Ketanji Brown Jackson Slams Conservative Justices As Partisan Hacks

Supreme Court justices routinely trade barbs in their opinions and dissents, but it’s pretty rare for a sitting justice to plainly state that their colleagues are merely a bunch of partisan hacks. But that’s essentially what Justice Ketanji Brown Jackson did in her dissent in a case about President Donald Trump’s cancellation of National Institutes of Health grants.

The court’s split decision in National Institutes of Health v. American Public Health Association on Thursday focused on whether the association, 16 states and other plaintiffs could challenge Trump’s cancellation of the grants as “arbitrary and capricious” under the Administrative Procedure Act, the law governing how executive branch agencies may take actions.

Five conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — issued an opinion on the emergency docket, without argument, that the plaintiffs can’t bring a challenge to restore the cancelled funding in federal district court, but rather must file suit in the Court of Federal Claims as a claim for monetary damages. Meanwhile, five justices — John Roberts, Sonia Sotomayor, Elena Kagan, Barrett and Jackson — ruled that claims challenging agency action under the APA can be brought in district courts.

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The conservative majority’s decision to kick grant cancellation challenges to claims courts amounts to a “bizarre claim-splitting regime” that “neuters judicial review of grant terminations by sending plaintiffs on a likely futile, multivenue quest for complete relief,” Jackson, who was nominated by former President Joe Biden, wrote in her dissent. The conservative justices, she added, turn “a nearly century-old statute aimed at remedying unreasoned agency decisionmaking into a gauntlet rather than a refuge.”

There was no clear reason for the court to rule this way. But it is of a piece with recent decisions by the court’s conservatives helping the Trump administration in cases involving extraordinary claims of executive power by forcing plaintiffs to go through newly invented labyrinthine judicial procedures to obtain relief. Jackson was unsparing in pointing this out.

“In a broader sense, however, today’s ruling is of a piece with this Court’s recent tendencies. “‘[R]ight when the Judiciary should be hunkering down to do all it can to preserve the law’s constraints,’ the Court opts instead to make vindicating the rule of law and preventing manifestly injurious Government action as difficult as possible,” Jackson writes. “This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins.”

Calvinball is a game played in the comic strip “Calvin & Hobbes” where the only rule is that the players make up the rules as they go, and Jackson pretty explicitly pins her conservative colleagues as mere partisan hacks making up law to help a president from the same party as them.

This “Calvinball jurisprudence” has been the signature style of opinions of the Roberts Court during Trump’s second term. In CASA v. Trump, the birthright citizenship case, the conservatives forbid district courts from issuing nationwide injunctions, thus requiring plaintiffs to go back and file class-action claims, which a handful of the conservatives said shouldn’t be available either. In J.G.G. v. Trump, the court did rule that the Trump administration must provide due process to immigrants detained under the Alien Enemies Act, but required those immigrants to exercise their due process rights individually through writs of habeas corpus.

The conservative justices have also used the emergency, or shadow, docket to enable numerous Trump administration policies to go into effect while district or appeals court cases continue despite their being largely irreversible were plaintiffs to win. These include Trump’s purging of the federal civil service, decertification of federal government unions and firing of multimember agency officials.

While some of these cases, as in J.G.G. and CASA, did leave opportunities for plaintiffs to eventually gain relief, albeit after running through a maze of courts, Jackson argues that the court’s mangled decision in the NIH case does not allow schools, states, researchers, scientists and health care providers any such method.

By splitting “grant terminations from review of the grant termination policy,” the court’s decision creates “the mirage of judicial review while eliminating its purpose: to remedy harms,” Jackson writes.

It does this by enabling federal courts to rule on APA challenges that a grant cancellation is “arbitrary and capricious,” but does not allow that court to reinstate those canceled grants. Instead, plaintiffs must file such claims in the Court of Federal Claims. But the claims courts can only award monetary damages in cases where grant contracts are broken. The plaintiffs in this case, however, aren’t seeking monetary damages, they are claiming that the administration violated its statutory authority and the canceled grants should be restored. Therefore, it seems entirely likely that plaintiffs cannot win the relief they seek.

“After today’s order, how are plaintiffs like these — federal grantees who believe their grants were terminated pursuant to an unlawful policy — to get complete relief?” Jackson writes. “The Court does not say. The answer, it seems, is they cannot.”

What the conservatives have created here is a system of judicial review where the plaintiffs may be able to stop future cancellations of grants for non-plaintiffs, but cannot get their already canceled grants restored. This, Jackson notes, is the exact opposite of how courts are supposed to rule on cases: “Not so long ago, the Court insisted that ‘the party-specific principles that permeate our understanding of equity’ instruct courts to award ‘complete relief’ to plaintiffs and no relief to nonplaintiffs.”

To be more blunt, the conservatives are authorizing Trump’s cancellation of hundreds of millions of dollars in grants for scientific and health research.

And they are doing this despite there being no need to rule in this case. Jackson is unsparing in criticizing the conservative majority for choosing to rule here. She specifically singles out Kavanaugh’s insistence that, “We have to decide the application.”

“JUSTICE KAVANAUGH’s suggestion that the Court has no choice but to decide the parties’ relative interim status when an emergency application asks us to do so … comes from nowhere; no rule of Supreme Court procedure supports it,” Jackson writes. “What is more, casting our role as compulsory when it comes to applications of this sort contradicts decades of practice.”

The court’s Calvinball jurisprudence will have grim consequences, Jackson notes: “the forward march of scientific discovery will not only be halted — it will be reversed.” That’s what happens when you make up the rules as you go to help your side win.