Learning Resources Inc. v. Trump

Is the Supreme Court’s decision on tariffs a declaration of independence?? Only three columnists at the New York Times can say. If you're not a 5-4 Premium member, you're not hearing every episode! To hear this and other Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support http://fivefourpod.com/support. 5-4 is presented by Prologue Projects. This episode was produced by Alli Rodgers. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Transcriptions of each episode are available at fivefourpod.com http://fivefourpod.com Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

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

• 0:00Speaker 00

  We will hear argument this morning in case 241287 Learning Resources versus Trump.

• 0:08Speaker 01

  Hey, everyone. This is Leon from Prologue Projects. On this week's episode of Five to Four, Peter, Rhiannon, and Michael are talking about Learning Resources v. Trump. Early last year, President Trump issued a series of executive orders imposing tariffs on goods from Mexico, Canada, and China. Then, in the spirit of inclusivity, he expanded the tariffs to include every other country on earth.

• 0:31Speaker 00

  My fellow Americans, this is Liberation Day. Been waiting for a long time.

• 0:37Speaker 01

  To issue these tariffs without congressional approval, Trump relied on a statute called the International Emergency Economic Powers Act, which allows the president to impose economic sanctions and regulate importation during national emergencies. When the tariffs took effect, two small businesses sued the administration. And just a few weeks ago, on February 20th, the Supreme Court ruled against Trump.

• 1:00Speaker 00

  I'm ashamed of certain members of the court. Absolutely ashamed.

• 1:05Speaker 01

  This is Five to Four, a podcast about how much the Supreme Court sucks, even when they get it right.

• 1:16Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have chased away our civil rights, like Iran chasing influencers out of Dubai. I'm Peter. I'm here with Rhiannon.

• 1:30Peter Shamshiri?

  And Michael.

• 1:32Michael Liroff?

  I've only loosely seen this story. I mean, I've seen the hedge fund guy being like, "This wasn't the trade we wanted when we moved to Dubai. It was to be involved in foreign relations."

• 1:46Peter Shamshiri?

  I came here for a crypto conference.

• 1:48Speaker 04

  I have no comment. I'm smiling. I'm rosy-cheeked. I'm laughing. I have anime eyes. But I have no comment.

• 1:57Peter Shamshiri?

  All of our thoughts are with the influencers trapped in Dubai.

• 2:02Speaker 04

  Bro, Dubai bling. The next season. It's gonna be off the chain.

• 2:08Peter Shamshiri?

  All of the Dubai Real Housewives, our thoughts are with you, you know? I mean, imagine having to flee back to America and having no slaves, you know?

• 2:24Peter Shamshiri?

  Just having to pay your servants to do stuff. Oh, I mean, again, they are at the forefront of my mind. Today's case, folks, Learning Resources v. Trump. This is a big case from a few weeks back about tariffs. And it's unusual for us because it is sort of a good one in that the court ruled against Trump and struck many of his tariffs down. But we wanted to cover it regardless because it produced many opinions and many reactions from the media. And all of them reveal various mental diseases that need to be discussed.

• 3:06Speaker 04

  Right, right. Yeah.

• 3:09Peter Shamshiri?

  Yeah. Ring, I'll let you, I'll let you take it away. That's it, that's it.

• 3:14Speaker 04

  That's, that's as much intro as we're gonna get because yeah, this one is just opinions on opinions. And then what you get on top of the opinions on opinions is media commentary on media commentary. And it's all hot garbage. So let's get into this tariffs. You know, I sat down to read this case. I sat myself down. I said to myself, self, what's a tariff? And so...

• 3:43Peter Shamshiri?

  Look, our president never learned and you shouldn't have to either.

• 3:46Speaker 04

  That's what I'm thinking, you know what I mean? But just to give you a very basic rundown of like, what part of the economy we are talking about here? What, what did the president try to do, right? In a very basic sense, tariffs are a kind of tax, but they're a tax imposed by one country on goods imported from another country. All right? Goods coming from China, for example, Trump imposing a tariff on that means the American buyer, the corporation buying those goods, pays a tax on those goods coming from China, right? Now, one purpose of tariffs is to ostensibly, theoretically, like, protect domestic businesses

• 4:29Speaker 04

  from lower-priced foreign competition. Hey, China's trucking out those goods and services cheaper than American corporations can do so. We want to protect American corporations, so we impose a tariff on those imported goods. But unfortunately, there's a huge downside risk with tariffs, of course, in today's global economy. You can imagine the amount of things that the American economy imports, right? And so, a ton of US companies, all of the big ones, and many of the small ones, are highly, highly dependent on foreign-made components, foreign-made equipment, big and

• 5:09Speaker 04

  small, right? And so, when the United States imposes high tariffs on all of these goods and services, it raises the cost of production for American companies, right? It increases the cost of the product. And then, to keep production costs down, that American company has to find, you know, the required components from another source. Often, that other source is not available. So, it really fucks things up. Let's just keep it basic, right? Let's just keep it really basic. We're not getting into nerd economist's territory here. It's pretty simple. But, of course, Trump was promising tariffs from the time he was running in 2024. Big campaign promise was tariffs. And he's talking in 2024 and through 2025,

• 5:54Speaker 04

  the justifications for these tariffs being more like foreign policy goals, right? More stuff around reducing fentanyl in the United States, and, of course, just being aggressive and wielding, like, a sledgehammer through the global economy.

• 6:12Michael Liroff?

  Right. And a trade deficit, for our listeners, is just an imbalance in the import-export volumes between two countries. So, for example, America almost certainly imports more from India than India imports from us. And that's because the cost of manufacturing is very low in India. So, a lot of Companies outsource their manufacturing and offshore their manufacturing to India. And the result is we have a trade deficit with them, but also you get lower prices on the goods.

• 6:43Peter Shamshiri?

  Right. And also, I mean, it's not just where the manufacturing is, it's also we have more money. So we buy more shit.

• 6:50Michael Liroff?

  Oh, for sure. Yeah, we're buying from other countries and they're producing things and they're exporting for their economy. And we are not a big exporter for our economy. I mean, we do export some things, corn.

• 7:03Peter Shamshiri?

  Crypto.

• 7:03Michael Liroff?

  For example.

• 7:04Peter Shamshiri?

  Crypto. Ideas.

• 7:08Michael Liroff?

  The Real Housewives.

• 7:10Peter Shamshiri?

  And so Trump doesn't understand trade deficits. He also perhaps does not really understand what a tariff is. He views tariffs as a way to like even these out because he believes that trade deficits mean you're losing money or something.

• 7:24Michael Liroff?

  Right.

• 7:25Speaker 04

  Yeah.

• 7:25Peter Shamshiri?

  And this is sort of lurking behind the whole tariff policy discussion, just like Trump not actually understanding what a trade deficit is and perhaps not understanding what a tariff is. That gets completely ignored in this opinion, which I I think we should talk about a little bit later, but it just needs to be out there.

