Parental Rights and Judicial Urgency: The Bonta Decision in Comparative Perspective

In an order issued on March 2, 2026, the Supreme Court of the United States (SCOTUS) handed a significant victory to California parents. In Mirabelli v. Bonta, the Court vacated, as to the parent plaintiffs, the Ninth Circuit’s stay of a permanent injunction barring schools from misleading parents about their children’s adoption of a new gender identity at school, reinstating that injunction while the State’s appeal proceeds. In reviewing the application via its emergency docket, a majority of the Justices found that California’s policies likely violate the Free Exercise Clause—relying on its 2025 decision in Mahmoud v. Taylor—as well as parents’ rights “to direct the upbringing and education of their children.” Because the policies likely trigger strict scrutiny, the Court reasoned, they were unlikely to survive: the State, it observed, had “cut out the primary protectors of children’s best interests: their parents.” The decision was issued as a per curiam opinion, with Justice Kagan, joined by Justice Jackson, dissenting in an opinion questioning the majority’s use of the emergency docket to resolve a novel constitutional question without full merits briefing; Justice Sotomayor indicated separately that she would have denied the application in full. The case arrived at SCOTUS on an emergency application after the Ninth Circuit stayed the district court’s injunction pending appeal. The lower courts had diverged: the Southern District of California had granted summary judgment and a permanent injunction for the plaintiff parents and teachers, while the Ninth Circuit, in granting the stay, expressed doubts about the plaintiffs’ likelihood of success on the Free Exercise and substantive due process claims. In reaching its contrary conclusion, the Supreme Court majority relied heavily on Mahmoud v. Taylor (known in the lower courts as Mahmoud v. McKnight) (2025), in which SCOTUS held, 6-3, that a Maryland school district’s mandatory exposure of young children to LGBTQ-inclusive storybooks, with no opt-out for parents, violated the Free Exercise Clause because it substantially burdened religious exercise without being neutral or generally applicable. Mahmoud thus supplied the doctrinal bridge between the Religion Clauses and parental rights that the Bonta majority invoked to condemn California’s confidentiality policy as a targeted exclusion of parents—and their faith communities—from decisions the State had reserved for itself and the child. I. Comparative Analysis: The Brazilian Context The Bonta decision resonates deeply with recent jurisprudence from the Brazilian Supreme Federal Court (STF), specifically regarding the limits of state intervention in education and the primacy of family influence. 1. Homeschooling and Parental Pluralism In the Bonta case, SCOTUS emphasized that the family holds primary authority in child-rearing. Similarly, when the Brazilian STF adjudicated the constitutionality of Homeschooling (RE 888.815), it acknowledged that while the Constitution does not grant an unfettered right to homeschooling without legislative regulation, it also does not grant the State a monopoly over education. The tension in Bonta reflects the same core dilemma: to what extent can the State bypass parental “moral and religious” guidance in the name of a child’s individual autonomy? 2. “Escola Sem Partido” (School Without Party) The Bonta litigation began with teachers seeking to opt out of gender identity mandates. This mirrors the debate in Brazil surrounding the “Escola Sem Partido” movement. In ADI 5.537, the STF struck down a state law (the Alagoas “Escola Livre” statute) that restricted teachers’ speech, ruling that “neutrality” cannot be used to suppress pluralism. However, the Bonta majority shifts the focus: it suggests that school “neutrality” (or secrecy) can itself be an ideological imposition that violates the Substantive Due Process rights of parents to participate in their children’s mental health decisions. II. Procedural Criticisms: The “Emergency Docket” vs. Monocratic Decisions One of the most striking aspects of the Bonta decision is the internal friction regarding how the decision was reached. Justice Elena Kagan criticized the use of the “emergency docket” to resolve novel, complex issues through “terse, tonally dismissive” rulings. This mirrors a growing crisis of legitimacy in Brazil regarding monocratic decisions (decisões monocráticas). In the U.S., critics argue the “Shadow Docket” allows a conservative majority to intervene in “culture wars” before lower courts finish their review. In Brazil, the STF has faced immense scrutiny for the power of individual Justices to suspend federal laws or state policies via preliminary injunctions (liminares) before the Full Bench (Plenário) can deliberate. Two Brazilian examples illustrate the structural parallel with unusual clarity, and they span the ideological spectrum. The first is the monocratic preliminary injunction issued by Justice Luís Roberto Barroso on October 17, 2025, in a constitutional complaint proceeding (Arguição de Descumprimento de Preceito Fundamental 1.207), which, in a single-judge decision and without prior full-bench deliberation, extended the non-punishment clause of Article 128 of the Criminal Code to nurses and nursing technicians performing legal abortions, suspended all ongoing criminal and administrative proceedings applying the contrary interpretation, and prohibited public health authorities from imposing gestational-age limits or requiring police reports as conditions of access to the procedure. The order resolved, by individual judicial act, a question of criminal law and reproductive