At the risk of mixing metaphors, much of the usually relentlessly partisan Republican majority’s “shadow docket” strategy to facilitate US President Donald Trump’s anticonstitutional excesses always had a problem, because much of it consisted transparently of “kicking the [constitutional] can down the road,” delaying judgment — but sooner or later, that can was going to meet an insurmountable curb. So, the “Sinister Six” (as they have been dubbed) followed a strategy of suspending or revoking lower court injunctions against Trump’s blatant violations of the Constitution, pending a final ruling by the Supreme Court.The curb this can-kick would inevitably encounter was the need for the Supreme Court to eventually issue a final ruling.

In the case of Trump’s tariffs, they were facially contrary to the plain text of the US Constitution:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States… To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

— Article 1, Section 8, Clause 1

Even so, with inevitable partisanship, Justices Clarence Thomas, Brent Kavanaugh and Samuel Alito dissented. Kavanaugh’s dissent, joined in by Alito and Thomas, manages to flip their arguments on the so-called “Major Questions” doctrine on their head.

Why now?

The Supreme Court has been politicized quite intentionally by the Republican Party, seeking a pro-business court. And, having secured their clear majority, the right-wing justices have spared no effort to secure their wish list, with a secondary objective of fulfilling the hard-right social objectives. Legal commentators in Washington DC have, from time to time, explained (possibly based on dinner party conversation) that the so called “Sinister Six” right wing justices have expressed a YOLO — You Only Live Once — mentality as the driving factor in their approach since 2016, that they have this single opportunity to deliver the right wing fever dreams of the Federalist Society.

This has, for example, underpinned the deployment of the restrictive Major Questions Doctrine — a principle in US administrative law requiring clear congressional authorization for agencies to address significant political or economic issues that was invented under President Barack Obama and applied almost exclusively to frustrate Obama and President Joe Biden. It has also underpinned the deployment of the permissive Unitary Executive Theory, which states that the President of the US has sole authority over the executive branch and is employed pretty exclusively to forgive overreach by Trump. But as a result, US public opinion of the US Supreme Court plunged by mid-2025 and, since then, has almost certainly fallen further.

The Supreme Court as a central issue in the 2028 election

“Fixing the Supreme Court” is, unsurprisingly, a central demand of Democratic voters and constituencies, many of whom are advocating “court packing,” i.e., giving a presumably Democratic president in 2029 the opportunity to expand the Supreme Court and appoint enough liberal justices to reverse what are perceived as the many excesses of the Court of Chief Justice John Roberts, on abortion, voting rights, gerrymandering, campaign contributions, antitrust law and more. 

The situation presents an interesting point from US political history — President Franklin D. Roosevelt’s (FDR) “court-packing” plan, formally known as the Judicial Procedures Reform Bill of 1937, was a legislative initiative proposed on February 5, 1937, to expand the Supreme Court to as many as 15 justices, which, despite his control of the House and Senate, failed to pass. Perhaps the primary reason FDR’s court-packing plan failed was that, despite the unpopularity of the right-wing Supreme Court by 1936, FDR had not even hinted at the possibility of court-packing in the 1936 elections, thus lacking a political mandate.

By contrast, with more than three years to go, the current Supreme Court (packed by former Republican Senate leader Mitch McConnell) has openly gone too far, and it’s a “racing certainty” that a Democratic Presidential candidate, and the vast majority of congressional candidates in 2028, will suggest court packing. Unless the Supreme Court performs a dramatic volte face, the Republican majority on the Court may be doomed.

To have upheld Trump’s facially unconstitutional tariffs seems to have struck Roberts, Justice Neil Gorsuch and Justice Amy Coney Barrett as going just too far, risking creating too great a mandate for court-packing — so, abruptly, they decided that it was time to use the Major Questions Doctrine to thwart Trump. But given Trump’s rants and threats in response, it seems unlikely that the issues around the Court will go away.

[Kaitlyn Diana edited this piece.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

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