{"id":132136,"date":"2025-08-27T15:36:29","date_gmt":"2025-08-27T23:36:29","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/08\/27\/jonathan-turley-challenges-justice-jackson-to-calvinball-in-most-embarrassing-display-yet\/"},"modified":"2025-08-27T15:36:29","modified_gmt":"2025-08-27T23:36:29","slug":"jonathan-turley-challenges-justice-jackson-to-calvinball-in-most-embarrassing-display-yet","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/08\/27\/jonathan-turley-challenges-justice-jackson-to-calvinball-in-most-embarrassing-display-yet\/","title":{"rendered":"Jonathan Turley Challenges Justice Jackson To Calvinball In Most Embarrassing Display Yet"},"content":{"rendered":"<p>Justice Jackson recently called out the conservative majority of the Supreme Court specifically \u2014 and GOP jurisprudence generally \u2014 as \u201c<a href=\"https:\/\/abovethelaw.com\/2025\/08\/supreme-court-just-calvinball-jurisprudence-with-a-twist-writes-justice-jackson\/\" rel=\"nofollow noopener\" target=\"_blank\">Calvinball jurisprudence with a twist<\/a>.\u201d Citing the fictional sport from the watershed comic strip Calvin &amp; Hobbes, Jackson wrote \u201cCalvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins.\u201d As a dissent in yet another shadow docket decision allowing the administration to take arbitrary and capricious action free from the constraints of either statute or judicial oversight, the Calvinball analogy hit home. Neil Gorsuch even did Jackson a solid! Writing separately to admonish lower courts for <em>defying<\/em> the Supreme Court when they don\u2019t convert shadow docket temporary relief into controlling precedent \u2014 a brand-new, never-before-considered rule that doesn\u2019t even make sense in the context of the emergency docket \u2014 Gorsuch took the Calvinball charge to whole new levels.<\/p>\n<p>With conservatives needing some quasi-scholarly cover after Jackson\u2019s withering critique, GWU Law professor and MAGA pullstring toy Jonathan Turley gave himself a half-assed crash course in Calvin &amp; Hobbes lore and <a href=\"https:\/\/jonathanturley.org\/2025\/08\/25\/the-judicial-calvinball-of-justice-ketanji-brown-jackson\/\" rel=\"nofollow noopener\" target=\"_blank\">delivered his retort with a bumbling thud<\/a>.<\/p>\n<p>Turley could\u2019ve written \u201cno, you are!\u201d without sacrificing intellectual heft. It\u2019s an embarrassing gaslighting effort, which is saying a lot when we\u2019re talking about Turley.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>Take\u00a0<a href=\"https:\/\/www.usatoday.com\/story\/news\/politics\/2025\/06\/20\/supreme-court-americans-with-disabilities-act-firefighter\/78415013007\/\" target=\"_blank\" rel=\"noreferrer noopener nofollow\">Stanley v. City of Sanford<\/a>. Justices Jackson and\u00a0<a href=\"https:\/\/thehill.com\/people\/neil-gorsuch\/\" rel=\"nofollow noopener\" target=\"_blank\">Neil Gorsuch\u00a0<\/a>took some fierce swings at each other in\u00a0a case concerning a retired firefighter who wants to sue her former employer. The majority, including Kagan, rejected a ridiculous claim from a Florida firefighter who sued for discrimination for a position that she had neither held nor sought. The court ruled that the language of the statute clearly required plaintiffs to be \u201cqualified\u201d for a given position before they could claim to have been denied it due to discrimination. (Stanley has\u00a0<a href=\"https:\/\/en.wikipedia.org\/wiki\/Parkinson%27s_disease\" target=\"_blank\" rel=\"noreferrer noopener nofollow\">Parkinson\u2019s disease<\/a>\u00a0and had taken a disability retirement at age 47 due to the progress of the disease.)<\/p>\n<p>Jackson, however, was irate that Stanley could not sue for the denial of a position that she never sought, held, or was qualified to perform.<\/p>\n<\/blockquote>\n<p>This description is shockingly disingenuous. When Turley says \u201ca position that she had neither held nor sought,\u201d he means \u201cthe job she had performed until forced into retirement by disability.