Supreme Court and Tariffs — Two Updates, Somewhat Related — Decision Soon, but Uncertain.

     Two recent updates. One, a recent New York Times study has concluded that the federal appeals judges nominated by Trump have overwhelmingly voted for him to overrule lower court judges. Second, the Supreme Court has not yet ruled in the pending case concerning Trump’s reciprocal tariffs, but he continues to threaten disaster, if the court does not overrule the lower courts.

     To me, the suspicion is that the Supreme Court, may well overrule the lower courts. We’ll see soon enough ………….

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“President Trump promised to fill the appeals courts with “my judges.” They have formed a nearly united phalanx to defend his agenda from legal challenges …. President Trump has found a powerful but obscure bulwark in the appeals court judges he appointed during his first term. They have voted overwhelmingly in his favor when his administration’s actions have been challenged in court in his current term.” “Trump’s ‘Superstar’ Appellate Judges Have Voted 133 to 12 in His Favor.” New York Times (1.12.26).

“Company executives, customs brokers and trade lawyers are bracing for a potential fight over obtaining perhaps $150 billion in refunds from the U.S. government for duties already paid by importers if Trump loses. However, some companies anticipate that even if the court invalidates Trump’s tariffs, Trump will not make it easy for them to get refunds. It’s not in the government’s DNA to give back money. And Trump would not want to give back money.‘“ US Supreme Court: No ruling on Trump tariffs Friday.” Reuters (Jan. 9, 2026).

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About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (Schar School of Public Policy).
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