White Monday

Summary

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The Commentary Magazine Podcast

Episode: "White Monday"

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

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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.

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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.

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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)

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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

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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.

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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.

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Transcript

[John Podhoretz]

Hope for the best, expect the worst Some drink champagne Some die of thirst the way of knowing which way it's going Hope for the best Expect the

[Adam White]

worst Hope for the best.

[John Podhoretz]

Welcome to the Commentary magazine daily podcast. It is A snowy Monday, February 23, 2026. We got 17 inches here in New York. And I'm John Podhoritz in New York, the editor of Commentary, a couple miles from me. Also having to have, having had to walk his dog in the snow is executive editor Abe Greenwald. Hi, Abe.

[Adam White]

Hi, John.

[John Podhoretz]

How did Piper do in the snow?

[Adam White]

Oh, she loves it.

[John Podhoretz]

Yeah, my dog loves it too. But literally, it was the greatest experience ever. We were literally out for 20 seconds, did her business, wanted to go right back in. So the snow had one positive consequence here. Seth Mandel, senior editor, got a dog in Maryland. How is Truman doing?

[Seth Mandel]

Truman loves the snow, too. Gets excited every time. But we only got, we only got a couple inches. Okay, Just it looks pretty here in Maryland. It looks pretty, but it's not causing people the havoc that it is up by you guys.

[John Podhoretz]

Okay, so, and Eliana Johnson, Washington Free Beacon editor, does not have a dog. So I think she's just like, happy, go lucky. And, but she has kids at home, I'm sure. Was school canceled?

[Eliana Johnson]

Oh, of course. So you'll hear my kids screaming in the background.

[Adam White]

Okay.

[John Podhoretz]

I'm good.

[Eliana Johnson]

Oh, yes, I have my daughter at the door here.

[John Podhoretz]

Ah, hi. All right now and joining us today, AEI Scholar, general Legal Poobah, the guy we talked to when law emerges as a major issue, and our friend who lives somewhere in rural somewhere or other. And so I assume his wolves are enjoying the snow, Adam White. Hi, Adam.

[Adam White]

Hi, John. We're all having a nice time out here.

[John Podhoretz]

Oh, that's good. Okay. Well, you know, we, a lot of us had an intellectually nice time on Friday and through the weekend reading through what is, I think, one of the most interesting Supreme Court decision day releases that I can remember. I mean, certainly since the Obamacare release in 20, was that 2012 featuring, you know, the most factitious opinion ever written by Chief Justice Roberts. But of course, I'm talking about the tariff case came out Friday morning. And Adam, just quickly, we have a 6:3 decision that lined up in slightly peculiar ways and featuring a relatively conventional opinion by the chief justice, majority opinion, three concurrences, one liberal, two conservative concurrences, and two dissents. And the dissents are by conservatives. And one of the concurrences is a giant mallet taken by one of the conservative justices to the every single other opinion that was delivered. That is Neil Gorsuch's concurrence, which systematically goes at the liberal concurrence, at the conservative dissents, and a little bit at the Chief Justice's opinion, I would say, and is as a piece of rhetoric and argumentation, like as if it were a magazine article and somebody sent it to me, I would fall on my knees in thanks to a munificent God for having handed me such a masterpiece of rhetoric and argumentation. This Gorsuch decision is a polemic for the ages. Calm, reasoned, systematic and so beautifully written and expressed that I don't remember a Supreme Court decision that was like, for me was like eating, you know, the most luxurious hot fudge sundae that had ever been delivered to me. Adam, did you have some of the same experiences that I had in the what the hell is going on with the backing and forcing and the different opinioning and all of this and with Gorsuch going cut the crap in, in this remarkable fashion?

[Adam White]

Well, John, after I got through the Chief justice's relatively brief 20 page opinion settling the decision and then I settled into another hundred pages of cross cutting concurrences and dissents, I thought to myself, who doesn't love a group project? I don't know how they could have possibly had more opinions in this case. But it is interesting in the same way that President Trump seems to want to make everything about tariffs or make tariffs about everything. Somehow this case became the everything case for the Court. As you saw after Chief justice Roberts brief 20 page decision, opinions about with disagreements among the conservatives and between the conservatives and the progressives and even a little bit among the progressives. You see them disagreeing about basically everything the Court does, how it should understand its role vis a vis the presidency, how it should understand its role vis a vision. Congress, how to interpret the laws, what are we even doing when we interpret a law? Should we use legislative history? On and on. And then Justice Thomas's opinion about the non delegation doctrine, this opinion, no wonder it took three months. I thought after oral arguments, hey, maybe we'll have this by New Year's. Not so much because this case became the most thorough portrait of a court that is in many ways divided 6, 3. But in most ways is divided 1 1, 111 1, 1, 1.

[John Podhoretz]

Okay, so very quickly, just to put it, the majority opinion which was joined by two liberal justices, the chief, who is now ideologically unclear, I would say Neil Gorsuch, a conservative, and Amy Coney Barrett, a conservative, says the emergent law that Trump imposed the tariffs on does not in fact empower him to impose these tariffs and is therefore they were unconstitutionally imposed. This was an impingement on the rights of the legislative branch and a misreading of law. So we, that's it. Goodbye.

