By Ella Lee and Zach Schonfeld | Wednesday, February 18 |
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By Zach Schonfeld and Ella Lee Wednesday, February 18 |
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Gorsuch's 'one-way ratchet' on Trump's tariffs |
Supreme Court Justice Neil Gorsuch is having an I-told-you-so moment when it comes to President Trump's tariffs. At November's blockbuster arguments, Gorsuch raised alarm about what he called a "one-way ratchet" of authority from Congress to the president if Trump wins a case that challenges his use of emergency powers to impose duties on a host of countries. "It's going to be veto-proof," Gorsuch warned of Trump's declared emergencies. "What president's ever going to give that power back? A pretty rare president. So how should that inform our view?" Gorsuch's concern is now in the limelight as the justices prepare to return to the bench to issue opinions on three separate days between now and next Wednesday. Last week, Trump saw one of the first major pushback's from Congress on the matter, when six House Republicans joined Democrats in voting 219-211 to repeal Trump's Canada tariffs under the International Emergency Economic Powers Act (IEEPA). It now heads to the Senate, where four Republicans joined Democrats last year on a similar measure. The new vote only needs a simple majority. But even if it gets to Trump's desk, the revolt is largely symbolic. The party crossover falls far short of the two-thirds majority needed in both the House and Senate to override an expected veto. Gorsuch saw it coming — and he wasn't the only Trump-nominated justice to read the tea leaves back at November's arguments. "Let's say that we adopt your interpretation of the statute," Justice Amy Coney Barrett told the government. "If Congress said, 'whoa, we don't like that, that gives a president too much authority under IEEPA,' it's going to have a very hard time pulling the tariff power out of IEEPA, correct?" Congress can amend IEEPA at any time to make clear whether the 1977 law does, or does not, authorize Trump's tariffs. Speaker Mike Johnson (R-La.) has expressed no appetite for doing so, leaving the nine justices to parse the nearly half-century-old phrasing that has left global financial markets in suspense for months. "I think the sentiment is that we allow a little bit more runway for this to be worked out between the executive branch and the judicial branch," Johnson said last week. No one outside the court knows if the tariffs' opinion is being sent to the printers right now, or if there's still time for tweaks. When it drops, watch to see if any of the justices take note of the recent developments on Capitol Hill. The Trump administration hopes to convince the justices that Congress can, indeed, claw back the president. Solicitor General D. John Sauer would like everyone to remember that Congress clubbed together the votes to terminate the massive COVID-19 emergency just a few years ago. "What the statute reflects is there's going to be the ability for a sort of political consensus against a declared emergency. Nevertheless, that's a political discipline," Sauer said during the tariff arguments. Speculation is still running rampant about when the Supreme Court will drop the highly anticipated decision. Some 105 days have now passed since oral arguments, longer than other recent expedited cases. When asked about the wait during her book promo on "CBS Mornings" last week, Justice Ketanji Brown Jackson didn't think much of it. There are "lots of nuanced legal issues" and "it takes a while to write," she said. "The court is going through its process of deliberation, and the American people expect for us to be thorough and clear in our determinations and sometimes that takes time," Jackson said. The fact the junior liberal justice said anything at all was notable, as Supreme Court justices typically steer clear of talking about pending cases. Full stop. We've got our ears perked up. As the justices return to the bench, the court has signaled it will hand down opinions on Friday, Tuesday and next Wednesday. Bettors on prediction markets think it could be coming. After the court scheduled the opinion days, the odds of the tariff decision landing this month jumped from 40 percent to more than 70 percent on Kalshi, a popular prediction market. Sandwiched between two of the opinion day drops is the State of the Union, scheduled for Tuesday evening. Chief Justice John Roberts and several of the other justices typically attend (here's the list of who has shown up each year). It's a rare face-to-face moment between the justices and the president, with every move scrutinized. As Roberts and the others sat in last year for Trump's address, they were also sitting on the president's emergency appeal seeking to freeze foreign aid. The justices released the decision — against Trump — at 8:59 a.m. the next morning. |
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Judges get wiggle room to defend courts; SCOTUS's recusal tool |
Judges get new leeway to defend the courts |
Federal judges have been granted new wiggle room to speak out about the importance of the judiciary as threats and attacks on the courts surge. An advisory opinion from the Judicial Conference's Committee on Codes of Conduct affirmed that the ethics code abided by judges allows them to advocate for the rule of law and defend the independence of the courts, including to seek increased judicial security and funding. The opinion goes further to say that, in some circumstances, judges may stand up for their peers against unjust attacks. "Although this Commentary addresses persecution specifically, the Committee believes the Code and its previous advisory opinions leave room, in at least some circumstances, for the measured defense of judicial colleagues from illegitimate forms of criticism and attacks that risk undermining judicial independence or the rule of law, whether or not they rise to the level of persecution," the opinion reads. It makes no reference to any specific assault on the judiciary. But it follows years of tongue-lashing and impeachment threats from