{"id":138661,"date":"2025-12-09T17:19:01","date_gmt":"2025-12-10T01:19:01","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/12\/09\/sotomayor-had-trump-administration-on-the-ropes-and-let-em-off-the-hook\/"},"modified":"2025-12-09T17:19:01","modified_gmt":"2025-12-10T01:19:01","slug":"sotomayor-had-trump-administration-on-the-ropes-and-let-em-off-the-hook","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/12\/09\/sotomayor-had-trump-administration-on-the-ropes-and-let-em-off-the-hook\/","title":{"rendered":"Sotomayor Had Trump Administration On The Ropes And Let \u2018Em Off The Hook"},"content":{"rendered":"

The oral argument in Trump v. Slaughter<\/em> lived up to the hype. Not so much like a sporting event, but a wrestling match where everyone knew the conservative majority would reverse engineer their way to the result they wanted. The excitement is seeing how they manage to do it.<\/p>\n

For Slaughter<\/em>, those obstacles appeared insurmountable to a good faith actor. The Constitution, mirroring the English tradition of limited executive power developed during the English Civil War, placed restrictions on the president to \u201ctake Care that the Laws be faithfully executed.\u201d An honest Originalist would say the Framers inserted this language to make sure presidents could not<\/em> ignore legislative edicts by simply ignoring laws. The Supreme Court justices, as it happens, are Originalists of a quite dishonest flavor. And so the stricture that presidents can\u2019t ignore Congress transmogrifies into the power to ignore Congressional commands.<\/p>\n

And, of course, the Court has no interest in allowing Trump to replace the Federal Reserve with the sort of idiots who think the market buying Treasuries at a record clip is somehow a good sign<\/a>. That sort of executive authority could crash the stock market and the justices\u2019 healthy investments. Gutting collective bargaining rights or transforming antitrust law into a cudgel for Republican donors to buy media companies<\/a>\u2026 those are acceptable assaults on the economy because who cares about consumers, am I right? Justice Keggerator seemed most interested in laying the faux academic groundwork for distinguishing the Federal Reserve, appearing satisfied with Solicitor General Sauer\u2019s response that \u201cThere\u2019s two adjectives there or an adjective and an adverb, unique and distinct,\u201d which is gibberish but sounds better after a few beers.<\/p>\n

Justice Kagan seemed to understand the majority\u2019s sensitivity to the Federal Reserve issue \u2014 she has already humiliated the majority<\/a> on this point in a shadow docket opinion about substantively similar NLRB firings \u2014 and twisted the knife, running Sauer through a number of hypotheticals to demonstrate the government\u2019s complete lack of any limiting principle in their argument. When Sauer responded that the administration isn\u2019t currently litigating any of those cases, Kagan responded with a withering, \u201cI know what you don\u2019t challenge. You\u2019re missing the point.\u201d The Chief Justice seemed concerned about limits too\u2026 but not enough for anyone to think his sense of shame grew three sizes this day. <\/p>\n

With Kagan handling the Fed issue, Justice Sotomayor focused on the absurdity of the effort to overturn a near century of precedent. She actually had Sauer cornered on a question of precedent at one point, but the moment slipped away.<\/p>\n

\n

JUSTICE SOTOMAYOR: Ninety years. What other cases have we overturned that have had a pedigree of a hundred years?
GENERAL SAUER: Pennoyer against Neff was overruled by Shaffer against Heitner on its hundredth birthday by the \u2013
JUSTICE SOTOMAYOR: That was an economic case. What other case?
GENERAL SAUER: For example, Erie against \u2014 Erie overruled Swift v. Tyson 96 years later.
JUSTICE SOTOMAYOR: That \u2014 that \u2014 that \u2014 so too again \u2014
GENERAL SAUER: Those are two examples. There\u2019s at least 13 or \u2014<\/p>\n<\/blockquote>\n

Considering the eye-rolling \u201cadjective and an adverb\u201d conversation, it\u2019s particularly galling that we\u2019re still engaging in the charade of calling the Solicitor General, \u201cGeneral\u201d even though it\u2019s an adjective modifying \u201cSolicitor.\u201d You went to law school, you\u2019re not Patton.<\/p>\n

At this point Sotomayor focuses on the distinction that a case fundamentally changing the organization of government makes this unique. Which is too bad, because this is a devastating exchange from a different perspective. How often do we overturn cases that are almost a hundred years old? So infrequently that they\u2019re super famous and are taught as examples of how the Court only disturbs precedents like these when the passage of time renders the original opinion fundamentally nonsensical. <\/p>\n

