Government by judiciary?

Judicial power is a perennial subject of debate in America. It’s now taking center stage in high-profile, fast-developing litigation in Ohio. Look past the explosive subject matter—gender dysphoria, children, and sexual identity—and the case may teach some larger lessons about judicial power in America.

First, look at the case itself. Like several other states in recent months, Ohio passed legislation that backers believe will protect children who experience gender dysphoria from aggressive medical interventions. Among other things, it seeks to protect children from potentially life-changing and irreversible medical treatments such as puberty blockers. (It also provides that school sports participation is based on biological sex, not gender identity.) This is controversial territory. Ohio’s governor vetoed the bill in December, but its legislature overrode the veto. Not surprisingly, the legislation is now the subject of a lawsuit. In the first round of litigation, at a very early stage of the litigation, an Ohio state court judge said that the law violates the state constitution. And the judge went on to accomplish what the governor couldn’t. He put the whole law on hold. At one level, this isn’t surprising, but it should be.

To understand what may be going wrong, we need to look at what happens when a court says that a law violates a constitution.

One of the common myths about American law is that courts have the power to “strike down” unconstitutional laws. This isn’t quite right. Normally, courts decide cases between two parties who have a dispute. Sometimes that dispute includes a disagreement about whether a law is consistent with a constitution (either federal or state). The court then should recognize that the higher law—a constitution—trumps the lower law—a run-of-the-mill statute, for instance. The court doesn’t have a general-purpose veto power over legislation; it’s just doing the legal work that has to be done to decide a concrete case. Courts have a judgment power to decide cases, not a veto power to erase statutes.

Of course, it’s true that if a statute is inconsistent with the constitution, and a court says so in case A, another court deciding case B might look at case A as precedent to also say that the same statute is inconsistent with the constitution. That’s precedent, not a special judicial power to erase statutes.

Add to this another layer of complexity. Courts also have rules about how they remedy a problem. The easy one is just figuring out if one party owes another money. More complicated is a situation where the court is being asked to issue an injunction or a restraining order—something that commands one party to do or refrain from doing something. Those remedies come from an old English body of law called equity. Equity had rules about the scope of the remedies courts could give. American courts still rely on this body of law. One of the rules of equity was that the scope of the problem would set the scope of the remedy. That sounds straightforward enough.

So now let’s put the pieces together. Courts decide real-world disputes. Courts aren’t legislatures, and they don’t make rules in the abstract. When a court issues an order like an injunction, a court can go only as far as the dispute warrants.

So when we look at what’s happening in Ohio, we should have some concerns. There, two families are challenging the state statute on gender dysphoria. The families say that they each have a child who does not identify with his or her biological sex. According to court filings, one child is on puberty blockers now; the other child may be prescribed similar treatment in the future, but has no existing prescription. But this is where things get curious. The law has a grandfather clause that allows existing prescriptions to continue to be filled. So the first child isn’t facing any obstacle from this law. The other child doesn’t have a prescription and may or may not get one even after consulting a doctor who would consider giving such a treatment. We just don’t know.

Yet the court saw fit to prohibit the state from enforcing its law statewide, at the very beginning of the case. It’s a bold move. It goes far beyond addressing the concerns of the individuals bringing the suit. The court is making the decisions for the whole state. And it’s doing so based on two individuals who may not even be affected by the statute. On Monday, Ohio’s attorney general asked the state supreme court to stop the universal, statewide application of the local court’s order. The ball is now with the state high court.

Just last week, the U.S. Supreme Court encountered a similar law with similar litigation challenges from Idaho. In that case, the Supreme Court said it was a mistake for the federal district court to issue a statewide order prohibiting the state from enforcing the law. Concurring, Justice Gorsuch explained that the lower court had gone too far in trying to decide matters for “nonparties.” He was quite right.

Americans often argue about deeply held values and moral commitments, not just in the political process, but also in the courts. Courts become the scene of culture wars confrontations. To some extent, that’s inevitable; law is inevitably entangled with our moral commitments. But I doubt that many people, on the left or the right, are prepared to defend courts as the ideal makers of social policy. If courts could pay more attention to that very simple limit on their power, we might have better decisions that are less about large-scale social policy. Because that is not what courts are supposed to do. Courts aren’t designed to make policy. They are designed to decide cases.