Last month, Justice Ketanji Brown Jackson dropped an inflammatory allegation on most of her colleagues.
On August 21, the Supreme Court handed down a baffling order that required researchers to navigate a convoluted procedural maze in two different courts in order to restore federal grants that they claim the Trump administration illegally cut off. Jackson labeled this decision “Calvinball jurisprudence with a twist.” Calvinball, an everchanging game featured in the comic strip Calvin and Hobbes, “has only one rule: There are no fixed rules.”
In this Court, Jackson continued, there are two: The rules always change, and “this Administration always wins.”
Under the Versailles-like norms that constrain lawyers and judges, this kind of allegation is simply verboten. While Jackson’s Democratic colleagues often criticize the Court’s decisions, they frequently go out of their way to say that all of the justices “are operating in good faith.” Law students are trained to never suggest that a judge acted for partisan reasons, largely because judges take great umbrage at this allegation. And there is real danger in Jackson’s decision to speak of her Republican colleagues as if they are Republicans.
Reasonable minds can disagree about whether Jackson’s “Calvinball” accusation was a wise way to navigate the Court’s internal politics, but it’s tough to argue with her conclusion. She is talking, after all, about the same Court that held that President Donald Trump is allowed to commit crimes.
The Court’s Republican majority now hands Trump several victories every month, only explaining themselves when they feel like it. When they do explain those decisions, they are often incomprehensible. The Republican justices exempt Trump from rules that apply to every other litigant, including the most recent Democratic president. Their decision permitting Trump to commit crimes doesn’t even attempt to argue that presidential immunity can be found in the Constitution, instead making a policy argument that Trump should not be chilled from taking “bold and unhesitating action” for fear of prosecution.
Nor is Trump the only litigant who receives this Court’s special treatment. The Republican justices favor religious conservatives so much that they will make up fake facts to bolster Christian conservative litigants. Meanwhile, they hate abortion providers so much that they once handed down an anti-abortion decision that, if taken seriously, would permit every state to neutralize any constitutional right.
If any other government official behaved this way, it would be obvious they were placing partisanship ahead of the law. It is no less obvious when these six specific government officials do so. The most reasonable explanation for the Republican justices’ behavior is that they are acting in bad faith.
Some of their decisions are individually defensible. Hell, I’ve defended some of them. The Court frequently faces legal questions that are unclear, and often, the justices simply have to choose between multiple acceptable outcomes.
But the crushing weight of all of these decisions put together should speak for itself. When Trump goes 16 for 16 on the shadow docket, which he has, in whole or in part, in his past 16 petitions there; when the Court invents entire legal doctrines, like the “major questions doctrine," to spite Joe Biden; when it applies one set of rules to Democrats and another to Republicans; or when it puts off important legal questions for years until resolving them will benefit a Republican president, those decisions cannot be explained, because judges are sometimes forced to choose among multiple acceptable options. When there is ambiguity in the law, the Republican justices resolve it in favor of Republicans. And when there is no ambiguity in the law, the Republican justices often make something up so they can rule in favor of Republicans anyway.
It is getting harder and harder to take an honest look at the Supreme Court’s recent behavior without reaching the same conclusion that Justice Jackson reached. The Republican justices are playing Calvinball. They aren’t making a serious effort to apply the law in a fair and consistent way.
