Are they afraid Trump will get them killed?
Ninety years ago, President Franklin D. Roosevelt fired William E. Humphrey from the Federal Trade Commission (FTC). Humphrey sued to the Supreme Court, which ruled that the Constitution had never given “illimitable power of removal” to the president and that he couldn’t fire Humphrey. The case is called Humphrey’s Executor v US — Humphrey got his job back.
The unanimous decision of the Court was clear and explicit:
“We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named.“The authority of Congress, in creating quasi-legislative or quasi-judicial agencies, to require them to act in discharge of their duties independently of executive control cannot well be doubted, and that authority includes, as an appropriate incident, power to fix the period during which they shall continue in office, and to forbid their removal except for cause in the meantime.
“For it is quite evident that one who holds his office only during the pleasure of another cannot be depended upon to maintain an attitude of independence against the latter's will.”
On Monday, without public argument, debate, or discussion, the Republican majority on today’s Court let Trump fire FTC Commissioner Rebecca Slaughter, a complete and obvious deviation from the Humphrey’s precedent. They gave no reasoning other than that they’d deal with the issue later.
Justice Elena Kagan was having none of it, issuing a blistering dissent that said, in part:
“Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers,”
Why are these six Republican appointees deferring to Trump in such an obvious violation of precedent and the Constitution they’ve sworn to uphold? This, and a handful of other times they’ve rolled over for Trump, is quite literally unprecedented.
The six Republicans on the Supreme Court have been amazing, baffling, and horrifying Court-watchers and judges beneath them from across the political spectrum, as they use their so-called Shadow Docket to issue dictates that clearly contradict the Constitution, violate settled precedent, and even break black-letter law.
All, apparently, to appease Donald Trump.
As the famous conservative Judge Michael Luttig recently wrote:
“He has enthralled our Supreme Court, spellbinding it into submission to him and his will rather than to the Constitution and its will, and our Supreme Court has favored him with its affirmation and its acquiescence in his lawlessness.”
But why are these six justices going along with this?
Is it because, like is alleged of Clarence Thomas and Sam Alito, they’re all on the take, benefiting from the largess of rightwing billionaires or the fundraising impresario Leonard Leo, powerful figures who are ordering them to violate the very oath they took when they assumed office?
Or is it because they’re so ideologically extreme, wed to a 21st-century form of neofascism, that they’re enthusiastic to overturn 249 years of our constitutional order?
Or could it be that they’re simply terrified to cross The Don, a man who told the world this weekend that he “hates” people who cross him? Look at what he’s doing right now to his former Republican colleagues and employees, James Clapper, James Comey, and John Brennan. And don’t forget Miles Taylor. It’s brutal.
Consider also what else they’ve done so far this year, handing down more shadow docket rulings in nine months than during the entire 16 years of the Bush and Obama administrations combined:
In US v Shilling they let Trump dismiss transgender individuals from the armed forces even though the ban clearly constituted invidious discrimination that violates the Fifth Amendment’s equal protection component and due process. They heard no arguments and gave no explanation.In OPM v AFGE they blew up civil service protections for federal workers, creating a due-process debacle to let Trump fire pretty much anybody he wanted. They heard no arguments and gave no explanation.
In Dept of Education v California they allowed Trump to engage in illegal viewpoint-based retaliation against DEI-related content and violate the First Amendment and Spending Clause limits. They heard no arguments and gave no explanation; Justices Sonia Sotomayor, Kagan, and Ketanji Brown Jackson were so furious they wrote two dissents.
In Noem v National TPS Alliance they trampled due process and undermined the law Congress had passed that allowed immigrants to have temporary protected status so Trump could pull that protection from any brown-skinned person he wanted (although this was specifically about Venezuelans). They heard no arguments and gave no explanation.
In Noem v Svitlana Doe they allowed across-the-board termination of “humanitarian parole” and work authorizations for hundreds of thousands of people here legally from Cuba, Haiti, Nicaragua, and Venezuela, trashing the Constitution’s requirement for individualized process and to avoid disparate impact. They heard no arguments and gave no explanation; Justices Sotomayor and Jackson were so angry they wrote a joint dissent.
In Trump v CASA de Maryland they allowed Trump to start narrowing birthright citizenship in what the dissenters said “directly contradicts the text and original meaning of the Fourteenth Amendment.” Civil rights groups called Trump’s executive order “flatly unconstitutional” but they heard no arguments and gave no explanation.
In Noem v Vasquez Perdomo they allowed ICE to seize, search, and detain people based on their race, language, accent, or job description, in clear violation of both civil rights laws, the Fourteenth Amendment, and the Fourth Amendment protections of privacy and the requirement for a warrant to be judge-issued based on reasonable suspicion and witness testimony. They heard no arguments and gave no explanation; Justices Sotomayor, Kagan, and Jackson were so furious they wrote a dissent.
