U.S. Supreme Court
Justice Jackson accuses Supreme Court majority of playing Calvinball
U.S. Supreme Court Justice Ketanji Brown Jackson attends inauguration ceremonies in the Rotunda of the U.S. Capitol on Jan. 20 in Washington, D.C. (Photo by Chip Somodevilla/Getty Images)
A partial dissent last week by U.S. Supreme Court Justice Ketanji Brown Jackson is attracting attention for her reference to a game that made a recurring appearance in the comic strip Calvin and Hobbes.
The game was Calvinball, which had only one rule—that the rules can never be the same twice, Above the Law explains. Judicial Notice also mentioned Jackson’s Aug. 21 opinion, which criticized the majority’s order allowing the National Institutes of Health to end $783 million in grants for research related to diversity objectives, gender identity and COVID-19.
“This is Calvinball jurisprudence with a twist,” Jackson wrote. “Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this administration always wins.”
Jackson issued the opinion in an emergency docket case in which a five-justice majority stayed a decision by U.S. District Judge William Young that required continuation of the funding. The Supreme Court did not, however, pause Young’s decision vacating NIH internal guidance documents. Young had said the NIH decisions were “breathtakingly arbitrary and capricious” in violation of the Administrative Procedure Act.
SCOTUSblog and Reuters are among the publications with coverage of the decision.
Justice Amy Coney Barrett was the deciding vote. She agreed with four other conservative justices that Young likely didn’t have jurisdiction to consider the grant terminations because the issue should be decided by the U.S. Court of Federal Claims. She cited another emergency docket decision, U.S. Department of Education v. California.
But Barrett believed Young was likely correct that he had jurisdiction to consider the challenge to internal agency guidance.
Chief Justice John Roberts wrote a partial dissent, joined by the court’s liberal justices. He said Young had jurisdiction to vacate the agency guidance and, as a result, he also had jurisdiction to vacate the grant terminations that stemmed from the guidance.
The case is National Institutes of Health v. American Public Health Association.
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