Not only has nothing changed about the relationship between the president and the concept of an independent agency since Humphrey\u2019s Executor<\/em>, this case is about THE SAME GODDAMNED AGENCY. <\/p>\n

In her defense, she has inside information and knows the stooges she\u2019s sitting with have no coherent intellectual approach. They intend to overturn Humphrey\u2019s Executor<\/em> because it appeases their patron in the White House and the only thing giving them any pause is coming up with some that makes it easier to rule the exact opposite way when a Democratic president starts firing everyone Trump put on these commissions.<\/p>\n

If they decide to allow another real election, of course.<\/p>\n

Sotomayor went into these questions fully aware that the majority had no interest in respecting precedent. She likely made the calculated decision to ask about this being such a long-standing precedent to set up this \u201cdisrupting the government\u201d angle in the hopes that it could frighten the majority that their intended course of action would deliver havoc. <\/p>\n

But sometimes you\u2019ve got to shift gears when the answer is this bad. <\/p>\n

Predictably, right-wing social media celebrated this as though Sauer dunked on Sotomayor for coming up with two examples and vaguely promising \u201cat least 13\u201d total. Over the course of 235 years\u2026 maybe<\/em> 13 examples. That\u2019s not the flex the government thinks it is.<\/p>\n

Especially when you scratch the surface of the two he could actually think of, both of which turn on identifiable and defensible historical changes. Interstate commerce and corporate capitalism rendered Pennoyer<\/em> anachronistic. That\u2019s a story an advocate could easily stand up and explain. What\u2019s changed about the FTC in 2025? Nothing.<\/p>\n

Unless the Court wants to count the president\u2019s stated interest in using antitrust law arbitrarily and capriciously to support consolidation for his cronies. In that case, the Take Care clause might inspire a Supreme Court to see the original statutory protections on the FTC as \u2014 to pull two words at random \u2014 necessary <\/em>and proper<\/em> to prevent the executive from circumventing the constitutional duty to execute the laws passed by Congress.<\/p>\n

But no one wanted to deal with any of that yesterday.<\/p>\n

Hypocrisy wasn\u2019t going to stay the majority\u2019s hand, but when the lawyer hands over an answer like \u201ctwo\u2026 I dunno, I\u2019m sure there might be 11 more over the last couple centuries,\u201d it\u2019s worth changing tack and asking them to explain how a case like this resembles Justice Stone acknowledging that airplanes were invented since Pennoyer<\/em>. Make Sauer explain what\u2019s changed, and when he inevitably refuses \u2014 retreating to a vapid \u201cwell, we think it was wrong for the whole 90 years and no one noticed\u201d \u2014 ask then how it meshes with these cases he\u2019s citing that infamously devote hours worth of law school lecture time to understanding in proper historical context.<\/p>\n

Sotomayor\u2019s strategy makes sense if she\u2019s still hoping to influence this opinion, but that\u2019s just not the job description anymore. It\u2019s just like Kagan\u2019s nods to conservative judicial philosophies, which she pulls out from time to time hoping the majority will return the favor later even though they never will<\/a><\/em>. They\u2019re still trying to stanch the Constitutional bleeding, but right now the only case worth making is the case for Supreme Court reform. <\/p>\n

At the hearing, it played for laughs when Justice Kagan asked Sauer to agree that the Framers intended to create a government of separated powers and he responded with the \u201ccaveat\u201d that \u201cthe one, you know, sort of exception to all this division was the presidency itself, where the Framers consciously adopted a unified and energetic executive.\u201d Kagan replied by noting that\u2019s not what the word \u201ccaveat\u201d means (or \u201ccodicil,\u201d which Sauer tried to pivot into) and is in fact \u201cthe not X to my X.\u201d <\/p>\n

Except it\u2019s not funny. The official representative of the Trump administration is failing sixth grade civics. This stuff can\u2019t continue to be milked for chuckles. These are batshit claims and there\u2019s no need to be polite about it.<\/p>\n

Catching the majority in hypocrisy matters now. So does laying bare the incoherence of their brand of \u201cOriginalism\u201d and their contempt for the rule of law. The minority has taken on a more confrontational role when it comes to the shadow docket<\/a>, but there\u2019s no reason to stop there. <\/p>\n

The justices may want to salvage America\u2019s faith in the institution without watching the majority use that good will to burn the country down. But it doesn\u2019t work that way. Sometimes restoring faith requires an honest assessment about the extent of the rot.<\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n

