Alleging Bad Faith in NIH v. APHA

A Rhetoric of Lawlessness at the Supreme Court

Salient conservatives have been complaining that lower courts are defying the Supreme Court. The Trump Administration sought relief in NIH v. APHA partly on that basis. In a partial dissent joined by Justice Kavanaugh, Justice Gorsuch agreed, insisting that lower courts “are never free to defy” the justices. According to Gorsuch, the issue in NIH was “squarely controlled” by a recent Court decision. Gorsuch also pointed to other recent examples of asserted defiance, effectively wagging his finger at the lower courts.

But there is a glaring problem with this argument: in NIH, the district court’s view garnered the support of at least four justices. To simplify, the key issue was whether an APA challenge relating to a government contract represented an action “based on” the contract, such that the action had to be filed in the Court of Federal Claims. Four justices agreed with the district court that the answer was “No.” And Justice Barrett’s pivotal opinion basically answered, “No in part.” All these justices concluded that NIH was distinguishable, at least in part, from past case law. That is why Gorsuch’s opinion was a partial dissent, even though it reads like a pure concurrence. As the justices’ complex and conflicting votes indicate, this issue was difficult.

Gorsuch therefore jumped too quickly to allege defiance—a serious charge akin to bad faith. This flimsy allegation is particularly concerning because it feeds into the perception that the Court majority is biased in favor of the Administration, whereas certain lower courts are biased in favor of anti-Trump liberal plaintiffs.

Gorsuch was not alone in verging on alleging bad faith. Justice Jackson’s partial dissent argued that the Court was indeed beholden to the Trump Administration. As she put it, the Court seems to have the following rule: “this Administration always wins.” That allegation went beyond normal dissenting rhetoric, which asserts that majority justices are imposing their own views on the law. By contrast, Jackson bluntly claimed that the Court has been captured by partisan political interests.

Yet this claim, too, has glaring problems. For one thing, the Administration does not always win at the Court. In fact, the Trump Administration did not entirely win in NIH itself, as Justice Barrett’s split-the-difference middle view controlled the result. Once again, the justices’ votes in the case indicated that the key legal issue was difficult and maybe indeterminate.

Jackson herself ultimately acknowledged that the Administration might lose at the Court. As she noted, “this order is not the last word” on the merits, and affected parties may yet “find a way to maintain their research studies—and their legal claims—long enough to give the Court the chance to change its mind.” This concluding passage may partly retract Jackson’s earlier allegation.

What to make of these mirrored accusations?

First and most obviously, the polarized rhetoric of our overall society is seeping into the Court. At an extreme, legal reasoning would be replaced by partisan jurists yelling mean words at each other, while voting according to the views of their constituencies. Fortunately, we are not yet there. The NIH opinions featured a lot of legal reasoning, both the Chief Justice and Justice Barrett avoided politically stereotypical voting, and most justices did not allege bad faith.

Second, some readers may reasonably think that Justices Gorsuch and Jackson are on to something. (If you think that only one of them is on to something, does that asymmetric assessment reinforce your own political views?) Many plaintiffs are seeking lower courts that lean liberal to increase their odds of victory. And, in part because its majority is conservative, the Court is likely to favor many actions by a conservative President, especially when (as now) there is united government. So maybe it is time for the veil of legalism to drop, at least a bit.

Finally, for my part, I would urge the justices—especially majority justices—to avoid accusations of bad faith. “Dissenters have the pain of defeat and the freedom of personal voice to excuse their behavior.” And Justice Jackson’s criticisms may also prompt the majority to guard against its own biases, consistent with the notion that it ought to embrace anti-partisanship. Yet even a dissenter’s overheated rhetoric can contribute to our legal culture’s downward spiral away from legal reasoning.

The frustrations, thrills, and fears associated with partisan conflict make it tempting for judges to join in. But that is not the judicial role.