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PaperclipPerfector  4d ago (text post)   17443 thread views

Culture War Roundup for the week of February 16, 2026

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So the US Supreme Court struck down most (all?) of Trump's tariffs in a 6-3 ruling, ruling that its use exceeded the International Emergency Economic Powers Act. This appears to have largely been done under the major questions doctrine, the idea that if Congress wants to delegate the power to make decisions of vast economic or political significance, it must do so clearly. The majority ruling is that Trump's attempt to claim and leverage emergency powers overstepped this, plus doubtless other nuances I'm not noting. The Court also opened an entirely different set of worms, as it did not adjudicate if the tariff revenue that had been collected has to be refunded, or even who a refund would go to. I predict great long !lawyer bills~ debates over how, if tariffs are taxes on Americans, which Americans are owed the tax refunds.

(Do I predict the Trump administration will try to use this as a basis to give money to the electorate in a totally-not-buying-votes-before-mid-terms scheme? No, but I think it would be funny if political bedfellows put Democrats on the side of big business importers who will make claims on the refunds even if they passed on costs to American consumers.)

Trump will reportedly make comments soon. While this will be a major policy loss for the Trump administration, and promises to make the next many months 'interesting,' part of my curiosity is what this ruling might hold (or have held) for other court cases in the dockets, there will also be significant geopolitical reflections on this for months and years to come. This ruling wasn't entirely a surprise, and various countries (and the European trade block) had been hedging in part to let the court case play out. We'll see where things go from here, particularly since not all Trump tariff threats were derived from the IEEPA, and so there will probably be some conflation/confusion/ambiguity over various issues.

While I will defer to others for the legalese analysis, I am also interested in what sorts of quid-pro-quos the internal court politics might have had for Roberts to have led the majority here. There are a host of cases on the docket this term, with politically-relevant issues ranging from mail-in ballots to redistricting. While I think the tariffs case was outside any typical 'we accept this case in exchange for accepting that case' deal over which cases get heard, I will be interested if the administration gets any 'surprise' wins.

For longer commentary from Amy Howe of the SCOTUS Blog-

In a major ruling on presidential power, the Supreme Court on Friday struck down the sweeping tariffs that President Donald Trump imposed in a series of executive orders. By a vote of 6-3, the justices ruled that the tariffs exceed the powers given to the president by Congress under a 1977 law providing him the authority to regulate commerce during national emergencies created by foreign threats.

The court did not weigh in, however, on whether or how the federal government should provide refunds to the importers who have paid the tariffs, estimated in 2025 at more than $200 billion.

The law at the center of the case is the International Emergency Economic Powers Act, known as IEEPA, which authorizes the president to use the law “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the president declares a national emergency with respect to such threat.” A separate provision of the law provides that when there is a national emergency, the president may “regulate … importation or exportation” of “property in which any foreign country or a national thereof has any interest.”

The dispute at the center of Friday’s opinion began last year, when Trump issued a series of executive orders imposing the tariffs. Lawsuits filed by small businesses and a group of states, all of which say that they are affected by the increased tariffs, were filed in the lower courts, which agreed with the challengers that IEEPA did not authorize Trump’s tariffs. But those rulings were put on hold, allowing the government to continue to collect the tariffs while the Supreme Court proceedings moved forward.

In a splintered decision on Friday, the Supreme Court agreed with the challengers that IEEPA did not give Trump the power to impose the tariffs. “Based on two words separated by 16 others in … IEEPA—‘regulate’ and ‘importation’—the President asserts the independent power to impose tariffs on imports from any country, of any product, at any rate, for any amount of time,” Chief Justice John Roberts wrote. “Those words,” he continued, “cannot bear such weight.” “IEEPA,” Roberts added, “contains no reference to tariffs or duties.” Moreover, “until now no President has read IEEPA to confer such power.”

In a part of the opinion joined by Justice Neil Gorsuch and Justice Amy Coney Barrett, Roberts said that Trump’s reliance on IEEPA to impose the tariffs violated the “major questions” doctrine – the idea that if Congress wants to delegate the power to make decisions of vast economic or political significance, it must do so clearly. “When Congress has delegated its tariff powers,” Roberts said, “it has done so in explicit terms, and subject to strict limits,” a test that Trump’s tariffs failed here.

The court’s three Democratic appointees – Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson – joined another part of the Roberts opinion, holding that Trump’s tariffs were also not supported by the text of IEEPA. “The U.S. Code,” Roberts noted, “is replete with statutes granting the Executive the authority to ‘regulate’ someone or something. Yet the Government cannot identify any statute in which the power to regulate includes the power to tax.”