\u201d Even though his own paragraph clearly indicates that the plaintiff was a firefighter who later had to resign, he goes to great lengths to sandwich it in rhetoric that suggests the plaintiff walked in off the street claiming that she should get firefighter money without being able to do the job. Here in the real world, the plaintiff served as a firefighter for the city for years, having taken the job with the understanding that her health insurance premiums would be subsidized until she turned 65 if she served 25 years or <em>had to retire due to disability<\/em>. When she left the department, the city said it had decided to change the rules and wouldn\u2019t pay the subsidy for a disabled firefighter. By \u201cneither held nor sought,\u201d he means \u201cretired,\u201d and imposing that standard renders it impossible to ever challenge retirement benefits discrimination, because linear time would suggest that the plaintiff <em>would be retired<\/em>.<\/p>\n<p>The majority\u2019s argument is that when the Americans with Disabilities Act outlawed employment discrimination against individuals with a disability, Congress intended that protection to stop the moment the person retired, even if retirement benefits were part of the employment. Jackson contended that the law is not such an ass. <\/p>\n<p>Turley, by contrast, is exactly such an ass.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>Gorsuch called Jackson out for once again ignoring the text of federal laws in order to secure the result she preferred in a given case. In other words, Jackson was playing Calvinball with the law.<\/p>\n<\/blockquote>\n<p>\u201cIn other words\u201d glosses over the part where <a href=\"https:\/\/abovethelaw.com\/2025\/06\/neil-gorsuch-starts-some-supreme-court-drama-ketanji-brown-jackson-ends-it\/\" rel=\"nofollow noopener\" target=\"_blank\">Jackson dropped a goddamned anvil on Gorsuch<\/a>, writing a footnote explaining how, in this case in particular, his attempt to read the text in a vacuum transformed the clear intent of Congress into a legislative ransom note \u2014 one word cut out of here, another cut out of there:<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>The majority\u2019s contention that I reject \u201c \u2018pure textualism\u2019 [a]s insufficiently pliable to secure the result [I] seek,\u201d ante, at 10, stems from an<br \/>unfortunate misunderstanding of the judicial role. Our interpretative task is not to seek our own desired results (whatever they may be). And, indeed, it is precisely because of this solemn duty that, in my view, it is imperative that we interpret statutes consistent with all relevant indicia of what Congress wanted, as best we can ascertain its intent. A methodology that includes consideration of Congress\u2019s aims does exactly that\u2014 and no more. By contrast, pure textualism\u2019s refusal to try to understand the text of a statute in the larger context of what Congress sought to achieve turns the interpretive task into a potent weapon for advancing judicial policy preferences. By \u201cfinding\u201d answers in ambiguous text, and not bothering to consider whether those answers align with other sources of statutory meaning, pure textualists can easily disguise their own preferences as \u201ctextual\u201d inevitabilities. So, really, far from being \u201cinsufficiently pliable,\u201d I think pure textualism is incessantly malleable\u2014that\u2019s its primary problem\u2014and, indeed, it is certainly somehow always flexible enough to secure the majority\u2019s desired outcome.<\/p>\n<\/blockquote>\n<p>Turley doesn\u2019t address this footnote because that would overly tax the hamster frantically spinning its wheel in his head, egged on by the ever-present promise of a MAGA branded carrot just a tad out of reach.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>Jackson, undeterred, has continued these diatribes, with escalating and insulting rhetoric.<\/p>\n<\/blockquote>\n<p>So much bullshit packed into such a short sentence. I presume he went with \u201cundeterred\u201d because an editor found \u201c<a href=\"https:\/\/en.wikipedia.org\/wiki\/Nevertheless,_she_persisted\" rel=\"nofollow noopener\" target=\"_blank\">nevertheless she persisted<\/a>\u201d too on the nose as a dog whistle. Why would she be deterred? Why is that a duty incumbent upon her? Turley cites \u201cescalating and insulting rhetoric,\u201d as though the dissent isn\u2019t directly responding to Gorsuch writing a concurrence to his own opinion just to hurl more baseless invective at Jackson. But her rhetoric is \u201cinsulting,\u201d while his rhetoric is just absent from Turley\u2019s account.