• 7:45Speaker 04

  Right, right. No, I think this is key, but let's talk about the implementation of these specific tariffs that are at issue in this case. So in February 2025, Trump announced tariffs on Canada and Mexico, a separate category of tariffs on China. But the justification for these, at least the statutory justification, the the thing that Trump and the Trump administration are saying allows him to do this under the law is a law called the IEEPA. That's the International Emergency Economic Powers Act. It empowers the president during emergency times to make economic decisions, right? And we can all recall Trump talking about these tariffs, he's talking about efforts to stop illegal drugs like fentanyl

• 8:28Speaker 04

  coming into the United States. He's talking about stemming the flow of undocumented immigrants by imposing tariffs. And he he sort of did like this recall thing back to the 19th century Gilded Age, saying we're gonna we're trying to get back to that by by doing tariffs.

• 8:45Peter Shamshiri?

  Yeah, well, it the, you know, the federal income tax doesn't exist until the early 1900s. And before that, the primary source of revenue was tariffs, right, for the federal government. So he's sort of like, weren't we doing great back then?

• 9:01Peter Shamshiri?

  Which feels like itself controversial, but also besides the point and like weird.

• 9:06Speaker 04

  Yeah.

• 9:07Peter Shamshiri?

  But so he's sort of doing a few things like he's he's very typical of Trump. Like a lot of justifications just sort of floating in the ether. Right?

• 9:15Speaker 04

  Right. It's so typically Trumpian that like you know that somebody told him a story about the gilded age, right?

• 9:23Peter Shamshiri?

  Right.

• 9:23Speaker 04

  And he's like, you know what? William McKinley, like, yeah, let's let's do that, you know?

• 9:28Peter Shamshiri?

  Right.

• 9:28Speaker 04

  And so a series of executive orders were issued first in February 2025, then another executive order in April 2025. That one, he called the day that executive order came out liberation day. And under and under that, these this new tariff plan, basically nearly all incoming goods were set to a 10% tariff from those countries I mentioned earlier. And then with about 60 additional countries setting even at higher tariff rates. And Trump also stated his intent to use reciprocal tariffs that were going to be calculated based on countries' trade surpluses, that that trade deficit thing with the United States.

• 10:10Speaker 04

  And so this is a mess that Trump started and lots of businesses sue the Trump administration. And this is how we get to the Supreme Court.

• 10:22Peter Shamshiri?

  Yeah, you you sort of have these two categories of tariff. One are like the national security tariffs, right? Against China and Canada and Mexico in particular. And Trump's like, they're doing fentanyl and they're doing illegal immigration and we're punishing them with tariffs.

• 10:40Speaker 04

  Right.

• 10:42Peter Shamshiri?

  And the other is the reciprocal tariff idea where all these countries that we have these trade deficits with need to receive tariffs that are quote unquote reciprocal, so that everything evens out. But for purposes of this case, it's all functionally the same, at least for this issue. So, you know, he imposes these tariffs under the IEEPA, this 1977 law, which allows the president to, quote, "regulate importation during national emergencies." And Trump has declared, you know, that this is an emergency, that you got the fentanyl emergencies, and then you have the trade emergencies. And the question here is whether, quote unquote, "regulating importation."

• 11:25Peter Shamshiri?

  Includes imposing tariffs. Does this law give him the ability to impose tariffs? John Roberts writes the majority opinion here, joined by Barrett, Gorsuch, Kagan, Sotomayor, and Jackson. And he says, no, no tariffs. First, he says that the word "regulate" is not ordinarily used to include taxing. There are a lot of laws that allow the president to regulate something or other, but they are not generally understood to give him the power to tax. Plus, the law itself never references tariffs or duties of any kind. Plus, the court points out that no president has ever interpreted the law to allow for the imposition of tariffs.

• 12:10Peter Shamshiri?

  So as a matter of historical practice, there's no indication that the law allows the president to do this. And lurking underneath all of this legally is the fact that the Constitution expressly grants Congress, not the president, the power to impose duties and taxes. And so a law should be pretty clear if it's going to delegate that power to the president. Right? That's the first part of the opinion. That's the one that the liberals join. But there is a second part of the Roberts opinion, and that is only joined by Barrett and Gorsuch. The libs jump ship here. And this has to do with the major questions doctrine. The major questions doctrine is something that we've talked about before.

• 12:52Peter Shamshiri?

  The conservatives really manifested it during the Biden administration in order to thwart much of his agenda. They created this rule where if there is a so-called major question of policy, they will assume that Congress did not delegate its authority to the president unless the law very expressly says otherwise. So the court used this, Biden, to strike down his student debt relief program, for example, saying Congress did not delegate him that power expressly enough. The libs have always opposed this rule because it's basically just a made-up way to defang the administrative state. So they do not join this portion.

• 13:33Michael Liroff?

  Right, and just, you know, a reminder, we've talked about this before, but the major questions doctrine is sort of opposed to the administrative state because it applies a higher burden to Congress to delegate some of the authority to these agencies. And it does so after the fact, like Congress, you know, delegated their authority 40, 50, 60 years ago for some of these agencies. And now the court is coming in and saying, well, you needed to be more clear. You needed to be more explicit about what authority you were delegating, which makes it harder for the agencies to function and requires Congress to go back and pass updated statutes and things like that.

• 14:13Peter Shamshiri?

  So that's the Roberts opinion. And then you have three concurrences. So the amount of opinions here, guys, a little bit unwieldy.

• 14:21Speaker 04

  It's unwieldy, it's fucking annoying.

• 14:22Michael Liroff?

  It's excessive.

• 14:25Peter Shamshiri?

  Three concurrences, one each from Kagan, Jackson, and Barrett. Barrett basically dispends her concurrence in a little slap fight with Gorsuch about the major questions doctrine. Don't care about that, we'll skip that, skipping that. You're welcome, by the way. Then you have concurrences from Kagan and KBJ, Jackson. Kagan's is joined by the other two liberals. She basically writes to say, hey, we don't need to do the major questions doctrine. We can just interpret the law like normal people in a normal way, and it shows that Trump loses, right?

• 14:58Speaker 04

  Yeah.

• 14:59Peter Shamshiri?

  Jackson has a solo concurrence. No one joins it, and it's actually kind of interesting. She talks about the legislative history of this law, the IAEA. And by legislative history, I mean the House and Senate reports. Congressional reports are prepared by committees, and they are about a law. They contain things like the reason for the legislation, findings of fact about the legislation, right? And she's saying, hey, we can look at this stuff and realize that this is not intended to include tariffs. Now, for a layperson, you might think, well, this is, sure, there are congressional reports. You look at the congressional reports and you figure out what the law means, right? But this is actually very controversial.

• 15:45Peter Shamshiri?

  Conservatives believe that this is sacrilegious. For many years, they railed against the use of these materials legislative history. They believe that they are unreliable. They're produced by a handful of members of Congress and their staff. You know, what conservatives say is like, well, you never know the actual intent of every senator, every representative who signs off on something, right? So KBJ is doing something kind of interesting here. She's saying, we shouldn't abandon this as a tool for figuring out Congress's intent. She's sort of resurrecting this idea.

• 16:19Michael Liroff?

  And she's right to, by the way.

• 16:21Peter Shamshiri?

  Yeah, I think it's interesting. I mean, Kagan famously said, we're all textualists now. And KBJ comes along like, well, maybe you are dipshit, you know? Not me. This concurrence, very old school Clarence Thomas, in the sense that it's for law students, right? She's saying, hey, we lost this battle 30 years ago. Three decades ago, everyone said that we were wrong, but we were right. We shouldn't have lost that battle.

