214. The Court's (Selective) Impatience is a Vice

The only theme uniting Monday night's twin grants of emergency relief is the Republican appointees' willingness to upend long-settled limits on the Court's power when, but only when, they *want* to.

There’s no way to sugarcoat the two unrelated rulings that the Supreme Court handed down simultaneously (for some reason) right around 6 p.m. ET on Monday night, both of which granted applications for emergency relief. In the first one, Mirabelli v. Bonta, the six Republican appointees voted to put back on hold California state policies that bar teachers from outing their transgender students to their parents—at least as applied to parents who object. And in the second, Malliotakis v. Williams, the same¹ justices froze a New York state court ruling that would’ve required the re-drawing of Republican Congresswoman Nicole Malliotakis’s House district to better represent Black and Latino voters in New York. The two rulings have absolutely nothing to do with each other—except the majority’s principles-be-damned impatience.

In Mirabelli, as Justice Kagan pointed out in her (understandably exasperated) dissent, the Court reached out to weigh in on a deeply fraught substantive constitutional question—even though there are potentially dozens of cases through which it could’ve taken up that question on plenary review and received the benefit of full briefing and oral argument; and even though the Ninth Circuit was already hustling to resolve California’s appeal of the district court’s ruling on the merits; and even though the justices in the majority seem to be endorsing the exact kind of “substantive due process” reasoning that they’ve consistently repudiated.

And in Malliotakis, the Court reached out to block a state trial court ruling before the state supreme court had even had a chance to rule on the matter—for what appears to be the first time … ever. And it did so in order to intervene in New York’s congressional elections, something the “Purcell principle” supposedly prevents federal courts from doing (at least, according to <checks notes> the same justices’ ruling in the Texas redistricting case three months ago).

We’re long past the point at which there are neutral legal principles that can be deployed to persuasively reconcile all of the Court’s behavior on emergency applications. The Court is intervening because it (thinks it) can, and because, for whatever reason, it doesn’t want to wait—in these cases, anyway—for the ordinary processes that would bring these issues to the Court in due course. To whatever extent such a “decide first, ask questions later” approach might ever make sense in a Court with the constitutional and statutory jurisdiction of the Supreme Court of the United States, it makes absolutely no sense when it’s applied selectively—let alone in ways that have a remarkable tendency of benefitting Republican elected officials and/or conservative-coded legal positions. Instead, it makes the Court at least look like what so many regularly accuse it of being: a font of partisan political power, and not much more. One might think that the Court would be at least somewhat interested in disabusing observers of that impression on the emergency docket as much as it seems to be on the merits docket, but then we get rulings like these.

What follows are my brief summaries of the issues in the two cases, what the Court decided, and the substance of the concurring and dissenting opinions filed in both cases—followed by some concluding thoughts on why, in my view, the only theme uniting these two disparate decisions is the majority’s selective impatience.

Ruling 1: Mirabelli v. Bonta

At issue in Mirabelli are a series of California state laws and regulations that the state has interpreted as not requiring schools to tell parents about their children’s efforts to engage in gender transitioning at school unless the children consent to parental notification (and to require schools to use children’s preferred names and pronouns regardless of their parents’ wishes). Two pairs of parents and a group of teachers challenged those policies, claiming violations of both the Free Exercise Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment. After certifying two separate subclasses (one of parents and one of teachers), the district court entered a permanent injunction against the policies, concluding that the challengers were likely to succeed on both sets of claims. The Ninth Circuit issued a stay of the ruling, explaining that it believed the district court’s injunction was both procedurally and substantively flawed.

In an unsigned, six(ish)-page majority opinion, the Supreme Court put the district court’s injunction back into effect—at least for the parent plaintiffs (it denied the stay for the teacher plaintiffs). To the Court’s (marginal) credit, not only did it write a majority opinion, but it identified the correct standard of review and then purported to apply the four traditional factors for such an equitable intervention (even this much has been too much to ask in many of the Court’s prior grants of emergency relief). In a nutshell, the Court explained that it thinks that both the Free Exercise Clause claim (for parents with religious objections) and the substantive due process claim (for all parents) are likely to succeed on the merits. But when it turned to the equities, well, the Court didn’t even attempt to analyze how the relief the parents are seeking might harm transgender students in California—or whether one set of harms might outweigh the other. All it had to offer was its own ipse dixit.²

Justice Barrett wrote a four-page concurrence joined in full by Chief Justice Roberts and Justice Kavanaugh, the crux of which is two distinct points: First, she attempted to defend the majority against the charge leveled by Justice Kagan’s dissent—that they’re being hypocrites about substantive due process. In Barrett’s words, “It does not follow from Dobbs that all our substantive due process cases conflict with [the Court’s modern test for new substantive due process rights], much less that stare decisis would counsel overruling any that do.” (Of course, that’s not actually responsive to the charge that these justices tend to be very hostile to substantive due process in general.)

