From today's long decision in Stepp v. Lockhart, by Tenth Circuit Judge Scott Matheson, joined by Judges Gregory Phillips and Veronica Rossman (there's a lot going on there besides the single-sex education question as well):
We conclude the SAC [Second Amended Complaint] plausibly alleged an equal protection violation based on the sex segregation policy. The policy classified fifth-grade students on the basis of sex and thus is "subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment." It is subject to intermediate scrutiny, meaning Defendants must provide an "exceedingly persuasive justification for [the] classification."
The SAC alleged that "[u]nderpinning Defendants' decision to segregate [TES's] fifth grade class based on sex were offensive and outdated stereotypes about boys and girls, their behavior, and the discipline and instruction permissible for or required for each." The SAC further alleged that "Defendants had no legitimate basis, at law or in fact, to implement a policy of sex segregation at [TES]." The SAC also alleged that defendants acted "knowingly, intentionally, and/or recklessly" in "adopting, implementing, and enforcing" the sex-segregation policy. Thus, we conclude the SAC stated a viable equal protection challenge….
Mirabelli v. Bontarepresents 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.
Newly-elected Virginia Governor Abigail Spanberger is refusing to cooperate with federal Immigration and Customs Enforcement (ICE) efforts to detain and deport unlawfully present immigrants, including those with criminal records. Whether or not one agrees with this policy, Governor Spanberger is under no obligation to help the federal government enforce federal law. For the same reasons that New Hampshire cannot be required to implement the federal Clean Air Act, states cannot be directed to enforce (or even facilitate the enforcement of) federal immigration law. This is the import of the anti-commandeering principle embodied in cases like New York v. United States, Printz v. United States, and Murphy v. NCAA.
While states may not be commandeered by the federal government, states can be required to comply with generally applicable law--that is, laws that regulate state activities that are otherwise subject to federal regulation, such as employment or the operation of certain functions. States also cannot block federal efforts to enforce federal law directly, such as occurred with Operation Metro Surge. As I have explained previously, Minnesota's arguments that the federal government violated the anti-commandeering principle by deploying federal agents to enforce federal immigration laws in Minneapolis bear no weight.
I unpack the anti-commandeering principle a bit more in my latest Civitas Outlook column. Here is a taste:
The New York decision makes clear why Minnesota's Attorney General Ellison's anti-commandeering argument went nowhere in Minnesota v. Trump. The imposition of otherwise-constitutional burdens on states is a permissible way to induce state cooperation, as is the direct enforcement of federal law, even when it is not to the liking of state governments. This is precisely how "cooperative federalism" works under most federal environmental laws. States are encouraged to embrace federal priorities and agree to enforce federal pollution control laws, and are promised federal financial support for their efforts. Should states refuse, however, the federal government comes in to enforce federal environmental laws directly, often in ways that are more burdensome or disruptive than the state would like. In effect, the federal government tells the states, "if you don't enforce our standards, we'll do it for you, and you won't like it." Indeed, under the Clean Air Act, the U.S. Environmental Protection Agency enforces more stringent regulatory standards in non-cooperative states than in the rest of the country.
While the federal government can offer incentives for state cooperation, the Trump Administration does not have free rein to withhold federal funding from sanctuary jurisdictions or impose sanctions that Congress has not approved. The federal government may impose conditions on the receipt of federal funds, but those conditions must be related to the funding's purpose and — of particular relevance to the debate over immigration — states must have notice of the conditions before the funds are disbursed. Existing precedent also suggests that such conditions should be imposed or authorized by Congress and cannot be declared by executive fiat. This means the Trump Administration will have a harder time withholding federal funds from sanctuary jurisdictions than it might like, unless it gets Congress to go along.
The anti-commandeering doctrine may seem counterintuitive to some (and confusing to some government officials), but it aligns with the federalist nature of our republic. Preventing the federal government from forcing states to enforce or implement federal law reinforces political accountability by clarifying which government officials are responsible for which policy decisions. Yet, as Justice O'Connor explained in her New York v. United States opinion, if the federal government could commandeer state officials, federal officials would be insulated from political consequences for their decisions (should they prove unpopular), and the accountability of both federal and state officials would be "diminished."
For those interested in anti-commandeering issues, I have two papers in the works. One unearths some of the anti-commandeering principle's pre-NewYork history, including the federal government's concession that such a principle exists fifteen years before New York was decided. A second explains why some applications of the Endangered Species Act to state and local governments violate the anti-commandeering principle. I'll post more on both of these subjects in coming weeks.
My hometown of Staten Island is often called the forgotten borough. Everyone knows about Manhattan, Brooklyn, Queens, and the Bronx. But Staten Island is known, if at all, as a conduit to get from New York to New Jersey. In terms of the famous New Yorker magazine cover, Staten Island lies beyond the Hudson River. Yet, Staten Island made it all the way to the Supreme Court's emergency docket, and prevailed.
