COMMENTARY: Gorsuch and the "major issues" doctrine — the right wing putting the brakes on Trump

The IEEPA and Tariffs: An “Extraordinary” Claim, According to Roberts

It all began with Donald Trump’s decision, upon his return to the White House, to invoke the IEEPA to impose massive tariffs on global imports—officially to combat trade deficits and drug trafficking. It was a bold claim: Trump argued that the broad language of the 1977 law, authorizing the president to “regulate imports,” gave him the power to impose tariffs of unlimited scope and duration. The affected U.S. and foreign companies challenged this interpretation in court. The case made its way all the way to the Supreme Court.

In his majority opinion on February 20, 2026, Roberts was unequivocal. The IEEPA “contains no reference to tariffs or customs duties.” The government cited no precedent in which Congress had used the word “regulate” to authorize taxation. And, remarkably, no president before Trump had ever interpreted the IEEPA as conferring this power upon him. For Roberts, this threefold absence—textual, historical, and practical—was sufficient. The Court was not going to read an implicit delegation of the power to tax—one of Congress’s most fundamental prerogatives under Article I of the Constitution—into vague language. He formulated the rule memorably: “There is no exception to the major issues doctrine in major issues.”

The 6-3 Vote and Its Internal Divisions

The decision was structured in layers. The six justices—Roberts, Gorsuch, Barrett, plus Sotomayor, Kagan, and Jackson—agreed on the central point: the IEEPA does not authorize tariffs. But their reasoning diverged. Barrett and Roberts supported the portion of the opinion invoking the major-issue doctrine, joining Gorsuch to form a three-voice plurality on this specific issue. The three liberals, led by Kagan, held that ordinary tools of textual interpretation were sufficient to decide the case—there was no need for the doctrine to tip the scales. Gorsuch, for his part, wrote a concurring opinion of more than forty pages—twice as long as the majority opinion itself—to defend the doctrine’s deepest constitutional foundations. The dissenting justices—Kavanaugh, Thomas, and Alito—argued that the doctrine should not apply to cases involving foreign policy and international trade, where presidents have always enjoyed broad discretion.

Trump’s reaction was immediate and fierce. On Truth Social, he first claimed, against all logic, that the decision actually gave him even more tariff powers. Then, at a press conference, he personally attacked the justices, including two of his own nominees. This reaction—a president disparaging his own judicial appointees because they refused to serve him—says a great deal about the Trumpian conception of justice.

Trump’s reaction struck me as an involuntary revelation. He does not understand—or does not want to understand—that judges he appoints do not belong to him. An appointment is not a purchase. It is precisely when a judge votes against his appointing authority that he proves his constitutional worth. Roberts and Gorsuch did just that. This is historic.

A 40-page dissent: an act of intellectual courage

Neil Gorsuch’s contribution to this decision deserves special attention. Appointed by Trump in 2017 to replace Antonin Scalia—the great patriarch of textualism—Gorsuch is often portrayed as one of the most rigorous intellectual heirs to the conservative tradition in American constitutional law. He devoted his concurring opinion to defending the doctrine of major questions—not as a partisan tool but as a structural bulwark against the executive branch’s encroachment on power. His most striking statement: “Once this Court interprets a vague statute as conferring a specific power on the executive, that power may become nearly impossible for Congress to reclaim.”

He then pointed out the inconsistency of his dissenting colleagues with surgical precision. Thomas, Alito, and Kavanaugh had, in previous cases, defended the “major questions” doctrine with conviction. In Biden v. Nebraska, they had voted to block the cancellation of student loans by invoking precisely this principle. In West Virginia v. EPA, they had argued that a climate crisis—described by the dissenting justices as “the most pressing environmental challenge of our time”—did not exempt the EPA from obtaining clear authorization from Congress. Gorsuch asked the question directly: How can one justify applying the doctrine in those cases and abandoning it here? The only observable difference was the name of the president in question.

Consistency as a Test of Legitimacy

Gorsuch also warned against lines of reasoning that could undermine the very legitimacy of the Court. If the major questions doctrine applies only when it is politically convenient for one side or the other, it loses all constitutional value and becomes what its critics have always said it was: an instrument of judicial power disguised as a neutral principle. Gorsuch did not want to be that kind of judge. He reminded the public that Americans fought the Revolution in part because they refused to allow the king—or even Parliament—to impose laws on them without their representation. This founding principle, enshrined in the Constitution, cannot be subject to presidential exceptions.

