Supreme Court greenlights US$783m in health research cuts

Associate Justice Ketanji Brown Jackson’s swingeing dissent in the case in which the Supreme Court of the United States (SCOTUS) greenlit the termination of more than three-quarters of a billion US dollars in grants to medical research on 21 August had court watchers reaching for their computers or smartphones to determine the judicial meaning of ‘Calvinball’. The term comes from the comic strip Calvin and Hobbes, syndicated across the US between 1985 and 1995.

“Calvinball has only one rule: there are no fixed rules,” wrote Jackson. It was invented by Calvin and his tiger Hobbes, who to everyone else is a stuffed animal but to Calvin is his living friend, to denote a game play ontology in which play cannot occur more than once because the rules and goals of a game are in constant flux.

Jackson, the court’s newest justice, broke from the century-old tradition of deference to her senior colleagues, some of whom have been on the SCOTUS for decades, by writing that by agreeing that the National Institutes of Health (NIH) can terminate the grants for research which mostly takes place in America’s top research universities, the six Republican-appointed members of the nine-member SCOTUS have created “Calvinball jurisprudence with a twist”.

“We seem to have two [rules]: that one (that is, ‘there are no fixed rules’), and [that] this administration always wins,” wrote Jackson, who was appointed to the SCOTUS by former president Joe Biden in 2022. Court watchers did not need Jackson to add that among the Republican majority are three judges appointed by President Donald J Trump during his first term.

A grievous attack on science and medicine

“We are very disappointed by the Supreme Court’s ruling that our challenge to the sweeping termination of hundreds of critical biomedical research grants likely belongs in the Court of Federal Claims (CFC),” said a joint statement by the American Civil Liberties Union (ACLU) of Massachusetts and the American Public Health Association (APHA), one of the four organisations that joined the ACLU after it successfully obtained an injunction last April stopping Secretary of Health, Robert F Kennedy Jr (RFK Jr) and the NIH from proceeding with the cuts.

“This decision is a significant setback for public health. We are assessing our options but will work diligently to ensure that these unlawfully terminated grants continue to be restored,” added the statement.

The Association of American Medical Colleges also used uncharacteristically strong language in its response to the decision.

“Make no mistake: This was a decision critical to the future of the nation, and the Supreme Court made the wrong choice. History will look upon these mass National Institutes of Health research grant terminations with shame. The Court has turned a blind eye to this grievous attack on science and medicine, and we call upon Congress to take action to restore the rule of law at NIH.”

A country in limbo

That by a 5-4 vote the SCOTUS also said that the Federal District Court in Massachusetts, where the case was originally filed, has the power to review the reasoning behind the NIH cuts is cold comfort – even the ACLU’s and APHA’s statement says that because of this the NIH does not have the power to terminate the grants.

What Jackson called the Court’s “bizarre claim-splitting regime” amounts to an order in which “plaintiffs like these – federal grantees who believe their grants were terminated pursuant to an unlawful policy” – are left with no response to the question of how they get complete relief. “The answer, it seems, is they cannot,” it states.

Wesley Whistle, Project Director, Student Success & Affordability with the Washington, DC-based progressive NGO New America, and an expert in America’s post-secondary system, said in an e-mail to University World News that “yesterday’s Supreme Court decision is deeply troubling.

By allowing the NIH cuts to take effect for now, the Court has opened the door to a policy that jeopardises life-saving medical research, slows down innovation, and undermines the fight against diseases from cancer to Alzheimer’s”.

According to Whistle: “These cuts would harm patients and communities across the country while setting back America’s global leadership in science and public health.

“In an odd twist, however, the Court also allowed the case challenging those cuts to move forward.

“That leaves the country in limbo: research funding hangs in the balance while scientists, patients, and communities face uncertainty about whether critical projects will continue.”

The end of the road?

A few days after the SCOTUS’ decisions were handed down, the situation is anomalous, explained Scott Delaney, a research scientist in environmental health at Harvard University’s TH Chan School of Public Health, who was a practising lawyer for 10 years.

On the one hand, the SCOTUS said that the Federal District Court judge did not have the authority to stay the cuts because the case should have been brought in the CFC. The SCOTUS’ stay on the injunction did not order that the cuts be reinstated.

On the other hand, the SCOTUS said that the District judge can go ahead and hear arguments on the real merits of the case: whether NIH’s procedures and internal directives are constitutional.

