Amicus With Dahlia Lithwick | Trump’s Tariffs Overturned

Episode Date: February 21, 2026
Host: Dahlia Lithwick
Guests: Mark Joseph Stern (Slate), Sonja West (University of Georgia Law), Renell Anderson Jones (University of Utah Law)

Overview

This episode of Amicus dissects the Supreme Court's landmark decision in Learning Resources vs Trump, which struck down Donald Trump’s sweeping global tariffs imposed via the International Emergency Economic Powers Act (IEEPA). Dahlia Lithwick and Mark Joseph Stern break down the technical, political, and constitutional consequences, analyze the fractured opinions on the bench, and discuss what this means for the presidency, separation of powers, and future administrative action. The second half of the episode delves into the eroding protections for press freedom in America, featuring an in-depth conversation with first amendment scholars Sonja West and Renell Anderson Jones. Both segments highlight anxieties for U.S. democracy about the abuse of executive power and the systematic undermining of the press.

Main Segment 1: Supreme Court Strikes Down Trump’s Tariffs

Introduction to the Case and Its Significance

• [01:25] Dahlia Lithwick sets up the episode: The Supreme Court ruled on Trump’s use of IEEPA to impose near-universal “reciprocal” tariffs on foreign goods, representing roughly half of U.S. import tax revenue.
• CEO Rick Waldenberg of Learning Resources challenged this extension of emergency powers, propelling the issue to the Supreme Court.

The Decision: Who Voted and Why

• [03:12] Lithwick: The Supreme Court, by a 6-3 vote, decided the President overstepped his authority.
• [04:17] Mark Joseph Stern unpacks the split: Roberts, Barrett, Gorsuch, and all three liberal justices opposed Trump's reading of IEEPA. Kavanaugh, Alito, and Thomas dissented.

Notable Quotes

• Mark Joseph Stern [04:17]:
  “The majority does the kind of basic statutory interpretation that leads to the conclusion that Trump has broken the law. The liberals join that part of his opinion. … This is clearly 6-3, tariffs are illegal.”
• Dahlia Lithwick [06:28]:
  “This is just an unvarnished loss for Donald Trump.”

Legal Reasoning and Doctrinal Fights

• The justices agree that IEEPA does not give the president unilateral, indefinite tariff power.
• Split within the majority:
  • Roberts, Gorsuch, Barrett rest on the “major questions doctrine”—requiring clear congressional authorization for major executive action.
  • Liberals (Kagan, Sotomayor, Jackson) concur on statutory grounds but reject the “major questions doctrine.”
• No apparent horse-trading between justices, with the coalition forming quickly post-argument.

Notable Quote

• Stern [08:47]:
  “There is no indication [the liberals] ever wavered… they stood in their own camp and it allowed for the three to maintain their integrity and their principle.”

Reaction and Political Implications

• Trump reportedly exploded in anger after learning the result (“these effing courts” — Holmes via Lithwick [10:03]).
• None of the conservative defectors (Gorsuch, Barrett) appear swayed by Trump’s public pressure.
• Lithwick [12:11]: “Their equal opportunity, no idea of what’s going on, havers. And yet somehow, weirdly, it saves the day.”
• Judges’ “eggheaded” immersion in doctrine is both frustrating and, paradoxically, preserving judicial independence in this instance.

The Roberts Opinion and Dissenters’ Hypocrisy

• [13:15] Lithwick: Roberts' opinion is a “clarion announcement” on limits to executive power.
• [14:12] Stern: Corporate opposition (Chamber of Commerce) may have influenced the result; Roberts’ logic otherwise straightforward—tariffs are to be regulated by Congress.
• Dissent discredited:
  • Kavanaugh ignores his previous major questions doctrine obsession.
  • Thomas invents a “powers of the crown” exception, abandoning his previous nondelegation stance.
  • Stern [18:13]: “Brett Kavanaugh is becoming Samuel Alito 2.0... his debut as the hackiest hack who ever hac[k]ed, other than Alito.”
  • Stern [20:07]: “Thomas … abandons [the nondelegation doctrine] because he announces a brand new exception... ‘powers of the crown.’”