His move was all the more courageous given that he knew full well the reaction his stance would provoke within the Republican camp. His nomination was one of the strongest symbols of Trump’s first term. To turn against him—in a strictly legal sense—in the name of the very principles that Trump had intended him to embody was to accept certain political isolation. Gorsuch did it anyway. And Jeffrey Rosen, writing in The Atlantic, noted that this dissent could become “the Roberts Court’s most influential commentary on how to prevent the gradual accumulation of executive power.”

Gorsuch surprised me. I had viewed him as a man of the system, a product of the conservative machine. This dissent changes my assessment. There is a doctrinal consistency here that I rarely associate with this level of political exposure. Perhaps some conservative justices have even more in common with the constitutional ideal than with the politics of their own camp.

A narrower view, but the same decision

While Gorsuch offered the most expansive interpretation, Amy Coney Barrett took a more modest but equally firm stance. Appointed by Trump in October 2020, just weeks before the election, Barrett had been seen as the guarantee of an unshakable conservative majority on the Court. However, as in the case of Trump v. Biden (2020)—where she refused to intervene to overturn the election results—she once again made it clear that her loyalty lay with the law, not with the president.

In her concurring opinion on the tariff case, Barrett accepted the outcome but refused to endorse Gorsuch’s approach in its entirety. She criticized him for attacking a “straw man” and for risking a shift in the doctrine of major questions away from textual interpretation and toward the creation of judicial policy. For Barrett, the doctrine must remain a tool of interpretation—revealing the most natural meaning of the statutory text in its context—and not an autonomous substantive canon that presumes against the executive branch. Her position reflects the ongoing tension, even within judicial conservatism, between strict textualism and constitutional structuralism.

The Price of Consistency

But regardless of the methodological nuance, Barrett voted with the majority. And that vote comes at a political cost that cannot be downplayed. Trump called her “a disgrace to her family.” That statement—uttered by the man who appointed her—sums up the crisis of the moment. Barrett has been treated as a traitor for doing what every judge is supposed to do: applying the law independently of the preferences of the person who appointed her. The fact that this stance has become scandalous in certain Republican circles speaks more to the state of the party than to the state of the judiciary.

In the long run, Barrett’s position could prove to be the most strategically sound. By keeping the doctrine within strict textual boundaries, she preserves her credibility with liberal critics who view it as a partisan tool, while still allowing her to defend its legitimate applications. It’s a balancing act—but balance is precisely what an independent Court is supposed to embody.

Barrett interests me as much as Gorsuch, perhaps even more. Because she arrived under the most politically cynical circumstances imaginable—just weeks before an election, in the midst of a pandemic—and she seems to have decided not to be what some people wanted her to be. This refusal to play the assigned role deserves recognition.

A Chief Justice Who Chose the Constitution

John Roberts is no political outsider. Appointed by George W. Bush in 2005, he presided over the Court with a clear sensitivity to its institutional image. At times, he seemed to practice what his critics call “strategic minimalism”—decisions calibrated to avoid upsetting the political balance too much. In the Obamacare case (2012), he surprised observers by saving the reform through a convoluted line of reasoning. In Trump v. Anderson (2024), regarding Trump’s eligibility, he rallied an unusually broad majority behind a cautious procedural ruling.

But on February 20, 2026, Roberts took a more direct approach. His majority opinion in Learning Resources v. Trump did not seek a rhetorical loophole. He cited Article I, Section 8 of the Constitution—which grants Congress the power to levy taxes and customs duties—stated that tariffs are taxes, and concluded that Trump lacked the legal authority to act as he had. He affirmed, in closing the opinion, his allegiance to the Constitution and to the judiciary’s authority to determine what the law is. According to Salon, Roberts noted that before Trump, “no president had ever invoked the IEEPA to impose tariffs—let alone tariffs of this magnitude and scope.”

Institutional Consistency as a Legacy

What Roberts is building, decision after decision, resembles something more enduring than party politics: an institutional legacy founded on consistency. The Court is perceived—rightly or wrongly—as the last bulwark of an eroded system of checks and balances. If it bends under presidential pressure, regardless of who the president is, it ceases to be that bulwark. Roberts seems to have understood this. And while he is not always consistent—some of his past votes are open to debate—February 20, 2026, represents a line he has chosen not to cross. That matters, regardless of everything else.