[Adam White]

Yeah.

[John Podhoretz]

Then two opinions on say yes, we agree. Gotta go. That's a tariffs on Constitution.

[Adam White]

Yeah.

[John Podhoretz]

One by Justice Jackson.

[Adam White]

Yeah.

[John Podhoretz]

Actually, I'm sorry, there are two liberal concurrences.

[Adam White]

Yeah.

[John Podhoretz]

One by. And the decision also says, and the Roberts decision says that according to the major questions doctrine, which is a phrase that we have come to use constantly in the past 10 years, as Adam has written many times for commentary on others, the major questions doctrine raises questions of how much administration, an executive branch can administrate. That is not explicitly spelled out by Congress.

[Adam White]

Yeah.

[John Podhoretz]

So, John, let me, I'll cut to

[Adam White]

the chase for this because our readers, our listeners are told there's no math on this exam. The majority opinion, which actually did, if I, if I'm understanding this correctly, actually did have six justices. Justice Jackson joins it to some extent. The majority opinion is basically this. The statute, the International Economic Emergency Economic Powers act of 1977, says that in times of extraordinary emergency, when the President issues an emergency declaration, he has the power to investigate, regulate, direct, compel, nullify, void, and so on trade, the question was for the Court was, does regulate include impose tariffs? And Chief Justice Roberts majority opinion, six justices basically says, come on, come on. Of course it doesn't include tariffs. Tariffs and regulations are fundamentally different things. Sometimes tariffs can be used as a form of regulation. But come on, if the statute, if Congress actually wanted Congress to, or the President to be able to impose tariffs, to set taxes, they would have said it clearly. And that's basically the thrust of the majority opinion. And all six of the justices, the, the majority agree with that. Now there's a little part now. Yeah.

[John Podhoretz]

Now before you go on with that.

[Adam White]

Yeah.

[John Podhoretz]

The dissenting opinion by Justice Kavanaugh.

[Adam White]

Yeah.

[John Podhoretz]

Takes exactly the same tone. He says, come on, come on. Of course it allows you to regulate tariffs. Look, Nixon did it in 71. That was under a previous statute, but then they updated the statute. This is the new statute. An opinion in this year said, yeah, blah, blah. An opinion that year. Of course, of course he can. Sure he can. So you have these two bizarrely confident opinions. One says, eh, what are you nuts? And the other one goes, eh, what are you nuts? Of course he can. And it's weird. The tone of the Kavanaugh scent is weird to me in its absolute kind of breezy confidence that this 6, 3 decision is wrong and that any rational person would see this. So he doesn't know what happened. Everybody took, you know, everybody took crazy pills and ruled wrong because it's just self evident in every possible way that the president has the power to do what he did. So that itself struck me as being really interesting that Kavanaugh was so kind of like, I wouldn't say high handed because he lost, but sort of like so matter of fact about how he didn't really have to even make much of an argument that his dissenting opinion was correct.

[Adam White]

Now, there are many things you could say about Kavanaugh's opinion, but calling it breezy really isn't one of them. He's clearly confident in his conclusion, and I have to say he makes probably the best case you could make for the Trump administration. No wonder President Trump likes him so much right now. At oral argument, Kavanaugh had very interesting questions about what had happened in the 1970s during the Nixon administration. More importantly, how did Congress understand what the Nixon administration had done, how the lower courts had seen what the Nixon administration had done. And so in light of that, and in light of a lot of much older case law and commentary, I think from James Madison perhaps, and others saying that that tariffs can be a form of regulation, I think Kavanaugh puts together the most compelling case you can make for the Trump administration's contention here. I tend to agree with Chief Justice Roberts's reading of the law here, but I thought Kavanaugh actually did a surprisingly compelling job of making the other case.

[John Podhoretz]

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Support the show by mentioning us a checkout. Terms and conditions apply. I'm not a lawyer, as you know. And I'm not, I didn't, you know, not an appellate lawyer. I'm not a Supreme Court expert or anything like that. But as simply as a matter of argumentation, I kind of have to disagree with you. Obviously I did because you disagreed with me. But it's not that I didn't find it compelling or not compelling. The fact that it was the opinion in the minority A blot would oblige the dissenter to make clear what findings the majority opinion made that were in deep error. And I did not see that in the Kavanaugh decision where I saw somebody expressing in remarkable terms findings that other justices were in deep error. Was in Justice Gorsuch's concurrence unusual, aside from its brilliance, as I detailed earlier, unusual in that he goes systematically through every other opinion, including Kavanaugh. But I mean, and takes a two by four in particular, I thought interestingly to his. The liberals who decided to come in with him and Roberts on saying that the tariffs were unconstitutional by saying basically, ho, ho, ho, look at the hypocrites. Welcome in hypocrites. There were three decisions in the last four years that you basically lined up with the Biden administration on that raised exactly the same question about emergency powers and the President exercising his emergency powers. And those were fine with you. But this isn't hypocrisy. Thy name is Jackson and Kagan. And again, I just thought this was a very interesting thing. Like rather than being magnanimous and saying, well, thank God they came in so we could have a majority opinion here. Oh, isn't it wonderful this concurrences. And we're all liberals and conservatives coming together to find in the national interest. He's like, I am not letting you get away with this. Like I came to you when they did the student loans and when they were doing the rent abatements and they were doing. And. And you just said, sure, why not let the President do whatever he wants. Not anymore. Suddenly now there's a conservative president, him you don't like. So now you're. And I thought that was like an amazing thing to have happen.

