Greetings, James. I've been reading you for a couple of months, and you've quickly become my favorite Substack writer. So much so that I finally decided to create an account (though not paid, that may come at another time). I also happen to live less than an hour from you, which is interesting. I know this is completely off topic to the article in question, but how do you expect SCOTUS to rule in the tariff case? My hunch is 60% against Trump, 40% in favor, a hunch the betting markets seem to share. Given that you're much more knowledgeable about SCOTUS than I am, I'd be interested to read your take on the matter.
Thanks! That's very kind of you! Minnesota represent!
I have been deeply torn about the tariffs case, which has kept me out of the betting markets.
On the one hand, I think the anti-tariff case is strong, given the separation of powers, the Constitution's clear assignment of tariffs to Congress, and the Major Questions Doctrine (and I think I basically buy Barrett's interpretation of the MQD from her Biden v. Nebraska concurrence). I think that, after hearing all the arguments, I would be 80-90% likely to vote against the constitutionality of the tariffs. I tend to start from the assumption that the 4 conservatives who are closest to me in judicial outlook would vote with me, that the 3 liberals would vote against Trump, that Alito would vote for Trump, and that Roberts will stick his finger in the air to do some kind of complicated political calculation in his head that bears little relation to the law or to actual political reality. If these assumptions are all correct, then the tariffs are in huge trouble, potentially facing an 8-1 defeat, with a 95%+ chance of losing by at least 5-4.
But the Supreme Court has surprised me several times in the past couple of years by reaching what I considered *clearly* incorrect conclusions on politically explosive cases, like the presidential immunity case (which I wrote about here: https://lawliberty.org/an-attack-of-judicial-pragmatism/ ) and the Colorado ballot / insurrection case. (Even if you don't think Trump insurrected, the Court's decision was very bad.) When the justices err in this way, it has tended to be in the executive branch's favor. That gives me a lot of pause. There's also the possibility, of course, that, in my unfamiliarity with tariff precedents, I've simply misread the statute and the Court will correctly interpret it differently.
I think the anti-tariff side has to still be considered the favorite, but I couldn't put my confidence anywhere close to 95%. I can count to four on it very easily: the 3 libs + Barrett, whose interpretation of the MQD I think compels her vote on this. But I'm having a harder time lately predicting the votes of Gorsuch and Thomas, and Roberts is just a crapshoot.
60% seems like a little bit of a lowball to me, but not low enough to get me into the market. (I usually only bet when I am confident the market is wrong by at least 10 points.)
So that's my random two cents, for what it's worth. Obviously my view may change dramatically after orals and/or if I actually get around to reading the briefs. This is all very ill-informed on my part.
Thanks again for reading! Minnesota karma train, chug chug!
How would you respond to someone who says that SCOTUS will do anything Trump wants? I've read that a lot in comments on the tariff case, and given that he's won on most of Supreme Court rulings on his administration so far this year and won the Presidential Immunity case last year, they seem to me to have a point. Has the current 6-3 Conservative court ever ruled against Trump on a major case (not counting Kilmar Abrego Garcia or that foreign aid case he lost), and if not, what would make them rule against him on tariffs?
I mostly find it isn't worth arguing with people who take that view. Prior to 2020, my approach was to say nothing other than, "Well, we'll see what happens" and then wait for the case outcomes to prove them wrong. Then Blue June 2020 happened: South Bay, Bostock, the DACA case, and June Medical Services, all decided in three weeks, accompanied by a slough of cert denials for cases important to conservatives.
This utter triumph for the Left against a relatively adverse bench... did absolutely nothing to change the tone or extreme overconfidence of left-wing court reporters (Ian Milhiser, Mark Joseph Stern, Linda Greenhouse, Elie Mystal, etc.) or their many, many followers. They went "wow, what a surprising win from a bad, evil court that nevertheless apparently felt too much of a guilty conscience to do what it wanted and destroy us" several times in a row, then went immediately back to "the Supreme Court is a bunch of partisan hacks" mode with no updates to their model. It's unrelenting. The Right wins and the Supreme Court is a bunch of right-wing partisan hacks. The Left wins and the Supreme Court is *still* a bunch of right-wing partisan hacks, but who were cowed into submission by something or other this one time.
