Strict Scrutiny - S7: BREAKING: SCOTUS Nixes Trump’s Tariffs

Episode Date: February 20, 2026

In today’s much-anticipated ruling, the Supreme Court struck down Trump's tariffs. But how the opinion, dissent, and concurrences break down paints a much more complicated—and concerning—picture. What happens next? Just how far will Brett Kavanaugh go to enable Big Daddy Trump? When will the Court’s conservatives realize that the Major Questions Doctrine is about as real as the tooth fairy? Kate and Leah answer these questions and more.   Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2026!  3/6/26 – San Francisco 3/7/26 – Los Angeles Learn more: http://crooked.com/eventsPreorder Melissa’s book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern ReaderBuy Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad VibesFollow us on Instagram, Threads, and Bluesky

Strict scrutiny is brought to you by Americans United for Separation of Church and State. We are all legal nerds here, and we know that precedents that in any area of the law ripples out across our lives in so many ways. Our right to religious freedom is one of the most sacred areas of the law, protecting almost every aspect of our daily lives. Rights we all hold dear, like LGBTQ rights, freedom to choose the type of health care you need, and ensuring a well-funded and inclusive public school system. Protecting the separation of church and state is in fact protecting the very foundation of our democracy. If you're looking for ways to more deeply understand the connection of and from religion to so many of the civil justice issues we see today, you should check out the Summit for Religious Freedom, or Surf, an annual conference held in D.C. and virtually April 25th to

the 27th, 2026. At Surf, advocates, organizers, faith leaders, atheists, and everyone in between come together to take on the growing threats of Christian nationalism and the efforts to impose one narrow religious belief on us all. This is a movement for big change and collaboration across the entire spectrum of religious belief and non-belief that strengthens our democracy, protects public schools, reproductive and LGBTQ rights, and more. Be part of the movement that's pushing back and standing up for freedom. Register to attend today at thesrf.org. Mr. Chief Justice, may it please support. It's an old joke, but when I argue, man argues against two beautiful ladies like this, they're going to have the last word.

She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our next. How reasonable, how moderate, how demure, how mindful. The Supreme Court is good now. My apologies to Brett Kavanaugh, Neil Gorsuch. I want to be a good girl. J.K., welcome back to strict scrutiny, your podcast about the Supreme Court and the legal

culture that surrounds it. We're your host for today's emergency bonus episode. I'm Leo Littman. And I'm Kate Shaw. And as you could probably tell by Leah's opening, we got the tariffs opinion, finally. So in Learning Resources v. Trump, the bottom line is that the Supreme Court invalidated Trump's tariffs on a six to three vote. The Chief Justice, together with Justice Barrett and Justice Gorsuch, concluded that the tariffs were illegal, and they did that by relying on their made-up major questions doctrine. We will elaborate. The three Democratic appointees agreed that the tariffs were illegal, but said, we're just going to do law and rely on legal reasoning to get to that conclusion rather than this made up major questions doctrine. And the other three, Thomas,

Alito, and Kavanaugh dissented because Trump. And because maybe we are a monarchy, after all, we'll also explain. Yeah. So we wanted to get you a quick bonus episode so you all could shape the narrative. I am actually recording this from vacation in Miami. But before we get in, it is. Before we get into the Dietz, the top line. is that the following principles and lines of reasoning remain strong. One, the president can't fuck with Supreme Court justices or Supreme Court justices, emotional support billionaires, investment portfolios. And two, but the stock market.

That's a legal reasoning. Exactly. Right it down. Another point worth highlighting up top is that the court says nothing about the remedy and what happens next. That is, given the Supreme Court's conclusion that the president has collected millions of dollars, illegally from Americans. What happens to that money? Does it have to pay back? To who? What's the process? All of that remains to be worked out, likely in the first instance, by the Court of International Trade. I'm sure Donald Trump and his band of Genius Epstein-class fail sons, including Howard Lutnik, will figure it out, especially because there's definitely not a shortage of lawyers in this administration. And one final top line note before we dive in, I wanted to highlight a point that friend of the show Kim Lane Shepley has made.

