There is less there than meets the eye in the Supreme Court’s curt refusal yesterday to reinstate a West Virginia law banning men and boys who “identify” as female from competing in women’s and girls’ sports. The case is not over. It is under appeal in the Fourth Circuit U.S. Court of Appeals. There’s a good chance the state will ultimately prevail, as it did in the district court. At issue is a temporary injunction against the law’s enforcement while the case is being appealed. The state left itself in poor position to oppose the injunction because it had previously failed to appeal a similar injunction earlier in the proceedings.
To elaborate, after West Virginia’s legislature enacted the law, the district court issued an injunction against its enforcement against the student involved. The state failed to challenge that injunction for 18 months. Finally, the district court ruled in the state’s favor — which may have come as a surprise to the state since the court should not have issued the injunction unless it had concluded that the student was likely to win on the merits. The student then appealed to the Fourth Circuit and asked for an injunction while the appeal was pending. A divided three-judge panel granted the injunction, just as the district court initially had done.
All that happened Thursday is that the Supreme Court refused to reverse the Fourth Circuit’s injunction. The justices did not express a view on the merits of the case.
Justice Sam Alito dissented, joined by Justice Clarence Thomas. Justice Alito sagely pointed out that the only extensively considered decision in the case at this point is the district court’s ruling upholding the statute. Ergo, he reasoned, if the Fourth Circuit was going to enjoin enforcement of the statute in the teeth of that decision, the two-judge majority owed an explanation of why. Instead, it peremptorily issued an injunction, offering no supporting rationale.
Nevertheless, as Justice Alito all but conceded, we can infer why the Fourth Circuit decided it didn’t need to explain. Because West Virginia did not complain for the entire year-and-a-half-long duration of the district court’s injunction, the state cannot credibly contend that it has suddenly become urgent that the law be enforced against the student in question. Though Alito faults the Court’s 7–2 majority for also failing to justify its refusal to disturb the injunction, the explanation is obvious: If something is really an emergency, the litigant has to act like it’s an emergency.
To be clear, the Court did not strike down West Virginia’s law or in any way question the district court’s determination that the law is valid. The justices merely declined to undo the injunction the Fourth Circuit imposed while it considers the case. It would have been better, of course, if the appellate court had presumed the correctness of the district court’s ruling and denied the injunction. But the state’s own record of passivity left it ill-suited to make that case.