By Michael Phillips | Riptide | Dead Reckoning
Two rulings, one week, one quiet thread running underneath both. On Monday, the Supreme Court trimmed the independence of federal agency heads in Trump v. Slaughter and Trump v. Cook. On Tuesday, it upheld state bans on transgender athletes in girls’ sports in West Virginia v. B.P.J. and Little v. Hecox. Read separately, they’re two unrelated culture-war stories — one about the administrative state, one about locker rooms. Read together, they’re the same opinion twice, just wearing different clothes.
Read together, they’re the same opinion twice, just wearing different clothes.
The thread is institutional competence: who gets to decide contested factual questions when the evidence is unsettled, and who has to defer to whom. In both cases, the Court answered the same way. Not the judiciary. Not case-by-case adjudication. The political branches, acting categorically, get the benefit of the doubt — and the courts get told to stand down.
The thread is institutional competence: who gets to decide contested factual questions when the evidence is unsettled, and who has to defer to whom.
The mechanism in B.P.J.
The plaintiffs in B.P.J. weren’t asking the Court to strike down sex-separated sports entirely. They conceded that states may exclude most biological males from girls’ teams. Their argument was narrower: a specific, identifiable subclass — transgender girls who never underwent male puberty and who are receiving hormone therapy — doesn’t trigger the safety and fairness concerns the state laws are built to address, so excluding them categorically fails the “substantial relationship” test that’s supposed to govern sex classifications under intermediate scrutiny.
That’s a factual claim, and it was genuinely disputed below. Both sides submitted competing expert testimony — an endocrinologist for the plaintiff, an exercise scientist for the state — and neither the district court nor the Fourth Circuit had resolved which side had the better of it. The Fourth Circuit’s answer was the institutionally modest one: send it back, let the trial court sort out the facts, then decide the constitutional question once you know what you’re deciding.
Kavanaugh’s majority didn’t do that. It held the factual dispute essentially irrelevant. States don’t need an “exceedingly persuasive justification” tailored to every subclass, the Court reasoned — they need only show their classification works in general, and “the legislatures and the schools are better equipped — and under the Constitution, are the more appropriate entities — to assess the competing medical and scientific considerations and draw appropriate lines.” Sotomayor’s dissent calls this what it is: a refusal to do the ordinary work of heightened scrutiny, dressed up as restraint. Her sharper point is that the majority can’t have it both ways — crediting the legislature’s judgment that the disputed subclass is large enough to threaten girls’ sports, while simultaneously declaring it too small to merit constitutional protection. That’s not deference. That’s picking a winner and calling it deference.
That’s not deference. That’s picking a winner and calling it deference.
The same move, a day earlier
Slaughter and Cook involved a different kind of institutional question — whether the President can remove the heads of independent agencies without the cause requirements Congress wrote into their enabling statutes. But the underlying move was structurally identical: courts declining to police a line on the theory that the political branches are better positioned to draw it, even where doing so means walking past a contested factual or doctrinal question rather than resolving it.
The underlying move was structurally identical: courts declining to police a line on the theory that the political branches are better positioned to draw it.
This is where Riptide’s running thesis on the separation-of-powers cases connects. Progressive defenders of Humphrey’s Executor have spent the past several years insisting that independent agency expertise needs insulation from political control precisely because the underlying questions — rate-setting, labor relations, monetary policy — are too technical for politically accountable actors to get right on a partisan whim. That is, almost word for word, the same argument Sotomayor makes in B.P.J. about courts: leave the hard, fact-intensive work to the institution built to do it carefully, and don’t let the politically driven actor (legislature in one case, president in the other) shortcut the process.
The irony is that the B.P.J. majority and the Slaughter/Cook majority are reaching for the identical institutional logic from the opposite political direction — and getting cheered by opposite camps for it. Conservatives currently like the deference-to-legislatures move in B.P.J. because it produces an outcome they favor on sports; the same conservative majority distrusts deference-to-agency-experts in Slaughter because it produces outcomes they don’t favor on removability. Progressives have it backwards: comfortable with judicial deference to expert agencies, uncomfortable with it when the “expert” body is a state legislature weighing competing medical testimony on hormone therapy.
Neither side has a consistent theory of when courts should second-guess a political or administrative judgment and when they shouldn’t.
Neither side has a consistent theory of when courts should second-guess a political or administrative judgment and when they shouldn’t. What both sides actually have is a results-oriented preference dressed in institutional-competence language, deployed selectively depending on whose ox is being gored that week.
The Hoover-era echo, updated
Riptide’s prior columns on Slaughter and Cook made the case that progressive defenders of Humphrey’s Executor are, structurally, repeating the position of the Hoover-era FTC commissioner the original 1935 case protected — insisting that insulated expertise should trump direct political accountability. B.P.J. offers the mirror image: a conservative majority insisting that direct political accountability (a state legislature, acting through ordinary lawmaking) should trump a court’s role in scrutinizing the fit between a contested classification and its stated justification, even where the normal doctrinal tools (intermediate scrutiny, remand for fact-finding) point the other way.
Put the two together, and a pattern emerges that has nothing to do with trans athletes or agency removal specifically. The Roberts Court, across ideological lines within itself, is increasingly comfortable resolving hard cases by handing the disputed factual or normative question to whichever non-judicial actor is in front of it — legislature, executive, agency — and calling that comity, while applying the opposite instinct whenever the disputed actor’s politics cut against the result preferred by five votes. The doctrine of judicial restraint, applied this unevenly, isn’t really restraint. It’s a referee who keeps blowing the whistle for the same team and insisting it’s a coincidence.
Whether that pattern holds up under more scrutiny than this column has space for is worth its own follow-up. But the throughline from Monday to Tuesday this week wasn’t subtle, and it deserves more attention than either ruling is getting on its own.
The doctrine of judicial restraint, applied this unevenly, isn’t really restraint. It’s a referee who keeps blowing the whistle for the same team and insisting it’s a coincidence.
Sources
This column draws on the official slip opinions in West Virginia v. B.P.J. and Little v. Hecox, 609 U.S. ___ (2026), and Trump v. Slaughter and Trump v. Cook (2026), all published by the Supreme Court at supremecourt.gov, including the majority opinion of Justice Kavanaugh, the concurrences of Justices Thomas and Gorsuch, and the dissents of Justices Sotomayor (joined by Justices Kagan and Jackson) and Jackson. It builds on Riptide’s prior Dead Reckoning analysis of Slaughter and Cook and the Humphrey’s Executor line of cases.
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