Counting The Votes In Mirabelli v. Bonta

Mirabelli v. Bonta is a momentous emergency docket ruling that was frankly not on my radar. Sooner or later, I expected the Supreme Court to take case where a school district refused to tell parents that their child was engaging in a gender transition. What made these cases so tricky is that whenever litigation began, the districts conveniently changed the policy in an attempt to moot out what would be a certain loser. No one actually wants to defend these policies on the merits. But I thought the Court would resolve such a case on the merits docket. For example, in July 2025, ADF filed a cert petition in Foote v. Ludlow on appeal from the First Circuit. The briefing in that case concluded in November 2025, but the case entered relist purgatory with eight relists. Apparently, there are not four votes for cert in this case.

Yet the Court was willing to take action in Mirabelli. The emergency application was filed on January 8, and briefing concluded on January 22. About six weeks later, the Court has now ruled. In dissent, Justice Kagan asks why the Court acted here, and not in Foote. And if not in Foote, why not in one of the many other cases that are lined up? If I had to guess, this ruling from District Court Judge Benitez is the only one where the lower court actually ruled for the parents, and built an suitable record. Perhaps in the other cases, there were vehicle problems aided and abetted by judges who tried to make the cases vanish. But I’m not sure.

The votes in Mirabelli were not entirely clear. The emergency application raised two primary points. First, the parents had a Free Exercise and Substantive Due Process right to opt out of the gender policy. Second, the teachers had a Free Exercise, but not Substantive Due Process right, to opt out of the policy. Only Justices Thomas and Alito would have ruled for the parents and teachers.

This split reminds me of Justice Barrett’s first opinion on the Court in  South Bay United Pentecostal Church v. Newsom. In that case, Justices Barrett and Kavanaugh allowed people to pray in church, but not sing; Alito and Thomas, as well as Gorsuch, would have also allowed singing. Here, Barrett did not rule for the teachers; only the parents. In Mirabelli, Justice Sotomayor was the only member of the Court who would have denied the entire application. She would not have ruled for the parents or the teachers. Justice Kagan dissented, joined by Justice Jackson. Sotomayor did not join that dissent, which was surprisingly sympathetic to claim from the parents on the merits. Justice Barrett wrote a short concurrence, which was joined by the Chief Justice and Justice Kavanaugh. Barrett explains why she voted to grant interim relief, and in particular why a claim under substantive due process was consistent with Dobbs. Indeed, the concurrence goes into more depth than the per curiam opinion.

Was the vote here 6-3 or 5-4? Remember, with a per curiam opinion, a Justice does not need to indicate whether he dissents. It isn’t clear at first blush how Justice Gorsuch voted. But Justice Kagan tells us that Justice Gorsuch was with the majority. She writes:

Anyone remotely familiar with recent debates in constitutional law will understand why: Substantive due process has not been of late in the good graces of this Court—and especially of the Members of today’s majority. . . . Members of the majority often have expressed skepticism—sometimes outright hostility—to understand- ing the “capacious” term “liberty” to enshrine specific rights. . . . Another has pointed to the “judicial misuse of the so-called ‘substantive component’ of due process to dictate policy on matters that belonged to the people to decide.” Sessions v. Dimaya, 584 U. S. 148, 191 (2018) (GORSUCH, J., concurring in part and concurring in judgment).

In other words, Gorsuch is another member of the majority today.

If that is right, presumably Justice Gorsuch agreed with the per curiam opinion, but did not agree with Justice Barrett’s concurrence. Why? Barrett offers some thoughts on substantive due process, which Justice Gorsuch likely disagrees with. So that might make some sense why he doesn’t go along with the concurrence.

Then there is Justice Thomas, who has repudiated substantive due process in Dobbs and elsewhere. Justice Kagan questions whether Thomas’s repudiation extends to Meyer and Pierce:

For that reason, JUSTICE THOMAS has called for overruling “all” of this
Court’s “substantive due process precedents.” Dobbs, 597 U. S., at 332–
333 (concurring opinion). That invitation presumably extends to the
precedents supporting both the District Court’s decision and today’s per
curiam. See ante, at 5–6 (citing Meyer v. Nebraska, 262 U. S. 390 (1923);
Pierce v. Society of Sisters, 268 U. S. 510 (1925); and Parham v. J. R., 442
U. S. 584 (1979)); App. to Emergency Application 38a–39a.

I’m not so sure. I think Thomas could support Meyer and Pierce under the Glucksberg framework as deeply rooted rights. After all, Thomas went along with Glucksberg in Dobbs. Moreover, no one has asked the Court to revisit Meyer and Pierce. Or perhaps Thomas sees the rights of family as protected by the Privileges or Immunities Clause of the Fourteenth Amendment.

We should not forget Justice Thomas’s brief concurrence in Troxel v. Granville (2000):

I write separately to note that neither party has argued that our substantive due process cases were wrongly decided and that the original understanding of the Due Process Clause precludes judicial enforcement of unenumerated rights under that constitutional provision. As a result, I express no view on the merits of this matter, and I understand the plurality as well to leave the resolution of that issue for another day.[*]

[*Note: This case also does not involve a challenge based upon the Privileges and Immunities Clause and thus does not present an opportunity to reevaluate the meaning of that Clause.See Saenz v. Roe, 526 U. S. 489, 527-528 (1999) (Thomas, J., dissenting).]

Consequently, I agree with the plurality that this Court’s recognition of a fundamental right of parents to direct the upbringing of their children resolves this case. Our decision in Pierce v. Society of Sisters, 268 U. S. 510 (1925), holds that parents have a fundamental constitutional right to rear their children, including the right to determine who shall educate and socialize them. The opinions of the plurality, Justice Kennedy, and Justice Souter recognize such a right, but curiously none of them articulates the appropriate standard of review. I would apply strict scrutiny to infringements of fundamental rights. Here, the State of Washington lacks even a legitimate governmental interest—to say nothing of a compelling one—in second-guessing a fit parent’s decision regarding visitation with third parties. On this basis, I would affirm the judgment below.

As they say, if you shoot the king, you best not miss. And I think Justice Kagan missed here.

What happens now to Foote? Can the Court GVR in light of Mirabelli? Heads will explode if the Court remands on the shadow docket based on a shadow docket ruling.