Yesterday the Court granted a stay in Malliotakis v. Kosinski. The effect of this ruling is that the congressional maps that were previously in effect, and were not blocked by New York's supermajority democratic legislature, will go into effect. New York will not redraw the districts such that the Republican-leaning Staten Island is combined with Democratic-dominant parts of lower Manhattan. This suit was, from the outset, an audacious attempt by Mark Elias to simply create a new Democratic district under the guise of the state Voting Rights Act.
I have several observations about the case.
First, what took so long? The petition stated: "Unless this Court issues a stay by February 23, 2026, New York's congressional elections will be thrown into chaos and uncertainty." But the Court did not rule until March 2. I realize that the word of the day is "impatience," but there were clearly six members of the majority from the outset, and those six members did not feel compelled to explain their reasoning. Justice Sotomayor wrote a thirteen page dissent. Did she really need nearly four weeks to write this dissent? To what extent does the majority have to wait for the dissent to be circulated? At least in Galveston, Judge Brown wouldn't wait 24 hours for Judge Smith's dissent to avoid Purcell problems. But why should SCOTUS wait four weeks, thereby generating potential Purcell problems? Wouldn't it have been better for everyone involved for the Court to issue the stay by February 23, and state that a dissent is forthcoming? The Court did not wait for Justice Alito's dissent in A.A.R.P. v. Trump, which was published several days later. In one of my draft pieces on Supreme Court reform, I propose that six Justices can force a judgment to be issued immediately, even if opinions are not yet ready. Call it a Quirin quorum.
Second, the majority does not explain its reasoning, but Justice Alito does. Can we reasonably infer that the majority agrees with Justice Alito? Likely no. Indeed, the fact that the per curiam opinion offered no reasoning suggests that the Court (and by the Court, I mean Justice Barrett) has not yet coalesced around a single reason. There is a real contrast with Mirabelli, where Justice Barrett had (likely) made up her mind. If I had to guess, Barrett sees the risk of undoing an election as untenable, so the Court, were it to ever intervene, would have to do so here. The Elias-preferred maps can always be used for the next election.
Third, what do we make of the fact that the Supreme Court did not wait for the New York Court of Appeals to issue a ruling? Well, let's talk about A.A.R.P. v. Trump again. As readers will recall, the Supreme Court found that the district court's failure to rule on an emergency motion in the span of a few hours was a constructive denial, and then the Supreme Court felt compelled to intervene before the Fifth Circuit had even issued a ruling. (As it turns out, the Fifth Circuit ruled a few moments after the Supreme Court did, and the Supreme Court almost certainly knew that ruling was coming, but the Chief Justice never sweats the details.) All of this happened in the span of 24 hours. Perhaps some may say a different standard should apply where alleged gang members, who were undoubtedly removable under other authorities, were at risk of being removed. I would reply that the clearly established rights of residents of Staten Island to be represented under constitutional maps is of a greater importance than those of purported alien enemies trying to fight removal.
Moreover, while the Texas courts moved with remarkable dispatch, it could be argued that the elected judges of the New York courts were not exactly moving with all deliberate speed. Why would they? The safer course of action is to do nothing and let SCOTUS bail them out. Only two years ago, Hector LaSalle, Governor Hochul's nominee to be Chief Judge of the New York Court of Appeals, was blocked for being insufficiently progressive. A New York judge who ruled for the Republicans would likely see massive blowback. The need for review by life tenured Article III judge is especially apt here. If the Supreme Court could find a constructive denial in Texas, then a constructive denial in New York should have been very easy to find.
Fourth, even if there was not a constructive denial, the Supreme Court can enter relief because it is"necessary or appropriate in aid of [our] jurisdiction." 28 U. S. C. §1651(a). I am not a fan of reading this provision broadly, but it has been read broadly. The Supreme Court invoked this standard in A.A.R.P. v. Trump. The implication was that if the alleged enemy aliens were removed, the Court would not have jurisdiction to consider their cases in the future. I vigorously disagreed with that ruling. Indeed, I thought this case had a Marbury problem, as there Supreme Court ruled without the benefit of any lower court ruling. At least in New York, the state trial court had issued a ruling. Given what the Supreme Court did in the Alien Enemies Act case, I am not troubled by the jurisdictional rulings in Malliotakis. Indeed, the case for Supreme Court intervention seems much clearer in Staten Island than in Texas. The rule for Staten Islanders should be at least as, if not more protective, than the rule for alleged members of Tren De Aragua.
Fifth, let's talk about the merits. Justice Alito contends that the enforcement of the state voting rights act is blatantly unconstitutional under the Equal Protection Clause:
That is unadorned racial discrimination, an inherently "'odious'" activity that violates the Fourteenth Amendment's Equal Protection Clause except in the "most extraordinary case." Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. 181, 208 (2023). Extraordinary circumstances exist only when the challenged state conduct is narrowly tailored to achieve a "compelling" interest, and our precedents have identified only two compelling interests that can justify race-based government action: (1) mitigating prison-specific risks and (2) "remediating specific, identified instances of past discrimination that violated the Constitution or a statute." Id., at 206–207. Neither of those interests is present here. Instead, the court based its injunction on an interpretation of state law. But under the Supremacy Clause, a state law cannot authorize the violation of federal rights. It is therefore an understatement to say that applicants are likely to succeed on the merits of their equal protection claim.
