BREAKING: SCOTUS Nixes Trump’s Tariffs

In today’s much-anticipated ruling, the Supreme Court struck down Trump's tariffs. But how the opinion, dissent, and concurrences break down paints a much more complicated—and concerning—picture. What happens next? Just how far will Brett Kavanaugh go to enable Big Daddy Trump? When will the Court’s conservatives realize that the Major Questions Doctrine is about as real as the tooth fairy? Kate and Leah answer these questions and more. Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2026! 3/6/26 – San Francisco 3/7/26 – Los Angeles Learn more:http://crooked.com/eventsPreorder Melissa’s book, The U. S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader https://bookshop.org/p/books/the-constitution-annotated-for-the-contemporary-reader-melissa-murray/8e7f0dfa472fc3ca?ean=9781668221938&next=t&Buy Leah's book,Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes https://www.simonandschuster.com/books/Lawless/Leah-Litman/9781668054628Follow us onInstagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.social

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

  Crooked Con is coming up right after the election, and we have just added a bunch more great names to the lineup. We got Governor JB Pritzker coming, Senator Chris Murphy, and then over from the House side, Ilhan Omar, Robert Garcia, Sarah Jacobs, Jamie Raskin, Sarah McBride. We also have Carlos Eduardo Espina, Simone Sanders Townsend, Eugene Daniels, David Pakman, Jessica Tarlov, Heather McGee, and then all the other people that we've announced on the website, plus more to come. Great list. Check out the full lineup and get tickets right now at crookedcon.com. We'd love to see you there. That's crookedcon.com.

• 0:31Kate Shaw?

  Some days, it's the little things you look forward to most. And with Pepperidge Farm's thoughtfully crafted cookies, there's always something worth savoring. Maybe it's a Milano made with premium chocolate between two delicate biscuits, a Sausalito, baked with rich milk chocolate chunks and macadamia nuts, or the simple buttery goodness of a chessman. So pour the coffee, find a comfy chair, and take a moment to treat yourself to a cookie, or two. Pepperidge Farm, have a little taste.

• 1:02Speaker 02

  Mr. Chief Justice, if please, before it, it's an old joke, but when a argued man argues against two beautiful ladies like this, they're going to have the last word.

• 1:14Speaker 03

  She spoke not elegantly, but with unmistakable clarity. She said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet or for our next."

• 1:44Leah Litman?

  How reasonable, how moderate, how demure, how mindful. The Supreme Court is good now. My apologies to Brett Kavanaugh, Neil Gorsuch. I want to be a good girl. JK, welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts for today's emergency bonus episode. I'm Leah Litman.

• 2:03Kate Shaw?

  And I'm Kate Shaw. And as you could probably tell by Leah's opening, we got the tariffs opinion, finally. So in Learning Resources versus Trump, the bottom line is that the Supreme Court invalidated Trump's tariffs on a six to three vote. The Chief Justice, together with With Justice Barrett and Justice Gorsuch concluded that the tariffs were illegal, and they did that by relying on their made up major questions doctrine. We will elaborate. The three Democratic appointees agreed that the tariffs were illegal, but said, "We're just going to do law and rely on legal reasoning to get to that conclusion, rather than this made up major questions doctrine." And the other three, Thomas, Alito, and Kavanaugh, dissented because Trump. And because maybe we are a monarchy after all, we'll also explain.

• 2:44Leah Litman?

  Yeah, so we wanted to get you a quick bonus episode, so you all could shape the narrative. I am actually recording this from vacation in Miami, but-

• 2:52Kate Shaw?

  That's dedication, Leah.

• 2:54Leah Litman?

  It is. Before we get into the deets, the top line is that the following principles and lines of reasoning remain strong. One, the president can't fuck with Supreme Court justices or Supreme Court justices' emotional support billionaires, investment portfolios. And two, but the stock market.

• 3:11Kate Shaw?

  That's called legal reasoning, listeners.

• 3:13Leah Litman?

  Exactly.

• 3:14Kate Shaw?

  Write it down.

• 3:15Leah Litman?

  Exactly. Another point worth highlighting up top is that the court says nothing about the remedy and what happens next. That is, given the Supreme Court's conclusion that the president has collected millions of dollars illegally from Americans, what happens to that money? Does it have to be paid back? To who? What's the process? All of that remains to be worked out, likely in the first instance by the Court of International Trade. I'm sure Donald Trump and his band of genius Epstein-class fail sons, including Howard Lutnick, will figure it out, especially because there's definitely not a shortage of lawyers in this administration.

• 3:50Kate Shaw?

  And one final top line note before we dive in, I wanted to highlight a point that friend of the show, Kim Lane Shepley, has made, and that is that this, what we are seeing with this tariffs opinion, is actually a familiar move by courts operating under various forms of ascending or actual autocracy. So, the move is, the court rules against an overreaching executive. That allows the court to shore up its own credibility, and it also appears to make the executive answerable to the law, which helps the executive, even if that executive then rails against the court. But, by giving the executive the power over remedies, as Leah was just- Describing, the court doesn't say anything about remedies. So that's kind of in the executive's court in addition to the lower courts.