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>In Trump v. CASA, the court sought to rein in district courts issuing sweeping injunctions over the Executive Branch. Jackson went ballistic in her dissent, which neither Sotomayor nor Kagan would join.<\/p>\n<\/blockquote>\n<p>Accurate, though a bit misleading. <a href=\"https:\/\/abovethelaw.com\/2025\/06\/john-roberts-wants-america-to-understand-that-he-does-not-care\/\" rel=\"nofollow noopener\" target=\"_blank\">All three agreed in the case<\/a>, Jackson wrote a separate opinion grounded in her repeated defense of the power of district courts as the judges closest to the facts \u2014 near and dear to her since she was a district judge comparatively recently. Her spin on the rule of law claims advanced in Sotomayor\u2019s opinion was that if a district judge can\u2019t issue a nationwide injunction, it practically constrains the judiciary\u2019s role in the checks and balances regime. Whether you buy that argument or not, it\u2019s an idiosyncratic Jackson issue so it\u2019s not wild that she wrote separately.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>This is where Justice\u00a0<a href=\"https:\/\/thehill.com\/people\/amy-coney-barrett\/\" rel=\"nofollow noopener\" target=\"_blank\">Amy Coney Barrett\u00a0<\/a>reached a breaking point, unleashing on Jackson in an opinion notably joined by her colleagues. Barrett noted that Jackson was describing \u201ca vision of the judicial role that would make even the most ardent defender of judicial supremacy blush.\u201d She added: \u201cWe will not dwell on Justice Jackson\u2019s argument, which is at odds with more than two centuries\u2019 worth of precedent, not to mention the Constitution itself. We observe only this: Justice Jackson decries an imperial executive while embracing an imperial judiciary.\u201d<\/p>\n<\/blockquote>\n<p>Barrett dismissively wrote that \u201cwe will not dwell on Justice Jackson\u2019s argument,\u201d a preemptive attempt to <a href=\"https:\/\/abovethelaw.com\/2025\/06\/john-roberts-wants-america-to-understand-that-he-does-not-care\/\" rel=\"nofollow noopener\" target=\"_blank\">explain away the shoddy argumentation that followed<\/a> as the byproduct of not needing to engage it deeply. It\u2019s the judicial equivalent of \u201csent from my iPhone, please excuse any typos.\u201d It\u2019s also more directly \u201cinsulting\u201d than anything Turley pins on Jackson in his whole piece. Barrett is taking a swipe, at a dissent \u2014 by name \u2014 and implying that Jackson\u2019s input barely warrants mentioning. Of course, this is the hit dog hollering. The reason Barrett takes the time to lash out at a dissent \u2014 a lone dissent, as Turley would point out \u2014 is precisely because it has the majority\u2019s number. <\/p>\n<p>As far as substance goes, Barrett\u2019s only warrant for dismissing Jackson\u2019s claim is empty sophistry. The only time she sniffs at a supported argument is when she asserts Jackson\u2019s claim is \u201cat odds with more than two centuries\u2019 worth of precedent, not to mention the Constitution itself\u201d without bothering to cite any of those sources. In the next paragraph she cites, comically, <em>Marbury v. Madison<\/em> as the basis of a restrained judiciary and never breaths on the century of injunctions that the Supreme Court has routinely supported.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>That is a slightly fancier way of describing Calvinball.<\/p>\n<\/blockquote>\n<p>The fact that Turley has to end every one of these examples by saying, \u201cand this is Calvinball\u201d is sort of a dead giveaway. Show, don\u2019t tell, bro.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>Jackson has also been criticized for making\u00a0<a href=\"https:\/\/jonathanturley.org\/2023\/07\/07\/crunching-the-numbers-does-justice-jacksons-dissent-on-affirmative-action-not-add-up\/\" target=\"_blank\" rel=\"noreferrer noopener nofollow\">dubious or sensational claims<\/a>, as in her opinion supporting affirmative action in higher education.<\/p>\n<\/blockquote>\n<p>This comes from a Wall Street Journal opinion column that challenged Jackson\u2019s claim that \u201cFor high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.\u201d In a laugh out loud moment, the Journal article responded, \u201cImagine if 40% of black newborns died\u2014thousands of dead infants every week. But even so, that\u2019s a 60% survival rate, which is mathematically impossible to double.