The Commentary Magazine Podcast

Episode: "White Monday"

Date: February 23, 2026
Host: John Podhoretz
Guests/Panelists: Abe Greenwald, Seth Mandel, Eliana Johnson, Adam White

Episode Overview

This episode, dubbed "White Monday" for the heavy snowfall in New York, explores the Supreme Court’s significant and complex decision striking down Trump-era tariffs. The discussion is an in-depth look at the opinions, ideological splits, underlying doctrines (such as the Major Questions Doctrine), and the rhetoric of the justices, particularly Neil Gorsuch’s polemic concurrence. The team also looks ahead to the political and judicial implications, including speculation on potential Supreme Court nominations in the event of future retirements, especially if political power in the Senate shifts.

Key Discussion Points & Insights

1. Opening & Weather Banter (00:04–02:12)

• The team jokes about the snowstorm in various U.S. locales and their dogs' reactions.
• Sets the casual, collegial, and lightly irreverent tone for the conversation.

2. The Supreme Court’s Tariff Decision: Breakdown of Opinions (02:12–11:04)

• John Podhoretz introduces the Supreme Court's tariff decision as "one of the most interesting Supreme Court decision day releases" in memory, with complex splits across ideological lines.
• Adam White details the peculiar realignment and number of opinions issued:
  • Majority: Chief Justice Roberts, two liberals, Gorsuch, and Barrett – holding Trump’s tariffs unconstitutional as an overstep of executive power.
  • Multiple concurrences and dissents, including a standout from Gorsuch.
• Notable Quote:
  • “This Gorsuch decision is a polemic for the ages. Calm, reasoned, systematic and so beautifully written and expressed...like eating the most luxurious hot fudge sundae.”
    — John Podhoretz (03:54)

3. The Decision Substance (06:31–12:11)

• Adam White explains the legal crux: The International Emergency Economic Powers Act (IEEPA) lets the President regulate trade in emergencies, but does not allow imposing tariffs unless explicitly stated by Congress.
  • Quotes Roberts’ logic: “Come on, if...Congress wanted...the President to be able to impose tariffs...they would have said it clearly.”
  • Major Questions Doctrine invoked: Executive cannot assume congressional powers unless language is unambiguous.
• Contrast with Kavanaugh’s Dissent:
  • Kavanaugh: “Come on, come on. Of course it allows you to regulate tariffs.” (09:36)
  • Kavanaugh relies on historical practice and legislative intent, offering a compelling minority view.
  • John: “You have these two bizarrely confident opinions...One says, ‘Eh, what are you, nuts?’ And the other...‘Eh, what are you, nuts?’”

4. Gorsuch’s Concurrence: “A Mallet for the Ages” (12:11–19:39)

• Gorsuch harshly critiques both the liberal and conservative approaches, calling out what he sees as their past inconsistency regarding presidential emergency powers.
• John (on Gorsuch):
  • "Rather than being magnanimous...he’s like, I am not letting you get away with this...Hypocrisy, Thy name is Jackson and Kagan." (16:51)
• Adam:
  • “Justice Gorsuch’s opinion was...that scene from The Godfather where they settle all family's business. He just goes down the line with everybody.” (18:12)
  • Gorsuch’s overarching project is recalibrating the separation of powers, criticizing justices for inconsistency regardless of partisan alignment.

5. Dissenters: Alito and Thomas (19:39–26:58)

• Eliana: Notes that Thomas and Alito, the most tenured conservatives, dissent. Requests insight.
• Adam:
  • Thomas and Alito emphasize broad congressional delegation to the executive on national security and international affairs; resist artificial narrowing.
  • Thomas’s dissent is “radical” in essentially allowing Congress to delegate most powers to the President in the context of emergencies, seemingly contradicting his long campaign against overbroad delegation.
• John:
  • Thomas and Kavanaugh offer different flavors of dissent—Thomas with broader constitutional vision, Kavanaugh with more statutory pragmatism and "breeziness." (22:09)

6. National Emergencies & Delegation (26:58–30:30)

• Seth raises concern about the proliferation and abuse of “emergencies” and if the current legal framework actually limits the executive.
• Adam:
  • The Court in this case interprets statutes narrowly to limit power rather than striking statutes wholesale.
  • A broad constitutional challenge to the National Emergencies Act is unlikely at this time.

