Noah Feldman: Amy Coney Barrett is a maddening voice on grant cases

When it comes to lawsuits against the Trump administration for unlawfully terminating government grants and contracts, Justice Amy Coney Barrett has become the deciding voice at the Supreme Court.

In an important decision concerning the National Institutes of Health’s termination of grants related to gender, DEI and COVID, Barrett held that grant recipients are permitted to sue in federal district court to challenge the legality of the NIH’s actions. But she also ruled that the recipients must pursue claims for monetary relief in the separate, specialized Court of Federal Claims if they win in district court.

Barrett’s decision hinges on a legal technicality that was rejected by the other eight justices. The court’s three liberals, plus Chief Justice John Roberts, concluded that the district court should be able to both resolve the suit and award the money if the NIH’s actions violated the law. The court’s other four conservatives thought the entire lawsuit belonged in the Court of Federal Claims. By voting with the liberals to hold that the district court could decide the legality of the NIH’s actions and with the conservatives to hold that only the claims court can restore money owed, Barrett cast the deciding fifth vote in both parts of the case. The result — in practice, a compromise ruling — is wholly her own.

To be clear, Barrett is not a compromiser by nature. Her opinion isn’t meant as a compromise, nor is it written in conciliatory terms. Instead, the brief opinion reads like a piece of legal craftsmanship: legally defensible and logically maddening.

The essence of Barrett’s position is that there is a difference between asserting that the NIH has taken an action that is arbitrary and capricious under the Administrative Procedure Act (APA) and asking a court to order the government to pay what it owes.

The legal support for Barrett’s stance has two parts. First, federal district and appeals courts regularly hear claims that government agencies have violated the APA. The conservatives’ position — that any suit seeking monetary payment must go to the Court of Federal Claims — would undermine the long-established practice of allowing federal courts to review agency actions.

Second, there is indeed a federal statute that says if the government owes you money, you must go to the claims court to recover it. This is based on the somewhat arcane idea that the government, as a sovereign, isn’t obligated to subject itself to lawsuits seeking monetary damages but can decide where to allow such suits to go forward — specifically, the Court of Federal Claims.

Strictly speaking, the Supreme Court’s ruling doesn’t mean that the Trump administration can get away with the cuts. The plaintiffs can still go to the Court of Federal Claims and seek reinstatement of their grants. In theory, they could still win. In practice, that’s a long road to follow with no guarantee of victory — especially given they had already won in district court.

In her opinion, Barrett claimed that her view was based not only on law but also on “logic.” That’s a stretch. She reasoned that if a district court holds the NIH’s action unlawful, that ruling wouldn’t automatically reinstate the grants because the court would still need to issue a separate order requiring the government to pay what it owes. In ordinary English, this isn’t “logical” — it’s a legal technicality. What would be logical is for the same court to decide whether the government has acted lawfully and then order a remedy based on that decision. The eight other justices all consider that to be the logical way to do things — they differ only on which of the two courts should have jurisdiction.

It would be fair to say that the other eight justices are not only trying to be logical but are also influenced by the political backdrop. In case after case, both lower courts and the Supreme Court have had to deal with the Trump administration’s unprecedented attempts to use executive orders to rescind grants and contracts previously authorized under existing law.

The liberals, plus Roberts, view all or most of these executive orders as unlawful and don’t want the Trump administration to be able to get away with them. For them, the district courts are the proper venue to reject Trump’s actions and render them null and void — not just in theory, but in practice.

The court’s three hardline conservatives — plus conservative Justice Brett Kavanaugh — believe, to the contrary, that Trump’s actions are perfectly legal. They want to keep the district courts out of the process precisely because they recognize that these courts largely disagree with them. Redirecting grant and contract cases to the Court of Federal Claims is a way to make them go away and allow Trump to accomplish his policy goals through executive orders.

Barrett seems genuinely uninterested in the politics or the outcome. She’s trying to be a precise lawyer. That’s consistent with her jurisprudential philosophy, inspired by the late Justice Antonin Scalia, which holds that judges should stay out of politics and decide legal issues based solely on the law.

Barrett’s powerful position as the deciding vote on these issues has implications for other cases before the courts, including Harvard’s lawsuit seeking reinstatement of its grants. Reading the tea leaves, if Harvard’s case were to reach the Supreme Court after a favorable lower court decision, Barrett would likely rule that the university could recover improperly terminated grants only by going to the Court of Federal Claims — but that the Trump administration couldn’t legally continue cutting off funds going forward. A settlement in the Harvard case would mean that the issue is never decided by any court. Absent a settlement, the fate of the nation’s oldest university may lie with Barrett.

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This column reflects the personal views of the author and does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

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