The Chief Justice also took the opportunity to clarify that the “major questions” doctrine allows no exceptions for emergencies or foreign affairs. This dual rejection of the carve-outs requested by the dissenting justices reinforces the doctrine in its strictest form. It applies wherever immense executive power is claimed without a clear statutory basis—whether under a Democratic or Republican president, in times of peace or crisis.

Roberts has fascinated me for years. He is playing a long-term game with the Court’s image that few commentators bother to decipher. I don’t know if his consistency on February 20 was an act of pure principle or an institutional calculation. Perhaps both. Perhaps, in his case, it amounts to the same thing.

The Dissenting Opinion

The three dissenting justices—Thomas, Alito, and Kavanaugh—presented a two-part argument. First, they contended that history and precedent show that tariffs have always been viewed as a means of regulating imports, and that the IEEPA therefore encompasses this authority. Second, and most importantly, Kavanaugh advanced the argument for an exception regarding foreign policy and international trade: the “major issues” doctrine, he said, has “never been applied in the context of foreign policy, including foreign trade.” According to him, in this area, the courts interpret the text at face value, without applying any presumption against the president.

Kavanaugh further offered what Salon described as a “roadmap to circumvent the decision”—predicting that the decision would not permanently limit presidential tariff authority. Thomas went even further in a troubling direction: citing the historical origin of the power to impose tariffs in the British “royal prerogative,” he suggested that this power should belong to the U.S. executive branch. Austin Sarat, writing in Salon, pointed out the irony with biting wit: Thomas seemed to be suggesting that what was a prerogative of the British king should be that of the American king—a formulation that was undoubtedly not unintentional.

Doctrinal Opportunism as an Admission

What Gorsuch highlighted in his concurring opinion—and what outside observers cannot ignore—is that Thomas, Alito, and Kavanaugh had all used the “major questions” doctrine to block Biden, yet now refuse to apply it to Trump. This asymmetry is difficult to defend intellectually. Kavanaugh argues that the context differs: foreign policy is different. Perhaps. But the doctrine in West Virginia v. EPA also had far-reaching dimensions of domestic economic policy. And in Biden v. Nebraska, Roberts explicitly stated that the doctrine applies even to government benefit programs, because “among the most important powers of Congress is control of the purse.”

If control over the purse strings justifies applying the doctrine to the cancellation of $430 billion in student loans, why doesn’t it justify applying the doctrine to customs duties totaling $160 to $175 billion that have already been collected? This asymmetry does not stem from a coherent doctrinal analysis. It stems from a single variable: the president’s name. That is what Gorsuch had the courage to say. That is what Thomas, Alito, and Kavanaugh refused to hear.

I take no particular pleasure in writing that three conservative justices acted in a partisan manner. But the logic of the facts is undeniable. When the same legal doctrine is used to block Biden and defend Trump—with no justification other than foreign policy, an argument whose inconsistency Gorsuch himself has demonstrated—the conclusion is hard to avoid.

$430 billion and the required congressional clarity

To grasp the full extent of the paradox, we must look back at the case of Biden v. Nebraska, decided on June 30, 2023—exactly one year after West Virginia v. EPA. In that case, the Biden administration had invoked the HEROES Act to cancel up to $430 billion in federal student loans. Roberts, writing for the majority in a 6-3 decision, ruled that the Act’s phrasing “waiver or modify” did not provide the administration with sufficiently clear authorization for such a transformative action. The plan had an economic impact that was “staggering by any measure.” The “major questions” doctrine therefore applied. The Biden administration had not obtained explicit authorization from Congress.

Thomas, Alito, and Kavanaugh voted with this majority. Barrett wrote a concurring opinion defending the doctrine on textual grounds. Gorsuch voted with the majority. The coalition was perfect, unanimous on the conservative side. But the practical result was to block a major progressive policy—relief from colossal debt for millions of Americans—in the name of a principle that the right was unanimous in defending. At the time, no one in the Republican camp wondered whether the “major questions” doctrine might one day be used against their own president.

Institutional Memory as a Boomerang

It is precisely this reversal that Gorsuch documented with almost pedagogical meticulousness in his 2026 concurring opinion. Citing West Virginia v. EPA, Biden v. Nebraska, and the case regarding OSHA’s vaccine mandate, he pointed out that in each of these cases, the 2026 dissenters had not only voted in favor of the major issues doctrine but had explicitly defended it. Kavanaugh, in particular, had emphasized in Biden v. Nebraska that the economic and political significance of a measure was the determining criterion for applying the doctrine. Yet Trump’s tariffs represented a burden of $134 billion according to the majority opinion—a considerable sum. If the doctrine applied to $430 billion in debt forgiveness, why not to $134 billion in tariffs?