\u201d Yeah, if you make up numbers you can do all sorts of stuff. But, going with the real numbers, Black infant mortality is around 894 per 100,000 births \u2014 or .8% \u2014 and when tended to by a Black doctor, the mortality rate, as compared to white newborns, <a href=\"https:\/\/www.pnas.org\/doi\/10.1073\/pnas.1913405117\" rel=\"nofollow noopener\" target=\"_blank\">decreases by 58 percent<\/a>. Or, inverting that, the survivability more than doubles. There could be good arguments against this research, but, \u201cderp, you can\u2019t double 60%\u201d is not\u2026 any of them.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>Jackson\u2019s jurisprudence is the very model of a judiciary untethered from constitutional or institutional restraints. Not surprisingly, she is lionized in law schools for her rejection of judicial restraint and her pursuit of progressive outcomes. Yet, her approach is becoming increasingly lawless.<\/p>\n<\/blockquote>\n<p>To recap, his support for her increasing lawlessness is the argument that Congress didn\u2019t intend the ADA to become void once someone retires, the judiciary has long approved of nationwide injunctions and a blanket disavowal of the practice undermines the role of courts as a check and balance, and she cited scholarly research showing a 58% decrease in mortality as a more than double increase in survivability. Along the way he cited Gorsuch playing textual Mad Libs, Barrett trying to tear down Jackson\u2019s argument and only mustering a \u201cnuh-uh,\u201d and a right-wing editorial section column making up numbers.<\/p>\n<p>Seems as though Jackson might have been right about Calvinball the first time. <\/p>\n<p><a href=\"https:\/\/jonathanturley.org\/2025\/08\/25\/the-judicial-calvinball-of-justice-ketanji-brown-jackson\/\" rel=\"nofollow noopener\" target=\"_blank\">The Judicial Calvinball of Justice Ketanji Brown Jackson<\/a> [JonathanTurley.com]<\/p>\n<p><strong>Earlier<\/strong>: <a href=\"https:\/\/abovethelaw.com\/2025\/08\/supreme-court-just-calvinball-jurisprudence-with-a-twist-writes-justice-jackson\/\" rel=\"nofollow noopener\" target=\"_blank\">Supreme Court Just \u2018Calvinball Jurisprudence With A Twist,\u2019 Writes Justice Jackson<\/a><br \/><a href=\"https:\/\/abovethelaw.com\/2025\/06\/neil-gorsuch-starts-some-supreme-court-drama-ketanji-brown-jackson-ends-it\/\" rel=\"nofollow noopener\" target=\"_blank\">Neil Gorsuch Starts Some Supreme Court Drama. Ketanji Brown Jackson Ends It.<\/a><\/p>\n<hr>\n<p><strong><em><img data-recalc-dims=\"1\" loading=\"lazy\" decoding=\"async\" class=\"alignright wp-image-443318\" src=\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/sites\/4\/2016\/11\/Headshot-300x200.jpg?resize=192%2C128&#038;ssl=1\" alt=\"Headshot\" width=\"192\" height=\"128\" title=\"\"><a href=\"http:\/\/abovethelaw.com\/author\/joe-patrice\/\" target=\"_blank\" rel=\"noopener nofollow\">Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of <a href=\"http:\/\/legaltalknetwork.com\/podcasts\/thinking-like-a-lawyer\/\" target=\"_blank\" rel=\"noopener nofollow\">Thinking Like A Lawyer<\/a>. Feel free to\u00a0<a href=\"mailto:joepatrice@abovethelaw.com\">email<\/a> any tips, questions, or comments. Follow him on\u00a0<a href=\"https:\/\/twitter.com\/josephpatrice\" target=\"_blank\" rel=\"noopener nofollow\">Twitter<\/a>\u00a0or <a href=\"https:\/\/bsky.app\/profile\/joepatrice.bsky.social\" rel=\"noopener nofollow\" target=\"_blank\">Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a <a href=\"https:\/\/www.rpnexecsearch.com\/josephpatrice\" target=\"_blank\" rel=\"noopener nofollow\">Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n<p>The post <a href=\"https:\/\/abovethelaw.com\/2025\/08\/jonathan-turley-challenges-justice-jackson-to-calvinball-in-most-embarrassing-display-yet\/\" rel=\"nofollow noopener\" target=\"_blank\">Jonathan Turley Challenges Justice Jackson To Calvinball In Most Embarrassing Display Yet<\/a> appeared first on <a href=\"https:\/\/abovethelaw.com\/\" rel=\"nofollow noopener\" target=\"_blank\">Above the Law<\/a>.<\/p>\n<p>Justice Jackson recently called out the conservative majority of the Supreme Court specifically \u2014 and GOP jurisprudence generally \u2014 as \u201c<a href=\"https:\/\/abovethelaw.com\/2025\/08\/supreme-court-just-calvinball-jurisprudence-with-a-twist-writes-justice-jackson\/\" rel=\"nofollow noopener\" target=\"_blank\">Calvinball jurisprudence with a twist<\/a>.