Will the Court Create a King?
The Supreme Court's conservative majority is using the contradictions of its own precedents as an excuse to expand Trump's power
The Rush to Flatter the King
This past week, Netflix and Paramount have waged a high-profile bidding war to acquire Warner Bros. Discovery: a major Hollywood studio that owns the HBO Max streaming service and—crucially—the cable news titan CNN.
Within hours of Netflix announcing their offer for the company, Trump was already hinting that he would play a role in the negotiations. The deal “could be a problem” for Netflix from an antitrust perspective, he told reporters.
Paramount obviously sensed an opening in Trump’s words. They have now entered their own hostile takeover bid to acquire the studio and have spent the days since Netflix’s announcement paying court to Trump, in the hope that he will put his thumb on the scale in their favor.
They should have a leg up in this fight. After all, Paramount already paid Trump a massive lump sum earlier this year in order to settle a lawsuit he brought against them—and promised a sweeping set of editorial changes in order to bring their news reporting in line with his personal agenda.
Shortly thereafter, they announced they would take the prominent Trump critic Stephen Colbert off the air.
More recently, they appointed the “anti-woke” journalist Bari Weiss to run the CBS News department, after Trump threw a tantrum about the way 60 Minutes had covered his opponents.
But in recent days, Paramount has fallen out of Trump’s favor. Bari Weiss has apparently not done enough quickly enough to overwhelmingly skew the network’s news coverage in his direction. A particular source of ire to Trump was the appearance of one-time MAGA extremist and now improbable Trump-foe Marjorie Taylor Greene on 60 Minutes, in which she criticized the president.
Trump apparently thought he had successfully converted one of the country’s major private news broadcasters into an arm of MAGA state media—and here he finds them still providing a platform for his critics (even if mostly critics from the far right). Predictably, he gave Paramount a tongue-lashing on social media for this failure to grovel and abase themselves sufficiently for his pleasure.
And so, Paramount’s CEO David Ellison—son of the Trump-aligned billionaire Larry Ellison—reportedly rushed to soothe our toddler-in-chief’s temper. Specifically, as the Wall Street Journal reports, Ellison promised Trump he would “make sweeping changes to CNN” if the president helped him to acquire its parent company. I think we all know what that means.
In brief, he was promising that he would compromise the news outlet’s journalistic independence—and pervert it into yet another mouthpiece for the president—if Trump corrupted the purpose of federal antitrust law in order to do his political allies in the Ellison family a personal favor. As CBS News goes, so goes CNN, in short.
What does this have to do with the Supreme Court?
This little dispatch from the world of court politics—live from our country’s new Versailles on the Potomac—may seem out of place in a blog post about this week’s oral argument in the Trump v. Slaughter case.
But I bring it up because it illustrates what it means to live in a world without the Humphreys Executor precedent that the Court’s conservative majority appears poised to overturn.
In a normal political world, after all—the one we have lived in for the last century or so of American history—the president would not be a key player one way or the other in an acquisition fight over a private company.
But, since taking office this term, Trump has fired the Democratic members of the Federal Trade Commission (FTC) and converted this supposedly independent agency into an enforcement arm of his political agenda.
(The newly-Trumpified FTC has, for instance, tried to advance Trump’s anti-trans views and has harassed the liberal watchdog organization Media Matters for daring to report (accurately) that Elon Musk is hosting antisemitic content on X.)
So when Trump hinted that Netflix “might have a problem” with an antitrust case, Trump was obviously tipping his hand that he might use his allies on the FTC to intervene in the bidding war. This is what set up the rush on Paramount’s part to flatter Trump and promise the various editorial compromises described above.
Paramount recognizes that it now inhabits a world where—if you are willing to debase yourself enough and throw your journalistic integrity in the trash—you just might persuade the president to wield his antitrust enforcement powers to corruptly disadvantage your business rivals.
Needless to say, this was not the original purpose of the FTC. The Commission was set up to enforce the nation’s antitrust laws—statutes prohibiting unfair trade restraints and monopolization—in a politically neutral manner.
Of course, there is always a danger, in creating any new executive power, that it could be used for a corrupt purpose—such as to punish critics of the president while rewarding partisan allies. This is exactly why Congress designed the commission to have a permanent partisan balance in its leadership and bestowed “for cause” removal restrictions on the commissioners, so they could not be bullied and threatened into toeing a particular party line.
But Trump has openly disregarded these laws by firing Democratic FTC members: and now, the Supreme Court appears poised to let him get away with it.
How can the Court’s conservative majority justify this?
The independence of the FTC rests on a ninety-year old precedent known as Humphrey’s Executor, which held that it is constitutional for Congress to limit the president’s removal powers in order to ensure the non-partisan character of some executive agencies.
For years already, though, the Court’s conservative majority has chipped away at this precedent, in service of their belief in the so-called “unitary executive theory.” In the 2020 case, Seila Law v. CFPB, for instance, the Court ruled by a 5-4 majority that Congress could not limit the president’s removal powers when it came to single-director-headed agencies.
While this decision obviously took a big bite out of the logic of Humphrey’s Executor, it did not explicitly overrule it. To the contrary, it left the precedent in place as applied to multi-member-headed agencies like the FTC.
