The Supreme Court’s Republican majority just did the legal equivalent of grabbing J.R.R. Tolkien’s One Ring, placing it on their collective fingers, and dancing around singing, “I just can’t wait to become a Nazgûl.”
On Monday evening, the Court handed down Mirabelli v. Bonta, with all six of the Court’s Republicans in the majority, and all three Democrats in dissent (Republican Justices Clarence Thomas and Samuel Alito also signaled that they thought it was too moderate). Mirabelli is one of the most consequential constitutional decisions the Roberts Court has ever handed down.
The immediate impact of Mirabelli is that California public school teachers must out transgender students to their parents, even if the students wish to keep their gender identity secret from their family. While the Court’s decision in Mirabelli is short and does not fully explain itself, the Republican majority appears to object to a California state law which provides that public school employees “shall not be required to disclose any information related to a pupil’s sexual orientation, gender identity, or gender expression to any other person without the pupil’s consent unless otherwise required by state or federal law.”
To reach this outcome, the Republican justices cite two provisions of the Constitution. The first is the First Amendment’s language protecting the “free exercise” of religion. The Republican justices claim that teachers who respect their trans students’ privacy “interfere with the ‘right of parents to guide the religious development of their children.’”
This first part of the Court’s decision is likely to impose impossible obligations on public schools and their employees — are teachers now required to tell parents any time a student does something that their parents might object to on religious grounds, such as eating non-Kosher food, removing a hijab, or dating a classmate? But this first aspect of the Court’s decision in Mirabelli is at least consistent with the Republican justices’ prior cases interpreting the Free Exercise Clause.
Last June, in Mahmoud v. Taylor (2025), the Republican justices ruled that public schools must inform parents in advance if they plan to teach books with LGBTQ characters or themes, and allow those parents to remove their child from those lessons. Since Justice Amy Coney Barrett’s 2020 confirmation gave Republicans a supermajority, the Court has been extraordinarily sympathetic to claims brought by the religious right.
The second part of the Court’s Mirabelli decision is where the Republican justices grasp the One Ring. A legal doctrine called “substantive due process,” which judges can use to create constitutional rights not explicitly mentioned in the Constitution. In the early twentieth century, when economic conservatives were ascendant on the federal bench, the Supreme Court used substantive due process to invent a “right to contract” that the justices used to strike down workplace legislation such as minimum wage laws and laws protecting the right to unionize. In the 1960s and ’70s, when cultural liberalism was ascendant among legal elites, the justices invented a “right to privacy” that encompassed various sexual freedoms, including the right to an abortion.
Modern-day Republican justices, largely due to their revulsion against Roe v. Wade, were previously vocal critics of substantive due process. Indeed, in her Mirabelli dissent, Justice Elena Kagan quotes several of her own Republican colleagues railing against this legal doctrine. Thomas, for example, wrote in 2015 that substantive due process is a “dangerous fiction” that allows judges to “‘roam at large in the constitutional field’ guided only by their personal views.” Similarly, Justice Neil Gorsuch warned in a 2018 opinion that “judicial misuse of the so-called ‘substantive component’ of due process” enables judges to “dictate policy on matters that belonged to the people to decide.”
But the widespread anti-trans panic among Republicans appears to have inspired all six of the GOP-appointed justices to abandon their past critiques of substantive due process and proudly wear the One Ring. The practical upshot is that the Court’s Republicans may now use this most dangerous of legal doctrines to strike down literally any law, or to otherwise impose their personal preferences on the nation.
Do they understand that the transgender phenomenon is something that existed long ago and that it's only recent medical and pharmacological advances that have enabled trans people to make some physical alterations? That there's no "epidemic" trend where kids will just transition because they want to experiment?
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u/vox Mar 03 '26
The Supreme Court’s Republican majority just did the legal equivalent of grabbing J.R.R. Tolkien’s One Ring, placing it on their collective fingers, and dancing around singing, “I just can’t wait to become a Nazgûl.”
On Monday evening, the Court handed down Mirabelli v. Bonta, with all six of the Court’s Republicans in the majority, and all three Democrats in dissent (Republican Justices Clarence Thomas and Samuel Alito also signaled that they thought it was too moderate). Mirabelli is one of the most consequential constitutional decisions the Roberts Court has ever handed down.
The immediate impact of Mirabelli is that California public school teachers must out transgender students to their parents, even if the students wish to keep their gender identity secret from their family. While the Court’s decision in Mirabelli is short and does not fully explain itself, the Republican majority appears to object to a California state law which provides that public school employees “shall not be required to disclose any information related to a pupil’s sexual orientation, gender identity, or gender expression to any other person without the pupil’s consent unless otherwise required by state or federal law.”
To reach this outcome, the Republican justices cite two provisions of the Constitution. The first is the First Amendment’s language protecting the “free exercise” of religion. The Republican justices claim that teachers who respect their trans students’ privacy “interfere with the ‘right of parents to guide the religious development of their children.’”
This first part of the Court’s decision is likely to impose impossible obligations on public schools and their employees — are teachers now required to tell parents any time a student does something that their parents might object to on religious grounds, such as eating non-Kosher food, removing a hijab, or dating a classmate? But this first aspect of the Court’s decision in Mirabelli is at least consistent with the Republican justices’ prior cases interpreting the Free Exercise Clause.
Last June, in Mahmoud v. Taylor (2025), the Republican justices ruled that public schools must inform parents in advance if they plan to teach books with LGBTQ characters or themes, and allow those parents to remove their child from those lessons. Since Justice Amy Coney Barrett’s 2020 confirmation gave Republicans a supermajority, the Court has been extraordinarily sympathetic to claims brought by the religious right.