Remedial and Practical Issues

• Lithwick [20:07]: Over $175B in wrongly collected tariffs may need refunds.
• Stern [20:28]: Refunds for named plaintiffs are assured; it’s unclear for the wider field, but lower courts likely to sort this out.
• Consumers who have paid for higher prices will not be “made whole.”

Will Trump Just Try Again?

• Lithwick [21:48]: Can Trump reimpose tariffs under another statute?
• Stern [22:59]: The ruling “walls off” this maneuver; future attempts under other statutes will be easily checked—Trump cannot easily recreate the same policy.

The Decision’s Broader Consequences

• Lithwick [24:14]: “Signature catastrophic failure of Donald Trump’s second term... a huge win for checks and balances and democracy and an independent judiciary.”
• Stern [25:08]: “Could be a gift, could be an off-ramp if Trump is smart enough to take it, which he probably isn’t.”

Key Timestamps for the Tariffs Discussion

• 01:25 – Case background, summary of tariffs
• 03:12 – Result and majority/dissent split
• 06:28 – Doctrinal and practical summary: Trump loses, 6–3
• 10:03 – Trump’s reaction, justices’ independence
• 13:15 – Quotes from the Roberts majority
• 16:16 – Breakdown of the dissents: Kavanaugh and Thomas
• 20:07 – Remedy: billions in refunds?
• 22:59 – Can Trump do this again? (Why not)
• 24:14 – Broader consequences and “take the L” advice

Main Segment 2: The First Amendment Press Clause and Press Freedom in Peril

Setting the Scene: Press Freedom Under Siege

• [30:14] Lithwick: Trump’s second term has seen escalated attacks on journalists—arrests, raids, show bans, and selective enforcement of obscure rules like “equal time.”
• Press uniquely named in the First Amendment but increasingly vulnerable.
• Guests: Sonja West & Renell Anderson Jones—foremost legal academics on the press clause.

The Press Clause: History and Neglect

• [33:11] West: Free press written explicitly into the First Amendment, but historically sidelined in favor of free speech.

  “Freedom of speech...is the Supreme Court's favorite child... the press clause... is the neglected child.”

• The Framers saw press freedom as structural, a bulwark against tyranny, yet it’s been absorbed under, and often diminished by, a general focus on “free expression.”

Trump, Structural Weakness, and Systematic Suppression

• [36:49] Anderson Jones:
  Attacks have moved from rhetorical (delegitimization) to institutional, financial, regulatory—deliberate lawfare against the press.

  “Pieces of a coherent project… designed to erode the press's access and independence and capacity and legitimacy.”

• The second Trump term has seen escalations: public broadcasting cuts, Voice of America shutdown, expulsion from White House and Pentagon, and arrests of journalists.

Case in Point: Colbert, CBS, and the Equal Time Rule

• [39:44] Colbert clip; [40:24] Lithwick & West:
  CBS forbids Colbert from airing an interview with a Democratic candidate (Talarico) under newly weaponized “equal time” doctrine, amid FCC pressure from the administration.
• West explains the history and meaning of "equal time", noting its opportunistic resurrection to target late-night hosts critical of Trump.
• Broader point: Large, famous figures might thrive in the attention economy, but smaller outlets and local journalists are deeply exposed to this chilling effect.

Vulnerabilities: Regulatory Pressure and Chilling

• [45:54] Anderson Jones:
  The executive branch can leverage a web of legal and commercial pressures—mergers, taxes, licensing, defamation lawsuits—and with diminished legal or economic resilience, press independence is easily compromised.

  “The law is on the press’s side, but executive leverage and corporate structure...leaves a million touch points of vulnerability.”

The Broader Crisis: Economics & Public Trust

• [52:17] West:
  The ad revenue model is dead; local journalism is vanishing; public trust in media has cratered.

  “The drop we’ve had in Americans' confidence in their media is enormous... It's just this huge problem.”

• The “rivers of gold” era when media were hyper-profitable and powerful is gone—the press' non-legal powers have evaporated just when legal protections are weakest.

The Supreme Court and the Press

• [56:33] Lithwick & Anderson Jones [57:29]:
  Supreme Court’s rhetorical support for the press has waned across ideologies.
  • Sullivan protections (high standard for defamation) are under threat.
  • Anderson Jones: While the law theoretically protects speech/publication, news-gathering rights—access, reporting, observation—are fragile.
  • The Court has little appetite to shore up these rights.