It seems likely that Justice Alito is going to write the majority opinion in Callais. No one felt compelled to respond to Alito here. Justice Sotomayor offers no defense of the New York court's ruling, at all. I suspect this passage will be cited in Callais, which might come tomorrow?
For more on the backstory, see these posts; an excerpt from one:
This case arises out of the tragic murder of four University of Idaho students in November 2022. Plaintiff Rebecca Scofield is a professor at the University of Idaho. She alleges that, despite never meeting any of these students or being involved with their murders in any way, Defendant Ashley Guillard posted numerous TikTok (and later YouTube) videos falsely claiming that Plaintiff (i) had an extramarital, same-sex, romantic affair with one of the victims; and then (ii) ordered the four murders to prevent the affair from coming to light….
Plaintiff asserts two defamation claims against Defendant: one is premised upon the false statements regarding Plaintiff's involvement with the murders themselves, the other is premised upon the false statements regarding Plaintiff's romantic relationship with one of the murdered students.
The Independent Law Journal is a new faculty-led legal journal aimed at helping reform academic legal publishing and promoting ideological diversity and faculty participation in article review. It has already published its first issue, which includes articles from law professors at NYU and Texas, and professors in other fields at Illinois and Cal Poly.
The ILJ is led by a faculty board of distinguished scholars (from the law schools at Penn, Vanderbilt, Columbia, Harvard, Cornell, Virginia, Notre Dame, Yale, Berkeley, and Northwestern), who do the final screening on each published article. Initial article screening and editorial work is conducted by an editorial staff of judicial clerks, SJD candidates, and law students (currently ones from UCLA, Duke, Virginia, Harvard, BU, Cornell, and Washington & Lee).
The ILJ is now recruiting more judicial clerks, SJD candidates, legal fellows, and junior faculty interested in serving on the editorial staff. (It's not currently looking for more law student editors.) Editor positions run for one-year renewable terms. Being an editor at the ILJ provides people interested in legal scholarship and academia an opportunity to engage with the cutting edge of current legal scholarship by reviewing, editing, and providing feedback on scholarly pieces on a wide variety of legal issues. Those interested can find more details on how to apply at the ILJ's website.
My first blog post set forth the implicit but widely accepted "three buckets" picture of the government's structure underlying the Supreme Court's separation of power cases, under which if a federal entity is not part of Congress or part of the judiciary, it inevitably follows that it must be in the Executive Branch. The three buckets conception becomes deformative of the Constitution's design when it is combined with another idea that is explicitly and repeatedly asserted by the President's lawyers—the idea of the "unitary executive."
Ever since the Reagan Administration, lawyers working in the Executive Branch have asserted that the President must have the authority to control everything that happens in the Executive Branch. This advocacy has paid off: The Supreme Court has embraced the idea nearly in full—from the Trump immunity decision to a series of decisions giving the President the authority to remove the head of administrative entities.
The justification for the unitary executive proposition is the vesting clause of Article II of the Constitution, which says that "[t]he executive Power shall be vested in a President of the United States." The unitarians argue that this means all executive power must be subject to the control of a single person—the President. This is a lot of weight to put on the use of a singular indefinite article—"a"—in an introductory clause of an Article of the Constitution, but let that pass.
The point is that once the legal system encompasses an unstated idea—that the executive branch is a residual bucket into which all government activity flows that cannot be ascribed to the legislative or the judicial buckets—and this is combined with an expressly stated idea that everything in the executive bucket must be controlled by the President, what do you get? You get a federal government in which the President exercises enormous power.
Perhaps if we had a fairly narrow conception of the executive power—as, say, the power to determine when to initiate enforcement actions by the federal government—the unitary executive thesis would not be so destabilizing. Maybe the Federal Trade Commission, which has the power to sue to enjoin certain mergers, should lose its ability to perform this function without presidential control. But once the unstated picture of three buckets takes hold, and is combined with a zealous faith in the notion of a unitary executive, then everything in a very large and residual bucket falls within the discretionary control of the President.
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 the claims 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.
When it rains, it pours. On Monday, the Supreme Court issued two consequential orders on the emergency docket. First, the Court issued a stay of the trial court's ruling in the Staten Island redistricting case. Second, the Court vacated the Ninth Circuit's stay of the District Court's injunction, which required California schools to notify parents if a child is transitioning genders. There is a common thread in both cases: inferior courts on both coasts used their emergency dockets, and the Supreme Court reversed both rulings.
In the Staten Island case, the New York Court of Appeals (the highest court in New York) did not rule on the applicants' motion to stay the trial court's injunction. Instead, the court found the motion should be resolved in the first instance by the Appellate Division (the intermediate court). There is apparently some disagreement between the Supreme Court and Justice Kagan in dissent, over the meaning of the New York Court of Appeals' action. I say apparently, because the Court does not explain its reasoning. Justice Alito contended in his concurrence that the New York Court of Appeals, by not ruling on the applicants' motion was, in effect a denial.