[Adam White]

Yeah. Justice Gorsuch's opinion was the closing. Was that scene from the Godfather where they settle all of the family's business in the course of a church service. That is absolutely what that was. It is pretty remarkable the way he just goes down the line with everybody. And it's because Justice Gorsuch, what I think it's because is because Justice Gorsuch, for his entire career as a judge, even before he was on the Supreme Court, I was writing about this for the late great Weekly Standard when he was just nominated for the Supreme Court. From his time on the 10th Circuit through now, he has been building a systematic intellectual case for how the separation of powers is supposed to work, how Congress has. And the courts had completely abdicated their responsibilities for decades. How this fundamentally injured vulnerable people, powerless people, and how The Court needed to reclaim its power both by striking down more statutes and by interpreting the laws in light of the separation of powers, which is not the I'll stop here, but I'll say which is why he even takes a two by four to Justice Barrett's opinion. I'm not saying I necessarily agree with Justice Gorsuch in all of his particulars here. I do agree with the, with the main thrust of the whole thing. But he is in the middle of his career's work of trying to redefine and recalibrate the separation of powers.

[Eliana Johnson]

Adam, the longest serving members of the Court, Thomas and Alito and the most vaunted conservative justices on the Court.

[Adam White]

Yeah.

[Eliana Johnson]

Were dissenters on this case. Can you talk a little bit about how you understand their dissents and, and what you make of them?

[John Podhoretz]

Yeah, absolutely.

[Adam White]

And I wrote a little note for aei. I have a monthly newsletter there. I wrote a little note after the oral arguments back in November and I pointed out that Alito and Thomas seemed the most likely to dissent. Justice Thomas, the questions he was raising about.

[Eliana Johnson]

That's the note, by the way, for our listeners who want to get it on SCOTUS blog.

[Adam White]

Yeah, I was writing there. Yeah, I was writing there too. I was writing. What I pointed out was Justice Thomas oral arguments in the case were a lot like Justice Thomas's opinions in the Guantanamo cases where he said when it comes to international affairs, national security, Congress often writes statutes very, very broadly to empower presidents and the Court should not artificially narrow those statutes. This is a place where Congress traditionally empowers presidents. And Justice Alito struck a very similar tone at oral argument, sort of raising the question, are we really saying that Congress wouldn't let the President impose tariffs under any circumstances? This is an emergency power statute. The whole point of it is to give a president maximum flexibility to combat threats as he sees them in certain circumstances. And so that is how Alito and Thomas were reading the statutes. Now, interestingly, Alito did not write a separate opinion in this. He joins the Kavanaugh dissent in full. Justice Thomas does read or does write his own separate concurrence, but it's about a slightly different issue. It's about how concerns like the, not like Congress delegating its power away, which he's written about, as you know, even more than Gorsuch, that they don't really apply in the same context when you're talking about tariffs. But both of those justices were the most skeptical of the challengers at oral argument. And it wasn't Particularly surprising that they wound up in dissent here. This is. Their opinion is very much, as I said, familiar to anybody who was around during the war on terror cases in the Bush years.

[John Podhoretz]

The Thomas concurrent dissent is interesting in its radicalism. I would say that he basically, as I think the Chief justice says, taken as a whole, his dissent would involve a complete revision of our understanding of Article 1 of the Constitution, that it basically says, as long as it doesn't say that you can't impose tariffs in an emergency, you can, and you're the president, you're crossing the border, you can do whatever you want forever. And that's an unfair caricature. Obviously, he's a more sophisticated thinker than that. But it is a very. It's an interestingly broad reading because you. One would think that, you know, Thomas as a. The most conservative justice and all that would have a classic understanding of the purpose of the Constitution is to balance the three branches and to provide, make sure that the powers of each are husbanded and protected from the impingements of the others. But that's not where he goes with this. And so he obviously unsatisfied with the Kavanaugh view, which is just, look, it's very simple. The law, the emergency law sure kind of gives them the right and the wording kind of gives them the right. And you know what? It would be such a pain in the ass if we. When we find. If we found for the. For the majority or join the majority, because, you know, this is a mess and it's going to be so hard to figure out how to do refunds of these unconstitutional tariffs. Like, geez, like, you know, let's. Let's be realistic here. We can't do this, so we have to live in the real world. And so we're dissenting like, this is nuts. And Thomas tries to make a broad ideological case that Kavanaugh does not make Kavanaugh simply saying, the statute says what it says. I can read it to give the president these powers. I'm doing that. Okay, fine. You in the majority, don't do it, but you're nuts. But whatever, you know, we'll live to fight another day or something like that. That's what I meant by the breeziness of the tone. It's not like, enraged. How dare they. This is gonna, you know, like a great Scalia descent, which is, you know, we will rue the day generations will weep, you know, at the, at the, at the foot of the Lincoln Memorial over the evil that has been practiced this morning or something. Like that. It doesn't have any, any of that kind of passion. It's, come on, come on.