The Court’s institutional memory is its most valuable asset—and its most exploitable vulnerability. Every vote leaves a trace. Every rationale becomes part of a web of precedents. When justices change their positions without changing their principles, that memory turns into an indictment. Gorsuch chose not to forget. Paradoxically, that choice placed him in the camp of constitutional consistency alongside liberal justices with whom he otherwise disagrees on almost everything.

Biden v. Nebraska was a legitimate decision in its broad strokes. Congress had not clearly authorized a repeal on this scale—even if one can debate the effects on the millions of students who were counting on it. But if it applies to Biden, it applies to Trump. There is no Constitution with variable geometry. That is the rule of law.

The fundamental question raised by this decision

The decision of February 20, 2026, raises the question of the Supreme Court’s true autonomy with particular urgency. For decades, political scientists and legal scholars have debated whether the Court is truly independent or merely a slightly delayed reflection of the political majorities that appoint its members. The “political court” theory argues that, in the long run, the Court’s decisions never deviate sustainably from the prevailing sentiment of the political elite that comprises it. The “institutional autonomy” theory counters that the Court develops its own logic—doctrine, precedent, consistency—which enables it to resist the political pressures of the moment.

The February 20 vote leans toward the second theory, at least partially. Three of the six Republican nominees refused to follow the Republican president. But the other side of the coin is just as telling: three of those same six Republican nominees voted with Trump, at the cost of a doctrinal inconsistency that Gorsuch himself bluntly pointed out. The Court’s autonomy is therefore not absolute. It is the result of an unstable balance between the judges’ individual convictions and the pressures of the political moment.

The Roberts Court: Between Institutionalism and Politics

Over the course of his twenty years as Chief Justice, Roberts has built a Court that aims to remain above the fray—but which is only partially so. The reform of presidential immunity decided in 2024, in Trump v. United States, had largely favored Trump by granting him near-total immunity for his official acts. Some saw this decision as a troubling sign regarding the Court’s independence. The ruling on tariffs qualifies this view. Roberts can, when the constitutional issue is sufficiently clear and the text sufficiently unambiguous, vote against the president who has, in his view, benefited from his leniency in other cases.

What this reveals is a partial, selective autonomy based on thresholds: when the constitutional or statutory text is too clear to be circumvented, even justices who are politically aligned with a president can vote against him. When the text is ambiguous, ideological assumptions take precedence. The “major questions” doctrine is distinctive in that it is sufficiently formalized to make circumventing it difficult to justify without apparent inconsistency. That is why Gorsuch, Roberts, and Barrett could not abandon it without betraying themselves. And Thomas, Alito, and Kavanaugh chose to betray themselves.

Partial autonomy is worse than a lack of autonomy, in a sense. A fully politicized Court—everyone knows it and adapts to it. A partially autonomous Court creates a false sense of security: one never knows which way it will lean. February 20, 2026, is a good day for the Constitution. It is not yet a good day for institutional certainty.

A president who believes he owns his nominees

Trump’s reaction following the February 20 decision reveals a profound misunderstanding—or refusal to accept—how an independent judiciary functions. To describe his own nominees as an “embarrassment to their families” because they voted according to their legal analysis rather than his political interests is to confuse a judge with an employee. Trump has always treated the Supreme Court as a resource to be mobilized, not as an institution to be respected. His public speeches, his attacks on federal judges over the years, his rhetoric about “Obama judges” and “Clinton judges”—all of this reflects a view of the judiciary as an extension of politics.

This view is dangerous not only for American democracy but for the right itself. By putting maximum public pressure on his own nominees, Trump is undermining the institution that the conservative right has spent decades reshaping. If the Court loses its legitimacy—perceived as a partisan arm—it also loses its ability to protect future conservative gains. Roberts seems to have understood this. Trump, clearly, has not.

The American Right Confronts Its Contradictions

This moment reveals the internal contradictions of an American right deeply divided between two competing visions. On one side is constitutional conservatism—embodied by Gorsuch, Roberts, and, in her own way, Barrett—which sees the limitation of executive power and respect for the text of the Constitution as the founding values of the American conservative project. On the other, “Trumpism”—embodied by the dissenting justices Thomas, Alito, and Kavanaugh—which subordinates these values to the service of a political agenda and a particular political figure. This rift is not new, but it has never been so visible, so well-documented, or so clearly articulated by a judge of the Court itself.

