Nearly everybody says, “I want judges to follow the law and not impose their personal political preferences.”

Unfortunately, what some people really mean is, “I want judges to impose my personal political preferences.”

Which is a decent introduction to Rod Gramer’s article last week, “The Idaho Supreme Court eviscerates the state Constitution.” This supposed “evisceration” is the supreme court’s recent ruling that Idaho’s school choice law is constitutional.

I represented the state in the school choice litigation, and the case Mr. Gramer is bemoaning only vaguely resembles the one my team litigated.

Mr. Gramer’s biggest complaint is that the court should have struck down the program under the Blaine Amendment, i.e., Idaho’s constitutional rule against government money supporting religious schools.

The only problem? The court couldn’t strike down the program under the Blaine Amendment, because nobody asked it to. The law’s opponents said a lot about the Blaine Amendment in the media—and then, when they finally filed their supreme court petition, they dropped the issue entirely.

Mr. Gramer also complains that the justices “ignored” the Idaho Legislature’s ongoing failure to adequately fund the public schools. But this complaint has the same problem: the petitioners never even argued that the Legislature was failing to fund the schools, so that issue just wasn’t before the court.

On both points, I suspect the petitioners had good reasons for their strategy. The argument about the Blaine Amendment would probably fail under the U.S. Supreme Court’s Espinoza decision, which addressed essentially the same issue and ordered Montana to let its school choice program go into effect.

The argument about the Legislature failing to fund public schools has a different problem: if it’s right, then the solution under Idaho precedent is to order more funding for the public schools—it’s not to order the Legislature to stop spending money on something else.

And that principle, incidentally, resolves the whole case. With the federal government, whatever the Constitution doesn’t authorize is forbidden—the federal government possesses only specific enumerated powers. But with the Idaho Legislature, whatever the Constitution doesn’t forbid is authorized—the Idaho Legislature has plenary power. (Which is normal for state legislatures.)

In other words, the Legislature can do whatever it wants unless the Constitution says it can’t. And there’s just no provision in the Idaho Constitution that says the legislature can’t give tax credits to parents who homeschool their kids or send them to private school.

If you don’t like the credits as a policy, that’s your right. Vote, lobby your legislators, make your opinion known. You might lose, but that’s democracy—you’re just one Idahoan out of two million, and, at the moment, most of the others disagree with you.

What you shouldn’t do is demand that the Idaho Supreme Court write new words into the constitution and then, when they refuse, take to the web and accuse them of eviscerating the constitution, not bothering to read the law, and being “curiously” obedient to out-of-state special interests.

Because in this decision, there was nothing “curious” at all. Yes, the court used the same arguments as a school-choice group that filed an amicus brief—but they were also the same arguments my team made on behalf of the Attorney General, the same arguments the court heard from the Legislature, and essentially the same arguments that six other state supreme courts have found persuasive when interpreting similar constitutional language.

Legally speaking, this was an easy case, and the Idaho Supreme Court got it right.

Alan Hurst was Solicitor General of Idaho from 2024 to 2026 and represented the state before the Supreme Court in Little v. Hecox. He is now a lawyer in private practice at Kirton McConkie in Boise. His views are his own and do not represent the views of his firm or his clients.