And that is that this, what we are seeing with this tariff's opinion is actually a familiar move by courts operating under various forms of ascending or actual autocracy. So the move is the court rules against an overreaching executive. That allows the court to shore up its own credibility. And it also appears to make the executive answerable to the law, which helps the executive, even if that executive then rails against the court. But by giving the executive the power over remedies, as Leah was just describing, the executive, the power over remedies, as Leah was just describing, The court doesn't say anything about remedies, so that's kind of in the executive's court in addition to the lower courts. But giving the executive control over implementation and remedies is actually handing the executive a big, if much quieter, win, even while the headlines Blair Trump loses. And so that, I think, is an important kind of screen through which to view everything that has happened at the Supreme Court and all of the commentary about it.

Absolutely. So let's start with the opinion of the Chief Justice. He relies on the major questions doctrine to conclude these emergency tariffs are illegal. The major questions doctrine for those who might not remember is a doctrine that the court came up with in 2022, or at least formalized or made official that year, that says when agencies do things that strike the court as a big deal, a la Ron Burgundy, the court will place a thumb on the scale against the agency's authority under the statute. So just to kind of put that a different way, the court will interpret a statute not to all. authorize an agency's major action, if the agency takes some major action, even when a broad

general grant of authority might be best read to authorize the agency action. So this is essentially a presumption against at least some exercises of agency authority. And this is also what they call textualism these days, not giving a statute its best meaning. We'll get to that in a bit. The major questions doctrine is, in my view, kind of the tooth fairy of legal doctrine, very not real, in the part of the opinion about the major questions doctrine, which is joined only by Gorsuch and Barrett, who can't even agree on what the major questions doctrine is. That's how real this doctrine is. This plurality points to the unprecedented benefits of tariffs as a reason to invoke the major questions doctrine. This is a novel innovation of that doctrine. Previously, the Republican appointees, have pointed to a policy's costs as the reason the major questions doctrine applies. This was darkly hilarious to me that even in their attempt to shore up this major questions doctrine, even though when they invoke the major questions doctrine against a Democratic administration to try to give it a veneer of legitimacy, they do so by saying these policies

with respect to a Republican president are awesome and great. Whereas when they invoke it with respect to a Democratic president, it's because because these policies will impose huge costs. We should note that even though there is a lot of what my kids would call, like, glazing the policy choices of the administration, the opinion does also kind of, quote, you know, with some seeming skepticism, some of the more ridiculous parts of the Solicitor General's brief, such as, quote, in the president's view, whether we are a rich nation or a poor one hangs in the balance. So that is called out in the opinion, sort of without commentary.

One other thing that's important about this plurality opinion is that the Chief Justice and Barrett and Gorsuch say pretty clearly that there is no major questions doctrine exception for either emergency statutes or foreign affairs, which was an argument that we'll talk about Kavanaugh in a minute, but that the administration was pressing. So the plurality also repeatedly and lovingly invoked Barrett's separate writings on the major questions doctrine, including some places where she basically said, let's rely on our common sense. Like that is one key component of the major questions doctrine in her view, which is obviously what textualist and originalist judges do, right? When the conservative takeover of the courts happened, what we were told is that none of this freewheeling decision making was going to happen anymore because rigid adherence to originalism and textualism would carry the day. And instead what we get is Amy Coney-Barritt's conception of common sense. I also love Leah, you said, I think correctly, that the major questions doctrine was basically invented or at least recognized explicitly in 2020. count them four years ago. But the court like really tries to say that we have long recognized the major questions doctrine. But then, you know, with one exception in the year 2000, everything

else they cite is from the last dozen years. This is a new and made up doctrine. That's the new originalism and longstanding precedent to take. Of course. Minusk. Yes. So in addition to the major questions doctrine, the first part of this plurality opinion is kind of a taxes bad or at least a taxes are a BFD vibe, which to me underscored how this case was one where there was real ideological cross pressure on the courts Republican appointees. Yes, it involved presidential power and presidential power being wielded by a Republican president, where all executive power and maybe legislative and judicial power as well is unitary and resides. On the other hand, the case involved what were effectively taxes, opposed by the business corporate interests

