Last month, Justice Ketanji Brown Jackson dropped an inflammatory allegation on most of her colleagues.
On August 21, the Supreme Court handed down a baffling order that required researchers, who claim that the Trump administration illegally cut off their federal grants, to navigate a convoluted procedural maze in two different courts. Jackson labeled this decision “Calvinball jurisprudence with a twist.” Calvinball, an ever-changing game featured in the Calvin and Hobbes comic strip, “has only one rule: There are no fixed rules.”
In this Court, Jackson continued, there are two: The rules always change, and “this Administration always wins.”
Under the Versailles-like norms that constrain lawyers and judges, this kind of allegation is simply verboten. While Jackson’s Democratic colleagues often criticize the Court’s decisions, they frequently go out of their way to say that all of the justices “are operating in good faith.” Law students are trained to never suggest that a judge acted for partisan reasons, largely because judges take great umbrage at this allegation. And there is real danger in Jackson’s decision to speak of her Republican colleagues as if they are Republicans.
Last year, after five of the Court’s Republicans voted to neutralize a constitutional provision barring insurrectionists from seeking public office during the 2024 election, the Court’s Democrats signed a brief opinion accusing them of going “beyond the necessities of this case to limit how [the Constitution] can bar an oathbreaking insurrectionist from becoming President.”
That opinion triggered another from Justice Amy Coney Barrett. While Barrett agreed with her Democratic colleagues about how the case should have been decided, she scolded the three Democrats — declaring that “this is not the time to amplify disagreement with stridency.”
Barrett’s call for honeyed words in a case about a violent attack on the Capitol is quaint, but it is also a perilous thing for a justice to ignore. If the Democrats offend Barrett, they risk pushing her deeper into the arms of President Donald Trump and his Republican Party.
Yet, while reasonable minds can disagree about whether Jackson’s “Calvinball” accusation was a wise way to navigate the Court’s internal politics, it’s tough to argue with her conclusion. She is talking, after all, about the same Court which held that Trump is allowed to commit crimes.
The Court’s Republican majority now hands Trump several victories every month, only explaining themselves when they feel like it. When they do explain those decisions, they are often incomprehensible. The Republican justices exempt Trump from rules that apply to every other litigant, including the most recent Democratic president. Their decision permitting Trump to commit crimes doesn’t even attempt to argue that presidential immunity can be found in the Constitution — instead making a policy argument that Trump should not be chilled from taking “bold and unhesitating action” for fear of prosecution.
Nor is Trump the only litigant who receives this Court’s special treatment. The Republican justices favor religious conservatives so much that they will make up fake facts to bolster Christian conservative litigants. Meanwhile, they hate abortion providers so much that they once handed down an anti-abortion decision that, if taken seriously, would permit every state to neutralize any constitutional right.
If any other government official behaved this way, it would be obvious they were placing partisanship ahead of the law. It is no less obvious when these six specific government officials do so. The most reasonable explanation for the Republican justices’ behavior is that they are acting in bad faith.
The Republican justices treat Trump as the special favorite of the law
It doesn’t take much work to prove that the Republican justices think Trump is above the law. I could post a citation to Trump v. United States (2024), the decision immunizing Trump from prosecution for his official acts in office, and walk away with a mic drop.
But that is not an isolated case. It joins a widespread pattern of decisions treating the GOP leader as if he is special.
Before Trump’s first term, the Supreme Court heard cases almost exclusively through a slow process that maximized the justices’ ability to consider every implication of their eventual decision. Typically, the Court wouldn’t even consider hearing a case until it was decided by at least two other courts — a trial court and an appeals court. Even then, they’d often wait until two appeals courts divided on the answer to the same legal question (what’s known as a “circuit split”).
The reason for this caution was straightforward: The Supreme Court has the final word on how to interpret any provision of US law. If they get a question wrong, there’s often no way to correct their error outside of a constitutional amendment. Plus, in the overwhelming majority of cases, lower court judges can be trusted to apply the law. So it made sense for the nation’s final adjudicators to wait, letting parties on both sides of an issue figure out their best arguments in lower courts, before the justices issued a decree that was likely to stand forever.
Indeed, the Court was historically so hostile to litigants who attempted to jump in line, that — outside of death penalty cases, where someone would die if the justices didn’t immediately intervene — most attorneys wouldn’t even ask the Supreme Court to hear a case before an appeals court handed down its final decision.