After that highly questionable injunction was issued, the applicants filed appeals in both the Appellate Division (the State's intermediate appellate court) and the Court of Appeals (its highest court) challenging the trial court's order on federal constitutional grounds. At the same time, applicants asked both courts to stay the trial court's order. The Appellate Division refused to issue a stay, and by order issued on February 11, the Court of Appeals sent the appeal filed in that court to the Appellate Division and dismissed applicants' motions for a stay.
Alito concluded: "The New York Court of Appeals' decision not to grant a stay or hear a direct appeal was effectively a final determination on the merits of the applicants' claim that the outstanding injunction is depriving them of their constitutional rights pending appeal."
In the California case, the District Court entered an injunction after a full merits proceeding. But the Ninth Circuit stayed that injunction through the use of its emergency docket. Yes, every court of appeals has an emergency docket. The Ninth Circuit issued this ruling without the benefit of oral argument or full-dress briefing. The panel relied on the same four factors that the Supreme Court traditionally applies. The panel found that California has stated "a substantial case for relief on the merits." Moreover, the panel was "skeptical of the district court's decision on the merits, which primarily relies on substantive due process" in light of Dobbs. On appeal, the Supreme Court vacated the stay, allowing the District Court's injunction to go into effect. Justice Kagan objected that this ruling was premature, as the applicants had not yet exhausted all relief in the lower court. Specifically, a petition for rehearing en banc was pending--a process Justice Kagan describes as "notably reflective." I think by "notably reflective" Justice Kagan means "notably liberal." On the Circuit of Wackadoo, conservative cases virtually never win before the en banc court.
In the Staten Island and California cases, the dissents repeat the familiar litany of objections to the emergency docket. For example, Justice Kagan writes in the California case:
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.
But couldn't the same be said for the emergency docket on the Ninth Circuit? They issued their order without he benefit of oral argument, with limited briefing, on a short fuse, to resolve a tricky question. Why is it that panels of inferior courts can freely use their emergency docket, and those rulings are entitled to deference, even as the full Supreme Court is cautioned against used its emergency docket? Indeed, as Justice Barrett notes, this case involved the sort of thing that Justice Jackson usually clamors for: an injunction entered by a district court "after a full merits process." It is only an outlier that a single conservative District Court judge in San Diego exists, so of course his rulings should not be entitled to deference. If this was a benighted District Court judge in Boston, the facts would be different.
Why should lower courts be free to rule on their emergency docket but not the Supreme Court? We should be far more interested in what the Supreme Court thinks about these matters than a few randomly-drawn lower court judges. What capabilities do Circuit Judges Murguia, Hurwitz and Mendoza have that Roberts and crew do not? Honestly, could you pick any of these three circuit judges out of a lineup? And when it comes to the Equal Protection Clause of the Fourteenth Amendment, the elected judges of the New York Court of Appeals do not have the final say. Can you even name a single member of the New York Court of Appeals? I truly do not get this line of criticism.
Yesterday the Supreme Court had oral argument in United States v. Hemani, which presented the question, "Whether 18 U.S.C. § 922(g)(3), the federal statute that prohibits the possession of firearms by a person who 'is an unlawful user of or addicted to any controlled substance,' violates the Second Amendment as applied to respondent."
Several justices honed in on an important question: When Congress makes a categorical judgment about who can lawfully possess or carry firearms, how should courts review that judgment? Near the beginning of the opening argument by Hemani Counsel Erin Murphy, Chief Justice Roberts asked whether Hemani's position—that disarmament on account of his marijuana use violates the Second Amendment—embodied a "fairly cavalier approach to the necessary consideration of expertise and the judgments we leave to Congress and the executive branch." In other words, if Congress says marijuana users are dangerous, who is the judiciary to question that decision?
Two thoughts on this issue. First, applying Bruen's historical analysis, we ask what is the historical tradition at issue? Both sides agree that firearms can be banned from physically "dangerous" individuals. Accepting that principle resolves this case, without the Court having to decide what level of deference the legislative branch gets in defining categories of dangerous people. That is because (as several justices seem to acknowledge in their questioning) that is not what happened here. In enacting Section 922(g)(3), Congress did not come up with a list of drugs whose use renders the user "dangerous," thereby justifying disarmament. Rather, Congress simply incorporated wholesale the drug "schedules" prescribed under the Controlled Substances Act and said that any unlawful user of a scheduled drug can be disarmed.
While it may be perfectly fair to determine that users of some scheduled drugs are "dangerous"—PCP, methamphetamine, heroin, etc.—there are many drugs that are scheduled that don't seem to suggest anything of the sort. Adderall, for instance, which is commonly taken by students at exam time, or Ambien, which induces sleep, seem unlikely to point to someone who is physically dangerous with a firearm. That is because what "schedule" a drug is on is not actually related to dangerousness for Second Amendment purposes, and a determination that it should be scheduled at all in no way indicates dangerousness. In Second Amendment terms, the "why" that a drug is scheduled under the CSA is totally unrelated to the "why" that has historically justified disarmament.