The post Sotomayor Had Trump Administration On The Ropes And Let \u2018Em Off The Hook<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"
\n\t\t\t\t\t\t\t(Photographer: Stefani Reynolds\/Bloomberg)\t\t\t\t\t\t<\/figcaption><\/figure>\n

The oral argument in Trump v. Slaughter<\/em> lived up to the hype. Not so much like a sporting event, but a wrestling match where everyone knew the conservative majority would reverse engineer their way to the result they wanted. The excitement is seeing how they manage to do it.<\/p>\n

For Slaughter<\/em>, those obstacles appeared insurmountable to a good faith actor. The Constitution, mirroring the English tradition of limited executive power developed during the English Civil War, placed restrictions on the president to \u201ctake Care that the Laws be faithfully executed.\u201d An honest Originalist would say the Framers inserted this language to make sure presidents could not<\/em> ignore legislative edicts by simply ignoring laws. The Supreme Court justices, as it happens, are Originalists of a quite dishonest flavor. And so the stricture that presidents can\u2019t ignore Congress transmogrifies into the power to ignore Congressional commands.<\/p>\n

And, of course, the Court has no interest in allowing Trump to replace the Federal Reserve with the sort of idiots who think the market buying Treasuries at a record clip is somehow a good sign<\/a>. That sort of executive authority could crash the stock market and the justices\u2019 healthy investments. Gutting collective bargaining rights or transforming antitrust law into a cudgel for Republican donors to buy media companies<\/a>\u2026 those are acceptable assaults on the economy because who cares about consumers, am I right? Justice Keggerator seemed most interested in laying the faux academic groundwork for distinguishing the Federal Reserve, appearing satisfied with Solicitor General Sauer\u2019s response that \u201cThere\u2019s two adjectives there or an adjective and an adverb, unique and distinct,\u201d which is gibberish but sounds better after a few beers.<\/p>\n

Justice Kagan seemed to understand the majority\u2019s sensitivity to the Federal Reserve issue \u2014 she has already humiliated the majority<\/a> on this point in a shadow docket opinion about substantively similar NLRB firings \u2014 and twisted the knife, running Sauer through a number of hypotheticals to demonstrate the government\u2019s complete lack of any limiting principle in their argument. When Sauer responded that the administration isn\u2019t currently litigating any of those cases, Kagan responded with a withering, \u201cI know what you don\u2019t challenge. You\u2019re missing the point.\u201d The Chief Justice seemed concerned about limits too\u2026 but not enough for anyone to think his sense of shame grew three sizes this day. <\/p>\n

With Kagan handling the Fed issue, Justice Sotomayor focused on the absurdity of the effort to overturn a near century of precedent. She actually had Sauer cornered on a question of precedent at one point, but the moment slipped away.<\/p>\n

\n

JUSTICE SOTOMAYOR: Ninety years. What other cases have we overturned that have had a pedigree of a hundred years?
GENERAL SAUER: Pennoyer against Neff was overruled by Shaffer against Heitner on its hundredth birthday by the \u2013
JUSTICE SOTOMAYOR: That was an economic case. What other case?
GENERAL SAUER: For example, Erie against \u2014 Erie overruled Swift v. Tyson 96 years later.
JUSTICE SOTOMAYOR: That \u2014 that \u2014 that \u2014 so too again \u2014
GENERAL SAUER: Those are two examples. There\u2019s at least 13 or \u2014<\/p>\n<\/blockquote>\n

Considering the eye-rolling \u201cadjective and an adverb\u201d conversation, it\u2019s particularly galling that we\u2019re still engaging in the charade of calling the Solicitor General, \u201cGeneral\u201d even though it\u2019s an adjective modifying \u201cSolicitor.\u201d You went to law school, you\u2019re not Patton.<\/p>\n

At this point Sotomayor focuses on the distinction that a case fundamentally changing the organization of government makes this unique. Which is too bad, because this is a devastating exchange from a different perspective. How often do we overturn cases that are almost a hundred years old? So infrequently that they\u2019re super famous and are taught as examples of how the Court only disturbs precedents like these when the passage of time renders the original opinion fundamentally nonsensical. <\/p>\n

Not only has nothing changed about the relationship between the president and the concept of an independent agency since Humphrey\u2019s Executor<\/em>, this case is about THE SAME GODDAMNED AGENCY. <\/p>\n

In her defense, she has inside information and knows the stooges she\u2019s sitting with have no coherent intellectual approach. They intend to overturn Humphrey\u2019s Executor<\/em> because it appeases their patron in the White House and the only thing giving them any pause is coming up with some that makes it easier to rule the exact opposite way when a Democratic president starts firing everyone Trump put on these commissions.<\/p>\n

