Antonin Scalia built a reputation for his sharp jabs towards his fellow justices. While we admire the clever wordplay that introduced terms like jiggery-pokery into our vocabulary, his teasing often conveyed a combative and mocking tone typical of early snark. Here at Above the Law, we embrace that spirit! However, Elena Kagan employs a more refined approach, akin to a professor’s disapproving gaze accompanied by the phrase, “I’m not mad, just disappointed that you’re stupid.” This delivers a unique burn that surpasses the effects of terms like “pure applesauce” and “argle-bargle.”
Once again, she is making her voice heard.
In the case of Trump v. Wilcox, the Supreme Court invoked its emergency application process, commonly referred to as the Shadow Docket, to permit the administration to proceed with its plans to “fire” members of the NLRB. This board was statutorily created to protect its members from sudden political changes influenced by the presidency and is designed to maintain a bipartisan structure. However, Trump aims to remove any Democratic representatives from this crucial entity, which is responsible for preventing individuals like Elon Musk from replacing unionized workers with underage laborers subjected to grueling assembly line conditions. To achieve this goal, he has attempted to dismiss the Democratic members of the NLRB, arguing that he is not subject to any laws that restrict his power to terminate officials with executive authority, even if they are merely part of a bipartisan committee.
Lower courts had previously issued orders preventing the administration from dismissing board members while they deliberated on whether Trump possesses the authority to terminate NLRB members. Typically, first-year legal procedures would suggest that stays are meant to maintain the status quo. However, the Supreme Court’s conservative majority opted to deviate from this norm, declaring that “the Government faces greater risk of harm from an order allowing a removed officer to continue exercising executive power than a wrongfully removed officer faces from being unable to perform her statutory duty.” Essentially, they imposed “a stay on the stay.”
The majority argues that “A stay is appropriate to avoid the disruptive effect of the repeated removal and reinstatement of officers during the pendency of this litigation.” This reasoning favors leaving the current board members in place unless they decide to shadow overrule Humphrey’s Executor before the case even reaches the Court for a substantive ruling. This is not the intended purpose of the Shadow Docket, which saw minimal action until it was rediscovered around 2017, when the justices recognized they had stumbled upon a powerful tool that could serve their future interests.
Justice Kagan highlights the absurdity of issuing a stay from the Shadow Docket by stating:
However, that reasoning reveals the ultimate flaw in their argument. As the case reached us, Wilcox and Harris had been reinstated to their positions due to the combined rulings of both the district and appellate courts. Thus, by re-removing them, the majority’s order itself causes disruption—unless, of course, it presupposes or implies that they will be re-removed next Term anyway.
Kagan reserved her most cutting critiques for the majority’s most poorly conceived conclusion.
The looming threat of overturning nearly a century’s worth of precedent established by Humphrey’s Executor could grant Trump the authority to dismiss members of the Federal Reserve, potentially leading to a collapse of the global economy. While some justices might revel in the chaos—*cough* Thomas—others, like John Roberts, prefer to keep their own financial interests safe from the whims of Fed Chairman Peter Navarro. It’s acceptable to hand over regulatory power over telecommunication and electoral laws to Trump’s unilateral control, but they draw the line at jeopardizing the stability of the Dow.
Though it appears impossible to disentangle these issues, the Court made a sincere effort to do so.
We respectfully disagree. The Federal Reserve operates as a uniquely structured, quasi-private entity that follows a distinct historical tradition, tracing its roots back to the First and Second Banks of the United States. Refer to Seila Law, 591 U. S., at 222, n. 8.
Justice Kagan is distinctly unimpressed by the majority’s attempt to simplify the far-reaching implications of their ruling into a single sentence.
Except, apparently, when it comes to the Federal Reserve. The majority concludes today’s order by asserting, out of nowhere, that it has no bearing on “the constitutionality of for-cause removal protections” for members of the Federal Reserve Board or the Open Market Committee. Ante, at 2. I’m relieved to hear it, and I have no doubt about the majority’s intention to safeguard the Fed. However, this order presents a conundrum. The independence of the Federal Reserve is based on the same constitutional and analytical foundations as those of the NLRB, MSPB, FTC, FCC, and others—all fundamentally relying on Humphrey’s.
The phrase “But then, today’s order poses a puzzle” is undeniably cutting. It’s the kind of statement that inspires anxiety among first-year law students facing cold calls.
Thus, the majority is compelled to present a different narrative: The Federal Reserve, they argue, is a “uniquely structured” entity with a “distinct historical tradition”—citing footnote 8 of this Court’s opinion in Seila Law. Ante, at 2 (citing 591 U. S., at 222, n. 8). However, this footnote offers no substantial support. Its only pertinent sentence refutes an argument posed in the dissenting opinion, “even assuming that financial institutions like the Second Bank and Federal Reserve can claim a special historical status.” A mere assumption made to appease the dissent is wrongly elevated to a judicial holding.
Using footnote 8 in this fashion resembles one of those generative AI missteps where it selects a case based on keywords without recognizing its irrelevance in the current context. The originalist justices of the majority seem disinterested in providing any other support for this assertion. Was there not some unpublished note discovered on Alexander Hamilton’s desk that could have at least added some weight to their argument?
For the majority’s attempt to craft new legal standards on the emergency docket (the depreciation of Humphrey’s) necessitates yet another move (the establishment of a unique exemption for the Federal Reserve). If the goal is to reassure the markets, a more straightforward—and judicious—approach would have been to deny the President’s request for a stay on the ongoing authority of Humphrey’s.
This would be a stinging critique if the majority possessed any semblance of shame.
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.
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