In a surprising display of restraint, Chief Justice Roberts refrained from inscribing the quip “Executor? I hardly knew her!” on the recent opinion that effectively overturned Humphrey’s Executor. Unfortunately, that was the extent of the restraint he exhibited yesterday, as he utilized the controversial “shadow docket” to dismiss nearly a century of Supreme Court precedent to accommodate the erratic demands of his ally in the White House. This action raises important questions about the integrity of judicial processes.
Although his name is John, he certainly does not embody the same integrity that one might associate with that name in this scenario.
President Donald Trump expressed his desire to dismiss FTC commissioner Rebecca Slaughter, a move that both the FTC’s authorizing legislation and the established Supreme Court precedent — specifically the previously mentioned Humphrey’s Executor — explicitly prohibit. Nevertheless, Trump proceeded with the firing, which prompted Slaughter to file a lawsuit. Both the district court and the appellate court intervened, ruling that the law indeed prevents Trump from executing this dismissal.
In reversing the decisions made by the lower courts and permitting Trump to terminate Slaughter, it is regrettable that Roberts did not include the flippant, two-sentence jest “hardly knew her.” This addition would have doubled the number of sentences he dedicated to overturning longstanding precedent and might have provided a more coherent rationale than what was ultimately presented.
In his annual report, Chief Justice Roberts admonished judicial critics for their failure to grasp the opinions rendered. “Read the opinion,” as Justice Barrett often asserts. To ensure fairness, let’s examine the specific defense Roberts provides for this audacious decision.
However, that’s the extent of the reasoning. In fact, it does not even qualify as a formal opinion since he issued the order without any accompanying rationale.
This Supreme Court may aspire to overturn Humphrey’s, but the reality remains that they have not yet accomplished this. The shadow docket — or whatever sanitized label the Federalist Society chooses to assign to it — serves as the forum where the Supreme Court addresses urgent requests while cases navigate through the legal system. In this particular situation, the Trump administration insisted on an immediate dismissal of one of the voting members of the Federal Trade Commission, rather than awaiting the potential overturning of established precedent by the Supreme Court. The standard principles of equitable relief typically dictate that Slaughter should retain her position until the issue is definitively resolved.
Roberts made a different choice, influenced by four critical factors:
Firstly, Donald Trump personally requested his intervention.
Secondly, overturning Humphrey’s through the judicial process, which is supposed to apply equally to everyone under the law, can be a lengthy endeavor! Consider all the unethical trade practices that could go unchecked while we await the Supreme Court’s decision regarding Humphrey’s, which, as of now, still constitutes THE LAW.
Thirdly, making a ruling on the merits necessitates drafting a comprehensive decision. The conservative justices previously attempted to navigate the complexities of Humphrey’s via the shadow docket, struggling to articulate why it should no longer be considered the law, particularly when Trump aims to undermine consumer protection, while still regarding it as law when it concerns protecting the Federal Reserve from Trump destabilizing the stock market. Their efforts only resulted in a sharp critique from Justice Elena Kagan. The lesson the Republican justices gleaned from witnessing their written justifications dismantled was to avoid providing explanations altogether.
Fourthly, it bears repeating that Donald Trump asked him to act.
Typically, a ruling issued via the shadow docket is confined to the specific case at hand until it is brought before the Supreme Court on the merits (or until Slaughter relinquishes her fight due to the order rendering her case ineffectual). This limitation is part of the arrangement: the Supreme Court can execute significant actions without the necessity of thorough briefing, partly because it provides temporary relief and also because it is restricted to a single matter. However, as the allure of creating law without the usual constraints of the judicial process grew, the justices have modified the rules to further empower themselves. “Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them,” Justice Gorsuch recently stated, chastising a lower court for correctly applying existing precedent rather than imagining what the law might someday become if the Supreme Court had issued a merits decision regarding that stay!
This entire situation resembles a game of Calvinball.
It seems just like last week multiple lower court judges informed the media that the Supreme Court’s insistence on issuing unexplained opinions to override decisions that blocked Trump’s actions has resulted in heightened threats to their personal safety. In fact, it was just last week. In response, Roberts has doubled down, overriding lower court decisions while refusing to provide any justification that might counter the White House’s claims labeling the lower courts as “rogue,” “unhinged,” “outrageous,” and “crooked.” One might have expected that, after receiving an unprecedented critique from fellow judges on issues as serious as personal safety and public trust in the rule of law, Roberts would take the time to compose a few pages to clarify that the lower court judges were not acting in bad faith to obstruct Trump’s perceived mission.
Yet, he simply does not seem to care.
Of course, some judges may indeed behave outrageously and unethically. However, it is likely that the judges who authored detailed opinions, referencing decades of precedent to justify blocking Slaughter’s dismissal, are not among them. It is more probable that the judges lacking the courage to articulate their reasoning are the ones who deserve scrutiny.
Joe Patrice, a senior editor at Above the Law and co-host of Thinking Like A Lawyer, welcomes your tips, questions, or comments. Feel free to reach out via email. Follow him on Twitter or Bluesky if you are interested in discussions about law, politics, and an engaging mix of college sports news. Joe also holds the position of Managing Director at RPN Executive Search.
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