From the series Chronicles of the new American nationalism
The Supreme Court has ruled that the emergency
tariffs imposed by Donald Trump are illegal, striking down one of his key policies and affirming Congress's powers over foreign trade taxation. The group of companies and dozen States that had challenged the presidential decision have won their legal battle against the federal government.
The ruling represents a severe political setback for the president, formally recognises the imbalance represented by his trade policy, and opens up a political battle to redirect it. As we write, just days after the ruling, Trump has already announced that he will resort to other legislative measures. The question remains open as to the extent to which the Supreme Court and Congress will balance the tariff weapon.
Major questions doctrine
The ruling, written by Chief Justice John Roberts and approved by a majority of six justices out of nine, overturns the tariffs imposed on dozens of countries under the International Emergency Economic Powers Act (IEEPA). The verdict is based on the major questions doctrine, which we discussed last month. The Court is reluctant to read into ambiguous statutory texts extraordinary delegations of congressional powers
regarding major questions
. Roberts ruled: In the 50 years of the IEEPA's existence, no president had invoked the law to impose tariffs, let alone tariffs of this magnitude
.
Justice Brett Kavanaugh, in a dissenting opinion joined by Clarence Thomas and Samuel Alito, argues instead that the major questions doctrine applies only to domestic issues, showing deference to the executive branch in foreign policy matters. But this opinion was outvoted by Roberts's opinion, which was joined by the three liberal justices and two of the conservatives appointed by Trump, Neil Gorsuch and Amy Coney Barrett.
The Washington Post celebrated the triumph
of checks and balances
between State powers in the United States, while The New York Times celebrated the Court's declaration of independence
from the parties.
Divisions in the Court
Supreme Court justices are nominated by the president, undergo lengthy hearings by the Senate Judiciary Committee and, after approval by a majority of the upper house, serve for life. Of the nine justices, only Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson were nominated by Democratic presidents, while an overwhelming majority were nominated by Republican presidents, including Trump. For this reason, The New York Times considers the ruling on the dismissal of Lisa Cook from the Federal Reserve board and the ruling on tariffs to be a test
of the Court's independence from political parties and its function as a check on the executive branch. In the Trump vs United States [2024] ruling, of which the president was the primary beneficiary, and which ensured immunity for all future presidents for actions related to their office, there was a 6-3 split between conservatives and liberals.
A few years ago, The Economist considered the Supreme Court to be divided, rather than along party lines, into three factions. On the conservative side, Chief Justice John Roberts and two Trump appointees, Brett Kavanaugh and Amy Coney Barrett, were said to favour a more cautious path
than Clarence Thomas, Samuel Alito, and Neil Gorsuch. This division was highlighted in Trump vs Illinois [2025], in which Roberts, Kavanaugh, and Barrett voted alongside the three liberal justices, leading Trump to withdraw the National Guard from Chicago and other cities.
The Wall Street Journal, on the other hand, believes that the main characteristic of the current Court is its conservative legal philosophy, which restrains justices from intervening; this respects the prerogatives of the executive branch, but also those of Congress which has the power of the purse. Therefore, the same newspaper expected the Supreme Court to uphold the lower courts' rulings against emergency
tariffs. These kinds of divisions overlap with others that historically characterise the American judiciary power.
Edward Lazarus was a law clerk to Justice Harry Blackmun from 1988 to 1989 at the Supreme Court; he also served as chief of staff to the Federal Communications Commission from 2008 to 2012. In 1997, he presented an inside account of the work of the Supreme Court in US News, which made him persona non grata in his field, but gave a vivid picture of conceptualisations widely shared in the legal world. For him, history and geography
are the forces that shape the Supreme Court.
In Closed Chambers [1998], Lazarus explained the justices' rulings in terms of political and tactical decisions, but also in terms of the psychology of their areas of origin: the South's jealousy of the prerogatives of the States and, conversely, the widely-shared belief in the North that the federal government should be the guarantor of individual freedom; and finally, the libertarian spirit of the West and the localism of the children of the Frontier
, independent of the North-South divide.