Technology, Big Tech, Public Distrust

• [62:48] West:
  Platforms are both stealing ad revenue and controlling audience access. Algorithmic curation upends editorial judgement—news is consumed piecemeal with no context, eroding informed self-government.
• Big Tech is unregulated and not bound by constitutional free press protections.

The Consequences: Democratic Backsliding

• [65:40] Anderson Jones:
  The collapse of operational press freedom (regardless of doctrine) leads to democratic decline—no shared facts, no meaningful public oversight of power.

  "You have to be able to have some basic agreement about the facts so that you can move on to have the kind of very healthy disagreement about what to do about those facts."

• Dysfunction is exploited politically—“dismantling the press and press freedom as an act of democratic purification.”

Don Lemon Case: Weaponizing Laws Against Reporters

• [68:48–72:41]:
  Don Lemon and others indicted under the FACE Act after covering religious-protest conflict, for activity that’s classic journalism.
  • Press activity increasingly criminalized; reflects the broader danger of executive overreach.

Press Freedom Rankings and What Needs to Change

• [73:21] Anderson Jones:
  U.S. retains strong doctrine but plummets in real-world press freedom rankings (Reporters Without Borders), as operational freedom disappears despite theoretical legal protections.

What Can Be Done?

• [77:09] West:
  Free press is not a “special” right for journalists, but a collective right for all Americans.

  “It is a right that we have to wake up every day and know... that the press is out there... watching the government, checking the powerful... shining light on them... It makes us better at the job of governing ourselves.”

Key Timestamps for Press Freedom Segment

• 30:14 – Introduction: Press under threat; press clause history
• 36:49 – Systematic tactics, regulatory pressure, and escalation
• 39:44 – Colbert/CBS equal time saga
• 45:54 – Regulatory and economic chilling; legal vulnerability
• 52:17 – Collapse of old media economics; erosion of local press
• 56:33 – The Supreme Court’s waning support for the press
• 62:48 – Tech platforms’ impact and public trust collapse
• 65:40 – Press freedom, operational collapse, and democracy
• 68:48 – Don Lemon FACE act indictment: chilling effects on newsgathering
• 73:21 – Rankings decline; operational vs legal press freedom
• 77:09 – Call to action: Press freedom as a collective right

Memorable Moments & Quotes

• Mark Joseph Stern [18:13]:
  “Brett Kavanaugh is becoming Samuel Alito 2.0... his debut as the hackiest hack who ever hac[k]ed, other than Alito.”
• Sonja West [33:11]:
  “Freedom of speech is the Supreme Court's favorite child... the press clause... is the neglected child.”
• Renell Anderson Jones [65:40]:
  “There are just so many actors out there engaging in Republican repeatage and almost nobody left to engage in reportage.”
• Dahlia Lithwick [24:14]:
  “John Roberts just saved [Trump] from himself. ... a huge win for checks and balances and democracy and an independent judiciary.”

Tone & Style

The show blends scholarly analysis with accessible, occasionally irreverent, commentary. The hosts balance alarm over autocratic overreach and passion for constitutional principles with wry humor and a healthy skepticism toward both judicial and media institutions.

Takeaways

• The Supreme Court’s tariffs ruling was a rare, decisive assertion of limits on presidential power—with bipartisan support grounded in statutory interpretation and separation of powers doctrine.
• The success was likely as much about protecting corporate interests as about safeguarding constitutional governance.
• The state of the First Amendment’s press clause is desperate, with both legal protections and operational realities crumbling under political attack and economic collapse.
• The erosion of press freedom, unchecked executive power, and the collapse of common factual ground collectively pose an existential threat to American democracy.
• The broader message: defending the press is essential not just for journalists, but for everyone committed to self-government.

For further reading:

• "The Future of Press Freedom: Democracy, Law, and the News in Changing Times" by Sonja West & Renell Anderson Jones (Cambridge University Press, 2025)
• Mark Joseph Stern’s Slate coverage: detailed breakdowns of SCOTUS decisions impacting democracy and the courts

[End of Summary]