After Mirabelli, The Other Foote Did Not Drop

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.

When Justice Kagan wrote this, she surely would have known if there were enough votes for cert or not. With the benefit of hindsight, there were not enough votes. Why then, would she spend so much time talking about a case she knew was destined for denial.

Us mere mortals on the outside, however, had no clue what was going on. At the time, I wrote that the Court might GVR Foote in light of Mirabelli:

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.

Well that didn’t happen. Today the Court denied Foote without any noted dissents. And this was after many relists–five following Mirabelli.

What happened? Well just today, in Smith v. Scott, the Court GVR’d a case based on an emergency docket precedent. So the Court apparently is not afraid of that path. I suppose heads rolled, as Sotomayor, Kagan, and Jackson took the rare dissent of dissenting from a GVR.

Why was there no GVR here? Certainly the First Circuit could take another look in light of Mirabelli.

If there were six votes to grant a stay in Mirabelli, why were there not four votes to grant cert in Foote?

Are there some vehicle problems? Or does the Court just want to keep another gender transition case off the docket?

The relationship between Foote and Mirabelli is tricky. If any law clerks in ten years want to release the cert pool memos here, I’ll be waiting. (I’m kidding, I’m kidding.)

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