2 MIRABELLI v. BONTA Per Curiam

their own experiences and guidance documents issued by state officials, plaintiffs alleged that California's policies permitted disclosure of a student's gender transitioning at school only if the student consented. Plaintiffs claimed that these policies violated their rights under the Free Exercise Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment.

Two of the parent plaintiffs, John and Jane Poe, have re- ligious objections to gender transitioning but were not told by their daughter's school when she began to present as a boy and use a male name and male pronouns during her seventh-grade year. In parent-teacher meetings, no one told the Poes about their daughter's transitioning or re- ferred to her using the male name and pronouns that were used at school. At the beginning of their daughter's eighth- grade year, she attempted suicide and was hospitalized. Only then did her parents learn from a doctor that she had gender dysphoria and had been presenting as a boy at school. Just months after being discharged, the Poes' daughter was rehospitalized and held there involuntarily because she was at risk for self-harm. At a new school in ninth grade, she once again began identifying as a boy. Contrary to the Poes' instructions, teachers and school offi- cials continued to use a male name and pronouns for their daughter, citing their obligations under California state law. The Poes have placed their daughter in therapy and obtained psychiatric care for her.

Like the Poes, plaintiffs John and Jane Doe object to gen- der transitioning, but since fifth grade, their daughter has sometimes identified as a boy. When their daughter was in seventh grade, the Does confronted the school principal about their daughter's transitioning. They believed the school was using a male name and pronouns for their daughter behind their backs. The principal explained that state law prohibited the school from sharing information about a child's transitioning with the child's parents

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without the child's consent. The Does believed that the risk of leaving their daughter in that school was too great, so they transferred their daughter to a new public school be- cause sending her to a private school was financially and logistically infeasible. The Does have also placed their daughter in therapy.

In 2025, defendants asserted that the guidance docu- ments on which plaintiffs had relied were no longer opera- tive and that the claims against certain state defendants should be dismissed as moot. But the State had promul- gated a new required training curriculum that similarly di- rected teachers not to tell parents about their children's gender identity without the children's consent. Defendants then withdrew their mootness argument, and the District Court declined to impose sanctions.

Later, plaintiffs sought classwide relief, and the District Court certified a class with separate subclasses for parents and teachers. One subclass of parents comprises all those who object to the challenged policies, while a separate sub- class is limited to those who seek a religious exemption. App. to Emergency Application 90a (App.). Two similar subclasses of teachers were also certified. Id., at 89a-90a. After discovery, the court granted summary judgment for all plaintiffs and entered a permanent injunction in their favor. The injunction prevents the schools from "mislead- ing" parents about their children's gender presentation at school and their social transitioning efforts. Id., at 24a. It also requires the schools to follow parents' directions re- garding their children's names and pronouns. And it com- pels defendants to include in state-created or approved in- structional materials a notice of the rights protected by the injunction.

The Ninth Circuit granted defendants' motion to stay the injunction pending appeal. It began by raising procedural objections to the District Court's injunction. It claimed that the District Court had granted class certification without

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4 MIRABELLI v. BONTA Per Curiam

undertaking the " 'rigorous analysis' " required by Federal Rule of Civil Procedure 23. App. 7a (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338, 351 (2011)). And it stated that the injunction appeared to be overly broad be- cause it "covers every parent of California's millions of pub- lic school students and every public school employee in the state." App. 6a. As a result, it opined, the injunction seemed to grant relief to uninjured class members who lacked Article III standing.

The Ninth Circuit also expressed doubts about the Dis- trict Court's decision on the merits. 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. 10a-11a (citing Doe No. 1

v. Bethel Local School Dist. Bd. of Educ., 2025 WL 2453836, *7 (CA6, Aug. 26, 2025)). 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 es- tablished precedent.

When the Ninth Circuit stayed the injunction, the par- ents and teachers filed this application seeking vacatur of the Ninth Circuit's stay pending appeal.

