In the tax case, the Supreme Court justices argued for treating Trump and Biden differently

WASHINGTON — Conservative Justice Neil Gorsuch did not applaud his colleagues on the Supreme Court for being inconsistent in reaching broad statements of presidential power made by Joe Biden and Donald Trump.

Gorsuch was part of the 6-3 majority that struck down Trump’s tax majority on Friday, but he wrote a separate 46-page opinion that criticized several of his fellow justices for their handling of the case.

His colleagues were effectively using the Supreme Court’s floor differently under Trump than they did under Biden, he argued, writing: “It’s an interesting turn of events.”

His research focuses on a concept known as the “great questions doctrine,” which proponents say bars sweeping presidential action that is not authorized by Congress. The conservative-majority court adopted the doctrine while Biden was in office to strike down broad programs, such as his effort to forgive student loan debt.

But in ruling against Trump on the tariffs on Friday, most of them were divided. Gorsuch, Justice Amy Coney Barrett and Chief Justice John Roberts were in the majority, finding in part that Trump’s bills need to pass Congress. Three others, Justices Clarence Thomas, Brett Kavanaugh and Samuel Alito, dissented.

“It shows you how much disagreement there is in the Supreme Court right now,” said Robin Effron, a professor at Fordham University School of Law.

Roberts’ 21-page opinion read as if he hoped to attract nine votes, he added, but instead it was a “colossal internal failure.”

Even some of the justices who agreed with the outcome did not sign the part of Roberts’ opinion that sought to adopt the doctrine of grand questions in reducing Trump’s tariffs, raising questions about how it will be applied in future cases.

While the three liberals on the court, who supported Biden and criticized the doctrine of big questions in previous decisions, most of them opposed Trump, they did not accept this doctrine again.

Gorsuch, who has wholeheartedly supported the doctrine of big questions, pointed out his colleagues who are flailing about the issue from his point of view.

“Past critics of the grand questions doctrine do not object to its application in this case,” he said, referring to the liberal justices.

“Still some who have joined the great question decisions of the past are opposed to today’s application of the doctrine,” he added, referring to the dissenters.

Thomas, Kavanaugh, Barrett and liberal Justice Elena Kagan all felt the need to respond to Gorsuch with their opinions (which may be one reason why the court is taking months to decide the case).

Kagan, for example, backed away from the idea that he was tacitly supporting big questions theory, despite his earlier criticism.

“Given how strong his apparent desire to reform people is, I almost regret telling him I’m not,” Kagan said in a footnote directed at Gorsuch.

Jonathan Adler, a professor at William & Mary Law School, said Gorsuch’s criticism of Kagan was justified, saying it was “difficult to justify” his opinion on Friday with his past votes.

In one 2022 case in which the court ruled against Biden’s efforts to address climate change, Kagan wrote that the big questions doctrine seemed to “magically appear” when it suited a conservative majority.

But Ilya Somin, a professor at George Mason University’s law school who joined the legal challenge to the tax, said those who oppose it are guilty of contradicting themselves. In his opinion, Kavanaugh argued in part that the great questions doctrine does not apply to money because of considerations of externalities.

“It seems that they want to exclude this exception from the big questions of taxes even though it cannot be justified,” said Somin.

For Adler, the big picture is that whatever legal path the court took, it ruled against Trump in a major case despite many on the left worrying that it wouldn’t happen.

“Whether or not we view this as a grand questions doctrine, it’s clear that the court thinks it’s important to regulate the limits of the powers that Congress has given to the executive branch,” he added. “There were a lot of people who didn’t think that would happen in the cases involving the Trump administration.”