Trump and his allies, especially toward judges who rule against the president. At the same time, public trust in the courts has fallen to near-record lows. It points to Roberts's 2024 year-end report as a guidepost, which addressed four detriments to judicial independence: violence, intimidation, disinformation and threats to defy lawfully entered judgments. Roberts has pushed back on Trump's threats, though he's also at turns spoken out about Democrats' rhetoric. There are, however, limits. Judges should avoid acting in a manner that detracts from their official duties and impartiality of the court, commenting on the merits of active matters or engaging in certain political activities, the opinion says. They also must watch their tone in writing outside the courtroom, avoiding "sensationalism," and where they choose to speak, so as not to create questions about their fairness. "These general cautions in the Code do not lend themselves well to precise definitions," the opinion notes, "and even seemingly clear limits permit a variety of exceptions." Gabe Roth, executive director of Fix the Court, called the opinion a "a strong step forward for ethics and for judicial independence," suggesting it showed the committee pushing back on Trump. "Though individuals are not called out by name, this is a strong rebuke of the Trump administration's 'war' on the judiciary and comes one day after Attorney General Bondi denounced 'liberal activist judges' for taking part in 'coordinated [...] unlawful attack' against President Trump's 'authority,'" he said in a statement Thursday. "Any judge who, in a measured manner, seeks to counter that nonsense would thus be ethically sound." As attacks on the judiciary have escalated, some judges have spoken out anonymously in the press, or in rarer instances, publicly. It's especially prevalent as threats against judges continue to rise. In fiscal 2025, there were 564 threats against judges, according to U.S. Marshals Service data. Since fiscal 2026 began in October, there have already been 176 threats. |
What to know about the Supreme Court's new recusal software |
More ethics news landed on Tuesday, this time from the Supreme Court. Starting in March, the justices will use new software to help identify when they should recuse from a case. It's the justices' latest effort to align themselves with lower federal judges, who've been required to use an automated conflict-screening system for the past two decades. The Supreme Court is not bound by lower judges' code of conduct. It has left the justices playing catch up as public scrutiny into their ethics sharpens, spurred by investigations into the justices' book deals and luxury trips paid for by billionaires. Two years ago, the justices responded to mounting pressure by agreeing to a statement of ethical principles. Critics emphasize that it has no enforcement mechanism. It did, however, direct that the court consider adding a new screening software. To be clear, the justices have long identified conflicts. Last term, the justices recused more than 80 times in total, according to The Gavel's docket tracker. And since this term began in October, the count has already surpassed 30. Justice Samuel Alito is by far the leader, a reflection of his decision to own direct stock holdings in more than two dozen companies. Alito this term has recused more than twice as many times as any of his colleagues. Still, catching all necessary recusals is a tall task. The court received nearly 4,000 petitions to take up cases last term, many of which involve a complicated web of companies. Just last month, Alito recused from a battle between Louisiana parishes and major oil companies at the 11th hour before the arguments. Alito owns stock in ConocoPhillips, which owns a company named in the suit, but that company had insisted it was no longer involved in the case. It turned out not to be true. And in 2024, Gorsuch belatedly stepped aside from another environmental case after pressure from Democrats over his ties to a billionaire that had filed a brief. Roth, Fix The Court's executive director, said the more effective change would've been for Alito to divest all direct stock holdings. Every other justice does so except for Roberts. "So although the new rule is a net positive since it comes in service of the full Court's adoption of conflict-check software, it's not a major improvement, and it should not have taken 827 days post-Code to implement," Roth said in a statement. "That's especially true since lower court judges have been required to use software-based conflict screening for 20 years, and several justices have been rumored to continue to use it after they were elevated," he continued. The Supreme Court has not publicly demoed its new software. If you've seen it, drop us a line. When it launches, litigants must send a list of the stock tickers for companies involved in their case so it can be run through the screening. Click here to read the complete redlined changes to the court's rules. |
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- Kelly's court win: A federal judge blocked the Pentagon's efforts to censure Sen. Mark Kelly (D-Ariz.) and lower his retirement rank in the wake of a video in which the lawmaker and other Democrats called on servicemembers to reject unlawful orders.
- NY redistricting reaches SCOTUS: Rep. Nicole Malliotakis (R-N.Y.) urged the Supreme Court to stop her state judiciary from ordering a redraw of her congressional district ahead of the midterms, casting it as unconstitutional.
- MN evidence fight: The Minnesota Bureau of Criminal Apprehension (BCA) said it was formally notified by the FBI that the bureau will not share any information about its investigation into the death of Alex Pretti.
- Gateway Tunnel fight: A federal appeals court allowed a judge's order requiring the Trump administration to resume funding for the Gateway tunnel project connecting New York and New Jersey to take effect.
- Benghazi attack prosecution: A man facing federal charges in connection with the 2012 attack on the U.S. consulate in Benghazi, Libya, that killed four Americans pleaded not guilty.