\u201d Citing the fictional sport from the watershed comic strip Calvin &amp; Hobbes, Jackson wrote \u201cCalvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins.\u201d As a dissent in yet another shadow docket decision allowing the administration to take arbitrary and capricious action free from the constraints of either statute or judicial oversight, the Calvinball analogy hit home. Neil Gorsuch even did Jackson a solid! Writing separately to admonish lower courts for <em>defying<\/em> the Supreme Court when they don\u2019t convert shadow docket temporary relief into controlling precedent \u2014 a brand-new, never-before-considered rule that doesn\u2019t even make sense in the context of the emergency docket \u2014 Gorsuch took the Calvinball charge to whole new levels.<\/p>\n<p>With conservatives needing some quasi-scholarly cover after Jackson\u2019s withering critique, GWU Law professor and MAGA pullstring toy Jonathan Turley gave himself a half-assed crash course in Calvin &amp; Hobbes lore and <a href=\"https:\/\/jonathanturley.org\/2025\/08\/25\/the-judicial-calvinball-of-justice-ketanji-brown-jackson\/\" rel=\"nofollow noopener\" target=\"_blank\">delivered his retort with a bumbling thud<\/a>.<\/p>\n<p>Turley could\u2019ve written \u201cno, you are!\u201d without sacrificing intellectual heft. It\u2019s an embarrassing gaslighting effort, which is saying a lot when we\u2019re talking about Turley.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>Take\u00a0<a href=\"https:\/\/www.usatoday.com\/story\/news\/politics\/2025\/06\/20\/supreme-court-americans-with-disabilities-act-firefighter\/78415013007\/\" target=\"_blank\" rel=\"noreferrer noopener nofollow\">Stanley v. City of Sanford<\/a>. Justices Jackson and\u00a0<a href=\"https:\/\/thehill.com\/people\/neil-gorsuch\/\" rel=\"nofollow noopener\" target=\"_blank\">Neil Gorsuch\u00a0<\/a>took some fierce swings at each other in\u00a0a case concerning a retired firefighter who wants to sue her former employer. The majority, including Kagan, rejected a ridiculous claim from a Florida firefighter who sued for discrimination for a position that she had neither held nor sought. The court ruled that the language of the statute clearly required plaintiffs to be \u201cqualified\u201d for a given position before they could claim to have been denied it due to discrimination. (Stanley has\u00a0<a href=\"https:\/\/en.wikipedia.org\/wiki\/Parkinson%27s_disease\" target=\"_blank\" rel=\"noreferrer noopener nofollow\">Parkinson\u2019s disease<\/a>\u00a0and had taken a disability retirement at age 47 due to the progress of the disease.)<\/p>\n<p>Jackson, however, was irate that Stanley could not sue for the denial of a position that she never sought, held, or was qualified to perform.<\/p>\n<\/blockquote>\n<p>This description is shockingly disingenuous. When Turley says \u201ca position that she had neither held nor sought,\u201d he means \u201cthe job she had performed until forced into retirement by disability.\u201d Even though his own paragraph clearly indicates that the plaintiff was a firefighter who later had to resign, he goes to great lengths to sandwich it in rhetoric that suggests the plaintiff walked in off the street claiming that she should get firefighter money without being able to do the job. Here in the real world, the plaintiff served as a firefighter for the city for years, having taken the job with the understanding that her health insurance premiums would be subsidized until she turned 65 if she served 25 years or <em>had to retire due to disability<\/em>. When she left the department, the city said it had decided to change the rules and wouldn\u2019t pay the subsidy for a disabled firefighter. By \u201cneither held nor sought,\u201d he means \u201cretired,\u201d and imposing that standard renders it impossible to ever challenge retirement benefits discrimination, because linear time would suggest that the plaintiff <em>would be retired<\/em>.<\/p>\n<p>The majority\u2019s argument is that when the Americans with Disabilities Act outlawed employment discrimination against individuals with a disability, Congress intended that protection to stop the moment the person retired, even if retirement benefits were part of the employment. Jackson contended that the law is not such an ass. <\/p>\n<p>Turley, by contrast, is exactly such an ass.