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The Supreme Court’s Republicans just seized the most dangerous power in constitutional law

The Court’s latest ruling invokes a power that corrupts every court that wields it.

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.

Get the latest developments on the US Supreme Court from senior correspondent Ian Millhiser.

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.”

On Monday night, the Supreme Court handed down a decision requiring public schools to out trans students to their parents.

The Court grounded this decision in “substantive due process,” a legal theory that gives boundless power to judges, and that the Republican justices have historically opposed.

Like J.R.R. Tolkien’s One Ring, the limitless power substantive due process offers to judges has tempted many generations of justices.

The Court’s decision in Mirabelli is likely to impose impossible burdens on public schools.

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........

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