Main Justice — "The Bulwark of Liberty"

Hosts: Andrew Weissmann and Mary McCord
Date: February 24, 2026

Episode Overview

On this episode of Main Justice, veteran DOJ lawyers Andrew Weissmann and Mary McCord dissect a landmark Supreme Court tariff decision, explore judicial checks on executive power in emergencies, examine Judge Eileen Cannon’s refusal to release the second volume of the Mar-a-Lago Special Counsel report, and analyze an explosive court decision on ICE's masked detentions. Together, they provide deep insight into the current state of America’s constitutional balance of powers under the renewed Trump administration and assess the resilience of the judiciary as a "bulwark of liberty" amid ongoing legal and political turbulence.

Key Discussion Points & Insights

1. The Supreme Court’s Tariff Decision

High-Level Summary

• Decision: The Supreme Court by a 6-3 vote ruled presidentially-imposed tariffs illegal due to a lack of statutory authority from Congress.
• Importance: At stake was whether the president could leverage ambiguous statutory language to wield the core Congressional power of taxing and tariffs.
• Case Focus: Tariffs under the International Emergency Economic Powers Act (IEEPA). The president had declared two emergencies for drug trafficking and trade imbalance—neither deemed genuine new emergencies by the panel.

Core Reasoning

• Majority: The six-justice majority split into two rationales:
  • Three conservative justices: Applied the "Major Questions Doctrine"—Congress must clearly delegate such major economic powers.
  • Three liberal justices: Relied on traditional statutory interpretation, arguing the statute’s specific language gave the President many authorities, but not tariffs or taxes.
• Concurrences & Dissents:
  • Justice Gorsuch’s lengthy concurrence dissected both camps’ logic.
  • Justice Kagan’s seven-page concurrence: "We don't have to reach out and call something Major Questions Doctrine to apply normal statutory interpretation." [14:50]
  • Chief Justice Roberts and Amy Coney Barrett’s opinions gravitated towards common sense statutory reading.

Memorable Exchanges

• On Justices’ Writing Styles:
  • Andrew: "We're talking about you, Justice Gorsuch."
  • Mary: "That's right. And you, Justice Kavanaugh. Thank you for, you know, keeping me up late. Reading and reading and reading." [02:13-02:15]

Key Quotes

• Justice Kagan (as paraphrased):
  • “You’d think if you’re going to give away something this big... involving billions of dollars... the Congress might have used the words ‘tax’ or ‘tariff.’” [13:20]
• Andrew on the ‘Major Questions Doctrine’:
  • “I think it’s been weaponized... It’s not a doctrine as opposed to a sort of common sense rule.” [13:20]
• Justice Barrett (as paraphrased by Mary):
  • This case is all about statutory interpretation and how, the bigger the issue, the clearer Congress must have been.

Timestamps

• Tariff case setup: [05:05–07:05]
• Statute analysis and split among justices: [09:27–14:49]
• “Major Questions Doctrine” discussion: [13:20–17:28]

2. Separation of Powers and Executive Overreach

Youngstown Framework & the Bulwark of Liberty

• Lesson: Separation of powers is vital when invoking emergency authority. The episode draws strong parallels to Justice Jackson's Youngstown concurrence (regarding Truman’s seizure of steel mills during the Korean War and referencing Nuremberg experience).
• Warning: Emergencies can be contrived as pretexts for overreach (referring to Nazi Germany and WWII).
• Significance: The Chief Justice’s opinion, supported by Gorsuch, Barrett, and the liberals, explicitly referenced these dangers:
  • "Emergencies... tend to kindle emergencies." ([22:06]—quoted from Justice Jackson)
  • "Emergencies afford a ready pretext for usurpation of congressional power." [22:06]
• Gorsuch’s summing up (last page of his concurrence):
  • "The deliberative nature of the legislative process was the whole point of its design. Through that process, the nation can tap the combined wisdom of the people's elected representatives, not just that of one faction or man." [27:55]
  • "But if history is any guide, the tables will turn and the day will come when those disappointed by today’s result will appreciate the legislative process for the bulwark of liberty." [28:45]

Notable Exchange

• Andrew: “It is so... the bulwark of liberty, which, by the way, really, I think is the title of our show today.” [28:45]

Timestamps

• Youngstown discussion: [22:06–22:49]
• Bulwark of liberty quote: [27:55–28:45]

3. Trump’s Reaction to the SCOTUS Ruling

President’s Response & Rule of Law

• Trump’s Reaction: He publicly attacked the majority justices (including his own appointees Barrett and Gorsuch) as "fools and lap dogs," "slimeballs," suggested “foreign influence,” and shamed them personally.
• Analytical Response:
  • Andrew: “Gross and not understanding the rule of law... I judge them based on loyalty.” [32:36]
  • Mary: “It’s also dangerous because... we have seen how members of the public extremists react... This is dangerous rhetoric.” [33:27]
  • Andrew: “This reminded me so much of what Donald Trump said about his own vice president...” [34:20]
  • Mary: “It’s an offense to school children to make that comparison.” [35:59]

Key Point

• Both hosts stress that presidential attacks on the judiciary are not only anti-principled but risk inciting extremist violence, echoing January 6th warnings.