[Adam White]

Didn't Thomas, correct me if I'm wrong,

[Seth Mandel]

do something similar

[Adam White]

in Dobbs sort of raising, I mean, in that he went broader, sort of raising the specter of relitigating gay marriage and whatnot? Yeah. Justice Thomas, he is, he is in many ways the great concurrer in the Roberts Court era where he isn't writing most of the majority opinions. But he is always sort of looking over the horizon and what he sees as the natural consequences, the logical consequences of a Court's particular opinion. He's always looking further down the road. What he did in this case is different. And I have to be honest, I'm still trying to wrap my head around his opinion. I'm trying hard enough to wrap my head around all the opinions here, but his is going to take a little bit more time because his argument, as I understand it, is that even, you know, even though he's been saying for years that the Court needs to reassert a non delegation doctrine and strike down laws where Congress has delegated away its legislative power to the President and he's been the most vociferous on it, maybe tied with Gorsuch, there is a concern or sorry, Thomas here has a nuance where he says the not all of the powers that Congress has are legislative powers and Congress can delegate away its non legislative powers all at once. The power to regulate trade or to limit trade, Thomas says, is not necessarily inherently legislative. That in many ways is traditionally an executive power. And so as Justice Gorsuch describes it critically in his concurrence, he says Justice Thomas suggests that Congress may hand over most of its constitutionally vested powers to the President of completely and forever. And I have to admit that's kind of how I read Justice Thomas's opinion too. I really don't understand the limits of it and I'm not going to try to speculate on it because I don't want to overstate it. But it's a very challenging opinion for those of us who thought he's been arguing for years about limiting Congress, giving away its powers.

[Seth Mandel]

Well, on that, on that subject, I'm curious because the National Emergencies, National Emergencies Act, I think. Right. Is what it's called that the presidential emergency powers come. Excuse me, this is, this seems to be ripe for a challenge too. I mean, is there any like everything that we're saying about, you know, Congress delegating its, its powers and stuff like that, whether they can or whether they can't runs up against the Emergencies act because, you know, it's sort of broadly written. CNN did this really, I thought it was funny. But story in 2019 when Trump was in a standoff with Congress over funding for the wall and there was a shutdown looming over it and he said, well, I'll just declare a state of emergency. And CNN did the story how it would be the 32nd concurrent national state of emergency that the US was under, that we live, we are living under 31 current states of emergency. You know, now the side question that goes along with that, does this act have to be like, does this have to be specific, specifically addressed or challenged or whatever? Like is this thing standing in the way of any possible productive way to limit the president's powers?

[Adam White]

It's a great question. And this issue of emergency sort of hovered throughout the oral arguments in the tariff case. And also you see it in the opinion itself. The justices understand that presidents now repeatedly declare emergencies that unlock enormous powers. And by the way, Seth, if you want to do some reading on this, may I commend a 2019 essay titled Governing by National Emergency that appeared in commentary by, oh, Adam White, very well edited by the way. I just want to add, but this is a perennial issue and we saw it in President Trump's first term and we saw it in the Biden administration with calls for climate emergencies and so on. Now I will say, and this is a place where since we've been sort of talking about the big picture, we just got to, we should remind listeners what the court was actually deciding here is slightly more narrow. A lot of the commentary about this case, even since the decision just says the court says Congress sets tariffs, not the President. That's not what this case was about. It was the background of this case. But the real question was how do we interpret what Congress actually did. The administration's argument was that Congress had given the President power to set these tariffs with that statute, the, the, the ipa, the International Emergency Economic Powers act statute. And the court read that statute and said, no, Congress didn't give you the tariff power. So it's very much of a piece with these other cases, the major questions doctrine cases and others where the court for now 15 years has been saying slow down presidents, you execute the laws, you don't make them. But when you pan back to the bigger question you raised, will there be a constitutional challenge maybe to these totally open ended statutes that presidents use to unlock new powers? I don't see that happening yet. In many ways this tariff case is the reminder that the court keeps channeling those themes into how it interprets statutes. But it hasn't been striking down the statutes or altogether. Just last year the court turned away an opportunity to strike down a very broad statute under non delegation doctrine grounds. The court uses these things to interpret statutes more narrowly, not to nullify the statute altogether.

