As we have seen, the Learning Resources decision was 6 to 3, but there were three distinct factions:
- the liberals, who thought that ordinary tools of statutory interpretation condemned Trumps IEEPA tariffs, and that the “major questions doctrine,” which they did not recognize, was not germane to the decision,
- three of the rightwing justices, who cherished the “major questions doctrine” and thought it was of considerable relevance in ruling against Trump on the tariffs, and
- the three other rightwing justices, who also cherished the “major questions doctrine” as a general matter, but who squirmed to deny its relevance to the case at bar.
In other words, at least for this case, probably for other tariff cases, and possibly for future cases on other topics, the six rightwingers have split down the middle into two opposed factions.
Justices Gorsuch and Barret, along with Chief Justice Roberts, are the swing votes. Who wins a future tariff case will turn on whether Barrett, Gorsuch, and Roberts side with the liberals or whether they side with the other three rightwingers.
And, make no mistake, there will be future tariff cases. There will be future tariff cases up the wazoo.
Trump’s post-decision hissy fit will do nothing to persuade its targets—who are, of course, the very three people he must persuade if he is to have an icecube’s chance in Hell of prevailing in future tariff litigation.
The hissy fit is also intended to threaten and intimidate, but I am persuaded that intimidation will not work either. Why? Because if Barrett, Gorsuch, and Roberts were going to be intimidated, I think we would already seen the effects of that intimidation.
Call the ambulance.
He has shot himself in the foot again.
Facing MAGA 