Second, if the Court does wade into the issue (it seems premature to do so in Hemani specifically), the answer to the Chief Justice's question is: "No, it would be a judicial abdication for a court not to review a legislature's finding of 'dangerousness' when fundamental rights are at stake." The Supreme Court explained in Gonzales v. Carhart (2007) that, although it generally reviews congressional fact finding deferentially, the Court has "an independent constitutional duty to review factual findings where constitutional rights are at stake."
Where a question is one—as is the case in suits that seek to determine the scope of the Second Amendment's protections—that "can be settled finally only by [the Supreme] Court," the Court has not hesitated to reject congressional findings that it found inconsistent with the strictures of the Constitution, as it said in United States v. Morrison (2000). "Simply because Congress may conclude" something, the Court noted in United States v. Lopez (1995), "does not necessarily make it so." If Congress passes a law that disarms Ambien users because Ambien users are "dangerous," the Second Amendment compels the Court to ask whether that is really true—it cannot take Congress' word for it.
But that is not how Section 922(g)(3) works and the Court may well not get into the issue in deciding this case. The fallback position the government advanced at argument was that substances on the most serious "schedules," Schedule I and Schedule II drugs, may be an appropriate basis for disarmament, even if drugs on the lower schedules are not. Not only does that not improve matters—"dangerousness" is not a relevant consideration for any schedule—it causes considerable confusion in Hemani's case specifically. The government is currently considering downgrading marijuana, Hemani's drug of choice, to Schedule III, so that under its own reasoning, it would demote the drug from one that is "dangerous" to one that is not. That fact prompted Justice Gorsuch to ask in frustration, if the government's position is that dangerousness is the principle and it scales up the schedules under the CSA, then isn't this "an odd case to have chosen to test … [that] principle?" It would certainly seem so.
Whatever the outcome, no question exists that the previous over-expansive ATF regulation is dead. As I explained here, the regulation asserted that one is an unlawful user if the drug was used "in the past year." The U.S. brief in Hemani argued that one is an unlawful user "only if he engages in the habitual or regular use of a controlled substance," and never mentioned the ATF regulation. ATF has proposed an interim final rule stating: "A person who regularly uses a controlled substance over an extended period of time continuing into the present, without a lawful prescription or in a manner substantially different from that prescribed by a licensed physician, is an unlawful user of a controlled substance."
All the Trump Administration's arguments for denying birthright ctizenship to children of undocumented immigrants are at odds with the main purpose of the Citizenship Clause of the Fourteenth Amendment - granting citizenshp to freed slaves and their descendants.
Trump v. Barbara, the birthright citizenship case, is currently before the Supreme Court, and there is a vast array of amicus briefs, as well as the briefs of the parties. But one key issue has not gotten the attention it deserves: accepting the government's position would undermine the central purpose of the Citizenship Clause of the Fourteenth Amendment. For that reason alone, the Trump Administration should lose the case, especially from the standpoint of originalism.
Virtually all informed observers agree that the main purpose of the Citizenship Clause was to grant citizenship to newly freed slaves and their descendants, reversing the holding of the Supreme Court's infamous 1857 Dred Scott decision, which ruled that Blacks could never be citizens of the United States. Indeed, the Trump administration's Supreme Court brief in Trump v. Barbara says exactly that: "The Clause was adopted to confer citizenship on the newly freed slaves and their children." But all of the administration's arguments for denying birthright citizenship to children of undocumented immigrants and non-citizens present in the US on temporary visas would, if applied consistently, also have denied citizenship to numerous freed slaves and children thereof.
The Citizenship Clause states that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The government's position depends on the claim that children of undocumented migrants and temporary visa holders are not "subject to the jurisdiction" of the US. But any interpretation of that phrase that excludes these groups would also have excluded large numbers of slaves, their children, and in some cases even free Blacks.
The simplest argument for the government's position is the idea that illegal entry somehow prevents undocumented migrants and their American-born children from being subject to US jurisdiction. This is extremely dubious, because undocumented migrants are undeniably subject to US law. But, if the argument is true, it would also have excluded large numbers of freed slaves and their descendants. As legal scholars Gabriel Chin and Paul Finkelman showed in an outstanding 2021 article, between the time Congress banned the international slave trade in 1808 and the abolition of slavery in 1865, many thousands of slaves were illegally brought into the US. These illegally imported slaves, in turn, likely had a substantial number of US-born children and grandchildren. Any interpretation of "subject to the jurisdiction" that bars children of illegal migrants from birthright citizenship would also have barred this large group of freed slaves.
Moreover, as Chin and Finkelman show in their article, the existence of this illegal slave trade was well-known to Congress, President Abraham Lincoln, and the framers of the Fourteenth Amendment. Congress repeatedly enacted legislation to try to curb it, and Lincoln raised the issue in multiple messages to Congress. If the original meaning of the Citizenship Clause excluded illegal entrants and their children, it also must have excluded large numbers of slaves and their children. Chin and Finkelman briefly discuss these points in their recently filed amicus brief, which however doesn't emphasize and elaborate on them as much as would be desirable.
