No, Justice Alito, Leapfrogging Courts Doesn’t ‘Make More Sense’

The US Supreme Court considered Nov. 5 whether President Donald Trump’s tariffs are legal. The president relied on one statute, the International Emergency Economic Powers Act, and the parties submitted detailed briefs about that law. But Justice Samuel Alito asked a very telling question about a different law altogether.

He asked whether the president’s tariffs could instead be justified by Section 338 of the Tariff Act of 1930. This separate law doesn’t appear in the president’s executive order and wasn’t considered by any of the lower courts hearing the challenge to the tariffs. Instead, the argument embracing Section 338 was filed on behalf of the America First Policy Institute as an amicus curiae, or friend-of-the-court brief specifically to “fill a gap” in what had been argued by the parties in the courts below.

Referring to the amicus brief at oral argument, Justice Alito said, “I understand party presentation and all of that and not being a court of first view.” But, he continued, noting the long delay it takes for a legal challenge to wind its way through the lower courts, wouldn’t it “make more sense for us to address that, if that is a possible justification for these tariffs, for us to address that now and get it over with rather than having this continue for who knows how long while it goes through the procedures in the lower courts?”

In a word, no. And it’s important to think about why this is such a dangerous proposition completely apart from the tariff case or President Trump. There are very important values served by the slow, deliberate pace of justice that relies on the parties to frame the issues and the lower courts to address them before they get to a court of last review.

First, consider the fact that this argument came from an amicus, a third party with an agenda. When an outsider makes a claim to the court at the eleventh hour and without real adversarial testing, this carries significant risks. As I have demonstrated before, there is a good chance that factual errors (or perhaps purposely creative factual claims) will go uncaught.

Further, the parties may face consequences the amicus wasn’t in a position to think through. Moreover, amicus briefs create a crowd-sourcing dynamic to legal decision-making as opposed to the traditional model of two sides battling it out, obligated to respond to one another. In that environment with a wide-open chorus of voices to choose from, confirmation bias seems inevitable: the justices are more likely to turn to the familiar and confirming voices, not the unfamiliar and challenging ones.

Call it old-fashioned, but the adversarial system has been in place for more than two hundred years—and for good reason. As the Supreme Court itself has said: “Our adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.”

But even more important, I think, is that Justice Alito’s question exposes a growing divide between how lower court judges view their job and how some Supreme Court justices are starting to view theirs.

“Getting it over with” is not how courts work in a tiered system of judicial review. Even when a human life is at stake (in a capital case) the Supreme Court refuses to take up a legal issue that is being raised for the first time there.

A layered approach to judicial decision-making reflects what legal scholars call the “passive virtues” of courts: They take one case at a time; they move slowly; they take stock of the views from the judges who came before them. Lower court judges don’t generally think of themselves as roving commissions on what is wise and good. They are beholden to a record, to party presentation, to forfeitures and waivers, to the contours of “cases and controversies” in the words of the Constitution. This is by design. For a branch of government comprised of unelected actors who serve life tenure, process is everything. The rule of law demands it.

The Supreme Court building features decorative turtles that symbolize the slow and steady nature of justice. There is virtue in “slow and steady” decision-making—even and perhaps especially with high stakes litigation. The urge to “get it over with” at a court of last resort is inconsistent with these fundamentally conservative principles of what it means to be a court.

The case is Learning Resources, Inc. v. Trump, US, No. 24-1287, argued 11/5/25.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Allison Orr Larsen is the Taylor Reveley Research professor and Alfred Wilson & Mary I.W. Lee professor of law at William & Mary Law School.

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