II

We grant the application and vacate the stay with respect to the parents because this aspect of the stay is not "justi- fied under the governing four-factor test." Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. 758, 763 (2021) (per curiam) (citing Nken v. Holder,

556 U. S. 418, 434 (2009)).

Likelihood of success on the merits. We conclude that the parents who seek religious exemptions are likely to succeed on the merits of their Free Exercise Clause claim. Califor- nia's policies likely trigger strict scrutiny under that

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provision because they substantially interfere with the

"right of parents to guide the religious development of their children." Mahmoud, 606 U. S., at 559 (citing Wisconsin v. Yoder, 406 U. S. 205 (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 poli- cies violate those beliefs and "impos[e] the kind of burden on religious exercise that Yoder found unacceptable." 606 U. S., at 550. Indeed, the intrusion on parents' free exercise rights here—unconsented facilitation of a child's gender transition—is greater than the introduction of LGBTQ sto- rybooks we considered sufficient to trigger strict scrutiny in Mahmoud. See id., at 563.

California's policies will likely not survive the strict scru- tiny 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, 530 U. S. 57, 68-69 (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 preclud- ing 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 suc- ceed on the merits.

The same is true for the subclass of parents who object to those policies on due process grounds. Under long-estab- lished precedent, parents—not the State—have primary authority with respect to "the upbringing and education of children." Pierce v. Society of Sisters, 268 U. S. 510, 534- 535 (1925); accord, Meyer v. Nebraska, 262 U. S. 390, 399- 400 (1923). The right protected by these precedents in- cludes the right not to be shut out of participation in deci- sions regarding their children's mental health. Parham v.

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6 MIRABELLI v. BONTA Per Curiam

J. R., 442 U. S. 584, 602 (1979). Gender dysphoria is a con- dition that has an important bearing on a child's mental health, but when a child exhibits symptoms of gender dys- phoria at school, California's policies conceal that infor- mation from parents and facilitate a degree of gender tran- sitioning during school hours. These policies likely violate parents' rights to direct the upbringing and education of their children.

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 eq- uity. And the injunction here promotes child safety by guaranteeing fit parents a role in some of the most conse- quential 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.

III

The Ninth Circuit's procedural objections to the injunc- tion are unlikely to prevail.

First, the parents protected by the injunction very likely have standing because they are objects of the challenged exclusion policies. See Diamond Alternative Energy, LLC

v. EPA, 606 U. S. 100, 114 (2025). Contrary to the Ninth Circuit's suggestion, the injunction does not provide relief for all the parents of California public school students, but only for those parents who object to the challenged policies or seek religious exemptions.

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Second, class certification was likely proper. The District Court addressed the requirements for certification under Rule 23 and explained why it concluded that they were met. * * *

The application to vacate the Ninth Circuit's stay pre- sented to J USTICE KAGAN and by her referred to the Court is granted as to the parents but is otherwise denied. J USTICE THOMAS and JUSTICE ALITO would grant the ap- plication in full.

J USTICE SOTOMAYOR would deny the application in full.

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_________________ _________________

1 Cite as: 607 U. S. ____ (2026) B ARRETT, J., concurring

SUPREME COURT OF THE UNITED STATES

No. 25A810 ELIZABETH MIRABELLI, ET AL. v. ROB BONTA,

ATTORNEY GENERAL OF CALIFORNIA, ET AL.

ON APPLICATION TO VACATE INTERLOCUTORY STAY ORDER

[March 2, 2026]

JUSTICE BARRETT, with whom THE CHIEF JUSTICE and J USTICE KAVANAUGH join, concurring. As the dissent observes, substantive due process is a con- troversial doctrine. Judges typically interpret express con- stitutional 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 prop- erty. U. S. Const., Amdt. 14, §1. 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 jeop- ardizing the People's right to self-governance. To mitigate this risk, the Court has crafted a demanding test for recog- nizing unexpressed rights: They must be "deeply rooted in this Nation's history and tradition" and "implicit in the con- cept of ordered liberty." Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted). Relevant here, the doctrine of substantive due process has long embraced a parent's right to raise her child, which in- cludes the right to participate in significant decisions about her child's mental health. See Pierce v. Society of Sisters,

268 U. S. 510 (1925); Meyer v. Nebraska, 262 U. S. 390 (1923); Parham v. J. R., 442 U. S. 584 (1979). The parent-applicants are likely to succeed on the merits under a straightforward application of these cases. Califor- nia prohibits its public schools from informing parents of

