On February 20, the Supreme Court ruled 6-3 against President Trump’s slate of tariffs that were enacted pursuant to the International Emergency Economic Powers Act (IEEPA). The decision cut across partisan lines, with Chief Justice Roberts and Justices Gorsuch and Barrett aligning with Justices Kagan, Sotomayor, and Jackson over their dissenting colleagues, Justices Thomas, Alito, and Kavanaugh. The outcome was immediately met with apoplectic reactions from administration supporters and barely contained glee from its critics. Republicans might have appointed a supermajority of the Court’s justices, but those justices will not simply rubber-stamp the president’s agenda.

This ruling represents something of a legal watershed. It is hard to envision a sharper divergence between the priorities of the current administration—and the broader New Right—and the mainstream conservative legal movement, which has shaped American jurisprudence for decades and produced the overwhelming majority of top-flight conservative jurists. The New Right has made a case for using executive power for the common good, a means of instantiating a wide-ranging policy agenda. Tariffs are a key component of that. But meanwhile, the dominant culture of the conservative legal movement remains deeply skeptical of executive branch authority and celebrates decisions that cripple administrative power.

Here one finds a genuine jurisprudential misalignment analogous to the Bostock decision, in which ostensibly conservative justices read prohibitions on sexual orientation and gender identity discrimination into a decades-old federal statute. When the conservative legal movement and those representing electoral conservatism operate at cross-purposes, frustration naturally follows. Nihilism is a perpetual temptation: critics of the IEEPA ruling may be tempted to engage in wholesale attacks on the judiciary, including the impeachment of jurists. But this is not a viable solution, nor a particularly stable or inspiring one.

Somehow, a new philosophical equilibrium must be reached between the conservative legal movement and the project of electoral conservatism.

Major Problems

Casual Supreme Court observers are likely unfamiliar with the concept of canons of interpretation, despite their centrality in contemporary debates. In the simplest terms, these are the basic rules governing how legal texts are read. For instance, they help explain how an adjective modifies, or does not modify, a subsequent series of nouns.

But interpretive canons range well beyond the merely grammatical. Judges—including conservative judges—also recognize a handful of substantive canons that, in essence, work as thumbs on the interpretive scale. Some of these substantive canons are relatively familiar like the rule of lenity, which construes ambiguities in a criminal statute in favor of the defendant. Others are more obscure like the Indian canon, which favors interpreting otherwise-ambiguous statutes in ways amenable to Native American tribes. These substantive canons are justified in a variety of ways, including the simple fact of longstanding practice.

The major questions doctrine is one such substantive canon, though it is comparatively new. It operates as a sort of working presumption in which judges will not infer that Congress meant to cede vast swaths of policymaking discretion to executive branch administrative agencies. It was formally articulated in the context of a so-called conservative victory, the 2022 case of West Virginia v. EPA, which functionally invalidated the Obama Administration’s Clean Power Plan. At the time, this was received as a great triumph for conservative jurisprudence. The Court, the argument ran, had finally struck a mortal blow against the administrative state, the rule of unelected bureaucrats over more and more domains of American life.

But enshrining the major questions doctrine has a sort of monkey’s paw effect: the same substantive canon that handicaps progressive agency policymaking will similarly handicap nimble conservative governance. Live by the major questions doctrine, die by the major questions doctrine. Administrative law scholar Adrian Vermeule was one of the few to make this point at the time, denouncing the West Virginia v. EPA decision as “grimly hilarious.”

In Vermeule’s telling, “[E]very last methodological tenet professed by the [conservative legal] movement will be downplayed, qualified or abandoned when the chance arises to limit the regulatory authority of the federal agencies, especially in environmental matters.” Vermeule had a point. Substantive canons are relatively hard to justify on orthodox textualist grounds—that is, the idea that judicial interpretation should be limited to the text passed by a legislature and signed by an executive. They occupy a somewhat uncertain place in conservative legal thought, so much so that Justice Amy Coney Barrett felt the need to discuss them at length in her recent memoir.

None of this is to suggest that the major questions doctrine wasn’t formulated for good reason. The administrative state is a meaningful governance problem, because it is a deviation from the Founders’ original design. But the relevant question today is whether the current approach adopted by the Court—a substantive canon that serves as a powerful weapon by which judges can simply knock down executive branch actions they deem too expansive—is the best means of addressing that challenge.

There are other paths available. But they may require a change of direction.

Why Make the Courts Decide?

While the conservative legal movement has long appealed to neutral methodological principles like originalism, the philosophy that constitutional provisions ought to be understood according to their original public meaning and its analogue, textualism, it nevertheless began as a particular sort of political project. Movements, after all, do not arise out of a vacuum.