that are very much part of the Chamber of Commerce wing of the Republican Party and they have to protect those Fortune 500 CEOs. It was a little interesting to me that Barrett and Gorsuch ended up being more Chamber of Commerce than Brett Kavanaugh, although then upon reflection, given that this case involves emergency presidential powers, an issue on which Brett Kavanaugh is basically a wing nut that did make more sense to me. Yeah, that's, I mean, Kavanaugh's sort of trajectory as like further and further in the embrace of Thomas and Gorsuch is like definitely an interesting an important dynamic in the last year. The Chief's opinion also I found really enraging in that it bent over backwards to treat Trump as a very normal president. Like the literal first sentence

of the opinion is sanewashing the president. So it says, quote, shortly after taking office, President Trump sought to address two foreign threats. Huh. Is that what he sought to do? That's basically fan fiction. I'm not even saying you, John Roberts, must dig into his motives or like impugn his credibility. Just cite the contents of the executive orders that Trump issued. Quote them. They say they're about drug trafficking and trade deficits. But like to go out of your way to credit his sincerity and good faith in the very first sentence of the opinion is a choice that John Roberts made.

100%. This Donald Trump was a guy who was playing Russian roulette with tariffs and basically doing a random number generator to come up with tariff rates. You know, no math. no economic principles, just vibes. The opinion, in addition to relying on but taxes and major questions doctrine, also relies on some plain text, specifically the Warren G principle. What does regulate mean? Since the statute that the president voked Aiba, the International Emergency Economic Powers Act, allows the president to, among other things, quote, regulate importation or exportation. The president had this to say in response to the chief's textual

analysis, quote, I'm very good at reading language, end quote. Wait, the president, that was in a statement that he made. He said that he said, oh yeah. So recording pretty soon after the opinion was released and there was a presser that Leah had a chance to watch. I didn't. He said I'm very good at reading language. He did. Well, no, good for him. So, you know, Leah was just quoting the language, right? So there is this huge central question, like, does regulate encompass, you know, to tariff, to impose tariffs? And the opinion I thought it was kind of messy and like, lots of different ways. And one place it was sort of hedgy was that there are a few places in the opinion where it sounds like what the court is saying is Aipa doesn't give the president the power to impose these tariffs like these worldwide, enormous, et cetera, et cetera. Maybe it's just saying these tariffs aren't authorized. But in other places, and I actually do think this is the best reading of the opinion, the court seems to be saying Aipa doesn't give the president to impose any tariffs. And in particular in the kind of textual analysis part of the opinion that Leah was alluding to, though kind of Warren G part, what does Regulate mean? I do think the court pretty

clearly says regulate does not encompass the power to tariff full stop. So I think that means Zayiba does not confer any power to impose tariffs big or small, although, of course, that doesn't take off the table, the president's power to impose tariffs under other statutory authorities. So there was also a footnote, since we're still on the Roberts opinion, there was also a footnote where I thought Roberts might be reminding Kavanaugh that Kavanaugh is not, in fact, the president's lawyer. So let me just maybe quote that footnote a couple of sentences, quote, the principal dissent, and that's the Kavanaugh dissent, surmises that the president could impose most, if not all, of the tariffs at issue under statutes other than

Aipa. The cited statutes contain various combinations of procedural prerequisites, required agency determinations, and limits on the duration, amount, and scope of the tariffs they authorize. We do not speculate on hypothetical cases, not before us. Shorter, John Roberts, Brett, you cray. So when I first read the opinion, I thought this was John Roberts saying, look, my guy, we have to at least maintain an appearance of impartiality. But then I had a different response after listening to Trump's presser announcing a new slew of tariffs under other authority and declaring that the Supreme Court gave him a right to do that. I think the chief may also have been telling Brett to pike down because he doesn't want there

to be more tariffs, which he knows are bad for Republicans. Kate, since you missed the presser, have to add, Trump also declared that he didn't think, quote, the court meant it when they struck down the terrace. Did they wink at him while they did it? Very unclear. Trump also elaborated that he, quote, read the paragraphs and I read very well, great comprehension. So would definitely recommend you go back and watch this one. It was epic. Did we say the opinion's 170 pages long?

