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 a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
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