The Shadow Docket Showdown: Parental Rights, Power, And The Supreme Court’s Quiet Revolution With Richard Wilson

In this gripping episode of Hot Topic, Bold Talk, Jackalyn Rainosek, PhD, and Richard Wilson, Kerr Wison, P.C, take listeners deep into one of the most consequential—and least understood—battlegrounds in American law today: the Supreme Court’s “shadow docket.”

At the center of the discussion is the explosive case of Mirabelli v. Bonta—a case that raises fundamental questions about parental rights, government authority, and the role of schools in the lives of children. The issue is as personal as it is constitutional: Do parents have the right to know if their child is experiencing gender dysphoria at school? Or can the state, in the name of privacy and protection, withhold that information?

The Court’s decision didn’t come through the traditional, deliberative process Americans expect. Instead, it arrived through an emergency ruling—what’s known as the shadow docket—where decisions are made quickly, often without full briefing, or oral argument, or detailed explanation.

And that’s where the real story begins.

Jackalyn and Richard unpack not only the legal merits of the case—which even dissenting Justice Elena Kagan suggests may favor the parents—but the process by which the Court reached its decision. Why did the Supreme Court intervene before the appellate process was complete? Why bypass a nearly identical case already waiting for full review? And what does it mean when the highest court in the land increasingly makes major constitutional decisions “in the shadows”?

This episode explores:

The Constitutional Stakes: The clash between parental rights under the Fourteenth Amendment and state policies designed to protect student privacy and autonomy.
The Human Impact: Real stories from families navigating gender identity issues without full transparency from schools.
The “Shadow Docket” Phenomenon: What it is, how it has evolved, and why its use has surged dramatically in recent years.
A Court Divided—But Not How You Think: Why Justice Kagan’s dissent is less about what the Court decided and more about how it decided it.
A System Under Strain: What happens when long-standing judicial norms—full hearings, careful deliberation, and procedural order—are set aside.

Perhaps most striking is the paradox at the heart of this case: even critics of the ruling acknowledge that parents likely have a constitutional right to be involved in critical decisions about their children’s mental health. Yet the concern is that the Court’s growing reliance on emergency rulings risks undermining the very legitimacy of those decisions.

As Jackalyn and Richard explore, this isn’t just a legal debate—it’s a window into a broader transformation of American governance. The rise of the shadow docket reflects a judiciary that is moving faster, acting more aggressively, and reshaping policy in ways that are often invisible to the public.

And the implications are profound.

Because when decisions of this magnitude are made without full transparency, the question isn’t just what the law is, it’s who decides, how they decide, and whether the public can trust the process.

Another important aspect of this podcast is how Richard Wilson, Kerr Wison, P.C, used his legal understanding and Jackalyn Rainosek, PhD, uses the years of working with people that have gender conflict that leads them to search their thoughts, feelings and their experience of living the truth about themselves by accept their gender rather than their assigned sex at birth. The podcast also addresses the challenging issues of dealing with extreme religious beliefs and how this leads to questioning parental authority. The discussion also addresses the group of parents that simply want to be involved with the kids’ experiences as kids live through defining their gender so they can live who they believe they are.

This episode challenges listeners to think critically about power, process, and principle in a rapidly changing legal landscape. Whether you approach this issue from a conservative, liberal, or undecided perspective, one thing is clear: the rules of the game are changing—and the consequences will shape the future of American democracy.

Episode Summary Points:

The Legal Tension in Mirabelli v. California: The episode explores the complex litigation surrounding a California Department of Education regulation that directed schools to honor a student’s gender identity and pronouns without notifying their parents. At the heart of the case is a conflict between “substantive due process” rights for parents and teachers versus the state’s interest in protecting student privacy and expression. While the trial court initially granted a permanent injunction to prevent the state from withholding this information from parents, the Ninth Circuit Court of Appeals paused that injunction—a move that was ultimately countered by an interim order from the U.S. Supreme Court.
The Rise of the “Shadow Docket”: A significant portion of the discussion centers on the Supreme Court’s “emergency” or “shadow” docket—a process for seeking immediate relief before a case is decided on its merits. Richard Wilson highlights a dramatic shift in judicial behavior, noting that applications for such relief have grown exponentially over the last decade. Historically reserved for life-and-death emergencies like stays of execution, the shadow docket is now frequently used by both the executive branch and private litigants to “jump the line,” allowing the Supreme Court to telegraph its stance on major social and political issues through brief, often unexplained orders.
“Jumping the Line” and Procedural Integrity: The episode examines Justice Elena Kagan’s dissent, which criticizes the majority for circumventing the standard appellate process. By intervening before the Ninth Circuit could hear the case en banc (before all its judges), the Supreme Court effectively preempted a more reflective, lower-court deliberation. The participants discuss how this “form-over-substance” approach can lead to a lack of legal clarity, as the Court issues short, per curiam opinions—sometimes as brief as a single sentence—rather than the exhaustive, hundreds-of-pages-long rulings typical of cases decided on the full merits.
The Intersection of Mental Health and Parental Rights: Dr. Jacqueline provides a clinical perspective on the impact of these policies, distinguishing between parents who simply wish to be partners in their child’s mental health journey and “extreme” groups whose intervention might be counterproductive. The discussion acknowledges the school district’s intent to protect children from potential abuse or rejection—citing tragic outcomes like attempted suicide—while grappling with the legal reality that the current injunction specifically allows for the enforcement of child abuse laws. The episode highlights the difficult balance of supporting a child’s autonomy while respecting the fundamental, albeit unenumerated, rights of parents to guide their children’s upbringing.
Predicting a Cross-Ideological Consensus: Despite the Supreme Court’s conservative reputation, Richard Wilson suggests that the core issue of Mirabelli v. California—a parent’s right to be informed about their child’s life at school—may not follow traditional party lines. He notes that justices across the ideological spectrum, including Kagan and Jackson, have signaled support for the idea that parents possess a “substantive due process” right to be involved in their children’s education and medical/psychological care. The debate, therefore, is less about whether the right exists and more about how it is legally anchored.
The Fragility of Substantive Due Process: The episode dives into the legal concept of “substantive due process”—rights not explicitly written in the Constitution but recognized by courts as essential to “liberty.” While this doctrine has protected landmark rights like interracial marriage and parental involvement in education, it is currently under internal scrutiny. Richard explains the “hair-splitting” nature of the court: while some justices seek to anchor these rights in historical tradition, others, like Justice Thomas, argue for their total elimination, creating a volatile landscape for future rulings on medical and personal autonomy.
A Clinical Perspective on Gender Dysphoria: Dr. Jacqueline provides a compassionate counterpoint to the legal technicalities by explaining the DSM-5 criteria for gender dysphoria. She emphasizes that gender exploration in children—such as “playing dress-up” in a parent’s closet—is often a natural, non-permanent part of development. She argues that the current “negative political environment” around gender makes it difficult for individuals to have the thoughtful, compassionate process necessary for making long-term decisions, advocating for a middle ground that protects children from abuse without excluding supportive parents.
Executive Overreach and the Shadow Docket Cycle: While the hosts criticize the Supreme Court’s use of the “shadow docket,” Richard offers a nuanced look at why it has grown. He suggests that the “failure of other branches”—specifically the executive branch’s tendency to use “abstract readings” of laws to enact major policies like student debt cancellation or immigration enforcement—has forced more emergency applications onto the Court’s desk. However, he maintains that the majority of the blame for “jumping the line” and issuing poorly explained, interim decisions rests with the Supreme Court itself.
The Need for Public Judicial Literacy: The episode concludes with a call for increased public awareness of the court system. Dr. Jacqueline and Richard agree that the American public must move beyond seeing the courts as purely political actors and instead understand the specific language and precedents—like “freedom of religion” versus “due process”—that shape their lives. By paying attention to these “weighty” interim decisions, citizens can better advocate for a legal system that balances institutional rules with human flourishing.

