Justice Jackson accuses Supreme Court majority of playing Calvinball

""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."

A five-justice Supreme Court majority stayed a district court order that had required continuation of $783 million in NIH research funding tied to diversity objectives, gender identity and COVID-19. The Court did not pause the district judge's vacatur of internal NIH guidance documents. The district judge described the NIH decisions as "breathtakingly arbitrary and capricious" under the Administrative Procedure Act. The deciding vote was Justice Amy Coney Barrett, who agreed the district judge likely lacked jurisdiction over grant terminations but acknowledged he likely had jurisdiction to challenge the internal guidance. The ruling split the Court and prompted a partial dissent invoking 'Calvinball.'

Read at ABA Journal