Justice Brett Kavanaugh wrote the main dissent, which was joined by Justices Clarence Thomas and Samuel Alito. In his view, Trump had the authority under IEEPA to impose the tariffs because they “are a traditional and common tool to regulate importation.” Moreover, he suggested, although “I firmly disagree with the Court’s holding today, the decision might not substantially constrain a President’s ability to order tariffs going forward … because numerous other federal statutes authorize the President to impose tariffs and might justify most (if not all) of the tariffs at issue in this case.”

Kavanaugh also warned that “[i]n the meantime, however, the interim effects of the Court’s decision could be substantial. The United States may be required to refund billions of dollars to importers who paid the IEEPA tariffs, even though some importers may have already passed on costs to consumers or others.”

(And apologies to @Gillitrut, who posted while I was drafting this.)

The across the board tariffs are back already, under Section 122 of the Trade Act of 1974. And the per-country tariffs are on their way back. Trump really has learned from his opposition. Just drag out unfavorable decisions, then make a small change and start the process all over again.

This would still leave him with having to pay back some 200 billion dollars, I think.

And nobody would assume that SCOTUS would let get Trump away with his next harebrained tariff scheme, so the money companies pay in tariffs might just be considered a credit extended to the US.

This would still leave him with having to pay back some 200 billion dollars, I think.

No, since SCOTUS didn't say the money had to be refunded, that'll be ANOTHER court case. And he'll probably claim the new tariffs are retroactive, which will be yet another case.

And nobody would assume that SCOTUS would let get Trump away with his next harebrained tariff scheme

All commentators seem to agree the Section 122 tariffs are on solid ground for at least 150 days. After that, Congress has to approve to renew... but Trump could just declare another emergency if they're not, and if anyone objects... well, it's ANOTHER court case.

It's the Star Wars meme.

Now that the Supreme Court got rid of the tariffs, the prices are going to go down!

...the prices are going to go down, right?

It would be... silly to assume that these situations weren't gamed out WELL in advance.

It wouldn't even require coordinating with any of the Justices. Just have three backup plans ready to go, open the appropriate box based on what the decision says.

An LLM could write up a viable alternative with <10 minutes of prompting too, once fed the opinion.

Welcome to the future, kids.

Actually that hits on another thing that's been nagging at me.

I don't think our Justice system is AT ALLLLLLLLLL prepared for handling a deluge of litigation fueled by savvy (key point) attorneys who use LLMs to craft aggressive motions, and draft clever briefs in support, and then if they lose on appeal, find gaps in the decision to keep on doing the thing they wanted to do, but with a different underlying justification.

Supreme Court took a year to make one ruling on the Tariff issue. The Administration hops through the gaps left in said decision. If it takes another year for any other case to reach them, the Admin will presumably hop through the gaps in the next decision too.

I will bring up an old suggestion I've made before: Train up 9 LLMs on the writings of the most famous SCOTUS Justices in our history, selecting for some ideological diversity... then let them rule on cases.

It is unclear to me how the existence of LLMs creates or exacerbates this problem when,

a) the current amount of legal writing vastly exceeds the amount which will ever be appealed, and probably exceeds by one hundredfold the amount which will ever reach the Supreme Court

b) lawyers already have a tremendous amount of incentive to find and close/open gaps in arguments or decisions, and draft clever briefs

c) there is an upper limit to how clever or insightful a slurry of writing can be, given that it still has to be relatable to the people reading it (unless you're venturing far into Sapir-Whorf theory) and grounded in their ideas or principles. I am not skeptical that in (3/5/10/40) years a good LLM or similar machine will be able to, for example, take 20 terabytes of code or data and do brilliant and useful and efficient things to it - but I don't think there are 25 legitimate and continually-deepening modes of analyzing the effect the 1973 fisheries act has on some relevant constitutional or administrative law/principle that would require responses by the SC.

the current amount of legal writing vastly exceeds the amount which will ever be appealed, and probably exceeds by one hundredfold the amount which will ever reach the Supreme Court

Yes, this is why SCOTUS has a ton of informal and formal criteria for selecting which cases are worth their time to hear.

But it seems obvious to me that there was a hard bottleneck on how quickly litigants can react to new caselaw and that Courts intentionally avoid making drastic rulings that cause sweeping changes so any given court decision is going to have gaps in it which they will likewise be slow to 'plug.'

