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Supreme Court finds new way to bend over backward for Trump



Chief Justice John Roberts is continuing his wholesale destruction of the
Supreme Court’s credibility in favor of advancing President Donald Trump’s
imperial interests. This time, he’s making sure that Trump can fire Federal
Trade Commissioner Rebecca Slaughter despite a Supreme Court case that
literally says he can’t without cause.

Roberts and the rest of the court’s conservatives love making bold moves like
this, but what they don’t feel so bold about is actually owning up to their
actions. So all of the massive reshaping of the federal government by giving
ever-increasing power to Trump is happening in the shadows.

In the Slaughter case, Roberts issued an emergency stay of an order from the
U.S. District Court for the District of Columbia, which ruled that Trump could
not remove Slaughter without cause because of the 90-year-old precedent set in
Humphrey’s Executor v. United States.

The lower court had no option but to rule against Trump. Unlike the Supreme
Court, lower courts are actually bound by precedent, so until and unless the
Supreme Court explicitly overrules Humphrey, the lower courts are required to
follow its holding. But with this stay, Roberts is saying that the lower courts
are wrong in doing so.




 



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And this is where the Supreme Court conservatives are wussing out. They don’t
want to actually overrule Humphrey’s, in no small part because they would then
have to grapple with whether Trump could fire Federal Reserve Chair Jerome
Powell. And they also don’t want to be perceived as undermining the separation
of powers, so they tell themselves that these are just narrow, technical
rulings.

In their framing, they’re not ignoring the Constitution or overruling their
own precedent; all they’re doing is putting a lower court order on hold while
litigation moves forward.

But in practical terms, that means that even when lower courts try to stop
Trump’s flagrantly illegal actions, the Supreme Court will wave it away. The
conservatives love buying Trump’s argument that if he doesn’t get to do what he
wants immediately—even if there are explicit laws against it—he is irreparably
harmed. So they keep using the shadow docket to grant Trump’s wishes, allowing
him to move ahead with unconstitutional actions.

With other agencies where Trump illegally removed commissioners and board
members, the Supreme Court’s conservatives could tell themselves they weren’t
overruling Humphrey’s because that case only explicitly references the FTC, not
other agencies.

But that’s an incredibly meager distinction that ignores Humphrey’s overall
holding—that when Congress creates an independent agency intended to have
insulation from the whims of the president, he cannot fire commissioners or
board members without reason.





 



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The liberal justices have called this out in past cases, noting that the
majority was indeed overturning Humphrey’s but without the nerve to admit it or
any explanation as to why. But the issuance of the stay itself does signal that
Roberts is treating the Slaughter case as an open question in need of further
review. But it’s not an open question. The Supreme Court definitively decided
this issue on the side of FTC commissioners like Slaughter 90 years ago.

Roberts’ stay obviously screws over Slaughter, but it also screws over the
American people with further erosion of the separation of powers as Trump turns
himself into a king. And it screws over the lower courts, which do not have an
actual decision saying that Humphrey’s is no longer law. That means that, when
Trump illegally removes commissioners, they’re stuck with the impossible task
of choosing between existing precedent or divining the ultimate intentions of
the Supreme Court.

This is no way to run a country or a judiciary. If Roberts believes that the
purpose of his job is to make sure that Trump gets to do whatever he wants—laws
be damned—he should say so with his whole chest.

No more of this sneaking around in the shadows, dude.



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