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2 MIRABELLI v. BONTA B ARRETT, J., concurring their child's gender transition at school unless the child con- sents. The record in this case indicates that the State's non- disclosure policy applies even if parents expressly ask for information about their child's gender identification. One set of parents learned of their child's transition at school only after the child attempted suicide. Strikingly, even af- ter this tragic event, school administrators continued to withhold information about the student's gender identifica- tion. California's nondisclosure policy thus quite obviously excludes parents from highly important decisions about their child's mental health, see Parham, 442 U. S., at 601- 604, and is unlikely to satisfy heightened scrutiny. Our res- olution of the parents' likelihood of success on this claim is dictated by existing law.

The dissent questions how the Court can adhere to parental-rights precedent after its decision in Dobbs v. Jackson Women's Health Organization, 597 U. S. 215 (2022). Post, at 5-6 (opinion of K AGAN, J.). But Dobbs calls into question neither the doctrine of substantive due pro- cess nor the other unexpressed rights that the doctrine pro- tects. Applying Glucksberg, Dobbs holds that Roe v. Wade,

410 U. S. 113 (1973), and Planned Parenthood of Southeast- ern Pa. v. Casey, 505 U. S. 833 (1992), were incorrectly de- cided because a right to abortion is not " 'deeply rooted in this Nation's history and tradition' and 'implicit in the con- cept of ordered liberty.' " Dobbs, 597 U. S., at 231. And be- cause the Court concluded that the stare decisis factors counseled against retaining these cases, Dobbs overruled them. Id., at 263-290. It does not follow from Dobbs that all our substantive due process cases conflict with Glucks- berg, much less that stare decisis would counsel overruling any that do.

No party to this dispute questions the continued validity of Meyer, Pierce, or Parham. For all its concerns about de- ciding the issue in this posture, the dissent expresses "no doubt that parents have rights, even though

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3 Cite as: 607 U. S. ____ (2026) B ARRETT, J., concurring unenumerated, concerning their children and the life choices they make." Post, at 6. And the precedent recog- nizing those 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, in- cidentally, was entered after a full merits process—remains in place.

And contrary to the dissent's charge, granting interim re- lief is not a sign of the Court's "impatience" to reach the merits. Post, at 2. Instead, the grant reflects the Court's judgment about the risk of irreparable harm to the parents. See Nken v. Holder, 556 U. S. 418, 435 (2009). If the par- ents were probably right but would suffer little harm from the Ninth Circuit's stay, they would not be entitled to in- terim relief. Ibid. But that is not the situation here. 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 par- ents are likely to suffer irreparable harm if California en- forces its policy while this litigation winds its way through the courts. Ante, at 6.

One last point: The Court has chosen to accompany to- day's order with a per curiam opinion that explains its rea- soning. 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 judg- ment." Post, at 4. But see, e.g., Whole Woman's Health v.

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4 MIRABELLI v. BONTA B ARRETT, J., concurring Jackson, 594 U. S. ___, ___ (2021) (KAGAN, J., dissenting from denial of application for injunctive relief ) (slip op., at

1) (critiquing this Court's interim orders for "barely bother[ing] to explain [their] conclusion[s]"); Trump v. Boyle, 606 U. S. ___, ___ (2025) (K AGAN, J., dissenting from grant of application for stay) (slip op., at 3) (similar). In- terim applications routinely require the Court to balance the lock-in risk of saying too much against the transparency cost of saying too little. See Labrador v. Poe, 601 U. S. ___, ___-___ (2024) (K AVANAUGH, J., concurring in grant of stay) (slip op., at 11-12). In my judgment, the benefits of expla- nation win out here. The Ninth Circuit (following the Sixth Circuit) significantly misunderstood Mahmoud v. Taylor,

606 U. S. 522 (2025), and general course correction will al- low the case to progress efficiently. And because of the Dobbs point that J USTICE KAGAN raises, it would have been unwise to issue an unreasoned order on the parents' sub- stantive due process claim.

