When the Court Defies Its Own Architects
- Iain Rommel
- 2 days ago
- 5 min read
The recent Supreme Court’s ruling on President Donald Trump's tariffs reveals much about the issue of judicial polarization
On February 20, 2026, the Supreme Court of the United States handed down one of its most consequential structural rulings in decades, striking down President Trump’s use of the International Emergency Economic Powers Act to impose sweeping tariffs on virtually all-American trading partners. The 6–3 majority included Chief Justice Roberts, and crucially, two of Trump’s own appointees — Neil Gorsuch and Amy Coney Barrett. For those who study democratic institutions, the ruling raises a question that goes well beyond trade policy: what does it mean when a court behaves differently than the forces that shaped it would predict?
My recent research on Supreme Court polarization, offers a framework for understanding both the significance of this ruling and its limits. The short answer is that this ruling is real, meaningful, and should not be dismissed, but it does not fundamentally alter the trajectory of a court that has become, by measurable standards, increasingly polarized along partisan lines.
The Data on Crossings
In my resent research, I measured what I called “crossings”—instances where Supreme Court justices decide cases alongside justices appointed by presidents of the opposing party. Using ten landmark cases from the Warren and Burger Courts (1953–86) and ten from the contemporary Roberts Court, the contrast was stark. In the Warren and Burger periods, 25 out of 75 majority opinions showed crossings, and the justices crossed in 5 of 12 minority opinions. In the Roberts Court, crossings dropped to just 11 of 63 majority opinions and, most tellingly, zero of 27 dissenting opinions.
The cases I assessed where those of a moral nature, involving abortion, civil rights, religious freedom, and free speech, and not a single dissenting opinion in the Roberts era featured a justice dissenting across partisan lines. The court has not just become more conservative. It has become more sorted, with Republican-appointed justices reliably grouped on one side and Democratic-appointed justices on the other.
The tariff ruling, by contrast, would register as three crossings using my methodology—Roberts, Gorsuch, and Barrett siding with the three Democratic-appointed justices against a conservative executive. In isolation, that is precisely the kind of bipartisan aggregation my research found was disappearing. But the question is why it happened here and not in other cases, and the answer points to something important about the nature of judicial polarization itself.
Morality Cases vs. Structure Cases
My recent research deliberately selected cases involving what the political sociologists Seymour Martin Lipset and Stein Rokkan described as the most destabilizing kind of cleavage: issues of morality and human destiny. Conflicts involving abortion access, religious identity, civil rights, and sexual discrimination are areas, as Lipset and Rokkan wrote, “the conflict is no longer over specific gains or losses but over conceptions of moral right.” Thus, the friend-foe positioning intensifies. The court’s decisions on such matters does not resolve disputes so much as institutionalize them, driving both sides further from the center.
The IEEPA tariff question is categorically different. It is a structural constitutional question about whether a 1977 statute grants the executive branch unlimited authority to set tariff rates — a power the Constitution explicitly assigns to Congress. Nobody’s conception of their own moral identity is threatened by the answer. The textualist and originalist methods championed by conservative legal thinkers actually cut against executive power here: the Constitution’s framers were deliberate about keeping the taxing power out of the executive. Gorsuch and Barrett (Trump appointees) could rule against Trump without betraying their jurisprudential commitments.
This distinction matters enormously for how we interpret the polarization data. It suggests that partisan sorting in the Roberts Court is not uniform across all case types but may be concentrated specifically in morality-laden disputes. Questions pertaining to the separation of powers and constitutional matters may still produce genuine crossings. If that hypothesis is correct, the picture is more nuanced than simple partisan capture, but additionally, in some respects, more disturbing, because it means polarization is deepest precisely where it does the most social damage.
Executive-Judicial Fealty and Its Limits
My recent research extended the democratic backsliding framework developed by Stephan Haggard and Robert Kaufman to include what I termed “executive-judicial fealty”: the process by which an executive appoints ideological allies to the judiciary, who then interpret the Constitution in executive-sympathetic ways, consolidating the executive’s political base and worsening underlying societal cleavages. The tariff ruling is a partial falsification of that mechanism. Trump’s own appointees ruled against him on a major power question, and he responded with public fury by attacking Gorsuch and Barrett by name, calling the decision an embarrassment.
That reaction is itself instructive. It reveals an assumption of fealty that underpins the appointment strategy, and the resulting cost when that assumption fails. A president who expected loyalty received instead an independent legal judgment and the system, in this instance, functioned as designed. But the very fact that the ruling was surprising, that it felt anomalous, reflects how thoroughly the expectation of partisan alignment has become normalized.
There is also a legitimacy dimension worth noting. In my research, I drew on Haggard and Kaufman’s argument that democratic backsliding involves a collapse in the separation of powers as the executive gains control of other branches “through appointment of loyalists and sycophants.” The tariff ruling temporarily arrests that collapse in one domain. For those on the left side of what I termed the “Unity Divide Cleavage”—the reinforcing fault line in American politics over the very legitimacy of the regime itself—it may offer a moment of restored institutional credibility. Whether that credibility holds across subsequent terms will depend heavily on what cases the court chooses to take and how it decides them.
What This Ruling Cannot Undo
One ruling does not reverse a trend. The Roberts Court still overturned Roe v. Wade in Dobbs, still gutted the Voting Rights Act in Shelby County, still eliminated affirmative action in Students for Fair Admissions. Those decisions registered, in my crossings methodology, as zero partisan crossings in dissent, perfectly sorted along the lines of the appointing president’s party. The communities most affected by those rulings will not read the tariff decision as evidence that the court has reclaimed its institutional neutrality. And they should not be expected to.
What the tariff ruling does offer is a testable hypothesis for future research. My research acknowledged as its central limitation the inability to fully answer whether polarization varies by case type. The court’s behavior in this ruling suggests it does. A larger, stratified study—separating morality-nature cases from structural constitutional questions and “mundane” regulatory matters—could determine whether crossings have declined uniformly or specifically in the kinds of existential disputes that Lipset and Rokkan warned are most dangerous to democratic systems.
The Supreme Court remains, by the measures I used, a more polarized institution than it was during the Warren and Burger years. The appointment process has become a tool of partisan consolidation in addition to soley judicial selection. The bimodal distribution of the American electorate continues to deepen, and the cleavages that most threaten democratic stability—those bound up with identity, morality, and the perceived legitimacy of the regime itself—have not been resolved by this ruling. But the court’s willingness to check executive power when the question is structural rather than moral suggests that the institution, perhaps, is not fully captured. That is not a small thing given the times in which we live. In the current environment, it may be the most we can reasonably hope for—and a reminder that the architecture of the republic, however strained, still has capacity to hold
DISCLAIMER: All views expressed are those of the writer and do not necessarily represent that of IIPA and this platform.
Author
Iain A. Rommel is a PhD candidate at the Univeristy of Auckland in Auckland, New Zealand. His current research pertains to democratic backsliding and autocratisation, and American judicial politics and polarisation.