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On Friday morning, the U.S. Supreme Court invalidated a large swath of President Donald Trump’s unilaterally imposed tariffs. The 6-3 vote saw three right-leaning justices, including two Trump appointees, join the three liberals to form a majority.
Within hours, Trump held a press conference and raged against the decision, declaring himself “ashamed of certain members of the court, absolutely ashamed for not having the courage to do what’s right for our country.” He also accused the majority of being swayed by “foreign interests.” He thanked conservative Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh for their dissents, while quipping that the other members of the court were still invited to attend the State of the Union Address, albeit “barely.”
Trump is a true believer in the aggressive use of tariffs to shape foreign and domestic policy, so his volcanic reaction was hardly surprising. The White House says it will pursue tariff policies through other means, as Trump announced new tariffs in the wake of the ruling. Additional litigation to follow, most assuredly.
As a constitutional matter, entirely separate from Trump or tariffs, I believe the high court got this one right, for two major reasons. My reasoning echoes Justice Neil Gorsuch’s, who illustrated each point eloquently.
First, the justices are once again practically begging the legislative branch to do its job. Imposing taxes is the sole province of Congress. The administration argued that tariffs aren’t taxes, but Trump himself frequently touted the resulting raised revenues as a core benefit of his policy. If the U.S. government wants to install a more robust tariff regime (a policy versus a constitutional question), legislators can legislate. They unquestionably have the power to do so in this realm. So often, however, they prefer to pontificate while punting “solutions” to the executive and judiciary branches. This is true of both parties. In his concurrence, Gorsuch offered a message, and a mini civics lesson, to Americans who opposed the court’s decision (emphasis mine):
“For those who think it important for the Nation to impose more tariffs, I understand that today’s decision will be disappointing. All I can offer them is that most major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason. Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions. And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day. In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation’s future. For some today, the weight of those virtues is apparent. For others, it may not seem so obvious. But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is.”
Indeed. As for that last point, my second major reason for backing the ruling, Gorsuch himself helped spotlight it during oral arguments. Consider this exchange with the Trump administration’s solicitor general, in which Gorsuch asked about a not-so-hypothetical scenario in which a future leftist president sought to use, say, a climate “emergency” to impose Green New Deal-style tariff policies by fiat:
Gorsuch: Could the president impose a 50% tariff on gas-powered cars and auto parts to deal with the unusual and extraordinary threat from abroad of climate change?
Sauer: It’s very likely that that could be done, very likely.
Gorsuch: I think that has to be the logic of your view.
Sauer: Yeah, in other words, obviously this administration would say that’s a hoax, it’s not a real crisis, but…
Gorsuch: I’m sure you would.
Sauer: Yes, but that would be a question for Congress under our interpretation, not for the courts…
If a precedent had been established here that a chief executive can impose revenue-raising edicts by himself, I suspect many conservatives would live to rue that day. If and when some future left-wing project is attempted along these lines, and the Supreme Court invalidates it on similar grounds, “those disappointed by [last week’s] result will appreciate the legislative process for the bulwark of liberty it is,” to quote Gorsuch again.
It can be very difficult to divorce a ruling like this from the question immediately in front of our faces, and the political figures with strong rooting interests in the moment. But interpretations of the Constitution shouldn’t be dictated by such things (I say this even as I agree that the dissenters in the tariffs case made some compelling arguments of their own). And from a political perspective, it’s always a good idea to try to envision how any new precedent or action might boomerang if exploited by hardcore partisans at the opposite end of the ideological spectrum.
Finally, a separate but related point: Bad-faith actors on the Left have been relentlessly assailing the Supreme Court’s credibility and legitimacy ever since a center-right majority was installed through the long-standing and entirely legitimate process. For decades, liberals dominated the court and achieved many of their desired political outcomes. The court, therefore, was seen as sacrosanct — very much including in the eyes of the “news” media. Now that the Left has been handed some high-profile constitutional losses by the Roberts court, it has engaged in a rolling, yearslong conniption fit. They view institutions that stand in the way of their power and preferred partisan results as a problem, inevitably demanding “reforms” in the name of “protecting democracy.” They want to alter the Senate. They want to change or abolish the Electoral College. And many of them want to pack the court.
It’s all about power, and it’s profoundly dangerous. Defenders of the Supreme Court as an institution must be equally vociferous in beating back the spurious claims that this court is reflexively “right wing” and exists to do Trump’s bidding. Tell that to Trump last Friday regarding a case about which he cared passionately. The Left’s simplistic, demagogic attack line against the court is itself dishonest and illegitimate.
In her forthcoming and excellent book, Last Branch Standing, Supreme Court expert Sarah Isgur explodes this critique with a blizzard of facts. For instance, in the 2024-25 Supreme Court term, “42 percent of the Court’s cases were decided unanimously,” and in just 15% of cases did the three liberal Justices (Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson) join together in dissent. In other words, the stereotypical 6-3 “conservative majority versus liberal minority” split did not occur in fully 85% of that recent term’s cases. In fact, left-leaning Kagan found herself in the majority more often than Thomas, Alito, or Gorsuch. For reference, Roberts was in the majority 92% of the time, good for first place, while Jackson was dead last at 51%. Leftist critics of the court might counter that the 6-3 breakdown is seen in the “big” cases that really count. Again, tell that to Trump last week.
Finally, another delegitimizing complaint mounted against the Roberts court by progressive ideologues and would-be court packers is that the conservative majority is trampling over established precedent at an uniquely destabilizing rate. We’re told this is “right-wing” activism that recklessly uproots precedent in order to foist political outcomes upon the country.
Back to Isgur’s calm analysis of the actual data: “As of 2024, the Roberts Court has overruled 1.6 precedents per term. The lowest pace in more than 70 years.”
Contrast that with the infamously leftist court under Chief Justice Earl Warren, which averaged roughly double that annual precedent rejection rate. Did any journalists clutch their pearls over those outcomes back then? Were Democrats buzzing about changing the composition of the court through dramatic and unprecedented means?
THE COMING PROGRESSIVE TEA PARTY
These questions answer themselves. Regardless of how one feels about Trump, tariffs, or the merits of last week’s ruling, the resolution of that major case once again exposes progressive delegitimization efforts against the court as bogus, power-hungry extremism. They must be treated as such.
