On Monday, the Supreme Court’s six conservatives rode into the breach once again to ensure that Donald Trump never has to follow the law. This time they disregarded both long-standing precedent and judicial procedure to give the president exactly what he wants. Specifically they issued an order blessing Trump’s illegal firing of Federal Trade Commissioner Rebecca Slaughter back in March of 2025.
Although not especially surprising, the ruling was shocking on multiple valances. First, the court stayed a district court injunction that correctly applied the law as written, leaving Trump free to break it. Second, it granted certiorari before judgment— something not even Trump had asked for! — bypassing the US Court of Appeals for the DC Circuit entirely. This is presumably to avoid those pesky appellate court judges putting out yet another opinion highlighting how completely Slaughter’s termination violates both law and precedent. Third, the justices set an expedited briefing schedule — yet another gift Trump hadn’t asked for! — allowing them to get busy rewriting the law in time to hand their beloved septuagenarian scofflaw an early Christmas present. And the Court’s conservatives did all of these things on the shadow docket, with no explanation whatsoever.
Predictably, the three real justices left on the Supreme Court joined a furious dissent penned by Justice Elena Kagan decrying the “latest in a series” of indefensible shadow docket rulings to overturning longstanding precedents to benefit Donald Trump.
Like lambs to the …
In 2024, the Senate confirmed Rebecca Slaughter to a second five-year term on the Federal Trade Commission. This should have ensured her job security until 2029. When it passed the Federal Trade Act, Congress enacted statutory protections for FTC commissioners under 15 U.S.C. § 41, which bars the president from terminating them except in case of “inefficiency, neglect of duty, or malfeasance in office.” And 90 years ago, the Supreme Court explicitly blessed § 41 in a case called Humphrey’s Executor v. US.
In Humphrey’s Executor, the Court ruled that it was illegal for President Roosevelt to dismiss Humphrey (who was by then dead) without cause. The justices unanimously held that the FTC “cannot in any proper sense be characterized as an arm or an eye of the executive,” and that it “must be free from executive control.” As a result, the justices found it “plain under the Constitution that illimitable power of removal is not possessed by the President,” and therefore Congress has the Constitutional authority to protect executive branch officers from being fired without cause so that they may exercise their legal “duties independently of executive control.”
And so it was until 2020, when Trump fired the head of the Consumer Financial Protection Bureau, who was protected under similar statutory language. In Seila Law v. Consumer Financial Protection Bureau, an opinion written by Chief Justice Roberts, the Court allowed Trump to terminate the single CFPB director, but explicitly protected members of multi-member boards from arbitrary termination. The Court’s conservatives insisted they were not overturning Humphrey’s Executor — they were simply discovering a secret exception that went unnoticed for nine decades.
But the rightmost wing laid down a marker, strongly suggesting that they’d overturn the case entirely if and when another Republican got into the White House.
“The decision in Humphrey’s Executor poses a direct threat to our constitutional structure and, as a result, the liberty of the American people,” Justice Thomas harrumphed in concurrence. “The Court concludes that it is not strictly necessary for us to overrule that decision. But with today’s decision, the Court has repudiated almost every aspect of Humphrey’s Executor. In a future case, I would repudiate what is left of this erroneous precedent.”
Even Donald Trump could read those tea leaves, and since his return to office he’s fired every board member and agency head he can find, with the Supreme Court assiduously clearing the way on the shadow docket by deleting lower court orders applying Humphrey’s Executor and Seila Law. And so it was inevitable that Trump would take aim at the last vestige of Humphrey’s Executor, firing FTC Commissioner Slaughter without cause in March.
Bye bye Humphrey
Commissioner Slaughter, who held the same protected position as poor, deceased Humphrey, sued the Trump administration to get her job back. The case was assigned to Judge Loren AliKhan, who granted summary judgment, ruling that Slaughter’s termination was illegal and issuing a permanent injunction restoring her to her office.