Another standard argument for the administration's position is that illegal migrants, non-citizens on temporary visas, and their children lack the requisite exclusive "allegiance" to the United States, because they still owe allegiance to their countries of origin. If, as this theory assumes, people owe allegiance to the government of the country they are born in, it obviously applies to virtually all freed slaves, as well, even those brought into the US legally.
Africans captured and sold to slave traders owed "allegiance" to the rulers of their homelands just as much as illegal migrants or temporary visa-holders do. Indeed, the former likely had stronger ties of allegiance than the latter, since captured slaves - unlike migrants - had no desire to leave their homelands and live under the rule of the US government instead. Contrary to racist stereotypes, many West African rulers of the eighteenth and nineteenth centuries had considerably developed states. For example, throughout that period, until it was conquered by the French in 1894, Dahomey was a "monarchy with a highly organized central government." Edmund Abaka, Dahomey, in Encyclopedia of the Middle Passage 128 (Greenwood Press, Toyin Falola & Amanda Warnock eds. 2007). Like Dahomey, the Asante kingdom also had a governmental system similar in many respects to European states in the nineteenth century.
And even more primitive tribal rulers could still claim allegiance from their subjects, as the US government recognized in the case of Native American tribal governments. This is part of the reason why children born on Native American reservations run by such governments are among the few categories of people born in the United States who were not understood to be given birthright citizenship by the Citizenship clause, because such people really were exempt from the jurisdiction of US law on many issues, by virtue of the primacy of tribal sovereignty on reservation land.
The Trump administration and some of its amici (e.g. - Prof. Ilan Wurman) combine the "allegiance" argument with the idea that illegal migrants are not under US jurisdiction because they are not under the "protection" of the US government. Randy Barnett and Wurman have argued that birthright citizenship applies only to the children of people who have entered into a "social compact"and an "allegiance-for-protection" exchange with the US government.
But, as I pointed out in an earlier critique of the Barnett-Wurman argument, slaves obviously were not part of any social compact under which they traded allegiance for protection. Far from protecting them, state and federal governments facilitated their brutal oppression at the hands of their masters. Indeed, illegal migrants and temporary visa holders actually get far more protection from the US government than slaves did. While undocumented immigrants are subject to deportation, at least US authorities still, to some extent, protect them against enslavement, forced labor, and assault. Temporary visa holders get still more protection, as they can seek protection from law enforcement without fear of getting deported.
When it came to slaves, by contrast, the federal government enacted policies like the Fugitive Slave Acts, intended to keep them from escaping bondage. And that bondage often included beatings, rape, and other horrific violence. If children of undocumented immigrants or temporary visa holders don't qualify for birthright citizenship because their parents weren't sufficiently under the "protection" of the US government, that goes double for freed slaves.
Some defenders of the administration argue that undocumented immigrants and temporary visa holders are not "subject to the jurisdiction" of the US because they are not subject to its "complete political jurisdiction," meaning they do not have the same rights and duties as citizens. This argument appears to have first been advanced by later-disgraced law Professor John Eastman, back in 2015 (Eastman is notorious for his involvement in Trump's scheme to overturn the results of the 2020 presidential election). The theory runs afoul of the main purpose of the Citizenship Clause for reasons I outlined in a 2024 article:
If the Citizenship Clause covers only children of people who have the full rights of citizens, that would undermine the central purpose of the Clause, which was to reverse Dred Scott's notorious holding that Black people – even those who were not slaves – could not be citizens of the United States. In his infamous opinion in Dred Scott, Chief Justice Roger Taney concluded that Black Americans could not be citizens in part precisely because they were denied various legal rights. As Taney pointed out, in most states free Blacks could not vote, could not serve on juries, and were barred from serving in the militia (including under the 1792 federal Militia Act, which limited militia service to white men). If such logic is applied to the Citizenship Clause, Congress or a state government could have prevented newly freed slaves and their children from becoming citizens simply by declaring that they were not entitled to vote, could not serve on juries, could not be members of the militia, and so on.
Note that even most antebellum free Blacks did not qualify for birthright citizenship under the "complete political jurisdiction theory," since many states denied them the right to vote, the right to serve on juries, and other rights and duties traditionally associated with full citizenship.
Finally, we have the so-called "domicile" argument, which claims that children of undocumented immigrants are not subject to US jurisdiction because their parents are not properly domiciled in the US. If "domicile" simply means living in the United States, then both slaves and illegal migrants obviously qualify. If it means living in the US legally, then undocumented migrants can be excluded. But the same goes for slaves brought in illegally. And, as noted above, there were many such illegally delivered slaves.