So then I just accepted that most people who take this view would still take this view even if the Supreme Court reinstated Roe v. Wade tomorrow morning, and continued not to argue with them.
Still, just because a bunch of partisan hacks hold the view "the Supreme Court is a bunch of partisan hacks" for bad reasons does not mean the claim is false. People believe true things for bad reasons all the time! And you yourself are no partisan hack, so it's reasonable to ask the question. Here's how I'm currently thinking about it:
The current conservative court has issued very few merits rulings for _or_ against Second-Term Trump, since his term only began in January, by which time the merits calendar for OT 2024-25 was already set. Almost everything has been emergency-docket rulings.
I generally expect those to have more of a partisan bent, just by their nature. Judges acting on an emergency basis are not getting full briefing or argument, and therefore are bound to see cases with eyes more shaped by their own prejudices than they would ordinarily. After all, that's what a prejudice is: the thing you believe *before* you are able to soberly judge with all the facts. This is true of all judges at all levels and al ideologies.
Moreover, you would expect the DoJ to win a disproportionate number of cases off the SCOTUS emergency docket regardless of who is in the White House, because *the DoJ decides which cases to put in that docket*. They only appeal the ones where they see some combination of high policy salience and a good chance of winning (and they are conservative, so they understand what wins better than the progressive DoJ under Biden).
The Trump DoJ has *not* appealed *most* of the injunctions they've received to the SCOTUS shadow docket. They tend to appeal cases where the lower-court judges were clearly acting unhinged as part of the #Resistance, like the Temporary Protected Status case. They've even let some of those juicy cases go by, like the case where the lower-court judge wrote one of the stupidest, most insane opinions I've ever read in order to enjoin *Congress* from defunding Planned Parenthood. (I thought that was so egregious that the admin should disobey it, but they didn't even emergency-appeal it. Just went through regular channels until the appeals court rightly laughed it out of the room a couple months later.)
So you would expect a pretty high win rate for Trump on the emergency docket: they're decided through more partisan lenses than ordinary, and DoJ decides whether to bring the fights at all. Given either factor, I would expect a 65%-75% win rate. Given both? You'll have to decide, but certainly higher than 75%.
In reality, Trump *does* have a strong win rate off the emergency docket: Ballotpedia counts 18/23 wins for 78% (https://ballotpedia.org/Supreme_Court_emergency_orders_related_to_the_Trump_administration%2C_2025), or 20/23 = 86% if you count both partial losses as wins. (AARP v. Trump was a loss for the government, even though granted, because it was the ACLU that sought the order that time, *not* the government.)
That doesn't seem to me like a Court willing to give Trump anything he wants. Like, if the Court really didn't care and was willing to just give Trump anything, you wouldn't need to exclude the Garcia case or the foreign aid case, right? He would have won those, too! But he didn't.
I expect he'll have a harder time on the merits docket this term, as many of these cases return for full briefing and actual resolution. We can still expect him to win a lot! The government wins on average 2/3rd of merits cases since 1937 (lowest win rate in that time? Trump1, who won only 42% of his merits cases), and the Trump Administration has *very deliberately* chosen to push the envelope of executive power in *precisely* the places where SCOTUS was already ready under Biden to start cracking eggs. Humphrey's Executor has been on thin ice since Selia Law in 2020, and has been a bugaboo of legal conservatism since Donald Trump was a reality TV host.
But I don't expect a clean sweep, either. In particular, I think he most likely loses the tariffs case (although I wouldn't be surprised if he won).
As I used to say to people pre-2020, though: "well, we'll see what happens!"
Lastly, since you asked for significant cases Trump has lost against the conservative court the last ten months: he also lost the Alien Enemies Act case (7-2) and denied a stay in Trump's sentencing in the Stormy Daniels case (5-4, though Judge Merchan sentenced him to unconditional discharge a few days later anyway). That's all I've got.
Now that the hearings have been held, it looks as though SCOTUS will strike the tariffs down, probably 6-3. Obviously we won't know for sure until the ruling is made in a month or two, but I'm now thinking it's at least 75-25 or 80-20 against Trump.
