BREAKING: SCOTUS Nixes Trump’s Tariffs

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17:39Kate Shaw:Okay, so that is maybe the TLDR of the majority opinion. That's also, you know, it's in part a plurality opinion, but where there are six votes to strike down these tariffs. But there were also a lot of concurrences in this case. So let's talk about the two sane ones first. The one written by Justice Kagan and joined by Justice Isotomayor and Jackson is first up. And I will say you really have to respect them for holding the line the way they do on the major questions doctrine. They refuse to go along with this absolute charade slash mockery of the law, even though the court was wielding it for reasonable ends here.

18:12Kate Shaw:And it is a familiar move, I think, to say, well, we've lost the major questions battle. And so at least the court is using it appropriately here to invalidate this presidential action. That's a move we have seen justices, including these three, make before. It sometimes makes sense. They are not going to play that game here. This is a disaster masquerading as law, and they are unwilling to pretend otherwise. Good for them. Yes.

18:38Leah Litman:Neil Gorsuch said, or at least really implied, that they, the Democratic appointees, joined portions of the opinion applying the major questions doctrine, but they decidedly did not. Now, Neil's concurrence later clarifies that his allegation is actually that in there, the Democratic appointees' separate writing, they're effectively doing the major questions doctrine, which is different than joining an opinion, applying major questions doctrine. And I also think he's just wrong about that characterization in any case.

19:07Kate Shaw:But in the first part where he's like, no, no, I'm telling you what you did, the kind of like epic level of mansplaining of Neil Gorsuch telling the three women Democratic appointees what they actually think about the major questions doctrine.

19:21Leah Litman:I'm going to explain the contents of your mind to you ladies. I needed that.

19:25Kate Shaw:Luckily, Kagan responded to Gorsuch. So she had this footnote that I think we're just going to quote. Quote, Justice Gorsuch claims not to understand this statement, insisting that I now must be applying the major questions doctrine and his own version of it to boot. Given how strong his apparent desire for converts, I almost regret to inform him that I am not one. I proceed in this case just as I did in West Virginia and Nebraska. I consider a delegation provisions language, brawn the scope to take in the statutory setting, and apply some common sense about how Congress normally delegates. I will let Justice Gorsuch relitigate on his own our old debates about the other statutes unrelated to the one before us.

20:05Kate Shaw:Just pure fire.

20:06Leah Litman:I loved it. The shorter line here was stop trying to make the major questions doctrine happen, Neil. It's not going to happen.

20:15Kate Shaw:Or pretending that you already made it happen and that we all already like are on board. Like, no, no, no.

20:20Leah Litman:The almost regret line was just perfect.

20:23Kate Shaw:That's great.

20:24Leah Litman:on the Kagan opinion, I also wanted to flag this line, quote, combine the verbs and objects in all possible ways. And the statute authorizes 99 actions a president can take to address a foreign threat. And exactly none of the other 98 involve raising revenues. End quote. Shorter, Elena Kagan, you got 99 problems, John Sauer, and my brain is one of them. This was kind of a riff on a point she made during the oral argument that, look, Look, this statute lists a bunch of verbs, actions a president can take, but taxes and tariffs just aren't one of them. All right.

20:59Kate Shaw:So that was like a big, long concurrence, like obviously sparred with Gorsuch. There was one more sane concurrence, Justice Jackson's, which just kind of explains why legislative history is a proper consideration and how it helps to resolve this case. So I think another example, like the three Democratic appointees' refusal to just go along to get along with the major questions doctrine being a thing, just because a majority of her colleagues are unwilling to look at legislative history is not, for Justice Jackson, a reason to stop talking about it and reminding all of us that it does matter. And if we are one day in a saner timeline, like these remain important interpretive devices that courts should look to.

21:38Leah Litman:Let's move on to Neil Gorsuch's score settling concurrence. This was an absolutely unhinged concurrence to me. Very Godfather, today I settled all family business vibe. Like, you're not innocent, Justice Barrett, is one of the clear insinuations here.