I don't honestly know if he was referring to the opinion there. referring to the briefs or referring to the statute, which contains some indentation, TBD. But the bottom line on this opinion, the chief's opinion, was for me, the I can excuse fascism, but I draw the line at meme, where the chief draws the line at the stock market and his and his buddies' investment portfolios. That seems right. Strict scrutiny is brought to you by Quince.

Quince is all about elevated essentials that feel, effortless. It's also designed for layering and mixing so that each piece helps build a timeless wardrobe made to last. And with all the combinations that are possible, you can make just a few pieces go a long way. And with versatile silhouettes and thoughtful details, they're the kind of styles you wear again and again. You all know Melissa's Quince Pilled, well, here's some of what I appreciate about quince. They've got the wardrobe staples with quality that's made to last. I have a few of their shells. In silk, a veneck and a scoop neck, they go perfect under any blazer. I also have their cotton tanks and teas. Again, I can mix and match them with just about anything,

and they look and feel expensive. Like the kind of thing your emotional support billionaire would treat you to after a bad week. Only Quince is a company that actually has good practices. Quince works directly with safe ethical factories and cuts out the middlemen, so you're not paying for brand markup, just high quality clothing. Quince uses the highest quality materials, like 100% European linen and organic cotton. Everything is built to hold up season after season. stitching, the fit, the fabrics. These are pieces you'll reach for over and over. I can't tell you how much I love my quince silk shells.

They are my go-to layer whenever I need to look profesh. Refresh your wardrobe with quince. Go to quince.com slash strict for free shipping on your order and 365-day returns. Now available in Canada, too. That's Q-U-I-N-C-E.com slash strict to get free shipping and 365-day returns. Quince.com slash strict. You know what's easier than fixing a problem? Not having the problem in the first place. I mean, imagine if we didn't have this Supreme Court. Girl can dream.

Same philosophy works for your liver. It's one of those organs you don't think about until you have to. Supporting it daily is one of those small things that can make a huge difference in how you feel overall. What does your liver even do? It's your body's filter. It processes everything you consume and performs more than 500 daily functions. Think energy production, digestion, vitamin storage, and more. Yes, the liver helps make these processes happen every day. And when it's overworked, you're going to feel it. So what is dose for your liver? Well, dose for your liver is a clinically backed liver health supplement. It promotes daily liver function so your liver can do its job. Zero sugar, zero junk, and zero calories. What can you expect when drinking dose daily? Well, you're going to reduce your sluggishness

and get rid of those midday crashes. Ready to give your liver the support it deserves, head to dose daily.com slash strict or enter strict to get 35% off your first subscription. Your body does so much for you. Let's do something for it. That's D-O-S-E-D-A-I-L-Y. Dot C-O-S-S-S-R for 35% off your first month subscription. 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 Sotomayor 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. 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. 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 appointee's 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. 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 Gordon's telling the three, women, Democratic appointees, what they actually think about the major questions doctrine was... I'm going to explain the contents of your mind to you ladies. I needed that. 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, broaden 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. Just pure fire. I loved it. The shorter line here was, stop trying to make the major questions doctrine happen, Neil. It's not going to happen. Or pretending that you already made it happen and that we all already, like, are on board. Like, no, no, no. The almost regret line was just perfect. That's great. On the Kagan opinion, I also wanted to flag this line, quote, combined 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 Lena 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, this statute lists a bunch of verbs actions the president can take, but taxes and tariffs just aren't one of them. All right. So that was like big, long concurrence, like obviously spard 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 sane or timeline, like these remain important interpretive devices that courts should look to. Let's move on to Neil Gorsuch's score settling concurrence. This was, was an absolutely unhinged concurrence to me. Very godfather, today I settled all family business five. Like, you're not innocent, Justice Barrett, is one of the clear insinuations here. Absolutely. And so, of course, 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-Berford. 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. 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. 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? It did a little bit. All the cross-talk 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, you know, 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 cross-talk 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 Gorset. A lot of gorse shit talking. That's good.

