The Supreme Court's emergency docket ruling in Mirabelli and denial of certiorari in Foote will send conflicting signals. On the one hand, the Court blocked California's policy on the shadow docket. On the other hand, the Court allowed a similar policy from Massachusetts to go into effect.

I received an email from a lawyer indicating that his school district was maintaining their "secret transition" policy, notwithstanding Mirabelli.

A question arises. Would this school district retain qualified immunity? Does Mirabelli, as an emergency docket ruling, create "clearly established" law? I know the Supreme Court has told us that emergency docket rulings are precedential. But is the law "clearly established"? Would this sort of ruling be clearly established by the Supreme Court for purposes of AEDPA?

Perhaps it can be argued that Mirabelli did not actually establish any new law. The decision merely reaffirmed century-old precedents, Pierce v. Society of Sisters and Meyer v. Nebraska. But other emergency docket precedents arguably do establish new law. Just yesterday the Court GVR'd Smith v. Scott, fittingly enough a QI case, based on a recent per curiam opinion.

This might be a way for lower court to push back on the shadow docket--by holding these rulings do not establish clear law for purposes of QI. The Supreme Court, I suspect, would say that any ruling of the Supreme Court would suffice.