• 16:51Speaker 04

  Take it and run with it.

• 16:53Peter Shamshiri?

  Yeah, yeah. So, you know, fuck these other libs who won't join this concurrence. Let's do this, you know?

• 17:02Michael Liroff?

  It rocks.

• 17:03Peter Shamshiri?

  No, it's cool.

• 17:04Speaker 04

  I'm doing me, yeah.

• 17:06Peter Shamshiri?

  She's saying, listen to 540.

• 17:07Speaker 04

  Right.

• 17:08Michael Liroff?

  Speaking of old school Thomas opinions, we've got an instant classic Thomas dissent here. He comes in hot. He wants to talk about the nondelegation doctrine, which is this idea that Congress cannot assign certain of its powers to the executive branch, like it does when it creates agencies, administrative agencies. And he says, well, when you're talking about core legislative powers, they can't assign those. But that only has to do with the deprivation of life, liberty and property. Where does, where does he get this? I don't know. He makes it up. He doesn't cite anything. He cites, he cites

• 17:49Peter Shamshiri?

  Oh, I know where-

• 17:49Michael Liroff?

  the Constitution, which says, here are all the legislative powers, and then just lists all the legislative powers. Doesn't like differentiate between any of them. Like, what the fuck are you talking about, dude? But, but, uh, he's like, well, taxing and duties and tariffs, that's not core legislative powers. I don't know about that. And he's like, so Congress can assign it. Not only can they assign it, they can assign it entirely without limit to the executive indefinitely to the degree where it can never be peeled back.

• 18:21Speaker 04

  Right.

• 18:21Peter Shamshiri?

  I don't understand the whole taxing is not a core power thing.

• 18:27Michael Liroff?

  What are you talking about?

• 18:27Peter Shamshiri?

  It's in the const- like, how much more core could it get? It's right there, right?

• 18:31Michael Liroff?

  It's one of Congress's enumerated powers.

• 18:33Peter Shamshiri?

  Section 8, right?

• 18:34Speaker 04

  Yes. And I seem to remember so many Supreme Court cases that like, establish that taxation,

• 18:42Speaker 04

  uh, that the tax power is a core power of Congress, right? Like, there's, there-

• 18:47Michael Liroff?

  Yeah.

• 18:47Speaker 04

  I, I don't know. I was thinking a lot about like, um, I was thinking a lot about, uh, the Obamacare case, right?

• 18:53Michael Liroff?

  Right.

• 18:53Speaker 04

  Like, it, like, they say, John Roberts says, the Supreme Court says, I mean, I know conservatives don't agree with that, right? Don't agree with that decision. But there are so many cases where it's like, no, it's Congress that has the power to tax. Like, this is, this is very clear.

• 19:08Michael Liroff?

  Right. He, he justifies this by like, going into like, British common law and talks about like, the king, the king's power to tax, which-

• 19:17Speaker 04

  Good stuff.

• 19:18Michael Liroff?

  I just, like, Gorsuch, Gorsuch talks about this in his concurrence, so I don't want to like, take too much of the sting out of it. But it's like, yeah, we, we fought a fucking war about that, dude.

• 19:29Peter Shamshiri?

  Right.

• 19:30Michael Liroff?

  We fought a war about that.

• 19:31Speaker 04

  We don't have a king. That's the difference, dude.

• 19:36Peter Shamshiri?

  I don't want to get too nerdy, but these natural law perverts, you know what I mean? These weirdo natural law guys, like, Clarence Thomas comes from this school of thought that, um, our rights emanate from God, right? Like, natural law. And so, like, the roots of them are felt all throughout the common law. And you can go back to fucking 1547 or whatever and, and, and maybe glean some wisdom because, uh, because God, God put, put that there. Now, of course, he abandons this all the time. Uh, it's like, it's very strategically deployed, but it's important to understand that it is so fucking stupid. And like, you end up being like, well, the, you know, in England, you had the king and it's like, right. And then we wrote the constitution.

• 20:23Michael Liroff?

  Right.

• 20:24Peter Shamshiri?

  What's your job?

• 20:26Speaker 04

  We wrote the constitution to be like,

• 20:28Michael Liroff?

  Declaration of Independence. We, yeah.

• 20:30Speaker 04

  Right.

• 20:31Michael Liroff?

  Like, it's insane.

• 20:32Speaker 04

  We wrote the constitution so that the head of state wouldn't be like that anymore.

• 20:36Michael Liroff?

  Right.

• 20:37Peter Shamshiri?

  And it, like, again, it's, it's in, it's, it's right there. Article one, section eight. It's like, here's the stuff that Congress can do, you know? And like, this is pretty clearly one of them. So I just, I don't, I don't get it.

• 20:51Michael Liroff?

  Instant classic Thomas.

• 20:53Peter Shamshiri?

  Yeah.

• 20:54Speaker 04

  That's right. You know, we're, we're jumping around a little bit here between concurrences and dissents. Like we said, there's a lot of different opinions here, but we're taking it in this order intentionally. Um, I'm going to talk about the Kavanaugh dissent here. Let's, let's spend a little time on this. 63 pages of hot fecal matter.

• 21:15Peter Shamshiri?

  63 pages.

• 21:18Speaker 04

  But that's so we can set up the sort of Gorsuch coup de grace concurrence here.

• 21:23Michael Liroff?

  Right.

• 21:23Speaker 04

  Where he is so mad at, uh, at everybody.

• 21:27Michael Liroff?

  Everybody, at everybody.

• 21:29Speaker 04

  Right. Um, okay. So Kavanaugh, this dissent is, is bad, folks. Kavanaugh is joined by Thomas and Alito. We'll talk in a little bit about how they each get a special boy shout out from Trump, uh, when this decision comes down. But I think what characterizes this whole dissent, Kavanaugh's entire opinion here, is how wrong it is. And, um, Gorsuch calls this out, but Kavanaugh is like straight up doing like Trump pandering, like supporting Trump policy on tariffs in this dissent. Kavanaugh's big arguments here are that tariffs are

• 22:05Speaker 04

  A traditional and common tool to regulate importation that the president has the power in lots of different ways by different federal statutes to impose tariffs. And in fact, you know, under those other laws, those other routes, those quote, might justify most, if not all of the tariffs at issue in this case. Kavanaugh says, so Kavanaugh is saying, well, you know, there are other laws that would green light Trump imposing the these tariffs. Well, bitch, that's not the law that is cited as the justification for doing these tariffs.

• 22:41Peter Shamshiri?

  Well, he's trying to, he's trying to, he's talking to his boy.

• 22:45Speaker 04

  That's right.

• 22:45Peter Shamshiri?

  He's like, Donald.

• 22:46Michael Liroff?

  He's winking at Donald, being like, hey.

• 22:48Speaker 04

  Yes. Hey, this might be legal, baby. In a different statutory scheme. You know what I'm saying?

• 22:59Speaker 04

  So he also makes as part of his argument. He says that that the tariffs have helped Trump's foreign policy since they quote, helped facilitate trade deals worth trillions of dollars, including with foreign nations from China to the UK to Japan and more. So like, just, just sort of baldly saying like, I think this was good foreign policy. Trump is doing good business here.

• 23:26Peter Shamshiri?

