I confess that I have only dipped my toe into the ocean of words that is the Supreme Court’s opinion in Learning Resources v. Trump, the case which ruled that Trump lacked the authority to impose tariffs under the International Emergency Economic Powers Act (IEEPA). They ruled that Trump needed a specific delegation of power from Congress, and he didn’t have it. Notwithstanding my quick scanning, I’ve gleaned a few perspectives. Yes, these are merely my speculations, but you decide how close I might be to the truth.

The first thing we all need to understand is that this was not a complicated legal issue. Tariffs are taxes, and the power to tax lies in Article I of the Constitution, entitled “The Legislative Branch,” not Article II, “The Executive Branch,” period, full stop. It became a major and political issue because President Dumbass wants to use tariffs for geopolitical leverage and personal retribution. The case had to be brought to the Supreme Court in order to tell President Dumbass he needs to stop what he’s doing before he creates more chaos in foreign trade and to our domestic economy.

I believe the six justices who voted against Trump[1] first and foremost did so because it was an easy case from which the court could show America and the crybaby in the White House that it has a backbone. Consequently, I’m not giving them much credit for jurisprudential excellence.[2] I could assemble nine second-year law students selected at random, and I would expect them to reach the same result, only their decision would be 9-0, or maybe 8-1.[3] So, you might ask, how did three Yale-educated jurists who made it all the way to the Supreme Court vote against it? Easy. Two of them want to retain the largesse of Trump’s billionaire friends, and one wants to be Chief Justice. I told you I was a cynic.

I also believe the three conservatives in the majority voted against Trump, in large part, from a deep and abiding concern that the court’s approval ratings are tanking. Given their lifetime appointment and being virtually untethered from any duty to be ethical, it’s easy for them to become impervious to the routine criticism customarily thrown at the high court. But when an overwhelming and ever-growing number of lawyers, judges and laypersons with high citizenship IQs believe the “the Six,” that is, the conservative supermajority, are either incompetent or corrupt, they just might begin to worry a little about their cratering reputations and the baffling legal precedents strewn in their wake.

As a judge, I know that taking criticism comes with the job.

…when vast numbers of prominent, reputable men and women within your own profession begin to dishonor you, question your judgment, and doubt your motives, then perhaps it’s time for some introspection and course correction.

But when vast numbers of prominent, reputable men and women within your own profession begin to dishonor you, question your judgment, and doubt your motives, then perhaps it’s time for some introspection and course correction. They needed to gain some favor with America, and they chose to start with this no-brainer of a case and take sides with the overwhelming majority of Americans.

One more comment about the case as a whole: what a humungous aggregation of word salad!! One hundred and sixty-nine pages? Throughout my career, I’ve noticed that SCOTUS opinions are getting longer, but not getting better. Look at this monstrosity. It’s longer than the Constitution, the Declaration of Independence, Washington’s Farewell Address, the Gettysburg Address and the Magna Carta all combined – all just to reiterate what we already know: tariffs are taxes and it’s Congress who levies them. The dissenting opinions, which takes up about half of the entire opinion, amount to little more than “pounding on the table.”[4]

Now let’s talk about some of the individual justices. I begin, of course, with the chief. By current SCOTUS standards, Roberts’ majority opinion is relatively brief – only 21 pages; yet it is 50% longer than the far more well-acclaimed Brown v. Board of Education desegregation decision. Journalists describe Roberts’ majority opinion as a master class in civics education. I’ll bet Abraham Lincoln could have written a better civics lesson with less than half of the word count – and it would also be an interesting read. And yet, Roberts could be considered verbally economical when compared to Kavanaugh and Gorsuch.

If Roberts wants to elevate institutional trust and respect for the court, then he and his colleagues must keep in mind that they do not write solely for the corpus juris, our body of law. We the People have to live by their decisions, and it would be beneficial for all concerned citizens if they could understand what the hell they’re talking about without having to rely upon others to translate for them. If they must, let them write for the corpus juris law books in their special language. But they should also publish a concise, enlightening, readable, and understandable restatement of their arcane writings – stripped of the usual pedantry, intellectual arrogance, and schoolyard snarking at colleagues baked into so much of today’s high court work product.[5] Alas, however, instead of writing for the ages, they will continue writing for the pages.

And speaking of our most biased and ethically challenged justices, I gave Thomas’ 18-page dissent, joined by Alito, a very quick scan because I’ve never been able to follow his out-of-left-field legal reasoning. I find his writings so abstruse that I wonder if he even understands what he puts to paper. Whenever I read one of Thomas’ writings, I soon regret that I even chose to start.

Kavanaugh’s 63-page dissent can be summed up in one sentence: Mr. President, please accept this lengthy, convoluted defense of your bold effort to amalgamate all governmental power under yourself as my application for Chief Justice.

Gorsuch’s highly praised paean to goods civics appears on the last page of his 46-page concurring opinion which was otherwise dedicated to attempting to prove that his liberal colleagues are rank hypocrites when it comes to the so-called “major questions doctrine.”[6] My major question with Gorsuch is his impropriety – and downright gall – in going to such extreme lengths to chastise and publicly embarrass his colleagues.[7]

I agree with the three liberals that the major questions doctrine didn’t need to come into the conversation in deciding the case. The case could easily be decided on textualism alone, something the conservatives like to harp upon all the time. All they had to do was read the Constitution and the plain, simple, and clear language contained within it. Why obfuscate with bringing in the major questions doctrine? Well, the cynic in me believes the Supermajority likes this newly-minted doctrine and see it as another tool in their toolbox for bending the Constitution to their will – sort of like what they did with originalism.

And oh, yeah. I forgot. It helps build their word count.

[1] Chief Justice John Roberts, Neil Gorsuch, Amy Coney Barrett (the three Republican-appointed justices), Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson (the Democrat justices)

[2] Before you find conservatives Roberts, Gorsuch and Barrett worthy of induction in the Supreme Court Hall of
fame, think again. Just as a baseball player with a lifetime batting average of .100 doesn’t belong in the Baseball Hall of Fame, neither do these three belong up there with our greatest justices. Yeah, it took a little courage to defy Trump, but suffering his insults and some hollow threats from MAGA numb nuts doesn’t merit a medal for bravery.

[3] That lone dissenter either slept through Con Law class or reads too many Clarence Thomas opinions.

[4] Old law school aphorism: When the facts aren’t on your side, pound the law. When the law isn’t on your side, pound the facts. When neither is on your side, pound the table.

[5] SCOTUS decisions have a Syllabus, but it’s merely a Reader’s Digest version.

[6] An interpretive rule designed to limit the regulatory powers delegated by Congress to administrative agencies.

[7] Although Gorsuch has been on the court for nearly nine years, he ranks sixth in seniority and seventh in age. Yet he has this penchant for preaching to his colleagues as though they were novices in need of enlightenment from the master, in the same vein as the insufferable, egotistical Harvard Law School’s Professor Kingsfield in The Paper Chase.