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>Gorsuch called Jackson out for once again ignoring the text of federal laws in order to secure the result she preferred in a given case. In other words, Jackson was playing Calvinball with the law.<\/p>\n<\/blockquote>\n<p>\u201cIn other words\u201d glosses over the part where <a href=\"https:\/\/abovethelaw.com\/2025\/06\/neil-gorsuch-starts-some-supreme-court-drama-ketanji-brown-jackson-ends-it\/\" rel=\"nofollow noopener\" target=\"_blank\">Jackson dropped a goddamned anvil on Gorsuch<\/a>, writing a footnote explaining how, in this case in particular, his attempt to read the text in a vacuum transformed the clear intent of Congress into a legislative ransom note \u2014 one word cut out of here, another cut out of there:<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>The majority\u2019s contention that I reject \u201c \u2018pure textualism\u2019 [a]s insufficiently pliable to secure the result [I] seek,\u201d ante, at 10, stems from an<br \/>unfortunate misunderstanding of the judicial role. Our interpretative task is not to seek our own desired results (whatever they may be). And, indeed, it is precisely because of this solemn duty that, in my view, it is imperative that we interpret statutes consistent with all relevant indicia of what Congress wanted, as best we can ascertain its intent. A methodology that includes consideration of Congress\u2019s aims does exactly that\u2014 and no more. By contrast, pure textualism\u2019s refusal to try to understand the text of a statute in the larger context of what Congress sought to achieve turns the interpretive task into a potent weapon for advancing judicial policy preferences. By \u201cfinding\u201d answers in ambiguous text, and not bothering to consider whether those answers align with other sources of statutory meaning, pure textualists can easily disguise their own preferences as \u201ctextual\u201d inevitabilities. So, really, far from being \u201cinsufficiently pliable,\u201d I think pure textualism is incessantly malleable\u2014that\u2019s its primary problem\u2014and, indeed, it is certainly somehow always flexible enough to secure the majority\u2019s desired outcome.<\/p>\n<\/blockquote>\n<p>Turley doesn\u2019t address this footnote because that would overly tax the hamster frantically spinning its wheel in his head, egged on by the ever-present promise of a MAGA branded carrot just a tad out of reach.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>Jackson, undeterred, has continued these diatribes, with escalating and insulting rhetoric.<\/p>\n<\/blockquote>\n<p>So much bullshit packed into such a short sentence. I presume he went with \u201cundeterred\u201d because an editor found \u201c<a href=\"https:\/\/en.wikipedia.org\/wiki\/Nevertheless,_she_persisted\" rel=\"nofollow noopener\" target=\"_blank\">nevertheless she persisted<\/a>\u201d too on the nose as a dog whistle. Why would she be deterred? Why is that a duty incumbent upon her? Turley cites \u201cescalating and insulting rhetoric,\u201d as though the dissent isn\u2019t directly responding to Gorsuch writing a concurrence to his own opinion just to hurl more baseless invective at Jackson. But her rhetoric is \u201cinsulting,\u201d while his rhetoric is just absent from Turley\u2019s account.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>In Trump v. CASA, the court sought to rein in district courts issuing sweeping injunctions over the Executive Branch. Jackson went ballistic in her dissent, which neither Sotomayor nor Kagan would join.<\/p>\n<\/blockquote>\n<p>Accurate, though a bit misleading. <a href=\"https:\/\/abovethelaw.com\/2025\/06\/john-roberts-wants-america-to-understand-that-he-does-not-care\/\" rel=\"nofollow noopener\" target=\"_blank\">All three agreed in the case<\/a>, Jackson wrote a separate opinion grounded in her repeated defense of the power of district courts as the judges closest to the facts \u2014 near and dear to her since she was a district judge comparatively recently. Her spin on the rule of law claims advanced in Sotomayor\u2019s opinion was that if a district judge can\u2019t issue a nationwide injunction, it practically constrains the judiciary\u2019s role in the checks and balances regime. Whether you buy that argument or not, it\u2019s an idiosyncratic Jackson issue so it\u2019s not wild that she wrote separately.