Thursday, the Supreme Court announced its opinion in National Institutes of Health v. American Public Health Association. The case involved the fate of approximately $783 million in NIH research grants that were tied to DEI initiatives rather than to general scientific research. By a 5-4 vote, the court ruled that a single federal judge could not compel the federal government to spend nearly $1 billion on nonsensical pseudo-research it no longer wished to fund.
This case may ultimately prove more important than the money it saved because it indicated the Supreme Court was losing patience with inferior courts and with one of its members.
Neil Gorsuch used a concurring opinion that effectively read the Riot Act to lower courts.
Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them. In Department of Ed. v. California, 604 U. S. ___ (2025) (per curiam), this Court granted a stay because it found the government likely to prevail in showing that the district court lacked jurisdiction to order the government to pay grant obligations. California explained that “suits based on ‘any express or implied contract with the United States’” do not belong in district court under the Administrative Procedure Act (APA), but in the Court of Federal Claims under the Tucker Act. Id., at ___ (slip op., at 2) (quoting 28 U. S. C. §1491(a)(1)). Rather than follow that direction, the district court in this case permitted a suit involving materially identical grants to proceed to final judgment under the APA. As support for its course, the district court invoked the “persuasive authority” of “the dissent[s] in California” and an earlier court of appeals decision California repudiated. Massachusetts v. Kennedy, ___ F. Supp. 3d ___, ___ (Mass. 2025), App. to Application 232a (App.). That was error. “[U]nless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.” Hutto v. Davis, 454 U. S. 370, 375 (1982) (per curiam).
He concluded with this summary:
If the district court’s failure to abide by California were a one-off, perhaps it would not be worth writing to address it. But two months ago another district court tried to “compel compliance” with a different “order that this Court ha[d] stayed.” Department of Homeland Security v. D. V. D., 606 U. S. ___, ___ (2025) (KAGAN, J., concurring) (slip op., at 1). Still another district court recently diverged from one of this Court’s decisions even though the case at hand did not differ “in any pertinent respect” from the one this Court had decided. Boyle, 606 U. S., at ___ (slip op., at 1). So this is now the third time in a matter of weeks this Court has had to intercede in a case “squarely controlled” by one of its precedents. Ibid. All these interventions should have been unnecessary, but together they underscore a basic tenet of our judicial system: Whatever their own views, judges are duty-bound to respect “the hierarchy of the federal court system created by the Constitution and Congress.” Hutto, 454 U. S., at 375.
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If anyone takes notice of Gorsuch’s concurrence, in which he was joined by Justice Kavanaugh, then perhaps we’ll see resistance-minded judges become more circumspect in creating their personal jurisprudence rather than following the lead of the Supreme Court.
The second salient feature was that Justice Ketanji Brown Jackson again attacked the integrity of her colleagues, and her blistering 21-page dissent did not have a single justice sign on.
Justice Jackson, who seems locked in a cage match with Justice Sonia “the Wide Latina” Sotomayor for the most mediocre IQ on the Supreme Court, has previously made headlines for attacking her colleagues. In Trump vs. CASA, which covered the issue of nationwide injunctions by single judges, Brown wrote this snide comment:
To hear the majority tell it, this suit raises a mind-numbingly technical query: Are universal injunctions “sufficiently ‘analogous’ to the relief issued ‘by the High Court of Chancery in England at the time of the adoption of the Constitution and the enactment of the original Judiciary Act’” to fall within the equitable authority Congress granted federal courts in the Judiciary Act of 1789? Ante, at 6. But that legalese is a smokescreen. It obscures a far more basic question of enormous legal and practical significance: May a federal court in the United States of America order the Executive to follow the law?
To ask this question is to answer it. In a constitutional Republic such as ours, a federal court has the power to order the Executive to follow the law—and it must. It is axiomatic that the Constitution of the United States and the statutes that the People’s representatives have enacted govern in our system of government. Thus, everyone, from the President on down, is bound by law. By duty and nature, federal courts say what the law is (if there is a genuine dispute), and require those who are subject to the law to conform their behavior to what the law requires. This is the essence of the rule of law.
To which Justice Barrett replied:
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. No one disputes that the Executive has a duty to follow the law. But the Judiciary does not have unbridled authority to enforce this obligation—in fact, sometimes the law prohibits the Judiciary from doing so. See, e.g., Marbury v. Madison[.]
Note the reference Barrett used to make her point. Even Justice Kagan did not sign onto Jackson’s dissent, but five justices did sign onto Barrett’s zingers.
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The rift between Jackson and her colleagues became much more pronounced in the NIH decision. Here, she continued her allegations that the majority of the Court was hopelessly compromised and letting President Trump get away with murder.
In a broader sense, however, today’s ruling is of a piece with this Court’s recent tendencies. “[R]ight when the Judiciary should be hunkering down to do all it can to preserve the law’s constraints,” the Court opts instead to make vindicating the rule of law and preventing manifestly injurious Government action as difficult as possible. Id., at ___ (JACKSON, J., dissenting) (slip op., at 21). This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules. We seem to have two: that one, and this Administration always wins.
Note that Jackson quotes from her own dissent in this dissent. This may be a first in the history of the Supreme Court.
The real question is whether Jackson is any longer an effective member of the Supreme Court. The fact that Barrett got six justices to join a scathing put-down of Jackson’s outcomes-based jurisprudence indicates that Rubicon may have been crossed. The Justices, save Sotomayor, seem to ignore Jackson and let her write whatever she wishes.
As a secondary issue, I think the wisdom of Trump’s Justice Department in obeying court orders and fighting them out in court rather than open defiance has been proven correct. Open defiance would have united the circuit courts and the Supreme Court to defend district court judges. Now, the Resistance judges can’t keep from ruling against Trump any more than a cat can resist catnip…or a laser pointer. This extends even to cases decided by the Supreme Court. The Supreme Court now has to defend its position or let it be run over roughshod by TDS-infected judges. The only person not getting the SCOTUS unity message is Jackson, and she has lost whatever influence she may have had by lambasting her colleagues for the sake of social media clout.
We are in a struggle for the very existence of our Constitution. Individual rights, such as gun ownership and freedom from involuntary medical experimentation, are under attack. Now, a clique of leftist federal judges is attacking the core power of President Trump, or any president, to manage the Executive Branch. Join RedState VIP and help continue our coverage to keep you abreast of this critical struggle. Use promo code FIGHT to get 60% off your membership.
