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Two of the Supreme Court’s most important decisions this term contradict each other so brazenly that a future reader might assume they were issued decades apart by very different courts. But in fact, they were authored by the same man, Chief Justice John Roberts, and released at the exact same time. In Trump v. Slaughter, Roberts abolished independent agencies by a 6–3 vote, allowing President Donald Trump to fire their leaders for any reason. Then, in Trump v. Cook, the chief justice created an exception to this rule for the Federal Reserve by a 5–4 vote, prohibiting the president from removing without good cause. It is impossible to reconcile these two decisions as anything other than a partisan effort to hand Trump dictatorial control over the government without allowing him to drive the nation into a recession.
On this week’s episode of Amicus, co-hosts Dahlia Lithwick and Mark Joseph Stern discuss the bizarre split screen of Slaughter and Cook, and how the conservative supermajority’s myopic view of presidential power hampers the government’s most basic functions. They’re joined by two experts in the field: Jed Shugerman, a professor at Boston University School of Law, and Sam Bagenstos, a professor at University of Michigan Law School. An excerpt of their conversation, below, has been edited for length and clarity.
Dahlia Lithwick: It would be easier to square Slaughter and Cook if the same guy hadn’t written both opinions. There was some interesting stagecraft where they were read sequentially from the chamber but handed out in the pressroom together. So the folks in the pressroom got them at the same time, and they came online at the same time. But if you were sitting in the courtroom, you found out about Slaughter first, then found out about Cook’s weird carve-out later. Jed, do you want to make an attempt to explain Cook as something more than cynical and results-oriented?
Jed Shugerman: There is no way a principled originalist can reconcile Slaughter and Cook, but let me try to give the best account for this. The founders themselves created a superindependent entity, the First Bank of the United States, which was completely free of presidential control, as was the Second Bank of the United States. Cook says that because the Fed has the most connection to monetary policy, it can be independent, because the founders created an independent bank too. Can I go cynical now?
Mark Joseph Stern: Do it.
Shugerman: Let’s give partial credit to Justices Clarence Thomas and Amy Coney Barrett, who get the history spectacularly wrong in Slaughter but have the goods on this. You can’t rely on the First and Second banks of the United States because they were entirely private and had zero executive regulatory power. The banks are not a precedent for the Fed because the Fed exercises executive power in formulating and executing policy. The First and Second banks could do none of that. So this isn’t just historians saying no. These are colleagues who signed on to Slaughter who are calling out Roberts for making this up.
Stern: Just to build on Dahlia’s point, I’ll remind everyone that the Supreme Court normally publishes opinions on its website as they’re announced in the courtroom, but Slaughter and Cook are published online at the exact same time. Why? Almost certainly because Roberts knew that he would read Slaughter, then Justice Sonia Sotomayor would read her dissent. So there’d be half an hour in between Slaughter and Cook coming down, and the markets might panic during that time, because anybody reading Slaughter without Cook would assume that it also applies to the Fed, because there’s no principled way to carve it out. That makes it really obvious that Cook is fundamentally about protecting wealth and making sure the justices’ 401(k)s don’t tank.
Sam Bagenstos: You don’t have to be particularly perspicacious to be cynical here. Justice Brett Kavanaugh tells you in his concurrence exactly why he’s voting for a special Fed exemption from Slaughter. He specifically says he won’t unsettle the financial markets that rely on having an independent Fed. It’s obvious that this court has an agenda of removing fetters on executive power except where that threatens their 401(k)s or the business class. We saw that in the tariff case earlier this year. Honestly, we saw that in all of the ways in which the Supreme Court attacked Joe Biden’s use of executive power to try to regulate the economy. So I think it’s important not to say this is a principled court that is supportive of executive power. They’re supportive of the executive power up to a point, and that’s the point where it threatens the interests of big business.
Mark Joseph Stern
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Shugerman: It’s also about the fact that the only institution in Washington that still has a working majority of establishment Wall Street Republicans is the Roberts court. And it is basically making up a pseudo-originalist basis for granting independence to the agency they like, which also has a conservative Wall Street bent. Everything else is the “deep state.”
Stern: Let’s talk about all those other agencies that are not the Fed and are now subject to Trump’s direct control. Sam, can you help us understand the size of the hole that Slaughter blows through the structure of our government? For a lot of people, this is still an abstraction. But what will this actually look like in practice?
Bagenstos: Through the years, the people and their representatives have made clear that there are a lot of things they don’t want to be decided based on day-to-day politics. I’ll start with an area where I did a lot of work during the previous administration: public health. Obviously, there are a lot of political choices that get made in public health, but there’s also a very substantial component of that that’s just about science. How do viruses get transmitted? What are the molecules that are going to effectively attack those viruses? We want to be making those decisions not based on someone’s whims or what’s going to serve the polls but based on science. So we want the agencies that make those decisions to be independent. That’s also true of agencies that guarantee safety of consumer products, that protect workers’ right to organize, that prohibit discrimination.
Slaughter says those agencies can’t actually be independent. They’ve got to be subject to the will of the president. A president can just fire all the people who are leading those agencies if he disagrees with them, even if they’ve been properly nominated and their terms aren’t up yet. That’s going to make a huge difference. It’s going to enable things like what we’ve seen in the first year and a half of the second Trump administration, when he was acting as if the Supreme Court had already decided this case. He has politicized all these aspects of governance that need to be carried out on a nonpartisan and independent basis. And Roberts was very squirrelly about how far his decision extends. His analysis was that we need to have a president who is accountable to the people for the decisions made by his government, which means he has to be able to fire his “subordinates” if they don’t do what he wants.
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Well, what is a “subordinate”? We know it includes the head of an agency. But does it extend to other political appointees within that agency? Does it extend to the civil service as a whole? Since the 1880s, we have understood that government works better for the people if the mass of workers in the government are hired and promoted based on merit and not on which political party they support. The Trump administration has indicated that it thinks civil service protections are unconstitutional and the president ought to be able to hire and fire all of the people within the government at will. This president has already asserted the power to fire career civil servants based on his understanding of the Constitution. And in Slaughter, the court leaves open the argument Trump is making, that the entire civil service is unconstitutional. It could have easily said it was talking only about political appointees, but it didn’t. Once you get rid of the civil service, that is a dramatic sea change in the way we do government in this country. It will make government work much more poorly across everything it does for the people.