References for Podcast 169:

Consider becoming a patron on Patreon. Your support helps us continue to produce in-depth content, bring you crucial insights, and amplify the voices fighting for a truly representative republic. Join our community and help us safeguard the future of American democracy here.

—

Watch the episode here

Listen to the podcast here

The Shadow Docket Showdown: Parental Rights, Power, And The Supreme Court’s Quiet Revolution With Richard Wilson

I am so delighted to have Richard Wilson with me because he is an expert in the legal aspects of it. I have experience in dealing with individuals who are part of this case as a therapist, a coach, and so forth. We are going to combine our knowledge base. One of the things, Richard, and you can give the name and so forth, and what is going on in a minute, but one of the things I notice about this case is it is complex because it has two parent groups that are being concerned about a policy and procedure in the California School District.

You can go into that more if you would like. What I would like to say, just from my perspective, not as a lawyer, but as someone who works with these groups, is that there is a set of parents that simply say, “I just want to be included. By the California Appellation Procedures, you say you are protecting my child by not telling me that they are having gender issues.”

Gender dysphoria is what we are going to be talking about, and it is more complex and is a mental illness. We are going to be talking about that later on because it creates some dynamics. There is one set of parents who just simply say, “I do want to participate, and I want to see if I can get help for my children and see what’s best for them.” The other is a group that I have experienced many times, which is extreme religious groups.

They make decisions about what is right and wrong, and then they want the right to know when their child is having gender dysphoria because they are trying to counter what is happening. As a mental health professional, I just want to start with that. I want you to explain the case and take as long as you want, because Richard, there are so many things to it. It is a terribly important case. Your turn.

The Context Of Mirabelli V. California

Thank you, Jacqueline. I will leave the mental health discussions and issues to you. My focus is to discuss the legal issues. You told me I could give the name of the case. The name of the case is Mirabelli versus California. Specifically, what we are focused on is an interim order that was entered by the United States Supreme Court in the Mirabelli case, not the decision by the underlying district court in California that tried the case on the merits and made a decision.

In Mirabelli, it concerned a California regulation or rule by the California Department of Education concerning informing parents about their children’s gender decisions at school. The schools were directed by the state to honor the choice of pronouns and how the children wanted to be treated by the school from a gender standpoint. Teachers and administrators at the state schools under this regulation, as it is recounted in the order, were not permitted to tell the parents about it.

Actually, the starting plaintiffs were a couple of teachers who filed suit against the state because the teachers did not want to have to follow this regulation and not tell parents about these decisions by their children, and what their children might be expressing to the teachers and others at the school. No, you are correct. Ultimately, you had sets of parents that joined in. From a legal standpoint, the challenges that this regulation presents to the California State Department of Education wanted the teachers to follow what are called substantive due rights of both the teachers and the parents.

Some of the parents, but not all of them, also allege that this regulation violated their First Amendment freedom of religion right set forth in the Constitution. Again, I am not discussing the underlying case at the district court, but what I will say is that the district court, after trying the case, entered a permanent injunction. An injunction is a form of legal relief. It is actually equitable relief where one party is ordered to do or refrain from doing something.

In this case, to summarize the injunction, the judge, after finding that this regulation violated certain constitutional rights, ordered the California Department of Education not to prohibit the schools from informing parents about gender decisions that children made at school. The parents, if they ask, are required by the school to let them know about these issues. Again, the focus here was a legal one.

To the particular order we are discussing, which was handed down by the United States Supreme Court. What the Supreme Court did was after the case was appealed to the Ninth Court of Appeals in California, sorry, we got a lot of courts here. You got the District Court, and above it, you have got the intermediate, the numbered appellate court, the Ninth Court of Appeals in California. Above all of that, you have the United States Supreme Court. California loses at the trial court.

They appeal to the Ninth Circuit Court of Appeals, which is a federal intermediate court also located in California, but its geographic region includes other states, Oregon, and Washington. The Ninth Court said that until we are able to decide this appeal on the merits, we are going to keep the injunction from going into effect. That happened with a couple of judges at the Ninth Circuit. What the plaintiffs did was they said, “We are going to ask all of the judges at the Ninth Circuit to decide this issue. We are also going to ask the Supreme Court of the United States to put the injunction back in effect.”

