{"id":131921,"date":"2025-08-24T15:56:04","date_gmt":"2025-08-24T23:56:04","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/08\/24\/supreme-court-just-calvinball-jurisprudence-with-a-twist-writes-justice-jackson\/"},"modified":"2025-08-24T15:56:04","modified_gmt":"2025-08-24T23:56:04","slug":"supreme-court-just-calvinball-jurisprudence-with-a-twist-writes-justice-jackson","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/08\/24\/supreme-court-just-calvinball-jurisprudence-with-a-twist-writes-justice-jackson\/","title":{"rendered":"Supreme Court Just \u2018Calvinball Jurisprudence With A Twist,\u2019 Writes Justice Jackson"},"content":{"rendered":"
\"\"
<\/figcaption><\/figure>\n

\u201cSooner or later, all our games turn into Calvinball,\u201d Calvin once said of textualism and originalism. <\/p>\n

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\u2019s dissenting opinion in National Institutes of Health v. American Public Health Assn.<\/a><\/em><\/p>\n

For those who missed the cultural reference because their childhood was crushed under Ayn Rand book reports, Calvinball<\/em> was a recurring game in the iconic Calvin & Hobbes<\/em> 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.<\/p>\n

Between me and Liz Dye, Above the Law<\/em> has referred to late stage conservative jurisprudence as \u201cCalvinball\u201d at least eight times and a number of other publications have also used the term. It\u2019s a powerful distillation of the mentality behind any juridical approach that respects precedent\u2026 until it doesn\u2019t<\/a>. Sticks strictly to the text\u2026 until it doesn\u2019t<\/a>. Or privileges ideas \u201cdeeply rooted in the nation\u2019s history and tradition\u201d\u2026 until it doesn\u2019t<\/a>.<\/p>\n

Calvin\u2019s invention of \u201cThe Corollary Zone\u201d 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<\/a> (officially the noli incursum etiam nostri stock portfolios<\/em> canon, in the original Latin).<\/p>\n

It\u2019s one thing for outside analysts to brand right-wing jurists as pre-pubescent boys making up rules with their imaginary friends (\u201cthe Framers\u201d), but another to see it in the official reporter:<\/p>\n

\n

In a broader sense, however, today\u2019s ruling is of a piece with this Court\u2019s recent tendencies. \u201c[R]ight when the Judiciary should be hunkering down to do all it can to preserve the law\u2019s constraints,\u201d the Court opts instead to make vindicating the rule of law and preventing manifestly injurious Government action as difficult as possible. Id., at _<\/em> (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.<\/p>\n<\/blockquote>\n

The NIH<\/em> decisions \u2014 there were two issues here and that will be important later \u2014 were another \u201cshadow docket\u201d special. The NIH has pulled a number of scientific grants since the Trump administration launched. Some were justified as \u201canti-DEI,\u201d others for \u201cgender ideology\u201d and others because RFK Jr. wants to replace medicine with crystals and acai berries. <\/p>\n

All of these moves scream \u201carbitrary and capricious\u201d \u2014 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 \u201cNazi\u201d among friends<\/a>. But Brett Kavanaugh said \u201chold my beer\u201d and then disagreed on the grounds of\u2026 well, he couldn\u2019t really say but he assured us that it was \u201cfor reasons that the Government persuasively explained in its application to this Court,\u201d before citing a string of non-sequiturs about the government not having to explicitly define \u201cDEI\u201d before wildly slashing research focused on preventing HIV among Black people.<\/a> Meanwhile, Gorsuch huffed and puffed that \u201cLower court judges may sometimes disagree with this Court\u2019s decisions, but they are never free to defy them,\u201d by citing Dept of Ed. v. California<\/em>, which WAS ITSELF A SHADOW DOCKET EMERGENCY APPLICATION, adding a whole other layer to the Calvinball analogy. As Jackson notes in her opinion, \u201cAs it turns out, the Court\u2019s decision was an even bigger mistake than I realized\u2026. That case\u2019s 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.\u201d<\/p>\n

What Jackson didn\u2019t realize is that the California<\/em> order is binding precedent because Gorsuch wore a mask that inning!<\/p>\n

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 \u2014 \u201csequentially rather than simultaneously\u201d \u2014 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. <\/p>\n

Chief Justice Roberts wrote separately to point out that Barrett\u2019s logic was \u2014 to paraphrase with the technical legal terminology \u2014 stupid.<\/p>\n

\n

And if the District Court had jurisdiction to vacate the directives, it also had jurisdiction to vacate the \u201cResulting Grant Terminations.\u201d<\/p>\n<\/blockquote>\n

Obviously. Yet, we\u2019re 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 \u201cand this Administration always wins,\u201d it\u2019s particularly biting because at least Hobbes occasionally got one over on Calvin. <\/p>\n

Jackson concludes:<\/p>\n

\n

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\u2019s 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 \u201cconclusive as to the merits.\u201d<\/p>\n<\/blockquote>\n

Alas, as she already noted when addressing the California<\/em> issue, her colleagues respect that these orders are not conclusive as to the merits\u2026 until they don\u2019t. Calvinball. All the way down. And unlike the comic strip, there\u2019s no punchline here \u2014 just real medical breakthroughs slipping down the drain to own the libs.<\/p>\n

