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Every time the contemporary Left loses a partisan battle, it blames the system. If it’s not the “structural disadvantages” or the “minority rule” or “undemocratic” institutions, it’s Jim Crow 2.0 or the “MAGA Supreme Court.” Get rid of the filibuster. Get rid of the Senate. Get rid of the Electoral College.
But few efforts have corroded the constitutional order more than the Democrats’ delegitimization of the Supreme Court. And now it seems like the “New Right,” which shares many of the sensibilities of the Left, has now joined Democrats.
The Supreme Court’s newest crime is finding that the International Emergency Economic Powers Act doesn’t imbue the president with the unfettered power to implement import taxes.
Though President Donald Trump will find ways to keep using tariffs, there’s no conception of the founding that foresaw the president levying taxes on products from every nation on the planet for any reason he dreams up in perpetuity without input from Congress. Article I, Section 8, of the Constitution vests Congress with the power to lay and collect taxes, duties, and tariffs. The system isn’t broken because Trump doesn’t get his way.
Yet, the president says he’s “absolutely ashamed” of “disloyal” Justices Neil Gorsuch and Amy Coney Barrett, who joined the majority in Learning Resources, Inc. v. Trump, “for not having the courage to do what’s right for our country,” suggesting that the duo were under the influence of “foreign entities.”
It shows tremendous poor judgment on the president’s part to nominate two justices whom he believed were captured by foreign interests. Which is why Trump recently blamed the picks on Leonard Leo, one-time adviser and former chairman of the Federalist Society, calling him a “sleazebag” who “probably hates America.”
The court’s constitutionalists, of course, have shown courage in bucking considerable external political pressures exerted by both Democrats and now Republicans. Indeed, Learning Resources, Inc. v. Trump again proves that “conservative” justices aren’t the partisan toadies that Democrats claim — or that Trump wishes they were. One can’t say the same thing for the three leftists on the court.
Then again, many right-wing populists mock anyone with principles. “This is why we lose,” they’ll tell you. But we never lose when foundational constitutional mechanisms survive. Liberals, left and right, have a different hierarchy of concerns, and upholding the constitutional order keeps dropping.
“Apparently, to the Supreme Court majority,” MAGA protectionist Batya Ungar-Sargon reasoned, “a wide open border, 100,000 fentanyl deaths a year, the disinheritance of the American working class through globalization, seniors not being able to afford their meds, and relying on China to produce the antidote to China’s aggression against us aren’t emergencies. Because President Trump’s tariffs directly redressed all of those crises.”
Now, Ungar-Sargon’s contentions are all highly debatable, to say the least. More importantly, though, they are entirely irrelevant to the issue at hand. It’s not the Supreme Court’s job to buy into populist hysterics. It didn’t even weigh in on the legality of Trump’s alleged “emergencies.” (For instance, raising tariffs on Switzerland because he didn’t appreciate the former president’s tone.) The court’s job was to assess the legality of the president’s actions.
Another popular justification for delegitimizing the court is the claim that the “rule of law has been dead for decades.” Pretending the system isn’t functioning and calling for “right-wing judicial activism” is just a standard authoritarian rationalization for circumventing the law.
It’s true that lower court judges regularly abuse their power. It’s also true that presidents Barack Obama and Joe Biden, and their allies, were regularly slapped down by the Supreme Court — even before Trump nominated three Federalist Society favorites. Obama was perennially on the wrong side of decisions.
Another favorite myth of the New Right is to contend that the old guard never “conserved” anything. The Supreme Court, stocked with “Con Inc” originalists, says differently.
In Dobbs, the court overturned Roe v Wade, stripping the concocted right to abortion and giving back the issue to the people. In 303 Creative LLC and Kennedy v. Bremerton, the court upheld religious freedom. In Loper, it overturned the Chevron deference, striking a blow against the unconstitutional administrative state. In Students for Fair Admissions v. Harvard/UNC, the court struck down affirmative action. In West Virginia v. EPA, it invalidated the Clean Power Plan. In Biden v. Nebraska, it stopped the president from unilaterally breaking existing contracts and “forgiving” student loans. In Bruen, the justices upheld the Second Amendment (again).
There are scores of other recent decisions that defused state abuse. We don’t even have to go back to Citizens United, in which the court upheld the First Amendment, or Janus, in which the court stopped unions from forced membership, or Heller, where the court reaffirmed gun ownership as an individual right.
Every one of those decisions is far more important to the country than implementing Trump’s tariffs.
Of course, if tariffs are popular and address an existential emergency, Republicans should pass laws implementing them. They don’t even need to overcome a filibuster. They can use reconciliation. What GOP leaders understand is that a majority of their colleagues don’t support raising import taxes on consumers and small businesses.
THE US HOCKEY TEAM KNELT AND THAT IS WHAT MATTERS
One of Obama’s favorite justifications for executive abuses was to point out that Congress had “failed to act” — as if its job was implementing his agenda. By not acting, Congress explicitly rejected Obama’s demands, as it has Trump’s tariffs. One day, perhaps sooner than we think, a Democratic president is going to use the same reasoning to declare a climate “emergency” and take over the economy. Right-wing populists will oppose it. But because they reject neutral principles and structural limits on presidential power, their outrage will be hollow.
Anyway, there’s nothing more “conservative” in politics than upholding the deliberative nature of American government. Right now, the Supreme Court is probably the only properly functioning institution in the country. Weakening it isn’t only shortsighted, it’s suicidal.
