Judges should judge

The Supreme Court term has officially ended. The justices are off gallivanting -- teaching in Europe, road-tripping in RVs and disappearing into the summer ether. Yet the decisions they issued continue to reverberate, even as the headlines have moved on.

This term won't be remembered for a single culture war bombshell. Instead, it should be defined by something deeper: a reckoning over what judges are even supposed to do.

In case after case, the real question wasn't whether a particular law was good or bad policy, or even whether it was constitutional. It was whether courts have a duty to meaningfully scrutinize laws at all. United States v. Skrmetti, for instance, was ostensibly about Tennessee's ban on transgender care for minors -- but it was really about judicial review. The court upheld the law under a toothless form of scrutiny that asked whether the state had some reason to act -- not whether its justification made sense or squared with constitutional guarantees. The subtext: Judges should get out of the way.

That theme ran throughout the term. When it comes to economic regulations, social policies or administrative law, a majority of the court seemed to favor judicial restraint over enforcing constitutional limits. In Free Speech Coalition v. Paxton, for example, the court upheld a Texas law requiring age verification for adult websites. The plaintiffs argued that the law burdened adult access to protected speech, and so the court should closely scrutinize it to make sure it's narrowly tailored to protect adults' First Amendment rights. They argued that it applied irrationally to certain websites but not others and that less restrictive means were available to prevent minors from accessing obscene materials. Texas countered that the law was about protecting minors, so the lowest form of judicial review -- called rational basis scrutiny -- would suffice.

The court found a middle ground: intermediate scrutiny. But even that standard was watered down. Writing for the majority, Justice Clarence Thomas said the government didn't need to choose the least restrictive means of achieving its ends or even avoid under-inclusion. This didn't look much like the usual close analysis that courts apply to laws that restrict speech. Instead, it appeared as though the court was sidestepping its usual First Amendment rigor because the case involved porn.

If the court consistently applied this standard, it would at least appear consistent. But in other cases, the court closely analyzed the challenged law. In Mahmoud v. Taylor, a group of parents had challenged a Maryland school board's refusal to let them opt out of LGBTQ+ curriculum that conflicted with their religious beliefs. The board had said that teachers weren't coercing students into adopting certain beliefs; they were merely exposing students to ideas like inclusivity and respect. It also argued that opt-outs were "unworkable."

The Supreme Court disagreed, insisting that parents shouldn't have to show coercion to raise a free exercise claim and affirming that constitutional rights don't depend on the government's determination that they are "workable." In a lengthy and thorough opinion, the court applied strict judicial scrutiny and ruled for the parents.

Cases like Skrmetti and Mahmoud are strangely symmetrical -- each pitting parental rights, individual liberties and government authority against one another, but with opposite ideological valences. In both, the key issue was whether the court would give the government a pass or demand real justification. But the former found the so-called liberal justices in favor of judicial review, while in the latter case, it was the conservatives. That's an odd result given the Ninth Amendment's admonition that all rights are deserving of respect.

And then of course came Trump v. CASA, which limited the judiciary's ability to issue injunctions that apply not just to the plaintiffs in the case, but to affected individuals across the country. In recent years, lower courts have increasingly used nationwide injunctions to halt sweeping executive action. The court said judges must tailor relief to the parties before them -- but left open other routes to broad relief, like class actions and claims under the Administrative Procedure Act. It was a partial pullback, not a gutting, but it will undoubtedly mean that judges have less power to push back on government overreach.

If there's a unifying question this term, it's whether judges should judge. Should courts engage in rigorous review when constitutional rights are at stake, or should they defer to lawmakers as long as there's a vaguely plausible rationale?

The Roberts Court didn't answer that question consistently. But we should keep asking it.