The order we are talking about was the Supreme Court of the United States saying, “While this works its way through the appellate courts, we are going to put the injunction back into effect. We are going to require the schools to inform their parents about gender decisions of their children made at school, while we decide this on appeal and while the Ninth Circuit decides this on appeal.”

Richard, I would like to interject something here, because I think this would be a good place to put it. One of the things that I read in the case itself is that they bring up the issues of child abuse and the use of child abuse laws and procedures, and so forth. We are not going to get into all of that, but I want to mention this because I think it is very important. One of the reasons that the schools did not want to tell was that they were protecting the rights of the children to express themselves in the way they felt themselves to be a specific gender.

It was a way to support them in the process of making the decisions and have the schools support it. I think, too, that people have to understand that sometimes these procedures are put in place because they have had the experience of abusive actions taken by parents, and then the children do not get better. They have issues. Now we have a case, part of this case, where one of the children tried to commit suicide.

We do not have all the facts about it, so as a PhD, I cannot say all of it, but I can give hypotheticals. I do not want to go any further into it right now. I do want to talk about it later, but what I want you to do is because it is very clear. We have three levels of cases, but there are some other things that are happening. I want you to describe the shadow docket. Once you have finished that, then I may have some comments.

I want us to go over how the Supreme Court grabbed this. Now, you may address it then, as it has removed the opportunity for the California procedure to stay in effect until there is a final decision about it. I do not know if that is separate from the shadow docket or if it has to be included in it. I personally do not like the shadow docket. I am going to give it to you because you are the lawyer anyway.

The Mechanics & Growth Of The “Shadow Docket”

It is included in it, but let us just start with what the shadow docket is. The term shadow docket, as I understand it, was coined by a University of Chicago constitutional law professor about a decade ago. What it refers to is a part of the Supreme Court’s docket in which people apply to the court for emergency relief. They asked the court to do something now because if you wait too long and decide everything on the merits, it will be too late.

[bctt tweet=”The term ‘shadow docket,’ coined about a decade ago by a University of Chicago constitutional law professor, refers to the Supreme Court’s handling of emergency requests—cases where immediate action is sought because waiting for a full merits decision would be too late.” via=”no”]

The term shadow docket has been used by a lot of constitutional law scholars to refer to the emergency docket the court has. In fact, there is one constitutional law professor, a gentleman by the name of Steve Vladeck, who has written a book that was a New York Times bestseller in 2023, focusing on the shadow docket. Obviously, if you can have a book of several hundred pages about it, it is a topic that we can really only briefly skim the surface of.

The issue we are concerned with the shadow docket is that the court can make decisions that can appear to have a far-ranging effect, and it can do so without fully explaining itself. In the old days, I found a statistic to illustrate this. It used to be that the only cases you would hear about on the so-called shadow docket were when you had prisoners who were on death row, and they were seeking a stay of execution, something to prevent the state from putting them to death while a constitutional or due process issue was considered by the courts.

When I was in law school and in the early part of my legal career, those were really about the only cases I ever heard of on this part of the court’s docket. There are statistics, I think it was the Brennan Center for Justice where I drew these statistics from, that point out that the shadow docket has grown exponentially, in particular over the last decade.

Here is the statistic I would like to share with everybody. From the year 2000 to 2016, so basically taking the entire two terms that George W. Bush, the 43rd president, was in office, and the entire two terms that Barack Obama, the 44th president, were in office, you have got one Democrat for eight years, one Republican for eight years. In those sixteen years, the executive branch of the United States government has only filed eight applications for relief with the US Supreme Court in the shadow docket.

I will point out that Mirabelli is not the president of the United States. The executive branch is asking for relief. These are private litigants. The reason I am bringing these statistics to your attention is in the same way that this docket has grown with respect to the executive branch asking for emergency or temporary relief, it has also grown with respect to private litigants seeking emergency or temporary relief. Here is the illustration of how much it has grown.

During the first term of President Trump, the four years from January 2017 through January 2021, the executive branch filed 41 applications for relief on the emergency or shadow docket. You went from eight applications in sixteen years, or one application every two years, to ten applications a year during the first term of Trump’s presidency.

It slowed down, but not that much during President Biden’s presidency. Over those four years, you had nineteen applications for relief on the court’s shadow docket. That is still roughly five a year compared to one every other year in the second Bush and the Obama presidency. For the past year, from January 20th of 2025 through January of 2026, there were 34 applications for relief filed on this docket in the United States Supreme Court. You went from one every other year to ten a year to five a year to last year, 34 applications.

Again, what that illustrates is you went from simple stays of execution to a large number of applications being filed with the Supreme Court, where you are asking the court to do something temporary while the real issues are decided on the merits after full briefing and full consideration, either at the Supreme Court or at an underlying court. The dissent in this order, the Mirabelli order that was written by Justice Kagan, really focuses on it as a form-over-substance issue, but some would argue that it is actually a using form for substance issue.

Wait a minute. I want to ask you something before you go into that. Sure. What do you mean by substance issue?

Let me illustrate this. If you remember, several months ago, we discussed the National Guard case out of Illinois. That was a case that was decided on the emergency docket or the shadow docket. What the court said is, after the court in Illinois said, we are not going to let you use the National Guard to enforce the laws here, the executive branch said, “Wait a second, we want you to stay that order so we can use the National Guard.” The Supreme Court in that case, in an interim decision, said, “No, we are not going to allow this.” The point that I would make is that, in the National Guard case from Illinois, the order was 25 pages. Last month, we discussed the tariff case. R

As I pointed out to you, the decision, counting all of the opinions by all of the judges, was over 170 pages. That is what I mean by the merits is you are considering the entirety of the case. The end result is you are dealing with a lot more, and you have a greater level of explanation to tell the reader, not just this is what we are doing, but here is why we are doing it.