[John Podhoretz]

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[Adam White]

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[John Podhoretz]

can we move? Because this case is so interesting and because the cross currents were so interestingly unusual, I do want to get back to the behavior of Justices Kagan and and and Jackson Justice Jackson as his now her want delivering an astonishingly banal and and pedestrian opinion. She is, she is, she is the youngest and she is she younger than than Barrett or they're around the same age anyway she's one of she's certainly the the newest justice and she has the furthest to grow she has enormous potential growth potential because I don't know that you could start from a worse base than she has in her first couple of years. Very pedestrian opinion because it does not really truly address Barrett and what they're all saying including Barrett which is sort of interesting, is we don't need to get all up in the grill of the Major questions doctrine or the, you know, where this, you know, like, get all first things constitutional common sense says the statute doesn't say tariffs. We're not doing tariffs. So goodbye and good luck. And it's interesting that Barrett, who herself is a believer in the Major Questions doctrine, was explicit in saying, I don't even know that this really engages the Major Questions doctrine simply because it doesn't even rise to the standard of the. Of the question of that which is the congressional authority and that which is the president. It's a misinterpretation of the act to say that it grants tariffs.

[Adam White]

The.

[John Podhoretz]

The words that are used in a sentence that seem to grant the President's power are 17 words apart in the sentence, and therefore, it can't be seen as such. But the liberals decided they don't like tariffs, and they decided, as I said with Gorshit's case, that they liked emergency powers when it came to rent and college loans and the EPA regulating various forms of emissions out of existence. Do they care? Like, 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. Like, they should have found for the tariffs on the grounds that they were using for the previous three cases I mentioned, and they didn't.

[Adam White]

I just want to preface this by saying last summer on this podcast, I said something not necessarily nice, but in moderate defense of Justice Jackson, and you nearly sent a drone strike after me for doing that. So I'm gonna be very careful here. John. Look, look. Yes. I think that Kagan and Jackson and Sotomayor got those other cases wrong, completely wrong. That President Biden had completely overstepped his legal powers in the climate case and all the other cases where he kept getting struck down, they were wrong. Now, the fact that they were on, they would have ruled in favor of Biden there and not Trump here. What does that tell us? I don't know. Right now, progressives are suggesting that Thomas and Alito are completely unprincipled because they stood athwart Biden, but not Trump. So, by the way, I think Alito and Thomas were right in those cases. So I'll just say Jackson's opinion kind of how I said this case, the everything case. Don't sleep on Jackson, because what she's doing at the very outset of her career, in a way very different from Kagan. It's why Kagan doesn't Join her opinion. If I remember correctly, in this tariff case, Jackson is charting out her own way of interpreting laws. She says, we're going to use legislative history. Why not use legislative history? It's useful. No one wants to use legislative history here, but I'll use legislative history. And so it seems like a very, very small point, but she's sort of laying down a marker for how she is going to continue to just fundamentally disagree with how Scalia and others started interpreting laws 40 years ago. Is it going to have a huge impact? I don't think so. But for what it's I think it's interesting that she chose this case to make this very big case to make what seems like a very small point. So she clearly is looking down the road at something else. As for Justice Kagan, who does, you know, who's been talking about presidential power now for 25 years. This year is the 25th anniversary of her her famous law review article on presidential administration. She tries to often downplay the stakes of this, say, look, well, not downplay the stakes, downplay what she's doing here, where she says we don't need the major questions doctrine or we can just interpret the law on its face. And here the law simply does not allow tariffs. But like you said, and Gorsuch is right, it's very hard to read that kind of easygoing approach to interpretation here, where she was able to read enormous powers into just as, you know, dubious statutes just four years ago. I'll leave it at that.

[John Podhoretz]

So it's interesting, if I understand you correctly, where I came in in the early 80s and the Federalist Society was started in part, like in my dorm or in another part of my dorm at the University of Chicago by Lee Lieberman or that chapter under, under underschooley as tutelage at the University of Chicago Law School, I was an undergraduate, the great conservative, the great conservatize, conservativizing impulse that started to undergird the Federalist Society. Following on the writings of in Commentary and others, as Adam has pointed out of Alexander Bickle and Robert Bork, was you got to look to what Congress meant when it passed a law. And there are and so you look to legislative history, which is what you're saying Jackson cited, because it gives us at least some understanding of why the law existed in the first place. And we can't just in 1980 or 1982, say, well, you know, now we have, now we have personal computers. So a decision made in the 19th century where there, where there weren't personal computers doesn't understand how the world works now. And we can just read anything the way we read it. Hooking things to legislative history was the beginning of the conservative revolution in jurisprudence, in many ways, was saying we need to have an anchor. The Constitution's an anchor. But where the Constitution is not totally implicated, There have got to be a way to understand laws that we're being asked to rule on based on what the members of Congress at the time thought when they passed it. And liberals hated that. They hated it. They said, it's a living concert, it's breathing. And you know, we who know those, they all, they own slaves and they were all hacks and nobody was elected to the Senate and why do we even care? And the hell with this. You're just making this up so that you can pull rabbits out of the hat to find things that you want. Over time, with the development of ideas like the major questions doctrine, conservatives have less and less been obsessed with legislative history and more and more with this question of how the powers, the separation of powers functions based in the Constitution. And you're now saying that Jackson, now the most liberal, I think probably the most liberal member of the Court, unless Sotomayor is considered more liberal, is now defaulting to legislative history as a break, possible break on this effort to reestablish this idea of legislative power as against executive power with the major questions doctrine. Am I right here, or do we need to ask our producer to edit this entire thing out?

