Ketanji Brown Jackson Stops Just Short of Saying the Supreme Court Is Breathtakingly Full of Shit [View all]

[In It to Win It]

Balls and Strikes

Justice Ketanji Brown Jackson issued a dissenting opinion yesterday that did not mince words about the Supreme Court’s eager facilitation of the Trump administration’s discriminatory agenda. It was not the first time she has done so. And it will probably not be the last.

National Institutes of Health v. American Public Health Association is a case about the cancellation of $783 million in federal grants to universities, hospitals, and labs—staggering cuts that threaten life-saving scientific inquiry into subjects like heart disease, suicide prevention, and HIV transmission. In response to Trump’s various executive orders targeting “diversity, equity, and inclusion” and “gender ideology,” NIH took a look at its funding recipients and decided that medical research that costs nearly $800 million (and is probably worth a lot more over the long term) could not go forward.

In July, a federal district court decided that the terminations demonstrated “an unmistakable pattern of discrimination against women’s health issues” and “pervasive racial discrimination.” The court ordered the government to restore the funds, and to stop enforcing NIH’s internal guidance documents for determining compliance with Trump’s executive orders while the case is pending. The government then filed an emergency petition to lift the order.

Late Thursday afternoon, the Court gave the government most of what it wanted, reinstituting the cuts that the lower court had blocked. NIH v. APHA has five mishmashed opinions, but the upshot of the Court’s decision limits the district court’s jurisdiction to lawsuits about the guidance on funding cuts, but not the actual cuts. Challenges to the grant terminations, the Court decided, themselves must be heard in the Court of Federal Claims instead.

In a dissent that no other justice joined, Jackson explained the impact of the Court’s decision, which (and this is a technical term) puts lives in jeopardy for no goddamn reason. By separating review of the grant termination policy from review of the grant terminations, she wrote, the Court created a two-track system that “neither coheres legally nor operates practically,” and that literally no one asked for. “Neither party to the case suggested this convoluted procedural outcome, and no prior court has held that the law requires it,” she said.