To illustrate the extreme of that, let us take the Tariff case at 170 pages. Prior to the Supreme Court reversing Roe v. Wade with the Dobbs decision a couple of years ago, Texas had passed a law outlawing abortion in the state. The district court had said something to the effect of, “We are not going to allow this law to go into effect. It is unconstitutional.” Ultimately, the Supreme Court, in a one-sentence order on the shadow docket, denied the efforts to deny the law from going into effect.

There was no explanation. There was a one-sentence order that basically said we are going to let the Texas law go into effect, even though at that time, before Dobbs, the law would have violated Roe v. Wade. What a lot of people have pointed out was in that one sentence order, basically, the court said, here is where we are headed. This is what we are going to do. It was one sentence in which the court allowed that Texas law to go into effect.

Getting back to your question, what I am talking about with form over substance is you look at the full decision, whether you agree with it or not, in the Dobbs case, where they discuss, here is why we are going to do what we are going to do. That was after that case had made it all the way up to the United States Supreme Court. What happened with the Texas law going into effect is that it never got to the US Supreme Court. What the Supreme Court did was step in and keep a lower court from blocking that law from going into effect.

That is the form issue of this, in that we are going to step in before everything has worked its way to us, and here is what we are going to do. Justice Kagan points that out in the Mirabelli case in particular, and I think it gives a good platform to discuss the form issue. What had happened, as we mentioned, the trial court said, “I am going to enter this injunction.” The appellate court in California said, “We are going to hold off on letting you do that while we decide this case on the merits.”

The next step in this process, if you are following the form properly, is that you go to the Ninth Circuit Court of Appeals and you ask the entire court, not just three judges, but the Ninth Circuit Court of Appeals, I think it currently has something like 28 circuit judges and one chief judge. You are asking all 29 judges to weigh in on this issue and decide whether or not the injunction can stay in effect. What the plaintiffs did was they asked the entire Ninth Court to do this, but at the same time, they filed this application for emergency relief with the Supreme Court.

Justice Kagan’s Dissent: “Jumping The Line”

What Justice Kagan points out in her dissent is that she says, “Look, you have decided to jump the line.” That is the actual phrase she uses. Rather than letting the Ninth Circuit decide this issue en banc, you have decided that we are going to go ahead and get involved. In doing this, you are telegraphing where you want to go without fully explaining it. What we really ought to do is let the Ninth Circuit have a bite at the apple first before we jump the line.”

Again, I think that was the phrase she used and took this issue on. Let us let it work out the way it is supposed to. She actually cites a Supreme Court rule for how these things are supposed to proceed. The shadow docket is this practice of the Supreme Court making weighty decisions that are interim and that are not supposed to have effect and not be binding precedent. Nonetheless, it is taking on these big issues that arguably are not entitled to emergency relief before that court.

Again, the line used by Justice Kagan is that the court jumps the line, preempting the Ninth Circuit’s normal and notably reflective en banc process. That is what I mean by the form, and ultimately, Justice Kagan indicates in her dissent that she very well may agree on the merits. She says elsewhere in the dissent that none of this is to say that the court gets the merits wrong here.

It may not be limited to the plaintiff’s free exercise claim, their due process claim, or both. I have no doubt the parents have rights, even though unenumerated, concerning their children and the life choices they make. It is almost as if she is telegraphing, “I agree with you on the merits, but we need to wait in line and let this case come to us fully.”

This gets to an issue I know that you addressed with me, Justice Kagan also points out that if the court really wanted to take this on the merits and decide it in a manner where it will have a precedential effect, where you will have something to guide courts going forward that they can cite and rely on, there is a case out of Massachusetts, the Ludlow School District case. Where the plaintiffs in that case or the losing party in that case had filed an application for the Supreme Court to take it up, over a year ago. It is still pending.

She points out that there are 40 other cases dealing with this issue or similar issues. Again, the substantive issue is the parents’ rights to know from the school district what is going on with their child’s education and what the child is telling teachers. Whether or not the school district has an obligation to let the parents know when the child says something that indicates to the school district that the child might be at risk.

I am making it a much broader category, but it is more specific to the gender issue with respect to Mirabelli and the Ludlow case, and presumably the other 40 cases that Justice Kagan refers to in her dissent. That is a long-winded answer of what form is, jumping the line as opposed to substance, whether or not the parents’ due process rights or the teachers’ due process rights are being violated by this California regulation.

I appreciate you explaining all that, and I do not think it is lengthy. For my audiences, it is very important for them to know these facts. What the issue for me is, first of all, I do think parents need to have the right to have an impact on their child’s decision. At the same time though, we have child abuse laws to protect children from abusive actions by parents because of the fact that they are not given the right to make that decision progressively over time.

To have experiences that allow them to do things and to get guidance and support to continue to look at what they are doing and see how it impacts them and what their thoughts are about it, what their feelings are about it, so they then can make a decision. One of the things that bothers me is that I do not like short decisions. Yes, I think that the Supreme Court announced to us in one sentence what they were going to do, and then they did Dobbs. I do not like that thing.

A court needs to have all the factual data in front of it so that it can then make a decision. Maybe I do not like what their decision is, but at least I feel more comfortable when all the merits that are a part of the case are covered and looked at, and we look at the law, so we know it. One of the things that I think is really important here is this talk about how this is not a final opinion, but it is impacting some of these children.

I trust the parents who are saying, “Look, I just want to be included. If our kids are doing this, let me know. We will try to be supportive.” The ones that I think fit in the “Let’s protect the kids” are extreme religious groups that do things that are not helpful. Unfortunately, as a therapist for eighteen years and then as a coach and working with people all over, I have seen too many cases about the LGBT community where there was a lot of abuse and things that happened and rejection of kids that really had an impact on their lives.

I would like to see a way we could negotiate and say, “Here is how we are to decide protection for children, but then here is how we are going to decide how to resolve these issues with the parents.” I may be a dreamer, but that is what I think would be a great thing. Now that is not what it looks like. What are all these statements in this case? I know it stays the policy that California had, but it is not a final opinion. Tell me about the legal aspects of it and what all it takes and covers, please.

