The coalition of small-business owners that brought the lawsuit had raised a variety of legal and constitutional objections to Trump’s tariff policies. The panel concluded that any of them would suffice. “Regardless of whether the court views the president’s actions through the nondelegation doctrine, through the major questions doctrine, or simply with separation of powers in mind, any interpretation of [the International Emergency Economic Powers Act of 1977] that delegates unlimited tariff authority is unconstitutional,” it explained.
In an unusually long post on his personal social media website last week, Trump described the court’s ruling in apocalyptic terms. “The ruling by the U.S. Court of International Trade is so wrong, and so political!” he claimed “Hopefully, the Supreme Court will reverse this horrible, Country threatening decision, QUICKLY and DECISIVELY. Backroom ‘hustlers’ must not be allowed to destroy our Nation!”
But the most interesting part of his statement was a lengthy exhortation on the conservative legal movement and Leonard Leo, one of its leading figures. The three-judge panel consisted of an Obama appointee, a Reagan appointee, and a Trump appointee. That last one, Judge Timothy Reif, drew Trump’s ire in particular. “Where do these initial three Judges come from?” he wondered. “How is it possible for them to have potentially done such damage to the United States of America? Is it purely a hatred of ‘TRUMP?’ What other reason could it be?”
This is true in the broadest sense, but it does not really capture the dynamic of what happened in 2016. Antonin Scalia’s unexpected death led to a 4–4 deadlock between liberals and conservatives on the high court. It also created a historic opportunity for Democrats. Filling the vacancy would have given liberals their first five-justice majority on the high court since the 1960s. Senate Republicans, led by then–Majority Leader Mitch McConnell, refused to hold a vote on any of Barack Obama’s nominees to prevent this ideological shift from happening.
At the time, Trump had about as much interest in legal conservative theories as he did in medieval Bulgarian poetry. Conservative legal elites feared that he would choose his own slate of judicial nominees instead of the ones that they had been grooming for a generation. The two camps reconciled after Trump released a short list of Supreme Court nominees that September that he would choose from to replace Scalia if elected. The short list included some of the most prominent conservative jurists at the time; it gave former adversaries like Texas Senator Ted Cruz a rationale to openly endorse him.
Leo, who was once a top figure in the Federalist Society, took a leave of absence from the organization to advise the White House on judicial nominees during Trump’s first term. His outsize role in the process—and his ensuing status as the de facto face of the conservative legal movement—led to magazine-length profiles that cast him as the power behind the Supreme Court’s figurative thrones. It also made Leo a major recipient of donations from right-wing billionaires who hoped to build upon his success.
Trump’s agita over the tariff ruling has him essentially retconning his first term in office, with Leo and the Federalist Society now recast as deep-cover adversaries. “I am so disappointed in The Federalist Society because of the bad advice they gave me on numerous Judicial Nominations,” Trump continued. “This is something that cannot be forgotten!” It’s true that Trump appointees have ruled against him and his policies from time to time, as is to be expected in a rule-of-law society. For a president who always expects fealty and submission, that would be tough to stomach.
It would be easy to dismiss Trump’s fulminations; he often lashes out at his allies before later reconciling with them. But there are other signs that he is retooling his approach to judicial nominations for his second term in ways that might disempower the conservative legal establishment. Last week, for example, Trump announced that he would nominate Emil Bove to a vacant seat on the Third Circuit Court of Appeals.
Though Bove is undoubtedly conservative compared to, say, Justice Sonia Sotomayor, he is not one of the rising stars that the conservative legal establishment had groomed for future judicial vacancies and is not part of that powerful social network. The pick prompted significant pushback from legal conservatives on social media. “Whether the White House wants to acknowledge it or not, the caliber of its early judicial nominations will affect the number of vacancies it gets to fill,” Jonathan Adler, a William & Mary law professor, wrote on Twitter last month. “This is why the Bove nomination was a risky pick (even apart from the merits).”
The conservative legal movement’s problem is that Trump does not really need them anymore. His grip over the Republican Party is ironclad. His various legal troubles have exposed him to a wide range of lawyers to install in the Justice Department, the White House counsel’s office, and the federal bench without deferring to Leo’s Rolodex. Trump values personal loyalty over ideological purity, so he does not really care what his appointees think about the nondelegation doctrine or Humphrey’s Executor or originalism, except insofar as it benefits Trump.
The Supreme Court’s conservative justices could make peace by overturning the panel’s ruling on Trump’s tariffs when they inevitably get the chance. In doing so, they would destroy any remaining credibility for their favored doctrines. Trump is imposing recession-inducing tariffs on America’s largest trading partners by invoking a 1977 law that doesn’t even mention tariffs and has never been previously used to raise them. If the major questions doctrine can’t stop that, then it exists only to derail Democratic presidencies and can thus be treated as the sham that it is.
I do not doubt that some—and perhaps many—legal conservatives would still accept the current state of affairs over one where a Supreme Court justice appointed by Hillary Clinton is casting the decisive vote on gun rights cases and making it impossible to overturn Roe for another 30 years. Leonard Leo himself may even be among them. But some of the ones who tolerated Trump surely must have heartburn over the scorpion-and-frog situation in which they now find themselves. If so, they’ve earned it.
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