The Bullshit about John Roberts' Tolerance for Bullshit - emptywheel

In the wake of last week’s SCOTUS ruling on tariffs, a number of people have rushed to opine on how momentous a decision it was. Former DOJ spox Sarah Isgur wrote a deservedly mocked piece claiming this was proof SCOTUS “is no partisan instrument of Republican power.” Steve Vladeck responded by demonstrating why, “just about every part of” Isgur’s argument “is specious,” noting how Isgur has to ignore the Shadow Docket to concoct data to support her argument. Ilya Somin — one of the lawyers behind the successful challenge — argued that it’s too soon to measure the legal import (a sentiment with which I agree), but noted it does show, “the potential effectiveness of combining litigation and political action as a strategy for resisting abuses of government power,” because the unpopularity of the tariffs made it easier to rule against them.

I’m more interested in Linda Greenhouse’s take, published the morning before Trump attacked the tariff decision and the Justices at the State of the Union, though I think her take is premature at best, wildly optimistic at worst. Greenhouse reads exasperation in a paragraph of John Roberts’ opinion that maps out how arbitrary Trump’s tariffs have been.

There was, however, one exception to the opinion’s conciseness: a meaty paragraph describing the roller-coaster course of Mr. Trump’s tariff regime. Here, with citations to seven separate executive orders omitted for the sake of readability, is the chief justice’s account:

Since imposing each set of tariffs, the president has issued several increases, reductions and other modifications. One month after imposing the 10 percent drug trafficking tariffs on Chinese goods, he increased the rate to 20 percent. One month later, he removed a statutory exemption for Chinese goods under $800. Less than a week after imposing the reciprocal tariffs, the president increased the rate on Chinese goods from 34 percent to 84 percent. The very next day, he increased the rate further still, to 125 percent. This brought the total effective tariff rate on most Chinese goods to 145 percent. The president has also shifted sets of goods into and out of the reciprocal tariff framework ([e.g.,] exempting from reciprocal tariffs beef, fruits, coffee, tea, spices and some fertilizers). And he has issued a variety of other adjustments ([e.g.,] extending “the suspension of heightened reciprocal tariffs” on Chinese imports).

For all the attention the decision in this case, Learning Resources v. Trump, has received, this paragraph has gone largely unremarked. I understand why; it’s unnecessary to the opinion’s argument. If, as a matter of law, the tariffs are invalid, it doesn’t matter whether they were imposed sensibly or capriciously. The paragraph is, in a word, gratuitous, something that can rarely be said about a passage in a Roberts opinion. So what is it doing there?

The answer, I think, is that the chief justice is sending a message not necessarily or not only to Mr. Trump but also to the waiting world. Something along the lines of, “People, this is what we’re dealing with.” The point being not that “some fertilizers” are now exempt from reciprocal tariffs but that a reckless president is sowing chaos in America and around the globe.

Greenhouse didn’t stop there in her search for signs of exasperation from the Chief Justice.

After noting how often Roberts sided with Trump in those Shadow Docket rulings that Vladeck raised, Greenhouse suggests that the Christmas Eve decision ruling that Trump could not deploy the National Guard before first exhausting efforts to use the regular military marked a turning point for Roberts in his patience with Trump.

Something different happened in late December when the justices

[denied]the administration’s request for a stay of a district-court decision barring its use of the National Guard in Illinois. The order was unsigned, with Justices Samuel Alito, Gorsuch and Clarence Thomas dissenting. The three-page order essentially made new law by narrowly defining the circumstances under which a president could federalize a state’s National Guard.This was a very big deal. The president promptly acceded to the order, removing the federalized Guard from Los Angeles and Portland, Ore., as well as Chicago. Yet the court’s action, coming on the day before Christmas Eve, received far less attention than the tariff case. In discussions about the court today, few people even seem to remember it. It is as if the view of the court as the administration’s lackey was so entrenched that evidence to the contrary was too discordant to be fully absorbed.

See, I think that ruling is the opposite of what Greenhouse claims is happening. Before Marty Lederman submitted an amicus brief noting that everyone was reading the law wrong, SCOTUS was facing a very difficult decision: what to do about the fact that Trump’s claimed need to invade Chicago was based on a pack of lies designed to cover up for overt animus towards Chicago and JB Pritzker, what to do about the fact that the conditions Trump claimed existed in Oregon that justified that invasion (as Trump-appointed judge Karin Immergut ruled) required “ignoring the facts on the ground.” While the SCOTUS ruling was primarily focused on Chicago, the latter is of particular import given that Trump’s invasion of Portland relied on propaganda aired on Fox News, a cognitive weakness all six GOP justices are prone to sharing.