The Clinical & Legal Intersection of Child Protection

First, let me start with the term you used a couple of times, which was abuse. The other thing with the shadow docket is that the decision is what is called per curiam, which means no particular judge is signing off on the part of the opinion that is the order the court enters. In the per curiam opinion, it reads “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.”

The first thing I want to raise with you is the requirement or the injunction that was entered by the district court did not prohibit the school district from reporting parents that they felt these gender issues the child was dealing with touched upon or there was an indication to the school district of child abuse such that the district arguably has a duty under the law to report it to the appropriate authorities.

I am not going to branch off on that and talk about exactly when a district should report child abuse because you know both sides of that. You have subjective arguments about the district should have said something, but did not, or the district should not have said something, but did. The simple point is that there are other laws out there that the injunction does not deal with that would allow the district, in the appropriate circumstances, to report what it views as child abuse. Now, going off from that about the effect of this decision.

The Regional Disconnect & “Telegraphing” A Ruling

I mentioned a case out of Massachusetts that Kagan specifically mentioned, where an application is pending before the US Supreme Court. That is a good example because the injunction entered in Mirabelli was only with respect to the California Department of Education. Now, the Ludlow case out of Massachusetts was decided differently.

There, the court decided that the district could continue with the practice of not informing the parents about the child’s choice of gender pronouns to be used at school. The injunction in Mirabelli has no effect on what happened in Massachusetts from a legal or precedential effect. However, if the Supreme Court were to decide it in full, you would then get what I talked about earlier as precedent.

Even though the case had come out of California, if Mirabelli were a decision on the merits, that would then control what the school district in Massachusetts has to do, or what the school district in Illinois has to do, or in Wyoming, or in Texas. If it is decided on the merits, you get to all of that being decided. That is another one of the issues with the shadow docket. This decision is basically for one case only.

It is only for the Mirabelli case, and its effect is only on the California Department of Education and no one else. The concern there again goes to using this interim decision-making process on an issue where, if the court or at least four judges on the court are that eager to deal with it, they could have just accepted the application in Ludlow, taken this up on the merits, and decided it on the merits so that it would affect everybody.

I would say you can almost see the frustration in the words in Kagan’s dissent. She says, “A mere decade ago, this court would never have granted relief in this posture.” That goes back to the statistic I was giving you. Again, in the first sixteen years of this century, you only had eight applications. That is applications. That has nothing to do with whether or not the court actually granted relief.

Only eight applications by the executive branch. Now it is happening almost once a month. Quite a lot of these cases, the court is putting its thumb on the scale before the case is fully decided. That is really the concern. There are multiple concerns, but one of them is just what you touched upon. We have a major issue. There are 41 to 42 cases winding their way through the federal courts on constitutional rights with respect to school district decisions on this issue.

Rather than taking one on the merits that we have sitting in front of us, we are going to take this one. We are going to issue a shorter opinion that really does not go into the merits of everything. I am not going to call it slapdash, but a shorter opinion that does not fully go into the merits to at least telegraph to everyone what a majority of the court is going to do in less than six pages on an issue this weighty.

Arguably, it is like, at least we got six pages this time, as opposed to one sentence or six sentences. That is the shadow docket issue, or one of several shadow docket issues. Again, with regard to the effect of this case, who does this affect? The California Department of Education, the California Attorney General, and, actually, only the parents in California, because the interesting thing is the court only granted the injunction in part or allowed the injunction to remain in effect in part.

I do not know if it is because they just do not take on the issues the teachers raised, or the teachers did not bother to jump the line and ask the court to weigh in on this issue. I did not look into that aspect of it. What I do know is that the six pages, the court says, “The application to vacate the Ninth Circuit stay presented to Justice Kagan and by her referred to the court is granted as to the parents, but is otherwise denied.” What about the teachers?

Richard, one of the things that really bothers me, and I think you have addressed a lot of it is what is the Supreme Court’s upset? We know the Supreme Court is very conservative. It is amazing that it ever made the tariff decision truthfully. The Ninth Circuit Court in California is probably not conservative.

It is almost like, let us grab this before the Ninth Circuit Court gives anything an opinion that has merit, because then we are going to have to deal with the merit. Now, to me, if the Ninth Circuit Court in California deals with this issue and looks at the merits and they do make a reasonable decision, then those individuals who want to be more conservative and have their religious views that sometimes interfere with their making decisions, they are going to have a challenge. I would love to see what the Ninth Circuit Court will do.

I am interested to see as well, but I will point this out. If we are going to use the per curiam opinion in Mirabelli on this interim relief on the injunction and the concurrence and the dissent to predict what the court is going to do on the substance, it looks to me like this very well will be an issue that crosses the so-called party lines.

Again, Justice Kagan’s opinion was joined by Justice Jackson. As I pointed out to you, she seems to believe that the parents do have what is called a substantive due process right to important issues like these about their children. The parents have the right to be involved in the education of their children. In particular, if you are dealing with issues that require medical care, psychological care, therapy, or the appropriate measures to help children deal with these issues, then it seems to me that the parents’ right to know is not something that is Republican or Democrat.

[bctt tweet=”Parents have the right to be involved in their children’s education. When it comes to matters like medical care, psychological support, or therapy, a parent’s right to know isn’t a Republican or Democrat issue—it’s fundamental.” via=”no”]

This very well could be a unanimous opinion, or actually, it is one of these, like the tariff case. I guess that perhaps eight or all nine of the justices will agree that the parents have a right to know. What you will have is you will have five justices that say not letting the parents know violates their First Amendment freedom of religion right. You will have six of the justices who will say that doing this violates their substantive due process rights.

You will have a bunch of different opinions talking about why this is or is not a violation of one’s First Amendment right to the practice of the freedom of religion. When in reality, all we are talking about is letting the parents know that your child prefers gender pronouns different from their biological makeup when they were born. Where that is in the Bible, I do not know.