To Judge AliKhan, this was not a close case:
Defendants repeatedly want the FTC to be something it is not: a subservient agency subject to the whims of the President and wholly lacking in autonomy. But that is not how Congress structured it. Undermining that autonomy by allowing the President to remove Commissioners at will inflicts an exceptionally unique harm.
The government raced to the Court of Appeals for the DC Circuit demanding a stay of Judge AliKhan’s reinstatement order. But the appeals panel denied that request on September 2, noting that strong hints about what the Supreme Court will do in the future are not binding precedent. Until the Court actually writes an opinion, the judiciary – including the Supreme Court itself! – is bound to actually follow the law.
“To grant a stay would be to defy the Supreme Court’s decisions that bind our judgments,” the judges wrote. “That we will not do.”
Two days later, the government ran to the Supreme Court with the same request to stay Judge AliKhan’s injunction. The court’s conservatives first granted an administrative stay pending further briefing, and then, on September 22, extended that stay until it issues a final decision on the merits. The practical upshot of this order is to permit Trump to remove Slaughter from the FTC simply because he doesn’t like her, thus turning the FTC into precisely what Judge AliKhan feared: “a subservient agency subject to the whims of the President and wholly lacking in autonomy.”
But that’s not all.
Stare decisis
The Supreme Court’s conservatives also, on their own initiative, decided to treat the government’s application for a stay of Judge AliKhan’s injunction as a petition for a writ of certiorari before judgment. Essentially, the Supreme Court allowed the Trump administration to skip over the DC Circuit entirely, sparing it the hassle of having to make its case to an appellate court.
This is not normal.
The Supreme Court is definitionally a court of ultimate review, not a court of original jurisdiction. As Professor Steve Vladeck pointed out in a Harvard Law Review article last year, the Court issued zero grants of certiorari before judgment between 2004 and 2018. But since February of 2019, the Roberts Court has granted certiorari before judgment an astonishing 23 times. The Court’s conservatives are in such a blind hurry to remake the law, precedent be damned, that they can’t even wait for district and circuit courts to do their jobs. Because when you’ve rejected stare decisis in favor of reordering society by judicial fiat, what’s the point in waiting for some lowly trial judge to weigh in, right?
Justice Brett Kavanaugh more or less admitted this in a concurrence in W.M.M. v. Trump, a case in which the Court actually declined to grant certiorari before judgment. This reticence may have had more to do with the moving party than the merits, however. There the emergency relief was requested by lawyers for immigrant detainees labeled as Tren de Aragua gang members and threatened with deportation under the Alien Enemies Act. The Court sent the case back to the Fifth Circuit to develop a legal standard for challenges under the AEA, much to Justice Kavanaugh’s frustration.
“The circumstances call for a prompt and final resolution, which likely can be provided only by this Court,” he sighed impatiently. “At this juncture, I would prefer not to remand to the lower courts and further put off this Court’s final resolution of the critical legal issues.”
This admission gets at the heart of the conservative project. Having amassed power, the six justices will now reshape society at their own whim. They’ll overturn what’s left of the Voting Rights Act, allow the president to steal Congress’s power over the budget, and of course let him fire Rebecca Slaughter.
They have no interest in precedent — even their own precedent from just five years ago. Lower court rulings are now a useless impediment. Justice Kavanaugh put in words what the Supreme Court has been loudly whispering for years: The only court it respects is itself.
What recourse do we have to apply Constitutional guardrails to this rogue court? It seems as if it can do whatever it pleases without regard for consequences.
There are a lot of things that I fear, of late, but a big one is this - Republicans have no intention of ever leaving power.
The Roberts` court is gleefully handing over dictatorial-levels of authority to POTUS - authority that they clearly would never want in the hands of a Democratic president.
Why are they doing this? While Trump, himself, may be a goldfish with no cognitive capacity to think beyond the end of his nose, Thomas, Alito, and Roberts _know_ better. The only way this makes sense for them to act as they are acting is if the 6 conservative SCOTUS justices never expect there to ever _be_ another Democratic POTUS...