The Department of Justice, for example, brings tens of thousands of cases every year. But, in the 16 years when George W. Bush and Barack Obama were president, the DOJ only asked the justices to intervene prior to a final appellate judgment eight times — once every other year.
Then Trump became president, and everything changed. In the Supreme Court’s 2018–’19 term alone, Trump’s DOJ filed 10 petitions asking the justices to block a lower court’s decision on its “shadow docket,” a forum for emergency motions and other matters that receive the Court’s expedited review. Rather than enforce its longstanding norms, the justices abandoned them to accommodate Trump. According to a November 2019 paper by law professor Steve Vladeck, through that point in his first term Trump won a full or partial victory on two-thirds of his requests to stay a lower court decision.
In his second term, the Court has only grown more favorable to Trump — granting, in full or in part, 16 of his last 16 requests for shadow docket relief. Some of these decisions are devastating. Department of Homeland Security v. D.V.D. effectively permits Trump to neutralize the Convention Against Torture. McMahon v. New York allows Trump to fire so many civil servants that entire programs mandated by law cease to exist.
The Court handed Trump even more victories by exempting him from formal rules. As the Court explained in Nken v. Holder (2009), for example, a party asking an appellate court to block a lower court decision while the case is still being litigated normally cannot prevail, even if they show they’re likely to win the case. They also must show that they “will be irreparably injured absent a stay,” and that a decision blocking the lower court’s order won’t do too much harm to the public interest or to third parties.
But, as Jackson pointed out in a pair of dissents this year, the Republican justices appear to have exempted Trump and his administration from this requirement.
In Social Security Administration v. AFSCME (2025), for example, the Republican justices ruled that the “Department of Government Efficiency,” the White House office once led by Elon Musk, may have immediate access to sensitive Social Security information. When a judge asked one of Trump’s lawyers what harm the government would experience if DOGE’s access to this information were delayed, the lawyer did not answer — saying instead that the Trump administration would “stand on the record in its current form.” Nor did the Trump administration answer this question in its brief to the justices.
This Court has also embraced a divide-and-conquer strategy that weakens lower court judges and prevents litigants from obtaining lasting relief against Trump’s illegal actions. The most high-profile example of this strategy is Trump v. CASA (2025), where the Republican justices held that lower courts may only issue so-called nationwide injunctions — orders that toss out a federal policy rather than exempting a particular litigant from having to comply with it — in rare circumstances.
CASA, in fairness, is one of this Court’s more defensible Trump-related decisions. President Joe Biden spent his presidency being tormented by right-wing judges who issued nationwide injunctions against him on dubious grounds, and his DOJ fought to halt them until the bitter end. But the Supreme Court did nothing to stop them until a Republican moved into the White House.
And CASA is hardly the only case where the Republican justices placed new — and sometimes, ridiculous — procedural barriers in front of litigants challenging Trump policies. The worst example is National Institutes of Health v. American Public Health Association, the case where Jackson levied her “Calvinball” accusation against her Republican colleagues.
The Court’s decision in NIH is so convoluted that it is impossible to parse. But it appears to hold that researchers who lost their grants must first go to a federal district court to obtain an order saying the grants were illegally cut off, then defend that order on appeal, and then go to a different court (the Court of Federal Claims) to get a second court order requiring the administration to give them their money — a process that will likely take years.
Similarly, in Trump v. J.G.G., five Republican justices voted to vacate a lower court order blocking many of Trump’s illegal deportations. Trump cut off due process for many immigrants by unlawfully relying on a federal statute that only permits him to do so if a foreign military invades the US. But the Supreme Court held that no judge could block these illegal deportations on a nationwide basis, and instead required the impacted immigrants to bring many lawsuits in many different courts using a process known as “habeas.”
Notably, the majority decision in J.G.G. seems to conflict with the Court’s decision in Skinner v. Switzer (2011), which said that there is no case “in which the Court has recognized habeas as the sole remedy, or even an available one, where the relief sought would ‘neither terminat[e] custody, accelerat[e] the future date of release from custody, nor reduc[e] the level of custody.’”
This Court, in other words, has favored Trump by giving him broad exemptions from normal procedures, while simultaneously erecting new barriers in front of anyone who challenges him. That’s in addition to its decision permitting Trump to violate criminal law.
The Court didn’t show Biden the same favoritism
Notice how, in many of these decisions, the Court achieved partisan results simply by manipulating procedure. It played a similar game, with opposite results, when Biden was president.