• 4:32Kate Shaw?

  But giving the executive control over implementation and remedies is actually handing the executive a big, if much quieter, win, even while the headlines blare Trump loses. And so that, I think, is an important kind of screen through which to view everything that has happened at the Supreme Court and all of the commentary about it.

• 4:50Leah Litman?

  Absolutely. So let's start with the opinion of the Chief Justice. He relies on the major questions doctrine to conclude these emergency tariffs are illegal. The major questions doctrine, for those who might not remember, is a doctrine that the court came up with in 2022, or at least formalized or made official that year, that says when agencies do things that strike the court as a big deal, ala Ron Burgundy, the court will place a thumb on the scale against the agency's authority under the statute.

• 5:19Kate Shaw?

  So just to kind of put that a different way, the court will interpret a statute not to authorize an agency's major action, if the agency takes some major action, even when a broad general grant of authority might be best read to authorize the agency action. So this is essentially a presumption against at least some exercises of agency authority.

• 5:42Leah Litman?

  And this is also what they call textualism these days, not giving a statute its best meaning. We'll get to that in a bit. The major questions doctrine is, in my view, kind of the tooth fairy of legal doctrine, very not real. In the part of the opinion about the major questions doctrine, which is joined only by Gorsuch and Barrett, who can't even agree on what the major questions doctrine is, that's how real this doctrine is. This plurality points to the unprecedented benefits of tariffs as a reason to invoke the major questions doctrine. This is a novel innovation of that doctrine. Previously, the Republican appointees have pointed to a policy's costs as the reason the major questions doctrine applies.

• 6:25Leah Litman?

  This was darkly hilarious to me, that even in their attempt to shore up this major questions doctrine, even though when they invoke the major questions doctrine against a Democratic administration to try to give it a veneer of legitimacy, they do so by saying, these policies with respect to a Republican president are awesome and great. Whereas when they invoke it with respect to a Democratic president, it's because these policies will impose huge costs.

• 6:53Kate Shaw?

  We should note that even though there is a lot of what my kids would call like glazing the policy choices of the administration, the opinion does also kind of quote, you know, with some seeming skepticism, some of the more ridiculous parts of the Solicitor General's brief, such as, quote, "In the president's view, whether we are a rich nation or a poor one hangs in the balance." So that is called out in the opinion, sort of without commentary. One other thing that's important about this plurality opinion is that the Chief Justice and Barrett and Gorsuch say pretty clearly that there is no major questions doctrine exception for either emergency statutes or foreign affairs, which was, you know, an argument that we will talk about Kavanaugh in a minute, but that the administration

• 7:33Kate Shaw?

  was pressing. So the plurality also repeatedly and lovingly invoked Barrett's separate writings on the major questions doctrine, including some places where she basically said, "Let's rely on our common sense." Like, that is one key component of the major questions doctrine in her view, which is obviously what textualist and originalist judges do, right? When the conservative takeover of the courts happened, what we were told is that none of this freewheeling decision-making was going to happen anymore because rigid adherence to originalism and textualism would carry the day. And instead, what we get is Amy Coney Barrett's conception of common sense. I also love, Leah, you said, I think correctly, that the major questions doctrine was basically invented, or at least recognized explicitly in 2022, count them

• 8:18Kate Shaw?

  four years ago. But the court like really tries to say that we have long recognized the major questions doctrine, but then, you know, with one exception in the year 2000, everything else they cite is from the last dozen years. This is a new and made up doctrine.

• 8:33Leah Litman?

  That's the new originalism and longstanding precedent take.

• 8:37Kate Shaw?

  Ah, of course.

• 8:38Leah Litman?

  Yes. So in addition to the major questions doctrine, the first part of this plurality opinion is kind of a taxes bad, or at least a taxes are a BFD vibe, which to me underscored how this case was one where there was real ideological cross pressure on the court's Republican appointees. Yes, it involved presidential power, and presidential power being wielded by a Republican president. Were all executive power and maybe legislative and judicial power. As well is unitary and resides. On the other hand, the case involved what were effectively taxes opposed by the business corporate interests that are very much part of the Chamber of Commerce wing of the Republican Party, and they have to protect those Fortune 500 CEOs. It was a little interesting to me that Barrett and Gorsuch ended up being more Chamber of

• 9:23Leah Litman?

  Commerce than Brett Kavanaugh, although then upon reflection, given that this case involves emergency presidential powers, an issue on which Brett Kavanaugh is basically a wingnut, that did make more sense to me.

• 9:36Kate Shaw?