That might be a new verb. I think it might be. And I meant this is the fullest expression of it, I think. I think the verb was coined today because like we just really saw his full capabilities today. Yes. 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. 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 were counted above to suggest that our major questions 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. 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 don't conundna. This concurrence, on concurrence, on concurrence. I mean, don't you have other things to do like a job? This is how he understands his job, Leah. And you do get the sense that like they must be so annoyed to have to like as a shit poster every day, like all of them, not just the Democratic appointees. I think it's pretty clear. I mean, it's been clear for a while, but it's really clear on the phase 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 Katanji and Amy. Now on to Brett and Sam and Clarence. This is what Neil had to say. Quote, still others who have joined major questions decisions in the past, dissent from today's application of the doctrine. Finally, seeking to sidestep the major questions doctrine altogether, one cost. 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.

Strict scrutiny is brought to you by Cozy Earth. Okay, you all know it's basically been World War III over at my house as I have to fight for the Cozy Earth Cuddle bubble blanket. Well, good news, I decided to fix this and do some peacemaking to put myself in contention for either the Nobel Peace Prize or the FIFA Peace Prize. I take either. And so I got our house, the classic cuddle blanket. Now my partner and I no longer have to fight over the blankets because a classic cuddle blanket

allows you to wrap yourself in the kind of comfort that instantly feels special. It's richly plush and also has a comforting weight that is perfect for the polar freeze. It delivers warmth. You can feel and softness you'll never want to give up. And it's like equal parts, indulgent, and inviting. So how am I showing a little extra love this February by bringing more comfort and care into my everyday life and the life of people I live with with a classic bubble blanket. It's the perfect way to indulge in self-care, to wrap yourself in warmth and comfort. Also, you can get Cozy Earth with a risk-free purchase, so they offer a 100-night sleep trial. So you can try them out, and if you don't love them, return them hassle-free. Trust me, you won't want to. Honestly, we're probably

going to need a third Cozy Earth blanket in this house because my dog also thinks she's entitled to one, which, to be fair, she probably is. Cozy Earth also. has a 10-year warranty because once you feel this level of comfort, you'll want it to last a decade. Share a little extra love this February and wrap yourself or someone you care about in comfort that truly feels special. Head to cozy earth.com and use my code strict for up to 20% off. That's code strict for up to 20% off. And if you get a post-purched survey, be sure to mention you heard about cozy earth right here. Celebrate everyday love with comfort that makes the little moments count. Strict scrutiny is brought to you by Mint Mobile. We've got a lot to talk about.

on this show, and you need a way to talk about all of it with your friends, and Mint Mobile can help. Stop paying way too much for wireless just because that's how it's always been. Mint exists purely to fix that, same coverage, same speed, just without the inflated price tag. The premium wireless you expect, unlimited text, and data, but at a fraction of what others charge. And for a limited time, get 50% off, three, six, or 12-month plans of unlimited premium wireless. Bring your own phone a number, activate with ESIM in minutes, and start saving immediately. No long-term contracts, no hassle. With a seven-day money-back guarantee and customer satisfaction ratings in the mid-90s, Mint makes it easy to try it and see why people don't go back. If I needed a new cell phone plan,

trust me, this is what I would use. Ready to stop paying more than you have to? New customers can make the switch today and for a limited time get unlimited premium wireless for just $15 per month. Switch now at mintmobile.com slash strict. That's mintmobile.com slash strict. Upfront payment of $45 for three months, $90 for $6 months, or $180 for 12-month plan required, $15 a month equivalent. Taxes and free user extra, initial plan term only. Only 50 gigabytes may slow down when network is busy. Capable device is required. Availability, speed, and covers varies. Additional terms apply. See mintmobile.com. 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. 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. 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. 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, levels of gobbledygook here. The president had a different response, basically confirming

that this is reactionary gobbledy gook. So at this presser, he said Kavanaugh's, quote, Stuck has gone way up. Oh my God. And that he's, quote, so proud of him today. 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.