  Yeah.

• 23:26Speaker 04

  You know?

• 23:27Michael Liroff?

  We love our daddy Trump.

• 23:28Speaker 04

  That's right. That's right. Maybe some more technical arguments, although they're, they are all on their face, wrong. Kavanaugh says we shouldn't be extending the major questions doctrine to foreign affairs. Like says, that's, that's like, that major questions doctrine apparently should just be limited to domestic policy.

• 23:48Peter Shamshiri?

  Well, the, the doctrine that we just made up.

• 23:50Speaker 04

  Exactly.

• 23:51Peter Shamshiri?

  That actually has a limitation you might not have heard of.

• 23:54Speaker 04

  Yeah.

• 23:54Michael Liroff?

  Cause there are no major questions in foreign affairs.

• 23:57Speaker 04

  That's right. He also says that the majority is applying the major questions doctrine in an elevated fashion to the taxing power. So, oh, you guys are, you guys are changing the major questions doctrine. You're elevating it to something else. Really ridiculous stuff, just completely arbitrary, hollow arguments here. You know, the IEEPA, the law here that, that Trump is using to justify imposing these tariffs says that the president can regulate imports in certain circumstances. Kavanaugh says that the word regulate effectively in all circumstances is a synonym for taxation. Just says like, I think regulate in this statute means taxing.

• 24:37Michael Liroff?

  Right.

• 24:38Speaker 04

  He's reading the IEEPA to say, the president can tax imports.

• 24:42Michael Liroff?

  Right.

• 24:43Speaker 04

  Except that's not what it says, baby girl.

• 24:50Michael Liroff?

  Right.

• 24:50Peter Shamshiri?

  This is something that the Roberts majority touches on, but like, this is one of those things where it's like, okay, you might believe that taxation falls under the umbrella of regulate. Right. But when you're talking about laws, there are clear reasons to be specific. Right. Which is why, and, and there are a ton of laws that grant the president the power to quote unquote, regulate this, that, or the other thing.

• 25:19Speaker 04

  Yeah.

• 25:20Peter Shamshiri?

  Right. It's a huge part of any law in which Congress is sort of outlining the scope of an administrative agency, for example.

• 25:29Michael Liroff?

  Right.

• 25:29Peter Shamshiri?

  So the idea that every single time these laws say regulate, it like automatically means tax. It's just a little bit wild.

• 25:37Speaker 04

  It's absurd.

• 25:38Peter Shamshiri?

  It's a hyper aggressive reading and it doesn't really make any practical sense.

• 25:43Michael Liroff?

  Right. Cause, because we have examples, tons, countless examples of Congress also delegating taxation or tariff or duty responsibility to the executive. And we know what language they use when they do that. We know how they structure it. They usually put time and like monetary caps on the delegation. Like you can do it for X number of years and to X percent.

• 26:08Peter Shamshiri?

  Yeah, yeah.

• 26:08Michael Liroff?

  And they use words like duties, levy duties and tariffs and shit like that. They don't say regulate. Like, we know what it looks like when they do this and it doesn't look like this, right?

• 26:20Speaker 04

  Yeah. And I think that gets to the last argument I'll mention from Kavanaugh's dissent, which goes to this separation of powers concern, right? Big overarching concern about the president imposing tariffs in this way is that it's a massive power grab for the executive branch, right? Where there's no accountability mechanism and no sort of oversight by Congress. Congress Kavanaugh is trying to reassure everybody that that like permanent worldwide emergency economic power can still be constrained because he says that Congress can show its disapproval by quote not approving annual appropriations necessary for the executive branch to continue to implement the tariffs.

• 27:04Speaker 04

  This is wrong. This is wrong. Congress cannot fight back when the president is raising revenue outside of congressional approval.

• 27:14Peter Shamshiri?

  Trump's like doing tariffs and handing the cash to his to his son in law.

• 27:18Speaker 04

  No, this is this is this is right. Who collects tariffs? It's CBP. It's Customs and Border Patrol. There's no appropriations here. There's no rules. Congress that there's no oversight. Like this is a slush fund for the president, right? And Congress has has no accountability mechanism here, no oversight. And Kavanaugh is just saying that they do.

• 27:39Peter Shamshiri?

  Yeah, yeah. There's a weird thing going on here and it's what I mentioned earlier. And I wish that one of the libs brought it up. But like the part of the law that this case is really about is whether or not tariffs are included in like the regulating importation under this law. But the other part of this is the fact that Donald Trump has declared these emergencies, right?

• 28:05Speaker 04

  Yeah.

• 28:06Peter Shamshiri?

  Right. And there is something kind of weird going on where the emergency power is very broad under our laws, right? Presidents have a lot of leeway to be like national emergency.

• 28:20Speaker 04

  Yeah.

• 28:20Peter Shamshiri?

  Right?

• 28:20Speaker 04

  Yeah.

• 28:22Peter Shamshiri?

  Now, that gives them certain powers under certain laws, including this one. But the the weird lurking problem here is that Donald Trump is illiterate and doesn't understand any of this shit. So he's like.

• 28:41Peter Shamshiri?

  You know, these countries are shipping fentanyl in and it's like, okay, uh, sort of, right? Like that's, there's like the tiniest sliver of truth to that. Then the other emergency is like this economic emergency. And that's just trade deficits, which he couldn't pass like a junior year business school exam about, you know?

• 29:04Michael Liroff?

  Right.

• 29:04Speaker 04

  I also saw in reading about this that like, the United States has had a trade deficit for decades, like.

• 29:10Michael Liroff?

  Yeah, yeah. Well, I mean, so of course.

• 29:12Speaker 04

  Like, how is it an emergency now? Right?

• 29:14Peter Shamshiri?

  Right. I mean, so, you know, there are certain nations where the trade deficit is inherent. I mean, like, or almost inherent, right? It's just sort of like a natural function of the relative size of the two economies. It's one of those things where the reason he has this power is so that like, we have, you know, uh, the ability to act decisively when emergencies actually happen, right? You don't have to fucking operate through committees when a real emergency occurs.

• 29:41Michael Liroff?

  When the homeland is attacked, right? When there's something like a 9/11 or, or.

• 29:47Peter Shamshiri?

  Uh, an asteroid, right? You need a deep impact sort of president, right? The need for that sort of leeway to be like, it's an emergency. It's kind of apparent in those cases, but I feel like it's worth just throwing a footnote somewhere. It's like, hey, maybe we should think about what happens when the president can't read.

• 30:14Speaker 04

  Maybe that's an emergency of a different kind and we should be devoting some resources to that.

• 30:18Peter Shamshiri?

  Yeah, maybe we need a different system. Maybe we need a system that's more like when you give your sibling the controller that doesn't work. You know what I mean?

• 30:28Peter Shamshiri?

  Let's think creatively here.

• 30:32Michael Liroff?

  Okay.

• 30:33Speaker 04

  Yeah, let's get to this Gorsuch concurrence.

• 30:35Michael Liroff?

  Let's talk. That's a good point to end on the Cav.

• 30:38Speaker 04

  Yeah.

• 30:39Michael Liroff?

