Exercising tremendous restraint, Chief Justice Roberts managed not to write “Executor? I hardly knew her!” on this morning’s opinion functionally overruling Humphrey’s Executor. Alas, that was the only restraint Roberts mustered today, employing the infamous “shadow docket” to toss 90 years of Supreme Court precedent to fit the dementia-fueled whims of his patron in the White House.
He may be named John, but he’s very much not the John in this relationship.
Donald Trump wants to fire FTC commissioner Rebecca Slaughter, which the FTC’s authorizing legislation and Supreme Court precedent — the aforementioned Humphrey’s Executor — forbid. He fired her anyway and she sued. Both the district and appellate court blocked the firing on the grounds that the law, in fact, prevents Trump from doing this.
In reversing the lower courts and allowing Trump to fire Slaughter, it’s really too bad that Roberts declined to add the glib, two-sentence “hardly knew her” joke, because it would have DOUBLED the number of sentences he devoted to ending nearly a century of precedent. And would’ve come much closer to providing a coherent justification than anything he did write.
In his annual report, Roberts chastised judicial critics for failing to understand the opinions. “Read the opinion,” as Justice Barrett would say. So, let’s be fair and lay out the precise defense Roberts offers for this bold decision.
That’s it. In fact, that’s not even an opinion because he put out the order without an opinion.
This Supreme Court may want to overrule Humphrey’s, but the fact is that they have not done so yet. The shadow docket — or whatever sanitized name the Federalist Society wants to rename it — is where the Supreme Court decides emergency requests while cases work their way through the legal process. In this case, the Trump administration said that it really wanted to fire one of the voting members of the Federal Trade Commission immediately rather than wait to see if the Supreme Court eventually overturns established precedent. The typical rules of equitable relief would dictate keeping Slaughter in her position until the matter is decided.
Roberts chose differently based on four key factors:
First, Donald Trump asked him to.
Second, overturning Humphrey’s through the judicial process that ostensibly applies to everyone equally under the law… takes a lot of time! Think of all the corrupt trade practices that will go unused while we wait to see if Humphrey’s — which, again, is still technically THE LAW — will be there when a future Supreme Court gets around to it.
Third, ruling on the merits requires writing a decision. The conservatives already tried to thread the Humphrey’s needle via the shadow docket once, struggling to explain why it’s no longer the law to the extent Trump wants to gut consumer protection but IS still the law when it comes to protecting the Federal Reserve from Trump blowing up the stock market. And, as they say, all they got was this lousy merciless depantsing from Elena Kagan. The lesson the Republican justices took from watching their written reasoning get snidely dismantled was… stop writing reasons.
Fourth, Donald Trump asked him to.
Customarily, a shadow docket opinion like this would only apply to Slaughter’s case until it reaches the Supreme Court on the merits (or she gives up because this order makes the case fruitless to pursue). That’s part of the trade-off: the Supreme Court can take significant action without the benefit of full briefing in part because it’s temporary relief, but also because it’s restrained to a single matter. But, as the appeal of making up law without the restrictive constraints of the judicial process grew, the justices have rewritten the rules to empower themselves more. “Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them,” Justice Gorsuch recently wrote, accusing a lower court of correctly applying existing precedent instead of taking an unrelated and unexplained temporary stay and imagining what the law might someday be if the Supreme Court had written a merits decision about that stay!
It feels like it was just last week that multiple lower court judges told the media that the Supreme Court’s insistence on unexplained opinions unceremoniously overruling decisions that blocked Trump action has resulted in increased threats to their personal safety. That’s because it was just last week. In response, Roberts has doubled down, overruling lower courts while refusing to offer any explanation that might counter the White House’s own claims that the lower courts were just “rogue,” “unhinged,” “outrageous,” and “crooked.” One might have thought, fresh off a somewhat unprecedented critique from fellow judges over issues as deeply serious as their personal safety and public faith in the rule of law, Roberts would sit down and bang out a few pages attempting to explain that the lower court judges weren’t acting in bad faith to thwart Trump’s messianic mission.
But he just doesn’t care.
Obviously, some judges are outrageous and crooked. That said, it’s probably not the ones who wrote detailed opinions citing decades of precedent in blocking Slaughter’s firing. It’s more likely the sort of judge who doesn’t have the guts to explain himself.
Earlier: Watch The Exact Moment John Roberts Realizes He Whored Himself Out
Elena Kagan Does That Thing Elena Kagan Does Where She Humiliates The Majority
In A Bold Move, Federal Judges Are Calling Out The Supreme Court’s Bullsh*t
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
The post Humphrey’s Executor Executed In Broad Shadow Docket Slaying appeared first on Above the Law.