21:56Kate Shaw:Absolutely. And so I love the Godfather reference. I will say that his family business has maybe not all been settled because his personal family business involves actually destroying administrative agencies. And since this is like a president case, not an agency case, he's going to have to await another day to fully avenge his mother and Gorsuch Burford. But today, he basically marches through to explain why every single separate writing in the case, the concurrences and the dissents, is wrong. And only he, Neil Gorsuch, I guess along with John Roberts, are principled and understand the meaning of the major questions doctrine and indeed kind of broadly how to do statutory interpretations.

22:37Kate Shaw:He says of his colleagues, each of which he clearly believes is a fool, quote, after kind of describing like what they have done, he says, it is an interesting turn of events. Each camp warrants a visit. And he's like just getting started.

22:52Leah Litman:Yeah. So as to the Democratic appointees, there was this line I alluded to earlier that I think is super misleading where he says, quote, past critics of the major questions doctrine do not object to its application in this case. End quote. Yes, they do. They refused to join the section of the opinion applying it. But why let facts get in the way of a great story?

23:13Kate Shaw:It did a little bit. All the crosstalk helped a little bit explain the delay. I mean, it's obviously nearly 200 pages of opinions. But like we all expected because they had so accelerated the consideration of the argument and the briefing that the opinion would be out like in January. And here we're kind of well into February. But there was just like a lot of crosstalk that they had to work through. And that is at least in part time for a while. And a lot of it coming from Neil Gorshitt. A lot of it.

23:36Leah Litman:Gore shit talking. Talking, yes. Right? That's good. That might be a new verb. I think it might be.

23:41Kate Shaw:And this is the fullest expression of it, I think. I think the verb was coined today because we just really saw his full capabilities today. Okay. So we talked about him going after Kagan and the Democratic appointees. He then goes off on Justice Barrett who, quote, he says, suggests the major questions doctrine is nothing more than routine statutory interpretation. I mean, he is right. There is a kernel of truth that the major questions doctrine, as the court deploys it, is not remotely like normal statutory interpretation. And it's actually pretty bad faith to suggest that it is. But, of course, he has to be a complete jerk about the way he does it.

24:17Kate Shaw:So here is a representative footnote. Quote, today, Justice Barrett protests that the foregoing discussion takes down a straw man. But it was Justice Barrett who previously wrote that the major questions doctrine grows out of common sense principles of communication. And it was Justice Barrett who used the various illustrations recounted above to suggest that our major question decisions can be explained by reference to the kind of common sense that goes without saying. If Justice Barrett now means to put all that to the flame, the major questions doctrine is better for it.

24:43Leah Litman:Roll the cameras. The girls are fighting. This is what I was alluding to previously when I said it's funny to me that they cannot even agree on what this, quote, doctrine is, even though they want to say this. the major questions doctrine is definitely law, they still can't agree on what it's actually doing as a matter of law. Also, stepping back, how does anyone go to work with Neil Gorsuch? He is so difficult and such a prima donna. This concurrence on concurrence on concurrence. I mean, don't you have other things to do, like a job?

25:22Kate Shaw:This is how he understands his job, Leah. And you do get the They must be so annoyed to have to like – As a shit poster. Yeah. Every day. Like all of them, not just the Democratic appointees. Oh, no. I think it's pretty clear. I mean, it's been clear for a while, but it's really clear on the face of this opinion. Okay. So that's what the sort of like, you know, ever sunshiny Neil had to say about his colleagues, Elena and Sonia and Ketanji and Amy. Now on to Brett and Sam and Clarence. This is what Neil had to say. Quote, Still others who've joined major questions decisions in the past dissent from today's application of the doctrine.

25:59Kate Shaw:Finally, seeking to sidestep the major questions doctrine altogether, one colleague submits that Congress may hand over to the president most of its powers, including the tariff power, without limit. That last bit was addressed to Clarence.

