“Sooner or later, all our games turn into Calvinball,” Calvin once said of textualism and originalism.

Actually, he was talking about a football game gone off the rails, but the sentiment fits right-wing legal philosophy just as well. Justice Ketanji Brown Jackson has now made sure to enshrine this comparison for future generations, including it in yesterday’s dissenting opinion in National Institutes of Health v. American Public Health Assn.

For those who missed the cultural reference because their childhood was crushed under Ayn Rand book reports, Calvinball was a recurring game in the iconic Calvin & Hobbes comic strip with no fixed rules other than the rules can never be the same twice. Bill Watterson invented the game as satire. The Federalist Society took it as a guiding philosophy.

Between me and Liz Dye, Above the Law has referred to late stage conservative jurisprudence as “Calvinball” at least eight times and a number of other publications have also used the term. It’s a powerful distillation of the mentality behind any juridical approach that respects precedent… until it doesn’t. Sticks strictly to the text… until it doesn’t. Or privileges ideas “deeply rooted in the nation’s history and tradition”… until it doesn’t.

Calvin’s invention of “The Corollary Zone” is right at home with the Roberts Court trying to explain why Trump can fire every tangentially executive officer except the Chair of the Federal Reserve (officially the noli incursum etiam nostri stock portfolios canon, in the original Latin).

It’s one thing for outside analysts to brand right-wing jurists as pre-pubescent boys making up rules with their imaginary friends (“the Framers”), but another to see it in the official reporter:

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. Id., at _ (JACKSON, J., dissenting) (slip op., at 21). 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.

The NIH decisions — there were two issues here and that will be important later — were another “shadow docket” special. The NIH has pulled a number of scientific grants since the Trump administration launched. Some were justified as “anti-DEI,” others for “gender ideology” and others because RFK Jr. wants to replace medicine with crystals and acai berries.

All of these moves scream “arbitrary and capricious” — the standard under the Administrative Procedure Act that prevents the government from issuing sweeping changes scribbled on the back of a cocktail napkin based on something Greg Gutfeld said while trying to reclaim the word “Nazi” among friends. But Brett Kavanaugh said “hold my beer” and then disagreed on the grounds of… well, he couldn’t really say but he assured us that it was “for reasons that the Government persuasively explained in its application to this Court,” before citing a string of non-sequiturs about the government not having to explicitly define “DEI” before wildly slashing research focused on preventing HIV among Black people. Meanwhile, Gorsuch huffed and puffed that “Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them,” by citing Dept of Ed. v. California, which WAS ITSELF A SHADOW DOCKET EMERGENCY APPLICATION, adding a whole other layer to the Calvinball analogy. As Jackson notes in her opinion, “As it turns out, the Court’s decision was an even bigger mistake than I realized…. That case’s ipse dixit now apparently governs all APA challenges to grant-funding determinations that the Government asks us to address in the context of an emergency stay application.”

What Jackson didn’t realize is that the California order is binding precedent because Gorsuch wore a mask that inning!

Five justices decided that the NIH cuts already made can go forward (to, maybe, eventually get challenged in the Court of Federal Claims), while five decided that the underlying stay barring the government from making more of these cuts remains. Amy Coney Barrett flip-flopped between these inseparable positions by living on her own private administrative law island where a plaintiff has to go to two different courts — “sequentially rather than simultaneously” — to first get a ruling that the cut was arbitrary and capricious and then a ruling from the other court that the cut should be reversed based on that.

Chief Justice Roberts wrote separately to point out that Barrett’s logic was — to paraphrase with the technical legal terminology — stupid.

And if the District Court had jurisdiction to vacate the directives, it also had jurisdiction to vacate the “Resulting Grant Terminations.”

Obviously. Yet, we’re in this boat because Roberts has let this court bless executive orders issued with all the coherence of a drunk improv troupe. When Jackson writes that the other rule of GOP jurisprudence is “and this Administration always wins,” it’s particularly biting because at least Hobbes occasionally got one over on Calvin.

Jackson concludes:

The approach the Court adopts today (which, again, no party advocated for) neither coheres legally nor operates practically. So, unfortunately, this newest entry in the Court’s quest to make way for the Executive Branch has real consequences, for the law and for the public. Fortunately, at least for the law, this order is not the last word, as it is not “conclusive as to the merits.”

Alas, as she already noted when addressing the California issue, her colleagues respect that these orders are not conclusive as to the merits… until they don’t. Calvinball. All the way down. And unlike the comic strip, there’s no punchline here — just real medical breakthroughs slipping down the drain to own the libs.

(Check out the opinions on the next page…)

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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