  Dissent. So, uh, yeah, let's move to the Gorsuch concurrence, which I think is interesting. Um, like it, to be clear, he doesn't disagree with the majority. He signs on to it and he doesn't have anything different to say about why this case should be decided the way it is. This is a true hater's opinion. This is an opinion to answer every other concurrence and dissent. To be like, no, you're all fucking wrong. I think what's going on here between Cav and Gorsuch is that when Kavanaugh was, um, before he was on the Supreme Court, when he was on the Court of Appeals, he had this opinion where he coined the term, he called it the major powers doctrine, which is what eventually would become the major questions doctrine.

• 31:23Michael Liroff?

  And I think, I think he might feel a little bit of ownership over it. And he's sort of being like, writing this big principle dissent, being like, I'm the major questions guy and you guys are doing it wrong and stupid. And Gorsuch is like, no, you're a fucking dilettante and a political hack and you're sucking Trump's dick. I hate the administrative state. I am the major questions guy. Check this out. Fuck you, fuck you, fuck you, fuck you to everyone.

• 31:52Michael Liroff?

  Amy Coney Barrett, you're a fucking coward. Fuck you, you're a squish. That's, that's, he has like one section.

• 31:58Speaker 04

  Nobody's catching strays here. Everybody's in the crosshairs directly.

• 32:02Michael Liroff?

  The libs, he's like, you're hypocrites. You're fucking hypocrites. Your opinions, you say you're not doing the major questions doctrine? You are. Look, look at this. You're doing the major questions doctrine. Fuck you. Kavanaugh, he's like, your history's shoddy. Your reasoning's shoddy. This is a shoddy opinion. And your foreign affairs exception, are you fucking on drugs? Like, what are you talking about?

• 32:23Speaker 04

  Yeah.

• 32:23Michael Liroff?

  It's great. Before we get to Thomas, I want to talk about a paragraph he wrote that gets to my problem with the major questions doctrine really well. When he's calling Barrett, um, a squish, uh, he's like, look.

• 32:37Michael Liroff?

  Take FDA v. Brown and Williamson Tobacco Corps. There, the question was whether the FDA could regulate tobacco products. Looking only to common sense, the answer would have been yes. Congress authorized the FDA to regulate drugs as a matter of common sense. Nicotine qualifies as a drug based on the statutory definition. It might even as a matter of everyday speech. Still, we held the FDA could not regulate tobacco products. Other cases follow suit. We have ruled that the term air pollutant does not include greenhouse gases, even though those greenhouse gases pollute the air. We have held that the phrase regulations necessary to prevent the spread of communicable diseases does not include eviction moratoriums,

• 33:20Michael Liroff?

  even without questioning that eviction moratoriums were necessary to prevent the spread of COVID-19, a communicable disease. And we have said that closing coal power plants is not the best system of emission reduction, even while acknowledging that closing them would reduce emissions. And it's like, yeah, bro, why is this a brag? Why is this like, you sound like fucking morons. You sound like idiots. Like, what are you talking about? You're like, yeah, they said they could regulate drugs. We said not this drug and not these greenhouse gases.

• 33:51Peter Shamshiri?

  We have created an elaborate series of excuses to ignore basic human language.

• 33:58Michael Liroff?

  It's an incredible paragraph. It's an incredible paragraph. And he's just like, he's being like, so eat shit, Amy Coney Barrett.

• 34:05Peter Shamshiri?

  Yeah.

• 34:08Michael Liroff?

  He's so disdainful, which is great. This is the first time I think I've seen another justice respond directly to one of Thomas's crazy opinions. I might have missed one, but I'm pretty sure this is it.

• 34:19Peter Shamshiri?

  We were recently talking about this. Of course, it's just so up his own ass.

• 34:22Michael Liroff?

  Yes.

• 34:23Peter Shamshiri?

  That if he really feels confident about something, he will go at you very directly.

• 34:29Michael Liroff?

  Yeah.

• 34:30Peter Shamshiri?

  And I think, I think Thomas, he is probably losing his mind on Twitter or whatever. Like, we've talked about Thomas's solo opinions in the past.

• 34:43Peter Shamshiri?

  He'll, he'll do some weird dissents, but they're mostly like internally coherent. And this one is like, you're like, what the fuck are you talking about? Like, and I, and I think Gorsuch sort of likes, he just smells blood in the water. Like he's ready to be a snarky little bitch. Thomas is just like, sort of chummed the waters enough for him that he feels comfortable going out there.

• 35:04Speaker 04

  Yeah.

• 35:05Michael Liroff?

  You can like, hear the sarcasm dripping off his writing, right? He's like, Justice Thomas suggests that Congress may hand over most of its constitutionally vested powers to the president completely and forever.

• 35:18Michael Liroff?

  It's like, oh, yeah.

• 35:19Speaker 04

  XOXO.

• 35:21Michael Liroff?

  You don't even need to expand on that. Like anybody reading that is like, yeah, that sounds dumb as shit, right? He does like a lot of what we were doing. He's like, and of course it was duties on foreign tea that triggered the Boston Tea Party. Are we really to believe that the Patriots that night in Boston Harbor considered the whole of the tariff power some kingly prerogative? He's like, I don't need history. Fucking use common sense. We fought the war for independence over this, like literally over tariffs, over the king levying tariffs, like fuck you. Like, what are you talking about? It's great. I loved it. His opinion is terrible. His position is terrible. And I loved reading every, every paragraph of it.

• 36:02Speaker 04

  Which is so different from like the experience of, of reading Thomas, right?

• 36:06Michael Liroff?

  Yes, yes, yes. It's worth mentioning that the court didn't really specify a remedy here and kicked it down to the district court. And so there's a question of like, well, a lot of tariffs have been collected, like billions upon billions of dollars. What, what happens to that? You know, companies are suing, saying we want our money back. There's a question of, well, some companies passed on at least some of that cost to consumers. So are consumers going to have a way of recouping the, the money they paid into tariffs? Basically. And the Trump administration has suggested that they're going to fight any efforts at refunds in court.

• 36:48Peter Shamshiri?

  Right. And the other side of that is that. This case originally came to the Supreme Court on the shadow docket last year. And they let the tariffs remain in effect.

• 37:00Michael Liroff?

  Right. They created this huge mess.

• 37:02Peter Shamshiri?

  The argument against doing that was that it creates exactly this mess, right? Now, half a trillion in refunds is owed to fucking who knows who. But probably a little bit you and me.

• 37:17Michael Liroff?

  Yeah.

• 37:17Peter Shamshiri?

  If you're listening to this, they probably owe you 20 bucks at least, you know?

• 37:22Michael Liroff?

  Yeah.

• 37:22Peter Shamshiri?

  And the question is, how could you possibly recoup that? Who recoups it? And it's a big fucking cluster. And part of the reason that the Supreme Court said, okay, we'll leave the tariffs in place last year, was because the government had expressed that they were theoretically open to refunds. Like, oh, we can just do a refund. Now, of course, that the Supreme Court has said, these are illegal. The government's like, go fuck yourselves. We're doing like, you know, Kalshi bets with this money. So you can't have it. I'm betting on the airstrikes as we speak.

• 38:00Michael Liroff?