1 - First Circuit (Boston, 1891, Ketanji Brown Jackson)
2 - Second Circuit (New York, 1891, Sonia Sotomayor)
3 - Third Circuit (Philadelphia, 1891, Samuel A. Alito)
4 - Fourth Circuit (Richmond, 1891, John G. Roberts)
5 - Fifth Circuit (New Orleans, 1891, Samuel A. Alito)
6 - Sixth Circuit (Cincinnati, 1891, Brett M. Kavanaugh)
7 - Seventh Circuit (Chicago, 1891, Amy Coney Barrett)
8 - Eighth Circuit (St. Louis, 1891, Brett M. Kavanaugh)
9 - Ninth Circuit (San Francisco, 1891, Elena Kagan)
10 - Tenth Circuit (Denver, 1929, Neil M. Gorsuch)
11 - Eleventh Circuit (Atlanta, 1981, Clarence Thomas)
DC - District of Columbia Circuit (Washington, 1893, John G. Roberts)
FC - Federal Circuit (Washington, 1982, John G. Roberts)
In brackets: the main seat of the Court of Appeal, the year of establishment, and the Supreme Court justice assigned to the circuit (Circuit Justice).
Source: Our analysis from R. R. Wheeler and C. Harrison, Creating the Federal Judicial System [2005].
Political cultures and federal circuits
The Federal Courts [2016], a book commissioned by the Federal Judicial Centre (FJC) and the Supreme Court Historical Society (SCHS), of which Chief Justice Roberts is president, is more than an essential history
of the federal courts. The largest American law firms, and those that link their names to high-profile cases, sometimes influencing jurisprudential approaches, are among the trustees of the SCHS, together with justices of national importance; or they are among the funders of the FJC and the book.
For the authors, the history of the judicial system is marked by three themes: the relationship between national politics and federal judiciary power; the defence of the authority of the States against the federal government; and the autonomy of the judiciary from Congress and the executive branch in a system of checks and balances.
It was not predetermined
that the judiciary power would be organised in a federal manner, according to checks and balances, and that it would eventually be divided into thirteen circuits, eleven of which are regional, generally following State boundaries. Rather, it was the result of choices and unexpected developments in the course of political battles, among which the following stand out: the creation of federal judiciary power and the power of constitutional review of the Supreme Court after the War of Independence; the Evarts Act, which led to the creation of the Courts of Appeal in 1891, following the Civil War and the subsequent Reconstruction Era
; the efforts of former president and Chief Justice of the Supreme Court William Taft to standardise the application of federal law across the circuits; and finally the clash between the Supreme Court, Congress, and President Franklin Delano Roosevelt during the New Deal years.
Uniformity and diversity in the judicial system
Legal philosophies, economic, social, racial, and religious ideas have all had an impact on rulings concerning business and economic policy, moral issues, and individual rights. It is apparent that [the judiciary] operates in the context of national and local politics, economic developments and intellectual currents, and changes with them. The first of these contexts is geographical
, in the sense intended by historian Frederick Jackson Turner in The Significance of Sections in American History [1932]. In that collection, Turner called for a history of the national character
in which the social and cultural differences between the sections
of the United States were linked to the original stocks
and subsequent migratory contributions, and to economic and social development that differed according to the expansion of the Frontier.
The authors of The Federal Courts reconstruct how the heterogeneous development of the States and the diversity of economic interests prevailing in the regions, together with the weight of African Americans, and of other minorities according to external and internal migratory waves, were reflected
in the types of cases and in the varied handling of cases in the districts
. From these processes, marked by miscalculations and political clashes, arose a federalism of outcomes
, which promoted local attachment to the federal system from its infancy, and continues to accommodate the social and cultural differences of different parts of the country
.
Today, greater uniformity
in the judicial system would be an endless and thankless task
, not least because variety is essential to the operation of the courts over so vast a land and varied people
. Furthermore, precisely because of the variety of outcomes in the district courts
and insofar as litigation in federal courts reflects very different aims and outlooks of region and ethnicity
, the Courts of Appeal and the Supreme Court have a chance to weigh alternatives
of judgment and their effects.
This may be the role that the Supreme Court, at least under Roberts, assigns to itself and seeks to maintain as it chooses how to rule on the most controversial and divisive policies of the Trump administration.