Why the Conservative Split on the Tariff Case Is So Intriguing

Friday’s 6-3 Supreme Court opinion decided that Trump’s use of tariffs was an improper exercise of power that was reserved to Congress under the Constitution. The reason for the conservative split is perhaps the most intriguing part of the decision. As always, I am not going into the weeds and much of follows is a dramatic oversimplification for purposes of clarity.

Before getting to the disagreement among the conservative justices, we need to back up. Just because six justices agree on a result, that does not mean that they agree on the reasons for their ruling. Where there is a second, separate reason for a decision, the justices using that alternate rationale will write what is called a concurring opinion. Here, the three liberal justices found a separate reason for agreeing with Chief Justice Robert’s decision. In other words, they agreed with the result but not the reasoning. This means that in this case, there were at least two distinct reasons why what President Trump did was improper.

 In many cases, Supreme Court decisions rest on differing views about how to construe the Constitution and statutes. Typically, opinions on how to apply the Constitution is what separates the conservatives from the liberals. That was not the case here.

In the tariffs case, the conservatives agreed on the standards by which to judge Trump’s actions. That would often result in them voting in a block—but not here.

The standard applied in the tariffs case is one which has often been used by the courts to give the President a significant amount of discretion and leeway. Chief Justice Roberts’ opinion said that even this broad authority has its limits. President Trump exceeded that authority by attempting to take away something given to the Legislative branch by the Constitution. The dissenting justices would put no such limitation on the president.

Dissenting Justice Kavanaugh, in one of the weakest arguments you will likely see, noted that trying to return the ill-gotten tariffs would be extremely complicated. Think about that in another context. Say that a business defrauded millions of customers. Would you let it off the hook because of the difficulty in repaying those who were defrauded?

The bottom line is that although the conservative justices have generally agreed on expanding the powers of the executive branch, in the tariffs case, three of them said enough is enough.

Indoor Church Services, COVID, and the Supreme Court

We often look to the U.S. Supreme Court to provide legal clarity. It does not always work that way. A prime example is a recent ruling concerning the church opening restrictions in California during COVID.

The ruling is not as clear cut as some reports are making it sound. To make sense of the complexities, we need to first discuss something called a concurring opinion.

The cleanest Supreme Court cases are those where you have a decision where all justices taking a particular position agree on the rationale. So, for example, in a 5-4 case, you might find a written decision that is “joined by” four other justices. That majority opinion not only settles the case but also agrees on the reasoning. The decision then becomes binding (precedent) on the cases that follow, both in the lower courts and the Supreme Court itself.

Complications arise when a majority of the justices agree with the outcome of the case but disagree about the reasoning in the decision. These are expressed in concurring opinions. Concurring opinions take three basic forms.

A general concurrence usually involves a justice who think that some part of the reasoning for the decision needs greater explanation. This discussion may be nothing more than a tweak in the reasoning or may question one of the component parts.

A justice who “concurs in the result” agrees with the conclusion but disagrees with the reasoning used to reach the result.

Sometimes a justice will issue an opinion “concurring in part and dissenting in part.” This is the most problematic because some of the outcomes of the majority are accepted but other parts are rejected outright.

The impact of concurring opinions is more than an academic exercise. If you have a 5-4 decision where four justices in the majority agree with the reasoning but the fifth justice only agrees with the result, the final impact of the decision only applies to the present case. The failure of a majority to agree on legal reasoning means that the case can generally not be cited as conclusive authority in later matters.

With that as background, we come back to the California cases where church closing requirements due to COVID were challenged. In South Bay United Pentecostal Church v. Newsom, the church asked for an injunction against the prohibition against indoor services.

The Supreme Court ruled 6-3 to immediately enjoin the ban on indoor worship. Clear enough, right? Not so fast. After deciding that an outright ban should be stopped (so far so good), the Court next considered whether restrictions on indoor services should similarly be blocked. Here’s where the concurring opinions came into play.

Two justices (Thomas and Gorsuch) would have also immediately stopped the ban on singing and percentage caps on attendees.

Three justices (Roberts, Barrett and Kavanaugh) said that it was the CHURCH’s responsibility to show that these limitations should not apply.

Justice Alito said that the singing ban should go but that the STATE needed to provide proof to defend the percentage occupancy rule.

So, among the six justices who overturned the ban, there were three different opinions about the singing and percentage occupancy rules.

Once the decision is fully parsed, then, it is inaccurate to say that this case shows that freedom of religion trumps government regulations about COVID. The number of justices who took this precise position was … two.

Furthermore, the action of the Supreme Court was only on the request for an injunction. The case was sent back to the lower court for further evidence.

As should be apparent from the above, this discussion was not designed to be about the merits of the case or the various positions held. It was merely to show (through no small amount of oversimplification of the issues) that decisions of the Supreme Court can be quite complex animals.