SCOTUS Justices Should Skip Trump’s State of the Union
His attacks on the Court, following its rejection of his tariffs, threaten the rule of law.
THE SUPREME COURT RULED on Friday that President Donald Trump’s worldwide tariffs are illegal. Tariffs are taxes imposed on, and collected from, the American people, and the Constitution gives the taxing power to Congress, not the president. Congress can delegate that power to the president, and it has done so in a host of laws. But, as Chief Justice John Roberts, writing for the six-justice majority, explained, those laws come with constraints; they don’t give the president “the extraordinary power to unilaterally impose tariffs of unlimited amount, duration, and scope.”
What’s more, the “emergency” law on which the president relied does not expressly say the president has any power—much less unlimited power—to impose tariffs. And recognizing such a power would not just pose a threat to American businesses, consumers, and the stability of markets. As my organization, Protect Democracy, explained in an amicus brief filed with the court of appeals, “the sweeping and unprecedented executive orders” at issue in the case “raise virtually all of the red flags that jurists and scholars have identified in warning about how emergency powers may be abused to undermine democracy and the rule of law.”
The Court’s decision did not break new ground. Last year, lower federal courts issued three rulings on the legality of the Trump tariffs, and all three rejected the president’s claim that he has unlimited power to impose “emergency” tariffs.
The main question now is not whether the Court’s legal conclusion is correct. It’s whether the Trump administration will respect the Court’s role in our constitutional republic and its authority as the head of a coequal branch of government.
President Trump’s statements following Friday’s ruling do not clear that low bar. His first big Truth Social post about the decision attacked the character and competence of all six of the justices who ruled against him—including two he appointed himself. He derides them as “FOOLS and ‘LAPDOGS’ for the RINOS and Radical Left Democrats,” brands them as “very unpatriotic” and “disloyal to the Constitution,” and faults them “for not having the Courage to do what is right for our Country.” If all that were not bad enough, Trump accuses the justices—without offering a shred of evidence—of being “swayed by Foreign Interests.”
That kind of rhetoric is not just crass; it does real harm and is also profoundly dangerous. As cross-partisan experts and lower court judges have been warning for some time, the administration’s relentless vilification of individual judges and justices fuels extremism and conspiratorial theorizing, and it can lead to threats of violence—or worse. And, just like the abuse hurled at the judges who rejected Trump and his allies’ sixty-plus court challenges to the 2020 election in the months leading up to the January 6th insurrection, it lays the groundwork for continued defiance of court orders or ignoring the legal rulings on which they are based. It’s not hard to see why: If the justices are subhuman “lapdogs” who are corruptly serving “foreign interests” (as Trump put it) and engaged in “lawlessness . . . plain and simple” (as Vice President JD Vance put it), why should executive branch officers follow their rulings?
We should not rest easy just because we have not yet seen a January 6th-style mob attack the Supreme Court—or because the administration has not yet taken steps to directly violate the Court’s tariff ruling. (The day after the decision, the president announced that tariffs would be going up, but would be based on purported authorities not at issue in the case decided last week.) Instead, now—before the attacks on the Court or defiance of its rulings get any worse—is the time to send a message to the president and his allies that attacks on our independent judiciary will not be countenanced.
SO WHAT TO DO? There’s no quick fix, but three immediate steps come to mind.
First, all nine justices should decline to attend the State of the Union address tonight. No law requires their attendance. Nor does any norm; it’s common for justices to skip the event, and some do so as a matter of course. In recent years, at least some justices would ordinarily be present. But the president has already shattered the norms of interbranch comity; and the most important norms would be subverted, not fortified, by pretending that his attack on the Court is acceptable and resorting to business as usual. Not attending, on the other hand, would quietly evince the Court’s institutional self-respect and dignity; and it would avoid the intolerable spectacle of the justices being subjected to abuse or used as props during a tirade directed against their colleagues.
Second, Congress should show that it will not stand by as the president attacks a coequal branch of government—particularly when that branch is vindicating a core congressional power. Both the House and the Senate should adopt resolutions condemning attacks on judges and expressing continuing support for our independent judiciary. This recommendation is less likely to become reality, as the president’s own party controls each chamber. Yet it’s not impossible to imagine a bipartisan majority of Republicans and Democrats coming together to signal that they do not want to see Trump’s attacks escalate or spill over into more troubling forms of defiance.
Finally—although this, too, may be difficult to envision actually happening—at least one high-ranking officer in the executive branch should resign to protest President Trump’s assault on the Supreme Court. Some such resignation would help shine a light on the grave and growing risk to our independent judiciary, and would help to fortify the resolve of lower-level officers and career employees.
Those initial, largely symbolic, measures will not be enough to set things right. But they would be a step in the right direction and could help alert our fellow Americans to the reality of the threat we now face. All of us must do our part to reaffirm our collective commitment to the rule of law. A great democracy hangs in the balance, and the time to act is now.
Amit Agarwal, a special counsel for Protect Democracy, was a law clerk to Justice Samuel Alito and then-Judge Brett Kavanaugh and served as solicitor general of Florida (2016–21).
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