SCOTUS Splits 5-4 On Whether Entirety of Title IX Regulations Must Be Enjoined
What, then, was the disagreement? The Justices fractured on severability. Indeed, severability, along with vacatur and nationwide injunctions, are among the most unresolved areas of the Court. In recent years, Justices Thomas, 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 Thomason 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 should not be a fixation solely on the likelihood of the merits–or a preview of the merits question. But that is precisely what the per curiam opinion did here.
