Justice Jackson Decries Fellow Justices, Claims They Are in Thrall to Trump’s War on DEI and Compares Them to ‘Calvin and Hobbes’

 The court’s newest justice levels a startling allegation at her colleagues

Justice Ketanji Brown Jackson’s dissenting opinion — a solitary one  — in National Institutes of Health v. American Public Health Association marks an escalation in the court’s most junior justice’s attacks on her conservative colleagues.

National Institutes of Health centered on the government agency’s cancellation of $783 million in federal grants to universities, hospitals, and laboratories. The NIH made the cuts — to research related to “health equity” and “gender identity”— after concluding that those grants were in violation of the Trump Administration’s ban on government funding that supported “Diversity, Equity and Inclusion” initiatives and “gender ideology.”  

In July, a district court jurist, Judge William Young, an 84-year-old Reagan appointee, blocked those cuts, finding that they demonstrated  “an unmistakable pattern of discrimination against women’s health issues” and “pervasive racial discrimination and extensive discrimination” against LGBT people.” The Department of Justice appealed to the Supreme Court for emergency relief, claiming —  as has become a common refrain from Main Justice —  that the district court overstepped its authority. 

The Supreme Court largely vindicated the government’s claims, finding that challenges to grant terminations must be heard not in federal district court, but in the Court of Federal Claims. Justice Jackson authored a dissent joined by nobody — not even a single one of her liberal colleagues. 

Justice Jackson inveighed against the cutbacks to the equity and gender identity research, complaining that her fellow justices, instead of “hunkering down” to protect the citizenry from President Trump, chose instead to make “preventing manifestly injurious Government action as difficult as possible.” She adds that the Nine’s brand of justice amounts to “Calvinball jurisprudence with a twist.”

The allusion is to the cherished comic strip “Calvin and Hobbes,” written by Bill Waterston, which ended 30 years ago. “Calvinball” is the made-up game played by Calvin and his imaginary tiger friend, Hobbes. Justice Jackson writes that “Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this administration always wins.” She blasts the court’s ruling as one that “neither coheres legally nor operates practically” and that is “deeply inefficient” and “likely impotent.” 

The “Calvinball” dissent marks yet another occasion where Justice Jackson’s rhetoric ripping into her colleagues on the court apparently proved too sharp even for her fellow liberal justices, Justice Elena Kagan and Sonia Sotomayor. Justice Jackson’s dissent in National Institute of Health extends a pattern where the newest justice on the court, an appointee of President Biden, stakes out terrain that no other justice dares tread.

Justice Jackson told the Indianapolis Bar Association last month that   “I’m not afraid to use my voice.” She said that she will sometimes approach the court’s senior liberal justice, Justice Sotomayor, to tell her that she will write her own dissent — “I will say, forgive me, Justice Sotomayor, but I need to write on this case …  because I feel like I might have something to offer.” She told the Hoosiers that “the state of our democracy” keeps her up at night.

In a case from last term, Stanley v. City of Stanford, Justice Jackson penned a footnote joined by nary another justice. She accused the majority of an “unfortunate misunderstanding of the judicial role” and vented that she “cannot abide” such a “narrow-minded approach.” She reckoned that the justices to her right interpreted the law to secure a “desired outcome.”

Justice Jackson also stood alone in what was perhaps the high court’s highest profile case from last term, Trump v. Casa. That was the case in which the Nine, by a six to three vote, curtailed the use of nationwide or universal injunctions by federal district court judges. The issue percolated up to the Supreme Court in the context of President Trump’s push to abolish birthright citizenship. The justice could yet hear that question this coming term.

Justice Jackson, in addition to agreeing with “every word” of the dissent proffered by the court’s liberal wing, lambasted the ruling against nationwide injunctions as an “existential threat to the rule of law” and “permission to engage in unlawful behavior.” She accused the court of constricting a “zone of lawlessness within which the Executive has the prerogative to take or leave the law as it wishes.” 

That rhetoric so affronted Justice Amy Coney Barrett — the author of Casa — that she wrote that “We will not dwell on Justice Jackson’s argument. … We observe only this: Justice Jackson decries an imperial Executive while embracing an imperial Judiciary.” She also called Justice Jackson’s approach “tethered neither to …  sources nor, frankly, to any doctrine whatsoever.” Justice Jackson for her part described a sense of “deep disillusionment.”

In another case from last term, Diamond Alternative Energy v. Environmental Protection Agency, Justice Jackson previewed her accusation in National Institute of Health that her colleagues are less than objective. In the earlier case she wrote that the ruling “gives fodder to the unfortunate perception that moneyed interests enjoy an easier road to relief in this court than ordinary citizens.” Justice Kagan joined the majority in Diamond. 

One of the most oft-quoted lines from “Calvin and Hobbes” observes that “There’s never enough time to do all the nothing you want.” For Justice Jackson, who is just 54 years old and enjoys a lifetime appointment, there will likely be plenty of time to fume against what appears to be a durable conservative majority on the Supreme Court. 

https://www.nysun.com/article/justice-jackson-rips-into-her-fellow-justices-claiming-they-are-in-thrall-to-trumps-war-on-dei-and-comparing-them-to-calvin-and-hobbes