Alito: How to Find Discrimination Without Definition; How is The Supreme Court Leaning in This Case?

and biological men in women's sports. The United States Supreme Court hearing more than three hours of oral arguments today in a case with high stakes consequences for the nation. So, what do the justice's questions about women's sports say about their inclinations perhaps? Joining me now to discuss is Horus Cooper, constitutional scholar and senior fellow at the National Center for Public Policy Research. Horus, it's great to have you back in studio. So, I want to start with a question uh that the Supreme Court Justice Samuel Alo asked the attorney uh for one of those transgender athletes. >> How can a court determine whether there's discrimination on the basis of sex without knowing what sex means for equal protection purposes? >> I think here we just we we basically know that the that they've identified pursuant to their own statute, Lindsay qualifies as a birth sex male. So Horus, please break it all down for us based on what we just heard Justice Alto saying there. What are the implications of what he is asking? >> I listened to the oral arguments today and I did chuckle when that question was asked. Here's one of the big challenges. The left and that includes the three blind mice sitting on the Supreme Court aren't able to answer some of the basic questions. If Justice Brennan were still sitting on the Supreme Court, a big liberal, he was clever enough to realize, you know what, we're not going to get the whole enchilada. I will take the victory that I can. These three justices who are liberal, who are very progressive, don't want to give any slack, any limitation on the transgender agenda. They believe you can wake up in the morning and say you're now a woman and you should be treated as a woman. You could have an operation, you you can be treated as a woman. any steps in between. Justice Alo says, "Well, wait. We can't even if the state can't even inquire as to what is true or not, how do we make a rule?" The three justices don't have an answer, and that's very likely why they're going to lose on this particular case. So based on that fact in the oral arguments today, do you see any indication of what direction uh the the justices are going to vote? >> Well, here's what I predict. We are either going to see a narrow ruling in favor of the state of Idaho and West Virginia saying that your law that your specific law is lawful. Or we could see a broader ruling that says in this area of space, states have denovo uh authority to make ruling. I think that it's going to be difficult to get all six justices to go with that ladder. And so it's more likely that they will simply uphold this specific law. Now, there will be caralling in the descent. So, with that said, if the justices do rule in favor for Idaho and West uh Virginia's ban, uh how would this impact other states, seeing how it's not a nationwide ban? >> Well, one of the things uh that was brought up during the oral arguments was uh that several states have policies one way and some have policies uh the other way. Why not let federalism work its way and use that as the process? When I say that there's a possibility for a much broader ruling if they simply say this is not space for us to intervene, that would be a very very broad ruling. Now, I often warn the left, we have the most constitutionally oriented uh majority on the court today. Don't bring your radical cases now. Save them for later. These cases should have been dropped in the ninth circuit and the fourth fourth circuit, but they can't help themselves. This is how they lost Roie Wade, and this is likely how they're putting at risk their agenda, which is to impose radical sex theories on all of America. >> Now, uh, conservative voices frame this as an issue of women's sports and protecting women's sports. women in women's sports while a lot of the voices on the left sometimes focus on the experience of the transgender athletes. Um how should we decide which perspective to look at this from? >> Well, when this came up during oral arguments, uh advocates for the left, including the ACLU, had no answers. They couldn't give us some sort of insight. Uh uh Kanji Brown made one of those um word salads in which she was essentially suggesting that a person who was uh who's a woman, excuse me, who was a man who became a woman who never was able to be shown to perform at a level like a man? Should that person also be subject to the to the ban? I ask her, should that person, she's the one that can't answer that. The court is very likely to allow these two state policies to occur narrowly or we run a likelihood or a risk that they will simply say we're having the court back out from this space altogether. One little quick point with race. It is almost impossible to come up with an example where the race of the person is relevant with regard to anything, a job, bathrooms, athletics. There's no real basis for using that. But there are legitimate reasons to do that in the case of sex. What the left has done is they've tried to pretend that there's no difference between male and female in the way that there's no real constitutional difference between white and black. It won't work. >> And I think to your point, it is a losing issue for them because there's many Democrats that have uh daughters that don't want them getting changed next to a man in a locker room. It's, you know, seems like common sense. So that's why it's what does Trump call it? a uh 982 issue, the transgender issue. Um but the issue of women's sports is, you know, very important in its own right. Um but it's really connected perhaps to something deeper uh an erosion of the foundation of our culture. What's really at stake at the core of this case? >> Well, remember one one of the reasons why I say that there are broader implications. We have high schools and junior high schools that are allowing men and women to use each other's restroom facilities. This isn't competing. We haven't had the court answer that question. The court could say in the ruling that comes down this summer that yes, any of those kinds of questions we're going to leave to the states. My point in this is while I think that's common sense that's what our founders intended the left has created this risk by bringing these cases which 90 plus% of America sits on one side even constitutional Jewish prudence sits on one side and then they bring this and then they come into court and Katandra Brown even after her confirmation hearing still can't Tell us what a woman is. >> Horse Cooper, as always, really appreciate your insights.