In August 2021, Matthew Kacsmaryk — the Trump judge best known for his failed attempt to ban the abortion medication mifepristone — ordered the Biden administration to reinstate a Trump policy that required many migrants to remain in Mexico while their immigration cases were being processed. His decision had no basis in law, and rested on an egregious misreading of federal immigration statutes.
The Supreme Court eventually reversed Kacsmaryk, warning that he “imposed a significant burden upon the Executive’s ability to conduct diplomatic relations with Mexico.” But, in stark contrast to the fast-tracked process the justices applied to Trump’s requests to block lower court decisions, the Court sat on the case until late June 2022. Kacsmaryk was the de facto US border czar for nearly an entire year.
A similar drama played out a year later, after a different Trump judge named Drew Tipton struck down a memo from then-Secretary of Homeland Security Alejandro Mayorkas, which instructed ICE agents to prioritize targeting immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being.” Mayorkas did so under a statute making him responsible for “establishing national immigration enforcement policies and priorities.” DHS issued similar memos in 2005, 2010, 2011, 2014, and 2017.
Once again, the Supreme Court eventually conceded that Tipton’s order was lawless, but it sat on the case for 11 months before reaching this obvious conclusion.
And the Republican justices do not limit their partisan shenanigans to procedural orders. To the contrary, they invented a new limit on executive power that they have only ever applied to one president: Joe Biden.
The Supreme Court’s “major questions doctrine” empowers the justices to strike down executive actions that they deem to be too ambitious. As the Court said in a 2014 opinion that previewed the doctrine (but that only applied it to a hypothetical regulation), “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
This brand-new legal doctrine has no basis in the Constitution nor in any statute. The Republican justices apply it in dishonest ways, even using it to strike down programs that federal law unambiguously authorizes. Their attempts to justify the doctrine are childish and silly; Barrett, for example, once defended it with a parable involving a babysitter.
Again, the major questions doctrine has only been applied to one president in American history: Joe Biden. The Republican justices used it to block a Covid-related eviction moratorium, to block part of Biden’s vaccination strategy, to target an EPA rule intended to fight climate change, and to repeal Biden’s plan to cancel many student loans.
The student loans decision, Biden v. Nebraska (2023), was particularly poorly reasoned. The Court struck down a policy that was clearly authorized by federal law; the relevant statute gave the education secretary broad authority to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs” during a national emergency such as the pandemic. The secretary could use this power “notwithstanding any other provision of law, unless enacted with specific reference to” the statute authorizing him to cancel loans.
When the Republican justices applied this fake doctrine to Biden, they showed none of the compunctions about nationwide orders that they repeatedly expressed under Trump. The Republican justices did not require individual landlords to file individual lawsuits seeking to exempt a single tenant from the eviction moratorium. Nor did they require loan servicers to comply with a years-long process in two different courts. They simply abolished the Biden administration policies that they disagreed with.
And there are already signs that at least one of the Republican justices plans to exempt Trump from this major questions doctrine. The doctrine plays a starring role in the lawsuits challenging Trump’s tariffs, for good reason. If anything counts as a question of “vast ‘economic and political significance,’” it’s Trump’s decision to unilaterally impose a massive tax hike that, according to Yale’s Budget Lab, will cost the average American household $2,400 in 2025 alone.
And yet, in a concurring opinion in FCC v. Consumers’ Research, Justice Brett Kavanaugh signaled that he will exempt Trump’s tariffs from the major questions doctrine by declaring that it does not apply in “foreign policy contexts.” Kavanaugh, in other words, has decided to invent a new limit on a brand-new legal doctrine, which was itself invented by himself and his Republican colleagues, and that has no basis in any law. It just so happens that this new limit will rescue a Republican president’s signature policy from invalidation.
If Kavanaugh pursues this plan when the tariffs case reaches his Court, how could anyone possibly conclude that he is engaged in a good faith effort to apply the law without favoring either political party?
Trump isn’t the only litigant who gets special treatment
Though Trump has benefited more from this Court’s partisanship than anyone, he’s hardly the only beneficiary. The Republican justices have shown similar solicitude for interest groups that are influential within the GOP, and especially for the religious right.
One of the Court’s first actions after Barrett’s confirmation gave Republican justices a supermajority, for example, was to overrule months-old Supreme Court decisions establishing that churches and other houses of worship must comply with the same public health restrictions that apply to similar institutions, such as movie theaters and lecture halls, where people tend to gather in large groups.
