Activists in Black Robes: America’s Shadow Legislature

There is a reason the Founders gave Article III judges lifetime appointments and no army. They were supposed to interpret law quietly, not rewrite it loudly. On June 9, 2025, U.S. District Judge Jon S. Tigar, an Obama appointee sitting in San Francisco’s Northern District of California, issued a 52-page order blocking enforcement of three duly signed presidential executive orders targeting DEI programs and gender ideology mandates across the federal funding apparatus. One judge. One city. 330 million Americans. The judiciary stopped being the referee and started playing quarterback, and Judge Tigar has been under center more than once. This is not a new pattern. It is a business model.

Alexander Hamilton, in Federalist No. 78, called the judiciary the ‘least dangerous’ branch precisely because it holds neither the sword nor the purse. What Hamilton did not anticipate was a class of ideologically self-appointed philosopher-kings who treat the Constitution like a mood ring, its meaning shifting to reflect whatever the cultural moment demands. Originalism is not a conservative parlor trick; it is the intellectual discipline of reading a document as its authors intended, rather than as a living editorial board would prefer. When Justice Ketanji Brown Jackson could not define the word ‘woman’ during her Senate confirmation hearing, reasonable observers were entitled to wonder whether she is equipped to rule on cases where that definition carries enormous legal weight.

Judge Tigar’s June 2025 ruling is not an outlier, it is the latest entry in a long log. He previously issued a nationwide injunction blocking Trump’s first-term asylum restrictions, earning him the presidential label “Obama judge” and a famous rebuke from Chief Justice Roberts who insisted the judiciary was above such characterizations. The Chief Justice’s nobility is admirable. The pattern is harder to dismiss. Federal district judges have issued nationwide injunctions blocking executive actions on immigration, energy, DEI, and federal spending – a procedural weapon of mass judicial destruction. James Madison warned in Federalist No. 51 that accumulating all governmental powers in the same hands is the very definition of tyranny. The Supreme Court agreed, sort of: in Trump v. CASA, Inc. (June 2025), a 6–3 majority held that universal injunctions “likely exceed the equitable authority that Congress has given to federal courts.” Unfortunately, the machinery adapted immediately. Class actions and APA vacatur allow the same single district court judge to achieve functionally identical nationwide effect – different procedural label, same result – a loophole the Court explicitly left open and has yet to close. 

The Supreme Court’s ruling on March 2, 2026, blocking California’s AB 1955, the so-called SAFETY Act, crystallizes what is actually at stake. Signed by Governor Gavin Newsom in 2024, that law prohibited school staff from notifying parents when a child adopted a transgender identity at school without the student’s consent. In a 6–3 ruling in Mirabelli v. Bonta, the Court held that California’s policies allowed schools to “facilitate a degree of gender transitioning during school hours” in direct violation of parents’ religious liberty and due process rights. U.S. District Judge Roger Benitez had previously issued a statewide permanent injunction on the same grounds. The Ninth Circuit stayed his ruling. The Supreme Court reversed the stay. The Thomas More Society, which represented the Catholic parents who brought the challenge, called it the most significant parental rights ruling in a generation. Hard to argue against that.

The deeper constitutional irony deserves a moment. Under California law, a minor of any age may obtain an abortion without parental consent or notification, the state enshrined that principle through both case law and a 2022 constitutional amendment. Yet AB 1955 prohibited school staff from telling those same parents that their child was being socially transitioned in the classroom. Sacramento trusts a 13-year-old to make a consequential medical decision in secret but does not trust her parents to know she changed pronouns in third period. That logic pretzel does not have a constitutional basis, but it sure has an ideological one.

The dissenters, Justices Kagan (joined by Jackson), with Sotomayor declining separately – argued the majority’s parental rights holding conflicted with Dobbs v. Jackson Women’s Health Center. The implicit claim: if Dobbs curtailed substantive due process in the abortion context, the Court should hesitate to expand it here. This is the same liberal bloc that spent decades insisting substantive due process was infinitely elastic whenever Roe was threatened. Justice Kagan’s dissent chastised the majority for acting on a “novel legal issue” through the emergency docket, a concern about procedural haste that correlates remarkably well with whichever side is losing. For Catholic and Jewish families alike, the notion that a government employee may orchestrate a child’s social transition in secret, over explicit parental objection, is not judicial sensitivity. It is constitutional trespassing.

Three structural reforms would begin restoring balance. First, finish what Trump v. CASA started: codify the end of universal injunctions by statute, close the class-action and APA workarounds, and confine district court relief to the parties actually before the court. The HALT Act offers a workable model. Second, enact 18-year staggered term limits for federal judges to reduce the perverse incentive to treat a lifetime appointment as an ideological legacy project. Third, require Senate confirmation hearings to test genuine fidelity to the constitutional text, not celebrate ‘judicial temperament’ as a euphemism for ideological compatibility. Ask the hard questions and demand coherent answers. A Senate that confirms nominees without thorough examination makes a deliberate decision, and the nation experiences the consequences of that decision for many years.

The Constitution did not create nine philosopher kings and an unlimited supply of Jon Tigars below them; it created a court. Parents have the right to raise their children. Citizens have the right to know that elected branches, not unaccountable jurists in favorable zip codes, govern them. Executives have the right to execute the laws passed by the people’s representatives. The court that remembers this is performing its constitutional function. The court that forgets it is running a shadow legislature in black robes. The difference matters more than most people realize, until one day, it matters more than anything else.