
The 6-3 Supreme Court ruling last Friday, finding that Donald Trump’s illegal imposition of tariffs was, well, illegal, wasn’t entirely a shock. During oral arguments in the case, the right-wing justices who helped form the majority made it clear they weren’t buying the administration’s defense. Still, the decision was a slap in the face for Trump, who immediately branded the three conservative justices who were in the majority – two of whom he appointed – as “fools and lapdogs.”
Considering all that the right-wing members of the Court have done to enable Trump, the comment was incredibly ungrateful. Then again, no one ever expects gratitude from Trump, for whom loyalty is a one-way street.
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The ruling has been portrayed as the Court limiting
Trump outsourced his nominees to the Supreme Court to the Federalist Society, a powerful right-wing group that is predictably anti-LGBTQ+. All six conservative justices are current or former members of the organization. They regularly attend Federalist Society functions, where they are celebrated for their commitment to using the law to promote right-wing causes.
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As it turns out, the Federalist Society doesn’t like tariffs. Indeed, a co-chair of the Society’s board filed a brief asking for the tariffs to be struck down, and the Society is affiliated with a group that sued to overturn them. (The Society insists that it doesn’t take positions on issues.) Indeed, last year, Trump called Leonard Leo, the Society’s founder, a “sleazebag” for not supporting tariffs.
Unlike Trump, Chief Justice Roberts, Neil Gorsuch, and Amy Coney Barrett have principles. They are willing to ensure that Trump can’t be prosecuted for crimes he commits in office. They are happy to overthrow voting rights protections (a decision coming shortly), and they will gladly do their best to harm the LGBTQ community.
But they will do everything they can to protect businesses.
This seems to be the line that they will not cross. They signaled this in another case, in which they allowed Trump to fire people at independent agencies, such as the National Labor Relations Board, which should be beyond the president’s reach. Go right ahead, the Justices said in another instance of granting Trump his wishes.
However, they added that any attempt to fire Federal Reserve members was off limits. The legal reasoning in the case was convoluted at best. “The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States,” the justices said in their opinion.
The simple explanation is ideological. The right hates independent agencies, like the NLRB. The Federalist Society’s website is filled with posts deploring them as an incursion on presidential power. Eliminating them will make life worse for many people, but much easier for big business. Mucking around with the Federal Reserve’s independence could tank the economy, which would be really bad for business.
In that sense, the tariff ruling isn’t a case of three conservative justices interpreting the law the way that they should. (It isn’t any surprise that half of conservatives would still stick by Trump anyway.) It was a case of the law happening to be in line with their ideology. Most of the time, they have been warping the law to fit their right-wing views. In this case, they didn’t have to.
No one should mistake the ruling as a sign that the conservative justices will rein in
The real test of the Court’s willingness to stop Trump will be the case involving birthright citizenship, which they will hear on April 1. While the Constitution is blindingly clear about this right, Trump has issued an executive order to end it.
However, the six right-wing justices accepted a case that turns on a technical question: the ability of lower courts to issue nationwide injunctions against the President’s orders. They could effectively ignore the Constitutional question and focus on the narrow issue of injunctions, leaving Trump to declare victory and move forward with his attack on the rights of American citizens.
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