As of early Monday 25 August, the grants are still active – and, according to Delaney, NIH “can’t use those policies to terminate the grants”, which means that NIH and the lawyers in its parent department, Health and Human Services (HHS), need different reasons to terminate the grants.

However, Delaney said: “There may be a world where, in a week or two or three, the grants are still active, but I just don’t see it happening. There’s nothing about this administration, nothing about HHS, nothing about RFK Jr or NIH director Jay Bhattacharya that makes me think that they’re just going to change their mind all of a sudden and continue funding these grants. I just don’t see any reasonably likely scenario where these grants come back; I don’t see any viable way that the plaintiffs will succeed.”

Speaking as a researcher, Delaney told University World News that the plaintiffs (ACLU and APHA) could “refile in the Court of Federal Claims. But two years later, or a year later, whenever you finally win that claim, your research is gone. You can’t just pause it and then restart it. Two years later, you lose study participants, you lose staff, you lose cell cultures. You have to start the whole thing over again. Research just doesn’t work that way.”

Background

For the majority of the justices, the case, which University Wolrd News has previously covered, originally filed in February, turned largely on whether the plaintiffs were suing in the proper venue.

Both the District and First Circuit Appeals Court (Massachusetts) agreed that the case was properly filed in the Federal District Court – and not the lesser-known Court of Federal Claims (CFC), which, according to its website, “has jurisdiction over claims seeking money judgements against the United States,” in, for example, tax or breach of contract cases.

By contrast, the majority of the SCOTUS justices concurred with Associate Justice Neil Gorsuch, one of Trump’s appointees, who quoted from the SCOTUS decision in the Department of Education v. California handed down last April.

In that case the six Republican-appointed justices sided with the Trump administration by “stay[ing] a temporary restraining order issued by a federal district court, which enjoined the Government from terminating various education-related grants” ordered by Secretary of Education Linda McMahon as part of her mission to dismantle the Department of Education.

“California,” Gorsuch wrote, “explained that ‘suits based on ‘any express or implied contract with the United States’ do not belong in the district court under the Administrative Procedures Act (APA) but under the Court of Federal Claims under the Tucker Act (Tucker)”, which dates to 1887.

“What the SCOTUS majority has said is that the scientists in national institutes and universities should have sued for breach of contract – and the place to do that is the CFC, as per the Tucker Act.

As Associate Justice Amy Coney Barrett put it: “Suits against the United States are ‘available by grace and not by right,’ and the relief available is subject to the conditions Congress sets” and Congress did not intend for the APA to supersede the Tucker Act.”

Jackson is unsparing in her critique of California, starting with the fact that it is a four-paragraph ruling made as part of the SCOTUS’s “Emergency Docket” and that it was “issued without full briefing or any oral argument”.

Now, she writes, it appears to “govern all APA challenges to grant-funding determinations” and is put forward “to partially sustain the Government’s abrupt cancellation of hundreds of millions of dollars allocated to support life-saving biomedical research”.

The facts on the ground

Jackson’s emphasis on biomedical research is important because none of the majority decisions even acknowledged the facts on the ground. Referring to the District Court’s decision to enjoin Kennedy’s termination of the grants, Jackson used the particulars of the case to distinguish it from California and, thus, provide a way out of the pigeonhole that case created.

In California, there was a rough balance of equities between the DoE and the government of California, but in this case brought against the NIH cuts, the “plaintiffs stood to lose more and the government less: … [T]hese researchers lack the financial wherewithal to keep their programmes running on their own – meaning a stay would euthanise animal subjects, terminate life-saving trials and close community health clinics. And unlike in California, there is no fast-expiring temporary restraining order incentivising a rushed drawdown of granted funds”, she said.

Since the researchers’ relationship with the NIH was not a classical contract, Jackson concluded, their case did not belong in the CFC but, rather, in Federal District Court.

In the light of Jackson’s dissent, the majority opinions that refer to Trump’s executive orders banning diversity, equity and inclusion (DEI) practices in the government or programmes to foster gender identity or study COVID-19 and vaccine hesitancy appear wilfully divorced from congressional intent.

This is especially true given that the present Congress has not passed any legislation retracting previous legislation authorising these programmes, such as the one that, Jackson notes, requires the National Cancer Institute (which is part of the NIH) to fund programmes “designed to assist populations, low-income populations, or minority groups”.

Barrett, for example, blithely listed the numbers of three executive orders that led the NIH to work to “align its funding with changing policy priorities” and the existence of new “internal guidance documents describing those priorities”.

