An attorney had to instruct liberal-leaning Supreme Court Justice Ketanji Brown Jackson on a basic legal term Tuesday during oral arguments for two cases about state laws barring males, including those who identify as transgender, from playing on female sports teams.
Justice Department attorney Hashim Mooppan, who argued in favor of state restrictions, had to tell Justice Jackson what “tailoring” is. As a commentary from C. Douglas Golden in the Western Journal explains, “tailoring” in constitutional law refers to how broad or narrow a law is depending on the level of scrutiny a law is subject to under judicial review.
“A law subject to the ‘strict scrutiny’ standard, which involves a fundamental constitutional right, might have a greater need to be perfectly tailored than a law that does not fall under the purview of a bedrock constitutional right,” Golden writes.
During arguments for Idaho, Mooppan argued that the state’s law is “reasonably tailored, regardless of whether it is perfectly tailored, as applied to any such tiny subset of men. And states are not required to redefine sex or monitor the testosterone levels of female athletes.”
Before Jackson questioned Mooppan, he and Justice Amy Coney Barrett were discussing how intermediate, not strict scrutiny, would be a “reasonable fit” for Idaho’s law. Jackson jumped in by asking Mooppan, “I guess I’m still struggling to understand why the state would have to have perfectly tailored laws.”
“I would think the state would just have to make exceptions where people can demonstrate that the justification that makes the state’s conduct constitutional doesn’t apply to them,” she continued.
“So making exceptions is tailoring your law,” Mooppan replied. “That’s literally what it means, to tailor your law.”
Dan McLaughlin, a legal analyst for National Review, noted the exchange in a post to X.
“You gotta be pretty bad as a Justice to get schooled this hard by a lawyer arguing in front of you,” he wrote.
The exchange took place during Little v. Hecox, which surrounds Idaho’s Fairness in Women’s Sports Act. The lawsuit was filed in 2020 by transgender-identifying athlete Lindsay Hecox, who wanted to join the women’s cross-country team at Boise State University.
A lower court ultimately blocked the law, which is similar to more than two dozen other laws passed around the United States protecting women’s sports. Idaho asked the Supreme Court to answer whether or not laws that seek to protect women and girls’ sports by limiting participation based on sex violate the Equal Protection Clause of the Fourteenth Amendment.
Katherine Hamilton is a political reporter for Breitbart News. You can follow her on X @thekat_hamilton.