Profiles in Cowardice, Tariff Edition

The Supreme Court’s silence says volumes

Source: HBS Pricing Lab

Donald Trump loves tariffs. Mainly, I believe, he loves them because they offer so much opportunity for dominance displays, allowing him to threaten other countries with economic ruin — usually via middle-of-the-night Truth Social posts — unless they bend to his whims. Economists may say that most of the damage inflicted by tariffs falls on American consumers and businesses, not foreigners, but Trump’s attachment to tariffs is doubtless strengthened by economists’ disapproval — he wants to show that he’s smarter than the so-called experts.

Furthermore, tariffs give him power without checks and balances. He can impose huge taxes on imports without having to go through annoying stuff like getting legislation through Congress.

Or can he? By any reasonable standard, most of Trump’s tariffs are plainly illegal. Two lower courts have ruled against them. The Trump administration appealed those decisions, and in early November the Supreme Court heard arguments on the case. Many businesses that have found it impossible to make long-term plans with the fate of the Trump tariffs in limbo eagerly awaited the Court’s ruling.

They’re still waiting. And I can’t see any plausible explanation for the delay other than Supreme cowardice.

Background: Most of Trump’s tariffs have been imposed by invoking a 1977 piece of legislation called the International Emergency Economic Powers Act, which the Congressional Research Service describes as giving the president “broad authority to regulate a variety of economic transactions following a declaration of national emergency.”

But we aren’t in an emergency. Trump himself keeps saying that everything is great — the economy is hot, there’s no inflation, we’re respected around the world. It’s not true, but that’s what he says. And he has been using IEEPA to impose or threaten to impose tariffs for many purposes that have nothing to do with economic policy. He imposed a 50 percent tariff on imports from Brazil to punish Brazil for pressing charges against Jair Bolsonaro, the Trump-like former president who tried to overturn an election loss. He threatened tariffs against European nations who stationed troops in Greenland as a precaution against a possible Trumpian attempt to seize the island from Denmark.

In the latter case Scott Bessent, Trump’s Treasury secretary, pressed on the nature of the emergency that would justify tariff threats, declared that “the national emergency is avoiding a national emergency.” Uh-huh.

I’m not a lawyer, but I talk to lawyers, and this isn’t a difficult case on the merits. Trump is clearly wrong on both the letter and the spirit of the law. And when the Supreme Court held its hearing, the tenor of the questions, even from conservative justices, suggested that they recognized that the administration had no case.

So why have we had three months of silence? Well, this isn’t a difficult case on the merits, but it puts the six right-wing members of the Court between a rock and hard place, not intellectually, but personally.

For a right-wing justice, ruling in the Trump administration’s favor in such an open-and-shut case would amount to admitting that you’re a pure partisan hack. And even the right-wing faction on the court is trying to maintain the fiction that it’s still a deliberative body, not a MAGA rubber stamp.

But to rule against the administration would be to hand Trump a humiliating defeat on one of his signature policy issues. It might also be very expensive. Tariffs aren’t the revenue gusher Trump and his minions like to claim: Even after the Trump hikes in tariff rates, customs receipts are small compared with other sources of revenue and have made only a modest dent in the U.S. budget deficit. But losing that revenue and, worse, having to give it back would be a financial embarrassment.

And it’s hard to see how, if the Supreme Court rules against Trump, the government can avoid paying back the money it has collected to companies like Costco, which has sued for a refund. If the Court rules that the tariffs weren’t legal, can the administration say, “No backsies” and refuse to refund money it collected illegally?

Right-wing justices don’t want to humiliate Trump, and they’re surely afraid of what will happen if they do. So they’re damned if they do the right thing, damned if they don’t.

When I’ve made this point in the past, some readers have asked why Supreme Court justices would be afraid of crossing Trump. After all, he can’t fire them, can he?

But to suggest that Supreme Court justices are insulated from pressure merely because they have job security is to misunderstand how power and influence work, especially within the modern right-wing movement.

Prominent figures on the right — and the Republican Six on the Supreme Court surely qualify for that definition — aren’t just members of a movement. They’re also part of a social scene — a scene shaped by the wealth and power of billionaires. They share in the privilege and glitter of that scene even if they aren’t outright corrupt — even if they aren’t all like Clarence Thomas, who, as ProPublica revealed, has taken multiple lavish vacations paid for by billionaire Harlan Crow.

To vote against Donald Trump’s beloved tariffs, delivering him both a policy and a political blow, would be to risk being ostracized and exiled from that milieu. If you don’t think that would matter a lot, you don’t understand human nature.

And more than social estrangement might be at stake. Violent threats against judges and other public officials, especially those denounced by Trump and other MAGA figures, have soared. Are you sure that a judge perceived as having betrayed Trump — and his or her family — would be safe? More to the point, are judges themselves sure?

So the right-wing majority on the Court is surely afraid to rule on tariffs — afraid to rule for Trump, because that would destroy what’s left of their credibility, afraid to rule against, because that would anger both the MAGA elite and the MAGA base.

So they’re procrastinating, even though the longer the tariffs stay in place, the more Trump is emboldened to tweet out bizarre, destructive and illegal policies and the more economic damage is done by uncertainty.

Their paralysis is understandable. But it’s also utterly shameful.

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