2008—Even by Justice John Paul Stevens’s unusual standards, his opinion concurring in the judgment in Baze v. Rees is remarkably strange. Stevens rambles on for some nine pages explaining the idiosyncratic bases—at bottom, “my own experience”—for his newfound view, after more than three decades on the Court, that the death penalty itself violates the Eighth Amendment. But Stevens then concludes that he will abide by the Court’s precedents that the death penalty is constitutional—and that he agrees that petitioners failed to prove that Kentucky’s lethal-injection protocol violates the Eighth Amendment.
In a brief opinion responding to Stevens’s folly, Justice Scalia comments on Stevens’s ultimate reliance on his “own experience”: “Purer expression cannot be found of the principle of rule by judicial fiat.”
2010—As part of an impressive early bid to displace Rosemary Barkett as the wackiest judge on the Eleventh Circuit, new Obama appointee Beverly B. Martin votes in dissent (in United States v. Lee) to overturn Van Buren Lee’s conviction for attempting to entice a child to engage in illicit sexual activity. Martin argues that there was insufficient evidence to support the jury finding that Lee had taken a “substantial step” towards committing enticement, as he “never bought a plane, bus or train ticket” to travel to California (where he believed the targets of his actions to live) and “never set a date for a visit.”
Travel logistics aside, the majority spells out in painful detail that Lee and “Candi Kane”—the postal inspector posing as the mother of two girls, ages seven and twelve— “repeatedly discussed whether, how, and when Candi would grant Lee sexual access to her daughters, and Lee produced and sent Candi and her daughters sexually explicit images of him.”
2020—In a case challenging the Connecticut Interscholastic Athletic Conference’s policy of allowing biological males who identify as females to compete against girls, federal district judge Robert Chatigny chastises the girls’ attorneys for referring to the male athletes as “males.”
2024—A divided panel of the Fourth Circuit rules (in B.P.J. v. West Virginia State Board of Education) that a West Virginia law that provides that girls’ sports teams “shall not be open to students of the male sex” unlawfully discriminates on the basis of gender identity. Under the panel majority’s illogic, Title IX, which (in the words of a feminist law professor, quoted in the dissent) “precipitated a virtual revolution for girls and women in sports,” in fact outlaws the sex-segregated sports teams for women and girls that made that revolution possible.
The majority’s ruling (written by Toby Heytens, joined by Pamela Harris) rests on an elementary error. It asserts that a law that “treats transgender girls differently from cisgender girls … is—literally—the definition of gender identity discrimination.” But the West Virginia law draws a line based on sex. It disregards, and thus by definition does not discriminate on the basis of, gender identity. Boys who identify as male may not join girls’ sports teams; boys who identify as female may not join girls’ sports teams; and boys who identify as any of the 72 other “genders” may not join girls’ sports teams. Conversely, girls who identify as male may join girls’ sports teams; girls who identify as female may join girls’ sports teams; and girls who identify as any of the 72 other “genders” may join girls’ sports teams.
The judges in the majority have been so discombobulated by their own transgender rhetoric that they don’t grasp that what distinguishes so-called “transgender girls” from so-called “cisgender girls” is sex, not gender identity.
(The case is now pending in the Supreme Court.)