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29:32Kate Shaw:Okay, on to the dissents. Yes. Okay, Justice Kavanaugh, as we've already mentioned, had the main dissent. It said the major questions doctrine doesn't apply here for two reasons. One, this is a Republican president. I mean, that's not really on the face of the opinion, but the reasons provided are so flimsy that actually is kind of the only way to understand what he is saying. He says the doctrine doesn't apply because the statutory text, history, and precedent constitute clear congressional authorization for the president to impose tariffs under AIPA. But that's just not remotely plausible in light of the other major questions cases that the court has handed down and in light of what this statute actually says with its words.

30:10Kate Shaw:And he says, even if there wasn't clear authorization, the major questions doctrine doesn't apply to foreign affairs, a principle I have no doubt he would apply in a principle than even handed fashion to a Democratic president who attempted to do something about, say, climate change in part for foreign policy reasons. Absolutely.

30:28Leah Litman:His opinion is unsurprisingly a mess. It basically does a much worse version of Judge Toronto's opinion on the federal circuit, concluding that the president did have authorization to make these tariffs and a much worse version of Jack Goldsmith and Curtis Bradley's article arguing that the major question doctrine doesn't apply to foreign affairs. and his dissent has a listicle because of course it does. I mean, just reactionary dumb-dumb levels of gobbledygook here. The president had a different response, basically confirming that this is reactionary gobbledygook. So at this presser, he said Kavanaugh's, quote, stock has gone way up and that he's, quote, so proud of him today.

31:10Leah Litman:He added, quote, I would like to thank Justice Kavanaugh for, frankly, his genius and his great ability. Very proud of that appointment. Oh, my God.

31:21Kate Shaw:Did he talk about any of the other specific justices by name or just Justice Goodboy? He did.

31:26Leah Litman:Oh, yeah. Oh, yeah. When I'm telling you, you've got to watch this one. I do have to as soon as we're done. You've got to watch this one.

31:32Kate Shaw:Yeah.

31:32Leah Litman:So the chief's opinion barely responds to Brett Kavanaugh's principal dissent, basically saying, Brett, you ignorant slut. But Liz Dye of Public Notice said that she made that characterization of the chief's response on Blue Sky, so I wanted to credit her for it, even though I had this in our note before she said it. Anyways, specifically in this footnote, the chief responds to Justice Kavanaugh's invocation of a pre-AIPA case as a basis for the tariffs. So after the chief highlights a bunch of passages from that opinion that suggests the court's previous opinion was very narrow and didn't resolve emergency tariffs, the chief says, quote, quote, this is not quite no, no, a thousand times no, but should have sufficed to dissuade the principal dissent from invoking the case with respect to the quite distinct legal and factual issues present here, end quote.

32:20Leah Litman:Once again, the girls are biting. Brett Kavanaugh is such a desperate tryhard. He had some extremely pathetic footnotes that to me coded as I'm still a super Republican into all Republican jurisprudence. So for example, his footnote 16 began, quote, I have long been and fully remain a strong proponent of the major questions doctrine, end quote. And then in footnote 11, he says, quote, I cite the committee report, i.e. a form of legislative history, quote, not for determining the meaning of AIPA, but rather to help show as a historical and factual matter that members of Congress were aware of both the Nixon tariffs and appeals court decision, end quote.

33:02Leah Litman:That is using them to help establish its meaning. It's just pathetic.

33:09Kate Shaw:Very pathetic. And I highly doubt that's one of the paragraphs that our president read. But like I am, the fact that Trump gave Brett an attaboy at the press conference is just going to like encourage all of his worst impulses. And God. Yeah. OK. Kavanaugh had one more idea that we should mention, which is that essentially this policy is so illegal it will be tough to unwind. So we're just going to let the president do it. I mean, it's not exactly what he said, but that's basically the idea. And it really is conspicuous that you just don't recall seeing that argument in the student debt relief case.