I am not going to claim to be a religious scholar. The court has precedent to say, “That is a violation of one’s freedom of religion.” There is the substantive due process right, which the concurrence by Justice Amy Coney Barrett touches upon. The per curiam opinion really focuses on the freedom of religion, which is not substantive due process. It is in the First Amendment.

Justice Barrett, Justice Roberts, and Justice Kavanaugh all say, “We think it is a substantive due process issue as well, which leads me to believe that at least five, maybe six of the justices see it as a substantive due process issue when it comes on the merits.” Again, we have not quite eighteen pages where you are telegraphing where you are going to go on these issues. Maybe I am reading it wrong. Maybe we are all reading it wrong.

It seems to me that this is not something that’s really going to be. The parents’ right to know is not something that I think is going to cut cleanly on political lines. If you ask a registered Democrat, would they like to know what their child is doing in school, the answer is going to be yes. That is a broad question. If you ask a registered Republican, would you like to know what your child is doing in school? The answer is probably going to be yes. That’s the same for independents and libertarians, I would say.

Yes, and I think that is going to be true. If they allow the Ninth Circuit Court to do it on merit and let us see what happens in that court case, then we may have much better information because there are 41 cases that are dealing with this issue. I would rather see something of substance before it comes to the court, and that is the reason I dislike this.

You and numerous constitutional law scholars, and clearly justices Kagan and Jackson, yes.

Clinical Indicators Of Gender Dysphoria (DSM-5)

What I want to say, Richard, is that the reason we are doing this is that it is time for the American public to understand what is happening in the court system. They are the one branch of our government that is attempting to make decisions that are not always politically oriented. We are having a situation here where we have to understand what the courts are doing now.

As a past therapist and now as a coach, because I do a lot more coaching with this, I would like my audience to understand that if a child has gender dysphoria, it does not mean it is a lifetime mental illness that is going to destroy their lives. As a therapist, I have worked with many people who had questions about gender and allowed them to have a thoughtful, compassionate, and understanding process of not naming what they decide. These individuals progressively, whether they were children, adolescents, or adults, over a time period.

Particularly longer with younger children. As they had the ability to simply look at all the aspects of their lives, they were able to make some very good decisions. My audience does need to understand that with the political attacks on the right to talk about gender, we have really created a negative environment for children, adolescents, and adults to look at their gender and make decisions.

I know from the lifetimes I have seen of people that have had different experiences based on their assigned sex, many of them are much happier than they ever have been. Yes, there are some who have had difficulties. I just want to summarize what it says in the DSM-5 of our therapy statements about various illnesses that are named. It is saying that if a person exhibits six months of duration of any of the following six items, then we have to determine what kind of treatment and process, and how we can help this individual come to a comfortable decision.

This is the first one, a strong desire to be of another gender or an insistence that he or she is the other gender. In boys assigned gender, a strong preference to cross-dress or use female attire, or in girls assigned gender, a strong preference for wearing more traditional masculine clothing, and a strong resistance to wearing the traditional female clothing. A third one is a strong preference for cross-gender roles in make-believe play or fantasy play.

Let me say something. Young children go through all kinds of things. I am thankful for the parents who, someday, one of the kids ends up going into the mother’s closet and decides to wear some of the stuff. It does not mean that they are in gender dysphoria. It means they are trying something out. The next day, they may do something in their father’s closet. This is what I think is important. Another thing is a strong preference for toys, games, or activities that are of a different gender from what they are.

A strong preference for playmates of other genders. A male may prefer girls more, or girls may perform if they want to be of the male gender. It goes on to say they may avoid certain games and activities that they normally would participate in, and have a strong dislike for any defined sexual characteristics that they have because they are in conflict with what they were assigned.

These cases are going to have to have a long discussion because we do have to protect the children from abuse, but we do have to respect the parents’ rights to know, and how do we do that? I taught school for many years, and I had to talk to a lot of parents about a lot of behavior because we did not have a procedure like California has.

Through that process, I helped the children and the parents to come to reasonable decisions about what they could do over time. You have done a fabulous job in describing this case. Thank you very much every month for taking that initiative and using your legal mind to help us understand it. Is there anything else that you would like to say before we end this particular episode?

I have got reflections on two things that I would like to share. One, you have pointed out that you do not like the shadow docket and that people need to know what our courts are doing. While I have a general dislike for the shadow docket as well, I will point out, at least going back to the executive branch increase in applications, that while I think a lot of the responsibility lies with the Supreme Court in wading into areas that, as Justice Kagan put it a decade ago, we would not have gone.

The other issue has to do with failures of the other branches of government as well. The reality is, we have a lot being done, like trying to use the National Guard to enforce immigration law that I do not think prior administrations and prior presidents would have dared to try to do. The same is true with regard to trying to use an abstract reading of a law to cancel billions of dollars in student debt because of COVID.

Some of these applications come about because the executive branch has shown a greater propensity over the past ten years to wade into waters it never would have gone before. The point I am making is that there are other people who can be blamed for the increase in applications and the increase in decisions on the shadow docket. I want to raise that issue, but in doing so point out still a large portion of the blame, the majority of the blame lies with the US Supreme Court itself.

The Definition & Future Of “Substantive Due Process”

One other thing I want to touch on, because I have mentioned it several times. It is a legal issue that probably deserves more than five minutes, but just so that your audience can understand a little better. I referred to a term called substantive due process. In Justice Barrett’s concurrence with the order of the court, she points out that substantive due process is not dead or dying, as Justice Kagan seems to indicate in her dissent.

The idea of substantive due process, the way it came about, is that you have certain liberties that are specifically defined in the Constitution and the amendments to the Constitution. You have other broad categories where a specific right is not defined in the Constitution, but the United States Supreme Court has chosen to recognize it.

For instance, the right to liberty includes the right of parents to know about and be involved in their child’s education. The problem here comes with how fine we are going to split the hair to decide whether this is something that the Constitution protects under the substantive due process rights or not. The example I would use here is that broad category with regard to education, you would say, “That is a long-recognized historical right,” even though it was not specifically enumerated in the Constitution, going back to the Articles of Confederation before the Constitution was around.

