Justice
Jackson
recently
called
out
the
conservative
majority
of
the
Supreme
Court
specifically
—
and
GOP
jurisprudence
generally
—
as
“Calvinball
jurisprudence
with
a
twist.”
Citing
the
fictional
sport
from
the
watershed
comic
strip
Calvin
&
Hobbes,
Jackson
wrote
“Calvinball
has
only
one
rule:
There
are
no
fixed
rules.
We
seem
to
have
two:
that
one,
and
this
Administration
always
wins.”
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
defying
the
Supreme
Court
when
they
don’t
convert
shadow
docket
temporary
relief
into
controlling
precedent
—
a
brand-new,
never-before-considered
rule
that
doesn’t
even
make
sense
in
the
context
of
the
emergency
docket
—
Gorsuch
took
the
Calvinball
charge
to
whole
new
levels.
With
conservatives
needing
some
quasi-scholarly
cover
after
Jackson’s
withering
critique,
GWU
Law
professor
and
MAGA
pullstring
toy
Jonathan
Turley
gave
himself
a
half-assed
crash
course
in
Calvin
&
Hobbes
lore
and
delivered
his
retort
with
a
bumbling
thud.
Turley
could’ve
written
“no,
you
are!”
without
sacrificing
intellectual
heft.
It’s
an
embarrassing
gaslighting
effort,
which
is
saying
a
lot
when
we’re
talking
about
Turley.
Take Stanley
v.
City
of
Sanford.
Justices
Jackson
and Neil
Gorsuch took
some
fierce
swings
at
each
other
in a
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
“qualified”
for
a
given
position
before
they
could
claim
to
have
been
denied
it
due
to
discrimination.
(Stanley
has Parkinson’s
disease and
had
taken
a
disability
retirement
at
age
47
due
to
the
progress
of
the
disease.)
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.
This
description
is
shockingly
disingenuous.
When
Turley
says
“a
position
that
she
had
neither
held
nor
sought,”
he
means
“the
job
she
had
performed
until
forced
into
retirement
by
disability.”
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
had
to
retire
due
to
disability.
When
she
left
the
department,
the
city
said
it
had
decided
to
change
the
rules
and
wouldn’t
pay
the
subsidy
for
a
disabled
firefighter.
By
“neither
held
nor
sought,”
he
means
“retired,”
and
imposing
that
standard
renders
it
impossible
to
ever
challenge
retirement
benefits
discrimination,
because
linear
time
would
suggest
that
the
plaintiff
would
be
retired.
The
majority’s
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.
Turley,
by
contrast,
is
exactly
such
an
ass.
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.
“In
other
words”
glosses
over
the
part
where
Jackson
dropped
a
goddamned
anvil
on
Gorsuch,
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
—
one
word
cut
out
of
here,
another
cut
out
of
there:
The
majority’s
contention
that
I
reject
“
‘pure
textualism’
[a]s
insufficiently
pliable
to
secure
the
result
[I]
seek,”
ante,
at
10,
stems
from
an
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’s
aims
does
exactly
that—
and
no
more.
By
contrast,
pure
textualism’s
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
“finding”
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
“textual”
inevitabilities.
So,
really,
far
from
being
“insufficiently
pliable,”
I
think
pure
textualism
is
incessantly
malleable—that’s
its
primary
problem—and,
indeed,
it
is
certainly
somehow
always
flexible
enough
to
secure
the
majority’s
desired
outcome.
Turley
doesn’t
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.
Jackson,
undeterred,
has
continued
these
diatribes,
with
escalating
and
insulting
rhetoric.
So
much
bullshit
packed
into
such
a
short
sentence.
I
presume
he
went
with
“undeterred”
because
an
editor
found
“nevertheless
she
persisted”
too
on
the
nose
as
a
dog
whistle.
Why
would
she
be
deterred?
Why
is
that
a
duty
incumbent
upon
her?
Turley
cites
“escalating
and
insulting
rhetoric,”
as
though
the
dissent
isn’t
directly
responding
to
Gorsuch
writing
a
concurrence
to
his
own
opinion
just
to
hurl
more
baseless
invective
at
Jackson.
But
her
rhetoric
is
“insulting,”
while
his
rhetoric
is
just
absent
from
Turley’s
account.
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.
Accurate,
though
a
bit
misleading.
All
three
agreed
in
the
case,
Jackson
wrote
a
separate
opinion
grounded
in
her
repeated
defense
of
the
power
of
district
courts
as
the
judges
closest
to
the
facts
—
near
and
dear
to
her
since
she
was
a
district
judge
comparatively
recently.
Her
spin
on
the
rule
of
law
claims
advanced
in
Sotomayor’s
opinion
was
that
if
a
district
judge
can’t
issue
a
nationwide
injunction,
it
practically
constrains
the
judiciary’s
role
in
the
checks
and
balances
regime.