33:48Kate Shaw:But I probably just missed it. We should also mention the Thomas dissent, which says Congress's power to impose duties slash tariffs on imports can be delegated to the president. And the reasoning here is that this area, so foreign commerce, is an area where the non-delegation doctrine just doesn't apply. So it's so interesting how you can take these doctrines and then if there are things that they would lead you to maybe do when your president is in the White House, then you can just identify exceptions. It is quite convenient the way that works. So this is, you know, one of the ways Republican appointees and some commentators have gerrymandered the non-delegation doctrine, similar to the gerrymandering of the major questions doctrine, in a way that would allow Republican presidents to do what they want and just to dismiss any inconvenient history, just create categories that explain why different kinds of history don't count QED.

34:37Leah Litman:So the Thomas opinion also decided to go full on anti no kings and argue that the non delegation doctrine specifically doesn't apply to powers of the crown. And Thomas asserts that one of the powers of the crown, which apparently was given to the person that the framers decidedly didn't want to make a king. But anyway, that one of the powers of the crown given to the president was tariffs. Now, Neil Gorsuch absolutely skewered this historical claim. You know, the king did not have power to raise revenue through tariffs. That was a parliamentary power. Britain fought a war over that. Also, Clarence, I'm not sure you've heard of this thing, this phrase, no taxation without representation.

35:19Leah Litman:We fought a war too. We fought a war too over it. Like, what a week for England out no kinging the United States.

35:27Kate Shaw:That's true.

35:28Leah Litman:So this is just supposed to be a bonus episode. It's getting long, but now to some take homes. So one for me is that the court did something good, which usually implies something wicked this way is about to come. Are we going to get the opinion striking down the Voting Rights Act next week? Possibility.

35:46Kate Shaw:Entirely possible.

35:47Leah Litman:Yep. Also wanted to underscore the ideological cross pressure at play in this case, which at least to me underscores this is not the start of a trend of the court just standing up against Donald Trump's lotlessness. And I would add to that that this ruling was also self-serving and helpful to Republicans, saving Trump from himself, from this disastrous, unpopular policy. And it's also self-serving for the court, not just to shore up their own legitimacy, but to shore up the major questions doctrine as well. And of course, unsurprisingly, we're already getting the court is good now takes. Fox News was right out of the gate on this one, which you can hear here.

36:28Leah Litman:Democrats have told us incessantly that this court is corrupt, that it is in the pocket of President Donald J.

36:35Kate Shaw:Trump, that it cannot be trusted, that it needs to be term limited, that it needs to be expanded. Today, we're getting all of these pressers, the press releases, the statements on the, you know, in Washington of people saying Democrats saying the court got this right.

36:50Leah Litman:Right. So does it quiet at all any of this political language that has been about modifying the court, these efforts that Democrats say, you know, if they retake the House and Senate, that they may make moves to modify the court as we now know it. So if that happens, we should remember today where they are in full praise of the court and very happy about what it's done. There's also the political impact on the GOP side. this has been mentioned a little bit, that we all know members that we've talked to on the GOP side of the aisle who are silently, quietly breathing a sigh of relief. And listen, the president can now say, you know, it's the Supreme Court's fault.

37:23Leah Litman:I tried. These tariffs were working. It's about the justices. And then pivot to these other options we know he has for other tariffs. But it wasn't just Fox. You know, the New York Times push alert after pushing out Supreme Court strikes down Trump's sweeping tariffs had a push alert that read, quote, the Supreme Court's Declaration of Independence, end quote. Yeah. So another key take home for me was that there's three votes for anything Republicans want to do on this court. I mean, Thomas Alito and Kavanaugh read a statute that doesn't mention tariffs to allow a Republican president to impose unlimited, unreviewable, unchecked tariffs.

