“Everyone is Overreacting” on the Tariff Ruling, Stephen Vladeck Says

0:00So, I just heard from a friend whose family is on their way to spring training down in Sarasota, and they were at the airport, and they bumped into none other than Joe Biden, who's just flying commercial, just like an ordinary Joe. I mean, and I'm thinking, wow, what a contrast to the front page of The New York Times with pictures of gold coins with Trump's face on it and Kristi Noem's fancy plane that she wants and Kash Patel's private jets. Yeah, flying to Italy on our dime to enjoy the hockey game. Yeah, I mean, Amtrak of the skies, I guess. Right, exactly. But the question is, does he get the economy plus seat?

0:43More peanuts.

0:48Welcome to The Political Scene from The New Yorker, a weekly discussion about the big questions in American politics. I'm Susan Glasser, and I'm joined by my colleagues Evan Osnos and Jane Mayer. Hi, Evan. Good morning, guys. Hi, Jane. Hey there. Great to be with you. Today, we are turning to the Supreme Court. In the coming few months, we are expecting the justices to hand down more major decisions. on everything from birthright citizenship to the president's power to fire executive officials, to questions that cut to the core of how American democracy works. With so much at stake, this feels like just the right moment to ask, just where is the Supreme Court headed?

1:32Evan, we're coming out of this tariff decision. What was your reaction to that news and where we are a week later? Well, it was fascinating to see Trump's reaction to that news. You remember he found it deeply disappointing, And then he used this very telling word. He said, I am ashamed of certain members of the court. What's fascinating about that is the power dynamic it implies. You know, he is the father figure. He's ashamed of these recalcitrant employees or, you know, people that he put into this position in some ways. And then, of course, what did he do? He immediately said he's going to figure out some other loophole by which to reimpose the same tariffs.

2:11What I think is telling, and I want to hear more about this in our conversation today, is what does that suggest about Trump's growing, let's call it what it is, defiance of the Supreme Court's authority as a co-equal branch of government? Are we edging towards the point when he finally says, I'm not just ashamed, but I'm going to disregard it? So, Jane, you are literally writing a book on the Supreme Court and how we got to this moment. What is the conversation that you're hoping to have with our guest today? You know, one of the questions I've got is, is this now a MAGA court? You've got a 6-3 conservative majority.

2:47Are they Trump's justices? Is there still law? Is there still principle? Are they there just for him or will they stop him? Good question. To help us make sense of it all, we are so pleased to have with us truly one of the country's leading Supreme Court scholars, Stephen Vladek. He's a professor at Georgetown Law. He's the author of The Shadow Docket and the writer behind the fantastic Substack newsletter, One First. Stephen, really appreciate you joining us today. Welcome to the show. Thanks for having me. It's a real treat to be here. Well, okay, so we have many, many questions for you. But we might as well start with the news, even though it's been just basically a week since the Supreme Court's tariff decision.

3:32Some people are calling it a major shift. I believe David French said he called it the most important Supreme Court case of the century. I don't know if you agree with that or not. I see some head shaking, since this is an audio podcast. But let's just start with the tariffs. And what do you think the news in it was? And what do you make of how to contextualize it? Sure. I mean, I think the most important thing to say about the tariffs ruling is that everyone is overreacting. You know, overreacting. Adam Liptack saying in The New York Times that it was the Supreme Court's declaration of independence from President Trump seems remarkably hyperbolic.

4:15David French calling it the most important Supreme Court decision of any relevant time period, except maybe the last 10 days, I think is probably hyperbolic. You know, it's a big loss for Trump on a policy issue, although, as we've already seen, you know, not in a way that necessarily prevented him from trying to impose tariffs other ways. But I don't see how you can look at this one ruling in the broader context of we're now up to, I think, 32 total decisions by the Supreme Court involving President Trump over the last 13 months and somehow see some massive shift or some inflection point. I mean, Trump has done incredibly, I would even say, unimaginably well in the Supreme Court over the last year plus.