  There's been some developments on the question of remedies after the Supreme Court decision. It's all happening in the Court of International Trade, which is a very specific jurisdictionally limited court set up by Congress that geographically covers the United States because the Constitution says tariffs and duties have to be uniform. And it's one judge who's handling all of these tariff cases under, you know, the IEPA that we're talking about here. So the judge was like, you know what? Fuck this. I don't want a million different cases. The first case he heard for someone asking for a refund, he was like, yeah, you get your refund. So does everybody else. Everybody gets a refund.

• 38:43Michael Liroff?

  CBP, you are ordered to give everyone a refund. A very funny moment at conference, wherever, where the government got the sense he was going to order this and was like, can we get some time to brief the merits on that? And he just replied, there are no merits. Fuck you. You got nothing to brief. You've lost. Fuck off. King. So since then, CBP has submitted a filing basically being like, we can't strictly comply with your order because of the way all this is done. It's all automated, but basically we can reprogram it. If you give us like a month and a half, two months, we can reprogram our entire system and create like a functionality where importers who paid the tariffs can make a claim

• 39:28Michael Liroff?

  and we can process them quickly and get those all paid out. And so it does seem like all the companies are going to get their refunds and none of the consumers are.

• 39:38Peter Shamshiri?

  Have we been paying tariffs on international subscribers?

• 39:44Michael Liroff?

  Do we need, do we need to make a claim with CBP? No, I don't think we're going through ports of entry.

• 39:49Peter Shamshiri?

  No, because even that would just be Apple passing the cost of the fee of the tariff to us or like, or Patreon, right? So they would get the money.

• 39:57Michael Liroff?

  And other small business screwed by Donald Trump. You may have paid some pass through costs on Shrek.

• 40:05Peter Shamshiri?

  It's possible. It's got, God knows how affordable the Shrek would have been without tariffs. That's a world I can only dream of.

• 40:20Peter Shamshiri?

  Let me paint a picture for you folks. It's 3pm, your partner asks you, what are we doing for dinner? And you're like, damn it, damn it. I haven't thought about that at all. This is one of life's great burdens.

• 40:33Michael Liroff?

  It's up there for me with clipping my dog's nails. But Home Chef has made figuring out what to eat super easy for me. The other day I made the chicken with lemon garlic butter. Came with a nice side of asparagus. Super simple, popped it in the roasting tin that they provide, stick it in the oven, you know, for 20 minutes or so. Had a gorgeous, fully prepared meal. Super easy, super good. And you know, people really love it. Home Chef is rated number one by users of other meal kits for quality, convenience, value, taste and recipe ease.

• 41:08Peter Shamshiri?

  And so that's the goal here. Get a nice meal and lift one of life's great burdens from. Your shoulders. For a limited time, Home Chef is offering our listeners 50% off and free shipping on your first box, plus free dessert for life.

• 41:21Michael Liroff?

  Bro, we're feasting.

• 41:22Peter Shamshiri?

  For life is crazy, but they're doing it. Go to homechef.com/54, all spelled out. That's homechef.com/54, all spelled out, for 50% off your first box and free dessert for life. Go to homechef.com/54. Must be an active subscriber to Home Chef to receive the free dessert for life.

• 41:54Speaker 04

  All right. So maybe turning to the responses, the president's response to this case, the media's response to this case, law professor's response to this case. So, starting with Trump. President Trump had lots of psychotic, lots of absolutely psychotic, petty, immature things to say about this decision coming down. A reporter at a press conference on February 20th asked Trump if he regrets nominating Gorsuch and Barrett. He said, quote, "I don't want to say whether or not I regret. I think their decision was terrible. I think it's an embarrassment to their families."

• 42:34Michael Liroff?

  To their families?

• 42:35Speaker 04

  You want to know the truth? The two of them. An embarrassment to their families.

• 42:45Michael Liroff?

  He's such a catty little bitch. It's so great.

• 42:48Peter Shamshiri?

  An embarrassment to their families is fucking hilarious.

• 42:50Speaker 04

  The next day, he posted on Truth Social, "My new hero is United States Supreme Court Justice Brett Kavanaugh, and of course, Justices Clarence Thomas and Samuel Alito. There is no doubt in anyone's mind that they want to make America great again."

• 43:07Michael Liroff?

  I agree with him on that. There is no doubt in anyone's mind that they want to make America great again. They are back up tilt.

• 43:14Peter Shamshiri?

  He had so many Truth Social posts about this case. Like, he was losing it. He was losing it. And like, some of them are long. Like, we can't even read them to you. It's, they're just so long. They're like rambling in the way that his posts often are. Lots of like random capitalization and shit like that. A few days later, he said, "The recent decision of the United States Supreme Court concerning tariffs," all caps tariffs, "could allow for hundreds of billions of dollars to be returned to countries and companies that have been, quote, 'ripping off the United States of America for many years.'" A little bit later, he says, "Is a rehearing or readjudication of this case possible?" Question mark, question mark, question mark.

• 43:54Speaker 04

  He wants an appeal from the Supreme Court. Where's it gonna go?

• 43:58Peter Shamshiri?

  Appeal to God, dude. Yes. It's so good. It's so good. I think we're all sort of used to it now, but his thing where he just like randomly puts quotes around something or capitalizes something.

• 44:12Speaker 04

  Capitalizes, yeah.

• 44:13Peter Shamshiri?

  If like, if one of your friends started talking like this, you'd be like, oh no. Like, it's an episode of some kind. I mean, they're mentally ill and I need to figure out what it is so I can help them. That's like, and now it's just like, you know, we've been looking at it for 10 years and so you're sort of like, yep, that's a Trump post, all right.

• 44:33Speaker 04

  Yeah, yeah. You know, last thing I'll say, Michael, you made the point when, when we were talking about Kavanaugh's dissent, that Kavanaugh was clearly like spotlighting other statutory routes that, other statutory justifications that Trump could take for imposing these tariffs. And Trump himself said that. "Our country is the hottest anywhere in the world right now."

• 44:54Peter Shamshiri?

  Hottest.

• 44:55Speaker 04

  "Our country is the hottest anywhere in the world, but now I'm going a different direction, which is even stronger than the original choice." As Justice Kavanaugh wrote in his dissent, and he quotes Kavanaugh's dissent, saying, "The other statutes that Trump can use." Thank you, Justice Kavanaugh.

• 45:13Peter Shamshiri?

  Thank you, Justice Kavanaugh.

• 45:15Speaker 04

  Anyway, so that's our president losing his mind, folks.

• 45:18Peter Shamshiri?

  Yeah. And Justice Kavanaugh losing his mind. Remember a few years ago when people were like, "Is Justice Kavanaugh part of the moderate block?"

• 45:27Speaker 04

  The 333?

• 45:28Peter Shamshiri?

  The 333 Court?

• 45:29Speaker 04

  The 333.

• 45:30Michael Liroff?

  The 333, Robert's parent, Kavanaugh.

• 45:34Speaker 04

  He's licking Trump taint.

• 45:35Peter Shamshiri?

  Let's, let's talk about the media response, because we got some good ones.

• 45:41Michael Liroff?

  Speaking of mental illness.

• 45:44Peter Shamshiri?

  After a full year of the Supreme Court siding with Trump in statistically anomalous rates, right? Yes. Like, to degrees that would shock experts and no one could explain other than bias. A single Trump loss has emerged, and you know that the dipshits at the New York Times are all over it.

• 46:06Speaker 04

  Right. Democracy saved everybody.

