Read this. Astonishingly stupid. Kavanaugh is arguing that if the law is broken (and he could have stopped the heist earlier), that the perpetrators should just be allowed to get away with it.
How the Supreme Court’s Conservatives Created the Tariff Refunds “Mess”
In May 2025, shortly after Trump unveiled his tariff regime, the Court of International Trade ruled that the IEEPA tariffs were unlawful and issued a nationwide, permanent injunction halting collections. Courts use injunctions when they determine that the government is probably acting illegally, and that the “balance of hardships” shows that immediate enforcement will cause “irreparable harm.” In cases where the conduct is widespread, courts can issue universal injunctions that apply to everyone, rather than only to the parties involved in litigation.
However, in June 2025, the Supreme Court’s conservatives issued a 6-3 decision in Trump v. CASA curtailing the ability of lower courts to issue universal injunctions. In CASA, this meant allowing the Trump administration to treat the Fourteenth Amendment’s birthright citizenship clause as if it did not exist, contrary to more than a century of precedent. In practice, the decision stripped district courts of a tool for preventing unlawful actions that inflict serious harm during the years-long process of appellate review.
After CASA, the United States Court of Appeals for the Federal Circuit agreed with the CIT that the tariffs were illegal, but it also concluded that CIT lacked authority to issue nationwide relief and remanded the case for consideration of a new remedy. The Federal Circuit lifted the injunction, and the tariffs continued. Money kept flowing into federal coffers, and only now has the Supreme Court agreed that the tariffs exceeded Trump’s authority.
In Kavanaugh’s Learning Resources dissent, the legal formalism of CASA collides with reality. In CASA, the conservative majority elevated abstract structural concerns about separation of powers, forum-shopping, and judicial power over the practical function of injunctions—again, to prevent harm until a court decides a case on the merits. In Learning Resources, faced with the practical consequences of the decision in CASA, Kavanaugh argued that those consequences justified allowing Trump to leave the tariffs in place. What he essentially says is that if the president acts illegally for long enough, courts have no choice but to let it continue.