When an interim application comes to us, "we must de- cide it—grant or deny." Labrador, 601 U. S., at ___ (K AVANAUGH, J., concurring in grant of stay) (slip op., at 2). Because the Nken factors strongly favor the parents, ante, at 4-6, I see no basis for denying this application.

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_________________ _________________

1 Cite as: 607 U. S. ____ (2026) K AGAN, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 25A810 ELIZABETH MIRABELLI, ET AL. v. ROB BONTA,

ATTORNEY GENERAL OF CALIFORNIA, ET AL.

ON APPLICATION TO VACATE INTERLOCUTORY STAY ORDER

[March 2, 2026]

JUSTICE KAGAN, with whom JUSTICE JACKSON joins, dis- senting.

Today's decision shows, not for the first time, how our emergency docket can malfunction. A case raising novel le- gal questions and arousing strong views comes to this Court via an application about whether to stay a district court's injunction pending appeal. The ordinary appellate process has barely started; only a district court has ruled on the case's merits. The Court receives scant and, frankly, inad- equate briefing about the legal issues in dispute. It does not hold oral argument or deliberate in conference, as reg- ular 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. The Court is impatient: It already knows what it thinks, and insists on getting everything over quickly. See also, e.g., Department of State v. AIDS Vaccine Advo- cacy Coalition, 606 U. S. ___, ___ (2025) (K AGAN, J., dissent- ing from grant of stay application) (slip op., at 2-3); Trump

v. Wilcox, 605 U. S. ___, ___ (2025) (K AGAN, J., dissenting from grant of stay application) (slip op., at 2-3, 8). Indeed, the precipitousness of the Court's decision today has yet a further—and wholly new—dimension: In granting

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2 MIRABELLI v. BONTA K AGAN, J., dissenting emergency relief, the Court cannot even wait for an appel- late court to conclude its own process for deciding the iden- tical issue. As the Court notes, a Ninth Circuit panel last month stayed the District Court's injunction against the challenged policies, pending the State's appeal of that or- der. See ante, at 3-4. The plaintiffs responded by simulta- neously filing two motions—one asking this Court to vacate the panel's stay and the other asking the Ninth Circuit to do the same thing through en banc review. The Ninth Cir- cuit is already acting on the motion filed there: The court promptly called for (and has now received) a response from the State, preparatory to exchanging memoranda and vot- ing on reconsideration of the panel's decision. Regular or- der 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 Cir- cuit's normal (and notably reflective) en banc process. Why wait for appellate procedures to play out when the Court already knows what it wants?

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 em- ployees to use only a student's preferred name and

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pronouns, while barring employees from disclosing the stu- dent'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 340-344.¹Why 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 lined up behind it. By recent count, almost 40 cases raising due process and/or free exercise objections to similar school pol- icies are currently in the judicial system (with several re- cently 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 considera- tion they merit, rather than the inevitably truncated review the Court affords emergency applications.

Certainly, the Court cannot claim that thought and care are not needed. If nothing else, this Court owes it to a sov- ereign State to avoid throwing over its policies in a slapdash way, if the Court can provide normal procedures. And throwing over a State's policy is what the Court does today. To be sure, the Court sprinkles the word "likely" atop its assessment of which party's arguments will succeed. But no one—in particular, neither a state official nor a lower ——————

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4 MIRABELLI v. BONTA K AGAN, J., dissenting court—is apt to read the Court's per curiam, brusque though it is, as anything less than a conclusive merits judg- ment.

In any event, there is something else: This case presents some thorny legal issues. The Court grants relief to parents on the same two substantive grounds that supported the District Court's injunction. First, the Court says, some par- ents can show that the State's policy "substantially inter- fere[s]" with their First Amendment right "to guide the re- ligious development of their children." Ante, at 5. Here, the Court analogizes to Mahmoud v. Taylor, 606 U. S. 522 (2025), a decision issued last Term about school curriculum. The ink on that decision is barely dry, and courts have just begun to consider its meaning and reach. But even assume the Court is right on the free exercise score; still, that could not justify extending relief to all the parents here. After all, some of those parents object to the State's policy not for re- ligious reasons, but simply because it prevents them from taking part in their children's most crucial life decisions. So the District Court also ruled on substantive due process grounds, finding a parental right to "direct the upbringing and medical care of their children." App. to Emergency Ap- plication 54a. And indeed, in doing so, the court made its free exercise ruling superfluous, because the due process ground protects every parent, whether or not religious. See supra, at 3, n. 1. This Court, to affirm the relief given, must follow the same course: It explains that the State's policy

