Justices Debate Emergency Docket in Parental Rights / Gender Transition Concealment Case

Today’s opinion in Mirabelli v. Bonta involved, on the merits, California policies that “prevent schools from telling them about their children’s efforts to engage in gender transitioning at school unless the children consent to parental notification” and “require[] that schools use children’s preferred names and pronouns regardless of their parents’ wishes.”

But the procedure was unusual: The injunction had been issued by the District Court and appealed to the Ninth Circuit, which temporarily stayed (i.e., blocked) the injunction pending appeal. The Supreme Court was asked to vacate the stay, and thus reinstate the injunction, again pending appeal. That’s the kind of procedure that happens on the Court’s “shadow docket” or “emergency docket” or “interim relief docket.” And the Justices had an interesting discussion about this. From the unsigned majority opinion:

We grant the application and vacate the stay with respect to the parents because this aspect of the stay is not “justified under the governing four-factor test.”

Likelihood of success on the merits. We conclude that the parents … are likely to succeed on the merits of their Free Exercise Clause claim [and substantive due process claim]. [For details, see this post. -EV] …

Irreparable harm. The denial of plaintiffs’ constitutional rights during the potentially protracted appellate process constitutes irreparable harm.

Balance of equities. Finally, the “equities do not justify depriving [the parents] of the District Court’s judgment in their favor. Everyone agrees that children’s safety is the overriding equity. And the injunction here promotes child safety by guaranteeing fit parents a role in some of the most consequential decisions in their children’s lives. The injunction also permits the State to shield children from unfit parents by enforcing child-abuse laws and removing children from parental custody in appropriate cases. [The majority didn’t expressly discuss the fourth factor, the public interest, but its discussion dealt with it implicitly. -EV] …

Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh, concurred:

[T]he precedent recognizing [parental] rights controls our assessment of whether the parents are likely to succeed on the merits. The word “likely” is important, because it reflects that our assessment is preliminary. We consider the merits not to conclusively resolve them, but because they bear on the limited question before us: Are the parents entitled to the benefit of the judgment entered by the District Court while California tries to overturn that judgment on appeal? The Ninth Circuit—itself acting on an interim basis—said “no.” We disagree. The parents must continue to litigate in the Ninth Circuit, and if necessary, this Court. But in the meantime, the injunction of California’s policy—which, incidentally, was entered after a full merits process—remains in place.

And contrary to the dissent’s charge, granting interim relief is not a sign of the Court’s “impatience” to reach the merits. Instead, the grant reflects the Court’s judgment about the risk of irreparable harm to the parents. If the parents were probably right but would suffer little harm from the Ninth Circuit’s stay, they would not be entitled to interim relief. But that is not the situation here. Under California’s policy, parents will be excluded—perhaps for years—from participating in consequential decisions about their child’s mental health and wellbeing. Thus, the parents are likely to suffer irreparable harm if California enforces its policy while this litigation winds its way through the courts.

One last point: The Court has chosen to accompany today’s order with a per curiam opinion that explains its reasoning. The choice to say more rather than less is perhaps the source of the dissent’s concern that our disposition of this application will be taken as a “conclusive merits judgment.” But see, e.g., Whole Woman’s Health v. Jackson (2021) (Kagan, J., dissenting from denial of application for injunctive relief ) (critiquing this Court’s interim orders for “barely bother[ing] to explain [their] conclusion[s]”); Trump v. Boyle (2025) (Kagan, J., dissenting from grant of application for stay) (similar). Interim applications routinely require the Court to balance the lock-in risk of saying too much against the transparency cost of saying too little. In my judgment, the benefits of explanation win out here. The Ninth Circuit (following the Sixth Circuit) significantly misunderstood Mahmoud v. Taylor (2025), and general course correction will allow the case to progress efficiently….

When an interim application comes to us, “we must decide it—grant or deny.” Because the [stay] factors strongly favor the parents, I see no basis for denying this application.

Justice Kagan, joined by Justice Jackson, dissented:

Today’s decision shows, not for the first time, how our emergency docket can malfunction. A case raising novel legal questions and arousing strong views comes to this Court via an application about whether to stay a district court’s injunction pending appeal. The ordinary appellate process has barely started; only a district court has ruled on the case’s merits. The Court receives scant and, frankly, inadequate briefing about the legal issues in dispute. It does not hold oral argument or deliberate in conference, as regular procedures dictate. It considers the request on a short fuse—a matter of weeks.

