Advisory Opinions Podcast – “What’s Next After Friday’s Tariff Decision?”

Date: February 24, 2026
Hosts: Sarah Isgur and David French (Live at Florida State University)

Episode Overview

This episode dives deep into the Supreme Court’s recent, landmark tariff decision, unpacking the unusually fractured opinions and their implications for the major questions doctrine, presidential power, statutory interpretation, and the ongoing political and constitutional debates. The hosts also address the Fifth Circuit’s punt on a Ten Commandments in schools case, discuss whether Supreme Court justices should attend the State of the Union in a politically fraught era, and debate the practical value of judicial opinions themselves.

Key Discussion Topics

1. The Supreme Court’s Tariff Decision: Who Was Consistent, and Why?

(Starts ~01:33)

• Case Context:
  The Court issued a 3-3-3 split on whether the President could use the International Emergency Economic Powers Act (IEEPA) to impose broad tariffs—fracturing along non-partisan lines:

  • The majority (Roberts, Barrett, Gorsuch): Relied on the major questions doctrine.
  • Kagan, Sotomayor, Jackson: Focused on “ordinary” statutory interpretation, eschewing the major questions framework.
  • Kavanaugh, Alito, Thomas: Argued for broad presidential power, especially in the foreign policy context.

• Consistency & Statutory Interpretation:

  • Major Questions Doctrine as an “Overarching Principle”:
    David: "Isn't looking for a clear statement just statutory interpretation and construction?... It’s all just reading the statute..." (07:12)
  • Justice Kagan’s Consistency:
    • Sarah reads from Kagan’s prior dissents (e.g., student loan forgiveness), affirming her approach is always, “just looking at the statute” (09:45).
    • Kagan’s concurrence: She objects to “a special brand of legislative clarity,” preferring “standard rules of statutory construction” (08:53).
    • Kagan argues the scope of congressional delegation is narrower for tariffs than for student loans, because tariffs are a “core congressional power” (14:18).
    • Sarah: “Bottom line... Kagan’s being totally consistent... she thinks the other statutes were broad delegations to the president; she thinks this one is not.” (12:52)

Memorable Moment/Quote (Speaker)

“You have them almost sitting... right next to each other... and then yelling about how far apart they are, right on how you do statutory construction.”
— Sarah Isgur (09:00)

2. Gorsuch vs. Kagan: Is the Major Questions Doctrine Just a Distraction?

(16:48)

• Audience Question Spurs Insightful Exchange:
  • An audience member’s email deconstructs Gorsuch’s position:
    Does Gorsuch need the major questions doctrine to decide against the President? If not, he and Kagan agree, so why the hostility?
  • Sarah: “If it’s unnecessary, then you and Kagan agree, so quit giving her crap. And if it’s necessary, then you need to acknowledge that Kavanaugh’s right.” (18:51)
  • Both hosts agree the email exposes possible tension (or even inconsistency) in Gorsuch’s reasoning.

Notable Quote

“Gorsuch failed to acknowledge that either Kavanaugh’s right as a matter of statutory construction or that Kagan’s right that you don’t need major questions doctrine, but you can’t actually disagree with both of them if you’re Gorsuch.”
— Sarah Isgur (19:20)

3. Kavanaugh’s Dissent: Executive Power and Foreign Affairs Exceptionalism

(25:16)

• Kavanaugh’s Record:

  • Noted for favoring executive power, regardless of party—ruled pro-Biden in many recent cases (23:04).
  • Contrast with Gorsuch; last term, they agreed in only half of split cases (25:16).

• Foreign Affairs Lens:

  • Kavanaugh relies on Youngstown and a tradition of broader deference to the Executive in foreign affairs.
  • Quoting Youngstown: “This court has always recognized the unwisdom of requiring Congress in this field... to lay down narrowly defined standards by which the President is to be governed.” (31:53)
  • This, Kavanaugh argues, justifies broader delegated powers for presidents in trade and foreign policy than in domestic affairs.

Memorable Quote

“This was very important... you’re talking about an authority given under Article 1... being assumed by Article 2 with vague language... a structural issue in our Constitution...”
— David French (25:54)

4. Are Supreme Court Coalitions Just Partisan “Blocs”?

(29:54)

• The decision did not break along ideological lines, belying critiques that the justices are partisan actors.

• David rails against narratives treating the Court as a “Borg” of Republican or Democratic appointees:

  “Originalism does not turn you into OriginalismBot9000 who always spits out the same thing...” (25:54)

• This case highlights diversity within conservative judicial philosophy and the importance of doctrinal nuance.

5. Major Questions Doctrine: Safety Valve or Superfluous?

(39:38)

• Sarah’s takeaway: The dueling Kagan/Kavanaugh opinions show why the “major questions doctrine” provides a needed tiebreaker when statutory interpretation is finely balanced.

  “This is why we need major questions doctrine. You guys just proved the point...” (39:38)

6. Trump’s New Tariff Strategy & the Legal Foundation for Presidential Tariff Power

(41:03)

• After the ruling, Trump pivots to a new statutory authority:
  • 19 U.S.C. § 2132 (Balance of Payments Authority): lets the president impose up to 15% tariffs for 150 days if there is a “large and serious United States balance of payments deficit.”
  • David explains the economic jargon and statutory meaning; modern circumstances do not present a true balance of payments deficit, only a trade deficit (42:31–48:44).
  • Trump’s use of IEEPA provided far more sweeping power than this statute.

