The Supreme Court’s grant of the government’s application for a stay in Noem v. Vasquez Perdomo drew attention for both its short-term outcome—namely, greenlighting sweeping racial-profiling detentions in Los Angeles by armed and masked DHS agents—and its jarring illustration of shadow-docket fiat. It is hard to parse because there is nothing to parse; in lieu of a reasoned majority opinion, all we get is pure Schmittian decision. But Justice Kavanaugh did go to the trouble of writing a solo concurrence explaining why he voted to grant the stay. Justice Sotomayor, in a dissent joined by Justice Kagan and Justice Jackson, explained why she would have denied the stay. Lurking in these dueling arguments is a high-stakes debate about judicial balancing.

Begin with the big picture. Noem v. Vasquez Perdomo pits the interest in immigration law enforcement against the interest in freedom from unreasonable seizures. The case is just the latest iteration of the classic dilemma of weighing security against liberty. It would be standard to speak here of a clash between a governmental interest and an individual interest, but a more accurate formulation is that the clash is one of competing constitutional interests: on the one hand the social interest in law and order (“domestic Tranquility”), on the other hand the social interest in Fourth Amendment liberty.

In early June 2025, DHS extended its mass deportation effort to Los Angeles, detaining thousands of people in a search for illegally present individuals. Judge Frimpong of the Central District of California was soon presented with, in her words, “ample evidence that seizures occurred based solely upon the four enumerated factors” of “(1) apparent race or ethnicity, (2) speaking Spanish or speaking English with an accent; (3) presence at a particular location; or (4) the type of work one does.” On July 11, she granted a temporary restraining order enjoining the government from pursuing a policy of immigration stops based on those factors.

The government sought a stay of the district court’s TRO pending appeal. The Ninth Circuit panel, composed of three Democratic appointees, applied the Nken four-factor framework: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” After a thorough analysis, the panel denied the stay application in a per curiam August 1 opinion. On September 8, the Supreme Court summarily granted the stay application, reversing the Ninth Circuit.

In his concurrence, Kavanaugh applied the Nken four-factor framework. Like the Ninth Circuit panel, he correctly observed that Chief Justice Roberts’s majority opinion in Nken described the first two factors as “the most critical.” In the context in which Roberts made that remark, he was emphasizing that those factors constitute a high threshold. But Kavanaugh here seems to have leaned on the first two factors for another reason: they lend themselves to bright-line rules. Regarding the first factor, Kavanaugh anticipated a “fair prospect” that the Government would ultimately succeed on the merits either because plaintiffs would lack standing under City of Los Angeles v. Lyons (mere “subjective apprehensions” of future violations) or because plaintiffs would constitutionally be subject to reasonable-suspicion stops under U.S. v. Brignoni-Ponce. Regarding the second factor, Kavanaugh deployed the rule recently stated by Chief Justice Roberts in a 2012 in-chambers opinion (Maryland v. King) and quoted by the Trump v. CASA majority: “[A]ny time [that the Government] is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” The district court’s injunction accordingly constituted irreparable harm because it prevented the government from effectuating the Immigration and Nationality Act.

Satisfied that he had dispensed with these two “most critical” Nken factors, Kavanaugh then reluctantly advanced to the last two factors, which (following Hollingsworth v. Perry) he blended together as “the balance of harms and equities.” He immediately pronounced himself uneasy. Quoting a famous turn of phrase from Justice Scalia’s Bendix concurrence, Kavanaugh cautioned that in such interim-relief circumstances “trying to determine whether one party’s harms or equities outweigh another party’s can be akin to ‘judging whether a particular line is longer than a particular rock is heavy.’” This implied that balancing the harms and equities here was impossible (indeed, Scalia in Bendix was describing a situation in which “the interests on both sides are incommensurate”).

