A broken clock is right twice a day, and even a judiciary prone to activism can occasionally stumble into the clear light of textualism.
On May 14, 2026, the Wyoming Supreme Court handed down a monumental victory for families and the separation of powers.
In reversing the district court’s injunction against the Steamboat Legacy Scholarship Act, the Court finally put down its red pen, picked up a dictionary, and read the Constitution as it was actually written.
It is a ruling worth celebrating. But it induces a profound sense of whiplash.
How do we reconcile the restrained, text-bound jurisprudence of this school choice decision with the sheer judicial vandalism we witnessed so recently in State v. Johnson?
How does the same body of jurists act like a rogue super-legislature one week, and a faithful umpire the next?
To understand this schizophrenia, we must look at how the voucher case arrived at the high court and why textualism prevailed this time.
When District Court Judge Peter H. Froelicher blocked the Education Savings Account (ESA) program earlier this year, his reasoning suffered from a fatal flaw born from the legacy of the Campbell cases.
He fundamentally misread the Wyoming Constitution. The text mandates that the Legislature "shall create a complete and uniform system of public instruction." To a textualist, this is a positive command. It is a floor the state must reach.
Yet, Froelicher twisted this floor into a ceiling. He interpreted the duty to fund public schools as an implicit prohibition against funding anything else.
This is a logical non-sequitur.
If the Constitution commanded the state to provide a "Public Library System," no sane jurist would argue the state is therefore forbidden from providing book vouchers for children to use at a private bookstore.
The Constitution says public schools must be uniform; it does not say they must be the only schools receiving state support.
Thankfully, the Supreme Court rejected Froelicher’s exclusivity clause.
The Court also delivered a brutal, much-needed reality check to the Wyoming Education Association, dismantling their manufactured claims of "irreparable injury."
The WEA relied on the tired trope that public schools were being irreparably harmed by the exit of students.
The Supreme Court saw through this fiction, noting that the $30 million for the ESAs was appropriated from the general fund and explicitly did not touch the public school funding model.
But while the WEA’s claims of injury were legally and mathematically bankrupt, a very real, truly irreparable harm did occur in this case.
Because of Judge Froelicher’s legally baseless injunction, Wyoming students were locked out of the ESA program for the entire 2025-2026 school year.
A child only gets one shot at the fourth grade, or the eighth grade, or their junior year.
You cannot turn back the clock. You cannot retroactively educate a child who was trapped in a failing environment or denied necessary tutoring because a judge decided to freeze their funds.
By stalling this law for a year based on fossilized, anti-textual reasoning, the district court robbed families of time and educational opportunity they can never get back. Froelicher’s decision did not protect students; it actively harmed them. That is the true human cost of judicial activism.
Consider the absurdity if the courts had upheld the district court's logic.
If judges "discovered" a fundamental right to food tomorrow, strict scrutiny would compel them to rule that the state must build a government grocery store.
They would mandate that you shop at the State Commissary, buying rotting vegetables at inflated prices, simply because the Court defined those specific vegetables as the "basket of goods."
And if you tried to take your food allowance to the private market—where produce is fresh and costs half as much—they would stop you, arguing that competition harms the state monopoly. The Supreme Court thankfully rejected this madness for our children.
But if this Court is capable of following the plain text, their actions in State v. Johnson are exposed as even more egregious.
In Johnson, the Court threw textualism out the window and engaged in blatant judicial alchemy. They "discovered" a fundamental right to abortion hiding in a 2012 healthcare access amendment.
Passed by voters as a conservative response to the Affordable Care Act, its explicit purpose was to protect citizens from government healthcare mandates. It was a libertarian shield.
Yet, the Court took this shield and forged it into a sword to strike down the state’s pro-life laws. They ignored the intent of the voters, twisted the text, and magically elevated this invented right to a "fundamental" status to trigger strict scrutiny.
Why the discrepancy? The ugly truth is that courts are often tempted to work backward from their preferred policy outcomes.
In Johnson, the political pressure from the national cultural zeitgeist was too strong to resist. They wanted to protect abortion access, so they tortured the text until it confessed. It was an exercise in raw political power.
We should loudly applaud the Wyoming Supreme Court for upholding school choice.
The victory for ESAs proves that textualism works when the courts step back and let the legislature legislate. But the lingering stain of State v. Johnson reminds us that the egg-sucking dog of judicial overreach is merely sleeping, not cured.
The judiciary backed down on vouchers because the legal architecture was airtight, the financial realities were undeniable, and the public was watching.
The legislature must not become complacent.
They must continue to assert their authority, define their terms tightly, and entertain strict jurisdictional limits to prevent forum shopping by activists seeking statewide injunctions.
We must ensure that the policy decisions of Wyoming are made by elected representatives in the Capitol, and not dictated by the whims of a courtroom.
Fred Harrison is an attorney in Cheyenne and served in the Wyoming Legislature from 1982 - 1992. He can be reached at: Fred.Harrison@fjhlawoffice.com
