A great way to get lost in USSC (US Supreme Court) commentary is to argue endlessly about whether the six Republican justices are being consistent textualists, principled originalists, or cautious institutionalists. That gives them too much credit. Based on their track record, a more realistic description is that their opinions are primarily propaganda. The opinions are designed to provide elite cover, manage internal USSC politics, and preserve plausible deniability while advancing MAGA’s corrupt authoritarian, oligarchic, and Christian nationalist theocratic agenda.
That is why the Court’s splintered treatment of the major questions doctrine (MQD) in Learning Resources, Inc. v. Trump matters. The case was about whether the International Emergency Economic Powers Act authorized Trump’s sweeping tariffs. The court said no. But the opinion also exposed something broader and more revealing. Even inside the authoritarian MAGA bloc, there is no stable, coherent account of what the MQD actually is.
The major questions doctrine is a new USSC rule that says agencies need especially clear authorization from Congress before taking actions on issues of “vast economic and political significance”. The court has used that to strike down major regulations by simply saying that the underlying statute is too vague for such major regulatory decisions. And simple as that, an federal agency is mostly gutted. Protections for consumers, workers, citizens and the public interest get stripped away, leaving the deprotected open for special interests to freely exploit.
On paper, the splintering looks like ordinary disagreement among the MAGA judges. But in reality, it is authoritarian legal performance. It’s theater. Law experts note that Learning Resources produced multiple distinct versions of the MQD. Roberts, Gorsuch, Barrett, and Kavanaugh gave a materially different accounts of when it applies and what work it is supposed to do. That is not a principled legal doctrine. It is what happens when doctrine functions as a flexible partisan tool instead of a binding rule.
The key point is not that one should trust any of these justices to be speaking honestly. Quite the opposite. The MAGA bloc is authoritarian, shamelessly outcome-driven, and unbound by rational consistency. Its opinions should not be read as sincere explanations of legal principle. They are partisan propaganda pieces calibrated for specific target audiences.
One opinion gives lower courts and elite lawyers citations and jargon they can repeat with a straight face. Another lets a justice preserve a preferred personal brand—textualist, originalist, minimalist, institutionalist—while still joining an outcome that serves the same partisan agenda. Different paths lead to the same authoritarian destination.
That explains why the judge’s splintering should not reassure anyone of good faith or principled reasoning. It is tempting to look at fractured concurrences and believe there are serious internal legal principles at work. But the fragmentation easily and effectively serves the authoritarian agenda. It provides cover for MAGA elites by allowing legal commentators and the public to talk about complex doctrinal disagreement instead of wealth and power politics. In other words, fragmentation is a means deflection from MAGA authoritarianism.
It manages the coalition by letting each justice maintain a separate identity and audience while staying aligned on the larger goals of gutting the administrative state and growing and preserving authoritarian power. It also preserves plausible deniability. Nakedly political outcomes are masked by enough technical fog that most non-experts are led to believe they are watching principled hard law disagreements instead of than strategic manipulation.
The MQD is a particularly good example because it was unstable right from the get-go. Even its defenders acknowledge that the “doctrine” is new and contested. Critics have reasonably argued that it operates as a judge-empowering rule that can be switched on or off depending on the Court’s appetite for blocking regulation. From West Virginia v. EPA to Biden v. Nebraska to Learning Resources, the MQD has been used not as a neutral principle with clear boundaries. It is used as a flexible weapon against disfavored exercises of power that serve democracy, honest government and the public interest.
The lesson here is pretty simple. Don’t ask whether the six MAGA judges are really textualists or really disagreeing in good faith. That keeps the debate trapped inside MAGA mythology. The real question asks what function does this opinion, or this split, serve in the larger project of legitimizing MAGA judges, coalition maintenance, plausible deniability, and the transfer of wealth and power from us to authoritarian elites. In the current Court, that is usually the shortest path to understanding what is actually going on.
Info sources:
The Degradation of American Democracy – And the Court
Tallying the Votes from Learning Resources, the Major Questions Doctrine Remains Relatively Confined
Special Analysis: Major Questions Remain About the Major Questions Doctrine
What critics get wrong — and right — about the Supreme Court’s new ‘major questions doctrine’
Getting Right What’s Wrong with the Major Questions Doctrine
The Major Questions Doctrine: Origins, Development, and the Road Ahead After Learning Resources
LEARNING RESOURCES, INC., ET AL. v. TRUMP
No comments:
Post a Comment