The irony is complete. The American right has spent a generation building a Court to its liking—carefully calculated nominations, mobilized senators, costly political battles—only to end up in a situation where its own most intellectually rigorous judges refuse to serve as political tools. The system worked, but not as planned. The machine for appointing conservative judges has also produced constitutional judges.

I find some hope in this paradox. The law is a culture, not just an outcome. When we appoint people like Gorsuch thinking they’ll simply do the partisan work, we forget that they’ve also spent decades developing a vision of the law that has its own logic. That logic can turn against us. That’s what happened.

The Defining Moment of June 2022

To understand the divide of 2026, we must look back to West Virginia v. EPA, decided in June 2022. This case formally established the “major issues” doctrine as a distinct constitutional principle. The Court had struck down the Obama-Biden plan to reform the U.S. power grid—known as the Clean Power Plan—finding that the EPA had not received sufficiently clear authorization from Congress to transform the national energy mix. Roberts wrote the majority opinion. Gorsuch provided an expansive concurring opinion on the separation of powers. Thomas, Alito, and Kavanaugh voted with them. The liberals, led by Kagan, denounced the doctrine as a judicial “invention.”

By 2022, the doctrine had become a victory for the right. It allowed conservative justices to block major regulatory policies of the administrative state—on the environment, health care, and the labor market—by demanding legislative precision that the polarized Congress of the 2010s and 2020s was rarely able to provide. In practice, the doctrine had a conservative effect: it made it more difficult to expand the federal government’s role in new areas. The right, therefore, embraced it enthusiastically.

When the Doctrine Exceeds Its Intended Purpose

But every doctrine has consequences that go beyond its original intent. The “major questions” doctrine, as articulated in West Virginia v. EPA and Biden v. Nebraska, does not discriminate between presidents. It requires congressional clarity whenever a claim to executive power is both vast and unprecedented—regardless of the political affiliation of the one making the claim. Trump made exactly that claim: tariffs of unlimited scope, for an indefinite duration, based on a vague emergency law. It was the perfect textbook case for applying the doctrine. Refusing to apply it would have required either abandoning the doctrine or inventing an ad hoc exception. Kavanaugh chose the latter path. Gorsuch refused.

The February 20, 2026, decision thus confirms that the “major questions” doctrine, if applied consistently, is a check on executive power in general—not just on Democratic executive power. And that is precisely why it has caused such a rift: the right liked the doctrine when it blocked Biden. It no longer likes it when it blocks Trump. This reveals a structural hypocrisy that only consistency can expose.

I have often said that American constitutional law is a battleground between principles and interests. West Virginia v. EPA was a victory for conservative interests disguised as principles. Learning Resources v. Trump is the same doctrine applied in reverse. The difference is that this time, some judges chose principle over interest. That is rare. It is precious.

What the Decision Means for Europe and Its Allies

The February 20, 2026, ruling does not concern only the United States. It has direct implications for all Western democracies that have suffered the consequences of Trump’s tariffs. European allies, Asian partners, and emerging economies integrated into global value chains—all have seen their exports to the U.S. market suddenly and massively taxed. The Court’s decision not only imposes an internal limit on U.S. presidential power but also sends a signal to the rest of the world: U.S. institutions can still function as a check on executive power, even under a presidency that claims virtually unlimited authority.

For the West, this has considerable symbolic and practical value. U.S. leadership rests on institutional credibility—the conviction that the United States is governed by rules, not by the whim of a single man. Every decision that confirms this conviction strengthens confidence in alliances. Every decision that contradicts it erodes that confidence. On February 20, 2026, the Supreme Court helped restore some of that credibility, even though a single decision cannot undo the damage caused by years of unilateralist rhetoric and chaotic tariff policy.

Trump, a necessary evil, remains an institutional problem

This analysis does not amount to absolving Trump of his attacks on institutions. His behavior toward the Court—public insults against his own nominees, baseless accusations of foreign influence on the justices, and a delusional reinterpretation of the ruling as a victory on Truth Social—confirms that his relationship with constitutional democracy is deeply conflicted. The West may need American firmness in the face of Russia, China, Iran, and North Korea. It cannot afford a partner whose president treats his own institutions as obstacles to be overcome.

