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WASHINGTON — Conservative Justice Neil Gorsuch has been outspoken in taking aim at his Supreme Court colleagues for their lack of consistency in approaching broad assertions of presidential power made by Joe Biden and Donald Trump.
Gorsuch was part of the 6-3 majority that canceled most of Trump’s tariffs Friday, but he wrote a separate 46-page opinion chastising several of his fellow judges for how they approached the case.
His colleagues were effectively applying the same Supreme Court precedent differently under Trump than under Biden, he argued, writing: “This is an interesting turn of events. »
His invectives have focused on a theory known as the “major issues doctrine,” which its supporters say prohibits presidential action not specifically authorized by Congress. The conservative-majority court adopted the doctrine while Biden was in office to undo sweeping plans, such as his attempt to cancel student debt.
But by voting against Trump on Friday on tariffs, the conservative majority was divided. Gorsuch, Justice Amy Coney Barrett and Chief Justice John Roberts were in the majority, holding in part that Trump’s tariffs should be brought before Congress. Three others, Justices Clarence Thomas, Brett Kavanaugh and Samuel Alito, dissented.
“It shows how much internal dissension there is in the Supreme Court right now,” said Robin Effron, a professor at Fordham University Law School.
Roberts’ 21-page majority opinion makes it seem like he was hoping it would attract nine votes, she added, but instead it’s a “huge internal failure.”
Even some of the justices who agreed with the outcome disagreed with the portion of Roberts’ opinion that sought to adopt the major issues doctrine to rein in Trump’s tariffs, raising questions about how it will be applied in future cases.
Even though the Court’s three liberals, who have supported Biden and criticized the major questions doctrine in prior rulings, were in the majority against Trump, they have yet to embrace the theory.
Gorsuch, who has wholeheartedly supported the major questions doctrine, highlighted in his opinion his colleagues’ prevarications on the issue.
“Previous critics of the major questions doctrine do not object to its application in this case,” he said, referring to the liberal justices.
“Still others, who have joined decisions on major issues in the past, disagree with the current application of the doctrine,” he added, referring to dissident conservatives.
Thomas, Kavanaugh, Barrett, and liberal Justice Elena Kagan all felt the need to respond to Gorsuch with their own opinions (which may be one reason the court took months to decide the case).
Kagan, for example, pushed back against the idea that she quietly endorsed big issues theory, despite its earlier criticisms.
“Given the strength of his apparent desire for converts, I almost regret informing him that I am not one,” Kagan joked in a footnote to Gorsuch.
Jonathan Adler, a professor at William & Mary Law School, said Gorsuch’s criticism of Kagan was valid, saying it was “difficult to reconcile” his opinion Friday with his previous votes.
In one Case 2022 in which the court ruled against Biden’s attempts to combat climate change, Kagan wrote that the major issues doctrine seemed to “magically appear” when it suited the conservative majority.
But Ilya Somin, a professor at George Mason University Law School who joined the legal challenge to the tariffs, said dissident conservatives were just as guilty of contradicting themselves. In his view, Kavanaugh argues in part that the major issues doctrine does not apply to tariffs because of foreign affairs considerations.
“It seems they want to exclude this arbitrary exception to major questions regarding tariffs, even though it cannot be justified,” Somin said.
For Adler, the big picture is that whatever legal approach the court takes, it has ruled against Trump in a major case, even though many on the left worry that won’t happen.
“Whether or not we characterize this doctrine as major issues, it is very clear that the Court believes it is important to control the limits of the powers that Congress has granted to the executive branch,” he added. “A lot of people didn’t think this would happen in cases involving the Trump administration.”