  Yeah, that's, I mean Kavanaugh's sort of trajectory as like further and further in the embrace of Thomas and Gorsuch is like definitely an interesting and important dynamic in the last year. The chief's opinion also I found really enraging in that it bent over backwards to treat Trump as a very normal president. Like, the literal first sentence of the opinion is sane-washing the president. So it says, quote, "Shortly after taking office, President Trump sought to address two foreign threats." Huh, is that what he's sought to do?

• 10:08Leah Litman?

  That's basically fanfiction.

• 10:10Kate Shaw?

  I'm not even saying you, John Roberts, must dig into his motives or like

• 10:15Leah Litman?

  No.

• 10:16Kate Shaw?

  impugn his credibility, just cite the contents of the executive orders that Trump issued, quote them. They say they're about drug trafficking and trade deficits, but like to go out of your way to credit his sincerity and good faith in the very first sentence of the opinion is a choice that John Roberts made.

• 10:32Leah Litman?

  100%. This Donald Trump was a guy who was playing Russian roulette with tariffs and basically doing a random number generator to come up with tariff rates. You know, no, no math, no economic principles, just vibes. The opinion, in addition to relying on but taxes and major questions doctrine, also relies on some plain text, specifically the Warren G. principle. What does regulate mean? Since the statute that the president invoked AIBA, the International Emergency Economic Powers Act, allows the president to, among other things, quote, "regulate importation or exportation." The president had this to say in response to the chief's textual analysis, quote, "I'm very good at reading language," end quote.

• 11:16Kate Shaw?

  Wait, the president, that was in a statement that he made?

• 11:18Leah Litman?

  He said that in his presser.

• 11:19Kate Shaw?

  Oh, my God.

• 11:19Leah Litman?

  Oh, yeah.

• 11:20Kate Shaw?

  The recording, pretty soon after the opinion was released. And there was a presser that Leah had a chance to watch. I didn't. He said, "I'm very good at reading language."

• 11:26Leah Litman?

  He did.

• 11:26Kate Shaw?

  Well, no, good for him. So, you know, Leah was just quoting the language, right? So, there is this huge central question, like, does regulate encompass, you know, to tariff, to impose tariffs? And the opinion, I thought, was kind of messy in like lots of different ways. And in one place, it was sort of hedgy, was that there are a few places in the opinion where it sounds like what the court is saying is AIBA doesn't give the president the power to impose these tariffs, like these, worldwide, enormous, et cetera, et cetera. Maybe it's just saying these tariffs aren't authorized. But in other places, and I actually do think this is the best reading of the opinion, the court seems to be saying AIBA doesn't give the president to impose any tariffs. And in particular, in the kind of textual analysis part of the opinion that Leah was

• 12:09Kate Shaw?

  alluding to, the kind of Warren G. part, what does regulate mean? I do think the court pretty clearly says regulate does not encompass the power to tariff, full stop. So, I think that means AIBA does not confer any power to impose tariffs, big or small, although, of course, that doesn't take off the table, the president's power to impose tariffs under other statutory authorities. So, there was also a footnote, since we're still on the Roberts opinion, there was also a footnote where I thought Roberts might be reminding Kavanaugh that Kavanaugh is not, in fact, the president's lawyer. So, let me just maybe quote that footnote, a couple of sentences. Quote, "The principal dissent," and that's the Kavanaugh dissent, "surmises that the president could impose most, if not all, of the tariffs at issue under statutes other than AIBA. The cited statutes contain various combinations of procedural prerequisites, required agency

• 12:53Kate Shaw?

  determinations, and limits on the duration, amount, and scope of the tariffs they authorize. We do not speculate on hypothetical cases not before us."

• 13:01Leah Litman?

  Shorter, John Roberts, Brett, you cray? So, when I first read the opinion, I thought this was John Roberts saying, "Look, my guy, we have to at least maintain an appearance of impartiality." But then, I had a different response after listening to Trump's presser announcing a new slew of tariffs under other authority and declaring that the Supreme Court gave him a right to do that. I think- The chief may also have been telling Brett to pipe down because he doesn't want there to be more terrorists, which he knows are bad for Republicans. Kate, since you missed the presser, have to add, Trump also declared that he didn't think, quote, "The court meant it" when they struck down the terrorists.

• 13:42Kate Shaw?

  Did they wink at him while they did it?

• 13:43Leah Litman?

  Very unclear, very unclear. Trump also elaborated that he, quote, "Read the paragraphs and I read very well, great comprehension." So would definitely recommend you go back and watch this one.

• 13:56Kate Shaw?

  The paragraphs? Did we say the opinion's 170 pages long? He read-

• 14:00Leah Litman?

  I don't honestly know if he was referring to the opinion there or referring to the briefs or referring to the statute, which contains some indentation. TBD. But the bottom line on this opinion, the chief's opinion, was for me, the "I can excuse fascism, but I draw the line at" meme, where the chief draws the line at the stock market and his and his buddies' investment portfolio is.

• 14:26Kate Shaw?

  That seems right.