[Adam White]

He may do that anyway, but I think you're right, John. There is at this point on the Court, what, six, seven different ways to be a textualist, right? Justice Kagan a few years ago said, we're all textualists now, which sounds great, except it reminds us that there's more and more disagreement over smaller and smaller aspects of textualism. Forty years ago, when Justice Scalia and Bork and Silberman and Judge Silberman and Justice Thomas and others, when they were creating this, it was textualism versus liberalism. So it was pretty easy to be pretty broad in how you describe textualism. Now, as we see in this case, you have a number of Justices, seven of them, who can disagree at extremely sort of fine points of detail and in the big picture over what it actually means to be a textualist. Barrett, Roberts, Kagan and Gorsuch, they're all on the same side of the outcome of this case, and they're all disagreeing over what actually it means to how you actually interpret this text. And then Kavanaugh, applying a textualist interpretation to come the other way. But Justice Jackson is doing something fundamentally different. She's sort of overturning the table altogether and saying, I'm not. I don't consider. I don't consider us to be bound by this narrow form of textualism. We should be employing tools that Justice Thomas, Justice Scalia disavowed years ago. But I don't. And this gets back to my point from this summer, that for all of my disagreements with Justice Jackson and how she reads the laws, how she reads the Constitution, disagree with her up and down. I think it's very important for conservatives to watch what she's doing, because in the same way that justice Scalia arrived 40 years ago and said, I'm just doing something different, and the left laughed at him and ignored him, but he was right. Justice Jackson is going to get downplayed, denigrated, laughed at. I think she's wrong, but I think she should be taken very seriously because what she's doing here is, is going to inform the work of any number of liberal lawyers, law students, judges, who may well, 20 years from now be applying a Jacksonian method rather than Scalia's textualism. Please don't drone strike me.

[John Podhoretz]

I'm not going to drone strike you. It's a very interesting. It's a very interesting perspective. I think you would have to acknowledge that you are not joined in this opinion by all that many people, but you are, of course, a distinguished thinker in your own right, and you should go your own way. I'm not aware that others find her approach to these things as interestingly consistent as you do.

[Adam White]

But look, John, I Hope when I'm

[John Podhoretz]

85 years old, it's 20 years from now and I'm 85 years old and I'm not in a, you know, I'm not in a mental health facility or, you know, like, having cognitive challenges that I hope I'm wrong, because I don't want it to be the case that she's this wildly influential once in a generation thinker like, like Scalia was.

[Adam White]

But I.

[John Podhoretz]

If I'm wrong and 20 years from, I will come to you and I will give you a really big cookie.

[Adam White]

That's very nice. I was wrong, John. I'm not just trying to. Iowa nice. This thing with Justice Jackson. And by the way, I don't want to give sort of too much of a spotlight to what is ultimately the most marginally relevant opinion of this entire suite of opinions. All I'm saying is that for those of us who are the lawyers and the law talking guys and the law professors, and we're all in this conversation centered around textualism. Justice Jackson's approach, I think has much more, it resonates much more among younger lawyers, law students, all of them on the left. And I wouldn't sleep on it. I wouldn't give it too much attention. Again, it's amazing that, that this is all in the end about really Chief Justice Roberts's 20 page opinion, which then gets overshadowed by 100 and what, 120, 150 pages of concurring and dissenting opinions. But again, each of the justices, it's worth asking why did the, why did the justices slow this all down for an extra two months? Each of them thought, and not just the dissent, but the concurrences thought. It's incredibly important that they make the point they made in these separate non binding opinions.

[Eliana Johnson]

Before we move off the topic, I just wanted one point of obsession to make, is that for all the hysterical talk about the Supreme Court being a rubber stamp for Trump, now we have this decision and the people who, in the most derisive of terms, rubber stamp Trump, two of the three, Thomas and Alito, were not appointed by Trump. They were appointed by George H.W. bush Thomas and by George W. Bush Alito. And two of the three justices that Trump appointed, Neil Gorsuch and Amy Coney Barrett, ruled against him on this opinion. And not only that, for all the talk of Trump as an autocrat, while he did give this unhinged press conference where he accused the justices, you know, disgracefully of being the tools of foreign powers, he has also said that he will move to impose tariffs through the lawful means that they, that Kavanaugh outlined in his opinion. So I just wanted to point that out before we move off the topic here.

[John Podhoretz]

He also said that they were an embarrassment to their families, which is an interesting, it's interesting that that's where his brain went because I think probably they're really not embarrassments to their families in any way, shape or form. And why he thought that was like a good zinger isn't, you know, requires a psychoanalyst to.

[Adam White]

Well, I think his brain went to where whatever, whatever every, every insult in every quarter and you know, out in every direction, wherever he could think of.