4:59And those decisions have allowed him to do so much of the stuff he wants to do that I don't know that you can see the tariffs case as anything other than a one-off repudiation without more data. OK, but weren't you glad that it was a repudiation? Oh, sure. But I mean, you know, Susan, two things can be true at once. You know, I think the court got it right. I think especially Justice Kagan's concurrence on behalf of herself and Justice Sotomayor and Jackson. As someone who doesn't think the major questions doctrine, which maybe we'll talk about a little more, is actually a thing, I think the right answer here was the one Justice Kagan provided, not Chief Justice Roberts.

5:35So, yes, the court got a big one right. But I was a math major in college, so I care about the denominator, not just the numerator. And having one in the numerator does not tell us anything about the denominator. The court has gotten a lot of really big ones wrong over the last 13 months in ways that have allowed President Trump to cut the Department of Education in half, to kick transgender people out of the military, to revoke temporary protected status for hundreds of thousands of immigrants. I mean, you know, to pocket rescission,$4 billion in foreign aid funding. And so, Susan, to me, it's not about whether the tariff decision was right or good.

6:09It was both of those things. It's about not losing the forest for one tree where there's just been so much work by the Supreme Court to enable, to me, even bigger and more problematic lawlessness by this executive branch. One of the things that the takeaway seems to be about this ruling is that it's finally putting some kind of curb on executive power. And I guess what I wonder is, what do you make of somebody like Neil Gorsuch, who's written in his opinion that there is a branch that's called Congress and it has an important role to play and we need to recognize that? Yet just not very long ago, he was voting along with the immunity decision that basically the president can't be held responsible for almost any kind of criminality so long as he can claim it's in the line of his work.

7:00How do you balance that? Have they really put down a curb on executive power? No. I mean, right? I mean, I don't think you balance it. I think this is why you have to tell the whole story. And it's not just – it's not the immunity decision by itself. I mean, this is also the same Neil Gorsuch who has voted over and over and over again over the last year to freeze lower court rulings that had enforced statutes against President Trump. So whether in the immigration space or the appropriation space or the removal of agency head space or, you know, I mean, we can keep going. If this is really about empowering Congress, if this is really about trying to motivate Congress to flex its constitutional muscles, how come the court was stepping on Congress's toes over and over again in all those other cases?

7:43And I think, you know, part of the problem to me is that the Taras case is what the lawyers might call a pure statutory interpretation case, meaning the only question before the court was what this 1977 statute means versus all these other cases that have some constitutional overtones or undertones where the Trump administration is arguing that Congress is constitutionally disabled from doing something. And in those cases, the court has been almost a monolith in support of the executive branch. And so the point is not to sort of refuse to take good news. The point is to put the good news in context.

8:19And I think it's just way too early to view the tariffs decision as anything other than a speed bump. Maybe we'll look back and say a speed bump that was a harbinger of more speed bumps to come. But, you know, the notion that we can sort of lionize the tariffs ruling and ignore all of the other damage that I think the Supreme Court has done, not just in the immunity ruling, but since President Trump came back to office last January, I think is really misleading and verges on gaslighting. Well, to that point of what this ruling suggests and doesn't suggest, I wonder if you could help us understand something about the conservative supermajority here, because we saw them split on the tariff case.

8:59You had Justices Thomas, Alito and Kavanaugh dissenting. What can you tell us about the internal dynamics here within the conservative block? Are there fault lines emerging that are meaningful? Yeah, I mean, I think we've seen those fault lines even before President Trump came back to office last year, but I think we're seeing them more and more often. I don't know that the fault lines are super bright, but we certainly at least see generally Justices Thomas and Alito almost invariably voting in favor of this administration. We see the Chief Justice and Justice Barrett as, I think, the ones of the six Republican appointees, the ones who are the least likely to reflexively vote for this administration, the ones who, you know, you might see dissent.