• 14:27Speaker 05

  On election night, we will all be feeling a lot of feelings. Do not spend it alone. Spend it with me, Alex Wagner, for Crooked Media Presents: Live Election Results. We're gonna have Jon Favreau, Jon Lovett, Tommy Vitor, Stacey Abrams, Dan Pfeiffer, Aaron Ryan, and many more special guests to be announced, and they're all gonna help us make sense of what's happening as the election results roll in. So here's what you need to do. Subscribe to Pod Save America on YouTube and tune in on Tuesday, November 3rd, at 9:00 PM Eastern, 6:00 PM Pacific for hot takes, catharsis, and as many results as we can possibly analyze.

• 15:07Speaker 06

  Some days, it's the little things you look forward to most. And with Pepperidge Farms' thoughtfully crafted cookies, there's always something worth savoring. Maybe it's a Milano, made with premium chocolate between two delicate biscuits. A Sausalito, baked with rich milk chocolate chunks and macadamia nuts. Or the simple buttery goodness of a chestman. So pour the coffee, find a comfy chair, and take a moment to treat yourself to a cookie. Or two.

• 15:37Kate Shaw?

  Pepperidge Farm.

• 15:38Leah Litman?

  Have a little taste.

• 15:45Kate Shaw?

  OK, so that is maybe the TLDR of the majority opinion. That's also, you know, it's in part a plurality opinion, but where there are six votes to strike down these tariffs. But there were also a lot of concurrences in this case. So let's talk about the two sane ones first. The one written by Justice Kagan and joined by Justices Sotomayor and Jackson is first up. And I will say, you really have to respect them for holding the line the way they do on the major questions doctrine. They refuse to go along with this absolute charade slash mockery of the law, even though the court was wielding it for reasonable ends here. And it is a familiar move, I think, to say, well, we've lost the major questions battle, and so at least the court is using it appropriately here to invalidate this presidential action.

• 16:28Kate Shaw?

  That's a move we have seen justices, including these three, make before.

• 16:32Leah Litman?

  Yes.

• 16:32Kate Shaw?

  It sometimes makes sense. They are not going to play that game here.

• 16:36Leah Litman?

  I love it.

• 16:37Kate Shaw?

  This is a disaster masquerading as law, and they are unwilling to pretend otherwise.

• 16:42Leah Litman?

  Good for them.

• 16:43Kate Shaw?

  Yes.

• 16:43Leah Litman?

  Neil Gorsuch said, or at least really implied, that they, the Democratic appointees, joined portions of the opinion applying the major questions doctrine, but they decidedly did not. Now, Neil's concurrence later clarifies that his allegation is actually that in there, the Democratic appointees' separate writing, they're effectively doing the major questions doctrine, which is different than joining an opinion applying major questions doctrine. And I also think he's just wrong about that characterization in any case.

• 17:13Kate Shaw?

  But in the first part where he's like, no, no, I'm telling you what you did, the kind of like epic level of mansplaining of Neil Gorsuch telling the three women Democratic appointees what they actually think about the major questions doctrine was.

• 17:26Leah Litman?

  I'm going to explain the contents of your mind to you ladies.

• 17:29Kate Shaw?

  I needed that. Luckily, Kagan responded to Gorsuch. So she had this footnote that I think we're just going to quote. Quote, "Justice Gorsuch claims not to understand this statement, insisting that I now must be applying the major questions doctrine and his own version of it to boot, given how strong..." His apparent desire for converts, I almost regret to inform him that I am not one. I proceed in this case, just as I did in West Virginia and Nebraska. I consider a delegation provisions language, broaden the scope to take in the statutory setting, and apply some common sense about how Congress normally delegates. I will let Justice Gorsuch relitigate on his own, our old debates about the other statutes unrelated to the one before us. Just pure fire.

• 18:12Leah Litman?

  I loved it. The shorter line here was, "Stop trying to make the major questions doctrine happen, Neil. It's not going to happen."

• 18:21Kate Shaw?

  Or pretending that you already made it happen and that we all already are on board. No, no, no.

• 18:26Leah Litman?

  The "almost regret" line was just perfect.

• 18:29Kate Shaw?

  That was great.

• 18:30Leah Litman?

  On the Kagan opinion, I also wanted to flag this line, quote, "Combine the verbs and objects in all possible ways, and the statute authorizes 99 actions a president can take to address a foreign threat. And exactly none of the other 98 involve raising revenues," end quote. Shorter, Elena Kagan, you got 99 problems, John Sauer, and my brain is one of them. This was kind of a riff on a point she made during the oral argument, that, "Look, this statute lists a bunch of verbs, actions a president can take, but taxes and tariffs just aren't one of them."

• 19:03Kate Shaw?

  Yeah. All right. So that was a big, long concurrence, obviously sparred with Gorsuch. There was one more sane concurrence, Justice Jackson's, which just kind of explains why legislative history is a proper consideration and how it helps to resolve this case. So I think another example, like the three Democratic appointees' refusal to just go along to get along with the major questions doctrine being a thing, just because a majority of her colleagues are unwilling to look at legislative history is not, for Justice Jackson, a reason to stop talking about it and reminding all of us that it does matter, and if we are one day in a saner timeline, like, these remain important interpretive devices that courts should look to.