So instead of ruling that in Los Angeles and Oregon and Chicago and Minnesota — to increasing degrees with each iteration — Trump was just making shit up to excuse the armed invasion of blue cities (which is effectively what the District findings were in Oregon and Chicago), SCOTUS instead took the easy way out, agreeing with Lederman that everyone had been reading the law wrong.

We have no way of knowing what the result would have been if Lederman hadn’t offered that easy out, but I’m pretty doubtful there would have been six votes against Trump.

Moreover, I think Greenhouse is wrong that Roberts just inserted this gratuitous paragraph about what a nutball Trump is. The paragraph Greenhouse cites is invoked later, five paragraphs into Roberts’ reliance on Major Questions Doctrine, in a section the Democratic Justices did not join.

What common sense suggests, congressional practice confirms. When Congress has delegated its tariff powers, it has done so in explicit terms, and subject to strict limits. Congress has consistently used words like “duty” in statutes delegating authority to impose tariffs. (A customs “duty” is simply “the federal tax levied on goods shipped into the United States.” Black’s Law Dictionary 638 (12th ed. 2024).) See, e.g., 19 U. S. C. §1338(d) (“rates of duty”); §2132(a) (“temporary import surcharge . . . in the form of duties”); §2253(a)(3)(A) (“duty on the imported article”); §2411(c)(1)(B) (“duties or other import restrictions”). It has capped the amount and duration of tariffs. See, e.g., §1338(d) (50% cap); §2132(a) (15% cap, 150-day time limit); §2253(e) (50% cap, phasedown requirement after one year). And it has conditioned exercise of the tariff power on demanding procedural prerequisites. See, e.g., §2252 (investigation by the United States International Trade Commission, public hearings, report of findings and recommendation); §§2411–2414 (investigation by the United States Trade Representative, consultation with relevant country and interested parties, publication of findings).2

Against this backdrop of clear and limited delegations, the Government reads IEEPA to give the President power to unilaterally impose unbounded tariffs. On this reading, moreover, the President is unconstrained by the significant procedural limitations in other tariff statutes and free to issue

a dizzying array of modifications at will. See supra, at 3. All it takes to unlock that extraordinary power is a Presidential declaration of emergency, which the Government asserts is unreviewable. Brief for Federal Parties 42. And the only way of restraining the exercise of that power is a veto-proof majority in Congress. See 50 U. S. C. §1622(a)(1) (requiring a “joint resolution” “enacted into law” to terminate a national emergency). That view, if credited, would “represent[] a ‘transformative expansion’” of the President’s authority over tariff policy, West Virginia, 597 U. S., at 724 (quoting Utility Air, 573 U. S., at 324), and indeed—as demonstrated by the exercise of that authority in this case—over the broader economy as well. See Congressional Budget Office, CBO’s Current View of the Economy From 2025 to 2028, p. 5 (Sept. 2025); Brief for Federal Parties 2–3. It would replace the longstanding executive-legislative collaboration over trade policy with unchecked Presidential policymaking. See CRS, Trade Promotion Authority (TPA) and the Role of Congress in Trade Policy (2015). Congress seldom effects such sea changes through “vague language.” West Virginia, 597 U. S., at 724.2The same is true of Section 232 of the Trade Expansion Act of 1962, 76 Stat. 877, which we have held authorizes sector-specific import “license fee[s].” Federal Energy Administration v. Algonquin SNG, Inc., 426 U. S. 548, 571 (1976). Section 232(a) expressly references “duties.” 19 U. S. C. §1862(a); see infra, at 19. And Section 232(c) authorizes the President to “adjust the imports” of an “article,” §1862(c), but only after the Secretary of Commerce, in consultation with the Secretary of Defense, conducts an investigation and prepares a report finding that the “article is being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security,” §1862(b).