If they decide to allow another real election, of course.<\/p>\n

Sotomayor went into these questions fully aware that the majority had no interest in respecting precedent. She likely made the calculated decision to ask about this being such a long-standing precedent to set up this \u201cdisrupting the government\u201d angle in the hopes that it could frighten the majority that their intended course of action would deliver havoc. <\/p>\n

But sometimes you\u2019ve got to shift gears when the answer is this bad. <\/p>\n

Predictably, right-wing social media celebrated this as though Sauer dunked on Sotomayor for coming up with two examples and vaguely promising \u201cat least 13\u201d total. Over the course of 235 years\u2026 maybe<\/em> 13 examples. That\u2019s not the flex the government thinks it is.<\/p>\n

Especially when you scratch the surface of the two he could actually think of, both of which turn on identifiable and defensible historical changes. Interstate commerce and corporate capitalism rendered Pennoyer<\/em> anachronistic. That\u2019s a story an advocate could easily stand up and explain. What\u2019s changed about the FTC in 2025? Nothing.<\/p>\n

Unless the Court wants to count the president\u2019s stated interest in using antitrust law arbitrarily and capriciously to support consolidation for his cronies. In that case, the Take Care clause might inspire a Supreme Court to see the original statutory protections on the FTC as \u2014 to pull two words at random \u2014 necessary <\/em>and proper<\/em> to prevent the executive from circumventing the constitutional duty to execute the laws passed by Congress.<\/p>\n

But no one wanted to deal with any of that yesterday.<\/p>\n

Hypocrisy wasn\u2019t going to stay the majority\u2019s hand, but when the lawyer hands over an answer like \u201ctwo\u2026 I dunno, I\u2019m sure there might be 11 more over the last couple centuries,\u201d it\u2019s worth changing tack and asking them to explain how a case like this resembles Justice Stone acknowledging that airplanes were invented since Pennoyer<\/em>. Make Sauer explain what\u2019s changed, and when he inevitably refuses \u2014 retreating to a vapid \u201cwell, we think it was wrong for the whole 90 years and no one noticed\u201d \u2014 ask then how it meshes with these cases he\u2019s citing that infamously devote hours worth of law school lecture time to understanding in proper historical context.<\/p>\n

Sotomayor\u2019s strategy makes sense if she\u2019s still hoping to influence this opinion, but that\u2019s just not the job description anymore. It\u2019s just like Kagan\u2019s nods to conservative judicial philosophies, which she pulls out from time to time hoping the majority will return the favor later even though they never will<\/a><\/em>. They\u2019re still trying to stanch the Constitutional bleeding, but right now the only case worth making is the case for Supreme Court reform. <\/p>\n

At the hearing, it played for laughs when Justice Kagan asked Sauer to agree that the Framers intended to create a government of separated powers and he responded with the \u201ccaveat\u201d that \u201cthe one, you know, sort of exception to all this division was the presidency itself, where the Framers consciously adopted a unified and energetic executive.\u201d Kagan replied by noting that\u2019s not what the word \u201ccaveat\u201d means (or \u201ccodicil,\u201d which Sauer tried to pivot into) and is in fact \u201cthe not X to my X.\u201d <\/p>\n

Except it\u2019s not funny. The official representative of the Trump administration is failing sixth grade civics. This stuff can\u2019t continue to be milked for chuckles. These are batshit claims and there\u2019s no need to be polite about it.<\/p>\n

Catching the majority in hypocrisy matters now. So does laying bare the incoherence of their brand of \u201cOriginalism\u201d and their contempt for the rule of law. The minority has taken on a more confrontational role when it comes to the shadow docket<\/a>, but there\u2019s no reason to stop there. <\/p>\n

The justices may want to salvage America\u2019s faith in the institution without watching the majority use that good will to burn the country down. But it doesn\u2019t work that way. Sometimes restoring faith requires an honest assessment about the extent of the rot.<\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

The oral argument in Trump v. Slaughter lived up to the hype. Not so much like a sporting event, but a wrestling match where everyone knew the conservative majority would reverse engineer their way to the result they wanted. The excitement is seeing how they manage to do it. For Slaughter, those obstacles appeared insurmountable […]<\/p>\n","protected":false},"author":3,"featured_media":138662,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-138661","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/12\/Headshot-300x200-LN0K8i.jpg?fit=300%2C200&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/138661","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=138661"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/138661\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/138662"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=138661"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=138661"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=138661"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}