• 19:44Leah Litman?

  Let's move on to Neil Gorsuch's score settling concurrence. This was an absolutely unhinged concurrence to me. Very Godfather. Today I settled all family business five. Like, you're not innocent, Justice Barrett is one of the clear insinuations here.

• 20:02Kate Shaw?

  Absolutely. And so, of course, I love the Godfather reference. I will say that his family business has maybe not all been settled because his personal family business involves actually destroying administrative agencies in since this is like a president case, not an agency case. He's going to have to await another day to fully avenge his mother, Ann Gorsuch Burford. But today, he basically marches through to explain why every single separate writing in the case, the concurrences and the dissents, is wrong. And only he, Neil Gorsuch, I guess along with John Roberts, are principled and understand the meaning of the major questions doctrine and indeed, kind of broadly, how to do statutory interpretations.

• 20:43Kate Shaw?

  He says of his colleagues, each of which he clearly believes is a fool, quote, after kind of describing like what they have done, he says, "It is an interesting turn of events. Each camp warrants a visit." And he's like just getting started.

• 20:57Leah Litman?

  Yeah. So as to the Democratic appointees, there was this line I alluded to earlier that I think is super misleading, where he says, quote, "Past critics of the major questions doctrine do not object to its application in this case," end quote.

• 21:10Kate Shaw?

  Yes, they do.

• 21:11Leah Litman?

  "Yet they do. They refuse to join the section of the opinion applying it. But why let facts get in the way of a great story?"

• 21:19Kate Shaw?

  It did a little bit. All the crosstalk helped a little bit explain the delay. I mean, it's obviously nearly 200 pages of opinions, but like, we all expected, because they had so accelerated the consideration of, you know, the argument and the briefing, that the opinion would be out like in January. And here, we're kind of well into February. But there was just like a lot of crosstalk that they had to work through. And that is at least in part.

• 21:39Leah Litman?

  And a lot of it coming from Neil Gorsht.

• 21:41Kate Shaw?

  A lot of it.

• 21:42Leah Litman?

  Gorsht talking.

• 21:43Kate Shaw?

  Talking.

• 21:44Leah Litman?

  Right? That might be a new verb.

• 21:46Kate Shaw?

  I think it might be. And I meant, this is the fullest expression of it, I think. I think the verb was coined today because like, we just really saw his full capabilities today.

• 21:53Leah Litman?

  Yes.

• 21:54Kate Shaw?

  Okay. So we talked about him going after Kagan, the Democratic appointees. He then goes off on Justice Barrett, who, quote, he says, "Suggests the major questions doctrine is nothing more than routine statutory interpretation." I mean, he is right. There is a kernel of truth that the major questions doctrine, as the court deploys it, is not remotely like normal statutory interpretation. And it's actually pretty bad faith to suggest that it is. But of course, he has to be a complete jerk about the way he does it. So here is a representative footnote. Quote, "Today, Justice Barrett protests that the foregoing discussion takes down a straw man. But it was Justice Barrett who previously wrote that the major questions doctrine grows out of common sense principles of communication. And it was Justice Barrett who used the various illustrations recounted above to suggest that

• 22:38Kate Shaw?

  our major questions decisions can be explained by reference to the kind of common sense that goes without saying. If Justice Barrett now means to put all that to the flame, the major questions doctrine is better for it."

• 22:49Leah Litman?

  Roll the cameras. The girls are fighting. This is what I was alluding to previously when I said, "It's funny to me that they cannot even agree on what this, quote, 'doctrine' is, even though they want to say this, the major questions doctrine, is definitely law. They still can't agree on what it's actually doing as a matter of law." Also, stepping back, how does anyone go to work with Neil Gorsuch? He is so difficult and such a prima donna. This concurrence on concurrence on concurrence. I mean, don't you have other things to do, like a job?

• 23:27Kate Shaw?

  This is how he understands his job, Leah. And you do get the sense that, like, they must be so annoyed to have to, like-

• 23:36Leah Litman?

  As a shit poster.

• 23:37Kate Shaw?

  ...post his face every day. Like, all of them, not just the Democratic appointees.

• 23:40Leah Litman?

  Oh, no.

• 23:41Kate Shaw?

  I think it's pretty clear. I mean, it's been clear for a while, but it's really clear on the face of this opinion. Okay, so that's what the, sort of like, you know, ever-sunshiny Neil had to say about his colleagues, Elena and Sonia and Katanji and Amy. Now, on to Brett and Sam and Clarence. This is what Neil had to say. Quote, "Still others who have joined major questions decisions in the past dissent from today's application of the doctrine. Finally, seeking to sidestep the major questions doctrine altogether, one colleague submits that Congress may hand over to the president most of its powers, including the tariff power, without limit." That last bit was addressed to Clarence.