37:59Kate Shaw:Yeah. So yeah, in terms of takeaways, I want to just elaborate on something that you said, which is that this major questions doctrine is this tool they have, They are loaded for bear with it. And it is going to be an enormous obstacle to any future Democratic president doing anything significant. Right. I mentioned climate change already. But literally, essentially through executive action, any future Democratic president is going to have like a long list of policy priorities. And SCOTUS, if not fundamentally reformed slash disempowered, is going to be essentially an insuperable obstacle to the implementation of any of the items on that agenda because of not just because of but largely because they have this malleable major questions doctrine that they will wield to invalidate anything they don't like that a president or an administration might do.

38:48Kate Shaw:I mean, we've joked before about the major questions doctrine barring the government from stopping an asteroid barreling toward Earth. I mean, I think those are the literal stakes for a future Democratic president.

38:58Leah Litman:Absolutely strong plus one. This is part of why Supreme Court reform has to be part of any Democratic agenda. And, you know, as I said, Brett Kavanaugh even dropped a footnote noting that he and presumably Alito and Thomas, who joined him, remain strong proponents of the major questions doctrine, aka he's watching and waiting for you, future President Ocasio-Cortez. And these guys aren't even subtle about this. So Rand Paul, after the decision, tweeted out, this ruling will also prevent a future president such as AOC from using emergency powers to enact socialism. Yeah.

39:34Kate Shaw:So one other takeaway, and also kind of an elaboration on a point you made earlier, Leah. So if the Cook case also goes against Trump, right, that's the case involving his ability to fire Lisa Cook, from the Federal Reserve, we have a pretty strong indication from the tariffs case and the Fed case that the court's tolerance for authoritarianism is high. But when that threatens, you know, markets, you know, both the stock market and the kind of global economy, the court may curb presidential authority. And like, while I once thought that John Roberts actually, you know, for all his flaws, did at least care about things like the separation of powers.

40:07Kate Shaw:And while this opinion does pay lip service to that, right, says congressional primacy and taxation is an important constitutional principle, I actually no longer think he cares much about the separation of power. So it actually seems to me really important for future big cases heading up to SCOTUS to, if you're trying to win the cases, foreground whatever business or economic case you might have against executive overreach, because that, I think, is the language that this majority understands. And that is the only mode of argument that is getting much traction with this court.

40:39Leah Litman:Roberts was very into Pam Bondi's appearance before that congressional committee. He was like, yes, the Dow is 50 ,000, Pam. You're right.

40:49Kate Shaw:Yep, yep. You mentioned Pam Bondi. I mean, Tuesday's State of the Union in the wake of this decision is going to be really interesting. So again, I still need to listen to this press conference. But now that two-thirds of Trump's appointees to the court have ruled against him, and he is, I guess, not making any secret of his displeasure, I am really curious if Kavanaugh gets an actual like back slapping attaboy if Kavanaugh's there, which he typically is. Curious if Trump gives John Roberts a different kind of won't forget it than he gave him at last year's State of the Union.

41:23Leah Litman:Absolutely. I mean, again, you got to watch this, but he called them the Republican appointees who struck down the tariffs slime balls and that they were an embarrassment to their families. Okay. So very curious to watch what happens on Tuesday. I mean, I was waiting with bated breath for his response, and it truly did not disappoint. Here is just a sampling of it, which you can hear here.

41:48Kate Shaw:They're very unpatriotic and disloyal to our constitution. It's my opinion that the court has been swayed by foreign interests and a political movement that is far smaller than people would ever think.

42:02Leah Litman:Now, there were also some concerning indicators about how Trump might try to move the news cycle on from this tariffs decision, specifically maybe by starting another war, this one with Iran. Minutes after the tariffs ruling was reported, the New York Times said, president acknowledges that he is weighing limited strike on Iran. Now, we will end with this bit from the president's presser with no context. I want to be a good boy. That's all for today's emergency episode. Happy Liberation Day to all who celebrate. We will be back on Monday with much, much more.

42:57Kate Shaw:unionized with the Writers Guild of America East. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube at Strict Scrutiny Podcast, so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.