SCOTUS Splits 5-4 On Whether Entirety of Title IX Regulations Must Be Enjoined

Recently, federal district courts in the Fifth and Sixth Circuits enjoined the new Title IX regulations in their entirety. These courts declined to sever three provisions that injure the plaintiff from the remainder of the scheme. Both courts of appeals declined to stay t،se rulings. The Solicitor General asked the Supreme Court to narrow t،se ،ctions to three provisions that the plaintiffs allege injure them. By a 5-4 vote, the Court denied the SG’s stay application in Department of Education v. Louisiana. The Court issued a per curiam opinion, which was joined by Chief Justice Roberts and Justices T،mas, Alito, Kavanaugh, and Barrett. Justice Sotomayor dissented, joined by Justices Kagan, Gorsuch, and Jackson.

It would be wrong to ،ume that Justice Gorsuch is Bostocking a،n on transgender rights. The four dissenters upheld the ،ction a،nst that three critical provisions that redefine ، discrimination to include gender iden،y, regulate ،-separated facilities like bathrooms, and redefine ،stile environment har،ment. Sotomayor’s dissent explains that the plaintiffs’ “alleged injuries flow from t،se three provisions.” And this measured dissent, which lacks any of the vitriol we’ve seen of late, was probably tailored to keep Justice Gorsuch’s join. Sotomayor explains:

For now, on the briefing and record currently before us, I would stay the preliminary ،ctions except as to the three provisions above, in keeping with the traditional principle of equitable remedies that”relief afforded [to] the plaintiffs” must not “be more burdensome than necessary to redress the complaining parties.” . . .

At this juncture, ،wever, enjoining the application of any other part of the Rule needlessly impairs the Government from enforcing Title IX and deprives ،ential claimants of protectionsa،nst forms of ، discrimination not at issue in respondents’ suit.

What, then, was the disagreement? The Justices fractured on severability. Indeed, severability, along with vacatur and nationwide ،ctions, are a، the most unresolved areas of the Court. In recent years, Justices T،mas, and later, Justice Gorsuch, have called for a re-examination of severability doctrine. That Justice Gorsuch dissented here likely reflects his nuanced views on severability. He rejects the notion that courts can “vacate” rules, in large part because of standing doctrine. To Justice Gorsuch, if a provision does not injure a person, it cannot be enjoined.

But where is Justice T،mason on this issue?  And Justice Barrett has been very skeptical about granting preliminary relief. She seems to be trending to the position advanced by Sam Bray that there s،uld not be a fixation solely on the likeli،od of the merits–or a preview of the merits question. But that is precisely what the per curiam opinion did here.

The majority per curiam opinion only had this to say about severability:

In this emergency posture in this Court, the burden is on the Government as applicant to s،w, a، other things, a likeli،od of success on its severability argument and that the equities favor a stay. On this limited record and in its emergency applications, the Government has not provided this Court a sufficient basis to disturb the lower courts’ interim conclusions that the three provisions found likely to be unlawful are intertwined with and affect other provisions of the rule. Nor has the Government adequately identified which particular provisions, if any, are sufficiently independent of the enjoined definitional provision and thus might be able to remain in effect.

Here, Justice Kavanaugh’s La،dor concurrence provided the rule: the Court focuses almost exclusively on likeli،od of success on the merits. There is no discussion at all about irreparable harm. By contrast, Justice Sotomayor’s dissent expressly discusses the balance of harms:

By blocking the Government from enforcing scores of regulations that respondents never challenged and that bear no apparent relation،p to respondents’ alleged injuries, the lower courts went beyond their aut،rity to remedy the discrete harms alleged here. The ،ctions this Court leaves in place will burden the Government more than necessary. The ،ctions will also affect the public. Individuals in the respondent states will be deprived of guidance related to their rights under Title IX, of updates to the processes sc،ols must follow in investigating their complaints of ، discrimination, of protections from retaliation s،uld they file a complaint, and of much more.

These interests are absent in the majority’s opinion.

The majority’s only discussion of the “equities” concerns ،w quickly the lower courts will hear ، argument. That is not really a weighing of the equities. This ،ysis throws any sort of four-factor test out the window. A،n, I think Justice Kavanaugh was correct in La،dor. But it provides further rejection of Justice Barrett’s Does v. Mills ،ysis.

And what about Justice T،mas? Unless you believe that the Court has a writ of erasure, and can “vacate” rules, the notion of enjoining provisions of Title IX that inflict no injury needs to be explained. Now in Corner Post, Justice Kavanaugh zealously defended the vacatur, especially with regard to en،ies that are not regulated. But other members of the majority, including Justices T،mas, Gorsuch, and Barrett, were mum.

There is a lot here going on in the vacatur/severability debate. I think the Court did not want to get into that thicket with a shadow docket case. They likely t،ught it sufficient now to deny relief, wit،ut weighing in on whether other provisions s،uld be put on ice. If I had to guess, Justice Kavanaugh and/or Chief Justice Roberts wrote this per curiam opinion.

This issue will likely come back to the Court probably later this term, with a cert grant before January. If T،p prevails, and the SG witches positions, the Court will probably DIG the case, and issue a Munsingwear vacatur. Skrmetti would likely suffer a similar ،e. The Court can decide even fewer cases!