Sometimes we miss the important thing because we are looking for something else. That’s certainly the case with an important Supreme Court action taken earlier this week.
The justices responded to litigation related to Idaho’s law, passed in 2023, known as the “Vulnerable Child Protection Act.” This statute regulated medical actions taken on children to change their sex. Before it could take effect, a federal district court judge issued a stay prohibiting the law in its entirety.
On Monday, the Supreme Court partially lifted this stay. The stay remained in place only for the particular persons suing Idaho, permitting two children to continue to receive puberty blockers and estrogen regimens they already were taking. Idaho can now enforce the rest of the law for the rest of Idaho residents while legal proceedings continue.
Many commentators have focused on what this action might mean for future transgender litigation. The awful physical and psychological damage at stake, of course, makes that focus natural. However, the real importance of the justices’ response concerns how judges treat important and controversial laws coming up for their review. The justices’ action Monday struck a blow to the regular judicial process and respect for the consent of the governed.
The court’s action took a swipe at the phenomenon of “nationwide injunctions.” Such injunctions involve lower court judges issuing orders stopping any and all enforcement of disputed laws. Though a state law in this case, the stay partook of the same issues.
Most of the time, these nationwide actions abuse judicial power, an abuse engaged in with increasingly frequency in our legal system. The stays or injunctions abuse power by going well beyond the purposes for which they exist.
When enforced, laws affect people either to reward, protect, or punish. Sometimes these effects are unchangeable, either in what they do to persons or what they keep persons from doing. If such a law violates an individual right, then its enforcement could not just injure a person but do so in a way that cannot be remedied. A clear instance of such irreparable injury would be carrying out a death penalty sentence later found faulty. In those cases, judges rightly stop enforcement lest a wrong be done that cannot be righted.
The ability to give these injunctions shows the wisdom of the American Founders. Judges issue them as part of their equity power, an authority given to the federal judiciary in Article III of the Constitution. The Founders understood that imperfect persons made laws, meaning the laws themselves might not be perfect. Laws are general and anticipate future action. Yet, legislators cannot anticipate the exact effect of their laws.
The equity power permits judges to address these inadequacies or deficiencies in the written law, making sure its strict letter does not conflict with the law’s essential purpose. Along these lines, judges should use stays or injunctions to protect particular persons from potentially irreparable harm until the law’s legitimacy is fully established.
However, as this case shows, these judicial actions often go well beyond those narrow confines. Judges do not always limit themselves to the particular parts of the law under dispute, instead prohibiting enforcement of the statute entirely. Moreover, they do not limit their decision to the litigants or even the judge’s particular jurisdiction. These local judges act as if they have nationwide power. Knowing this bad tendency, people and groups now shop for forums where they think a sympathetic judge will grant them such nationwide stays.
This trend of regularly giving broad judicial stays undermines the judicial power and popular government. They undermine judicial power because they tend to circumvent the normal process of argument, deliberation, and decision that equips judges to do their job well. Instead, these proceeding rush action.
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These actions also smack of disrespect to popular government, giving a way for those who lost in the electoral and legislative process to essentially block an entire law for years, even if the law eventually wins in court.
The justices took a step toward tamping down this bad tendency. Let us hope doing so permits our judicial process to act in a more orderly manner. And let us hope it gives more space for the people to decide important questions through our votes and our representatives.
Adam Carrington is an associate professor of politics at Hillsdale College.