9:43I mean, if we look at, for example, the 31 rulings on emergency applications over the last 13 months, the two Republican appointees who have joined the Democratic appointees the most are Chief Justice Roberts and Justice Barrett. So, you know, those two sort of two justice pairs, I think, have become somewhat more predictable. And then there's Gorsuch and Kavanaugh. And I think what the Taras case shows is that those two are sort of jockeying with each other for the middle of the conservative bloc. Sometimes, you know, Gorsuch will go with the chief and Barrett and maybe even the Democratic appointees.

10:14It's what happened in the Taras case. Sometimes he'll go with Thomas and Alito. I think the larger point, Evan, though, and this is, you know, when I think about the court and the dynamics, The reality is if you're thinking about how to count to five, how do you build a majority in a case that involves either the Trump administration or some other hot button ideologically charged topic? It seems to me that for progressives, for Democrats, you know, the math really starts with the Democratic appointees and then goes to the chief and Barrett and nobody else. that the chief and Barrett really are emerging as the middle of this court.

10:51And that's on display in the terrorist case, too. So, Stephen, on this on this point of how to understand the makeup of the court right now, which seems so important, lots of folks have been sort of clinging on to that tree in the forest. One of the things I've seen cited over and over and over again is that concurrence by Justice Gorsuch, in which he basically makes the case for Congress. Right. He says, you know, this is the process by which the nation can tap the combined wisdom of the people's elected representatives, not just that of one faction or man. And to me, what's fascinating is your broader point about over the last year supporting the executive again and again and again at the expense of Congress's powers.

11:37And I'm just curious, is there a way for us to understand or to define where those Republican justices fall down? Is it just sort of the culmination of a view that the unitary executive has more power than we thought it did or a disdain for Congress? Help us understand that piece of it. I mean, I think it's all of the above, Susan. And so I think three things maybe are all true in one breath, which is when there's any constitutional argument in the case, we have a court that is inclined to side with the executive more than any of its predecessors at any other point in American history. And so that, I think, explains, for example, Susan, you mentioned the unitary executive cases, the idea that a statute that limits the president's ability to control the executive branch is unconstitutional.

12:24Court hasn't actually said that yet, although we're waiting for the ruling in Trump versus slaughter, in which I think the court will say that. So, you know, any story about we want to empower Congress unless it's regulating the executive branch is not necessarily a story about empowering Congress. Ditto appropriations and the power of the purse. I mean, historically, that was Congress's superpower. Appropriations was the way that Congress was dominant in policymaking. It's the only congressional power in the Constitution that the Constitution literally says Congress has it and nobody else. And even there, we've seen, you know, I think it's four different emergency docket rulings from the Supreme Court over the last year that have allowed President Trump to basically ignore the appropriations power.

13:11So, you know, I think it's heartening to hear and to see Justice Gorsuch's ode to a institutionally responsible Congress. I think, you know, that would be an enormous improvement. Right. But, you know, why is Congress sort of not institutionally responsible? I think the Supreme Court bears some of the blame here. I mean, just one, guys, one really small example. Take the negotiations over the shutdown last fall. You know, if you're a Democratic negotiator trying to figure out whether you're going to agree to a deal with the Republicans and you have the Supreme Court saying President Trump can ignore any deal you make, why are you making a deal?

13:48What is in it for you at that point? And so I guess the promise is that one walks away from the overall body of cases here, seeing a court that is talking out of both sides of its mouth, that where it's really just a sort of a pure, plain vanilla statutory interpretation case, yes, we want Congress, but where there's even an iota of claim of presidential power, oh, all of a sudden, maybe not so much with Congress. That's the tension that I think Gorsuch's opinion doesn't remotely acknowledge, and that I think the folks who have been extolling its virtues since it came out have not fully, I think, addressed.

14:26Can we have one look at Clarence Thomas's dissent? He doesn't even seem necessarily to accept that Congress has the powers of the purse. And for his argument, if I'm reading this right, he's going back to some lawmaker in England in 1611 and talking about the relationship between the monarch and the parliament instead of talking about the constitution. I saw a column suggesting that Clarence Thomas has lost the plot. Has Clarence Thomas lost the plot? You know, it's a fair question. I guess my reaction is that both Justices Thomas and Alito have a remarkable tendency of finding arguments that work when it empowers President Trump and of not finding those arguments remotely persuasive when there's a Democrat in the White House.

