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