80 seems right to me. I've been cautious about overindexing on oral arguments ever since the original Obamacare orals (which led me to expect a very different outcome), but, in this case, orals matched what I would have expected the justices to say and do based on the law in front of them.
Except Thomas, who (I am told) was still recalcitrant. That seems odd to me. Alito is very pro-executive power and his judgment his very influenced by partisan factors, so I wouldn't be surprised to lose him, but it feels like Thomas ought to agree with Gorsuch. The fact that he doesn't appear to makes me worry I've misread Gorsuch.
Interesting list. I read the first Harry Potter book, mostly to see what the fuss from some Christians was all about. it was well written and I was unsurprised the book (and movei) franchise took off.
As a Christian, I did have misgivings about the portrayal about magic. But I remember nothing (not in the first book at any rate) touching on sexuality at all.
And I am proud to say, in my youth I read 4 of the 6 banned Dr. Seuss books, including "Mulberry Street", which as I recall were banned due to dated and peripheral portrayals that reflected various stereotypes that now give book-banners the vapors.
There's nothing about sexuality in the entire series. (Magic, for its part, is consistently presented as nothing more than alternate technology built on alternate physics, with none of the spiritual dangers entailed by real magic.) The banning of JKR is 100% about the fact that, more than a decade after the end of the series, she became a prominent member of the gender-critical movement.
If you've only read the first book, I can heartily recommend the rest of the series. The first book is fine, charming, plenty of fun, but the series builds and transforms profoundly over its course -- as do its characters. Harry in Book 7 is the same boy as Harry in Book 1, but now he's an 18-year-old man, battle-scarred and ready to lay down his life for his friends with full knowledge of what that means.
Of course, not everyone likes that; some people wish it stayed like it was at the very start. But it's a heck of a journey either way. (I recently had the great joy of reading the series to my kids, so it's all still pretty fresh in my mind.)
The movies, of course, aren't even a faint patch on the books, although they are still fun to watch.
Greetings, James. I've been reading you for a couple of months, and you've quickly become my favorite Substack writer. So much so that I finally decided to create an account (though not paid, that may come at another time). I also happen to live less than an hour from you, which is interesting. I know this is completely off topic to the article in question, but how do you expect SCOTUS to rule in the tariff case? My hunch is 60% against Trump, 40% in favor, a hunch the betting markets seem to share. Given that you're much more knowledgeable about SCOTUS than I am, I'd be interested to read your take on the matter.
Thanks! That's very kind of you! Minnesota represent!
I have been deeply torn about the tariffs case, which has kept me out of the betting markets.
On the one hand, I think the anti-tariff case is strong, given the separation of powers, the Constitution's clear assignment of tariffs to Congress, and the Major Questions Doctrine (and I think I basically buy Barrett's interpretation of the MQD from her Biden v. Nebraska concurrence). I think that, after hearing all the arguments, I would be 80-90% likely to vote against the constitutionality of the tariffs. I tend to start from the assumption that the 4 conservatives who are closest to me in judicial outlook would vote with me, that the 3 liberals would vote against Trump, that Alito would vote for Trump, and that Roberts will stick his finger in the air to do some kind of complicated political calculation in his head that bears little relation to the law or to actual political reality. If these assumptions are all correct, then the tariffs are in huge trouble, potentially facing an 8-1 defeat, with a 95%+ chance of losing by at least 5-4.
But the Supreme Court has surprised me several times in the past couple of years by reaching what I considered *clearly* incorrect conclusions on politically explosive cases, like the presidential immunity case (which I wrote about here: https://lawliberty.org/an-attack-of-judicial-pragmatism/ ) and the Colorado ballot / insurrection case. (Even if you don't think Trump insurrected, the Court's decision was very bad.) When the justices err in this way, it has tended to be in the executive branch's favor. That gives me a lot of pause. There's also the possibility, of course, that, in my unfamiliarity with tariff precedents, I've simply misread the statute and the Court will correctly interpret it differently.
I think the anti-tariff side has to still be considered the favorite, but I couldn't put my confidence anywhere close to 95%. I can count to four on it very easily: the 3 libs + Barrett, whose interpretation of the MQD I think compels her vote on this. But I'm having a harder time lately predicting the votes of Gorsuch and Thomas, and Roberts is just a crapshoot.