I suspect now its as easy as "read this Appellate decision and find me six possible loopholes or procedural methods to delay its implementation to achieve my client's goals, make sure to check the entire corpus of Law Journal Articles for creative arguments or possible alternative interpretations of existing law. Make no mistakes."

(and I'm leaving aside the issue of JUDGES using LLMs to find and create bases for favorable rulings)

In a society as litigious as the US, the slowness of the courts is effectively an Omnicausal problem at this point. Not just in taking a year to decide on tariffs for the SC, but even state and local courts are swamped.

Why do more than 95% of criminal cases end up in plea bargains? Because the court simply can not handle actually taking them to trial unless you wanted a trial set long after everyone involved is dead. And plea bargains suck, they punish innocents (who can't afford to wait the absurd amount of time for an actual trial) and let guilty criminals get away with lesser punishments (because the terms have to be really generous compared to what a trial sentence may end up in). Seriously look at almost any case where someone got off absurdly light for a crime and you'll also notice that they almost always pled guilty in it because again, over 95% of criminal cases end in a plea bargain of some kind.

The clogging up of immigration courts is one major part of the crisis we had, asylum applicants could take years an average of four for a case to be resolved. Keeping them locked up for that whole time is wasteful and inhumane, but letting them out creates an obvious exploit.

How about other issues like say, a landlord wanting to evict a bad tenant? A hearing in some of the busier counties could take you a few months. Want to build an energy transmission line? Have fun spending more than a decade on various legal challenges. You might be a parent unable to see your child for more than a year because of custody disputes being unsettled.

This ain't just a US problem either, Canada and the UK apparently have it even worse with the backlogs in some areas. It didn't use to be this bad so clearly it's possible for a functional court system to actually go at a timely manner, but it's hard to pinpoint exactly what is causing this issue and how to fix it.

It could genuinely be fixed (in the short term) by spending a LOT more money on the court system to get competent judges, clerks, assistants to process cases in a timely fashion, update systems to modern tech to increase throughput, and Marshall necessary resources to enforce the court's rulings too.

But Courts are inherently a cost center for any government. Indeed, in Florida, the statutory trend is to draft laws to discourage litigation at every turn. Requiring extra procedural hoops before filing is permitted, forcing pre-suit negotiations or even mediation, and now they're starting to restrict the ability to collect attorney's fees.

No government that I know of actively expands its judicial resources to scale with its economy or population.

There are some issues that have to funnel through the courts (Probate, the disposition of a dead person's stuff, being one of them), but beyond that, in their function as dispute resolver can still 'work' by making the process as ardurous and unpleasant as necessary for the parties to consider cooperation the strictly superior option.

My REAL suspicion is that AI will get good enough at predicting case outcomes that it will discourage active litigation/encourage quick settlements, as you can go to Claude, Grok, and Gemini and feed it all the facts and evidence and it can spit out "75% chance of favorable verdict, likely awards range from $150,000 to $300,000, and it will probably take 19-24 months to reach trial."

And if the other party finds this credible, the incentive for solving things cooperatively become obvious.

I don't know that LLMs really could add much since any lawyer would be able to give you a ballpark on likelihood of success and the award range. The thing with civil litigation is that discovery can take time, and high value cases with good evidence will always be given priority. For the trial docket I work off of, a case can go from filing to trial in under a year, and most cases don't take much longer. And this is a relatively complex type of litigation where that's already pushing it as far as having enough time to develop the case is concerned. But cases that are if lower value or have evidentiary issues can take a decade to resolve, not through any fault of the court but because the attorney responsible isn't motivated to list them for trial until the ducks are all in a row.

My REAL suspicion is that AI will get good enough at predicting case outcomes that it will discourage active litigation/encourage quick settlements, as you can go to Claude, Grok, and Gemini and feed it all the facts and evidence and it can spit out "75% chance of favorable verdict, likely awards range from $150,000 to $300,000, and it will probably take 19-24 months to reach trial."

As I understand it a lot of commercial / divorce / etc outcomes are already predictable and it doesn’t make people less litigious.

I don't think justice systems in general are ready for this. Indeed, they're already vulnerable to this now, and they depend on other social institutions to carry out their will (just as they always have done- courts don't actually have legions).

That said, what prejudice (and the dismissal thereupon) is also happens to be defined by the court. As is who even takes appeals.

[At least it's an argument for having fewer laws- but then, that might not be advantageous since "just ban everything and never hear any appeals because fuck you lolol" is already what happens most of the time in 2A cases and doesn't even require dismissing cases like that.]

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