• 46:08Peter Shamshiri?

  Chief legal correspondent at the Times, Adam Liptak, wrote a piece called "The Supreme Court's Declaration of Independence."

• 46:17Speaker 04

  My god. I didn't know that was the headline.

• 46:20Peter Shamshiri?

  Yeah. Yeah. He said, "It's a lot like when we declared independence from the British."

• 46:26Speaker 04

  I see. Yeah.

• 46:28Peter Shamshiri?

  That's the comparison. In case you're unfamiliar, he's comparing this to the revolution. So, so, he says, "Starting with the 2024 decision that gave President Trump substantial immunity from prosecution and continuing through a score of emergency orders provisionally greenlighting an array of his second-term initiatives, Mr. Trump has had an extraordinarily successful run before the Supreme Court. That came to a sudden, jolting halt on Friday when Chief Justice John G. Roberts Jr."

• 47:03Speaker 04

  I don't know why I have to say it like that. I need the middle initial.

• 47:07Peter Shamshiri?

  "Writing for six members of the court, roundly rejected Mr. Trump's signature tariffs program. It was the Supreme Court's first merits ruling, a final judgment on the lawfulness of an executive action on an element of the administration's second-term agenda. It amounted to a declaration of independence." So, again, he admits that President Trump has been on a roll in front of the Supreme Court, and then he loses one case. It heralds a new era. And it's a declaration of independence.

• 47:43Michael Liroff?

  Unbelievable, unbelievable.

• 47:44Peter Shamshiri?

  And also, like, we don't even know how this is gonna shake out. What if they uphold the new tariffs? Right?

• 47:50Michael Liroff?

  Right.

• 47:51Peter Shamshiri?

  No one has any idea.

• 47:53Michael Liroff?

  What if the district court is like, these remedies are like not administratable? And the Supreme Court is like, okay.

• 48:00Speaker 04

  Yeah.

• 48:00Michael Liroff?

  Like, you know, we don't know what's gonna happen. We also don't know what's gonna happen with the future. He says it like this means the court is gonna start handing Trump Ls.

• 48:10Peter Shamshiri?

  Right.

• 48:11Michael Liroff?

  Maybe.

• 48:12Peter Shamshiri?

  Maybe.

• 48:12Michael Liroff?

  But maybe not. Maybe not. Like, who are you to say that? Like, based on one fucking case? Like...

• 48:20Peter Shamshiri?

  It's just bizarre. I mean, so he also said, "In his first administration, Mr. Trump did poorly in the Supreme Court in argued cases. He prevailed only 42% of the time, the lowest rate since at least Franklin D. Roosevelt's administration. In other words, a fundamentally conservative court with a six-justice majority of Republican appointees that included three named by Mr. Trump himself, had not been particularly receptive to his arguments."

• 48:46Peter Shamshiri?

  I posted about this on Blue Sky, just to point out that there was not a six-justice conservative majority during his first term.

• 48:53Michael Liroff?

  I know.

• 48:54Peter Shamshiri?

  And I, you know, so I posted like, hey, I think that like the chief legal correspondent for the New York Times should know that.

• 49:00Speaker 04

  Yeah.

• 49:01Peter Shamshiri?

  It just feels simple to me.

• 49:02Michael Liroff?

  Right. Should know that it was a 5-4 court, literally until like during the election, like October of the election.

• 49:09Peter Shamshiri?

  Right. And then, so like two hours after I posted that, there was a correction, which I will take credit for. I think that's right. But I also want to point out, correction aside, if you're gonna like write a piece about the court's independence from Trump, then like, how about some data from this term? Like, you're like, yeah, back in 2017, they actually didn't quite agree with him that much. It's like, all right.

• 49:33Michael Liroff?

  Well, what's happening now?

• 49:35Peter Shamshiri?

  Surely, surely the new data would be interesting to look at, no?

• 49:39Speaker 04

  Right.

• 49:40Peter Shamshiri?

  Another Supreme Court watcher over at the New York Times, Lynda Greenhouse. The headline, "Roberts is Losing Patience with Trump." Or there's an alternate headline, "John Roberts Sent Trump a Message."

• 49:51Speaker 04

  Wow.

• 49:52Peter Shamshiri?

  It starts off with, "Chief Justice John Roberts Doesn't Waste Words." His majority opinion in last week's tariff ruling was "characteristically a model of succinctness."

• 50:03Speaker 04

  Where? Where?

• 50:06Peter Shamshiri?

  Now...

• 50:07Michael Liroff?

  False.

• 50:09Speaker 04

  Bitch, where?

• 50:10Peter Shamshiri?

  Similar to how Adam Liptak should know that it was not 6 to 3 during Trump's first term, maybe even worse, because that was probably a brain fart. You know what I mean? Like, he, he, he just brain farted that. He could have answered that question if you had asked him. He would have told you it was 5-4.

• 50:28Michael Liroff?

  When did Ruth Bader Ginsburg die and change the balance of the court?

• 50:30Peter Shamshiri?

  Right. He just brain farted because he's, because he's stupid and old. Now, Lynda Greenhouse saying that Roberts is like typically succinct is outrageous.

• 50:43Speaker 04

  It doesn't make sense. Nobody has ever said that. Nobody has ever described John Roberts as succinct.

• 50:49Peter Shamshiri?

  Also, this is one of those things that's relatively verifiable empirically. There's like Empirical Scotus, which is like a blog that tracks like random Supreme Court data shit. And they've always found that Roberts is one of the more verbose in the sense that his opinions tend to be longer.

• 51:09Speaker 04

  Right.

• 51:10Peter Shamshiri?

  So like, what? You can't just say this. You can't just say this in the New York Times. You dumb fuck. What are you talking about? Anyway, that pissed me off as someone who has to professionally read John Roberts' opinions. You know what I mean? I was just like, don't fucking talk to me about this.

• 51:24Speaker 04

  And you would think she does too.

• 51:25Peter Shamshiri?

  You would think, but now I feel like maybe she doesn't.

• 51:27Speaker 04

  Right.

• 51:27Michael Liroff?

  But maybe not. Maybe not.

• 51:29Peter Shamshiri?

  Maybe not.

• 51:30Michael Liroff?

  Maybe reads his private press releases that he sends to his favorite reporters.

• 51:34Speaker 04

  Now she's asking ChatGPT.

• 51:36Peter Shamshiri?

  Here is some of these substantive portions of this piece. For the past year, the Trump administration has trolled the Supreme Court, sending up one emergency application after another to demand temporary relief from adverse lower court rulings. The administration frequently got what it wanted, a stay of the ruling while an appeal proceeded. Chief Justice Roberts was usually in the majority on these unsigned and generally unexplained orders. Obviously, he thought the stays were called for, but he probably isn't happy with the drip, drip, drip of public perception reflected in polls and social media chatter that the court was handing the president a blank check. So, step back here. The court spends basically all of 2025 siding with the Trump administration on shadow docket cases in numbers that, again, are... Statistical improbabilities, if the court is actually unbiased.

• 52:21Peter Shamshiri?

  But then Roberts sides against Trump in one case, and that becomes proof that he secretly bristles about Trump, that he's upset about the image of the court, and that he's sending Trump a message, right? Like, that's, this is all inferred from this one case. But you can't possibly infer anything from the dozens of cases that preceded it, right?

