It falls to Justice Scalia to point out that "we were warned about all these problems in the brief in opposition, weren't we? And we nonetheless granted cert?" To which Rothfeld replies, "I don't presume to tell the court what it was thinking when it granted review of the case, but it did presumably reject those arguments at that point."
Rothfeld explains that it defies logic to suggest that when Congress enacted Title IX, it set about to permit schools, by accepting federal funds, to insulate policymakers from liability for constitutional violations. "It's inconceivable that Congress could have had that in mind when it enacted a statute that was clearly designed to expand and strength protections against sex discrimination," Rothfeld says.
Kay Hodge represents the school district, and she immediately gets on the wrong side of Ginsburg when she claims that Title IX "provides a remedy for sex discrimination in a broader category of circumstances than the Equal Protection Clause." "Explain that," orders Ginsburg. And as Ginsburg presses her, Hodge insists that while the protection afforded under Title IX is broader, the standard for both the statute and the Constitution is the same: "deliberate indifference." Throughout the argument, she will continue to argue that the standards are the same for both and yet also somehow different.
Breyer asks her why not just send the case back to the lower court for determination of the Section 1983 claims. Hodge replies that "there is no issue in controversy anymore." This is the problem Ginsburg identified earlier: no additional facts in the record. Scalia responds, "The other side says that there may be, and I don't know why we ought to get into that." He grins at Hodge as he asks, "Why can't we just send it back and let them figure that out and we decide what we took this case to decide, namely, the split that now exists in the Federal courts over whether Title IX precludes the use of 1983." Hodge repeats that "there must be an issue in controversy." Scalia nods toward Rothfeld: "He says there is an issue in controversy; that's good enough for me."
Then Ginsburg and Hodge proceed to run out the clock, chiefly by confusing and misunderstanding each other in ever-shorter sentences.
The problems with this case start with the awful facts of Jacqueline Fitzgerald's abuse, but they don't end there. The thin record forces the justices to consider imagining a better record in order to resolve a very urgent question. One of the oldest adages in the legal profession is that "bad facts make bad law." The court ends its session today bogged down over the question of whether imaginary facts can ever really make good law.