The Volokh Conspiracy

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Supreme Court

For the First Time, Supreme Court Splits 5-4 Along Gender Lines

The Court denied the Biden's request for a stay of a lower court injunction against new immigration enforcement guidelines.


On Thursday, the Supreme Court divided 5-4 over whether to stay a lower court injunction against a Biden Administration immigration enforcement guidance. A district court in Texas issued a nationwide injunction against the guidance that the U.S. Court of Appeals for the Fifth Circuit refused to stay.

This was the first published order in which Justice Kentanji Brown Jackson participated. It was also the first time the Court has ever split 5-4 along gender lines (and the first time that such a split was even possible). All four female justices voted to grant the stay in United States v. TexasThe five male justices did not. The Court did, however, grant certiorari in the case on the following questions:

1. Whether the state plaintiffs have Article III standing to challenge the Department of Homeland Security's Guidelines for the Enforcement of Civil Immigration Law;

2. Whether the Guidelines are contrary to 8 U.S.C. §1226(c) or 8 U.S.C. §1231(a), or otherwise violate the Administrative Procedure Act; and

3. Whether 8 U.S.C. §1252(f)(1) prevents the entry of an order to "hold unlawful and set aside" the Guidelines under 5 U.S.C. §706(2).

In another challenge to the same guidance, Arizona v. Biden, the U.S. Court of Appeals for the Sixth Circuit initially stayed and then overturned a district court injunction. The Sixth Circuit questioned the states' standing and whether the guidance is a reviewable final agency action. Chief Judge Sutton also wrote separately questioning whether the district court had jurisdiction to enjoin the guidance under 8 U.S.C. §1252(f)(1) and the propriety of a nationwide injunction. This conflicting opinion was no doubt one reason for granting certiorari, and argument will be heard in early December.

Justice Barrett's split with the more conservative justices here is reminiscent of her vote in last term's Biden v. Texas, in which she disagreed with Justices Thomas, Gorsuch, and Alito on the merits of the Biden Administration's claims.

In other news, the Court issued an order on Friday indicating that the two university affirmative action cases are no longer consolidated. The Court has separate the case against Harvard University from the case against the University of North Carolina, and the two cases will be argued separately. As anticipated, Justice Jackson has also recused from the Harvard case.