Kavanaugh went even further, warning that the immense difficulty of balancing here was compounded by the fact that the challenge was to “government action,” requiring the Court to weigh the harm to regulated parties against both institutional harm to the government and harm to potential regulatory beneficiaries. Such balancing would be “especially difficult and policy-laden,” worried Kavanaugh. In a footnote, Kavanaugh argued that his aversion to balancing here was consistent with a considered view he began articulating in 2024: “[E]specially in cases involving a significant new law or government action, the interim harms and equities are typically weighty on both sides” and therefore “resolving the application . . . often will depend on this Court’s assessment of likelihood of success on the merits.” Kavanaugh seemed prepared to rest his vote to grant the stay application on the first two Nken factors (primarily the first), treating the last two factors as indeterminate and thus irrelevant.

And then, suddenly, Kavanaugh balanced. “In any event,” he continued breezily, “the balance of harms and equities in this case tips in favor of the Government.” He characterized plaintiffs’ interest as an interest in “avoiding being stopped by law enforcement for questioning.” With that framing in place, Kavanaugh moved to quickly dismiss the plaintiffs’ interest. With respect to illegally present individuals, he argued that this interest is not “especially weighty” because it is “ultimately an interest in evading the law.” With respect to legally present individuals, he asserted that this interest is insubstantial because the stops are “typically brief.” Kavanaugh did not say a word about the government’s competing interest. Instead, he simply concluded where he began: “the balance of harms and equities favors the Government here.”

Kavanaugh’s approach here seems self-contradictory. In one moment, he darkly condemns balancing, aligning himself with the Bendix incommensurability thesis and decrying the uniquely “policy-laden” balancing required to decide whether to grant interim relief from government action. In the very next moment, he balances. Kavanaugh ends his concurrence with fine words about the limited role of the judiciary and its lack of authority to make “policy calls” about immigration enforcement. (Compare the per curiam opinion granting a stay in the 2022 case Nat’l Fed. Indep. Bus. v. OSHA: “It is not our role to weigh such tradeoffs.”). But if evaluating petitions for interim relief from government action entails policy-laden balancing, then Kavanaugh himself has necessarily just made policy.

The most generous way to understand Kavanaugh’s ostensible hypocrisy is that he is genuinely conflicted. On the one hand, Kavanaugh is a proud follower of Justice Scalia—scourge of balancing, author of The Rule of Law as a Law of Rules. Kavanaugh has developed a substantial body of personal precedent rhetorically opposing balancing. The most high-profile example of his anti-balancing stance is probably his Rahimi concurrence, which disdained balancing as “policy by another name.” On the other hand, Kavanaugh recognizes that balancing is entrenched in many parts of our law. So, in Rahimi, he stressed that he had no designs on precedents that relied on balancing. In a public conversation last year, while affirming that he prefers rules over standards, Kavanaugh conceded that “sometimes, of course, you’re going to have standards in the law as a matter of precedent.” Nken, for instance, explicitly contemplates a judicial determination of the public interest. Such determinations are par for the course when it comes to equitable relief; they are, to quote Nken, eminently “traditional.” A preeminent advocate of history and tradition like Kavanaugh cannot easily dismiss equitable balancing.

To resolve his internal conflict and overcome the contradiction, Kavanaugh could give up entirely on balancing. This would come at a high cost in terms of flexibility, fidelity to history and tradition, and doctrinal stability. Moreover, formally eliminating equitable balancing from the stay analysis wouldn’t actually eliminate it. Consider that Kavanaugh here, in his preliminary assessment of the merits, concluded that the DHS policy satisfies reasonable suspicion under the Brignoni-Ponce totality of the circumstances test. The totality of the circumstances test is commonly derided as balancing by another name. Scalia’s 2001 Mead dissent described it as “[the] test most beloved by a court unwilling to be held to rules (and most feared by litigants who want to know what to expect).” All the same, Kavanaugh here analyzed the totality of the circumstances, purporting to rely on “our precedents” as well as “common sense.” By Scalia’s lights, he thereby balanced.

Alternatively, Kavanaugh could learn to love balancing, acceding to rising calls from conservative legal scholars. The most prominent such voices today are Will Baude, Sherif Girgis, and Stephanie Barclay. Especially relevant in this specific context is the voice of Eli Nachmany, who in a forthcoming article discerns four principles in recent administrative law jurisprudence that might discipline equitable balancing. Because Kavanaugh has repeatedly disparaged balancing, however, he is unlikely to reverse his hostility to balancing; he is boxed in by his past arguments.