15:14And, you know, I think part of the problem I have with the tariffs case is not the result. It's that take the three dissenters, right? Justice Kavanaugh wrote what was called the principal dissenting opinion, which was joined by Thomas and Alito. And Kavanaugh's basic argument is that, oh, in a foreign relations or national security case, we, you know, we interpret text broadly. We defer the president. Well, you know, the student loan debt forgiveness program that President Biden tried to get out into the world was based on a very similar statute, which was passed after 9-11 and was designed to give the secretary of education the power to react to a national emergency by taking steps he thought were appropriate.

15:53Now, we might not like those delegations. How are those delegations different? And I think, you know, when the best answer is that the delegations are different because one was invoked by a Democrat and one was invoked by a Republican, that is not what the lawyers would call persuasive. But they would call it politics. Right. And so part of the problem here is that you have sort of, again, I think the middle of the court really is at least in its mind trying to be consistent whether or not we're persuaded. But I think there are justices, you know, maybe even on both sides, but especially, you know, the ones who are writing the loudest, who are not explaining the inconsistency in their voting patterns.

16:32I want to tie a couple of these things together that you've talked about, Stephen. You know, you've now really helped us understand some of the subtleties within the conservative bloc. But then also you've mentioned this tantalizing fact, which is that and you've written about it. You said at one point there's less daylight between Barrett and the Democratic appointees on some issues than there might be between her and other Republican appointees. So thinking forward, how significant is that? How much could that actually impact the outcome of some important cases? Yeah, I mean, this is the right question.

17:05And, you know, if I if I could be confident in my predictions, I wouldn't be a law professor. So let's get specific for a second. So there are three other big Trump cases on the court's argument docket, you know, where we're expecting big rulings from the court this term. So one is we already talked about Trump versus Slaughter, about whether, you know, every statute that insulates an executive officer from direct political control is unconstitutional. Evan, I think Trump's going to win that case. I mean, I think that was the consensus after the oral argument in December. And so, you know, is that going to be a case where Justice Barrett breaks from the other Republican appointees?

17:41I can't imagine that it is. If I'm confident about nothing else this term, it's that that ruling is going to be six to three. There's the narrower firing case regarding Lisa Cook, a member of the Federal Reserve Board, where I think Trump's going to lose that case because they were just so clumsy about how they went about trying to remove her from the Board of Governors. But that's such a small case, like it's about one person and one agency. And then there's birthright citizenship, where I also think Trump's going to lose. And, you know, folks are going to say, oh, look, the Supreme Court's more balanced than people say, and the Supreme Court's not in the bag for Trump.

18:15Well, while all this is happening, there will be still more of these emergency applications where the Trump administration is trying to get the court to let it keep doing stuff that lower courts says unlawful. Just on Thursday, the Trump administration filed its 33rd emergency application since it came to office last January, this one trying to let it revoke temporary protected status for Syrian nationals in the United States. And so we're conditioned to think about the court as the sum of its merits docket, which means we'll look at the Taris case and birthright citizenship and slaughter and say, oh, it was a mixed bag for Trump.

18:52And what's really actually happening is the court is in lots of other places and in lots of other ways, enabling more and more behavior by the administration that I think could be fairly described as lawless. Well, that's a perfect transition, Stephen. We're going to take a quick break. And when we come back, let's actually dig in a little bit more to what's coming up on the docket and your expertise here, which is in the emergency docket. The political scene from The New Yorker will be right back.

