On February 20, the Supreme Court ruled 6-3 against President Trump’s slate of tariffs that were enacted pursuant to the International Emergency Economic Powers Act (IEEPA). The decision cut across partisan lines, with Chief Justice Roberts and Justices Gorsuch and Barrett aligning with Justices Kagan, Sotomayor, and Jackson over their dissenting colleagues, Justices Thomas, Alito, and Kavanaugh. The outcome was immediately met with apoplectic reactions from administration supporters and barely contained glee from its critics. Republicans might have appointed a supermajority of the Court’s justices, but those justices will not simply rubber-stamp the president’s agenda.
This ruling represents something of a legal watershed. It is hard to envision a sharper divergence between the priorities of the current administration—and the broader New Right—and the mainstream conservative legal movement, which has shaped American jurisprudence for decades and produced the overwhelming majority of top-flight conservative jurists. The New Right has made a case for using executive power for the common good, a means of instantiating a wide-ranging policy agenda. Tariffs are a key component of that. But meanwhile, the dominant culture of the conservative legal movement remains deeply skeptical of executive branch authority and celebrates decisions that cripple administrative power.