[John Podhoretz]

Fair enough. So, okay, here's one last Supreme Court question that for you, just raw, naked, like Eliana might have interesting thoughts about this. We all could, but so we are heading into a midterm election that it is possible the Republicans will lose the Senate in and this Then raises the prospect of the question of Mitch McConnell having established the precedent that when you're coming up to an election and you have the ability, if you are in the majority and you're of the Senate, you're the party in the majority of the Senate and you oppose the president's the party that the president holds, that you are now permitted to withhold a vote on a Supreme Court nominee until the election. So that was 400 days or something like that in the case of Merrick Garland. And we got Kavanaugh, we got Gorsuch as a result, or Kavanaugh. Who do we got? We got when Garland, when Garland fell, Gorsuch was gorgeous. Okay, so that was like more than a year. And like liberals are screaming and getting hysterical and all that. And McConnell just like, did what he does, which is he put his head down and he didn't listen. And obviously Schumer, whoever is the majority leader, if the Democrats won in November, will do exactly the same thing. If there is a Supreme Court vacancy between now and 2029, they'll just say, this has now been established. We are not going to vote on any Supreme Court nomination until the election of 2028. Which raises this question. If the politics look bad, and that looks like Republicans are going to lose, there is going to be immense pressure. I don't know. I don't know where the pressure comes from, but there'll be a lot of rhetorical pressure. Op eds tweets this, that the other thing from people on the right saying to Thomas, who is 77, and Alito, who is, I think, 76, saying, you better retire now. You got to retire now so we can get a 50 year old in, so we can get a vote before November, before the, before the Senate turns over, so that we don't have the situation that happened when Ruth Bader Ginsburg refused to retire and then we ended up with this conservative majority. So, A, do you see that happening? And B, just for the hell of it, should they decide to listen, who do you think would be up and fresh and bouncy and ready for the court for Trump to pick if, like in June, he suddenly gets these possibilities?

[Adam White]

Justice Thomas spent decades in dissent and now he's living his best life. Maybe he'll retire this summer. I doubt it. Justice Alito has never particularly liked Washington, D.C. he doesn't seem to need this job for personal fulfillment, yet he does it. And my guess is if he stays or goes, it's going to be for his own reasons and not for Trump's Political coalition. So I know there's a lot of speculation about Alito, especially tied to the release date of his forthcoming book. I don't know. I used to think maybe he'd retire this summer. Now I'm totally agnostic on it. But if there was a vacancy. If there was a vacancy. You know, last year, Time magazine did a story suggesting that the two front runners for the next seat are Judge Andrew Oldham of the Fifth Circuit, former Alito clerk, and a former Weekly Standard research assistant by the name of Judge Naomi Rao, who is. Oh, look, a former Thomas clerk. So maybe they will be the next ones, but I kind of doubt it. I kind of doubt it. I'll say. I think that. No, I'm sorry, John.

[John Podhoretz]

I'm sorry, John, if you understand the bragging rights that I would have if Naomi Rao got on the court. Yeah. Do you understand this? Do you understand that I can say that my intern is now a Supreme Court justice?

[Adam White]

Well, you better.

[John Podhoretz]

Very important to me, Adam. And your, Your. You're poo pooing it and you're creating an atmosphere, a very hostile atmosphere.

[Adam White]

No, Jon. I'm just saying, John, you need right now to recruit Todd Blanch or a male judge, Emil Bove, or somebody that Trump knows better as your research assistant, because Trump will pick somebody he trusts. But, John, the point you made earlier about there'll be this political out, you know, political pressure for Alito or Thomas to retire. I know that makes sense, but I actually don't know how that works in this context. The people most likely to be vocal jerks calling on Alito and Thomas to retire are the ones who are least likely to concede even the possibility that Trump and Republicans won't have a tidal wave of support in November. Which of Trump's friends are going to go on a PR tour in May saying Republicans are going to lose Alito and Thomas better resign? I just don't. I don't know that it'll play out that way.

[Eliana Johnson]

Well, Adam, I think that that sort of thing would be done through private outreach to the justices, as I'm sure you know. I just think my sense is the justices aren't all that receptive to people reaching out to them and saying, hey, you should take a hike, as we saw with Ruth Bader Ginsburg. And my sense hearing through the grapevine, is that they just don't follow politics and these sorts of things in the way, like they don't have the conversations that we're having. They don't follow things in the way that we do. The exception of maybe Kavanaugh, who's really a political creature. That being said, I do think Justice Thomas is committed to becoming the longest serving justice on the court as part of payback for the experience he endured. Something I've said on this podcast before which I believe would occur in 2028. So I think he's unlikely to go unless he passes away, God forbid. And Alito, who knows? I'm with you. No idea. But I will throw out some other names I have heard floated in elite legal circles. Adam, I'd love to hear your reaction. I agree with you that Trump will want somebody given his experience, as I said with Amy, Coney, Barrett and Gorsuch and having the justices he nominated rule against him again. Names that came through him, through the Federalist Society, with whom he's had a falling out. Yes, yes. So I'm gonna, I'm gonna throw out some names. Solicitor General John Sauerkraut, I've heard would be a potential candidate. He is 51 years old and as Solicitor General has argued the government's case before the court. I have heard Naomi Rao as well. She's 52 on the D.C. circuit. Another name I have heard worked in

[John Podhoretz]

the, worked in the, what do you call it? The, the legal office in the Trump White House. Yes, the council. She, she was part of the White House counsel's office in the Trump first term. So he loved her and is going to pick her. Manifesting this. Okay, go ahead.

