Brett Kavanaugh leads Supreme Court’s criticism of Donald Trump’s Federal Reserve attack
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The Supreme Court heard arguments on Wednesday in Trump v. Cook, a monumental case testing Donald Trump’s ability to fire members of the Federal Reserve. In August, the president sought to fire Fed governor Lisa Cook, a Democrat, over dubious allegations of mortgage fraud. The lower courts reinstated Cook after she sued, which prompted the administration to seek emergency relief from the Supreme Court in September. Instead of acting immediately, the justices scheduled the case for oral argument, letting Cook keep her job in the meantime. Now a majority seems prepared to rule in her favor, though it is not clear exactly how it will do so.
In a special bonus episode of Amicus for Slate Plus members, co-hosts Dahlia Lithwick and Mark Joseph Stern discussed the twists and turns of Wednesday’s two-hour showdown between Solicitor General John Sauer and Cook’s attorney, Paul Clement (who is usually an advocate for conservative causes). A preview of their conversation, below, has been edited and condensed for clarity.
Dahlia Lithwick: This is the part that’s going to be painful for both of us, but we have to praise Brett Kavanaugh. He laid out very clearly what he was worried about, and what comes next if Trump wins. He told Solicitor General Sauer: “If this were set as a precedent, it seems to me, just thinking big picture, what goes around comes around. All of the current president’s appointees would likely be removed for cause on Jan. 20, 2029, if there’s a Democratic president. … Once these tools are unleashed, they are used by both sides and usually more the second time around.” And he mentioned the dangers of the government deciding: “Let’s find something, anything, about this person” to accuse them of a crime.
Justice Kavanaugh is essentially saying: Wait a minute, we’re going to give the president unbridled power to go after anyone on the basis of any fishing expedition with the lowest standards? Let’s cop to the fact that it is weird for both of us to laud Kavanaugh being the calm, prescient voice of reason.
Mark Joseph Stern: It is weird, but it’s not surprising, because this has been something of a passion project for Kavanaugh since well before he joined the Supreme Court. He has long tried to craft a theory that the president could purge every other independent agency of holdovers from his predecessors—but that the Federal Reserve was special, so the president cannot fire its members willy-nilly. He acknowledged that this was partly because the Federal Reserve needs independence to perform its duties as a central bank that fights inflation and seeks full employment. And he was almost as honest about that on Wednesday as he had been earlier in his career. He hasn’t changed his tune. I guess he gets points for consistency here.
It was interesting how Kavanaugh didn’t bother all that much with the finer points of law. Instead, he kept asking the solicitor general: Do you want to destroy the Federal Reserve? What do you think is going to happen if you do? He pressed Sauer to say why the Fed’s independence was important, but Sauer wouldn’t bite. So Kavanaugh did it for him and laid out this nightmare vision of what happens with the next president, and how this does not stop with Trump. He said, in very stark terms: This is how you destabilize the Fed and ensure that we no longer have stable monetary policy. And that leads to inflation and recessions in endless cycles.
I was really surprised by one particular thing that he said: “What goes around comes around.” I thought I’d heard those words from Kavanaugh before, and it turns out I have: That’s what he said during his confirmation hearing when he responded to Christine Blasey Ford’s allegations of sexual abuse. In fact, during that hearing, he spoke in similar terms about the cycle of retribution in politics, about how you sow the wind and reap the whirlwind. I wonder if Kavanaugh empathizes with Lisa Cook, because he thinks that he, too, was the victim of a fishing expedition to smear his character and disqualify him from public office.
I think that’s exactly right. And it goes to this deeper point that we have clocked many a time on this show. Sometimes the justices can’t imagine what it’s like to be hauled out of the car for a traffic stop when you’re brown. But Brett Kavanaugh can certainly imagine what it’s like when some state actor says: Let’s find something bad about this person. It sounded like Kavanaugh thinking: Hey, this could happen to me, because it did happen to me. But this goes beyond Kavanaugh. The justices have had mortgages. They can imagine how one mistake—out of hundreds of pages of a mortgage application—could be turned against them.
We need to talk about these facts for a minute. Sauer led with a very strange opening about Lisa Cook’s Bonnie-and-Clyde-like criminal enterprise, painting her as a danger to humankind because of one accidental misrepresentation on hundreds of pages of forms. Several justices seemed keen to send this case back down for a hearing to determine what Cook actually did, or did not, do. But Chief Justice John Roberts seemed to think there’d be no point. In the end, does it matter what the facts of this case are?
We don’t really know, because there are several ways the court could decide the case in Cook’s favor, and a few of them don’t require resolution of the facts. Some justices, including the liberals, were pushing this idea of notice and a hearing—that Cook needed to be properly informed of this allegation, then given an opportunity to contest it. Kavanaugh also seemed to support the idea that Cook should have a real opportunity to respond, asking Sauer: “What’s the fear of more process here?” There seemed to be a real hunger for some sense of justice for Cook, who did not defraud anyone.
Roberts, by contrast, wanted to set aside this whole question of a hearing because that gets into complicated questions about due process. The chief seemed eager to say: Let’s accept that these are the facts. If they’re true, that’s not sufficient cause to remove Cook from the Fed. He was persistently pushing toward the idea that the facts don’t need “airing” out. We know what they are, and they do not rise to “cause” for Cook’s removal. That’s a clean solution, and the liberal justices will probably sign on if it’s necessary to reach five votes. But it would be a little bit unfortunate to deny Cook a true opportunity to rebut these allegations, because it deprives her of that ability to show, in a formal hearing, that she is not a criminal. And without that, there may be a cloud hanging over her continued service on the Federal Reserve Board. That would be pretty tragic.
How else do they resolve this case against Trump if they don’t want to go down that rabbit hole?
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Well, we sense they’re going to rule against Trump, but we truly don’t know how it’ll happen. This is the one-in-a-million case in which it really would have made sense to just deny the emergency application without explanation in an unsigned order on the shadow docket, then let the lower courts hash it out. It’s the rare instance in which I wish they would not explain themselves, but now they may feel obligated to. So maybe we’ll get a majority for something clear and straightforward like Roberts wants, or order a hearing for Cook. Or maybe they’re just going to make a mess of the law and Trump will try to exploit the ambiguities to fire Fed Chair Jerome Powell next.
It seemed to me, throughout this argument, the vibe from the court was: Yes, Donald Trump, we gave you this red Batphone. You’ve used it to call us every time you don’t get what you want and say it’s an emergency. And we’ve answered you and said yes. But the vibe today from the court was: Why are you calling us on the Batphone? The justices seemed mad that Trump was following the exact directive they laid out, which was to label everything an emergency, go to them with your hurt feelings, and ask them to fix it. It felt a little bit like the tariffs argument: Why are you bringing this to us? Well, because you taught him to. This felt like a room in which the howling winds of nothing were totally emblematic of where we are in the law right now.