Parents had a right to know how their children were being educated. In fact, Justice Barrett says as much as her basis for saying that this is protected under the Constitution’s substantive due process rights. In regard to splitting hairs, I would then point out that a prior substantive due process right that apparently ceased to exist is the right of a woman to make decisions about her medical treatment.

[bctt tweet=”Parents have a right to know how their children are being educated. In fact, Justice Barrett cites this as a basis for protection under the Constitution’s substantive due process rights.” via=”no”]

Defined broadly, I would argue that it is a historically recognized right that women possess and that men possess that goes back to and predates the Constitution. When you want to announce the right, not as a right of the woman to make decisions about her medical treatment, but the right of a woman to get an abortion, it loses that historical effect because of how thin we split the hair.

We are talking about a medical procedure that I do not know. Maybe it did exist in the 1790s. I am not a doctor. I do not know the medical history behind it. The point I am making is splitting hairs, and the manner in which different justices decide to do it is ultimately what gives rise to or the prevention of a substantive due process right.

What Justice Barrett’s concurrence points out is, “Look, the court has not done away with substantive due process rights.” She does not say as much, but even though Justice Thomas wants to do away with those rights, you still have three of us Republican judges who believe those rights exist, along with the three liberal or Democratic appointments to the bench. Six of us still believe in substantive due process rights, and at least six of us probably believe that those rights allow the parents to know decisions like this are being made by their children and by the school in relation to their children.

Again, that was five minutes on substantive due process, a topic that probably is taught as an entire semester course in some law schools, but at least hopefully that five minutes gives your audience enough of an understanding of what we are talking about when I mentioned substantive due process. That is a right that is not specifically spelled out in the Constitution, like press or religion or bearing arms, but that nonetheless courts have recognized over the years as being within the scope of life and liberty and other things that were set out as being protected in the Constitution and the Declaration of Independence before it.

Thank you. I am extremely grateful. I wanted to have you do substantive due process because I think it is so important. There is one thing that is coming to mind. Where in Kagan’s dissent did she make some comments about due process? She said the parents have the right, but somehow the way she wrote it and brought up Dobbs, for a moment I thought to myself, is she saying if you make a decision about substantive due process in this case, how can you make a decision about substantive due process that is related to women and their right to choose their medical treatment? When I was reading the case, that was what was happening to me.

My focus, at least on this case, was the very first paragraph of Kagan’s dissent, where she says, “The decision shows not for the first time how our emergency docket can malfunction.” The jumping of the line, but what you are referring to, I believe, is what she discusses on page five of her dissent. Where she points out that substantive due process certainly appears, by members of the court’s majority, to be under attack.

She says the due process clause, needless to say, does not expressly grant parental rights of any kind. Members of the majority have expressed skepticism, sometimes outright hostility, toward understanding the capacious term liberty to enshrine specific, undefined rights. She mentions several opinions by Justice Thomas where he argues that we need to do away with substantive due process rights.

A lot of people have pointed out that if you want to do that, you really need to consider all of the things that the court has granted us under the broad umbrella of substantive due process. For instance, the Virginia case permitting interracial marriage was deemed to be a substantive due process right. Justice Thomas is married to a Caucasian woman. Obergefell v. Hodges, the case decided about a decade ago, held that states have to recognize same-sex marriages that have been performed and licensed in other states. That is a substantive due process right.

There are decisions, arguably groundbreaking decisions, that have fallen under the term substantive due process, but you have at least one justice on the court who believes we need to do away with it. Beyond that, she also points out a decision by Justice Gorsuch, where, as she puts it, he refers to the misuse of the substantive component of the due process clause, which is not saying we need to do away with it altogether, but we need to put parameters on it and really limit when we use this particular legal concept to recognize rights that are not specifically spelled out in the Constitution.

She raises another comment by Justice Kavanaugh, indicating the same thing. I would point out that Kavanaugh is one of the three justices, along with Barrett and the Chief Justice, who are part of Barrett’s concurrence. It was written by Barrett, but the Chief Justice and Kavanaugh joined that concurrence.

Again, while Thomas may want to do away with it entirely, she is pointing out that Kavanaugh and Gorsuch have said things in passing in other cases that would indicate that they think substantive due process needs to be more narrowly defined. The concern of probably all of the justices is that it would allow five members of the court to start defining constitutional rights that are not specifically set out in black and white.

A lot of these legal principles can and often do cut both ways, depending upon what side you are arguing. For instance, with the right to know or some of the substantive due process rights we have discussed. Some states have outlawed gender transition surgery. If a right to make medical decisions is a substantive due process right, is a decision by, say, the state of Alabama to prevent me from obtaining a gender transition surgery a law that violates my substantive due process right?

When we remove it from the parents’ right to know in relation to education, and apply it to my right to make medical decisions when we are not talking about the life of an unborn child or fetus, being something that is weighed in the scales. Again, it can cut both ways. That is just a hypothetical I pulled off the top of my head.

It is very helpful. I appreciate your examples because I think they give more clarity. We need to start paying attention to the words courts are saying, and we need to speak out about the things that we do not support, and we need to be supportive of some of the things they are doing and some of the questions they are bringing up.

I am very appreciative of you doing this with me for a podcast once a month, because I think our purpose was to say, let us try to give you some knowledge base, some experience, some education about what is going on in the courts. I do not think we have talked about it enough in America about how important the courts are.

I have always believed that many of my friends laugh because I say some of my best friends are lawyers. They have great respect for the legal institution, for the rule of law. I want to thank you for being on. I look forward to seeing what we are going to do in the next one because this one has expanded my knowledge and my mind about what the legal aspects are of a court. That is what I think is really important. Thank you so much, Richard, for being on.

My pleasure.

Important Links

About Richard Wilson

Richard Wilson is a veteran trial and appellate lawyer. His practice emphasizes the defense of professionals in federal and state courts, and before disciplinary agencies.

For over 20 years, Richard has focused on representing lawyers directly and on behalf of lawyers’ professional liability insurers.

