Opinion: Mirabelli v. Bonta comes with heavy interventionist baggage

In the emergency-docket opinion in Mirabelli v. Bonta issued on March 2, the Supreme Court ruled that a district-court injunction should remain in place to stop California school policies that thwart parental knowledge of their children caught in the transgender maelstrom.

The satisfaction with the result expressed at National Review by Carrie Campbell Severino (“The Supreme Court Just Told California: Parents Have Rights. Deal With It”) and Thomas Jipping and Marc Wheat (“A Big Win for Parents at the Supreme Court”) as well as here at CWR by Charles Russo (“SCOTUS decision on ‘transitioning’ policies is a victory for parental rights”) is certainly understandable.

To reach this welcome outcome, however, the Court’s conservative majority, in a very brief opinion, relied on free-exercise and substantive-due-process cases that no originalist jurist should go anywhere near. This case discloses a persistent flaw in the current practice of originalist jurisprudence: namely, the unrestrained use of judicial power to intervene, without a constitutional basis, in what are majoritarian decisions legitimately reached in the democratic process.

Great policy results ought not to come at the high cost of judicial integrity. What is plain is that the indispensable virtues of restraint and modesty are in need of recovery.

California state law requires that a child who is in the process of “transitioning” from one gender to the other must give consent before a school can apprise the child’s parents of this development. Further, state law directs that schools must use children’s preferred names and pronouns irrespective of parental wishes. Not surprisingly, many parents objected to this lunacy and filed suit in federal court, some claiming a violation of the free-exercise clause under the First Amendment and others asserting a violation of parental rights under the due process clause of the Fourteenth Amendment. A district court enjoined these requirements, but the U.S. Court of Appeals for the Ninth Circuit stayed the injunction. The emergency appeal to the Supreme Court followed, and its success means that the injunction is now restored.

To reach this result, the Court, in evaluating the free-exercise challenge to California’s law, relies on Mahmoud v. Taylor, the 2025 case where the Court enjoined the use of storybooks in some Maryland elementary schools that were essentially homosexual propaganda. Invoking Wisconsin v. Yoder (1972), a Burger-era excrescence that entrenched the Warren Court’s judicial arrogation of legislative authority over free-exercise exemptions in Sherbert v. Verner (1963), the Mahmoud Court found the Maryland policies burdened parental free exercise of religion in so serious a way that the state was held to the most exacting judicial scrutiny to justify them.

In Mirabelli, a group of nonreligious parents also successfully challenged the California policies under Pierce v. Society of Sisters (1925) and Meyer v. Nebraska (1923). These cases use the infamous doctrine of substantive due process, where the Court reads rights not found in the Constitution into the due process clause of the Fourteenth Amendment. Pierce and Meyer invented a constitutional right of parents to direct the upbringing of their children. At its worst in the last century, substantive due process afflicted American jurisprudence with Roe v. Wade in 1973, and judicial conservatives and originalists have conducted an unremitting–and thoroughly justified—war on this doctrine. And yet the conservative Roberts Court enthusiastically wields Pierce and Meyer to intervene in this case on the issue of school policies.

This doctrinal inconsistency is tweaked by Justice Elana Kagan in her Mirabelli dissent. In a concurring opinion that responds to this dissent, Justice Amy Coney Barrett argues, correctly, that Dobbs v. Jackson Women’s Health Organization (2022), which reversed Roe, was not a repudiation of substantive due process across the board, just the egregious form it took in Roe v. Wade. In other words, she expressly endorses a more modest approach to substantive due process. This is a clarification, then, about the mere scope of an arbitrary doctrine, not its basic validity.

In sharp contrast to this embrace of the judicial invention of rights, an intellectually honest originalist approach to Pierce and Meyer is found in Justice Antonin Scalia’s concurring opinion in Troxel v. Granville (2000): “I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) th[e] unenumerated right” of parents’ authority over rearing their children.

The problem with Mahmoud and now Mirabelli is that judicial conservatives have yielded to the temptation to employ judicial power to favor their side in the culture wars in public schools without any constitutional warrant. Unmistakably, the introduction of sexual ideologies into public education is a disgrace, but it is a disgrace to be rooted out in the same way that it was established: democratically. These judicial usurpations of legislative authority in public education show that the current Court is, in key respects, as aggressively interventionist and results-driven as the Warren Court in its heyday.

The antidote to this overreaching is to return to the judicial modesty and restraint of Justice Felix Frankfurter. In the famous flag-salute cases from the period of the Second World War, Minersville School District v. Gobitis (1940) and West Virginia v. Barnette (1943), Frankfurter’s restraint ultimately lost to Justice Robert Jackson’s deft free-speech analysis, but he sagely warned of the danger of turning the Court into “the school board for the country.”

Today’s judicial conservatives appear only too eager to serve as board members. Frankfurter stated the point succinctly: “To fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies, rather than transfer such a contest to the judicial arena, serves to vindicate the self-confidence of a free people.” The usurpation continued by Mirabelli is indisputably a loss for the practice of constitutional self-government.

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