Coyote Blog

This should not have to be explained, but the Constitutional intent of the Supreme Court was not to solve social / economic / military problems -- that is the role of Congress.  It's role was not to properly execute and administer these laws -- that is the role of the President's and the Cabinet departments he overseas.  The Supreme Court has the important but narrow role to judge whether the law is being followed.  Sometimes this requires judgement of complicated legal cases that touch on grey areas or contradictions in the law.  Sometimes this is to rule on the legality of a piece of legislation itself, to judge whether it conforms to the ultimate law embodied in the US Constitution.

Unfortunately there is a growing populist theory that the Supreme Court's job is not to strictly follow the law but to act as a sort of legislature of last resort, to impose new law when Congress is deadlocked on an issue or to override "Bad" law, with "bad" defined based on the speaker's preferences.

While this theory has mainly been propounded by the Progressive Left, it increasingly is used by whatever party that occupies the White House to expand the power of the President vs other branches of government.  Depending on your party, it is either totally legal for the President to unilaterally cancel all student loans but illegal to unilaterally create new tariffs -- or vice versa.  Unfortunately, even the Supreme Court Justices themselves seem susceptible to this. To their credit only Barrett, Gorsuch, and Roberts were on the same side of both cases in the Supreme Court.  All the six other justices switched sides -- I am sure entirely coincidently -- siding with the President in each case that most closely matched their party affiliation against the President that did not.

One would think, given how many times Trump has won of late at the Supreme Court, that he would try to reinforce their legitimacy.  Sure he has lost some, but after all, if it were not for the Supreme Court overruling any number of lower court challenges and injunctions against him, most of his agenda would be totally stalled.

But no, Trump cannot help himself and acts like a spoiled child whenever he loses even the smallest battle.  His response to the Supreme Court tariff decision included this, via Reason:

"The Supreme Court's ruling on tariffs is deeply disappointing, and I'm ashamed of certain members of the Court, absolutely ashamed, for not having the courage to do what's right for our country," Trump told reporters on Friday. Those "certain members," it became clear, were Justices Neil Gorsuch and Amy Coney Barrett, who had the temerity to vote against Trump even though he appointed them to the Court.

Here is Trump reinforcing the heart of the growing misconception about the role of the Supreme Court.  Their job is NOT to do what is right for our country.  Their job is to judge cases against the standard of the law.  The law used as a yardstick may be awesome or it may be deeply flawed, but it is not the Supreme Court's job in that case to fix it.  Of course, Trump cannot stop himself from ridiculous name-calling, even of (or especially of) his potential allies:

"The Supreme Court's ruling on tariffs is deeply disappointing, and I'm ashamed of certain members of the Court, absolutely ashamed, for not having the courage to do what's right for our country," Trump told reporters on Friday. Those "certain members," it became clear, were Justices Neil Gorsuch and Amy Coney Barrett, who had the temerity to vote against Trump even though he appointed them to the Court.

Apparently he believes the justices ruled against him because:

" Gorsuch and Barrett "may think they're being politically correct," he averred, but "they're very unpatriotic and disloyal to our Constitution." He suggested they were "swayed by foreign interests and a political movement that is far smaller than people would ever think."

Although the Americans who oppose Trump's agenda represent "a small movement," he said, they are "obnoxious, ignorant and loud," and "I think certain justices are afraid of that. They don't want to do the right thing. They're afraid of it."

Jacob Sullum argues that for Trump, it is all about loyalty and nothing else:

Thomas, Alito, and Kavanaugh did not agree with this particular application of the major questions doctrine. In Trump's view, that shows "their strength and wisdom and love of our country." By contrast, Gorsuch and Barrett (and presumably Roberts too) turned out to be "very unpatriotic and disloyal to our Constitution."

Those assessments have nothing to do with the merits of the justices' legal reasoning. They hinge entirely on whether the justices ultimately took Trump's side. Because Trump equates love of country with love of him, he sees any ruling against him as "unpatriotic." And because he recognizes no distinction between respecting the law and respecting him, he thinks justices are "disloyal to our Constitution" when they disagree with him.

I will not go back into my arguments about why tariffs were both a bad idea and illegally imposed.  That is all here.  I do have a couple of additional thoughts though:

1. It is absurd to call this decision unpatriotic.  At some level, legal decisions should always be neutral and have little to do with patriotic feelings -- patriotism is for Congress and Presidents.  But ironically, even given that, this is perhaps the most patriotic decision by the Supreme Court in recent memory.  A key part of the freaking Declaration of Independence is about the arbitrary imposition of tariffs.  Remember the Boston Tea Party?  "[the King] has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:...For cutting off our Trade with all parts of the world [and] For imposing Taxes on us without our Consent."  How can there be anything more patriotic than restoring the original intent of the Declaration of Independence.  Basically, the Supreme Court just threw Trump's tea in the water.  God bless America.
2. Trump had every opportunity to impose tariffs through an entirely Constitutional avenue, ie via Congress.  He did not even try.  I am not sure it even occurred to Mr. "art of the deal" to try.  And this is one issue (it pains me to admit) where there might have been the possibility of bipartisan agreement -- after all, Democrats have been the main supporters of tariffs over the last several decades.  Bernie Sanders in particular is a huge tariff hawk.  Of course instead Trump as taken the approach of mocking the Congress, even to the extent that we saw the Attorney General using childish insults against the ranking minority member of the her own key oversight committee in Congress.
3. Congressional gridlock on national issues that are narrowly split is a feature, not a bug.  Jamming through radical agendas based on a 51-49 popular vote or legislative body advantage can be tremendously damaging -- just look at Minnesota where the Progressive Left has slammed through a quite radical agenda based on a one vote margin in their legislative chamber.  There is too much impatience on this stuff -- eventually issues ripen and there tends to be a preference cascade in one direction or the other and progress is made in the legislature.   End-running this process via the Executive or even worse the Supreme Court is guaranteed to make things worse.
4. Kudos to Gorsuch, who I have not always agreed with, but with whom I am 100% on board with on this statement from the decision:

For those who think it important for the Nation to impose more tariffs, I understand that today’s decision will be disappointing. All I can offer them is that most major decisions affecting the rights and responsibilities of the American people (including the duty to pay taxes and tariffs) are funneled through the legislative process for a reason. Yes, legislating can be hard and take time. And, yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the Nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man. There, deliberation tempers impulse, and compromise hammers disagreements into workable solutions. And because laws must earn such broad support to survive the legislative process, they tend to endure, allowing ordinary people to plan their lives in ways they cannot when the rules shift from day to day. In all, the legislative process helps ensure each of us has a stake in the laws that govern us and in the Nation’s future. For some today, the weight of those virtues is apparent. For others, it may not seem so obvious. But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty it is.