noticed her and briefly interrupted the talk to thank her for coming.

Make of Sotomayor’s attendance what you will, but this much is true:

At a time when the court is barreling toward handing down massive, controversial decisions — with the duo plausibly on opposite sides in some of them — Sotomayor took an hour out of her day when she could’ve been refining a dissent to listen to Barrett, a member of the court’s conservative majority.

Sotomayor did not talk to the press or make any outward effort to ensure we knew she had shown up for her colleague. Barrett did at times gesture to her and thank her, including when discussing the court’s collegiality.

“It doesn’t just happen naturally,” Barrett told the crowd.

She suggested a lot of the vitriol in society comes from online, and the justices’ frequent in-person interactions help them “assume the best of your colleagues.”

“It’s very easy to vilify when you don’t see them as people,” Barrett said.

Another judge in scandal

U.S. Circuit Judge Ryan Nelson is facing scrutiny.

The Trump-appointed judge was charged with misdemeanor counts of battery and malicious injury to property in Idaho state court, a docket reviewed by The Gavel shows.

According to the Idaho State Journal, which first reported the charges, Nelson is accused of swiping, tossing and stomping on the glasses of a man who confronted the judge over his parking job by telling him, “learn how to park.” The outlet obtained video of the incident, too.

Nelson pleaded not guilty and is due to make his next court appearance on June 18. His attorney listed on the docket, Curtis Reed Smith, did not return requests for comment.

Mary Murguia, the chief judge of the U.S. Court of Appeals for the 9th Circuit, where Nelson serves, has found the allegations merit further review.

In a Monday order, she said she was opening an investigation into the matter based on recent media reports and “my limited inquiry of currently available information.”

“All of the above information was only very recently received,” the appointee of former President Obama stressed.

As it gets underway, judicial watchdog group Fix The Court is filing a misconduct complaint of its own. Executive Director Gabe Roth suggested that Nelson should be disciplined and demanded a review of why it took two months for the incident to come to public light.

“Otherwise, the public might assume some important details are being withheld or covered up. I’m not saying that’s the case here, but those are the optics,” Roth wrote in his complaint.

Nelson is the latest federal judge whose behavior has drawn attention.

Last week’s edition detailed the sex scandal surrounding U.S. District Judge Eleanor Ross, an Obama appointee who has now acknowledged an affair with a high-ranking police officer in her district and having sex within earshot of her clerks. The investigation found Ross initially lied about it and also improperly attended a political event.

Rep. Clay Fuller (R-Ga.) formally introduced an article of impeachment against her on Monday.

“Judge Ross has no business being on the federal bench,” Fuller said in a video announcement. “She has shown that she doesn’t have the ethical conduct or behavior to continue serving as a federal judge.”

Order List

Cases the Supreme Court is taking up — or passing on — this term.

IN: Nothing

The Supreme Court took up no new cases at its recent closed-door conference.

OUT: Jury selection & race

The court declined to take up an appeal from Tony Terrell Clark, who is on death row for murdering a 13-year-old boy in 2014.

Clark claims he had ineffective counsel who did not raise a proper claim under Batson v. Kentucky, the Supreme Court’s landmark decision that prosecutors cannot solely use race to dismiss jurors when making peremptory challenges.

Prosecutors had used many of their challenges against prospective Black jurors, court documents show. Clark’s jury was ultimately composed of 11 white jurors and one Black juror.

Justice Sonia Sotomayor wrote that Mississippi’s top court applied a “problematic standard” in rejecting Clark’s arguments, and the justices in the future should review if it holds defendants to too high a standard.

“Unfortunately, this case, at least in its current procedural posture, does not present a viable path for doing so,” Sotomayor wrote.

Petition Pile

Petitions for the Supreme Court to take up cases that I am keeping a close eye on.

Death row case: Texas wants to put Dexter Johnson back on death row. A lower court allowed him to proceed with what’s called a habeas petition, so he can try to raise claims that he is intellectually disabled. At issue is that Johnson previously filed a petition. There are strict rules for when prisoners can file a successive one. Texas says Johnson’s case isn’t one of the exceptions, and he could’ve raised his claims earlier. The case is Guerrero v. Johnson.

Intercepted communications: Federal law prohibits the use of illegal wiretaps as evidence in court proceedings. But lower courts have split over whether that applies when the government wasn’t the one who made the recording. Ashley Grayson, who was convicted in a murder-for-hire conspiracy, says prosecutors shouldn’t have been allowed to use a recorded FaceTime call against her by claiming a “clean hands” exception. The case is Grayson v. United States.