• 24:21Speaker 05

  On election night, we will all be feeling a lot of feelings. Do not spend it alone. Spend it with me, Alex Wagner, for Crooked Media Presents Live Election Results. We're going to have Jon Favreau, Jon Lovett, Tommy Vitor, Stacey Abrams, Dan Pfeiffer, Aaron Ryan, and many more special guests to be announced. And they're all going to help us make sense of what's happening as the election results roll in. So here's what you need to do. Subscribe to Pod Save America on YouTube and tune in on Tuesday, November 3 at 9:00 PM Eastern, 6:00 PM Pacific for hot takes, catharsis, and as many results as we can possibly analyze.

• 25:01Speaker 06

  Some days, it's the little things you look forward to most. And with Pepperidge Farm's thoughtfully crafted cookies, there's always something worth savoring. Maybe it's a Milano, made with premium chocolate between two delicate biscuits. A Sausalito, baked with rich milk chocolate chunks and macadamia nuts. Or the simple buttery goodness of a chestman. So pour the coffee, find a comfy chair, and take a moment to treat yourself to a cookie. Or two. Pepperidge Farm. Have a little taste.

• 25:40Kate Shaw?

  Okay, on to the dissents? Yes. Okay. Justice Kavanaugh, as we've already mentioned, had the main dissent. It said the major questions doctrine doesn't apply here for two reasons. One, this is a Republican president. And that's not really on the face of the opinion, but the reasons provided are so flimsy that actually is kind of the only way to understand what he is saying. He says the doctrine doesn't apply because the statutory text, history, and precedent constitute clear congressional authorization for the president to impose tariffs under AIBA, but that's just not remotely plausible in light of the other major questions cases that the court has handed down and in light of what this statute actually says with its words. And, he says, even if there wasn't clear authorization, the major questions doctrine

• 26:22Kate Shaw?

  doesn't apply to foreign affairs, a principle I have no doubt he would apply in a principled and even-handed fashion to a Democratic president who attempted to do something about, say, climate change, in part for foreign policy reasons.

• 26:34Leah Litman?

  Absolutely. His opinion is unsurprisingly a mess. It basically does a much worse version of Judge Toronto's opinion on the federal circuit, concluding that the president did have authorization to make these tariffs, and a much worse version of Jack Goldsmith and Curtis Bradley's article arguing that the major question doctrine doesn't apply to foreign affairs, and his dissent has a listicle, because of course it does. I mean, just reactionary dum-dum levels of gobbledegook here. The president had a different response, basically confirming that this is reactionary gobbledegook. So at this presser, he said Kavanaugh's, quote, "Stock has gone way up," and that he's, quote, "so proud

• 27:17Leah Litman?

  of him today." He added, quote, "I would like to thank Justice Kavanaugh for frankly, his genius and his great ability. Very proud of that appointment."

• 27:28Kate Shaw?

  Oh, my God. Did he talk about any of the other specific justices by name, or just Justice Goodboy? He did?

• 27:33Leah Litman?

  Oh, yeah. When I'm telling you, you gotta watch this one.

• 27:36Kate Shaw?

  I do have to, as soon as we're done.

• 27:37Leah Litman?

  You gotta watch this one. Yeah. So the chief's opinion barely responds to Brett Kavanaugh's principal dissent, basically saying, Brett, you ignorant slut. Liz Di of Public Notice said that she made that characterization of the chief's response on Blue Sky, so I wanted to credit her for it, even though I had this in our note before she said it. Anyways, specifically in this footnote, the chief responds to Justice Kavanaugh's invocation of a pre-AIPA case as a basis for the tariffs. So after the chief highlights a bunch of passages from that opinion that suggests the court's previous opinion was very narrow and didn't resolve emergency tariffs, the chief says, quote, "This is not quite no-no, a thousand times no, but should have sufficed to dissuade the principal

• 28:22Leah Litman?

  dissent from invoking the case with respect to the quite distinct legal and factual issues present here," end quote. Once again, the girls are fighting.

• 28:31Leah Litman?

  Brett Kavanaugh is such a desperate tryhard. He had some extremely pathetic footnotes that to me coded as I'm still a super Republican into all Republican jurisprudence. So, for example, his footnote 16 began, quote, "I have long been and fully remain a strong proponent of the major questions doctrine," end quote. And then in footnote 11, he says, quote, "I cite the committee report, i.e. a form of legislative history, quote, 'not for determining the meaning of AIPA, but rather to help show as a historical and factual matter that members of Congress were aware of both the Nixon tariffs and appeals court decision,'" end quote. That is using them to help establish its meaning. It's just pathetic.

• 29:17Leah Litman?

  Very pathetic.

• 29:17Kate Shaw?

  And I highly doubt that's one of the paragraphs that our president read. But like, I am, the fact that Trump gave Brett an attaboy at the press conference is just gonna like encourage all of his worst impulses and, ah, God.