She then writes: “Going forward, the agency will not fund research related to DEI objectives, gender identity, or COVID–19. Nor will it continue the practice of awarding grants to researchers based on race”, notwithstanding the fact that a law, which required being passed by Congress and signed by the president, outweighs an executive order – and the law on the books requires that, for example, the NIH “ensure that women and members of minority groups are represented in the clinical research it supports”.

Associate Justice Brent Kavanagh, another Trump appointee, was dismissive of the lower court that found merit in the APHA’s argument that the NIH never defined the term DEI.

“But, there is no APA rule that agencies define every term in every internal guidance document, particularly when that guidance steers highly discretionary decisions over how to allocate limited agency resources,” he stated.

Kavanagh’s Olympian detachment, given the congressional direction that the NIH-based National Institute on Minority Health and Health Disparities “make awards . . . for the purpose of . . . supporting programmes of excellence in biomedical and behavioural research training for individuals who are members of minority health disparity populations.”

Yet, as Jackson points out, the District Court didn’t just note that the NIH failed to define DEI; it found that the lack of a definition left “individual agency employees ‘to arrive at whatever conclusion [they] wished’,” a situation totally at odds with both “rational-legal government” as defined in Economy and Society by the sociologist Max Weber as well as the NIH’s own history: between 2012 and 2025, there were six midstream grant terminations, notes Jackson. (Using figures from 2013 and 2017 and 2020 to 2025, when the NIH made a total of 784,000 grants, the rate of midstream terminations amounts to 0.00077% of the total number of grants made by the NIH.)

“That definitional void left them applying ‘circular and nonsensical boilerplate language to cancel grants without explanation or reason and in a manner that had ‘absolutely nothing to do with the promotion of science or research’,” writes Jackson.

Neither Barrett nor Kavanagh deigned to acknowledge the factual findings of the District Court – nor did they dispute them.

“In place of science, meanwhile, came something more pernicious,” says Jackson. “The court found, as a factual matter, ‘an unmistakable pattern of discrimination against women’s health issues’ and ‘pervasive racial discrimination’ – indeed, ‘palpable’ racial discrimination of a sort the judge had ‘never seen’ in 40 years on the bench.”

These facts led, the District Judge determined, and Jackson summarised, to “a policy of mass grant terminations that was ‘breathtakingly arbitrary and capricious’... that “the District Court declared unlawful and vacated the challenged directives” that undergirded the termination of the grants.

No justice siding with the 5-4 majority disputed what either the district judge or Jackson said about the substantive question about the NIH’s directives or the findings about racism and other bias and, most importantly, Jackson’s references to the letter of the law.

According to Delaney, the majority of the justices “didn’t engage or care to engage with congressional requirements and their interaction with executive policy. Or what the NIH ultimately did in terminating these grants and discriminating on the basis of race and sex”. And this might be the case “because they have a very expansive view of executive power”.

In layman’s terms, the SCOTUS appears to believe that executive orders trump congressional mandates.

Progress reversed

Jackson concludes her dissent by weighing the “harm” each party could suffer in different legal scenarios.

Were the terminations to be stayed pending review by the lower court of the NIH’s procedures and were that court to then find that the procedures passed constitutional muster, she argues, the federal government would have lost a number of “incremental” payments.

The SCOTUS, by contrast, “concludes that the Government faces irreparable harm simply because the plaintiffs do not pinky-promise to reimburse the Government if the Government ultimately prevails” in court.

According to Jackson, the “harm that the plaintiffs and the public will suffer from [approving] a stay plainly dwarfs the purportedly irreparable injury to the Government if a stay is denied. For the government, the incremental expenditure of money is at stake.

For the plaintiffs and the public, scientific progress itself hangs in the balance – along with the lives that progress saves,” writes Jackson, who went on to paint a dystopian picture of medical science under the SCOTUS decision in National Institutes of Health, et al. v American Public Health Association et al.

“Make no mistake: Per the evidence in front of the District Court, the forward march of scientific discovery will not only be halted – it will be reversed. Because studies and researchers cannot be held in stasis, there is no way to recover the lost time, research continuity, or training value once disrupted. Thus, years-long studies will lose validity. Animal subjects will be euthanised.

Life-saving medication trials will be abandoned. Countless researchers will lose their jobs. And community health clinics (providing, inter alia, preventative treatment for infectious diseases) will close.”