Exercising tremendous restraint, Chief Justice Roberts managed not to write “Executor? I hardly knew her!” on this morning’s opinion functionally overruling Humphrey’s Executor. Alas, that was the only restraint Roberts mustered today, employing the infamous “shadow docket” to toss 90 years of Supreme Court precedent to fit the dementia-fueled whims of his patron in the White House.
He may be named John, but he’s very much not the John in this relationship.
Donald Trump wants to fire FTC commissioner Rebecca Slaughter, which the FTC’s authorizing legislation and Supreme Court precedent — the aforementioned Humphrey’s Executor — forbid. He fired her anyway and she sued. Both the district and appellate court blocked the firing on the grounds that the law, in fact, prevents Trump from doing this.
In reversing the lower courts and allowing Trump to fire Slaughter, it’s really too bad that Roberts declined to add the glib, two-sentence “hardly knew her” joke, because it would have DOUBLED the number of sentences he devoted to ending nearly a century of precedent. And would’ve come much closer to providing a coherent justification than anything he did write.
In his annual report, Roberts chastised judicial critics for failing to understand the opinions. “Read the opinion,” as Justice Barrett would say. So, let’s be fair and lay out the precise defense Roberts offers for this bold decision.
That’s it. In fact, that’s not even an opinion because he put out the order without an opinion.
This Supreme Court may want to overrule Humphrey’s, but the fact is that they have not done so yet. The shadow docket — or whatever sanitized name the Federalist Society wants to rename it — is where the Supreme Court decides emergency requests while cases work their way through the legal process. In this case, the Trump administration said that it really wanted to fire one of the voting members of the Federal Trade Commission immediately rather than wait to see if the Supreme Court eventually overturns established precedent. The typical rules of equitable relief would dictate keeping Slaughter in her position until the matter is decided.
Roberts chose differently based on four key factors:
First, Donald Trump asked him to.
Second, overturning Humphrey’s through the judicial process that ostensibly applies to everyone equally under the law… takes a lot of time! Think of all the corrupt trade practices that will go unused while we wait to see if Humphrey’s — which, again, is still technically THE LAW — will be there when a future Supreme Court gets around to it.
Third, ruling on the merits requires writing a decision. The conservatives already tried to thread the Humphrey’s needle via the shadow docket once, struggling to explain why it’s no longer the law to the extent Trump wants to gut consumer protection but IS still the law when it comes to protecting the Federal Reserve from Trump blowing up the stock market. And, as they say, all they got was this lousy merciless depantsing from Elena Kagan. The lesson the Republican justices took from watching their written reasoning get snidely dismantled was… stop writing reasons.
Fourth, Donald Trump asked him to.
Customarily, a shadow docket opinion like this would only apply to Slaughter’s case until it reaches the Supreme Court on the merits (or she gives up because this order makes the case fruitless to pursue). That’s part of the trade-off: the Supreme Court can take significant action without the benefit of full briefing in part because it’s temporary relief, but also because it’s restrained to a single matter. But, as the appeal of making up law without the restrictive constraints of the judicial process grew, the justices have rewritten the rules to empower themselves more. “Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them,” Justice Gorsuch recently wrote, accusing a lower court of correctly applying existing precedent instead of taking an unrelated and unexplained temporary stay and imagining what the law might someday be if the Supreme Court had written a merits decision about that stay!
It feels like it was just last week that multiple lower court judges told the media that the Supreme Court’s insistence on unexplained opinions unceremoniously overruling decisions that blocked Trump action has resulted in increased threats to their personal safety. That’s because it was just last week. In response, Roberts has doubled down, overruling lower courts while refusing to offer any explanation that might counter the White House’s own claims that the lower courts were just “rogue,” “unhinged,” “outrageous,” and “crooked.” One might have thought, fresh off a somewhat unprecedented critique from fellow judges over issues as deeply serious as their personal safety and public faith in the rule of law, Roberts would sit down and bang out a few pages attempting to explain that the lower court judges weren’t acting in bad faith to thwart Trump’s messianic mission.
But he just doesn’t care.
Obviously, some judges are outrageous and crooked. That said, it’s probably not the ones who wrote detailed opinions citing decades of precedent in blocking Slaughter’s firing. It’s more likely the sort of judge who doesn’t have the guts to explain himself.
Earlier: Watch The Exact Moment John Roberts Realizes He Whored Himself Out
Elena Kagan Does That Thing Elena Kagan Does Where She Humiliates The Majority
In A Bold Move, Federal Judges Are Calling Out The Supreme Court’s Bullsh*t
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