• 52:41Michael Liroff?

  Can't infer anything from Roberts writing the immunity decision.

• 52:46Peter Shamshiri?

  Right, right, right.

• 52:48Michael Liroff?

  Like, what are we talking about? Like, what the fuck are you talking about? These guys are all, they love Trump. They fucking love Trump. Like, what are you talking about?

• 52:57Peter Shamshiri?

  She goes on, this is how she wraps up the piece. Mr. Trump has helped create an atmosphere in which judges appropriately fear for their personal safety and that of their families. Many people expected the Chief Justice to address this issue directly in his year-end report in December, but he did not. In two decades as the nation's top jurist, he has at times spoken directly in defense of the judiciary, as in his 2024 report. But these occasions have been infrequent, as if the only messages this notably self-possessed and button-down man cares to send are those his opinions deliver. Noted.

• 53:28Speaker 04

  Go home, Linda.

• 53:30Peter Shamshiri?

  So the fact that Roberts did not address Trump's attacks on the judiciary in his year-end report somehow is transformed into more evidence that Roberts is at odds with Trump, right?

• 53:45Michael Liroff?

  It's fucking bizarre.

• 53:47Peter Shamshiri?

  This isn't just like seeing things where they don't exist. It's seeing the opposite of what's happening.

• 53:53Speaker 04

  Yeah, yeah.

• 53:54Michael Liroff?

  Right, right. So there was also another New York Times opinion piece by David French.

• 54:00Peter Shamshiri?

  Thank God they got a third one in.

• 54:01Michael Liroff?

  Yeah, yep.

• 54:04Speaker 04

  Is it better? No.

• 54:05Michael Liroff?

  No, no.

• 54:06Peter Shamshiri?

  There's no way David French has the best of the three.

• 54:09Speaker 04

  Right, right, right.

• 54:10Michael Liroff?

  Headline, is this the most important Supreme Court case of this century? Let me tell you guys, I can answer that for you right now. No, no, it's not the most important case of this term.

• 54:22Peter Shamshiri?

  Yeah, right, right. What's the rule that the journalistic rule that every, every headline that asks a question can be answered with no?

• 54:28Michael Liroff?

  Yeah, exactly. But, but yeah, it doesn't matter how they rule on birthright citizenship one way or another. That'll be more important. It doesn't matter how they rule on the Voting Rights Act. That'll be more important. Like, there are just going to be more important cases this term to say nothing of Bush v. Gore, Citizens United, Shelby County, Windsor, and Bunkerfell. Like, there are just so many more, like, there are so many more cases.

• 54:58Peter Shamshiri?

  Even if he abandoned tariffs entirely, that would just send us back to where we were for every part of American history before last year.

• 55:10Michael Liroff?

  What are you talking about, man?

• 55:12Speaker 04

  He doesn't change anything. He doesn't change anything.

• 55:19Michael Liroff?

  It's insane. It's insane. Oh, it's so stupid. It's so stupid. I, I, I don't want to get into the piece because it's so stupid. And it's rehashing a lot of this, oh, they're independent now and they're declaring independence, which is just like based on a projection of what you hope will happen.

• 55:35Peter Shamshiri?

  Right. Should we read from our Rivals podcast?

• 55:38Michael Liroff?

  Yes.

• 55:40Peter Shamshiri?

  Over at Slate, there's a Supreme Court podcast called Amicus with our friend Mark Joseph Stern and his colleague Dahlia Lithwick.

• 55:51Speaker 04

  So in this episode, Dahlia says, quote, "It's such a funny corrective to our constant complaint that some members of the Supreme Court have no idea what's happening in Congress, no idea about the enormity of the insurrection that happened across the street a few years back, no idea about those rendition flights to El Salvador, no idea about anything. Today was their equal opportunity to have no idea of what's really going on with Donald Trump, and weirdly, it saves the day. If he wanted this to feel like an existential threat to them, they're not having it. They're just going to do egg-headed judicial construction all day long."

• 56:26Peter Shamshiri?

  Yeah. Yeah, that's, that's what the Supreme Court's doing, all right. Just judicial construction all day long. Thank God we've got you on the beat, Dahlia.

• 56:41Michael Liroff?

  So what she's saying here is that like, the court is unfazed by political constraints. They essentially do not see the politics of the day. And so Trump can try to intimidate them on this, and they're not having it.

• 56:56Speaker 04

  Like, they're dumb, but they're independent.

• 56:58Michael Liroff?

  Right.

• 56:58Peter Shamshiri?

  Right. She's just saying that they are oblivious to politics.

• 57:02Speaker 04

  Right.

• 57:02Peter Shamshiri?

  And that's why they ruled for Trump on like, see coat, right?

• 57:07Michael Liroff?

  Right.

• 57:07Peter Shamshiri?

  Functionally.

• 57:08Michael Liroff?

  Let me tell you, if Donald Trump was not the Republican nominee for president at the time, Trump, the United States would have gone a different way. And it's fucking insane. It's fucking insane that she cites that as an example of them not being aware of the political atmosphere and the political implications of their decisions.

• 57:28Peter Shamshiri?

  It's true that they are not good at assessing the political atmosphere, per se.

• 57:32Michael Liroff?

  Because their brains are cooked.

• 57:33Peter Shamshiri?

  Right, because they're dumb. But it seems like she's saying that like, the defining characteristic of the Supreme Court is that they're not paying attention to politics. And I'm trying to think of a worse conclusion to draw from what's been happening.

• 57:56Speaker 04

  From somebody who writes and comments and follows the Supreme Court.

• 58:00Michael Liroff?

  It's insane.

• 58:01Peter Shamshiri?

  Yeah, I mean, it's up there with John Roberts is succinct, you know?

• 58:04Michael Liroff?

  Yeah.

• 58:05Peter Shamshiri?

  But like, materially worse.

• 58:09Michael Liroff?

  Like, on the substance, it's worse.

• 58:12Peter Shamshiri?

  Yeah. Anyway, at the end of the day, we're the only good ones. And there's just nothing more to it than that. All right, folks, next week, we're going to be talking about the war. War powers. What does it mean to declare a war? What does it mean to authorize military force?

• 58:32Speaker 04

  Which war? There are so many.

• 58:35Peter Shamshiri?

  There are so many, but a lot of them are just kind of won legally.

• 58:40Michael Liroff?

  That's correct.

• 58:42Peter Shamshiri?

  Yeah, we're gonna talk a bit about what's going on in Iran and the legal questions there. And maybe, and hopefully shed some light on why nobody ever just declares a war anymore. You know?

• 58:58Michael Liroff?

  Right.

• 59:00Peter Shamshiri?

  Follow us on social media at FiveFourPod, subscribe to our Patreon at patreon.com/54pod, all spelled out, for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. See you next week.

• 59:15Michael Liroff?

  Bye, everybody.

• 59:16Speaker 04

  Bye, y'all.

• 59:18Michael Liroff?

  Five to Four is presented by Prologue Projects. This episode was produced by Alison Rogers. Leon Nafok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

• 59:39Speaker 05

  This season on The Real Housewives of Dubai. Assalamualaikum. Waalaikumsalam. Where is the hole? And where is my hose?