Whether
you
buy
that
argument
or
not,
it’s
an
idiosyncratic
Jackson
issue
so
it’s
not
wild
that
she
wrote
separately.
This
is
where
Justice Amy
Coney
Barrett reached
a
breaking
point,
unleashing
on
Jackson
in
an
opinion
notably
joined
by
her
colleagues.
Barrett
noted
that
Jackson
was
describing
“a
vision
of
the
judicial
role
that
would
make
even
the
most
ardent
defender
of
judicial
supremacy
blush.”
She
added:
“We
will
not
dwell
on
Justice
Jackson’s
argument,
which
is
at
odds
with
more
than
two
centuries’
worth
of
precedent,
not
to
mention
the
Constitution
itself.
We
observe
only
this:
Justice
Jackson
decries
an
imperial
executive
while
embracing
an
imperial
judiciary.”
Barrett
dismissively
wrote
that
“we
will
not
dwell
on
Justice
Jackson’s
argument,”
a
preemptive
attempt
to
explain
away
the
shoddy
argumentation
that
followed
as
the
byproduct
of
not
needing
to
engage
it
deeply.
It’s
the
judicial
equivalent
of
“sent
from
my
iPhone,
please
excuse
any
typos.”
It’s
also
more
directly
“insulting”
than
anything
Turley
pins
on
Jackson
in
his
whole
piece.
Barrett
is
taking
a
swipe,
at
a
dissent
—
by
name
—
and
implying
that
Jackson’s
input
barely
warrants
mentioning.
Of
course,
this
is
the
hit
dog
hollering.
The
reason
Barrett
takes
the
time
to
lash
out
at
a
dissent
—
a
lone
dissent,
as
Turley
would
point
out
—
is
precisely
because
it
has
the
majority’s
number.
As
far
as
substance
goes,
Barrett’s
only
warrant
for
dismissing
Jackson’s
claim
is
empty
sophistry.
The
only
time
she
sniffs
at
a
supported
argument
is
when
she
asserts
Jackson’s
claim
is
“at
odds
with
more
than
two
centuries’
worth
of
precedent,
not
to
mention
the
Constitution
itself”
without
bothering
to
cite
any
of
those
sources.
In
the
next
paragraph
she
cites,
comically,
Marbury
v.
Madison
as
the
basis
of
a
restrained
judiciary
and
never
breaths
on
the
century
of
injunctions
that
the
Supreme
Court
has
routinely
supported.
That
is
a
slightly
fancier
way
of
describing
Calvinball.
The
fact
that
Turley
has
to
end
every
one
of
these
examples
by
saying,
“and
this
is
Calvinball”
is
sort
of
a
dead
giveaway.
Show,
don’t
tell,
bro.
Jackson
has
also
been
criticized
for
making dubious
or
sensational
claims,
as
in
her
opinion
supporting
affirmative
action
in
higher
education.
This
comes
from
a
Wall
Street
Journal
opinion
column
that
challenged
Jackson’s
claim
that
“For
high-risk
Black
newborns,
having
a
Black
physician
more
than
doubles
the
likelihood
that
the
baby
will
live,
and
not
die.”
In
a
laugh
out
loud
moment,
the
Journal
article
responded,
“Imagine
if
40%
of
black
newborns
died—thousands
of
dead
infants
every
week.
But
even
so,
that’s
a
60%
survival
rate,
which
is
mathematically
impossible
to
double.”
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
—
or
.8%
—
and
when
tended
to
by
a
Black
doctor,
the
mortality
rate,
as
compared
to
white
newborns,
decreases
by
58
percent.
Or,
inverting
that,
the
survivability
more
than
doubles.
There
could
be
good
arguments
against
this
research,
but,
“derp,
you
can’t
double
60%”
is
not…
any
of
them.
Jackson’s
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.
To
recap,
his
support
for
her
increasing
lawlessness
is
the
argument
that
Congress
didn’t
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’s
argument
and
only
mustering
a
“nuh-uh,”
and
a
right-wing
editorial
section
column
making
up
numbers.
Seems
as
though
Jackson
might
have
been
right
about
Calvinball
the
first
time.
The
Judicial
Calvinball
of
Justice
Ketanji
Brown
Jackson
[JonathanTurley.com]
Earlier:
Supreme
Court
Just
‘Calvinball
Jurisprudence
With
A
Twist,’
Writes
Justice
Jackson
Neil
Gorsuch
Starts
Some
Supreme
Court
Drama.
Ketanji
Brown
Jackson
Ends
It.
Joe
Patrice is
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Law
and
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Thinking
Like
A
Lawyer.
Feel
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Follow
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