Second, she also, curiously, attempted to explain to somebody (I have a suspicion…) the majority’s decision to actually write a majority opinion in this case—claiming that the Court wrote to explain how the Ninth Circuit misapplied Mahmoud v. Taylor and to respond to Justice Kagan’s dissent with respect to the implications of Dobbs for the Court’s substantive due process jurisprudence more generally. As you might notice, neither of these arguments do anything to explain why the Court wrote a majority opinion here but not in countless other grants of emergency relief in recent years in which … lower courts had misapplied the relevant precedent and the dissenters leveled a broad charge at the implications of the Court’s intervention. If the goal was to distinguish any of those cases, it might have helped if Justice Barrett had actually tried to distinguish them.

Justice Kagan’s dissent opens by referring to the majority opinion (quite correctly, in my view) as “tonally dismissive.” Kagan’s basic charge is that the Court is in a hurry in a context in which prudence is called for, and to enforce a right about which every member of the majority has previously expressed significant doubt. (Indeed, Kagan’s opinion outs Justice Gorsuch as being in the majority by citing him as one of the examples.) On the “hurrying” point, Kagan explains, correctly, that the applicants request for en banc rehearing of the Ninth Circuit’s stay ruling is still pending. As she put it:

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?

Worse than that, as Kagan explained, the Court has any number of cases pending before it on the merits docket raising the same questions about parental rights in the context of transgender students who are only out about their gender identity at school. Given the Court’s reluctance to recognize rights grounded in substantive due process in other contexts, doing so through an emergency application “cannot but induce a strong sense of whiplash.” (She also has a pretty poignant footnote about how, in Skrmetti, the Court didn’t even grant certiorari on the substantive due process claim it endorsed in its brief opinion in this case.)³

Justice Barrett attempted to respond to Kagan’s claim of impatience by emphasizing the harm parents could face from the California policies at issue. But again, that might’ve been a bit more persuasive if the same justices (1) took those kinds of substantive due process harms remotely seriously in other contexts; or (2) explained why the harms to the children the policies are intended to prevent are no never mind. Alas.

Ruling 2: Malliotakis v. Williams

At least the Court wrote something in Mirabelli. As Justice Sotomayor opened her dissent in Malliotakis, “The Court’s 101-word unexplained order can be summarized in just 7: ‘Rules for thee, but not for me.’” In a nutshell, Malliotakis involves a classic “vote-dilution” challenge to a congressional district—an argument that Rep. Malliotakis’s House district, which included all of Staten Island and a small part of southwestern Brooklyn, was drawn in a way to reduce the voting power of Black and Latino New Yorkers.

After a four-day trial, the state trial court agreed, holding that the district was drawn in a way that violated the state constitution—and explaining that the case raised “an issue of first impression” because “New York courts have yet to determine the appropriate legal standard to evaluate a vote dilution claim” under the New York Constitution. The court thus ordered New York’s Independent Redistricting Commission to re-draw the district as a “crossover” district—one in which minority voters would have a meaningful chance to not just vote for, but elect, their preferred candidates.

As was their right, the defendants in that case, including Rep. Malliotakis (who had intervened), sought emergency relief from New York’s appellate courts—asking both the “Appellate Division” (the intermediate appellate court) and the “Court of Appeals” (the supreme court) to stay the trial court’s ruling. on February 11, the Court of Appeals transferred the request to the Appellate Division on the ground that the defendants had to seek relief there first. The next day, Malliotakis and other defendants filed a pair of applications in the U.S. Supreme Court before the Appellate Division even ruled. And although the Appellate Division has since denied their requests for a stay (we’ll come back to this timing in a moment), no one sought relief from the Court of Appeals.

As Mirabelli makes clear, the justices have gotten into the bad habit of granting emergency relief before applicants have fully exhausted the availability of such relief in the lower federal courts. But Malliotakis presents a bigger problem—the Supreme Court doesn’t even have jurisdiction to hear appeals from state courts until and unless the highest court in the state has ruled on the issue. As Justice Sotomayor pointed out in her dissent, “This procedural defect should be fatal. In every other case in which this Court has granted emergency relief from a state-court decision, the State’s highest court either denied it first or failed to act promptly on a request for it.”

So how did the Court have jurisdiction? The majority … didn’t say. Only Justice Alito wrote to explain the Court’s intervention, and the way he frames the procedural posture is disingenuous at best. In his words, “[t]he 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.” Thus, Alito claims, the applicants had “nowhere else to turn.” The only problem is that that’s just not true. As noted above, the applicants initially sought relief from both the Appellate Division and the Court of Appeals, and the Court of Appeals transferred the application because the Appellate Division hadn’t ruled yet. Once the Appellate Division ruled, the applicants could have gone back to the Court of Appeals; they just chose not to. That should have deprived the Supreme Court of jurisdiction. Except it didn’t. Whether accidentally or on purpose, Alito’s description of the facts eludes the critical point that the Appellate Division’s refusal to issue a stay (the first clause) came after what happened in the second clause.

