The 5 Supreme Court Justices who could make or break key Trump policy

02 November

U.S. Supreme Court Chief Justice John Roberts at theUniversity of Kentucky's Rosenberg College of Law on July 13, 2022 (LawAnalyzer40526/Wikimedia Commons)

This Wednesday, November 5, the U.S. Supreme Court will hear oral arguments in Learning Resources, Inc. v. Trump — which grapples with whether or not President Donald Trump, under the Emergency Powers Act of 1977, has the authority to unilaterally impose tariffs.

Trump's detractors, from liberals to right-wing Never Trumpers, are arguing that he doesn't — that members of Congress need to play a proactive role in determining U.S. policy on tariffs and other economic matters. But Trump's MAGA defenders are claiming that tariffs are solely a matter for the federal government's executive branch to decide.

In an editorial/listicle published on November 2, the Washington Post's editorial board cites five Supreme Court justices who could sway the High Court in Learning Resources: Chief Justice John Roberts, Trump appointees Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett, and Barack Obama appointee Elena Kagan.

The board describes Gorsuch as "fiercely originalist with a libertarian streak," arguing, "It's hard to see how Trump's extravagant reading of his revenue-raising power could be squared with Gorsuch's limited-government views."

Roberts, according to the Post board, will be important to watch because of the "major questions doctrine," which "says that Congress has to be clear when it delegates sweeping powers to the executive branch."

"It's difficult to see how Trump’s tariffs could pass the major-questions test," according to the Post's editorial writers.

Kavanaugh, the Post board says, is "more pragmatic than many of his colleagues, often raising the real-world consequences of a ruling" — while Kagan is "the most strategic of the three liberal justices" and "will try to corral her conservative colleagues on the anti-tariff side."

"Barrett might be the most likely conservative vote for the challengers," the board says. "If she sounds skeptical, watch out."

Read the full Washington Post editorial at this link (subscription required).

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