The bottom line
On January 13, 2026, the Supreme Court heard oral arguments in Little v. Hecox and West Virginia v. B.P.J., two cases involving state laws that bar biological males from competing in women’s school sports. Justice Ketanji Brown Jackson used the occasion to deliver a multi-minute labyrinth of a question about Caban v. Mohammed and as-applied equal protection challenges that left the attorney at the podium visibly trying to untangle what she was actually asking. Justice Gorsuch had to step in. None of this is surprising. What is surprising is that we are still pretending it should be.
Attribution from Bearing Freedom. Watch the original video. Commentary, not legal advice.
What happened in the courtroom
The two cases the Court heard on January 13th represent a genuine constitutional question. Idaho’s HB 500, the first state law in the country to bar transgender athletes from women’s and girls’ sports, was challenged by Lindsay Hecox, a biological male who wanted to compete on Boise State’s women’s cross-country and track teams. The West Virginia case involves a state law that blocked a biological male from competing on a girls’ school sports team. Both laws are built on the straightforward premise that biological sex confers physical differences relevant to athletic competition, and that women’s sports categories exist to account for those differences.
The Supreme Court’s conservative majority signaled it is likely to uphold both bans. A decision is expected in late spring or early summer 2026.
Jackson’s line of questioning was aimed at the argument that a transgender woman who has undergone sufficient medical intervention might not have the same physiological advantages the state says justify the blanket ban. Her theory is that such a person could belong to a different “class” for equal protection purposes, and therefore might have a valid as-applied challenge even if the law survives a facial challenge.
The problem is not that this is an incoherent legal concept in the abstract. As-applied challenges exist. Equal protection analysis by class exists. The problem is the execution. She invoked Caban v. Mohammed, a 1979 case about an unmarried father’s right to consent to his children’s adoption, to make a point about how the Court distinguished as-applied and facial sex-classification challenges. She then referenced Lehr v. Robertson, the 1983 case that came after Caban, claiming that Lehr characterized Caban as an as-applied challenge, and that the two cases cannot be reconciled unless as-applied challenges of this nature exist.
The attorney responded that Caban does not use as-applied language anywhere in the opinion, that Lehr characterized it that way as a standing rationale rather than as a substantive holding on as-applied methodology, and that this reading of Caban does not actually support what Jackson was arguing. Gorsuch stepped in, and the thread moved on.
The word count problem
I want to be direct about the statistics here because they matter. The Hill reported in 2026 that Jackson had said 75,535 words during oral arguments this term, more than 50 percent higher than any other justice on the bench. The ABA Journal documented the same pattern going back to her first term. SCOTUSblog noted that her arrival actually changed the behavior of the entire bench, pulling word counts upward across the board because oral argument had effectively become a venue for extended speeches rather than targeted questions.
Compare this to Clarence Thomas, who for years said almost nothing during arguments and still authored the most consequential Second Amendment opinions in American history. His Heller concurrence and his majority opinion in Bruen are models of legal clarity. He makes his points in opinions. He does not need to perform jurisprudence in front of a live audience.
When you are talking more than every other justice by 50 percent or more, and the output of that talking is a multi-minute question that requires a colleague to intervene before the attorney at the podium can figure out what you are actually asking, something has gone wrong. This is not rigor. This is the academic habit of complicating simple things until your ideological destination becomes hard to see clearly.
The predicate to all of this
I am a Second Amendment guy. I do not usually cover Title IX cases. But I covered this one because the underlying question about how Jackson got on the Court is the same question that affects every fundamental right she is now responsible for interpreting, including mine.
Joe Biden said before he ever submitted a name for consideration that he would nominate a Black woman to the Court should a vacancy arise. He said this on camera, during the 2020 primary campaign, as a commitment to specific groups whose support he needed. When Justice Stephen Breyer announced his retirement, Biden followed through. The White House’s official position was that this was historic and important.
What it actually was is this: Biden announced he was restricting his consideration to roughly 6 percent of the US population based on a physical characteristic. Not because the pool within that 6 percent lacked qualified candidates. Not because he had a specific person in mind who happened to be a Black woman. But because the visual and the symbolism served his political interests at that moment. He said it plainly. He was going to pick a Black woman. That was the filter.
When you commit to a demographic filter first and then go looking for a candidate, you are by definition getting a worse outcome than if you had evaluated the full field. That is not a statement about the population in question. That is a statement about what restricting search parameters does to the quality of results. There are brilliant Black women who would have been extraordinary Supreme Court justices if chosen through a merit-first process. Jackson may or may not be among them. But we cannot know, because the process that selected her was not designed to answer that question.
Clarence Thomas, Thurgood Marshall before him: both were picked through processes where the politics were also present, but neither president stood up and announced beforehand that his nominee’s physical appearance was the deciding criterion. The distinction matters. The moment you make the attribute the selection, rather than the result of selection, you have fundamentally changed what the pick means.
Why this matters for rights you care about
I follow Second Amendment cases the way other people follow football. I know Heller and Bruen better than I know most things. And what I know is that Ketanji Brown Jackson is going to be on the Court for decades, deciding what your right to keep and bear arms actually means in practice.
Her judicial record before the Court was not encouraging. In Heller v. DC II at the DC Circuit, she ruled against plaintiffs challenging DC’s post-Heller restrictions. She adopted reasoning that gave states enormous latitude to regulate around the constitutional guarantee the Court had just established. That pattern, using procedural complexity and broad deference to government to get around outcomes that should be straightforward, is exactly what I watched her do in the transgender sports arguments.
The rights guaranteed by the Constitution are not complicated in their core meaning. The Second Amendment says the right to keep and bear arms shall not be infringed. Bruen said historical tradition of gun regulation is the test for whether a law survives. These are not obscure principles. The way Jackson-style jurisprudence operates is to introduce enough doctrinal complexity that the clear meaning gets buried under layers of competing frameworks, each one requiring more deference to whoever is currently in power.
That is what I saw in the oral argument on January 13th. A simple question, whether a blanket sex-based classification in sports is constitutional, became a seminar on Caban and Lehr and as-applied methodology and what exactly Lehr thought it was doing when it discussed Caban, until Gorsuch ended it. The technique is the same whether the subject is transgender sports or gun rights or free speech. Complexity as a tool for achieving preferred outcomes is not legal reasoning. It is legal performance.
What the court will probably do
Based on the oral arguments, the conservative majority will almost certainly uphold both state laws. The physiological case for sex-segregated sports is overwhelming and the states defended it competently. The as-applied challenge theory Jackson was probing is an interesting academic exercise, but it requires a level of individualized adjudication that would make categorical rules essentially unenforceable. Every athlete who loses a spot on a team could file a lawsuit claiming her particular circumstances exempt her from the general rule. That is not a workable framework.
A ruling in favor of the states would be correct on the law and correct on the science. Women’s sports categories exist because biological males have demonstrable physiological advantages in most athletic contexts. Acknowledging that reality is not cruelty toward transgender athletes. It is honesty about the purpose of the category.
My interest in this case is not primarily about transgender policy. My interest is in what it reveals about how this court approaches fundamental questions, and what that approach is going to mean for every other fundamental right when the next case comes up. If the complexity-maximizing approach Jackson deploys wins the day, the rights the Founders thought were clear become whatever the most verbally aggressive justice can make them through prolonged argument.
Clarence Thomas does not say much. He says what needs to be said and it carries more weight than ten times the words from somewhere else on the bench. That contrast is telling you something.
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