• 29:31Leah Litman?

  Yeah.

• 29:32Kate Shaw?

  Okay, Kavanaugh had one more idea that we should mention, which is that essentially this policy is so illegal, it will be tough to unwind, so we're just gonna let the president do it. I mean, it's not exactly what he said, but that's basically the idea. And it really is conspicuous that you just don't recall seeing that argument in the student debt relief case, but I probably just missed it.

• 29:56Leah Litman?

  Yeah.

• 29:57Kate Shaw?

  We should also mention the Thomas dissent, which says Congress's power to impose duties slash tariffs on imports can be delegated to the president. And the reasoning here is that this area, so foreign commerce, is an area where the nondelegation doctrine just doesn't apply. So it's so interesting how you can take these doctrines, and then if there are things that they would lead you to maybe do when your president is in the White House, then you can just identify exceptions. It is quite convenient, the way that works. So this is, you know, one of the ways Republican appointees and some commentators have gerrymandered the nondelegation doctrine, similar to the gerrymandering of the major questions doctrine, in a way that would allow Republican presidents to do what they want and just to dismiss any inconvenient history.

• 30:39Kate Shaw?

  Just create categories that explain why different kinds of history don't count. QED.

• 30:45Leah Litman?

  So the Thomas opinion also decided to go full on anti no kings and argue that the non-delegation doctrine specifically doesn't apply to powers of the crown. And Thomas asserts that one of the powers of the crown, which apparently was given to the person that the framers decidedly didn't want to make a king, but anyway, that one of the powers of the crown given to the president was tariffs. Now Neil Gorsuch absolutely skewered this historical claim. You know, the king did not have power to raise revenue through tariffs. That was a parliamentary power. Britain fought a war over that. Also Clarence, I'm not sure you've heard of this thing, this phrase, no taxation without representation. We fought a war too. Right, we fought a war too over it.

• 31:29Leah Litman?

  Like what a week for England out no kinging the United States.

• 31:34Kate Shaw?

  That's true.

• 31:35Leah Litman?

  So this is just supposed to be a bonus episode. It's getting long, but now to some take homes. So one for me is that the court did something good, which usually implies something wicked this way is about to come. Are we going to get the opinion striking down the Voting Rights Act next week? Possibility.

• 31:53Kate Shaw?

  Entirely possible, yep.

• 31:54Leah Litman?

  Also wanted to underscore the ideological cross pressure at play in this case, which at least to me underscores, this is not the start of a trend of the court just standing up against Donald Trump's lawlessness. And I would add to that, that this ruling was also self-serving and helpful to Republicans, saving Trump from himself, from this disastrous unpopular policy. And it's also self-serving for the court, not just to shore up their own legitimacy, but to shore up the major questions doctrine as well. And of course, unsurprisingly, we're already getting the court is good now takes. Fox News was right out of the gate on this one, which you can hear here.

• 32:35Speaker 07

  Democrats have told us incessantly that this court is corrupt, that it is in the pocket of President Donald J. Trump, that it cannot be trusted, that it needs to be term limited, that it needs to be expanded. Today, we're getting all of these pressers, the press releases, the statements on the, you know, in Washington of people saying, Democrats saying, "The court got this right." So, does it quiet at all any of this political language that has been about modifying the court? These efforts that Democrats say, you know, if they retake the House and Senate, that they may make moves to modify the court as we now know it. So, if that happens, we should remember today where they are in full praise of the court and very happy about what it's done. There's also the political impact on the GOP side. This has been mentioned a little bit.

• 33:20Speaker 07

  That we all know members that we've talked to on the GOP side of the aisle who are silently, quietly breathing a sigh of relief. And listen, the president can now say, you know, "It's the Supreme Court's fault. I tried. These tariffs were working. It's about the justices." And then pivot to these other options we know he has for other tariffs.

• 33:37Leah Litman?

  But it wasn't just Fox. You know, the New York Times push alert after pushing out "Supreme Court Strikes Down Trump's Sweeping Tariffs" had a push alert that read, quote, "The Supreme Court's Declaration of Independence," end quote. Yeah, so another key take home for me was that there's three votes for anything Republicans want to do on this court. I mean, Thomas Alito and Kavanaugh read a statute that doesn't mention tariffs to allow a Republican president to impose unlimited, unreviewable, unchecked tariffs.

• 34:06Kate Shaw?

  Yeah. So, yeah, in terms of takeaways, I want to just elaborate on something that you said, which is that this major questions doctrine is this tool they have. They are loaded for bear with it, and it is going to be an enormous obstacle to any future Democratic president doing anything significant, right? I mentioned climate change already, but literally, essentially, through executive action, any future Democratic president is going to have, like, a long list of policy priorities. And SCOTUS, if not fundamentally reformed slash disempowered, is going to be essentially an insuperable obstacle to the implementation of any of the items on that agenda because of... Not just because of, but largely because they have this malleable major questions doctrine

• 34:50Kate Shaw?

  that they will wield to invalidate anything they don't like that a president or an administration might do. I mean, we've joked before about the major questions doctrine barring the government from stopping an asteroid barreling toward Earth. I mean, I think those are the literal stakes for a future Democratic president.

