Overview

• An Aug. 21 emergency ruling allowed the administration to move forward, for now, with canceling NIH research grants tied to diversity, equity and inclusion while litigation continues.
• Justice Neil Gorsuch, joined by Justice Brett Kavanaugh, warned that lower courts are never free to defy Supreme Court decisions and said an April precedent required filing these challenges in the Court of Federal Claims.
• Chief Justice John Roberts and the three liberal justices viewed the NIH dispute as different from the April case and said the district judge’s order blocking cancellations was valid.
• Justice Amy Coney Barrett proposed a split approach, suggesting some claims could stay with the district judge while others proceed in the Court of Federal Claims.
• Justice Ketanji Brown Jackson criticized what she called preferential treatment for the government and, along with outside scholars, faulted the Court’s thin emergency reasoning for leaving lower courts uncertain.