During that time, he has defended and advised hundreds of lawyers and law firms against legal malpractice claims and professional ethics complaints.

His experience as a trial lawyer and with the law of lawyering has enabled him to both counsel and protect his lawyer clients when they find themselves parties instead of advocates or counselors.

Richard G. Wilson

KERR WILSON, P.C.

16676 Northchase Drive, Suite 450

Houston, Texas 77060

(281) 260-6304

EDUCATION

University of Texas at Austin, J.D., 1995

Louisiana State University, B.S., Finance, cum laude, 1992

BAR ADMISSIONS

State Bar of Texas

S. District Courts for the Eastern, Northern, and Southern Districts of Texas
S. Court of Appeals for the Fifth Circuit

PROFESSIONAL EXPERIENCE

Kerr Wilson Houston, Texas

Shareholder 2008- present

Represented clients in breach of contract, tort, employment, and insurance cases
First chair trial experience
Lead counsel in multiple appeals in both state and federal appellate courts
Advisor for small and mid-sized businesses in the energy industry
Responsible for all facets of managing and operating a law office
McFall, Breitbeil & Shults Houston, Texas
Associate & Shareholder 2001- 2008
Represented clients in breach of contract, tort, employment, and insurance cases
First chair trial experience
Lead counsel in multiple appeals in both state and federal appellate courts
Established the budget, managed litigation, identified corporate objectives, retained local counsel and experts, and tried complex cases that were pending in multiple jurisdictions

Chamberlain, Hrdlicka, White, Williams & Martin Houston, Texas

Associate 1997-2001

Hirsch, Robinson, Sheiness & Glover Houston, Texas

Associate 1995-1997

ACHIEVEMENTS

First chair jury trials in professional liability, breach of contract, insurance, trade secret, and personal injury cases
Appeals to the Fifth Circuit and Texas appellate courts
AV Rated by Martindale-Hubbell
PUBLISHED CASES
Blair v. Fritsch, 608 S.W.3d 407, 414 (Tex. App.—Houston [1st Dist.] 2020, pet denied)
Webb v. Crawley, 590 S.W.3d 570 (Tex. App.—Beaumont 2019, no pet.)
O’Hern v. Mughrabi, 579 S.W.3d 594 (Tex. App.—Houston [14th Dist.] 2019, no pet.)
Sheller v. Corral Tran Singh, LLP, 551 S.W.3d 357 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)
Kelly v. Nichamoff, 868 F.3d 371 (5th Cir. 2017)
Stallworth v. Ayers, 510 S.W.3d 187 (Tex. App.—Houston [1st Dist.] 2016, no pet.)
Galindo v. Prosperity Partners, Inc., 429 S.W.3d 690 (Tex. App.—Eastland 2014, pet. denied)
Graper v. Mid-Continent Cas. Co., 756 F.3d 388, 390 (5th Cir. 2014)
Allstate Tex. Lloyd’s v. McKinney, 964 F. Supp. 2d 678 (S.D. Tex. 2013)
Glattly v. Air Starter Components, Inc., 332 S.W.3d 620 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)
Willbros RPI, Inc. v. Continental Cas. Co., 601 F.3d 306 (5th Cir. 2010)
Duerr v. Brown, 262 S.W.3d 63 (Tex. App.—Houston [14th Dist.] 2008, no pet.)
Digges v. Knowledge Alliance, Inc., 176 S.W.3d 463 (Tex. App.—Houston [1st Dist.] 2004, no pet.)
Bauer v. Texas, 341 F.3d 352 (5th Cir. 2003)
King v. Dallas Fire Ins. Co., 85 S.W.3d 185 (Tex. 2002)

PUBLICATIONS

Author, From Advocate to Party – Defenses for Lawyers Who Find Themselves in Litigation, 61 LAW REVIEW OF SOUTH TEXAS COLLEGE OF LAW 43 (2020)
Author, Policy Benefits- Are They Recoverable Under Extra-Contractual Theories When A Covered Claim is Denied?, JOURNAL OF TEXAS INSURANCE LAW, Volume 12, Issue 5, at 17
(cited by the Texas Supreme Court in USAA Texas Lloyds Co. v. Menchaca, 545 S.W.3d 479, 487 (Tex. 2018))
Author, The Additional Insured, an update of recent developments in Texas focusing on additional insured clauses and indemnity agreements
Co-author, Recent Legislation Concerning Attorneys
Texas Lawyers’ Insurance Exchange Newsletter
Panelist, Occurrence-Innocent Insured Pays Price for Guilty Third Party?
Presented to the Insurance Practice Section of the State Bar of Texas

REPRESENTATIVE EXPERIENCE

Successfully defended an attorney in a two-week trial in federal court against fraud claims based on representations made during negotiations for the purchase of a multi-million-dollar interest in an oilfield services company.
Defended one of the world’s largest insurance brokers in a malpractice and breach of fiduciary duty case. This was one of the first cases to go to trial concerning broker duties related to the failure of Reliance. I obtained a take nothing judgment for the broker.
Defended an oilfield services company in a catastrophic injury case where the client destroyed the key piece of evidence after the accident. After a week-long trial, the jury returned a finding of minimal liability and damages against the client.
After a month long trial, obtained a take nothing judgment for a manufacturing company in a misappropriation of trade secrets case. Represented that client and several co-defendants in the appeal, and successfully reversed an unfavorable verdict against the co-defendants.
Successfully defended a liability insurer in a bad faith and Texas Insurance Code case concerning damages to a major pipeline. Obtained a summary judgment in the client’s favor, and persuaded the Fifth Circuit that the client’s coverage position was correct on appeal.
Represented an employer in an insurance coverage dispute all the way to the Texas Supreme Court, and persuaded the Texas Supreme Court to recognize coverage for the employer when an employee has committed an intentional act.
After being hired by a probate judge to defend him, successfully obtained the dismissal of a suit against him and on appeal defined the judicial immunity available to courts in Texas.
Obtained summary judgment for a law firm sued for malpractice over its handling of Sulzer implant cases. The summary judgment was affirmed on appeal.