On March 2, 2026, the Supreme Court decided Mirabelli v. Bonta. This emergency docket case ruled against California's policy of secretly transitioning children without their parents' consent. This ruling follows naturally from Pierce v. Society of Sisters and Meyer v. Nebraska.
Justice Kagan complained (though not loudly enough to shake the walls) that the Court should have decided this issue on the merits docket. She pointed to a specific cert petition that had been pending since November 2025: Foote v. Ludlow School Commitee from the First Circuit. Kagan wrote:
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., 128 F. 4th 336 (CA1 2025) (per curiam), cert. pending, No. 25–77, 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. See id., at 340–344.1 Why not, then, just grant certiorari in Foote, and decide it this coming fall? Or if there is some reason that Foote is not suitable, the Court could take one of the many cases linedup 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. See Pet. for Cert. in Foote, O. T. 2025, No. 25–77, p. 32. 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.