7. Liberal Concurrences: Jackson and Kagan (32:10–40:42)

• John:
  • Finds Justice Jackson’s opinion "banal and pedestrian," noting her use of legislative history over textualism or the Major Questions Doctrine.
  • Sees inconsistency as liberals now oppose emergency-powered executive action after supporting it in Biden-era cases.
• Adam:
  • Notes Jackson’s distinctive approach—willingness to rely on legislative history is a marker of future liberal legal thinking, possibly a “Jacksonian” method.
  • Warns conservatives not to underestimate Jackson's intellectual influence regardless of current marginality.
• Notable Exchange:
  • "Please don't drone strike me." (Adam, 43:03)
  • “I’m not going to drone strike you. It’s a very interesting perspective...” (John, 43:16)

8. The Court’s Shifting Doctrinal Debates (40:42–45:32)

• Adam:
  • The Court now has several nuanced approaches to textualism; divisions are more intricate than the old liberal/textualist binary.
  • Jackson is “overturning the table” of narrow textualism, and her method will influence future liberal jurists and thinkers.

9. Political and Practical Impact (45:32–52:34)

• Eliana:
  • Points out the decision undercuts claims that the Supreme Court is a Trump “rubber stamp”—two of his appointees (Gorsuch, Barrett) ruled against him.
  • Trump’s reaction: insults justices, but vows to pursue tariffs by “lawful means,” echoing Kavanaugh’s dissent.

10. Court Vacancies and GOP Senate Control Speculation (47:27–60:03)

• John:
  • Raises question of political strategy if a vacancy occurs before a possible Senate power shift; will conservatives pressure Thomas or Alito to retire?
  • Panel speculates on real-world candidate shortlists, Trump’s trust priorities, and who might be in the running.
  • Names Mentioned: Naomi Rao, Andrew Oldham, John Sauer, Eileen Cannon, David Stras, Amul Thapar—with humor about “own the libs” potential.
• Notable Quote:
  • “You understand that I can say that my intern is now a Supreme Court justice?” — John Podhoretz, if Naomi Rao is nominated (51:19)
• Adam:
  • Believes Trump desires justices with personal loyalty; unconventional picks possible if vacancies arise.

Notable Quotes & Memorable Moments

• On Gorsuch’s masterful opinion (03:54):
  “This Gorsuch decision is a polemic for the ages. Calm, reasoned, systematic and so beautifully written...like eating the most luxurious hot fudge sundae...” — John Podhoretz

• On the two lead opinions (09:35):
  “You have these two bizarrely confident opinions...One says, ‘Eh, what are you, nuts?’ And the other...‘Eh, what are you, nuts?’” — John Podhoretz

• On Gorsuch’s style (18:12):
  "Justice Gorsuch’s opinion was...that scene from The Godfather where they settle all family's business." — Adam White

• Kavanaugh’s dissent (11:04):
  “He makes probably the best case you could make for the Trump administration. No wonder President Trump likes him so much right now.” — Adam White

• On the liberals’ inconsistency (34:56):
  "Do they care about intellectual consistency? Because we're getting to the point where it just looks like they don't care about intellectual consistency." — John Podhoretz

• Jackson’s method (43:03):
  “Please don't drone strike me.” — Adam White (on his moderate defense of Jackson)

Timestamps for Major Segments

• (00:04–02:12): Opening banter, weather, team intros
• (02:12–11:04): Laying out the Supreme Court’s decision structure and opinions
• (11:04–19:39): Analysis of concurrences/dissents, spotlight on Gorsuch
• (19:39–26:58): Discussion of Alito & Thomas’s dissents
• (26:58–30:30): Emergency powers & delegation of congressional authority
• (32:10–40:42): Scrutiny of liberal justices’ opinions, intellectual consistency
• (40:42–45:32): Doctrinal implications and interpretive philosophies
• (45:32–47:27): Reflections on the Supreme Court as a Trump “rubber stamp”
• (47:27–60:03): Judicial vacancy speculation; shortlist for potential Trump nominees

Tone and Style

• Conversational, irreverent, and packed with in-jokes, but substantively rich.
• Deeply knowledgeable legal commentary presented accessibly.
• Occasional light ribbing and comic interludes, especially amid heated jurisprudential debate.

Summary Takeaways

• The Supreme Court’s decision on tariffs demonstrates real complexity within conservative justices, with splits not just between left and right but within right-of-center philosophies.
• Major Questions Doctrine continues to be pivotal in restricting executive overreach, but its application and theoretical basis are increasingly contested even among conservatives.
• Justice Gorsuch’s concurrence is held up as a rhetorical and intellectual tour de force, uncompromising in its critique of all sides.
• The justices’ approaches to interpretation (textualism, legislative history) are diverging, with Jackson establishing an alternative path for future liberals.
• The politics of Supreme Court nominations remain highly fraught, especially as the Court is likely to be central to 2026 and 2028 political strategies.