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- Swift resolution: Taylor Swift filed legal action to block a bedding company from getting a trademark on a logo that says, "Swift Home." The company soon after withdrew its application. Read the BBC's report on the dust-up.
- 'Straight to the source': As the Supreme Court mulls its tariff decision, Rep. Don Bacon (R-Neb.) visited the National Archives to lay eyes on the constitutional ink that gives Congress the power to collect taxes and duties. "Went straight to the source. The Constitution is clear," Bacon wrote on social media. The archives staff has a strict prohibition on taking photos of the Constitution, so add that to the list of special privileges you get as a member of Congress.
- Mr. Wonderful wins defamation suit: A federal judge awarded "Shark Tank" investor Kevin O'Leary $2.83 million in his defamation lawsuit against Ben Armstrong, a famous crypto influencer known as "BitBoy Crypto." Armstrong called O'Leary a murderer over a 2019 fatal accident involving his boat, which his wife was driving. She was later cleared of wrongdoing. The judge entered default judgment after Armstrong failed to meet court deadlines.
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Petitions to take up cases that the justices are keeping a close eye on. Here's a look at four major legal battles that reach the Supreme Court this week. At their closed-door conference on Friday, the justices will consider taking them up for next term. Not all the cases are likely to be granted, but they each are legal battles that have played prominently for years: |
- Trump's E. Jean Carroll verdict: Trump seeks a review of the jury's verdict that found him liable for sexually assaulting writer E. Jean Carroll in the mid-1990s, which Trump denies, and ordered him to pay $5 million. The president says the jury shouldn't have heard the infamous "Access Hollywood" tape or testimony from other women who've accused Trump of misconduct. He also argues he should've been allowed to tell jurors that a Democratic megadonor was paying Carroll's legal bills. The case is Trump v. Carroll.
- More guns: For weeks, the court has stalled announcing whether it will hear Second Amendment challenges against AR-15 and high-capacity magazine bans as well as the federal felon-in-possession law. The pileup grows this week. In Fooks v. Maryland and Mancuso v. New York, the court is asked to hear challenges to state felon-in-possession laws. And in National Association for Gun Rights v. Lamont and Grant v. Higgins, it is also being petitioned to hear a challenge to Connecticut's AR-15 ban.
- NRA's free speech fight: The National Rifle Association (NRA) is at the high court, but not on the Second Amendment. It's about the First Amendment. In 2024, the justices unanimously ruled the gun rights group can proceed in its free speech fight against a New York regulator. When the case returned to a lower court, it again sided with the regulator. So, the NRA is back. The case is NRA v. Vullo.
- For-profit college settlement: Everglades College wants the Supreme Court to revive its fight against a class-action settlement the Biden administration approved, which cancels $7.5 billion in student debt for those who alleged fraud by for-profit colleges. Lower courts ruled the college had no legal standing, meaning its right to sue over the settlement. The case is Everglades College v. McMahon.
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Don't be surprised if additional hearings are scheduled throughout the week. But here's what we're watching for now: |
- Mark Zuckerberg is expected to testify in a landmark social media addiction trial in Los Angeles.
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- New York's elections board is due to respond in writing to Rep. Nicole Malliotakis's (R-N.Y.) Supreme Court emergency application seeking to revive her congressional district.
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- The Supreme Court is expected to announce opinions.
- A federal magistrate judge in Virginia will hold a hearing to weigh Washington Post reporter Hannah Natanson's bid for the return of her devices that were seized in an FBI search of her home.
- A federal judge in Minnesota is set to hold a status conference in the criminal case of Vance Boelter, the man accused of shooting two state lawmakers and their spouses, killing one couple.
- A judge on the Court of Federal Claims will hear arguments from several former members of Congress who contend they were underpaid while in office. They argue Congress has acted unconstitutionally every time it has repeatedly blocked automatic cost-of-living adjustments for lawmakers' salaries since 1989.
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- The Supreme Court will announce orders.
- The justices will also hear oral arguments in two cases involving Cuba, over whether the Helms-Burton Act enables Havana Docks to seek compensation from major cruise lines that docked at Havana's port and whether lawsuits filed under the statute also clear the normal immunity rules for hauling a foreign government into court.
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- The Supreme Court is expected to announce opinions.
- The justices will also hear oral arguments over whether judges have authority to excuse the 30-day time limit for defendants to remove a state lawsuit to federal court in exceptional circumstances.
- The full U.S. Court of Appeals for the D.C. Circuit is set to hear oral arguments over the Trump administration's efforts to dismantle the Consumer Financial Protection Bureau.
- The full D.C. Circuit is also set to hear oral arguments in the Trump administration's appeal of an order blocking the Environmental Protection Agency from clawing back billions of dollars in climate spending.
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We'll be back next Wednesday with additional reporting and insights. In the meantime, keep up with our coverage here. |
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