When The Courts Get in the Way - 6/2/25

This whole separation of powers thing can be extremely annoying—especially if you are a politician in a hurry. As of the beginning of May, the Trump Administration had faced at least 328 lawsuits over the president’s aggressive use of executive power. Bloomberg (Lean Left bias) has reported that judges issued more than 200 orders in 128 cases to stop administration actions while allowing challenged policies to proceed in 43 cases. In the last month, after recent unfavorable decisions on immigration, higher education, DOGE, law firms, and trade, the pace of Donald Trump’s judicial defeats has accelerated even further.

Last week’s unanimous ruling by the US Court of International Trade that most of Trump’s tariffs were not permissible under current law may have been most damaging to his agenda, a decision that was quickly seconded by a New York federal appeals court. That’s when simmering frustration from Trump and his advisors erupted into a full-scale outburst. White House spokespersons escalated weeks of criticism against “unelected judges,” highlighted by aide Stephen Miller’s references to a “judicial coup” and “judicial tyranny.”

Trump himself attacked conservative icon Leonard Leo, whose Federalist Society has advised Republican presidents for decades on the appointment of rightward-leaning judges. Presumably because several of Trump’s own judicial nominees have ruled against him on several of the cases regarding the administration’s conduct (including the tariff decision), Trump blamed Leo for recommending judges who were not sufficiently loyal and dismissed the activist as a “real scumbag.”

But whether Trump decides to listen or not, it appears that the courts’ ruling against his tariffs may be providing him with an escape hatch that would allow the president to avoid an increasingly challenging political predicament that his trade agenda has created. Trump’s tariffs are wildly unpopular with the American people (recent polling shows almost 2-1 opposition to his proposals), and Wall Street, small business owners, and consumers have all voiced their unhappiness. The discomfort has also been evident among a growing number of Republican members of Congress, who are engaging in an increasingly imaginative series of verbal gymnastics to avoid direct criticism of Trump or his trade agenda.

Trump’s commitment to tariffs has also infected voter opinion of his broader economic agenda. In the past, Trump’s poll numbers on economic policy have always remained relatively high, even when how overall approval ratings sunk. But his trade wars have dramatically altered that equation: economic issues are now among the least popular aspect of his policy agenda.

But the courts have provided Trump with a gold-plated excuse. Until the judges issued their rulings, Trump would have had a very difficult time explaining to his supporters that he was backing away from one of his signature policy goals. But now, he has been given an ideal scapegoat. By ratcheting up his already-familiar complaints about “activist judges,” the president could now argue that while he is still philosophically committed to his nationalist economic agenda, he has been temporarily prevented from moving forward. Then the tariffs could recede to atypically high but less soaring levels, removing a daunting political obstacle from his path, and then move forward on other fronts.

Since the courts’ rulings, Trump has only intensified his public comments on trade-related issues. So there’s little evidence that he intends to take advantage of the inviting off-ramp he has been given. But ideological consistency has never been a hallmark trait of this president (his suspicion of international economic engagement has been one of the few issues on which his thinking has not changed over several decades in the public square). Which means it could be very tempting to move away from this fight, even while still being able to brag that tariffs are still at historically high levels.  

All that said, it’s still unlikely that Trump changes course. He became enraged when a reporter asked him about the tariff-driven TACO acronym (“Trump Always Chickens Out”) that is currently circulating on Wall Street. So this could be an especially inopportune time for him to consider changing course, especially in this issue area. 

Politicians of both parties invariably rage against judges who get in their way. (Democrats were just as unhappy when Joe Biden’s executive orders on student loan forgiveness, immigration policy, and vaccine mandates were struck down.) Our nation’s founders recognized the benefits of an inefficient democracy that prevents any branch of government from becoming too dominant. But the concept is always more popular in the abstract—or when your party is in the majority.