I plan to post some posts about the implication of the Learning Resources case going forward. But first a look backwards.
The oral argument was November 5, 2025. The decision was last Friday, February 20, 2026. The time from argument to decision was about 3 ½ months, or 107 days, to be exact.
What the hell was going on during those 107 days?
They Were Exchanging and Polishing Drafts
Consider this example. After oral argument, there is a split among the justices; the majority thinks the plaintiff should win, while the minority would have liked to see the defendant prevail. The job of writing the majority decision is assigned by Justice Smith, while Justice Jones is tasked with drafting the dissenting opinion.
Justices Smith and Jones, plus their respective law clerks, get to work drafting. Thereupon, they exchange drafts. Justice Smith discovers that the Jones draft makes some seemingly good points that she failed to consider in her majority draft opinion, while Justice Jones discovers the same thing about the other side’s draft.
Each side revises its draft to cast shade on the other, in a more precise and pointed way. They exchange second drafts, whereupon Smith concludes that Jones has misstated his position, set up a straw man argument, and needs to be taken to task.
Drafts continue to be prepared and exchanged until everybody is satisfied that they have set forth their respective positions in the best way possible. Finally, the law clerks go over the drafts to make sure, for example, that when Smith critiques a position taken by Jones on page 15 of his dissent, it really is page 15, not page 13 or page 16.
That was a simple example. In the actual Learning Resources case, there was a majority opinion, two concurring opinions, two opinions concurring in part and concurring in the judgment, and two dissenting opinions.
Whole lotta draftin’ goin’ on. Whole lotta exchangin’ drafts goin’ on.
A Lot of Drafting and Exchanging Drafts, but Should it Have Taken 3 ½ Months?
No. The justices, and their stellar law clerks who graduated at the top of the class in stellar law schools, all know how to sit down and write a polished legal draft in very short order.
In my opinion, a month would have been a generous amount of time for the drafting and exchanging process to play out.
Are There Some Other Vanilla Excuses for the Delay?
Of course there are.
A lot of other stuff was going on—particularly a whole bunch of emergency appeals from Trump’s many other usurpations.
And three months is not out of line for recent precedent involving consequential Supreme Court decisions.
Yadda, yadda, yadda.
OK, What do You Think was REALLY Going On?
Many scholars and many commentators have detected a tendency for the Supreme Court to avoid confronting a newly elected president and to wait until his popularity has declined, before handing him his head on a silver platter. Common examples are the Nixon tapes decision in 1974 and the Truman steel seizure case in 1952.
Here, the Court waited until the promised upsides of the tariff usurpation had failed to materialize, the downsides had become widely apparent, and Trump’s popularity was clearly sinking.
Gallup, Fox News, and Pew Research, among others, all show a material decline in Trump’s popularity from early November of last year to late February of this year.
I think that’s probably why they waited so long: they wanted to hand Trump enough rope to let him hang himself good and proper.
Facing MAGA 