On a podcast for The Bulwark, legal scholar Steve Vladeck tells conservative attorney George Conway that he thinks Supreme Court Justice Neil Gorsuch could be the deciding vote in striking down President Donald Trump's tariffs.
Vladeck says that while he's confident that all three Democratic appointees on the Court —Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson — are "solid votes against the Trump administration," and he's also sure that Justices Clarence Thomas and Samuel Alito are "solid votes for the Trump administration, it's the other four" that he's not so sure about.
Conservative Justice Amy Coney Barrett, Vladeck says, "has become very, very hard to predict, even based on the questions she asked at the oral arguments," which he says were "tough questions on both sides."
Conservative Justice Brett Kavanaugh, he says, "also asked challenging questions of both sides," adding that "he's never going to be the fifth vote against the Trump administration. He might be the sixth or seventh."
Gorsuch, however, nominated by Trump in 2017, has demonstrated independence from Trump's specific positions and the executive branch generally and could be the deciding vote that rules against him this time.
Vladeck says that Gorsuch's questions during oral arguments "suggested that he's very skeptical of the government's position," and that he has "historically been sympathetic when it comes to small business versus big government."
Vladeck also says that the Trump administration didn't make their argument that "there would be these massively deleterious consequences if the court would strike them down," and that "is the dog that didn't bark."
"That to me is the biggest bad sign for the administration," Vladeck said.