Moreover, to the extent that the Supreme Court has held that "domicile" matters for jurisdiction, it also requires that any legal change of domicile must be voluntary. For example, in a 1989 case involving a conflict between state and tribal jurisdiction over the adoption of Native American children, the Court ruled that , "[o]ne acquires a 'domicile of origin' at birth, and that domicile continues until a new one (a 'domicile of choice') is acquired." Nineteenth century jurists held similar views. For example, in the 1890 case of Penfield v. Chesapeake O. & S.W. R. Co., the Supreme Court held that "No length of residence, without the intention of remaining, constitutes domicile" in a case where state jurisdiction over a case turned on residency [emphasis added]. Most, if not all, slaves forcibly brought to the US obviously had no "intention of remaining," but would have preferred to be returned to their original homes. On this theory, undocumented migrants actually have a stronger claim to "domicile" than slaves did, since the former come voluntarily and and generally have every intention of remaining indefinitely.
In sum, either children of undocumented migrants and temporary visa-holders satisfy any relevant domicile requirement, or that requirement would exclude all or most slaves and their descendants, and therefore must be rejected. Either way, the government should not prevail based on the domicile theory.
There are many other reasons why the Trump Administration deserves to lose the birthright citizenship case, some of them outlined in an amicus brief by a cross-ideological group of constitutional law and immigration scholars, which I joined. Prof. Michael Ramsey, one of the other signers, is a prominent conservative originalist legal scholar, and author of perhaps the leading article on the original meaning of the Citizenship Clause. Prof. Ramsey updated his analysis in this recent article.
But the link to slavery provides a powerful additional reason for ruling against the administration's position. If accepting any of the arguments backing it would have required denying citizenship to large numbers of slaves and their descendants, that means those theories are at odds with the main objective of the Citizenship Clause and must be rejected for that reason alone.
Today's unsigned majority opinion in Mirabelli v. Bonta held that 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" violate parental rights.
Justice Kagan's dissent, joined by Justice Sotomayor, argues:
[A] contrast—this time, between this case and United States v. Skrmetti (2025)—is also striking. In Skrmetti, several parents challenged Tennessee's ban on gender-affirming care for minors. The suit raised claims grounded in both equal protection and substantive due process. As to the latter, the parents in Skrmetti, similarly to the parents here, asserted a right "to make decisions concerning medical care for their minor children." And in support of that right, the Skrmetti parents relied on the same [parental rights] precedents the Court does today …. But the Court, when deciding to grant certiorari in Skrmetti, limited its review to the equal protection issue: It would not even hear the parents out on their substantive due process claim.
So why aren't state statutes limiting youth gender medicine treatments violations of parental rights (given that they apply even when the parents ask for the treatment for their children)? The answer, I think, is that the Court hasn't generally recognized a constitutional right to get forbidden medical procedures for oneself, much less a right to get them for one's children. I think Sixth Circuit Judge Jeffrey Sutton correctly summarized the legal rules in L.W. v. Skrmetti, which the Court declined to review; an excerpt:
There is a long tradition of permitting state governments to regulate medical treatments for adults and children. So long as a federal statute does not stand in the way and so long as an enumerated constitutional guarantee does not apply, the States may regulate or ban medical technologies they deem unsafe.
Washington v. Glucksberg (1997) puts a face on these points…. The Court reasoned that there was no "deeply rooted" tradition of permitting individuals or their doctors to override contrary state medical laws. The right to refuse medical treatment in some settings, it reasoned, cannot be "transmuted" into a right to obtain treatment, even if both involved "personal and profound" decisions….
Today's unsigned majority opinion in Mirabelli v. Bonta held that 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" violate parental rights, which are a facet of the "substantive due process" doctrine. It also held that the policies violate religious parents' Free Exercise Clause rights, but that would have only protected parents who have religious objections to the policies; the substantive due process argument protects all parents. (For more, see this post.)
Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh, added this:
As the dissent observes, substantive due process is a controversial doctrine. Judges typically interpret express constitutional rights, such as the freedom of speech or religion. But substantive due process asks us to find unexpressed rights in a constitutional provision that guarantees only "process" before a person is deprived of life, liberty, or property. When rights are unstated, how do judges know what they are? The obvious risk is that judges will use their own values as a guide, thereby jeopardizing the People's right to self-governance.
To mitigate this risk, the Court has crafted a demanding test for recognizing unexpressed rights: They must be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty." Washington v. Glucksberg (1997). Relevant here, the doctrine of substantive due process has long embraced a parent's right to raise her child, which includes the right to participate in significant decisions about her child's mental health. See Pierce v. Society of Sisters (1925); Meyer v. Nebraska (1923); Parham v. J.R. (1979)….
The dissent questions how the Court can adhere to parental-rights precedent after its decision in Dobbs v. Jackson Women's Health Organization (2022). But Dobbs calls into question neither the doctrine of substantive due process nor the other unexpressed rights that the doctrine protects. Applying Glucksberg, Dobbs holds that Roe v. Wade (1973), and Planned Parenthood of Southeastern Pa. v. Casey (1992), were incorrectly decided because a right to abortion is not "'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.'" Dobbs, 597 U. S., at 231. And because the Court concluded that the stare decisis factors counseled against retaining these cases, Dobbs overruled them. It does not follow from Dobbs that all our substantive due process cases conflict with Glucksberg, much less that stare decisis would counsel overruling any that do.