The Republican justices have even claimed separating church and state is unconstitutional in many contexts. In Carson v. Makin (2022), for example, the Court held that Maine must include religious schools in a school voucher program.
The Court’s Republicans have shown extraordinary impatience in religion cases, even when moving too quickly risks harming important institutions. In Mahmoud v. Taylor (2025), the Court considered a conflict between conservative religious parents and a school district that approved books with queer characters for use in some classrooms. An appeals court, in an opinion by George W. Bush-appointed Judge Steven Agee, had previously ruled that the judiciary needed more information before it could decide how to proceed.
As Agee wrote, the record in the case provided no information “about how any teacher or school employee has actually used any of the Storybooks in the Parents’ children’s classrooms, how often the Storybooks are actually being used, what any child has been taught in conjunction with their use, or what conversations have ensued about their themes.” So it wasn’t yet possible to determine if these parents’ constitutional rights were violated.
Rather than wait for lower courts to determine what actually happened, however, the Republican justices rushed out a sweeping decision declaring that parents with a religious objection to any lesson taught in a public school must be given advance notice of that lesson and the ability to opt their child out of it. As Justice Sonia Sotomayor warned in dissent, this decision is likely to cause “chaos,” because requiring schools to anticipate which parents will object to which lessons “will impose impossible administrative burdens.”
Parents previously sued public schools because they objected, on religious grounds, to lessons touching on topics as diverse as divorce, interfaith couples, “immodest dress,” evolution, pacifism, magic, women achieving things outside of the home, and “false views of death.” Thus, under Mahmoud, a school district can potentially be held liable if it does something as innocuous as assigning a book where one of the characters is a woman who works as a police officer. Or for assigning a biography of President Ronald Reagan, who was divorced.
So in Mahmoud, the Republican justices bypassed the judiciary’s ordinary fact-finding process to give religious conservatives what they were seeking as quickly as possible. In another case, Kennedy v. Bremerton School District (2022), they went even further: making up fake facts and then relying on them to rule in favor of a Christian conservative.
Kennedy involved Joseph Kennedy, a public school football coach who incorporated “motivational” prayers into his coaching, led after-game prayer sessions, and who would walk out to the 50-yard line after games to kneel and pray in front of students and spectators. We know that Kennedy conducted these very public prayer sessions because both the school district’s brief and Sotomayor’s dissenting opinion incorporated pictures of them.
But Justice Neil Gorsuch’s majority opinion claims that Kennedy “offered his prayers quietly while his students were otherwise occupied,” and describes them as a “brief, quiet, personal religious observance.”
No one questions that the Constitution permits government employees, including those in positions of authority over young people, to quietly pray. But that’s clearly not what Kennedy did. The Republican justices must have seen the pictures in the school district’s brief and in Sotomayor’s dissent, but they acted like this evidence didn’t exist. It appears that they just lied about the facts of the case to benefit a religious conservative.
Nor is Biden the only litigant who is treated like an outlaw
Meanwhile, the Republican justices twist the law into knots to ensure that no abortion provider benefits from it.
In 2021, back when Roe v. Wade was still good law, Texas enacted a Rube Goldberg-like scheme to shut down abortion clinics without due process. The basic idea was to force the state’s abortion providers to choose between being bankrupted by either a court order or by legal fees.
The law allowed nearly “any person” on the globe to sue abortion providers in Texas. Successful plaintiffs collected a bounty of “not less than $10,000”; there was no cap on how much a court could force abortion providers to pay. Moreover, because virtually anyone could file such a lawsuit, abortion providers risked being sued by thousands or even tens of thousands of plaintiffs.
And yet, in Whole Women’s Health v. Jackson (2021), five Republican justices ruled that the only way abortion providers could defend against these suits is to hire a small army of lawyers to contest each of these thousands of lawsuits. The five Republicans prohibited federal courts from blocking the Texas law.
If taken seriously, Whole Women’s Health is the single greatest assault on the Constitution in the Supreme Court’s entire history. It would permit any state to neutralize any constitutional right, simply by using a Texas-style bounty hunter system. A segregationist state legislature could sic bounty-hunting plaintiffs on any Black parent who sends their child to an integrated public school. Or it could send bounty hunters after anyone who criticizes the state governor; or who registers to vote as a Democrat.
To be clear, I don’t actually think that these justices would allow a state to segregate its public schools — but that’s because the most likely explanation for Whole Women’s Health is that the five Republicans who decided it were playing Calvinball. They wanted Texas to be able to ban abortion, so they reached for any argument that would support that outcome without caring about the consequences if that argument were applied to any other case.
