Gorsuch takes aim at Supreme Court’s Trump prejudice — and calls out Congress’ dysfunction

Supreme Court Justice Neil Gorsuch’s 46-page opinion on President Donald Trump’s tariff case reveals the conservative’s trepidation over his colleague’s apparent double standard toward the current president compared with former President Joe Biden — and reminds Congress it, too, can make decisions.
While the Supreme Court largely struck down Trump’s tariffs in Friday’s ruling, conservatives “splintered,” NBC News senior Supreme Court reporter Lawrence Hurley wrote, with Chief Justice John Roberts penning the ruling, and Gorsuch and Amy Coney Barrett joining the majority. Justices Clarence Thomas, Brett Kavanaugh and Samuel Alito dissented.
Hurley on Saturday detailed Gorsuch’s opinion that “took aim at his colleagues on the Supreme Court for a lack of consistency” in their handling of presidential power under the Trump administration. Hurley notes Gorsuch “chided several of his fellow justices” for “effectively applying the same Supreme Court precedent differently under Trump than they did under Biden.”
According to Hurley, under Biden, conservatives on the Supreme Court adhered to the “major questions doctrine,” or the notion that “sweeping presidential action” must be “authorized by Congress.”
In his opinion, Gorsuch argued his liberal colleagues “do not object to [the major questions doctrine’s] application in [the tariff] case" despite rejecting the theory under Biden. As for his conservative colleagues, Gorsuch called out those “who have joined major questions decisions in the past [but] dissent from today’s application of the doctrine.”
As NBC News reports, “Thomas, Kavanaugh, Barrett and liberal Justice Elena Kagan all felt the need to respond to Gorsuch in their own opinions.”
Kagan, in her concurring opinion, had “a side-battle [with Gorsuch] over the major questions doctrine,” taking aim at the conservative justice’s assertion she was somehow embracing his favored legal theory, Slate legal reporter Mark Joseph Stern wrote Friday on BlueSky.
In her note, Kagan wrote that Gorsuch "[insists] that I now must be applying the major questions doctrine, and his own version of it to boot … Given how strong his apparent desire for converts ... I almost regret to inform him that I am not one.”
Fordham University School of Law professor Robin Effron said the splintering “shows you how much internal dissension there is on the Supreme Court right now.” She also called Roberts’ majority opinion a “huge fail,” noting that it read like he’d hoped to land a unanimous decision on the ruling.
While Kagan argued in her concurring opinion that she was not, in fact, embracing the doctrine, George Mason University law school professor Ilya Somin told NBC News that Kavanaugh actually argued the major questions theory does not apply to Trump's tariff case at all.
“It seems like they want to carve out this arbitrary exception to major questions for tariffs even though it can’t be justified,” Somin said.
Still, Gorsuch appears to believe athe Supreme Court strife related to Trump’s tariff case could have been solved by “the bygone era of legislative power,” a separate New York Times analysis explained.
“Yes, legislating can be hard and take time,” Gorsuch wrote. “And yes, it can be tempting to bypass Congress when some pressing problem arises. But the deliberative nature of the legislative process was the whole point of its design. Through that process, the nation can tap the combined wisdom of the people’s elected representatives, not just that of one faction or man.”
Times reporter Catie Edmondson noted Gorsuch’s language was “a description of governing completely at odds with what is currently underway across the street from the Supreme Court at the Capitol, where Republicans controlling the House and the Senate have ceded their power to one man — Mr. Trump — on a variety of issues.”
Edmondson detected in Gorsuch’s opinion “a note of reproach for the current dysfunctional state of affairs in Congress,” pointing out a specific phrase from his writing: “Deliberation tempers impulse, and compromise hammers disagreements into workable solutions,” the conservative justice wrote. “For some today, the weight of those virtues is apparent. For others, it may not seem so obvious.”

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