The United States Supreme Court has just heard oral argument in two closely watched cases – West Virginia v. B.P.J. and Little v. Hecox – which challenged state laws that restrict so called transgender girls (biological boys) from competing in girls’ and women’s school sports. The legal questions were framed in the usual language of equal protection and Title IX. But something else was going on and exposed what some of us were already sensing: that the Court’s majority is deeply reluctant to turn an unresolved moral dispute into a national constitutional rule.

The cases have not yet been decided. What follows, therefore, is not a claim about what the Court has done, but a guess at what it is likely to do, especially in the light of what it started three years earlier, in Dobbs v. Jackson Women’s Health Organization.

Dobbs overturned Roe v. Wade and returned the regulation of abortion to the states – a position that is reflected in Australia. Whatever one’s moral view of abortion, the Dobbs decision is often misunderstood. The progressive left portrayed Dobbs as a culture-war escalation but in reality, it was a retreat – a conscious withdrawal by the Court from a role it had assumed for decades as arbiter of the nation’s deepest moral conflicts. In Dobbs, the Court did not legislate its morality; it declined to do so. It rejected the idea that the Constitution resolves a question on which Americans remain profoundly divided and instead sent the issue back to the most directly accountable political forum available: state legislatures.

Dobbs also marked a recognition by the Court that judicial intervention in the past had not only not resolved the debate, but actually made it worse. Roe v. Wade had nationalised and constitutionalised a question that the constitutional system was silent on, and which should always had been left open to democratic contest at a more local level.

The transgender sports cases now before the Court raise similar institutional questions. They involve disputes about sex, gender and identity – questions on which our modern societies remain in furious and robust disagreement – and where views vary across states, communities and families.

Reading the January argument, one sensed a Court wary of converting these disagreements into a permanent rule. Several justices pressed counsel on whether it was appropriate for the Court to resolve what are, at bottom, contested policy choices about sport, biology and fairness – or whether such judgments are better left to legislatures capable of tailoring rules to the views of local communities and revising them over time.

Unlike Dobbs, the transgender sports  cases have not yet been decided. But the institutional instinct was on full display. Just as the Court decided in Dobbs against the continued constitutionalisation of abortion, it now appears reluctant to constitutionalise gender identity in sport. If this holds, the result is more judicial restraint: an insistence that legislatures – not courts – bear responsibility for drawing lines in an area where there is furious disagreement.

This approach has been criticised harshly by the left and some on the right as abdication. They would have the national constitutional court making morality, but always in their favour. However, the Court seems inclined these days to do the opposite. To their eternal credit, the majority justices seem to think that courts are not the best place to resolve moral questions.

The American constitutional system was built on an acceptance of pluralism. The framers assumed disagreement and built that assumption into the Constitution on the understanding it would be a permanent feature of political life. Their solution was not to eliminate it, but to manage it through a dispersion of power – between branches of government, between federal and state power, and ultimately, as between the people themselves. As was the case for the Australian founders, federalism was not only necessary to create a ‘perfect union’, but also a long-term strategy for diffusion of power and stability.

For much of the late-twentieth century, the US political and judicial systems began to ignore that architecture. The deeply conservative principle of subsidiarity was largely abandoned. In the US, abortion as a right was nationalised by judicial fiat. Discrimination was permitted in the name of preventing discrimination. Other moral controversies were drawn into the court system and actively managed by it. The backlash was predictable. There was also going to be a core group of people who would forever reject the Court’s version of morality that had been imposed. The result was – over many decades – resentment, distrust and in the end, revolt due to non-acceptance.

It would be a mistake to treat the pattern here as accidental. The justices are not naive technicians. They are acutely aware that the legitimacy of the Court – and indeed the cohesion of the federal union itself – depends on resisting the temptation to impose uniform answers where consensus does not exist. Restraint here is not cowardice; it is institutional self-preservation. And what is more, it is clear that the founders intended it.

Recent commentary by Ayaan Hirsi Ali has linked the built in US constitutional scepticism of concentrated power to deep roots in the American tradition, and especially the role that religious liberty played in limiting state authority over personal conscience. Whether grounded in theology or smart politics, the insight is the same: free societies endure not by resolving every moral disagreement from the centre, but by pushing out contested questions to forums where persuasion, compromise and direct accountability remain possible.

To some extent this places the Court at odds with a strain of contemporary conservatism on the ‘new right’ in the US that seeks moral consolidation of the body politic through national authority and is explicitly intolerant of decentralising morality. Yet it was precisely this kind of intolerance on the other side of politics that did so much damage last century.

In Australia, we’re even more centralised than the United States, and like other Westminster systems we’re often more comfortable outsourcing political judgment to courts, regulators and experts. The result is a technocratic political culture in which accountability is avoided, and which erodes trust and confidence in the system. We’d be wise to avoid much of the painful realignment happening in the US now by coming to grips sooner than later with the idea that democratic legitimacy depends on the elected representatives deciding big questions – and not courts or bureaucrats.

By stepping back from the role of moral arbiter, the Supreme Court is not weakening democracy, but restoring it. In a fractured and polarised age, the current Court’s newfound quiet but brilliant refusal to rule could be a template for new jurisprudential and political strategies which hold the whole democracy show together.