(Check out the opinions on the next page\u2026)<\/em><\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n<\/p>\n

The post Supreme Court Just \u2018Calvinball Jurisprudence With A Twist,\u2019 Writes Justice Jackson<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"
<\/figcaption><\/figure>\n

\u201cSooner or later, all our games turn into Calvinball,\u201d Calvin once said of textualism and originalism. <\/p>\n

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\u2019s dissenting opinion in National Institutes of Health v. American Public Health Assn.<\/a><\/em><\/p>\n

For those who missed the cultural reference because their childhood was crushed under Ayn Rand book reports, Calvinball<\/em> was a recurring game in the iconic Calvin & Hobbes<\/em> 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.<\/p>\n

Between me and Liz Dye, Above the Law<\/em> has referred to late stage conservative jurisprudence as \u201cCalvinball\u201d at least eight times and a number of other publications have also used the term. It\u2019s a powerful distillation of the mentality behind any juridical approach that respects precedent\u2026 until it doesn\u2019t<\/a>. Sticks strictly to the text\u2026 until it doesn\u2019t<\/a>. Or privileges ideas \u201cdeeply rooted in the nation\u2019s history and tradition\u201d\u2026 until it doesn\u2019t<\/a>.<\/p>\n

Calvin\u2019s invention of \u201cThe Corollary Zone\u201d 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<\/a> (officially the noli incursum etiam nostri stock portfolios<\/em> canon, in the original Latin).<\/p>\n

It\u2019s one thing for outside analysts to brand right-wing jurists as pre-pubescent boys making up rules with their imaginary friends (\u201cthe Framers\u201d), but another to see it in the official reporter:<\/p>\n

\n

In a broader sense, however, today\u2019s ruling is of a piece with this Court\u2019s recent tendencies. \u201c[R]ight when the Judiciary should be hunkering down to do all it can to preserve the law\u2019s constraints,\u201d the Court opts instead to make vindicating the rule of law and preventing manifestly injurious Government action as difficult as possible. Id., at _<\/em> (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.<\/p>\n<\/blockquote>\n

The NIH<\/em> decisions \u2014 there were two issues here and that will be important later \u2014 were another \u201cshadow docket\u201d special. The NIH has pulled a number of scientific grants since the Trump administration launched. Some were justified as \u201canti-DEI,\u201d others for \u201cgender ideology\u201d and others because RFK Jr. wants to replace medicine with crystals and acai berries. <\/p>\n

All of these moves scream \u201carbitrary and capricious\u201d \u2014 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 \u201cNazi\u201d among friends<\/a>. But Brett Kavanaugh said \u201chold my beer\u201d and then disagreed on the grounds of\u2026 well, he couldn\u2019t really say but he assured us that it was \u201cfor reasons that the Government persuasively explained in its application to this Court,\u201d before citing a string of non-sequiturs about the government not having to explicitly define \u201cDEI\u201d before wildly slashing research focused on preventing HIV among Black people.<\/a> Meanwhile, Gorsuch huffed and puffed that \u201cLower court judges may sometimes disagree with this Court\u2019s decisions, but they are never free to defy them,\u201d by citing Dept of Ed. v. California<\/em>, which WAS ITSELF A SHADOW DOCKET EMERGENCY APPLICATION, adding a whole other layer to the Calvinball analogy. As Jackson notes in her opinion, \u201cAs it turns out, the Court\u2019s decision was an even bigger mistake than I realized\u2026. That case\u2019s 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.\u201d<\/p>\n

What Jackson didn\u2019t realize is that the California<\/em> order is binding precedent because Gorsuch wore a mask that inning!<\/p>\n

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 \u2014 \u201csequentially rather than simultaneously\u201d \u2014 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. <\/p>\n

Chief Justice Roberts wrote separately to point out that Barrett\u2019s logic was \u2014 to paraphrase with the technical legal terminology \u2014 stupid.<\/p>\n

\n

And if the District Court had jurisdiction to vacate the directives, it also had jurisdiction to vacate the \u201cResulting Grant Terminations.\u201d<\/p>\n<\/blockquote>\n

Obviously. Yet, we\u2019re 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 \u201cand this Administration always wins,\u201d it\u2019s particularly biting because at least Hobbes occasionally got one over on Calvin. <\/p>\n

Jackson concludes:<\/p>\n

\n

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\u2019s 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 \u201cconclusive as to the merits.\u201d<\/p>\n<\/blockquote>\n

Alas, as she already noted when addressing the California<\/em> issue, her colleagues respect that these orders are not conclusive as to the merits\u2026 until they don\u2019t. Calvinball. All the way down. And unlike the comic strip, there\u2019s no punchline here \u2014 just real medical breakthroughs slipping down the drain to own the libs.<\/p>\n

(Check out the opinions on the next page\u2026)<\/em><\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n<\/p>\n

The post Supreme Court Just \u2018Calvinball Jurisprudence With A Twist,\u2019 Writes Justice Jackson<\/a> appeared first on Above the Law<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

\u201cSooner or later, all our games turn into Calvinball,\u201d 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 […]<\/p>\n","protected":false},"author":3,"featured_media":131865,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-131921","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/08\/Headshot-300x200-WLHXBP.jpg?fit=300%2C200&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/131921","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=131921"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/131921\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/131865"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=131921"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=131921"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=131921"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}