The most defensible answer to Kavanaugh’s predicament may, ironically enough, lie in Justice Sotomayor’s dissent. Sotomayor herself has no qualms about balancing; as she wrote in her concurrence in the 2023 National Pork case, “courts generally are able to weigh disparate burdens and benefits against each other.” In her Vasquez Perdomo dissent, Sotomayor pointedly quoted from a 1991 in-chambers opinion by Scalia bluntly affirming that balancing the equities is integral to the stay analysis. Sotomayor then included a footnote addressing Kavanaugh’s invocation of Bendix. She firmly distinguished Bendix, which addressed balancing “in the entirely separate Dormant Commerce Clause context.” That context, in Scalia’s words as quoted though not endorsed by Sotomayor, involved weighing “the governmental interests of a State against the needs of interstate commerce”—a “task squarely within the responsibility of Congress.” By contrast, per Sotomayor’s further quotation of Scalia, where the context involves weighing “the needs of the State” against “the liberties of the individual,” the task of balancing squarely belongs to the judiciary, “the nonpolitical branch.” The obvious implication is that in a case like Vasquez Perdomo, where the need for law enforcement confronts Fourth Amendment liberty, the judiciary can and should balance the interests.

Sotomayor’s insight, skillfully communicated through a close reading of Scalia, is that the appropriateness of balancing may vary by context. Balancing need not be starkly framed as either an inherently legislative task or a task shared by the branches of government. In certain contexts, the judiciary might programmatically eschew balancing (think foreign affairs and commerce), whereas in other contexts it might programmatically embrace balancing (think core constitutional rights and Carolene Products Footnote Four).

Balancing is evidently not impossible: courts balance all the time. Even Kavanaugh, immediately after suggesting that balancing is impossible, purported to balance in Vasquez Perdomo. Scalia’s Bendix incommensurability thesis is patently overstated; he himself balanced on numerous occasions. As he predicted in The Rule of Law as a Law of Rules, “We will have totality of the circumstances tests and balancing modes of analysis with us forever—and for my sins, I will probably write some of the opinions that use them.”

One might contend that the Bendix thesis is still worth invoking as a psychological device to enhance judicial restraint. But it certainly did not work that way in Vasquez Perdomo: after quoting Bendix, Kavanaugh proceeded to brusquely balance the equities. As Sotomayor’s dissent compellingly protests, Kavanaugh’s concurrence “relegates the interests of U.S. citizens and individuals with legal status to a single sentence.”

Better, for Kavanaugh, to retreat from Bendix and embrace the contextual approach to balancing. There was room for that in his Vasquez Perdomo concurrence. Rather than denouncing balancing in general, Kavanaugh took care to specify that he was denouncing balancing in interim-relief circumstances where government action is subject to challenge. He also hedged, saying that equitable balancing in these circumstances “can be akin” to balancing incommensurables à la Bendix. Sotomayor subtly suggests, not implausibly, that Kavanaugh could just as well have come out the other way and endorsed balancing in these limited circumstances. The contextual approach to balancing is hardly foreign to Kavanaugh; he remarked last year that while “as a general proposition” rules are preferable to balancing, “these are all gray areas and nothing’s going to be that way all the time.”

The model for Kavanaugh in Vasquez Perdomo should have been the Scalia of Scott v. Harris, who resigned himself to analyzing “the factbound morass of ‘reasonableness’” and forthrightly weighed the Fourth Amendment interest against the interest in public safety. Even on the emergency docket, that is what judicial duty to the Constitution demands. To be sure, there is no exact science of balancing, and in this case the appropriate balance might seem uncertain. Nevertheless, to borrow the words of Justice Gorsuch in Wooden v. U.S., “where uncertainty exists, the law gives way to liberty.”

Avi Siegal is a 3L at Yale Law School. He thanks Ben Keener for thoughtful feedback on a draft of this piece.