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.

The Republican justices treat Trump as the special favorite of the law

It doesn’t take much work to prove that the Republican justices think Trump is above the law. I could post a citation to Trump v. United States (2024), the decision immunizing Trump from prosecution for his official acts in office, and walk away with a mic drop.

But that is not an isolated case. It joins a widespread pattern of decisions treating the GOP leader as if he is special.

Before Trump’s first term, the Supreme Court heard cases almost exclusively through a slow process that maximized the justices’ ability to consider every implication of their eventual decision. Typically, the Court wouldn’t even consider hearing a case until it was decided by at least two other courts — a trial court and an appeals court. Even then, they’d often wait until two appeals courts divided on the answer to the same legal question (what’s known as a “circuit split”).

The reason for this caution was straightforward: The Supreme Court has the final word on how to interpret any provision of US law. If they get a question wrong, there’s often no way to correct their error outside of a constitutional amendment. Plus, in the overwhelming majority of cases, lower court judges can be trusted to apply the law. So it made sense for the nation’s final adjudicators to wait, letting parties on both sides of an issue figure out their best arguments in lower courts, before the justices issued a decree that was likely to stand forever.

Indeed, the Court was historically so hostile to litigants who attempted to jump in line, that — outside of death penalty cases, where someone would die if the justices didn’t immediately intervene — most attorneys wouldn’t even ask the Supreme Court to hear a case before an appeals court handed down its final decision.

The Department of Justice, for example, brings tens of thousands of cases every year. But, in the 16 years when George W. Bush and Barack Obama were president, the DOJ only asked the justices to intervene prior to a final appellate judgment eight times — once every other year.

Then Trump became president, and everything changed. In the Supreme Court’s 2018–’19 term alone, Trump’s DOJ filed 10 petitions asking the justices to block a lower court’s decision on its “shadow docket,” a forum for emergency motions and other matters that receive the Court’s expedited review. Rather than enforce its longstanding norms, the justices abandoned them to accommodate Trump. According to a November 2019 paper by law professor Steve Vladeck, through that point in his first term Trump won a full or partial victory on two-thirds of his requests to stay a lower court decision.

In his second term, the Court has only grown more favorable to Trump — granting, in full or in part, 16 of his last 16 requests for shadow docket relief. Some of these decisions are devastating. Department of Homeland Security v. D.V.D. effectively permits Trump to neutralize the Convention Against Torture. McMahon v. New York allows Trump to fire so many civil servants that entire programs mandated by law cease to exist.

The Court handed Trump even more victories by

© Vox