What Should a Lower Federal Court Judge Do When SCOTUS Plays Calvinball?

Last week, Federal District Court Judge Allison Burroughs handed Harvard a major victory in its lawsuit challenging the Trump administration's withholding of federal funds. As she explained in detail, the administration did not come close to complying with the numerous procedural requirements for enforcing Title VI. Moreover, as a substantive matter, the administration's claim that Harvard had inadequately responded to antisemitism was completely undermined by its failure even to acknowledge the numerous steps Harvard did take. And the escalating punishments were in obvious retaliation for Harvard's exercise of its free speech rights.

Unfortunately, Harvard's win may prove ephemeral. Although Judge Burroughs's substantive analysis is devastating and, in my view, entirely sound, to reach the merits she had to resolve a threshold jurisdictional issue that is substantially closer--given the recent SCOTUS emergency docket decision in NIH v. APHA. The government argued in the Harvard case, as it had in APHA, that, pursuant to the Tucker Act, challenges to the federal government's withholding of funds can be heard only by the Court of Federal Claims. The government won on that argument in APHA, resulting in the stay of a district court injunction ordering the restoration of research funding. Judge Burroughs found APHA distinguishable. Was she right?

The Court split 4-1-4 in APHA. Four Justices (Roberts, Sotomayor, Kagan, and Jackson) thought the Court should have denied the government's stay motion entirely. As Chief Justice Roberts pithily explained for these four, the district court had authority under the Administrative Procedure Act to vacate the challenged administration policy directives, and thus it followed that the Court also had the authority to invalidate the grant terminations that were based on those directives.

For a variety of reasons articulated in multiple separate opinions, another four Justices (Thomas, Alito, Gorsuch, and Kavanaugh) thought that the challenge to the grant terminations was essentially a suit for money owed under a contract and thus had to go to the Court of Federal Claims, dragging with it what they regarded as the inextricably linked challenge to the policy directives.

Justice Barrett split the difference. She thought that a federal district court could hear a challenge to the policy directives but could not order grant money restored because that had to go to the Court of Federal Claims.

Judge Burroughs wrote that Justice Barrett's view was controlling under the principles established in Marks v. United States for discerning a governing rule of law when there is no majority opinion (or when, as in APHA, the majority opinion is a terse per curiam that leaves open questions addressed by various Justices in separate opinions concurring or dissenting). Applying Justice Barrett's opinion in APHA, Judge Burroughs concluded that she had jurisdiction over Harvard's claim under the Administrative Procedure Act that the government had acted arbitrarily and capriciously in freezing its federal funding--a claim she analogized to the challenge to the policy guidance documents in APHA--but that she lacked jurisdiction over the arbitrary-and-capricious challenge to the grant terminations. That is why the ruling states that the court was granting Harvard's summary judgment motion in part and denying it in part; it also explains why the ruling grants the government's summary judgment motion in part and denies it in part.

However, that's only with respect to the arbitrary-and-capricious claim. Judge Burroughs held that Harvard's First Amendment and Title VI claims were not subject to the bifurcation approach endorsed by Justice Barrett in APHA because they were not contract claims to which the Tucker Act would ordinarily apply. In so doing, she noted that APHA and another recent emergency docket case, Dep't of Education v. California, both involved only arbitrary-and-capricious claims. She also explained that language in Title VI distinguished such claims. And she noted that the bifurcation approach would not work well for the Title VI or the First Amendment claim.

Are those distinctions persuasive? I think they could be, but I'm not the relevant audience. The Supreme Court is. At the end of her jurisdictional analysis, Judge Burroughs acknowledged as much. "It may well be," she wrote,

that these differences would not distinguish these claims in the eyes of the Supreme Court. But this is not Calvinball and there are rules. Under those rules, which are set by existing Supreme Court precedent, this Court cannot conclude that core First Amendment claims or pure statutory claims fall within the exclusive jurisdiction of the Court of Federal Claims.

For those unfamiliar with the term, "Calvinball" is a reference to the cartoon Calvin and Hobbes. It denotes a game in which Calvin changes the rules whenever he wishes, so as to ensure his own victory. By invoking Calvinball, Judge Burroughs might be seen as poking the Supreme Court in the eye. That's especially so in light of Judge Burroughs's footnote 9, in which she slaps back at Justice Gorsuch, who, in his APHA concurrence, had complained that district courts were defying the Supreme Court by failing to treat its terse emergency docket rulings as binding. Judge Burroughs wrote that it is "unhelpful and unnecessary" to accuse district courts of defiance

when they are working to find the right answer in a rapidly evolving doctrinal landscape, where they must grapple with both existing precedent and interim guidance from the Supreme Court that appears to set that precedent aside without much explanation or consensus.

That language especially has been singled out as highly unusual criticism of SCOTUS by a district court judge. It is even more so when read in conjunction with the "Calvinball" accusation. After all, Calvin changes the rule in order to favor a particular player: himself. By (at least tacitly) accusing SCOTUS of playing Calvinball, Judge Burroughs can be read to be saying the Court is in the midst of ignoring, bending, changing, or breaking the rules in order to benefit its own favored player: Donald Trump.

Is them fightin' words? Maybe, but focusing on the pique misses a larger point about the nature of law and the role of lower courts--one that I addressed in one of my earliest law review articles.

One might think, and some scholars for whom I have great respect have argued, that the job of a judge on a lower federal court is to rule on questions of law in the way that the judge anticipates SCOTUS would rule. I think that's wrong--or if it's right that it's right only by a kind of coincidence. Lower court judges are supposed to apply the law. Because the applicable law includes relevant SCOTUS precedents, in most cases, a lower court judge applying the law will automatically anticipate what SCOTUS will do.

But what if SCOTUS has indicated that it will soon overrule or modify a precedent? In Rodriguez de Quijas v. Shearson/American Express, Inc. (1989), the Supreme Court said that even then the lower federal courts (and state courts) should follow the existing precedents unless and until the Supreme Court itself overrules those precedents.

Some of the commentators who think lower court judges should try to anticipate SCOTUS rulings believe Rodriguez de Quijas is wrong. I myself am ambivalent. Suppose that a lower court judge thinks a precedent is going to be overruled because subsequent cases undermine that precedent. I think a case can be made for allowing a lower court judge in those circumstances to hold that the challenged precedent has in fact been undermined or superseded. In doing so, the lower court judge is still following the law--namely the precedents that do the undermining.

However, suppose that no intervening decisions undermine the key precedent. Suppose instead that the lower court judge anticipates the possibility of a SCOTUS ruling departing from or ignoring the key precedent because one or more Justices whose votes are critical to the outcome harbor racial prejudice against the party relying on the key precedent. Or suppose that the party opposing the implications of the key precedent is a personal friend of two Justices who are unlikely to recuse themselves and will vote for their friend even if it means ignoring the key precedent. Or suppose--as Judge Burroughs invites us to suppose--that the Supreme Court might ignore or change the governing precedents because it is biased in favor of an administration that is trying to destroy higher education (and constitutional democracy) in the United States. In any of those situations, following the law means following the actual sources of law--not trying to anticipate how the Supreme Court will illegitimately rule.

That, at any rate, is the core of the argument I made in Prediction and the Rule of Law thirty years ago. It appears to be the view that Judge Burroughs takes as well. 

--Michael C. Dorf