Like the country itself, the justices are divided between democracy and authoritarianism

Supreme Court’s tariffs ruling reveals two political orders
Like the country itself, the justices are divided between democracy and authoritarianism

By Austin Sarat
Published February 21, 2026 9:00AM (EST)


(Salon) The American people have grown used to reading about Supreme Court cases decided by a 6-3 vote. In almost all of those rulings, the court’s six conservatives are arrayed on one side, with its three liberals on the other. But Friday’s decision striking down many of Donald Trump’s tariffs scrambled the deck, showing that at least some of the court’s conservatives are not yet willing to set fire to the Constitution.

That the president’s immediate reaction to the ruling was to call it a “disgrace” and denounce the justices who had the temerity not to fall in line behind him indicates that this country is caught between two political orders.

The first, represented by the court’s decision, is the remnant of a constitutional democracy in which rules still matter. On this side are the three liberal justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson — along with conservatives Amy Coney Barrett, Neil Gorsuch and Chief Justice John Roberts, who authored the ruling. The second is an emerging authoritarian order in which the will of a single person is all that matters, an order the three dissenters in the case — Samuel Alito, Brett Kavanaugh and Clarence Thomas — seem ready to embrace.

Don’t be taken in by any triumph of the first political order. The court’s tariff ruling, while a welcome break from its pattern of pro-Trump decisions, is but one skirmish in an existential struggle. ....................(more)

https://www.salon.com/2026/02/21/supreme-courts-tariffs-ruling-reveals-two-political-orders/