[Eliana Johnson]

I've also heard the name of 45 year old district court judge in the Southern District of Florida, Eileen Cannon, who threw out the one of the cases against Trump by invalidating the independent counsel, saying he was not constitutionally appointed. One of the post 2020 investigations against Trump. Couple other names. David Strauss, 8th Circuit judge who is 51. Amul Tha Par. We've heard for a long time he's a bit older, 56, but he does he, he has started a substack all about his journey of health to show he's vital, very healthy. His chronological age is lower. And I've also heard oldham, who's only 47 years old. So that's my list of potentials. If Alito is to decide he's done with this. I have heard that, you know, he's seared by the experience of all the, you know, terrible press battering that is that his outspoken, wonderful wife has taken. She is, she's amazing because she hung

[John Podhoretz]

the flag outside their house.

[Eliana Johnson]

Ridiculous.

[John Podhoretz]

On the Jersey shore.

[Eliana Johnson]

That he's taken for having.

[John Podhoretz]

Yeah.

[Eliana Johnson]

For having an outspoken Fantastic wife.

[Adam White]

I'll be, I'll be quick here. I'll rattle through them really quick. Okay. Judge the par. Judge Strauss, both great judges. They'd be great justices. I'd be surprised if they got it. Judge Cannon, the trial judge who is most. Why Adam, as far as I know, neither of them know President Trump personally. And I just, I think that there will be a real premium on who he trusts personally. He dangled the Federal Reserve chairman's seat for what, 14 months. I can't imagine he's going to hand out a Supreme Court seat to somebody who, who he doesn't trust instinctually. So Thapar, great judge Stras, great judge. They'll remain great judges for years to come, just not justices. Judge Eileen Cannon, trial federal district judge down in Miami, I believe heard great things about her. I think she clerked for Judge Stephen Collatin of Iowa. So on the Iowa judge coaching tree, I give her bonus points. Okay.

[John Podhoretz]

Adam, what at what I have with Naomi Rao. Adam has with anybody from Iowa as Adam is himself an Iowan and can recite the music man from he's also Columbia born.

[Adam White]

Yeah.

[Seth Mandel]

And I also, I can't, I can't think of a district judge that more that has more own the libs value.

[Adam White]

Yes.

[Seth Mandel]

Than Eileen can.

[Adam White]

Well, that's right.

[Seth Mandel]

So for that reason alone, after Trump may.

[Adam White]

You know, but most importantly, she ruled in favor of President Trump in the cases that the Biden administration brought the documents cases. So by definition to President Trump, she is a good judge. Right. I've never bought this idea that she was sucking up to him, but I do know that she'll have name ID with President Trump and he will see her as a good judge because she ruled in his favor. And yes, she was.

[Eliana Johnson]

Can I also just add one other thing? Yes, she's pretty.

[John Podhoretz]

Yeah. So is Naomi, which I think will matter.

[Adam White]

Speaking of Naomi, who served in the White House counsel's office for Bush, but for President Trump, she was the regulatory czar. Great judge. I'll just be honest here. She's a friend of mine for a long time. I admire her immensely. She'd be a great justice. And I was thrilled to see her name in Time. Judge Andy Oldham. The other one I mentioned from that Time magazine story, fun fact. I met him in law school and after the first conversation I genuinely thought, holy smokes, this guy is going to be on the Supreme Court. I'm just a for now 25 years a fan and a friend and not at all surprised that he is in the is is supposedly in the running. But the name you started with, Eliana. John Sauer, another law school classmate of mine, not only has argued successfully for President Trump, including the presidential immunity case that so many people thought was unwinnable, he has argued, as Jack Goldsmith has detailed. He has been a great strategist as Solicitor General in deciding what issues to bring to the Supreme Court when they've been losing so many cases below. But maybe the most important fact of all, who was standing next to President Trump during his unhinged press conference after the decision? I think it was Howard Lutnick on one side, Solicitor General John Sauerkraut on the other side. If President Trump respects him enough to not just have him be the lawyer that litigates the cases, but has him on stage, and John is willing to be on stage with him. Frankly, I wish John Sauer would resign after that press conference. After everything President Trump said, I really wish he would, but I don't think he will. And I think the more likely outcome is his stock is enormously high in President Trump's ratings right now just based on loyalty. So John Sour is the one I'm now watching.

[John Podhoretz]

That was some excellent as. As Jonah Goldberg would say. What does he call it? That was some excellent rank punditry from you guys.

[Seth Mandel]

I felt like this was like, you know, heading into the, like the Pope on conclaves, you know, where you're like this, this is that. That's how I felt with this. I was very impressed. Adam, that was very good.

[John Podhoretz]

I enjoyed it immensely. Thanks. Gray Smoke, Gray Smoke. Adam White, as ever, thank you. Thank you so much. And we will be back tomorrow. For Seth, Eliana and Abe, I'm John Papa. It's Keep the Camel Burning.