Timestamps

• Trump’s reaction analyzed: [32:36–36:33]

4. Judge Goodwin’s ICE Decision — Masked Detentions

Summary & Context

• Case: District judge in West Virginia issued a habeas ruling condemning ICE’s practice of masked, anonymous detentions in unmarked vehicles, calling it an “assault on the constitutional order.”
• Plaintiff: A 21-year-old immigrant with a pending asylum claim and work authorization, stopped for allegedly a plastic license plate cover. No criminal record.
• Decision: Judge condemned the lack of identification, transparency, and due process under the Fourth and Fifth Amendments.

Memorable Quotes

• Judge Goodwin:

  • “Antiseptic judicial rhetoric cannot do justice to what is happening across the interior of the United States. Agents of the federal government, masked, anonymous, armed with military weapons, ... are seizing persons for civil immigration violations... It is an assault on the constitutional order.” [39:41]
  • “...the seizure does not announce itself as the people's authority. It announces only power.” [44:07]

• Mary: “He also directly addresses this argument... when you take that role in public service... you don’t get to cover your face... that’s something you take on when you take that role.” [44:43]

• Andrew: “The remedy isn’t, I’m going to terrorize the public.” [45:01]

Key Themes

• Executive agencies must remain transparent and accountable; authoritarian practices like masks and secret detentions are “beyond the reach of ordinary legal description.”

Timestamps

• Judge Goodwin’s opinion quoted and discussed: [41:16–45:52]

5. Judge Cannon and the Mar-a-Lago Special Counsel Report

Current Status

• Judge Eileen Cannon: Ruled against releasing Special Counsel Jack Smith’s Volume 2 report (on Mar-a-Lago) after all parties agreed to keep it sealed.
• Critique:
  • Andrew: “I kept on flashing before me was... the position of Donald Trump in the Epstein matter, which is we’re keeping it all under wraps.” [47:09]
  • Mary: “She [Cannon] really lambasts [Jack Smith] for going ahead and doing a report that he was required by the special counsel regulations to write...” [47:37]
• Legal Process:
  • Cannon denied intervention requests from public interest groups, leaving no party able to directly appeal her ruling.
  • Both hosts highlight how this maneuver keeps the report sealed and frustrates transparency, echoing similar issues like the ongoing lack of release around Epstein records.

Notable Quotes

• Andrew: “I don’t know what on earth the judge was thinking, or maybe really wasn’t focusing on the facts...” [48:23]
• Mary: “All the parties in the case are on the same side. ... We’re coming in to intervene in favor of release, which is sort of like the public.” [53:01]
• Andrew: “From a First Amendment point of view... every single day that Judge Cannon has been sitting on this... is an additional harm to the public’s right to know.” [57:27]
• Andrew: Regarding Judge Cannon: “At some point I just couldn’t give her any respect as a jurist. I just am done.” [57:37]

Timestamps

• Cannon’s decision discussed: [47:09–50:59], [52:30–57:27]

Notable Quotes & Moments (with Timestamps)

• Mary (about concurrences): "Thank you for keeping me up late. Reading and reading and reading." [02:15]
• Justice Kagan (as paraphrased): “I almost regret to inform [Gorsuch] that I am not one [for Major Questions].” [14:49]
• Justice Gorsuch (quoted by Mary): "The deliberative nature of the legislative process was the whole point of its design... not just that of one faction or man." [27:55]
• Judge Goodwin’s opinion (read by Mary): "...an assault on the constitutional order. It is what the Fourth Amendment was written to prevent, is what the Due Process Clause of the Fifth Amendment forbids." [39:41]
• Andrew (on Trump): “Gross and not understanding the rule of law and principles... I judge them based on loyalty.” [32:36]
• Mary (on Trump's rhetoric): “It’s dangerous rhetoric that has the potential to ... soar [threats against justices].” [33:27]
• Andrew: “I just couldn’t give her [Cannon] any respect as a jurist. I just am done.” [57:37]

Conclusion

This episode is a deep dive into constitutional separation of powers under stress, the importance of legislative checks, and the perils of unchecked executive power. The hosts’ analysis is rich with references to legal doctrine, lived DOJ experience, and the urgency of current events, highlighting the tension between democratic processes, the courts, and those who would undermine their integrity.

Recommended Listening:

If you want more on these themes, listen for:

• Further fallout from the tariff decision and its implications for executive power
• Updates on the Mar-a-Lago report’s status and ongoing transparency battles
• The evolving status of ICE practices and constitutional litigation in the Trump era

Summary by Main Justice Podcast Summarizer