Bench Memos

Law & the Courts

Gloucester County’s Misguided Detour

For reasons I don’t understand, the Gloucester County school board is planning to ask the Supreme Court to review the Fourth Circuit’s badly confused ruling in April on transgender access to restrooms. In that ruling, the divided panel vacated the district court’s denial of a preliminary injunction to the student plaintiff, and it remanded the matter to the district court for further proceedings.

I see zero chance that the Supreme Court would grant review of the Fourth Circuit’s ruling—both because there is no final judgment in the case and especially because there is so much confusion over what the Fourth Circuit actually ruled. Even worse, one risk in seeking Supreme Court review is that the Gloucester County school board will have an incentive to overstate what the Fourth Circuit in fact ruled.

Perhaps I’m missing something, but it seems to me that the far better course for the Gloucester County school board is to let the case return promptly to the district court. On remand, the school board should simply explain to the district court that the Fourth Circuit did nothing more than rule that the district court had relied on an invalid ground in denying a preliminary injunction relief and that it remains open to the district court to rely on other grounds to deny that relief. In particular, the school board should point out that the Fourth Circuit never reached the question whether Title IX requires that schools allow boys who identify as girls to use single-sex facilities, reserved for girls (and vice versa, of course, for girls who identify as boys), and it should argue that such a reading of Title IX is plainly wrong. The district court should then rule that the student is not entitled to preliminary injunctive relief under a proper reading of Title IX.  

Most Popular

Politics & Policy

The Worst Cover-Up of All Time

President Donald Trump may be guilty of many things, but a cover-up in the Mueller probe isn’t one of them. House Speaker Nancy Pelosi, attempting to appease forces in the Democratic party eager for impeachment, is accusing him of one, with all the familiar Watergate connotations. The charge is strange, ... Read More
World

Theresa May: A Political Obituary

On Friday, Theresa May, perhaps the worst Conservative prime minister in recent history, announced her resignation outside of number 10 Downing Street. She will step down effective June 7. “I have done my best,” she insisted. “I have done everything I can. . . . I believe it was right to persevere even ... Read More
PC Culture

TV Before PC

Affixing one’s glance to the rear-view mirror is usually as ill-advised as staring at one’s own reflection. Still, what a delight it was on Wednesday to see a fresh rendition of “Those Were the Days,” from All in the Family, a show I haven’t watched for nearly 40 years. This time it was Woody Harrelson ... Read More
Politics & Policy

The Democrats’ Other Class War

There is a class war going on inside the Democratic party. Consider these two cris de couer: Writing in the New York Times under the headline “America’s Cities Are Unlivable — Blame Wealthy Liberals,” Farhad Manjoo argues that rich progressives have, through their political domination of cities such as ... Read More
Culture

The Deepfake of Nancy Pelosi

You’ve almost made it to a three-day weekend! Making the click-through worthwhile: A quick note about how National Review needs your help, concerns about “deepfakes” of Nancy Pelosi, one of the most cringe-inducing radio interviews of all time, some news about where to find me and the book in the near ... Read More
White House

For Democrats, the Party’s Over

If the Democrats are really tempted by impeachment, bring it on. Since the day after the 2016 election they have been threatening this, placing their chips on the Russian-collusion fantasy and then on the phantasmagoric charade of obstruction of justice. The attorney general accurately gave the ingredients of the ... Read More