Dem
47
GOP
53
The latest out of the Supreme Court's shadow docket is a decision to grant an "emergency" stay application in response to a district court's order reinstating over $800 million in NIH grants that the Trump administration unilaterally halted. The Court continues to refer to these applications as requests for emergency stays but what constitutes "an emergency" is very fluid, depending on the Court's desired outcome and who's doing the requesting. Having to honor contractual obligations such as these grants has never before been considered an emergency that requires the Supreme Court's immediate intervention. But consistency does not seem to concern this Court.
Earlier this year, the NIH canceled 1,700 grants on research subjects such as heart disease, Alzheimer's disease, HIV/AIDS, alcohol and substance abuse, and mental health issues. None of these grants has a clear "DEI" component (whatever that means in this context), but they were canceled anyway on a claim that they were not in line with Trump administration priorities. Democratic attorneys general from sixteen states, along with the American Public Health Association, sued to have the grants reinstated and in May, U.S. District Court Judge William Young, a Ronald Reagan appointee, agreed. He found not only that grants that have been previously awarded can't be unilaterally canceled, but also struck down the NIH guidance that led to these cancellations as unlawful under the Administrative Procedure Act. He held that the guidance leads to decisions that are arbitrary and capricious and discriminatory. The judge found that "DEI" was never defined at the hearing, and that the government attorneys offered no support for claims that the grant recipients were somehow harmful. Some of the grants were to examine racial health disparities, and the judge asked for evidence to support the claim that those grants are "unscientific." After receiving none and after repeated requests for "any support, any rational explanation" and not getting it, the judge concluded that he had "never seen a record where racial discrimination was so palpable."
Now, in an unsigned order, a 5-4 majority has stayed the judge's order and ignored not only the overwhelming evidence of discrimination in these cancellations, but also the impact on the important research these grants funded. According to epidemiologist Katelyn Jetelina, health inequities will go unaddressed and gaps in care will persist. Projected economic losses from the Trump administration's cuts, if they continue at the current pace, will be $47 billion, with 202,000 jobs lost.
Without addressing the merits, the Court reached two conclusions, with different majorities for each. The five conservative associate justices found that Young did not have the authority to rule in this case, and decreed that the matter must first be submitted to the Court of Federal Claims. Meanwhile, Chief Justice John Roberts, Associate Justice Amy Coney Barrett and the three liberal associate justices found that the court DID have the authority to strike down the NIH guidance that led to the cancellations. That means that Barrett was in the majority on both rulings (the only justice for whom that is true). Meanwhile, Roberts pointed out the incongruity of finding that the court had jurisdiction to rule on the guidance but not to decide whether the grants were properly canceled pursuant to that guidance. Jurisdiction is not a menu where a court can hear some parts of a case but not others: either a court has jurisdiction or it doesn't.
In her dissent, Associate Justice Ketanji Brown Jackson didn't mince words, accusing her conservative colleagues of playing "Calvinball" where there are only two rules: (1) there are no rules; and (2) this administration always wins. Pretty spot on, from where we sit. This is a pattern where so far the Court has given Trump wins by issuing stays under dubious circumstances, even while signaling that the administration is wrong on the merits.
Note that these rulings are not precedent—they are not based on full briefings or oral argument nor are they signed opinions—hence the name "shadow docket." But now lower courts are supposed to use these brief orders, in this case four paragraphs, to guide their decisions in full-blown cases, even when facts are different? It's particularly insulting when district courts have full hearings and then issue decisions that number in the hundreds of pages with citations to the evidence and the parties' arguments. The arrogance at the top is nothing short of stunning and it's causing real trauma to people's lives and livelihoods. Prof. Steve Vladeck had some choice words and a warning in response to this attack in his substack: "Justice Gorsuch's Attack on Lower Courts." (L)