60% seems like a little bit of a lowball to me, but not low enough to get me into the market. (I usually only bet when I am confident the market is wrong by at least 10 points.)
So that's my random two cents, for what it's worth. Obviously my view may change dramatically after orals and/or if I actually get around to reading the briefs. This is all very ill-informed on my part.
Thanks again for reading! Minnesota karma train, chug chug!
How would you respond to someone who says that SCOTUS will do anything Trump wants? I've read that a lot in comments on the tariff case, and given that he's won on most of Supreme Court rulings on his administration so far this year and won the Presidential Immunity case last year, they seem to me to have a point. Has the current 6-3 Conservative court ever ruled against Trump on a major case (not counting Kilmar Abrego Garcia or that foreign aid case he lost), and if not, what would make them rule against him on tariffs?
I mostly find it isn't worth arguing with people who take that view. Prior to 2020, my approach was to say nothing other than, "Well, we'll see what happens" and then wait for the case outcomes to prove them wrong. Then Blue June 2020 happened: South Bay, Bostock, the DACA case, and June Medical Services, all decided in three weeks, accompanied by a slough of cert denials for cases important to conservatives.
This utter triumph for the Left against a relatively adverse bench... did absolutely nothing to change the tone or extreme overconfidence of left-wing court reporters (Ian Milhiser, Mark Joseph Stern, Linda Greenhouse, Elie Mystal, etc.) or their many, many followers. They went "wow, what a surprising win from a bad, evil court that nevertheless apparently felt too much of a guilty conscience to do what it wanted and destroy us" several times in a row, then went immediately back to "the Supreme Court is a bunch of partisan hacks" mode with no updates to their model. It's unrelenting. The Right wins and the Supreme Court is a bunch of right-wing partisan hacks. The Left wins and the Supreme Court is *still* a bunch of right-wing partisan hacks, but who were cowed into submission by something or other this one time.
So then I just accepted that most people who take this view would still take this view even if the Supreme Court reinstated Roe v. Wade tomorrow morning, and continued not to argue with them.
Still, just because a bunch of partisan hacks hold the view "the Supreme Court is a bunch of partisan hacks" for bad reasons does not mean the claim is false. People believe true things for bad reasons all the time! And you yourself are no partisan hack, so it's reasonable to ask the question. Here's how I'm currently thinking about it:
The current conservative court has issued very few merits rulings for _or_ against Second-Term Trump, since his term only began in January, by which time the merits calendar for OT 2024-25 was already set. Almost everything has been emergency-docket rulings.
I generally expect those to have more of a partisan bent, just by their nature. Judges acting on an emergency basis are not getting full briefing or argument, and therefore are bound to see cases with eyes more shaped by their own prejudices than they would ordinarily. After all, that's what a prejudice is: the thing you believe *before* you are able to soberly judge with all the facts. This is true of all judges at all levels and al ideologies.
Moreover, you would expect the DoJ to win a disproportionate number of cases off the SCOTUS emergency docket regardless of who is in the White House, because *the DoJ decides which cases to put in that docket*. They only appeal the ones where they see some combination of high policy salience and a good chance of winning (and they are conservative, so they understand what wins better than the progressive DoJ under Biden).
The Trump DoJ has *not* appealed *most* of the injunctions they've received to the SCOTUS shadow docket. They tend to appeal cases where the lower-court judges were clearly acting unhinged as part of the #Resistance, like the Temporary Protected Status case. They've even let some of those juicy cases go by, like the case where the lower-court judge wrote one of the stupidest, most insane opinions I've ever read in order to enjoin *Congress* from defunding Planned Parenthood. (I thought that was so egregious that the admin should disobey it, but they didn't even emergency-appeal it. Just went through regular channels until the appeals court rightly laughed it out of the room a couple months later.)
So you would expect a pretty high win rate for Trump on the emergency docket: they're decided through more partisan lenses than ordinary, and DoJ decides whether to bring the fights at all. Given either factor, I would expect a 65%-75% win rate. Given both? You'll have to decide, but certainly higher than 75%.
