The Moral Panic Exception to the Constitution

Looking back, the theme of the past Supreme Court term is clear: a near-complete victory for Donald Trump and the conservative political movement. In nearly every case where Trump’s agenda was at issue, he won. Whatever hope once existed that the Court would operate as a last bastion for the rule of law, it’s gone now.

Not only is the Roberts Court not standing up to Trump, it is the farthest right that it has ever been. It upheld a law banning gender-affirming care for minors; it allowed parents in public schools to opt out of curricula that could be interpreted as supporting gay rights; it consistently allowed Trump to skirt around due process in his handling of deportations.

Just as striking as the ideological bent of the opinions coming from the Court is their incoherence, both internally and within the Court’s broader jurisprudence. Let’s take a quick look at some big ticket cases:

United States v. Skrmetti: the Court held that a Tennessee law banning gender-affirming care did not discriminate based on sex, despite the law itself banning care that is “inconsistent with [one’s] sex,” making sex the dispositive factor. They further held that the ban didn’t discriminate against transgender people, a conclusion so ridiculous that even Amy Coney Barrett and Clarence Thomas disagreed.

Mahmoud v. Taylor: the Court held that parents have the right to opt their children out of any public school curricula that contains normative messaging that conflicts with their religious beliefs – including supportive depictions of LGBT characters – creating an unprecedented private veto over public school classrooms.

Free Speech Coalition v. Paxton: the Court upheld a Texas law requiring age verification to access any online content “harmful to minors,” functionally ignoring decades of precedent requiring the highest level of scrutiny for content-based speech restrictions. 

It’s easy to look at this and think that the Supreme Court is operating without rules, unmoored from principle or precedent. Some law professors have even sought guidance on how to teach some of the more unintelligible reasoning from recent opinions. 

But the Court’s incoherence isn’t befuddling; it’s illuminating. The more the Justices move away from the realm of legal formalities, the more clearly you can see their actual operating principles. 

If you look at the cases above from a jurisprudential perspective, there’s no real throughline. Skrmetti is about the application of the equal protection clause to trans minors, Mahmoud is about the free exercise rights of parents, and Paxton is about speech rights related to adult content online. But running through them is a single principle, which we can call the moral panic exception to the Constitution.

Upgrade to premium!