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.
[Plaintiff] parents object that [California] policies prevent schools from telling them about their children's efforts to engage in gender transitioning at school unless the children consent to parental notification. The parents also take issue with California's requirement that schools use children's preferred names and pronouns regardless of their parents' wishes….
[T]he [District Court] granted summary judgment for all plaintiffs and entered a permanent injunction in their favor. [See this post for more on that decision. -EV] The injunction prevents the schools from "misleading" parents about their children's gender presentation at school and their social transitioning efforts. It also requires the schools to follow parents' directions regarding their children's names and pronouns. And it compels defendants to include in state-created or approved instructional materials a notice of the rights protected by the injunction.
The Ninth Circuit granted defendants' motion to stay the injunction pending appeal. [See this post for more on that decision. -EV] … On the free exercise issue, it relied on a not-precedential Sixth Circuit decision and brushed aside Mahmoud v. Taylor (2025), as "a narrow decision focused on uniquely coercive 'curricular requirements.'" The Ninth Circuit expressed skepticism about the parents' and teachers' Fourteenth Amendment due process claim because it viewed those claims as seeking to expand the protection afforded by established precedent.
When the Ninth Circuit stayed the injunction, the parents and teachers filed this application seeking vacatur of the Ninth Circuit's stay pending appeal….
We conclude that the parents who seek religious exemptions are likely to succeed on the merits of their Free Exercise Clause claim. California's policies likely trigger strict scrutiny under that provision because they substantially interfere with the "right of parents to guide the religious development of their children." Mahmoud (citing Wisconsin v. Yoder (1972)). The parents who assert a free exercise claim have sincere religious beliefs about sex and gender, and they feel a religious obligation to raise their children in accordance with those beliefs. California's policies violate those beliefs and "impos[e] the kind of burden on religious exercise that Yoder found unacceptable." Indeed, the intrusion on parents' free exercise rights here—unconsented facilitation of a child's gender transition—is greater than the introduction of LGBTQ storybooks we considered sufficient to trigger strict scrutiny in Mahmoud.
California's policies will likely not survive the strict scrutiny that Mahmoud demands. The State argues that its policies advance a compelling interest in student safety and privacy. But those policies cut out the primary protectors of children's best interests: their parents. See Troxel v. Granville (2000) (plurality opinion). California's policies also appear to fail the narrow-tailoring requirement. The State's interest in safety could be served by a policy that allows religious exemptions while precluding gender-identity disclosure to parents who would engage in abuse. For these reasons, the parents who object to the California policies on free exercise grounds are likely to succeed on the merits.
The same is true for the subclass of parents who object to those policies on due process grounds. Under long-established precedent, parents—not the State—have primary authority with respect to "the upbringing and education of children." Pierce v. Society of Sisters (1925); accord, Meyer v. Nebraska (1923). The right protected by these precedents includes the right not to be shut out of participation in decisions regarding their children's mental health. Parham v. J.R. (1979). Gender dysphoria is a condition that has an important bearing on a child's mental health, but when a child exhibits symptoms of gender dysphoria at school, California's policies conceal that information from parents and facilitate a degree of gender transitioning during school hours. These policies likely violate parents' rights to direct the upbringing and education of their children….
Back in 2013, Justice Scalia gave a wide-ranging interview with New York Magazine. One of my favorite exchanges concerned which media Scalia consumes:
What's your media diet? Where do you get your news?
Well, we get newspapers in the morning.
"We" meaning the justices?
No! Maureen and I.
Oh, you and your wife …
I usually skim them. We just get The Wall Street Journal and the Washington Times. We used to get the Washington Post, but it just … went too far for me. I couldn't handle it anymore.
What tipped you over the edge?
It was the treatment of almost any conservative issue. It was slanted and often nasty. And, you know, why should I get upset every morning? I don't think I'm the only one. I think they lost subscriptions partly because they became so shrilly, shrilly liberal.
So no New York Times, either?
No New York Times, no Post.
Justice Barrett apparently has different reading habits. During oral argument in United States v. Hemani, she pointed to a recent article in the New York Times concerning the harms from marijuana:
And so I guess my concern is let's say that I think Congress could make a determination, maybe, I don't know, I mean, there was just an article in the New York Times about the dangers of marijuana, and, you know, maybe that's true.
I did a quick search of the briefs in Hemani, and I couldn't find any articles from the Times cited on this point. The most recent piece from the NYT Editorial Board on February 9 (after amicus briefs were due) was titled, It's Time for America to Admit That It Has a Marijuana Problem.
I would wager that Justice Barrett consumes news from the New York Times on her own. Even if Justice Barrett has her social media mentions screened (I am skeptical), she voluntarily reads a publication that is intent on influencing her--and not in a good way. Remember what Jodi Kantor of the New York Times said: "I just want them to know we're watching them."
For what it's worth, I subscribe to the New York Times, the Washington Post, the Wall Street Journal, the Washington Times, and several other outlets. I try to read each site daily so I know what everyone on all sides is saying.
