The Supreme Court’s emergency docket rulings in Mirabelli and the denial of certiorari in Foote have created conflicting signals regarding qualified immunity standards. While the Court blocked California’s policy via the shadow docket, it simultaneously allowed a similar policy from Massachusetts to take effect.
A lawyer recently informed me that a school district was continuing its 'secret transition' policy despite the Mirabelli ruling. This raises a critical question: Does Mirabelli, as an emergency docket decision, establish 'clearly established' law for purposes of qualified immunity?
The Supreme Court has previously stated that emergency docket rulings are precedential. However, does this mean the law is 'clearly established' under the Antiterrorism and Effective Death Penalty Act (AEDPA)? Some argue that Mirabelli did not create new law but merely reaffirmed long-standing precedents such as Pierce v. Society of Sisters and Meyer v. Nebraska.
Conversely, other shadow docket rulings have arguably established new legal principles. For example, the Court recently GVR’d (granted, vacated, and remanded) Smith v. Scott, a qualified immunity case, based on a recent per curiam opinion. This suggests that shadow docket rulings may indeed shape legal standards.
Lower courts might push back by arguing that shadow docket rulings do not establish clear law for qualified immunity. However, the Supreme Court likely views any of its rulings as sufficient to meet the 'clearly established' threshold.
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