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>This is where Justice\u00a0<a href=\"https:\/\/thehill.com\/people\/amy-coney-barrett\/\" rel=\"nofollow noopener\" target=\"_blank\">Amy Coney Barrett\u00a0<\/a>reached a breaking point, unleashing on Jackson in an opinion notably joined by her colleagues. Barrett noted that Jackson was describing \u201ca vision of the judicial role that would make even the most ardent defender of judicial supremacy blush.\u201d She added: \u201cWe will not dwell on Justice Jackson\u2019s argument, which is at odds with more than two centuries\u2019 worth of precedent, not to mention the Constitution itself. We observe only this: Justice Jackson decries an imperial executive while embracing an imperial judiciary.\u201d<\/p>\n<\/blockquote>\n<p>Barrett dismissively wrote that \u201cwe will not dwell on Justice Jackson\u2019s argument,\u201d a preemptive attempt to <a href=\"https:\/\/abovethelaw.com\/2025\/06\/john-roberts-wants-america-to-understand-that-he-does-not-care\/\" rel=\"nofollow noopener\" target=\"_blank\">explain away the shoddy argumentation that followed<\/a> as the byproduct of not needing to engage it deeply. It\u2019s the judicial equivalent of \u201csent from my iPhone, please excuse any typos.\u201d It\u2019s also more directly \u201cinsulting\u201d than anything Turley pins on Jackson in his whole piece. Barrett is taking a swipe, at a dissent \u2014 by name \u2014 and implying that Jackson\u2019s input barely warrants mentioning. Of course, this is the hit dog hollering. The reason Barrett takes the time to lash out at a dissent \u2014 a lone dissent, as Turley would point out \u2014 is precisely because it has the majority\u2019s number. <\/p>\n<p>As far as substance goes, Barrett\u2019s only warrant for dismissing Jackson\u2019s claim is empty sophistry. The only time she sniffs at a supported argument is when she asserts Jackson\u2019s claim is \u201cat odds with more than two centuries\u2019 worth of precedent, not to mention the Constitution itself\u201d without bothering to cite any of those sources. In the next paragraph she cites, comically, <em>Marbury v. Madison<\/em> as the basis of a restrained judiciary and never breaths on the century of injunctions that the Supreme Court has routinely supported.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>That is a slightly fancier way of describing Calvinball.<\/p>\n<\/blockquote>\n<p>The fact that Turley has to end every one of these examples by saying, \u201cand this is Calvinball\u201d is sort of a dead giveaway. Show, don\u2019t tell, bro.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>Jackson has also been criticized for making\u00a0<a href=\"https:\/\/jonathanturley.org\/2023\/07\/07\/crunching-the-numbers-does-justice-jacksons-dissent-on-affirmative-action-not-add-up\/\" target=\"_blank\" rel=\"noreferrer noopener nofollow\">dubious or sensational claims<\/a>, as in her opinion supporting affirmative action in higher education.<\/p>\n<\/blockquote>\n<p>This comes from a Wall Street Journal opinion column that challenged Jackson\u2019s claim that \u201cFor high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die.\u201d In a laugh out loud moment, the Journal article responded, \u201cImagine if 40% of black newborns died\u2014thousands of dead infants every week. But even so, that\u2019s a 60% survival rate, which is mathematically impossible to double.\u201d Yeah, if you make up numbers you can do all sorts of stuff. But, going with the real numbers, Black infant mortality is around 894 per 100,000 births \u2014 or .8% \u2014 and when tended to by a Black doctor, the mortality rate, as compared to white newborns, <a href=\"https:\/\/www.pnas.org\/doi\/10.1073\/pnas.1913405117\" rel=\"nofollow noopener\" target=\"_blank\">decreases by 58 percent<\/a>. Or, inverting that, the survivability more than doubles. There could be good arguments against this research, but, \u201cderp, you can\u2019t double 60%\u201d is not\u2026 any of them.<\/p>\n<blockquote class=\"wp-block-quote is-layout-flow wp-block-quote-is-layout-flow\">\n<p>Jackson\u2019s jurisprudence is the very model of a judiciary untethered from constitutional or institutional restraints. Not surprisingly, she is lionized in law schools for her rejection of judicial restraint and her pursuit of progressive outcomes. Yet, her approach is becoming increasingly lawless.