Did he talk about any of the other specific justices by name or just as good boy? He did. Oh, yeah. When I'm telling you, you got to watch this one. I do have to as soon as we're done. You got to watch this one. Wow. Yeah. So the chief's opinion barely responds to Brett Kavanaugh's principal dissent, basically saying, Brett, you ignorant slut. Liz Die 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, 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. Once again, the girls are biting. Brett Kavanaugh is such a desperate tryhard. He had some extremely pathetic footnot. that to me quoted 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. That is using them to help establish its meaning. It's just pathetic. 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 adderoy at the press conference is just going to like encourage all of his worst impulses. And, ah, God.

Yeah. Okay. 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, 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 question. 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. 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. We fought a war two. Yep. Wait, we fought a war two over it. Like, what a week for England out no kinging the United States. That's true. So this is just supposed to be a bonus episode. It's getting long, but now to some takehomes. 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.

Entirely possible. Yep. Also wanted to underscore the ideological cross-pocket. 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 lawlessness. 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. Democrats have told us incessantly that this court is corrupt, that it is in the pocket of President Donald J. 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. So does it court? 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. 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,

Alito and Kavanaugh read a statute that doesn't mention tariffs to allow a Republican president to impose unlimited, unreviewable, unchecked tariffs. Yeah. So, yeah, in terms of takeaways, I want to just elaborate on something that you said, which is that this major question's doctrine is this tool they have. They are loaded forbear 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. 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. I mean, we've joked before about the major questions doctrine. and barring the government from stopping an asteroid barreling toward Earth?

I mean, I think those are the literal stakes for a future Democratic president. 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, remained strong proponents of the major questions doctrine, a.k.a. 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. 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, 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. Roberts was very into Pam Bondi's appearance before that congressional committee. He was like, yes, the doubt is 50,000, Pam. You're right. 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 back slapping at a boy, if Kavanaugh's there, which he typically is. Curious if Trump gives John Roberts a different kind of. of won't forget it than he gave him at last year's state of the union.

Absolutely. I mean, again, you got to watch this, but he called them the Republican appointees who struck down the tariff's 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. They're very unpatriatic 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. 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, quote, president acknowledges that he is way, 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. Strict scrutiny is a crooked media production, hosted and executive produced by Leah Lippman, Melissa Murray, and me, Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer. Jordan Thomas is our intern, music by Eddie Cooper, production support from Katie Long and Adrian Hill. Matt DeGroote is our head of production. Thanks to our video team, Ben Hethcote, and Johanna Case.

Our production staff is proudly 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 Stricts 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. If you guys like Positive America, please consider subscribing to our Friends of the Pod program. So Friends of the Pod get lots of stuff. You get more Pod Save America. That includes our new show, which is called Pod Save America Only Friends.

It's where Dan gets naked. Where Dan gets full frontal nudity, but mostly it's a biweekly subscription-exclusive podcast. It is basically Pod Save America, but behind a paywall. So it's a little bit looser and more fun. And it's Love It and Fabro and Me and Fifer and then other Cricot host. We go deeper on the news and cover more stories. You also get Open Taps, which is a weekly behind-the-scenes newsletter from the show. Plus you get ad-free episodes of your favorite crooked podcasts.

and all kinds of other stuff. Dan will come to your house and clean it once every quarter. Yeah, clothed. Dan is very busy, clothes only. But along with just getting great content, becoming a friend of the pod, joining our subscription community is the number one thing you can do

to help us grow to help independent progressive media. So if you're ever thought about doing it, if you ever wanted more Pod Save America, consider going to cricket.com slash friends and becoming a friend of the pod. Hello. You're never going to believe this. Booster Juice called your name today.

You can get a free smoothie or alsoie, No way. I'm heading there now. Oh my gosh. You and my brother have the same name. Okay, I'm calling him next. I'm hanging up. Booster Juice names of the day is back. Two names are selected each day, and if your name matches, you can get a free smoothie or an assay pool. Watch for your name on the Booster Rewards app and social media. Must be an app member to qualify Booster Juice.

Canadian born blending since 1999.