This is what has allowed government agencies like the Tax Court and other Article 1 courts and the Federal Reserve to remain relatively independent since the ruling (so far).
But now, even this carveout for multi-member-headed boards appears to be on the chopping block.
After Trump fired the Democratic members of the FTC and several similarly-situated multi-member-headed nonpartisan agencies, the injured parties filed suit, citing Humphrey’s Executor (which—again—is for now still considered good law).
But the Supreme Court, acting through its emergency docket, already started to behave as if Humphrey’s Executor were ancient history. They stayed the injunctions on Trump’s removals, largely allowing him to proceed with the firings he had in mind, even before the case was litigated.
In short, they rendered Humphrey’s Executor a dead letter before they had officially axed it—which is why Trump has already been able to convert the FTC in the past year from an independent nonpartisan agency into an enforcement arm of his partisan agenda and a servant of his corrupt personal interests, in exactly the way described above.
All of which appears to open the door for Trump to eviscerate the political independence of every part of the executive branch—except, conspicuously, for the Federal Reserve—which the majority carved out in a vaguely-worded footnote to one of their emergency rulings, finding that the Fed’s “unique” and “distinct” history entitled it to separate consideration.
More than one observer has speculated that the Court’s conservatives wrote this passage with one eye on their stock portfolio. As someone said: “They wanted to do as much of the unitary executive theory as they could without wiping out their retirement accounts.” (I guess shielding executive agencies from corruption and partisan interference suddenly seems like a good thing to these justices—but only when their personal interests are involved.)
Forcing Advocates to Account for the Court’s own Bizarre Precedents
All of this we knew already, going into this week’s oral arguments in Trump v. Slaughter (the FTC removal case). But one thing I hadn’t predicted before the session began was just how disingenuous the Court would be about the paradoxes and contradictions created by their own prior precedents.
When the government’s lawyer came before them—Kavanaugh asked him (not unreasonably) how they could claim to preserve Federal Reserve independence while otherwise gutting the independence of every other nonpartisan executive agency.
The Solicitor General, D. John Sauer, responded by reciting the Court’s dangling footnote from their emergency ruling back to them: the Fed was “unique” and “distinct,” he said.
“But what’s so unique and distinct about it?” the justices then wanted to know.
Sauer did not seem to have a good answer to this. And of course he didn’t. There is no good answer to this.
If the Court finds that all restrictions on the president’s removal power are unconstitutional, then there really is no principled reason to carve out the Fed. Everything from the civil service to the Tax Court to the central bank would likely fall alongside the FTC.
But whose fault is that? The Court’s the one that created this ludicrous set of precedents to begin with. The justices put Sauer in the hot seat to come up with a post hoc rationale for their own self-contradictory rulings, which they couldn’t be bothered to explain themselves. Which is hardly fair (not that I have any sympathy for Sauer).
Kavanaugh acknowledged at one point that it was beginning to look like there was a bit of a “gerrymandered” rule emerging to separate out the Fed; and he’s right. But who gerrymandered it?
Of course, the justices were even more merciless toward the plaintiffs on the former FTC commissioner’s side, whom they are almost certain to rule against (the question now is just—how sweepingly).
When it came time for the plaintiff’s attorney to come before them, they likewise put him in the impossible position of trying to justify their own absurd precedents back to them.
They asked him, for instance, why single-headed agencies couldn’t be subjected to for-cause removal restrictions, but multi-member-headed agencies could be.
He responded: because your decision in Seila Law five years ago said so.
To which, Clarence Thomas and others chuckled. “But what principled difference should it make whether it’s a multi-member-headed agency or not? Why is that an important distinction?” they wanted to know.
And of course—there is no reason why this should matter. Seila Law never made any sense.
But they are the ones who wrote the opinion! Now, they want to poke fun at the attorney before them for being unable to adequately justify their own illogical swiss-cheese rulings?
Judicial Accelerationism
So now—we begin to see the game that this court plays in order to reverse its own precedents.
If you want to undo a ruling that has stood for nearly a century—and has provided the basic scaffolding for how our constitutional order has operated for that entire length of time—you know you can’t do it all in one go. It’s too obvious that way. So instead, you whittle away at the precedent. You break off pieces of it.
When you have chipped off enough of it, it begins to look spurious. It draws lines on a totally unprincipled basis. It does indeed start to appear like it has been “gerrymandered” to reach a set of foregone conclusions.
Then, you hold up this monstrosity of your own making before the attorneys and you say: how can you justify this? How exactly is this supposed to make sense? And of course, it doesn’t make sense. It makes no sense because the court made it in a nonsensical way. And now, no one can justify it.
And so, the Court gets to overrule its precedent.
It’s a kind of “accelerationist” approach to judicial lawmaking. The justices first “heighten the contradictions,” so they can then make their intended jurisprudential revolution seem inevitable, when it comes.
I’m reminded of how the Roberts Court overturned affirmative action, for instance. There, they followed a similar strategy.
Prior Court rulings had decreed that schools could not justify racial preferences based on a desire to remedy past discrimination or to ensure a particular level of representation for a given racial group. Instead, the prior decisions had found, schools could only take race into account in order to ensure the “educational benefits of diversity.”
