Ian Millhiser writes:

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. [Continue reading…]