Key Quotes

“Oh, that’s what it looks like when Congress means to delegate its tariff authority. Pretty clear.”
— Sarah Isgur (42:26)

(On why Trump didn’t use this narrower statute:)

“There’s a reason why Trump went for IEEPA. It gave him the most power possible.”
— David French (47:32)

7. The Emergency Declaration Puzzle

(47:32)

• The Court did not resolve whether IEEPA-type emergencies are judicially reviewable, noting the statute only requires a “presidential declaration” (47:32–48:44).

8. Should Justices Attend the State of the Union?

(52:09)

• In light of the President’s attacks on the judiciary, the hosts debate whether SCOTUS justices should continue attending.
  • Sarah’s take: All nine should attend this year to show institutional unity; next year, none should go (54:27–56:13).
  • David suggests: Only the Chief should go as a symbolic gesture.
  • Both agree: The President’s criticisms undermine decorum and tradition.

9. Fifth Circuit’s Ten Commandments Case: Ripeness Doctrine Revived

(56:16)

• The Fifth Circuit refuses to decide the constitutionality of Louisiana’s law mandating Ten Commandments displays in public schools—ruling it’s not “ripe” until implementation details emerge.
  • Sarah’s take: The court’s “punt” calls Louisiana’s bluff — the legislature wanted the law struck down for political gain.
  • David: Context matters; once pivotal Lemon v. Kurtzman is gone, the legal standard is unclear, so more facts are genuinely needed (58:57–61:53).

Host Reflection [Sarah]:

“Ripeness is back at the Fifth Circuit.” (58:52) On personal experience with coerced religion in public schools:
“As a legal matter, I’m really, really torn up whether this is legal. And I have trouble separating... making sure that my not thinking it’s good policy does not affect my Establishment Clause analysis.” (63:40)

10. Do Judicial Opinions Matter, Or Only Outcomes?

(66:36)

• The hosts discuss Justin Driver’s law review piece, “The Insignificance of Judicial Opinions”:
  • Argues scholarly and legal circles overvalue judicial reasoning/opinions when, in reality, outcomes are what matter (and what the public remembers).
  • David agrees, in part: In practice, fact patterns and outcomes are more decisive than reasoning.
  • But, in advocacy, reflecting a judge’s reasoning can “help on the margins” when facts are close (70:21).

Quote:

“If there’s one thing less significant than judicial opinions, it’s a law review article.”
— Sarah Isgur (73:08)

Timestamps for Important Segments

| Segment | Timestamp | |----------------------------------------------|------------| | Opening banter & setting episode topics | ~01:33 | | Tariff decision deep dive | 01:33–20:50| | Gorsuch email and doctrinal dispute | 16:48–20:50| | Assessing Kavanaugh’s consistency | 23:04–25:16| | Partisan breakdown myths | 25:49–29:54| | The foreign affairs exception (Kavanaugh) | 31:53–34:45| | Major questions doctrine’s necessity | 39:38–40:49| | Trump’s statutory pivot on tariffs | 41:03–52:09| | State of the Union debate | 52:09–56:13| | Ten Commandments/Fifth Circuit “ripeness” | 56:16–66:36| | The value of judicial opinions | 66:36–73:08|

Tone & Speaker Style Notes

• Sarah is wry, fast-paced, and precise, often reading directly from opinions and poking fun at academia and DC law culture.
• David is reflective, thorough, and a bit professorial, happy to “vent” about common public misunderstandings and legal process realities.
• Both use humor (“OriginalismBot9000”), inside legal references, and are self-critical about their own expertise, especially regarding economics and “ripeness doctrine.”

Notable Quotes by Timestamp

• On doctrinal disputes:
  “Is this angels dancing on the head of a pin kind of argument that gets legal scholars all worked up, but in the reality, it’s all just statutory construction?” (06:57 – David)
• Kagan’s position:
  “A clear statement rule is unnecessary because ordinary principles of statutory interpretation lead to the same result.” (15:19 – Sarah quoting Kagan, then quipping how Kagan slams the door on Gorsuch)
• On judging the Court as partisan:
  “Originalism is not a...Bot9000 that always spits out the same thing. All originalism does is reframe the debate.” (25:54 – David)
• On ripeness and Ten Commandments:
  “Ripeness is back at the Fifth Circuit.” (58:52 – Sarah)
• On the value of judicial opinions:
  “If there’s one thing less significant than judicial opinions, it’s a law review article.” (73:08 – Sarah)

Conclusion

This episode offers an incisive, accessible tour through the Supreme Court’s tariff decision, its underlying legal doctrines, and the real-world tug-of-war between law, politics, and public perception. The hosts model “steel-manning” rival arguments, caution against oversimplified narratives about the Court, and highlight how even seemingly arcane statutory debates shape both the economy and constitutional structure.

For listeners who missed the episode, this summary captures all the crucial reasoning, disagreements, and memorable host asides—minus the ads and inside jokes about mattresses.