# Law School 101 at SCOTUS?!—Seriously??? Source: https://www.youtube.com/watch?v=p_SgmVuPVhc Recap page: https://rapidrecap.app/video/p_SgmVuPVhc Generated: 2026-01-18T00:31:50.383+00:00 --- ## Quick Overview The speaker critiques Justice Kagan's dialogue during the Supreme Court oral argument for *Little v. Hecox* (24-38), finding her insistence on identifying specific individuals to establish standing for facial challenges frustrating because it ignores the established remedy framework, which the Court has previously deemed sufficient even when a statute is overbroad. **Key Points:** - The speaker critiques Justice Kagan's questioning during the *Little v. Hecox* oral argument regarding standing for facial challenges to the statute. - Kagan pointed out that the law, if overbroad, could still be challenged on an as-applied basis, suggesting the petitioners could read some lines of cases either way. - The speaker argues that the Court previously held in *Nguyen* and *Michael M.* that justification put forth for the law need not be proven for each and every person the law applies to, which the Court deemed 'fine because' of the remedy. - Justice Kagan seemed to struggle with the concept of tailoring laws, stating, 'So making exceptions is tailoring your law. That's literally what it means, to tailor your law.' - The speaker notes Kagan's apparent difficulty understanding why someone who cannot bring a facial challenge (due to lack of remedy) cannot bring that challenge. - The discussion highlights the tension between strict scrutiny, intermediate scrutiny (applied to sex classifications), and rational basis review. - The speaker reveals that the oral argument concluded around 1:07:21, with Justice Alito noting that *Nguyen* is the most recent case addressing this issue. ![Screenshot at 00:03: Hashim M. Moopaan, arguing for the United States, faces questioning from the Justices regarding equal protection challenges and the application of different scrutiny levels.](https://ss.rapidrecap.app/screens/p_SgmVuPVhc/00-00-03.jpg) **Context:** The video features Andrew Branca, a SCOTUS Bar Attorney, analyzing the oral arguments for the Supreme Court case *Little v. Hecox* (24-38), argued on January 13, 2020, which concerned challenges to a state law regarding transgender athlete participation based on equal protection grounds. Branca focuses specifically on the line of questioning from Justice Kagan and the subsequent exchange with the advocate, Hashim M. Moopaan. ## Detailed Analysis Andrew Branca analyzes the oral argument in *Little v. Hecox*, focusing on Justice Kagan's questioning of the advocate, Hashim Moopaan, regarding facial challenges under the Equal Protection Clause. Kagan started by asking about the as-applied equal protection challenges, noting that if the law was overbroad, petitioners could still read some lines of cases either way. Branca notes Kagan's surprise that the law was grappling with the issue and points out that prior cases like *Nguyen* and *Michael M.* established that the justification put forth for the law does not need to be proven for every single person the law applies to; the Court found that fine because a remedy existed. Moopaan responded by noting that applying strict scrutiny is usually fatal, and intermediate scrutiny is often applied, but that the Court has previously been reluctant to find intermediate scrutiny necessary in facial challenges, suggesting it's 'at war with the theory of intermediate scrutiny.' Kagan then stated that making exceptions is tailoring the law, which Moopaan confirms is literally what tailoring means. Justice Jackson then pressed Moopaan on why, if the law is unconstitutional on its face, people who cannot bring an as-applied challenge have no remedy, to which Moopaan argued that if the law is deemed overbroad, there are still people who should not be subject to it, and thus a remedy should exist. The speaker expresses frustration that Kagan seems to be conflating strict scrutiny and a perfect fit standard, and notes that Justice Barrett seemed worried about the implications of not applying strict scrutiny, even though facial challenges are difficult to win. The discussion concludes with the advocate noting that *Nguyen* explicitly states that they recognize there are some men present at the birth of their child who have DNA tests proving paternity, but that the law is applied to them anyway, suggesting the law is not perfectly tailored but constitutional. ### Kagan's Questioning on Standing - Justice Kagan began questioning about the as-applied equal protection challenges, pointing out the surprise that the case was grappling with this, and suggesting petitioners could read some lines of cases either way - Moopaan responded that strict scrutiny is often fatal, and intermediate scrutiny might be relevant, but the Court seems warry of applying it in facial challenges. ### The Scope of Scrutiny - Moopaan noted that if the law is not relevant in strict scrutiny because it's often fatal in fact, it's really an intermediate scrutiny problem, maybe a rational basis problem too - Moopaan suggested that the Court's prior cases, like *Nguyen* and *Michael M.*, implied that the justification put forth for the law did not need to be proven for every person. ### Tailoring vs. Exceptions - Kagan equated making exceptions with tailoring the law, which Moopaan agreed with - Justice Jackson pressed on the remedy for facial challenges when the law is overbroad, asking why people who can't bring an as-applied challenge have no remedy. ### Justice Jackson's Argument - Jackson argued that if the law operates unconstitutionally as to an individual person, then the justification for the law doesn't apply to that person - Jackson recognized that some people who won't be tailored cannot bring suit, but stated that the Court found the justification fine because it applied to the person who sued. ### Conclusion of Exchange - The advocate acknowledged that *Nguyen* is explicit about this, and the speaker felt the exchange demonstrated Kagan losing control of the argument, concluding the exchange after about 1:07:21. ![Screenshot at 00:00: Andrew Branca analyzing the Supreme Court oral argument transcript for \*Little v. Hecox\*.](https://ss.rapidrecap.app/screens/p_SgmVuPVhc/00-00-00.jpg) ![Screenshot at 00:14: A screenshot of the transcript showing Justice Barrett's comment acknowledging uncertainty and discussing intermediate scrutiny problems.](https://ss.rapidrecap.app/screens/p_SgmVuPVhc/00-00-14.jpg) ![Screenshot at 01:01: The speaker gesturing emphatically while discussing the scope of the law's application.](https://ss.rapidrecap.app/screens/p_SgmVuPVhc/00-01-01.jpg) ![Screenshot at 03:00: The speaker reacting with clear amusement/frustration to the line of questioning shown in the transcript.](https://ss.rapidrecap.app/screens/p_SgmVuPVhc/00-03-00.jpg) ![Screenshot at 04:20: The video feed shifts to show the Supreme Court argument transcript screen clearly, with Justice Kagan's exchange visible.](https://ss.rapidrecap.app/screens/p_SgmVuPVhc/00-04-20.jpg)