(Even the Biden DoJ won 71% of the time on the emergency docket, though the dynamic there was quite different since lower courts tended to be on his side and thus way more of the appeals were filed by challengers: https://static1.squarespace.com/static/60188505fb790b33c3d33a61/t/68c5f687f2b25e3a6a497fae/1757804167704/bidentrumpapps.pdf .)
In reality, Trump *does* have a strong win rate off the emergency docket: Ballotpedia counts 18/23 wins for 78% (https://ballotpedia.org/Supreme_Court_emergency_orders_related_to_the_Trump_administration%2C_2025), or 20/23 = 86% if you count both partial losses as wins. (AARP v. Trump was a loss for the government, even though granted, because it was the ACLU that sought the order that time, *not* the government.)
That doesn't seem to me like a Court willing to give Trump anything he wants. Like, if the Court really didn't care and was willing to just give Trump anything, you wouldn't need to exclude the Garcia case or the foreign aid case, right? He would have won those, too! But he didn't.
I expect he'll have a harder time on the merits docket this term, as many of these cases return for full briefing and actual resolution. We can still expect him to win a lot! The government wins on average 2/3rd of merits cases since 1937 (lowest win rate in that time? Trump1, who won only 42% of his merits cases), and the Trump Administration has *very deliberately* chosen to push the envelope of executive power in *precisely* the places where SCOTUS was already ready under Biden to start cracking eggs. Humphrey's Executor has been on thin ice since Selia Law in 2020, and has been a bugaboo of legal conservatism since Donald Trump was a reality TV host.
But I don't expect a clean sweep, either. In particular, I think he most likely loses the tariffs case (although I wouldn't be surprised if he won).
As I used to say to people pre-2020, though: "well, we'll see what happens!"
Lastly, since you asked for significant cases Trump has lost against the conservative court the last ten months: he also lost the Alien Enemies Act case (7-2) and denied a stay in Trump's sentencing in the Stormy Daniels case (5-4, though Judge Merchan sentenced him to unconditional discharge a few days later anyway). That's all I've got.
Now that the hearings have been held, it looks as though SCOTUS will strike the tariffs down, probably 6-3. Obviously we won't know for sure until the ruling is made in a month or two, but I'm now thinking it's at least 75-25 or 80-20 against Trump.
80 seems right to me. I've been cautious about overindexing on oral arguments ever since the original Obamacare orals (which led me to expect a very different outcome), but, in this case, orals matched what I would have expected the justices to say and do based on the law in front of them.
Except Thomas, who (I am told) was still recalcitrant. That seems odd to me. Alito is very pro-executive power and his judgment his very influenced by partisan factors, so I wouldn't be surprised to lose him, but it feels like Thomas ought to agree with Gorsuch. The fact that he doesn't appear to makes me worry I've misread Gorsuch.
Interesting list. I read the first Harry Potter book, mostly to see what the fuss from some Christians was all about. it was well written and I was unsurprised the book (and movei) franchise took off.
As a Christian, I did have misgivings about the portrayal about magic. But I remember nothing (not in the first book at any rate) touching on sexuality at all.
And I am proud to say, in my youth I read 4 of the 6 banned Dr. Seuss books, including "Mulberry Street", which as I recall were banned due to dated and peripheral portrayals that reflected various stereotypes that now give book-banners the vapors.
There's nothing about sexuality in the entire series. (Magic, for its part, is consistently presented as nothing more than alternate technology built on alternate physics, with none of the spiritual dangers entailed by real magic.) The banning of JKR is 100% about the fact that, more than a decade after the end of the series, she became a prominent member of the gender-critical movement.
If you've only read the first book, I can heartily recommend the rest of the series. The first book is fine, charming, plenty of fun, but the series builds and transforms profoundly over its course -- as do its characters. Harry in Book 7 is the same boy as Harry in Book 1, but now he's an 18-year-old man, battle-scarred and ready to lay down his life for his friends with full knowledge of what that means.
Of course, not everyone likes that; some people wish it stayed like it was at the very start. But it's a heck of a journey either way. (I recently had the great joy of reading the series to my kids, so it's all still pretty fresh in my mind.)
The movies, of course, aren't even a faint patch on the books, although they are still fun to watch.