The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Putting Trump's Backlash Against The Tariff Ruling In Context
In Learning Resources v. Trump, the Supreme Court invalidated President Trump's global tariffs by a 6-3 vote. Almost immediately, Trump held an impromptu press conference, in which he lashed out at the Court, and in particular two of his appointees, Justices Neil Gorsuch and Amy Coney Barrett, who joined the majority. The presser was classic Trump: angry, winding, but direct. First, he conveyed a truth that Republican presidents have known for nearly a century, but have rarely said aloud: progressive justices never break ranks when it counts, but conservative justices will invariably find the principle to do so. Second, Trump uttered another unspoken truth: Presidents fear that criticizing the Supreme Court may result in the Justices ruling against them. The Justices are supposed to rule without fear or favor, but they are still human and will invariably react to what they see as an overbearing president. Third, Trump now sees clearly the problem with those who advised him on his first batch of Supreme Court nominees. Rather than focusing on nominees who favored a strong, robust executive, they supported nominees who actually wanted to transfer power from the executive to Congress and to the courts. Should Trump have another Supreme Court vacancy, these three important lessons will inform his future decision.
Since the 1970s, the Supreme Court has had a majority of Republican-appointed Justices. Indeed, in 1991, eight of the nine Justices had been appointed by Republican presidents. Only Justice Byron White, a Kennedy appointee, was on the other side. Yet, the Court still leaned to the left. In Planned Parenthood v. Casey (1991), five Republican appointees voted to reaffirm Roe v. Wade. And even when the Court found a conservative majority, swing votes like Justices Sandra Day O'Connor and Anthony Kennedy moderated the outcome to the left. But the opposite effect seldom, if ever, happened. Over the past two decades, I have struggled to think of a decision where a Democratically appointed Justice cast the decisive fifth vote for a conservative victory. Justice Stephen Breyer, to his credit, cast an important vote to save a Ten Commandments monument at the Texas Capitol, but that narrow ruling was overwhelmed by a companion case from Kentucky that broadly expanded the Court's power to scrutinize religious displays. Justice Breyer also cast a key vote in a pair of affirmative action cases from Michigan, but there, too, racial preferences were largely upheld. And in NFIB v. Sebelius (2012), Justices Breyer and Elena Kagan joined the Chief Justice in holding that states could opt out of the Affordable Care Act's Medicaid expansion. But it has been reported that they did so as part of a compromise to avoid invalidating the entire program. Since Justice Breyer's retirement, I think the odds of compromises from the left are slim.
President Trump's press conference described this dynamic and used his own appointees as examples. Trump said, "The Democrats on the court are thrilled, but they will automatically vote no." Trump added that the Democratic appointees are "an automatic no, just like in Congress." How often do Democratic politicians break ranks and vote on principle? Republicans in Indiana voted against redistricting. Will any Democratic state legislatures actually vote against a Democratic gerrymander? Trump's analogy between Democratic politicians and Democratic-appointed judges has some merit. I struggle to think of any significant case where the Court's progressive justices cast a dispositive vote against the progressive side.
Trump continued that the Democratic appointees are "an automatic no, no matter how good a case you have, it's a no." I think Trump is saying what every Supreme Court litigator would quietly admit: in an ideological case, only three or four votes are really ever up for grabs, and they are all on the right. But Trump drew a contrast: "You can't knock their loyalty, one thing you can do with some of our people." In other words, the progressive justices never break ranks when it counts, but "some of our people," that is, the conservative Justices, do.
Trump also shone a light on an unspoken element of Supreme Court advocacy: you cannot say or do anything that could offend the Justices. Trump explained he kept his mouth shut: "I wanted to be very well-behaved because . . . I didn't want to do anything that would affect the decision of the Court, because I understand the Court." He does understand the Court better than most people might think. Trump continued, "I understand how they are very easily swayed. I want to be a good boy."
Trump, likely on the advice of counsel, was told not to say anything negative about the Court while the case was pending, lest he sway the decision. The implication here was clear: if Trump criticizes the Court, he is more likely to lose. Trump even acknowledged this point in his roast at the Alfalfa Club earlier this month. He quipped, "I had the nastiest, most vicious joke about John Roberts," but "if you think I'm going to tell that joke you can forget it." Trump said the quiet part out loud: "I'm going to kiss his ass for a long time." Well, at least for a few weeks. Now Trump can tell the joke.
