“Can the Supreme Court take a position that it will not take up an appeal in the tariffs matter? That is, can it decide not to entertain the appeal, leaving the Federal Circuit’s decision as the final adjudication?” — Gary
Hi Gary,
Yes, the Supreme Court can decline to consider the Trump administration’s forthcoming appeal. The court wields significant discretion in setting its agenda. Per the court’s internal procedure, four justices must vote to grant review. The court rejects most of the thousands of petitions it receives annually.
When the U.S. Court of Appeals for the Federal Circuit ruled against the administration Friday, it issued an order accompanying the ruling that underscores the fact that Supreme Court review isn’t automatic here. The order said the circuit ruling will take effect Oct. 14, unless there’s an appeal to the high court. If that happens — and Attorney General Pam Bondi said it will — the order said the circuit ruling won’t take effect until the justices either 1) deny review or 2) issue their own ruling after granting review. In the latter scenario, of course, the justices could reverse or otherwise alter the circuit ruling.
So if the justices deny review, then the circuit ruling stands.
But granting review wouldn’t necessarily mean they’ll reverse the circuit court. They could want to take the case due to its importance, or because they agree with the circuit court on the bottom line but for different reasons. It would hardly be surprising for the high court to put its own stamp on the nationally significant case with great implications for presidential power. When the court holds hearings in cases in which it grants review, those hearings can provide a glimpse into how the justices are thinking about the case.
The circuit judges split 7-4 in the tariffs case Friday, so that specialized tribunal didn’t consider it an open-and-shut issue. White House trade adviser Peter Navarro told Fox News that the circuit dissent provides a “road map” for the high court to rule in the administration’s favor. I should note that, even if the Supreme Court denies review, that wouldn’t end the litigation. While the appeals court affirmed the U.S. Court of International Trade’s ruling that Trump overstepped his authority, the appeals court also said the trade court needs to redo its ruling regarding the scope of relief it granted. That’s because the trade court issued a universal injunction — meaning it blocked the tariffs nationwide, rather than only for the parties who brought the lawsuit. The circuit court said further review is needed on that score due to the Supreme Court’s June ruling in the birthright citizenship case, which imposed stricter standards for universal injunctions. At the end of the day, that doesn’t mean such broad relief can’t or won’t be granted against Trump’s tariffs; rather, it means the scope of the injunction must be newly analyzed in light of that new Supreme Court ruling, which came out after the trade court’s May ruling. Finally, the question naturally arises of when we’ll know how this all gets resolved. It could be months before we find out. Though the administration has an October deadline to file its Supreme Court appeal, the justices don’t have a deadline. Their next term starts Oct. 6, and the justices grant review of new appeals on a rolling basis throughout the year, typically deciding them all by early July. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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