Race and the 4th Amendment: The Justice Department seeks review of a ruling from the top local court in Washington, D.C., which found police unconstitutionally found an FBI agent’s stolen gun after approaching a man on the street. The key legal question is when the man was “seized,” as that’s when the Fourth Amendment’s protections kick in. The lower court considered the defendant’s perspective as a Black man in police encounters. The Trump administration says that was an improper use of race. The case is United States v. Carter.

Carter Page: 2016 Trump campaign aide Carter Page is petitioning the Supreme Court to take up his lawsuit that concerns errors made in targeting him for surveillance as the FBI investigated Russian election interference. Page has recently settled the suit, but he says the justices should still take it up. The case is Page v. Comey.

98-year-old judge’s suspension fight: Pauline Newman, the longest-serving active federal judge in the country, is fighting her suspension that prevents her from hearing new cases. Newman’s colleagues on the U.S. Court of Appeals for the Federal Circuit have blocked her from hearing new cases after Newman refused their demands for specific mental testing. The case is Newman v. Moore.

On the Docket

Don’t be surprised if additional hearings are scheduled throughout the week. But here’s what I’m watching for now:

Today:

Sebastian Zapeta, a man accused of lighting a woman’s clothes on fire aboard a New York City subway in 2024, is due to make his next court appearance. Law enforcement has said he’s in the country unlawfully.

A federal judge in the nation’s capital will hear arguments from the left-leaning group Citizens for Responsibility and Ethics in Washington (CREW) about why he should block the Justice Department’s $1.776 billion “anti-weaponization” fund. It’s a separate lawsuit than the one in Virginia, where a judge already temporarily blocked payouts.

Thursday:

The Supreme Court is expected to release at least one opinion among its remaining argued cases.

The Senate Judiciary Committee at a hearing will consider two bills that would allow cameras in federal courtrooms, the Sunshine in the Courtroom Act and the Cameras in the Courtroom Act.

Friday:

A federal judge in the nation’s capital will hear arguments from The New York Times about why he should block the Defense Department’s restrictions that require reporters to be escorted on Pentagon grounds.

The federal judge in Virginia that has temporarily blocked payouts from the administration’s “anti-weaponization” fund will consider the challengers’ bid to block it for the duration of the lawsuit. The Justice Department has said the fund is not moving forward.

A state judge in Utah will hold a hearing on a request from Tyler Robinson, who is charged with killing conservative activist Charlie Kirk, to hold prosecutors in contempt for comments they made in the media.

Monday:

The Supreme Court will release an order list, which contains announcements on new cases the justices will hear next term.

The Justice Department is due to file its written arguments with the U.S. Court of Appeals for the 4th Circuit about why an eight-year prison sentence was too lenient for the defendant who pled guilty to attempting to assassinate Justice Brett Kavanaugh at his home in 2022.

Tuesday:

Rahmanullah Lakanwal, who stands accused of murdering two National Guard members in the nation’s capital last year, will appear before a federal judge for a status conference.

Luigi Mangione, accused of gunning down United HealthCare CEO Brian Thompson, will make his next court appearance in federal court in Manhattan. The judge is set to discuss the jury selection process for Mangione’s trial.

A federal judge in Alabama will hold an arraignment for the Southern Poverty Law Center on a superseding indictment the government obtained last week. It did not include new charges.

A federal judge in California will hear the Trump administration’s bid to dismiss a lawsuit brought by Democratic-led states challenging the Energy Department’s decision last year to review various existing projects. The states say it’s a pretext to eliminate projects funded by the Biden-era infrastructure bill and Inflation Reduction Act.

What I’m Reading

Idaho State Journal’s Jimmy Hancock: Police: US 9th Circuit judge faces battery charge after parking lot confrontation turns physical in Idaho Falls

The Daily Record’s Ian Round: MD Supreme Court removes Anne Arundel Judge Marc Knapp

Gabe Roth for Bloomberg Law Opinion: Outrage Over Justice Alito’s Son Distracts From Real Scandals

The New York Times’ Devlin Barrett: How the Drive to Find a Conspiracy Against Trump Rocked the Justice Dept.

Washington State Standard’s Jerry Cornfield: Why AG Nick Brown wants the Supreme Court involved in WA’s redistricting fight

Tags

Becky Pepper-Jackson

Elena Kagan

Elena Kagan

JB McCuskey

John Bolton

Raul Labrador

Raúl Labrador

Supreme Court

Todd Blanche

Trump administration

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