But when Harvard came before them a few years ago—in the case that overturned affirmative action in higher education—the justices suddenly confronted the school’s lawyers with the illogic of this position. “What can you mean by ‘diversity,’” they wanted to know, “unless it has something to do with ensuring a certain racial composition or balance in each class?”
And indeed—the school’s position didn’t make any sense. But that’s because the Court had already forced them to argue from an untenable position. They couldn’t just admit that the real reason we should have race-based affirmative action in higher education is the one the justices already ruled out of court decades earlier: namely, to remedy the effects of past discrimination.
The Roberts Court is obviously employing a similar tactic now to get rid of Humphrey’s Executor. Except—in some ways—the device is even more flagrantly disingenuous here. At least in the case of the affirmative action decision, they could say that they were not personally responsible for the Court’s earlier illogical rulings. In the case of Seila Law, by contrast, they have no such excuse.
All five of the conservative justices who signed onto Seila Law in 2020 are still on the bench now. And they were the same ones forcing counsel to squirm on Monday by asking how that precedent was supposed to make any sense alongside Humphrey’s Executor.
And obviously, the answer is: it doesn’t make any sense! But you are the ones who made it not make sense! You, specifically—Thomas, Roberts, Gorsuch, Kavanaugh, Alito—all of whom were responsible for the outcome in Seila Law!
Let’s be real: What’s the biggest danger here?
Of course—there are other ways we could have structured our modern government. Maybe it was a mistake to consider things like the FTC as part of the executive branch in the first place.
Maybe we want to force Congress to legislate directly on every question of public policy, rather than delegating some powers to agencies or independent commissions (though this quickly becomes a problem under modern conditions, when you have random senators and members of the House trying to figure out, say, how to define the market of social media for purposes of an antitrust case; or, how many parts per million of a given chemical are safe to consume in drinking water, etc.)
No matter—even if it’s possible to conceive of different arrangements, this is the one we’ve had for ninety-plus years; and on Burkean grounds alone we should hesitate before subverting it and placing the entire apparatus under the direct personal control of the president.
From the bench on Monday, the conservative justices were able to conjure various hypothetical dangers that preserving Humphrey’s Executor might one day allow: such as a future Congress that wanted to put all cabinet departments under the control of the legislature.
But the fact is—as Justice Kagan pointed out—Humphrey’s Executor has stood for ninety years, and an excessive consolidation of legislative power has never yet been a problem in that time (if anything, during those decades, Congress has ceded power after power to the president).
Meanwhile, we have a real-world, real-time example of the opposite danger staring us in the face. We need posit no hypotheticals in order to explore the risks of what can happen if the president achieves unilateral power over ostensibly nonpartisan agencies. Trump is already doing it. He is already treating these agencies as his personal attack dogs—siccing them on his critics and using them to reward his loyalists.
But of course, the conservative majority will close their eyes and ears to this. They will say, as Justice Barrett did on Monday, in so many words: “we have to make a decision that will last for twenty years, thirty years; we can’t just be looking to current events.”
What about a decision to last for ninety years? We had that. It was Humphrey’s Executor. Our entire modern democracy and economy grew up around it. Now, apparently, we are going to shred it in order to bestow kingly powers on a single man who has already proven himself in every possible way to be the last person we should ever trust with them.
But Trump is only a king if we make him one
All of these are very good reasons why the Court should stop short at overruling Humphrey’s Executor. It should appear unthinkable even to this Court, even with all its priors about “unitary executive theory,” to want to hand Trump that kind of unbridled authority in one go. So people were still saying just a couple months ago at least: legal observers at that point were still opining: “Roberts is definitely going to want to reign in Trump eventually.”
Yet—one of the saddest features of human psychology is how quickly we seem to adjust to unacceptable things, once the initial shock wears off. Trump has not been back in power for even a year, and already, we seem to take it for granted that major corporations have to personally curry favor with him in order to win approval for their takeover bids.
The nation’s elite already treats Trump like a king, even before the Supreme Court has made him one. We already act as if we lived in a post-Humphreys world. And so, we might as well be in one.
If only we would realize what an empty suit of armor Trump actually is—that these kinglike powers he seems to possess are only there because we handed them to him, without a fight—that all this “anticipatory obedience” toward Trump is a self-fulfilling prophecy, and we could just as easily reverse it through collective action.
And what makes it all the more reprehensible is that the elites who are toadying most to Trump, and handing him unprecedented powers, don’t even have the excuse of necessity; these billionaires and judges could lose their jobs tomorrow and be just fine. They are in a position to take risks; but they don’t. They leave the courage to people who have the least ability to defend themselves.
If just a handful of these corporations and law firms and justices and universities and billionaires would stand up and say: you are not king! You are not God! We have rights! We have law; and it binds you as well as us!—then Trump would wither and crumple back into human proportions again. As D.H. Lawrence once wrote, of the “beastly bourgeois”:
Touch him, and you’ll find he’s all gone inside
just like an old mushroom, all wormy inside, and hollow
under a smooth skin and an upright appearance.