Consider, as well, the Court’s decision in Medina v. Planned Parenthood (2025).
One of the most important questions in US poverty law, possibly the most important question, is whether private litigants can enforce their rights under federal Medicaid law and similar statutes governing federal anti-poverty programs.
Medina involved a federal law that gives Medicaid patients a right to choose their own health providers. An earlier case, Health and Hospital Corporation v. Talevski (2023), involved a list of requirements that Medicaid law imposes on nursing homes, including the right of patients “to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident’s medical symptoms.”
Some of the federal laws governing state Medicaid programs are intended to protect patients, and thus may be enforced through those patients’ private lawsuits. Others impose reporting and paperwork requirements on states, or otherwise place obligations on states and Medicaid providers that should not be enforced through private lawsuits. There have been many decades of litigation to distinguish the laws that can be enforced in court from the ones that cannot.
By the time Medina reached the justices, however, the question of how to determine which Medicaid laws may be enforced in private lawsuits, and which ones cannot, was resolved. Talevski held that federal law creates enforceable rights when it is “‘phrased in terms of the persons benefited’ and contains ‘rights-creating,’ individual-centric language with an ‘unmistakable focus on the benefited class.’”
Thus, a law stating that “no state may prevent a hungry person from eating a hamburger” may be enforced in court, because it is phrased in terms of the people whom the law benefits (hungry people). A different law stating that “states may not impede access to hamburgers” would not be enforceable, because it lacks the “focus on the benefitted class” demanded by Talveski.
Medina was an easy case, because the law at issue in that suit provided that “any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person, qualified to perform the service.” The law focused on the persons benefited: individuals eligible for medical assistance under Medicaid.
Rather than reach this obvious conclusion, however, the Republican justices delivered a garbled opinion that didn’t even quote the relevant language from Talevski. Their decision in Medina effectively repeals the law allowing Medicaid patients to choose their doctors.
And why did the Republican justices repeal this law? The answer cannot be found in case law. The most obvious explanation is they did so because Medina was a case about whether Medicaid patients may choose Planned Parenthood as their health provider. Rather than reach the only conclusion that is permissible under the Court’s two-year-old decision in Talevski, the Republican justices decided to repeal the law, and spite an abortion provider.
The Republican justices are clearly just playing Calvinball
Some of the decisions discussed above are individually defensible. Hell, I’ve defended some of them. The Court frequently faces legal questions that are unclear, and often the justices simply have to choose between multiple acceptable outcomes.
But the crushing weight of all of these decisions put together should speak for itself. When Trump goes 16-for-16 on the shadow docket, when the Court invents entire legal doctrines to spite Biden, when it applies one set of rules to Democrats and another to Republicans, or when it puts off important legal questions for years, until resolving them will benefit a Republican president, those decisions cannot be explained because judges are sometimes forced to choose among multiple acceptable options. When there is ambiguity in the law, the Republican justices resolve it in favor of Republicans. And when there is no ambiguity in the law, the Republican justices often make something up so they can rule in favor of Republicans anyway.
Nor does the fact that the Republican justices sometimes vote with their Democratic colleagues make them any less partisan. Senate Republicans split 31-15 on whether to approve aid to Ukraine in 2024. Seventeen Senate Republicans joined nearly every Democrat in supporting the CHIPS Act in 2022. The fact that a loyal Republican sometimes agrees with Democrats does not make them any less of a Republican.
And yet public discourse around the Supreme Court too often dances around the possibility that the justices may be partisans acting in bad faith. Most reporters and legal commentators, for example, still euphemistically refer to the Court’s two factions as “liberals” and “conservatives,” when it is more accurate to refer to the justices as “Democrats” or “Republicans.”
There are structural reasons why professionals who work closest with the justices are unwilling to openly state what the Supreme Court has become. Lawyers don’t want to antagonize judges and justices who may decide their cases. Lower court judges don’t want to antagonize the justices because they don’t want to be reversed. Journalists don’t want to speak of the justices as partisans because they don’t want to appear partisan themselves.
Even the justices themselves frequently pull their punches, because they don’t want to alienate colleagues they will sit with for decades.
But it is getting harder and harder to take an honest look at the Supreme Court’s recent behavior without reaching the same conclusion that Justice Jackson reached. The Republican justices are playing Calvinball. They aren’t making a serious effort to apply the law in a fair and consistent way.
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