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19:40Stephen Vladeck:Wired has always put a microscope on the people, power, and forces shaping our world. Uncanny Valley brings that same fearless reporting straight to your feed. Is Doge finally over? Will AI actually democratize American healthcare? Each week, Wired journalists from across the newsroom are going to unpack where politics, technology, and Silicon Valley collide. From conversations with tech leaders across Silicon Valley, internet fandom investigations, and government crackdowns on rigged gambling, we're taking you all over the news cycle, going straight inside the priorities, pressures, and power plays driving today's biggest decisions.

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20:37All right. So, Stephen, there's a statistic that really jumps out in your work. Nearly 99 percent of the court's decisions now come through what's known as the shadow docket or the emergency docket. We've been talking about that. Explain to us how this has sort of become the thing that's taken over. I think Americans don't really understand. They look at something like the terror case and they think that's that's the agenda. We can talk about what's on the formal agenda. You mentioned birthright citizenship. But, you know, it's this shadow docket that where the bulk of the court's rulings about the Trump administration's powers have been coming.

21:15And I'm not sure any of us really understands it fully, you know, in how it's affecting our politics. Sure. You know, the short version is litigation takes time. And so, you know, the tariffs case got to the Supreme Court unusually quickly. The typical case can take two, three, four, even six years from when it's filed to get to the Supreme Court. And there's often a question of what should the status quo be during the litigation? So if you're challenging a policy, should the policy be allowed to stay in effect for the duration of the litigation? Should it be blocked for the duration of the litigation?

21:46That's not a new question. That's actually been a question courts have dealt with for as long as we've had injunctions, for as long as we've had court orders that blocked things. But it's become much more common for parties to seek and for courts to grant what the lawyers call emergency relief, which is basically to adjust the status quo for the duration of the litigation. And that's where the Supreme Court really has transformed over the last decade. So, you know, the first major ruling on a nationwide policy that we saw from the Supreme Court on an emergency application was 10 years ago in February.

22:20It was the Clean Power Plan from President Obama that the court blocked five to four. What's striking about this part of the court's docket is that those cases get much less briefing. They are almost never argued and they are usually decided with no opinion whatsoever or maybe a very, very cryptic one sentence, one paragraph, two paragraph ruling. And, you know, historically, the Supreme Court really limited those kinds of cases to the death penalty and maybe election disputes on the eve of an election. But it's only over the last decade that it has expanded to encompass a whole range of statewide or federal policy disputes.

22:57So just a couple of data points that I think will help drive this home. Just during the Bush and Obama administrations, you know, 16 years with two fairly different presidents, the federal government only sought this kind of emergency relief from the Supreme Court a total of eight times. So once every other year, you know, President Trump during his first term really ratcheted that up. He went to the court for this kind of relief 41 times. but it was still 41 times in four years. In his first year in office, in his second term, President Trump went to the court 32 times. So that's in contrast, Susan, to the merits docket, though what we tend to think about when we think of the Supreme Court, where that has been shrinking over and over, like every year since really the 2010s, so that the court is now deciding fewer cases on the merits docket with full briefing, with argument, with these, you know, 170 pages worth of opinions.

23:45We're at the lowest level there since 1864. And so just one data point that I think is really striking, during the court's most recent full term, so the one that ended last October, the court granted emergency relief 31 times. It handed down non-unanimous rulings on the merits docket 31 times. So these things have now become equivalent. And it really does reflect how much the court's work has shifted. Stephen, those statistics are truly amazing. And a quick follow-up here, because you said a word that has got me very worried here talking in 2026. You said the word elections and the emergency docket.

24:26And I think I've got to ask you if we are falsely assuming that there is a red line that this group will not cross when it comes to some of the very ominous things Donald Trump has been saying about nationalizing our elections or, you know, moving to seize voting machines. So I just I know there's no case on it yet, but this is the kind of thing that pops up on the emergency docket. And all of a sudden, you know, we don't we're not in the same kind of a country that we thought we were. Yeah. I mean, you know, it's hard to make predictions, especially about the future. I do think that the court has been in some respects at its worst on the emergency docket in election cases because I think that's where the justices have shown the most inclination to vote in ways that might be inconsistent as a matter of legal principle but consistent as a matter of partisan political preference.