Specifically, the modern conservative legal movement originated as a reaction to the perceived excesses of the Warren and Burger Courts, which had rapidly expanded vast swaths of constitutional doctrine—identifying rights to welfare benefits, enhancing protections for criminal suspects, discovering a “right to privacy” running from contraception to abortion, and promoting a broad understanding of the First Amendment that blurred the line between speech and conduct. Early conservative legal movement materials are replete with discussions of the need to resist judicial supremacy and re-empower the democratically elected branches of government. And this priority would go on to be neatly codified in the Federalist Society’s famous formulation of the judicial mission: saying what the law is, not what it should be. In the years that followed, this agenda proved to be astonishingly successful, leading to a string of judicial victories and the mainstreaming of originalist jurisprudence.

But inevitably, times and circumstances change. As Jesse Merriam and others have rightly argued, today’s conservative legal movement largely lacks any agreed-upon sense of its political mission. By “political mission” I do not mean a specific partisan agenda; rather, I mean the goal of solving a perceived problem occurring within constitutional governance as such. If the problem confronting a prior generation of legal conservatives was something like judicial supremacy or policymaking from the bench, I might suggest that a more contemporary governance predicament looks something like this: a president, acting within broad but nonetheless colorable delegated authority, cannot meaningfully effectuate policy change once elected to office.

When administrations turn over, voters quite reasonably expect a change in policy direction. Ideally, this would be accompanied by robust legislative action. The dilemma today is what happens when Congress fails to make policy at a sufficiently granular level of detail and inappropriately delegates authority to the executive branch.

Fortunately, there is more than one way to address this dilemma.

Thanks to the major questions doctrine, the judiciary is in the position of policing the issue. That is to say, if Congress has ostensibly abdicated its policymaking responsibilities, then judges ought to correct the issue. They do so by tying the executive’s hands and essentially kicking the can back into Congress’s court. But one can share the basic underlying conviction here—that Congress acts inappropriately when it delegates too much authority to the executive branch—and simultaneously hold that the appropriate remedy for this failure lies in the legislative branch, not the judiciary.

If Congress is delegating too much authority to the executive branch, then the proper answer is for Americans to vote for legislators who will resist that temptation and assert Congress’s traditional policymaking powers. Courts need not interpose themselves to determine—and on undeniably murky methodological grounds—whether a policy question is sufficiently major so as to counsel against delegation.

All of this amounts to the argument that the major questions doctrine in its current form is essentially antidemocratic. And ironically enough, that is the very concern that galvanized the earliest legal conservatives.

The Next Legal Conservatism

Over the years, a key reason for the conservative legal movement’s success has lain in its ability to appeal to relatively neutral principles. Though no methodology is ever truly neutral—originalism, for instance, embeds a normative commitment to the authority of the Founders and a bias against rapid change—legal conservatism has nevertheless offered a far more stable foundation than anything on offer from the Left.

Attempts to construct philosophical alternatives to originalism inevitably tend to deteriorate into ad hoc pragmatisms indistinguishable from the legislative function. Much the same can be said about ideological challengers from the Right. Vermeule’s criticism of the major questions doctrine was spot-on, but his own alternative—a jurisprudence of “common good constitutionalism”—struggles from similar indeterminacy. In a complex and highly interconnected modern society, jurisprudential predictability is not a frivolous concern.

In a parallel vein, threatening to impeach judges who render adverse rulings will deter talented attorneys from accepting judicial appointments, many of which require significant financial and personal sacrifices. It will also result in case law lacking internal cohesion sufficient to persist across administrations—trading long-term influence for short-term wins. Originalism won precisely because it appealed to enduring principles rather than partisan exigencies; progressive efforts to emulate the Federalist Society project have consistently foundered because they have failed to articulate a compelling rival philosophy.

None of this means that the future is hopeless. Movements can and do change their emphases over time. And to that end, the question of presidential authority and democratic responsiveness might serve as orienting principles for a future-minded conservative legal movement, in much the same way that the specter of judicial supremacy once did. One can be a zealous critic of government-by-bureaucrat while simultaneously holding that the appropriate response to improper congressional delegation is the electoral process, not judicial fiat.

Such a shift will come at a price. After all, the major questions doctrine is a very convenient bludgeon to wield against a hostile administration. But forging a durable consensus—and winning over the long haul—requires a legal philosophy that goes beyond tit-for-tat political escalation. Originalism’s successes rest on that foundation. So too will the legal victories of the future.