The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

When all the male Justices are in the majority and all the female justices are in dissent.

In at least four cases, Justices Ginsburg, Sotomayor, and Kagan were in dissent alone.


Today, the Court decided HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Assn. Justice Gorsuch wrote the majority opinion, which was joined by Chief Justice Roberts, and Justices Thomas, Breyer, Alito, and Kavanuagh. Justice Barrett dissented, joined by Justices Sotomayor and Kagan. Here, the male Justices were in the majority, and the female justices were in dissent.

This sort of split has happened before. In 2012, I blogged about Blueford v. Arkansas. Justice Sotomayor wrote a dissent, which was joined by Justices Ginsburg and Kagan. The same split occurred in Midland Funding, LLC v. Johnson (2017), though Justice Gorsuch was recused. In Fernandez v. California (2014), Justice Ginsburg dissented joined by Justices Sotomayor and Kagan.That same split occurred in J. McIntyre Machinery, Ltd. v. Nicastro (2011). I could not find any cases in which Kagan dissented, and was joined only by Justices Ginsburg and Sotomayor.

I could not find any cases in which Justices O'Connor and Ginsburg were the lone dissenters.

Update: Messerschmidt v. Millender (2012) evaded my search. The vote was 6-3. Justice Kagan wrote a solo dissent. Justice Sotomayor wrote a separate dissent, joined by Justice Ginsburg. Utah v. Strieff (2016) also had the three female Justices in dissent, though the lineups were messy.