Rather than a throwaway comment, as Greenhouse portrays it, Roberts does rely on the paragraph, not to argue that Trump’s decisions about US trade deficits are bullshit and therefore invalid, but that Trump can’t rely on bullshit arguments if Congress or the Constitution hasn’t told him he could. The binding ruling says the tariffs are unlawful because Congress didn’t give Trump this power; Roberts says the tariffs are unlawful because Congress didn’t give Trump the power to act capriciously with tariffs.

But under Roberts’ ruling, the transparently false claims Trump made to justify tariffs — that America’s trade deficit in goods is an emergency or that tariffs will fix that trade deficit, both arguments made by plaintiffs along the way — seemingly would have been totally cool if they came in service of some inherent Executive authority or something this court has rashly decided is inherent, like the power to prosecute Trump’s enemies.

So I don’t so much agree with Greenhouse. Roberts may be observing that the President is an unhinged nut, but he’s not ruling based on that. More troubling, to get to the Shadow Docket decisions he is joining in, Roberts is, more often than not, ignoring the factual findings of the District Judges whose job it is to assess not just the law, but the bullshit paraded in front of them, and by ignoring those District Judges, the right wing majority is often ignoring that Trump is making shit up to excuse his policies.

In interpreting Roberts’ description of Trump’s chaos as exasperation, Greenhouse imagines it is his way of representing the whole of the judiciary, including those District Judges working hard to wade through Trump’s bullshit.

It’s worth remembering that Chief Justice Roberts is the head of the entire judicial branch. It is in that capacity that his vexation with Mr. Trump verges on acute concern. The president has denounced judges who have ruled against him, including by

[calling for]a Federal District Court judge’s impeachment. Mr. Trump has helped create an atmosphere in which judges appropriately fear for their personal safety and that of their families. Many people expected the chief justice to address this issue directly in his year-end report in December, but he[did not]. In two decades as the nation’s top jurist, he has at times spoken directly in defense of the judiciary, as in his[2024 report]. But these occasions have been infrequent, as if the only messages this notably self-possessed and buttoned-down man cares to send are those his opinions deliver.Noted.

It’s a charitable interpretation.

But we’ll know John Roberts is exasperated with Trump’s bullshit when he starts affirming the judgment of District Judges who call out the bullshit as such.

As Georgia Fort and Don Lemon’s attorneys catalogued two weeks ago, all over the country, Magistrate and District Judges are ruling that Trump’s DOJ has squandered any presumption of regularity.

• A page reviewing the treatment of Chief Judge Schiltz and the misconduct of Trump, Bondi, Blanche, and Harmeet
• The rulingthat MN had rebutted the FBI’s presumption of regularity in the wake of the Alex Pretti murder and Schiltz’srulingcataloging all the rulings ICE ignored - Four more MN judges’ rulings that the government has ignored rules
• A 2-page footnotereplicating the list of orders identified inthis Paul Friedman opinion - An Oregon opinionrejecting one of Harmeet’s efforts to obtain state voting records William Fitzpatrick’s ordergranting Jim Comey access to his grand jury transcripts- A Zia Faruqui ordercomplaining about Jeanine Pirro’s gaming of Federal and Superior grand juries in DC

That flood of judgements has not stopped. Yesterday, Zahid Quraishi observed that “The government knows” that “its detentions are illegal,” citing the US Attorney’s confession to blowing off 72 orders earlier this month.

Also yesterday, MN Chief Judge Patrick Schiltz reiterated his count of the orders that MN AUSAs (and the Special AUSAs they’ve brought in to backstop the ethical lawyers who’ve left) have defied, cataloging the 97 past orders defied as well as 113 new ones before threatening criminal contempt to enforce court orders.

The Court is not aware of another occasion in the history of the United States in which a federal court has had to threaten contempt—again and again and again—to force the United States government to comply with court orders.

This Court will continue to do whatever is required to protect the rule of law, including, if necessary, moving to the use of criminal contempt.

Roberts assuredly has not yet exhibited the exasperation expressed by all those District Judges shoveling Trump’s bullshit. But perhaps Trump’s reimposition of tariffs, within hours after SCOTUS ruled will tip the balance. Perhaps Trump’s open disdain for the ruling at the SOTU will do so.

Whatever the tariff ruling did, on a topic on which Roberts and Amy Coney Barrett are ideologically inclined to rule against the President, it stopped well short of treating this exasperating President as the bullshit-peddler he has increasingly become.

But Chief Justice Roberts may one day before forced to adopt the exasperation of the lower court judges.