<\/p>\n<\/blockquote>\n<p>To recap, his support for her increasing lawlessness is the argument that Congress didn\u2019t intend the ADA to become void once someone retires, the judiciary has long approved of nationwide injunctions and a blanket disavowal of the practice undermines the role of courts as a check and balance, and she cited scholarly research showing a 58% decrease in mortality as a more than double increase in survivability. Along the way he cited Gorsuch playing textual Mad Libs, Barrett trying to tear down Jackson\u2019s argument and only mustering a \u201cnuh-uh,\u201d and a right-wing editorial section column making up numbers.<\/p>\n<p>Seems as though Jackson might have been right about Calvinball the first time. <\/p>\n<p><a href=\"https:\/\/jonathanturley.org\/2025\/08\/25\/the-judicial-calvinball-of-justice-ketanji-brown-jackson\/\" rel=\"nofollow noopener\" target=\"_blank\">The Judicial Calvinball of Justice Ketanji Brown Jackson<\/a> [JonathanTurley.com]<\/p>\n<p><strong>Earlier<\/strong>: <a href=\"https:\/\/abovethelaw.com\/2025\/08\/supreme-court-just-calvinball-jurisprudence-with-a-twist-writes-justice-jackson\/\" rel=\"nofollow noopener\" target=\"_blank\">Supreme Court Just \u2018Calvinball Jurisprudence With A Twist,\u2019 Writes Justice Jackson<\/a><br \/><a href=\"https:\/\/abovethelaw.com\/2025\/06\/neil-gorsuch-starts-some-supreme-court-drama-ketanji-brown-jackson-ends-it\/\" rel=\"nofollow noopener\" target=\"_blank\">Neil Gorsuch Starts Some Supreme Court Drama. Ketanji Brown Jackson Ends It.<\/a><\/p>\n<hr>\n<p><strong><em><img data-recalc-dims=\"1\" loading=\"lazy\" decoding=\"async\" class=\"alignright wp-image-443318\" src=\"https:\/\/i0.wp.com\/abovethelaw.com\/wp-content\/uploads\/sites\/4\/2016\/11\/Headshot-300x200.jpg?resize=192%2C128&#038;ssl=1\" alt=\"Headshot\" width=\"192\" height=\"128\" title=\"\"><a href=\"http:\/\/abovethelaw.com\/author\/joe-patrice\/\" target=\"_blank\" rel=\"noopener nofollow\">Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of <a href=\"http:\/\/legaltalknetwork.com\/podcasts\/thinking-like-a-lawyer\/\" target=\"_blank\" rel=\"noopener nofollow\">Thinking Like A Lawyer<\/a>. Feel free to\u00a0<a href=\"mailto:joepatrice@abovethelaw.com\">email<\/a> any tips, questions, or comments. Follow him on\u00a0<a href=\"https:\/\/twitter.com\/josephpatrice\" target=\"_blank\" rel=\"noopener nofollow\">Twitter<\/a>\u00a0or <a href=\"https:\/\/bsky.app\/profile\/joepatrice.bsky.social\" rel=\"noopener nofollow\" target=\"_blank\">Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a <a href=\"https:\/\/www.rpnexecsearch.com\/josephpatrice\" target=\"_blank\" rel=\"noopener nofollow\">Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n<p>The post <a href=\"https:\/\/abovethelaw.com\/2025\/08\/jonathan-turley-challenges-justice-jackson-to-calvinball-in-most-embarrassing-display-yet\/\" rel=\"nofollow noopener\" target=\"_blank\">Jonathan Turley Challenges Justice Jackson To Calvinball In Most Embarrassing Display Yet<\/a> appeared first on <a href=\"https:\/\/abovethelaw.com\/\" rel=\"nofollow noopener\" target=\"_blank\">Above the Law<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Justice Jackson recently called out the conservative majority of the Supreme Court specifically \u2014 and GOP jurisprudence generally \u2014 as \u201cCalvinball jurisprudence with a twist.\u201d Citing the fictional sport from the watershed comic strip Calvin &amp; Hobbes, Jackson wrote \u201cCalvinball has only one rule: There are no fixed rules. We seem to have two: that [&hellip;]<\/p>\n","protected":false},"author":3,"featured_media":132137,"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-132136","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-300x200-1I0XUa.jpg?fit=300%2C200&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/132136","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=132136"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/132136\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/132137"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=132136"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=132136"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=132136"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}