The Supreme Court, tariffs, and judicial consistency

Justice, Democracy, and Law is a recurring series by Edward B. Foley that focuses on election law and the relationship of law and democracy.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

Confusion abounds over the Supreme Court’s call for reargument in Louisiana v. Callais, the latest chapter in the dispute over Louisiana’s efforts to draw a new congressional map in the wake of the 2020 census. As explained in more detail elsewhere on SCOTUSblog, the justices heard oral arguments in March on whether the drawing of a second majority-Black district was an unconstitutional racial gerrymander. But on the last day before the justices’ summer recess, the court issued an order setting the case for oral arguments in the 2025-26 term.

The Supreme Court on Wednesday left in place a ruling by a federal appeals court that requires a South Carolina school district to allow a transgender student to use the boys’ bathroom while the teen’s challenge to a state law that requires students to use the bathrooms that correspond to their biological sex “at the time of birth” continues.

In a brief, unsigned order, the court emphasized that in denying South Carolina’s request to pause the ruling by the U.S. Court of Appeals for the 4th Circuit, it was not weighing in on the underlying merits of the challenge filed by the teen, known only as John Doe. Instead, the court wrote, “it is based on the standards applicable for obtaining emergency relief from this Court” – such as whether the state would be permanently harmed if the lower court’s ruling were not put on hold.

AV Ristorante is a recurring series by Brian Fitzpatrick.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

For the last several years, critics have contended that the U.S. Court of Appeals for the 5th Circuit has become a conservative pariah. It’s been accused of “dismantling democracy” and “spearheading a judicial power grab.” “It is even too conservative for the conservative Supreme Court!,” commentators say.

To put it simply, the Trump administration’s recent request for interim relief in a dispute over its termination of nearly $800 million in health research grants split the Supreme Court. Four justices wanted to pause a district court’s ruling against the administration in its entirety, and four justices wanted the full ruling to remain in place. Because Justice Amy Coney Barrett voted partly for each side, the court’s Aug. 21 order was more complicated than most. The Trump administration could terminate the grants, the court said, but it couldn’t keep using the internal guidance documents that led to the grant cuts.

The fact that five opinions accompanied the court’s short, unsigned order, made the decision even more unusual. What wasn’t unusual is that the most impassioned one was a solo opinion from Justice Ketanji Brown Jackson, who, in the three years since she joined the court, has quickly become its most conspicuous dissenter. 

Setting the stage for a major ruling on presidential power, the Supreme Court on Tuesday agreed to decide whether a 1977 federal law giving the president certain emergency powers allowed President Donald Trump to levy tariffs on nearly all goods imported into the United States through a series of executive orders.