health policy that had been debated for decades and that directly implicated the regulatory autonomy of the Federal Council of Medicine, the national health surveillance agency, and the Ministry of Health. Justice Barroso himself requested the convening of an extraordinary virtual plenary session for the order to be ratified by the full court—an institutional acknowledgment that the scope of the measure exceeded what a single Justice should settle unilaterally. The second example is the monocratic injunction granted by Justice Marco Aurélio on December 5, 2016, in a separate constitutional complaint proceeding (Arguição de Descumprimento de Preceito Fundamental 402), which ordered the immediate removal of the President of the Senate from his office on the grounds that a criminal defendant may not occupy a position in the presidential line of succession. In both instances, a transformative institutional outcome—one restructuring the delivery of reproductive healthcare across the entire public health system, the other removing the president of one chamber of Congress—was decreed not by the deliberate judgment of the collegial court but by the unilateral assessment of one judge acting under the authority of urgency. Neither order, moreover, survived collegial review: the Plenário declined to ratify Justice Barroso’s injunction in an extraordinary virtual session concluded on October 24, 2025, and it likewise allowed the Senate President to remain in office, excluding him only from the presidential line of succession. This is the precise mechanism Justice Kagan identified as the shadow docket’s constitutional vice: the displacement of the considered, multi-voice institutional judgment that legitimizes judicial authority by the expedited pronouncement of a single will. In both jurisdictions, there is a perceived “malfunction.” In both jurisdictions, in short, the legitimacy of the outcome is inseparable from the legitimacy of the process by which it was reached—a dimension that neither system has yet satisfactorily resolved. III. The Persistence of Substantive Due Process Finally, Bonta exposes a fascinating paradox in conservative legal thought. While conservative Justices recently attacked Substantive Due Process to overturn abortion rights in Dobbs, they utilized that same doctrine here to protect parental rights. They argue that unlike abortion, parental rights are “deeply rooted in the Nation’s history and tradition.” This “history and tradition” test is now the primary battlefield for constitutional rights in the U.S.—a methodology that stands in stark contrast to the Brazilian STF’s more “transformative” and “purposive” interpretation of fundamental rights. The doctrinal pedigree the majority marshals is formidable. Parental rights were first constitutionalized in Meyer v. Nebraska (1923), where the Court struck down a state law prohibiting the teaching of foreign languages to young children, holding that the liberty protected by the Fourteenth Amendment encompasses a parent’s right to direct a child’s education. Two years later, Pierce v. Society of Sisters (1925) invalidated an Oregon statute compelling attendance at public schools, declaring that the State may not “standardize its children” by forcing them from the influence of private and parochial education. These cases were decided long before Roe v. Wade—a chronological fact the Dobbs majority exploited to distinguish the two rights epistemically: abortion could be dismissed as a “new” right crafted by the Warren and Burger Courts without deep roots in pre-twentieth-century tradition, while parental rights could be characterized as antedating the modern administrative state entirely. The lineage was reinforced in Troxel v. Granville (2000), where a plurality reaffirmed that the interest of parents in the care, custody, and control of their children is “perhaps the oldest of the fundamental liberty interests recognized by this Court.” The paradox of Bonta is thus not merely rhetorical. The “history and tradition” test that buried abortion rights is the same test that now elevates parental rights, and the Meyer–Pierce–Troxel sequence provides exactly the kind of long, unbroken Anglo-American common-law lineage that Dobbs demanded as the price of admission to substantive due process protection. By contrast, the Brazilian STF’s approach to fundamental rights under the 1988 Constitution does not require historical embeddedness as a prerequisite for constitutional protection. The STF has consistently read its ample rights catalogue—including dignity (dignidade da pessoa humana) under Art. 1(III) and the family protection norm of Art. 226—teleologically and evolutively, favoring the most expansive interpretation that promotes the full development of the person. Under this framework, new rights can emerge from constitutional principles without a historical pedigree, and the STF has recognized novel rights (such as LGBTQ+ equal dignity and the constitutionality of same-sex unions in two companion constitutional proceedings, Arguição de Descumprimento de Preceito Fundamental 132 and Ação Direta de Inconstitucionalidade 4.277) that would never survive SCOTUS’s post-Dobbs originalist filter. The comparative lesson reveals that when a court defines tradition narrowly, it simultaneously empowers some rights claims and forecloses others in ways that track the political commitments of the majority more faithfully than any neutral principle of constitutional interpretation could justify—a structural observation that resonates with Cass Sunstein’s account of how minimalist and maximalist judicial strategies distribute power across institutional actors differently depending on the constitutional moment in which they are deployed.