Judicial power has always been a subject of debate in America. The case is now at the center of a rapidly unfolding high-profile lawsuit in Ohio. Ignoring the explosive themes of gender dysphoria, children, and sexual identity, the case may teach a larger lesson about American judicial power.
First, take a look at the case itself. Like several other states in recent months, Ohio has passed legislation that advocates believe will protect children experiencing gender dysphoria from aggressive medical intervention. Among other things, it aims to protect children from potentially life-altering and irreversible medical procedures, such as puberty blockers. (It also provides that participation in school sports is based on biological sex rather than gender identity.) This is a controversial area. Ohio's governor vetoed the bill in December, but the Legislature overrode the veto. Unsurprisingly, this bill is currently the subject of litigation. In the first round of litigation, an Ohio state court judge said very early in the case that the law violated the state constitution. And the judge continued to accomplish what the governor had failed to accomplish. He put the entire law on hold. On one level, this is not surprising, but it should be.
To understand what's wrong, you need to consider what happens when a court says a law violates the Constitution.
One common misconception about American law is that courts have the power to “strike down” unconstitutional laws. This is completely incorrect. Courts usually decide cases between two parties in dispute. In some cases, the dispute may involve a disagreement over whether a law is consistent with the constitution (federal or state). In such cases, the court should recognize that the higher law, the Constitution, takes precedence over the lower law, such as ordinary statutes. Courts do not have a general veto power over legislation. They are simply carrying out the necessary legal procedures to resolve a specific case. Courts have the power to decide cases and do not have the power to veto statutes.
It is true, of course, that if a statute is unconstitutional and the court finds so in Case A, another court deciding Case B may consider Case A as a precedent. Also They argue that the same law is inconsistent with the Constitution. It is a precedent, not a special jurisdiction to erase statutes.
This adds another layer of complexity. Courts also have rules on how to resolve issues. The easy part is figuring out whether one party owes money to another. Even more complex are situations where a court is required to issue a restraining order or restraining order ordering one party to do or refrain from doing something. These remedies are based on an old British legal system called equity. Equity had rules regarding the scope of relief that a court could grant. American courts still rely on this set of laws. One of the principles of fairness was that the scope of the problem determined the scope of relief. It sounds simple enough.
Now let's put the pieces together. Courts decide real-world disputes. Courts are not legislatures and do not make abstract rules. If a court issues an order such as an injunction, the court can only hear the dispute to the extent that it warrants it.
So when you look at what's going on in Ohio, there should be some concern. There, two families are challenging state laws on gender dysphoria. Each family says they have a child who does not recognize their biological sex. One child is currently taking puberty blockers, according to court filings. The other child may be prescribed similar treatment in the future, but there is no existing prescription. But here's where it gets interesting. The law has a grandfather clause that allows existing statutes of limitations to continue to be satisfied. Therefore, the first child does not face any obstacles under this law. The other child does not have a prescription, and even after consulting with a doctor who may consider such treatment, she may or may not receive one. We just don't know.
But the court found it appropriate to prohibit the state from enforcing the law statewide from the outset of the case. It's a bold move. It goes far beyond addressing the concerns of the individual filing the lawsuit. The court is making decisions for the entire state. And they're doing so based on two individuals who may not even be affected by this law. Ohio's attorney general on Monday asked the state Supreme Court to halt the universal application of the district court's order across the state. The ball is now in state Superior Court.
Just last week, the U.S. Supreme Court faced a similar law with a similar lawsuit filed by the state of Idaho. In that case, the Supreme Court said the federal district court erred in issuing a statewide ban on enforcing the law. Justice Gorsuch agreed, explaining that lower courts had gone too far in trying to decide issues for “non-parties.” He was absolutely right.
Americans often debate deeply held values and moral commitments, not only in the political process but also in the courtroom. The courtroom becomes a site of culture war confrontation. To some extent, that is inevitable. Laws are necessarily intertwined with our moral obligations. But I doubt that many people on either the left or the right are prepared to champion courts as ideal architects of social policy. If courts could pay more attention to very simple limits on their power, rather than about large-scale social policy, better decisions might be made. Because that's not what the court is supposed to do. Courts are not designed to decide policy. They are designed to decide cases.