And then the Court grants relief by means of a terse, tonally dismissive ruling designed to conclusively resolve the dispute. The Court does all this even though the application of existing law to the case raises tricky questions, and so cries out for reflection and explanation. The Court is impatient: It already knows what it thinks, and insists on getting everything over quickly.

Indeed, the precipitousness of the Court’s decision today has yet a further—and wholly new—dimension: In granting emergency relief, the Court cannot even wait for an appellate court to conclude its own process for deciding the identical issue. As the Court notes, a Ninth Circuit panel last month stayed the District Court’s injunction against the challenged policies, pending the State’s appeal of that order. The plaintiffs responded by simultaneously filing two motions—one asking this Court to vacate the panel’s stay and the other asking the Ninth Circuit to do the same thing through en banc review. The Ninth Circuit is already acting on the motion filed there: The court promptly called for (and has now received) a response from the State, preparatory to exchanging memoranda and voting on reconsideration of the panel’s decision.

Regular order counsels that, in this situation, the Ninth Circuit should go first. The lower court, that is, should decide whether to vacate the stay; and only then should this Court decide whether further action is needed. Cf. Supreme Court Rule 23.3 (Stay applications “shall set out with particularity why the relief sought is not available from any other court”). But the Court’s impatience cannot be contained for even that long. The Court jumps the line, pre-empting the Ninth Circuit’s normal (and notably reflective) en banc process. Why wait for appellate procedures to play out when the Court already knows what it wants?

And still, there is worse: The Court resolves the issues raised through shortcut procedures on the emergency docket even though it has had—for months now—the option of doing so the regular way, on our merits docket. Since November of last year, a petition for certiorari has been pending in a case that, in critical respects, is a carbon copy of this one. In Foote v. Ludlow School Comm. cert. pending, as here, a public school adopted a policy, conforming to a state agency’s guidance, about students who identify as transgender. There, as here, the policy requires school employees to use only a student’s preferred name and pronouns, while barring employees from disclosing the student’s at-school gender identity to parents. And there, as here, parents challenge that policy as a violation of their right to substantive due process. Why not, then, just grant certiorari in Foote, and decide it this coming fall?

{The one difference between this case and Foote is that this case also involves a First Amendment free exercise claim, which would (if successful) give relief to parents with religious objections to the State’s policy. But … the Court’s recognition of the substantive due process claim here makes the free exercise claim immaterial. That is because accepting the due process claim gives relief to all objecting parents, religious and non-religious alike. So granting certiorari in Foote would allow the Court to consider, on its regular merits docket, the only claim doing actual work here. And if it is nonetheless thought important to address the First Amendment issue as well, the Court could grant certiorari (as I next explain) on one of multiple other cases raising both issues that are likely to reach us in short order.}

Or if there is some reason that Foote is not suitable, the Court could take one of the many cases lined up behind it. By recent count, almost 40 cases raising due process and/or free exercise objections to similar school policies are currently in the judicial system (with several recently decided by appellate courts), so this Court would not have to wait long. By granting certiorari on one (or more) of those cases, the Court could ensure that the issues raised by such policies receive the careful, disciplined consideration they merit, rather than the inevitably truncated review the Court affords emergency applications.

Certainly, the Court cannot claim that thought and care are not needed. If nothing else, this Court owes it to a sovereign State to avoid throwing over its policies in a slapdash way, if the Court can provide normal procedures. And throwing over a State’s policy is what the Court does today. To be sure, the Court sprinkles the word “likely” atop its assessment of which party’s arguments will succeed. But no one—in particular, neither a state official nor a lower court—is apt to read the Court’s per curiam, brusque though it is, as anything less than a conclusive merits judgment….

The Court … would be far better equipped to draw the appropriate line and to explain its legal basis—in short, to do law in the right way—if it had followed our ordinary processes. A mere decade ago, this Court would never have granted relief in this posture. (Indeed, I am confident that the plaintiffs would never have thought to ask, at this stage, for the Court’s involvement.)

Then, though apparently not now, we understood that our normal processes—full briefing, oral argument, conference, and opinion writing, along with the time they take—exist for a reason. They ensure that before the Court makes a decision, it has marshaled all the relevant facts; considered all interested parties’ and multiple lower courts’ legal arguments; and deliberated internally, with full understanding of each other’s perspectives, on all disputed issues.

So too, those processes enable us to think through the best legal rationale for, and scope of, any decision, given both the views we have earlier expressed and the related issues that will soon come before us. And they allow us to explain ourselves well and carefully, both to the parties and to the public. Our processes are, in short, the hallmark of judicial probity, and alike its guarantor. There was no reason to abandon them here….