Donald Trump declared last week on 60 Minutes that the legal dispute over his tariffs presents “the most important subject discussed by the Supreme Court in 100 years.” (I’m more of a Brown v Board of Education proponent, but personal preferences vary.) The President then posited on social media that the tariff case “is, literally, LIFE OR DEATH for our Country.” 

Everyone’s going to live but, yes, there’s a lot at stake. And based on oral arguments in the Supreme Court on Wednesday, Trump’s tariffs (as presently constructed) are teetering on extinction.

The justices spent nearly three hours questioning Solicitor General John Sauer (representing the Trump administration), former acting Solicitor General Neal Katyal (representing a group of private businesses who oppose the tariffs), and Oregon Solicitor General Benjamin Gutman (speaking for twelve Democratic-led states). While the arguments got dense and weedy, we can identify two key takeaways.  

First, the Court’s three liberals – Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson – are locked in against Trump. This wasn’t tough to anticipate, and their questioning at oral argument confirmed that they will vote as a bloc to strike down the tariffs. The liberals appeared to relish the chance to turn the “major questions” doctrine–which holds that, where Congress intends to give the president powers of “vast economic or political consequence,” it must say so explicitly in a law (and hasn’t here)–back on the conservatives who used it recently to strike down Democratic initiatives, including Joe Biden’s student loan relief program. 

We can’t always draw conclusions from the fact that a particular justice asked a specific question; sometimes they ask rhetorically, or to expose a weakness in an opposing viewpoint. But none of the liberal justices gave any remote indication of support for the Trump administration’s position.

Kagan, for example, expressed exasperation with Trump’s habitual overuse of emergency statutes like the International Emergency Economic Powers Act (“IEEPA”), which he invoked to justify the tariffs: “[W]e’ve had cases recently which deal with the President’s emergency powers, and it turns out we’re in emergencies everything all the time about, like, half the world.” Sotomayor left little to the imagination: “I just don’t understand this argument… It’s a congressional power, not a presidential power, to tax. And you want to say tariffs are not taxes, but that’s exactly what they are.” (If the tariffs are in fact construed as taxes, they’re almost certainly unconstitutional if imposed by the Executive Branch). And Jackson minced no words: “It’s pretty clear that Congress was trying to constrain the emergency powers of the President in IEEPA.” There’s no give here. Count three votes against Trump.

Now to the second (and more important) overarching takeaway: At least three justices in the Court’s conservative middle seemed dubious about the administration’s position. 

Justice Amy Coney Barrett voiced skepticism at the scope of the tariffs: “[I]s it your contention that every country needed to be tariffed because of threats to the defense and industrial base? I mean, Spain, France?” She also noted that no prior president has used the IEEPA to impose tariffs of any kind. Chief Justice John Roberts concurred, noting that the law “had never before been used to justify tariffs. No one has argued that it does until this particular case.” Roberts (like Sotomayor) referred to the tariffs as “taxes on Americans.” And Justice Neil Gorsuch pointedly called Trump’s position “a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people’s elected representatives.” (Read that again and remember that it’s Gorsuch, not Kagan or Sotomayor.)

If you’re skeptical about the possibility of a cross-ideological majority, consider that typical party affiliations have not held in the lower trial and appeals courts. Federal judges appointed by Ronald Reagan, George H. W. Bush, and Trump himself found the tariffs unconstitutional, while two dissenting Obama appointees would have upheld the President’s actions. This case likely won’t yield the foregone six-to-three, conservative-to-liberal conclusion that we’ve seen from this Court in other major cases.  

If the Court does strike down the tariffs, major consequences follow. First, Trump’s worldwide “Liberation Day” tariffs would end. Trump doomsaid during his 60 Minutes interview that, in that event, “I think our economy will go to hell.” But financial experts and conservative politicians alike have posited, to the contrary, that a ruling rejecting the tariffs would actually bolster the economy. 

Indeed, financial markets seemingly expect a Trump administration loss. As oral arguments proceeded on Wednesday morning, the Dow Jones Industrial Average gained 290 points (about 0.6%) while the S&P 500 and the Nasdaq Composite gained 0.8% and 1.2%, respectively. The index that tracks small businesses–which have suffered acutely because of the tariffs–increased by 1.6% during the few hours of oral argument. Financial institutions are not legal experts, and markets can rise for any number of reasons, but the trend was uniform and pointed. It’s one indicator, from smart people with a lot to lose. 

Meanwhile, American importers–who, through late September, had paid a total of over $90 billion in tariffs directly to the U.S. government–might seek repayment, though that issue could remain unresolved pending further legal wrangling. (Contrary to the common suggestion by Trump and others, foreign countries do not pay tariffs – American businesses do, and they often pass those costs on to consumers.) Barrett noted that a refund process could get messy, and she’s right. But plenty of the Court’s decisions have faced difficulty in implementation. (See Brown, for example; desegregation wasn’t exactly a breeze.) The Court also might strike down the tariffs moving forward, but rule that money already paid need not be refunded, more out of convenience than legal principle. 

We should know soon(ish) how the Court rules. Typically the justices issue their most important decisions at the end of the term, in May or June. But here, the parties requested–and the Court granted–an expedited schedule,an acknowledgment of the stakes, and the need for certainty. The issues here are too momentous and complex to realistically expect a ruling in the next few weeks, but it’s likely we’ll know, one way or the other, by around the new year. Based on the justices’ questioning this week, Trump should prepare for an unwelcome result.