And then there’s Justice Alito’s attempt to explain why Purcell didn’t preclude the Court’s intervention here, i.e., that “our stay, far from causing disruption or upsetting legitimate expectations, eliminates much of the uncertainty and confusion that would exist if the Independent Redistricting Commission proceeded to draw a new district that this Court would likely strike down if the cases reached us in time.” Of course, if Purcell doesn’t apply to orders “eliminat[ing] uncertainy and confusion,” well, then it’s been misapplied … a lot.

Alito closes by criticizing Sotomayor’s dissent, suggesting that it

demands that we wait until the completion of a series of events that would likely run out the clock before we could review the order. That would provide a way of achieving what full review would not permit: the use of an unconstitutional district in the November election and the election of a Member of the House of Representatives whose entitlement to the office would be tainted. That is a prospect this Court should not countenance.

Even before getting to footnote 7 of Justice Sotomayor’s dissent, folks might have recalled the Supreme Court’s interventions in the Alabama and Louisiana redistricting cases in 2022—in which a 5-4 majority put back into effect House maps that lower courts had held to be unlawful in rulings that the Court would eventually affirm, meaning that Alabama, Louisiana, and a handful of other states used unlawful districts in the 2022 midterms (districts that helped to contribute to the Republicans’ razor-thin margin in the House between 2023 and 2025). Alito calls this a “prospect this Court should not countenance.” Except that Alito was one of the five justices who voted for that exact result when it favored Republicans. More than that, he joined in full Justice Kavanaugh’s concurring opinion in the Alabama cases, which explained that such intervention was demanded by (wait for it) Purcell.

Of course, it’s entirely possible that the Court is on the verge of holding in Callais that the kind of district the New York state court ordered the Commission to draw in response to a violation of the New York Constitution is itself a violation of the federal Constitution. Indeed, Alito’s opinion seems to be all-but-advertising that outcome. But that hasn’t happened yet. Given the jurisdictional obstacles to the Court’s intervention, why the rush here? All Alito can offer is chutzpah; the more obvious impact is to allow Rep. Malliotakis to run for re-election in her existing district, rather than one drawn to protect the rights of minority voters.

***

Although my critics may not notice, I spend a lot of time defending the Court, at least as an institution. But rulings like these certainly make it harder to do so. If the Court were consistently applying procedural and substantive principles with which I disagreed, that would be one thing. But it’s the inconsistency that, in my view, opens the Court to charges of more than just being wrong on the law.

That inconsistency is not just about which substantive principles the Court applies in which cases; it’s about how the Court acts—and when. Here, the grants of emergency relief seem to reflect impatience on the Republican appointees’ part with the ordinary flow of litigation, which would surely have brought these issues to the justices sooner rather than later.

Maybe one could defend “judicial impatience” as a virtue in the abstract. But the Court can’t (for volume reasons) and doesn’t (for … other … reasons) apply that impatience consistently. And if you’re going to intervene only when that impatience is getting in the way of results you want to reach now, and not in any other cases, well, that’s only going to exacerbate charges that the justices are simply doing what they want, when they want. Whatever else that is, what it ain’t is “law,” at least how I’ve always understood it.

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1. As I’ve explained before, any ruling from the Court without a signed majority opinion presents the difficulty of counting votes—especially when there are fewer than four public dissenters. Here, as we’ll see (and with a clue from Justice Kagan’s dissent), we know where all nine justices are in Mirabelli, but only where four of the nine are in Malliotakis. I’m assuming, for the sake of this post, that the public dissenters (Sotomayor, Kagan, and Jackson) were the only dissenters in both cases. But it’s at least theoretically possible that a Republican appointee (other than Justice Alito, anyway) dissented in Malliotakis. I highly doubt it, but I wanted to at least flag the point. Other outlets are probably right that both rulings were 6-3, but in the spirit of the Dumb and Dumber meme, there’s at least a chance that Malliotakis was 5-4.

2. Specifically:

Irreparable harm. The denial of plaintiffs’ constitutional rights during the potentially protracted appellate process constitutes irreparable harm. Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. 14, 19 (2020) (per curiam).

Balance of equities. Finally, the “equities do not justify depriving [the parents] of the District Court’s judgment in their favor.” Alabama Assn. of Realtors, 594 U. S., at 765. 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.

3. Justice Sotomayor noted that she would have denied the application in full, but she did not join Justice Kagan’s dissent. No, I don’t understand why, either—although perhaps there’s some split between them in a forthcoming merits case that Sotomayor didn’t want to re-open here.