Mirabelli Offers a Beautiful Vision of the Emergency Docket

Mirabelli v. Bonta represents an important installment in the Supreme Court’s developing emergency docket jurisprudence. Indeed, I think it is extremely significant that both Justices Barrett and Kavanaugh appear to be on the same page, and are joined by Chief Justice Roberts. Justice Gorsuch did not join the concurrence, but I suspect that was because of the substantive due process analysis. (More on that topic later.) Justice Gorsuch has never been a shrinking violet on the shadow docket. At this point, all six Justices seem to agree when and why emergency relief is proper.

First, unlike with Malliotakis, the Court issued a seven-page per curiam opinion that explained all facets of the Court’s ruling. On top of that, Justice Barrett wrote a four-page concurrence that responded to Justice Kagan. It is true that the Court did not hold oral argument. Moreover, as Justice Kagan reveals in her dissent, the Court did not “deliberate in conference.” But it does not appear those steps were necessary. Six members of the Court thought this case was squarely controlled by Mahmoud, a case that the Ninth Circuit gave short thrift to. The per curiam opinion stated:

On the free exercise issue, it relied on a not-precedential Sixth Circuit decision and brushed aside Mahmoud v. Taylor, 606 U. S. 522 (2025), as “a narrow decision focused on uniquely coercive ‘curricular requirements.'” App

Justice Barrett added:

The Ninth Circuit (following the Sixth Circuit) significantly misunderstood Mahmoud v. Taylor, 606 U. S. 522 (2025), and general course correction will allow the case to progress efficiently.

The Ninth Circuit was quite skilled at ignoring Heller and McDonald. It is unsurprising they would apply a similar treatment to Mahmoud.

Scheduling emergency docket cases for oral argument may make sense where the issue is close, but where it is lopsided, and controlling federal precedent is ignored, that step seems unnecessary. What would have been gained by allowing Justice Alito to demolish the California Solicitor General? Indeed, I suspect Justice Kagan and perhaps also Justice Jackson would agree with the majority on the merits. Kagan conceded as much:

None of this is to say that the Court gets the merits here wrong. . . . But California’s policy, in depriving all parents of information critical to their children’s health and well-being, could have crossed the constitutional line. And that would entitle the parents, at the end of the day, to relief.

Second, Justice Kagan repeats her claim that the Supreme Court is simply impatient. I think patience is important, but patience has to be viewed in context. Here, the parents raced to the Supreme Court without first waiting for the en banc Ninth Circuit to act. And, Justice Kagan writes, “The Court jumps the line, pre-empting the Ninth Circuit’s normal (and notably reflective) en banc process.”

Justice Kagan is the circuit justice for the Ninth Circuit. Would she really call the Ninth Circuit’s process “normal”? Is it really “notably reflective”? Justice Kagan must be California Dreamin’. There is nothing “normal” or “reflective” about the en banc Ninth Circuit. Judge Van Dyke has articulated a different perspective about the Circuit of Wackadoo.  I think there is a 0% chance that the en banc Ninth Circuit would reverse the unanimous three-judge emergency panel in a case concerning transgender rights. At best, the case would remain pending for months or even a year as several members write dueling concurrals and dissentals. Why would rational litigants wait for this process to play out?

Likewise, why would Representative Nicole Malliotakis wait a few weeks just to have the New York Court of Appeals rule against her? The Supreme Court’s emergency docket should not be blind to the fact that litigants who face harm should not have to waste their time in hostile forums.

The parents’ case has been pending since 2023. Every day this policy is in effect, parents are suffering irreparable harm over the most important institution in our society: the family. Remember, one child attempted to commit suicide, and only then did the parents learn about the child’s condition. Justice Barrett explained:

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.

I think the Supreme Court is absolutely right to move promptly on this case, and not wait for a pointless process to play out.

Third, I think Justice Barrett hoists Justice Kagan on her own petard. Kagan has long complained that the Court does not write opinions in emergency docket cases. But now, when the Court writes a detailed opinion, Kagan complains that the majority should not be making a merits ruling in this interim posture. Well, which one is it? Barrett explains:

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.”

Barrett then quotes several of Kagan’s dissents which critiques the Court for not offering any reasoning. And here, Justice Barrett embraces Justice Kavanaugh’s concurrence in Labrador v. Poe, which I thought was one of the most important emergency docket rulings at that point.

Interim applications routinely require the Court to balancethe lock-in risk of saying too much against the transparencycost of saying too little. See Labrador v. Poe, 601 U. S. ___, ___–___ (2024) (KAVANAUGH, J., concurring in grant of stay) (slip op., at 11–12).

Fourth, as Barrett notes, the Ninth Circuit stayed the injunction based on its preliminary judgment of the merits. And they stayed a ruling based on a full merits process. Why can’t the Supreme Court make a similar preliminary judgment?

We consider the merits not to conclusively resolve them, but because they bear on the limited question before us: Are the parents entitled to thebenefit of the judgment entered by the District Court whileCalifornia 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 theNinth 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.

There really seems to be a double standard. Lower courts are entitled to do whatever they want on their own emergency docket, but the Supreme Court has its hands tied.

Mirabelli offers a beautiful vision of the emergency docket.