The Supreme Court improved everyone’s Friday morning—well, everyone except Donald Trump—by dropping the long-awaited decision on tariffs and kneecapping the president’s signature economic policy. The ruling is a sprawling mess, but not nearly as big a mess as the tariffs’ aftermath.
Part of why the case is a mess is that not all six justices who ruled to throw out the tariffs agreed on the same legal basis for doing so.
Bottom row, from left: Supreme Court Justices Sonia Sotomayor and Clarence Thomas, Chief Justice John Roberts, and Justices Samuel Alito and Elena Kagan. Top row, from left: Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson.
Three conservatives—Chief Justice John Roberts and Justices Amy Coney Barrett and Neil Gorsuch—decided that the so-called major questions doctrine, which they just invented recently, meant the tariffs had to go. The three liberals on the bench—Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson—got there just by reading the International Economic Emergency Powers Act statute giving tariff power to Congress, because they are not conservative weirdos.
What that means is that only parts of the majority opinion are actually binding—those parts where at least five justices signed on. But while it will take a bit to parse all of this out, one thing is clear: Trump has to give the money he collected via tariffs back.
A wee problem: The court didn’t say what giving the money back requires. Instead, it appears that it will all be sorted out back at the Court of International Trade.
Oh-so-coincidentally, Trump just nominated one of his friendly little White House lawyers to the CIT just in time to gum up the works on refunds. Trump calls Kara Westercamp “a very experienced Trade Lawyer” who “will always put America First.” She at least does have previous commercial litigation experience at the Department of Justice, and honestly, Trump might have been better off putting her back there. The administration is going to need an absolute phalanx of specialized lawyers to deal with refunding all this money.
Trump likely took in well over $100 billion in tariffs that will need to be refunded. Fun fact: Parties can transfer claims at the CIT, so a smaller importer can sell their claim to a larger entity that can bundle up multiple claims into one suit. That said, even if there are slightly fewer cases, this is still a super-specialized type of law, and you may have noticed that the DOJ cannot exactly keep experienced lawyers on staff these days.
Related | Supreme Court’s tariff ruling may have broken Trump
If you’re wondering why this ruling took so long, you can likely blame the predictable dissenters: Justices Brett Kavanaugh, Sam Alito, and Clarence Thomas. One can imagine a furious Kavanaugh, who has become one of the most reliable pro-Trump votes on the court, spending months trying to bend the will of fellow conservatives Roberts, Gorsuch, and Barrett. Since he couldn’t, he instead gave us a 62-page dissent diatribe joined by Alito and Thomas.
Kavanaugh’s dissent is as ahistorical and legally illiterate as his invention of “Kavanaugh stops," where he happily tossed aside the Fourth Amendment so that Immigrations and Customs Enforcement agents could racially profile people before abducting them. In this decision, his stance on why Trump should get all the money he illegally took is that it will just be too hard to give it back.
You see, it will unleash chaos if the government has to—checks notes—follow the law—checks notes again, furrows brow—and give back the billions it illegally took from American consumers and companies. Apparently, it isn’t chaotic to just let Trump run amok and impose tariffs on any country that makes him sad for any reason, imposing and increasing and decreasing and rescinding to his hateful heart’s content.
Also, ever the suckups, the dissenting justices lavished praise on Trump for how his tariff regime, one guided completely by whatever irked Trump on any given day, actually “helped facilitate trade deals worth trillions of dollars.”
Check your math, pals. Many of these great “deals” are nothing but frameworks, not final anythings.
At bottom, Kavanaugh is saying that if Trump breaks the law so long and so openly and so catastrophically and so messily, he just gets to keep doing it. That view is symptomatic of the absolute rot of the conservatives on this court. But at least this time, a few of them did the right thing and crossed the aisle.
Now, we can sit back and watch the inevitable fireworks begin.