"excludes parents" from "participation in decisions regard- ing their children's mental health." Ante, at 5-6. But the very phrasing the Court uses betrays the delicateness of the operation: Even in recognizing that parental right, the Court cannot quite bring itself to name the legal doctrine— it is, again, substantive due process—that provides the right's only basis.

Anyone remotely familiar with recent debates in consti- tutional law will understand why: Substantive due process

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5 Cite as: 607 U. S. ____ (2026) K AGAN, J., dissenting

has not been of late in the good graces of this Court—and especially of the Members of today's majority. The Due Pro- cess Clause, needless to say, does not expressly grant pa- rental rights of any kind. The relevant text bars a State only from depriving a person of "liberty" "without due pro- cess of law." Members of the majority often have expressed skepticism—sometimes outright hostility—to understand- ing the "capacious" term "liberty" to enshrine specific rights. Dobbs v. Jackson Women's Health Organization,

597 U. S. 215, 239 (2022). Substantive due process, one has stated, is a "particularly dangerous" "legal fiction" because it "invites judges" to "roa[m] at large in the constitutional field guided only by their personal views." McDonald v. Chicago, 561 U. S. 742, 811 (2010) (T HOMAS, J., concurring in part and concurring in judgment); Obergefell v. Hodges,

576 U. S. 644, 721 (2015) (T HOMAS, J., dissenting).²An- other 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) (G ORSUCH, J., concurring in part and concurring in judgment). And yet a third, when defending the Court's elimination of a 50-year-old right grounded in substantive due process, explained that the

"Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitu- tion." Dobbs, 597 U. S., at 340 (K AVANAUGH, J., concur- ring). There are many such statements to choose from in this Court's recent substantive due process caselaw. Espe- cially given the Court's last venture into the field, today's ——————

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6 MIRABELLI v. BONTA K AGAN, J., dissenting decision cannot but induce a strong sense of whiplash. Compare ante, at 5-6 (recognizing a parent's right to make important decisions about her child's health), with Dobbs,

597 U. S., at 231 (repudiating a woman's right to make im- portant decisions about her own health).³ None of this is to say that the Court gets the merits here wrong. It may not—as to the plaintiffs' free exercise claim, or their substantive due process claim, or both. As to due process particularly—because, again, that claim alone does all the load-bearing work in this case, see supra, at 3, n. 1, 4—I have no doubt that parents have rights, even though unenumerated, concerning their children and the life choices they make. See Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925); Parham v. J. R., 442 U. S. 584, 602- 603 (1979). On the other side of ledger, of course, a State has critical interests in the care and education of children. But California's policy, in depriving all parents of infor- mation 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. The Court, however, would be far better equipped to draw the appropriate line and to explain its legal basis—in short, to do law in the right way—if it had followed our ——————

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7 Cite as: 607 U. S. ____ (2026) K AGAN, J., dissenting

ordinary processes. A mere decade ago, this Court would never have granted relief in this posture. (Indeed, I am con- fident that the plaintiffs would never have thought to ask, at this stage, for the Court's involvement.) Then, though apparently not now, we understood that our normal pro- cesses—full briefing, oral argument, conference, and opin- ion writing, along with the time they take—exist for a rea- son. They ensure that before the Court makes a decision, it has marshaled all the relevant facts; considered all inter- ested parties' and multiple lower courts' legal arguments; and deliberated internally, with full understanding of each other's perspectives, on all disputed issues. So too, those processes enable us to think through the best legal ra- tionale for, and scope of, any decision, given both the views we have earlier expressed and the related issues that will soon come before us. And they allow us to explain ourselves well and carefully, both to the parties and to the public. Our processes are, in short, the hallmark of judicial probity, and alike its guarantor. There was no reason to abandon them here. I respectfully dissent.

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