This is the central paradox of the Trump era for the West: U.S. military and economic power remains indispensable to collective security. But a president who undermines internal checks and balances ultimately weakens the credibility and sustainability of that power. The resistance shown by Gorsuch, Roberts, and Barrett is therefore, in this broader context, good news for the Atlantic Alliance as much as it is for the U.S. Constitution.

I often think about what Europeans, Ukrainians, and Japanese people are thinking when they look at the United States right now. They need a strong and predictable partner. Instead, they have an unpredictable president tempered by a Court that, at times, stands its ground. It’s not much. But sometimes it’s enough to get through the night.

A Precedent for Democracies in Turmoil

Beyond the United States, the Learning Resources v. Trump decision offers a lesson for all democracies facing the temptation of authoritarianism. It demonstrates that sufficiently formalized institutions, equipped with sufficiently precise doctrines, can resist direct political pressure from a strong executive branch. The “major issues” doctrine is, in this sense, a mechanism for constitutional checks and balances: it imposes a level of clarity that populist majorities have always struggled to achieve, because populist majorities prefer ambiguity, which gives them free rein. Demanding legal clarity means demanding public debate, parliamentary deliberation, and a conscious choice. This is the antithesis of governing by decree.

For countries like Poland or Hungary, where populist executives have gradually eroded judicial independence, the U.S. decision serves as a reminder of what is at stake. This is not merely a matter of technical doctrine. It is the question of whether a court can still say no to the ruling power without suffering existential consequences. In the United States, Gorsuch, Roberts, and Barrett said no. They are still in office. That is a luxury their counterparts in some Central European countries no longer have.

Doctrine as a bulwark, not a weapon

The ultimate lesson is this: a constitutional doctrine derives its value solely from the consistency of its application. Used selectively, it is merely a partisan tool. Applied universally, it becomes a bulwark. The doctrine in Major Issues, on February 20, 2026, served as a bulwark. Three conservative justices chose consistency over partisan loyalty. Three others chose partisanship over consistency. And it is in this divide—in this internal rift within the American right—that we can gauge the true health of a constitutional democracy: not perfect, not immune, but still capable of producing individuals who choose the text over the leader.

It is fragile. It is insufficient. Yet it is, for now, the most precious thing in the American system. And in a world where the alternatives to liberal democracy—Putin’s Russia, Xi’s China, the mullahs’ Iran—are institutional nightmares, preserving this fragile remnant of constitutional consistency is not a luxury. It is a strategic necessity.

I’ll conclude this commentary with an uncomfortable conviction: the U.S. Supreme Court, in its current state, is both the problem and the solution. It was created by a political machine. At times, it resists that very same machine. This paradox won’t be resolved anytime soon. But it does produce, at least on that particular day, something that resembles the rule of law.

What February 20, 2026, Proved

The Learning Resources v. Trump decision proved three things. First, that the “major issues” doctrine is a real doctrine, with an internal logic strong enough to bind at least some of those who established it. Second, that the U.S. Supreme Court is not monolithically subject to the political agenda of the president who appointed the majority of its members—it is marked by doctrinal divisions and individual convictions that maintain a degree of unpredictability. Third, that Trump treats the judiciary as a political resource, not as an institution, and that this view is incompatible with the constitutional system he claims to lead.

These three observations do not solve anything. They do, however, set the framework for a complex reality that neither liberal enthusiasm nor conservative cynicism adequately captures. The Court is neither the savior of democracy nor its executioner. It is an imperfect, partially autonomous institutional actor whose decisions depend as much on the principles of its members as on their blind spots. On February 20, 2026, the blind spots of Gorsuch, Roberts, and Barrett happened to align with the Constitution. This is not always the case. On that day, it was.

Toward a Post-Trump Right: The Open Question

The divide exposed in Learning Resources v. Trump also raises the question of the future of American judicial conservatism. Over the past decade, Trumpism has absorbed a large part of the political right. But within the Court, some conservative justices have maintained a vision of the law that predates and transcends the Trump era. Gorsuch is now the most visible figure of this resilient constitutional conservatism. The question is whether this resistance is a vanishing relic or the seed of a resurgent right capable of distinguishing between defending institutions and defending the interests of one man. History will tell whether February 20, 2026, was an exception or the beginning of a trend. For now, it was already a significant development.

By Maxime Marquette, columnist