• 35:06Leah Litman?

  Absolutely. Strong plus one. This is part of why Supreme Court reform has to be part of any Democratic agenda. And, you know, as I said, Brett Kavanaugh even dropped a footnote noting that he and presumably Alito and Thomas, who joined him, remain strong proponents of the major questions doctrine, AKA he's watching and waiting for you, future President Ocasio-Cortez. And these guys aren't even subtle about this. So Rand Paul, after the decision, tweeted out, "This ruling will also prevent a future president such as AOC from using emergency powers to enact socialism."

• 35:39Kate Shaw?

  Yeah. So one other takeaway, and also kind of an elaboration on a point you made earlier, Leah. So if the Cook case also goes against Trump, right, that's the case involving his ability to fire Lisa Cook from the Federal Reserve, we have a pretty strong indication from the tariffs case and the Fed case that the court's tolerance for authoritarianism is high. But when that threatens, you know, markets, you know, both the stock market and the kind of global economy, the court may curb presidential authority. And like, while I once thought that John Roberts actually, you know, for all his flaws, did at least care about things like the separation of powers. And while this opinion does pay lip service to that, right, says congressional primacy and taxation is an important constitutional principle, I actually no longer think he cares much about the separation of powers.

• 36:24Kate Shaw?

  So it actually seems to me really important for future big cases heading up to SCOTUS to, if you're trying to win the cases, foreground whatever business or economic case

• 36:36Leah Litman?

  Yes.

• 36:36Kate Shaw?

  you might have against executive overreach, because that, I think, is the language that this majority understands. And that is the only mode of argument that is getting much traction with this court.

• 36:46Leah Litman?

  Roberts was very into Pam Bondi's appearance before that congressional committee. He was like, yes, the Dow is 50,000, Pam. You're right.

• 36:56Kate Shaw?

  Yep, yep. You mentioned Pam Bondi. I mean, Tuesday's State of the Union in the wake of this decision is going to be really interesting. So again, I still need to listen to this press conference.

• 37:07Leah Litman?

  Yes, you do.

• 37:08Kate Shaw?

  But now that two thirds of Trump's appointees to the court have ruled against him and he is, I guess, not making any secret of his displeasure. I am really curious if Kavanaugh gets an actual like backslapping attaboy if Kavanaugh's there, which he typically is. Curious if Trump gives John Roberts a different kind of won't forget it than he gave him at last year's State of the Union.

• 37:30Leah Litman?

  Hmm. Absolutely. I mean, again, you got to watch this, but he called them the Republican appointees who struck down the tariffs slimeballs and that they were an embarrassment to their families.

• 37:41Kate Shaw?

  Okay.

• 37:42Leah Litman?

  So very curious to watch what happens on Tuesday. I mean, I was waiting with bated breath for his response and it truly did not disappoint. Here is just a sampling of it, which you can hear here. They're very unpatriotic and disloyal to our Constitution. It's my opinion that the court has been swayed by foreign interests and a political movement that is far smaller than people would ever think. Now, there were also some concerning indicators about how Trump might try to move the news cycle on from this tariffs decision, specifically maybe by starting another war, this one with Iran. Minutes after the tariffs ruling was reported, the New York Times said, quote, "President acknowledges that he is weighing limited strike on Iran."

• 38:29Leah Litman?

  Now, we will end with this bit from the president's presser with no context. I want to be a good boy. That's all for today's emergency episode. Happy liberation day to all who celebrate. We will be back on Monday with much, much more.

• 38:44Kate Shaw?

  Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Litman, Melissa Murray, and me, Kate Shaw. Our senior producer and editor is Melody Rattle. Michael Goldsmith is our producer. Jordan Thomas is our intern. Music by Eddie Cooper. Production support from Katie Long and Adrian Hill. Matt DeGroot is our head of production. Thanks to our video team, Ben Heathcote and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube at Strict Scrutiny Podcast so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

• 39:26Speaker 05

  On election night, we will all be feeling a lot of feelings. Do not spend it alone. Spend it with me, Alex Wagner, for Crooked Media Presents: Live Election Results. We're gonna have Jon Favreau, Jon Lovett, Tommy Vitor, Stacey Abrams, Dan Pfeiffer, Aaron Ryan, and many more special guests to be announced. And they're all gonna help us make sense of what's happening as the election results roll in. So, here's what you need to do. Subscribe to Pod Save America on YouTube and tune in on Tuesday, November 3rd, at 9:00 PM Eastern, 6:00 PM Pacific, for hot takes, catharsis, and as many results as we can possibly analyze.

• 40:06Speaker 06

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