“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
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