Do you see the problem? Judges are supposed to decide cases without fear or favor. Whatever a litigant says about the judge should have no bearing whatsoever on the outcome of the case. But of course, every first-year law student knows this isn't actually true. The clear import of some of the commentary about Trump's press conference is that he made it less likely that the Justices will rule in his favor in future cases. Judges are human. Indeed, judges are even more sensitive than mere mortals. One does not become a judge by ignoring how the public perceives them. And even if the justices tell themselves that Trump's comments have no effect on their ruling, the public perception is that there is such an effect. And where did this perception come from?
I'll let you in on a little secret. Much of the commentary you read about the Supreme Court involves obsequiousness in an attempt to curry favor. Law professors, in particular, want to be held in high regard by the justices. After all, they want to be cited and have their students hired as law clerks. (I, for one, never hold back, even if there are consequences for my candor.) You wonder why Trump's lawyer told him to put a muzzle on it?
Finally, I think Trump is having a rude awakening about the Supreme Court nominees from his first term. While Trump is angry at Justices Gorsuch and Barrett, I think his ire should be directed at the lawyers who advised Trump to pick them. A flashback is helpful. Immediately after Justice Scalia died, Trump realized he had an opening. If Trump could convince conservatives that he could be trusted to appoint a conservative to replace Scalia, he could win the primary. Trump innovated the process by releasing several lists of potential nominees. (It is noteworthy that Gorsuch and Kavanaugh were not on the initial list.) But let's be frank. Trump didn't know the people on the lists. He worked with the names given to him. And Trump, unlike prior presidents, didn't have a firm grounding in constitutional law or what the Supreme Court did.
The fact is that the architects of Trump's judicial nominees were not aligned with Trump's own policy agenda. Their goal was to dismantle the administrative state. Last time I checked, the President sits atop that construct. Take Chevron, for example. Nominees from Trump 1.0 were scrutinized on how they viewed the administrative deference doctrine. Without question, Trump's counsel wanted to get rid of Chevron. Did anyone tell the President that he would benefit from deference, or was he just told that businesses did not like Chevron? Getting rid of Chevron favored Originalism, Inc., but only harmed the President. (And now that Chevron is gone, it remains unclear how much has actually changed on the ground.) Ditto for the non-delegation doctrine. Did anyone tell Trump that enforcing this doctrine would transfer power from the executive to Congress and to the Courts? Could someone have suggested that, should Trump ever seek to impose tariffs, this doctrine could come back to haunt him? The President's lawyers certainly should be constitutionalists, but their primary obligation is to Article II, and not to seek out nominees who would weaken Article II.
The chickens came home to roost in the tariff case. The only Trump appointee who ruled for Trump was Justice Kavanaugh, who worked in the White House and had deep executive branch experience. Justice Gorsuch is primarily motivated by restoring power from the executive to the legislative branches. And Justice Barrett simply sees this case as a "common sense" academic exercise of statutory interpretation, par for the course for the former professor.
Trump said he was "absolutely ashamed" of Gorsuch and Barrett "for not having the courage to do what's right for our country." Judicial Courage is a theme I have developed at some length, including for Civitas. But the problem here is not one of courage. The Justices have strong jurisprudential pre-commitments to limiting the executive branch's power. I firmly believe these two Justices would apply the same rule in both a liberal and a conservative case. (I am more skeptical that Justices Kagan, Sotomayor, and Jackson would invalidate a delegation of power that supports a progressive policy.) There are certainly other cases where backbone makes a difference, but the tariff dispute is not one of them.
Trump expressed bemusement that Democrats fought Trump's nominees to the Court so hard. He said, "to think that the Democrats who oppose this, only because they want to go the opposite way, they'd like to pack the court." With the benefit of hindsight, Democrats should thank their lucky stars Trump picked who he picked. As for the future, Trump joked, "They want to put on 21 people. They want to pack the court, pack the Supreme Court. Maybe they should do it. Maybe they would be better off if they did it." But do they need to? There would certainly be a huge political cost to adding more Justices. I think Democrats should continue praying that no matter what happens, Republican-appointed Justices find the principles to rule for the liberal side in tough times, even if the opposite never happens.
I think this press conference will come to be seen as the most important presidential statement on the Supreme Court since FDR's fireside chat announcing the court packing plan. The gloves are now off. Going forward, I think Trump's "good boy" act is over, as it did him no good. The Court should brace itself for the "bad boy" routine. And should Trump have the chance to nominate his next Justice, I think the criteria he will be looking for will be different: which nominee will have the broadest conception of presidential power to make America great again. During the New Deal, unsurprisingly, Roosevelt's litmus test for the Supreme Court was a "thumping, evangelical New Dealer." Why can't Trump want a "thumping, evangelical MAGA warrior"? I think the most likely nominee is the person who defended the tariffs in Court and stood next to the President during the press conference: Solicitor General John Sauer.
