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How will we remember this Supreme Court term? For Louisiana v. Callais, which demolished the 1965 Voting Rights Act. For near misses, too, as when the Constitution’s plain-language guarantee of birthright citizenship was recognized by only a bare majority of the justices. (As JD Vance crowed, that core protection is now “hanging by a thread.”)
I think the term may be remembered most as a time when the supermajority of very conservative, very pro-business justices bent the shape of American government. It was a power grab in legal garb, undermining Congress, granting presidents more authority, but with key decisions ultimately in the hands of the nine unelected officials now redesigning government.
In 2005, The New York Times Magazine published a story about a cadre of intense anti-government legal activists. They bemoaned “the Constitution in exile,” what they saw as an epic wrong turn in the 20th century. That was the era when Congress and presidents created expert independent agencies, such as the Securities and Exchange Commission, to police Wall Street, and the Federal Trade Commission, to protect consumers. To most Americans, that was how we grew a modern, fair, prosperous economy. To those activists, it was all a terrible mistake.
One of the few adherents of this eccentric theory, the Times reported, was an unknown young federal judge named John Roberts. Soon he would become chief justice.
Trump v. Slaughter, announced on Monday, marked a key moment in Roberts’s long drive to write pro-business dogma into the Constitution. On this, Roberts is far from a midwestern country club Republican cheerfully calling “balls and strikes.” This is not about wins or losses for Donald Trump. These justices have wanted to do this since Trump was cavorting at Studio 54.
Congress established the first independent agency, the Interstate Commerce Commission, to set railroad rates in the 1880s. Since then, laws created nearly 60 agencies to police the economy or serve as watchdogs over the government, and tried to wall them off a bit from political pressure and partisan politics.
Congress has now been blocked from imposing removal protections for the heads of most federal agencies, a critical bulwark against presidential meddling. Consider a consequential, complex current question: Could an effective new agency regulate artificial intelligence? The Slaughter ruling could make it considerably harder to insulate such a powerful body from political interference.
Of course, independent agencies are not a purely partisan issue. Over the course of American history, they have frustrated presidents of both parties, who want control of the sprawling federal bureaucracy.
The Slaughter ruling overturned a 1935 case, Humphrey’s Executor. William Humphrey was a reactionary and thoroughly unpleasant Federal Trade Commission member whom President Franklin D. Roosevelt wanted to fire. Humphrey kept going to work even after he was dismissed, then died while the legal challenge to pry him from his office was being heard. His heirs sued for his back pay.
The Supreme Court ruled that even FDR, at the peak of his power, could not fire grumpy old Mr. Humphrey. “That damn little case,” recalled FDR aide Robert Jackson (later a justice himself), “made Roosevelt madder at the Court than any other decision. . . . [He] thought they went out of their way to spite him personally.”
Slaughter is one of the most significant expressions of the pretentiously named “unitary executive theory.” This is the idea that because a single individual, the president, is elected to lead the executive branch, that means the whole executive branch serves at his whim. Of note, this case revolved around one aspect of it, firing of agency officials.
Indeed, the justices seemed to recognize the havoc their new doctrine would cause. On the same day, a different lineup of justices blocked Trump from firing Federal Reserve governor Lisa Cook. The Fed, too, is an independent agency, signed into law by President Woodrow Wilson in the Progressive Era, but the rationale for independent central banking is well known. The Cook ruling mumbles about tradition and history, but the real answer for the divergent outcomes seemed to be, well, the Fed is just . . . different. (Of course, business interests revere the Fed and often loathe the FTC.)