In Trump v Wilcox they allowed Trump to defy the constitutional separation-of-powers framework (and longstanding limits on at-will removal for certain independent-agency officials), to get rid of officials he didn’t like in independent agencies that Congress had previously separated from the president’s overview, in clear defiance of the US Constitution.
Every one of these decisions is shocking on its face, and more like them are expected. Up next is most likely a decision that may further gut voting rights in America, the only advanced democracy in the world where voting is still a privilege that can be withdrawn without notice instead of a right.
Why is this happening?
While the two elected branches get their legitimacy from “the will of the People,” the Supreme Court derives its legitimacy from openly and transparently deliberating after hearing arguments, and explaining its rationale, so anybody can understand its logic and the decisions can become a guide for future court cases.
When the Court simply says, “This is the way it is because I say so,” like a parent talking to a child, rather than explaining, it erodes faith and confidence in our justice system.
It becomes a type of justice system, in fact, that America has never seen before outside of the old Confederacy. That’s the kind of damage these Shadow Docket decisions cause.
So, why would they do this? Why would these six people defy the Founders and Framers, spit on the Constitution, and trample the rule of law, all in the service of a single wannabe dictator?
I’ve heard the arguments that they’re on the take, and they’re compelling, particularly when it comes to their Citizens United decision that allowed billionaires to buy politicians and judges and came soon after a rightwing billionaire had showered Clarence Thomas and his wife with millions in gifts and vacations.
And it’s clear that at least Thomas and Alito are so ideologically extreme that they probably wouldn’t have been uncomfortable on the German supreme court in the 1930s.
But I think the real reason is that they’re terrified.
After all, these are not (like 13 of the billionaires in Trump’s cabinet) rich people. Sidewalk protests in front of Kavanaugh’s and Roberts’ homes have let the nation see that they live in nice houses in nice neighborhoods, but don’t have the gated security and armed guards of your average decamillionaire or billionaire. They feel vulnerable.
And for good reason.
Roy Den Hollander posted pro-Trump writings online and had officially volunteered for Trump’s 2016 presidential campaign prior to showing up at the door of federal Judge Esther Salas disguised as a FedEx driver. Her 20-year-old son, Daniel, answered the door and Hollander shot him dead, then wounded his father before escaping and ultimately killing himself.
The initial story that went viral was that he’d been dressed up as a pizza delivery person, so in the years since this incident, according to the US Marshall’s Service over a hundred judges who’ve handed down anti-Trump decisions have had pizzas delivered to their homes at weird hours, by way of saying, “We know where you live and can kill you whenever we want.”
The pizzas are often addressed to be delivered to “Daniel Anderl” care of the judge whose home is targeted, and sometimes even to the children of the judges receiving the pizzas; Daniel was the son of Judge Esther Salas who was killed in the attack targeting her entire family, and Salas described this ongoing rightwing terror campaign against her peers as “psychological warfare.”
Trump has used terms like “monsters,” “lunatics,” “crooked,” and “radical left” to describe judges who rule against him. His rhetoric regularly portrays judges who rule against him as political enemies, further fueling attacks and harassment from his supporters.
Judge John McConnell, for example, said he received more than 400 threatening voicemails, including messages like “Tell that son of a b---- we’re going to come for him” and “I wish someone would assassinate your a--” after ruling against Trump.
On top of that, of the 31 politically motivated attacks and assassinations since 2018, only one was done by a “leftist”; all 30 others were committed by confirmed rightwingers, the majority openly Trump supporters.
Given this history, it’s easy to see why these Supreme Court judges may be afraid of earning Trump’s ire by ruling against him.
They know that with just a half a dozen sentences on his low-rent social media site, Donald Trump could say things about any one of them that would incite a lone wolf to come to their homes to kill them.
Just last week, responding to the Kirk killing, Amy Coney Barrett said, “Political discourse has soured beyond control…”
After all, if university presidents, wealthy heads of major law firms, the heads of CBS and ABC, and billionaires from Zuckerberg to Bezos are so terrified of Trump they’ll humiliate themselves (think Tim Cook or Mark Zuckerberg) before him, why wouldn’t Supreme Court justices be, too?
It also explains why they’re using the shadow docket instead of the normal merits docket; shadow docket decisions are temporary and easily overturned after Trump leaves office, theoretically limiting the damage these rulings are causing to our republic.
They might have even convinced themselves they’re doing the best thing, by postponing a moment of conflict to reduce Trump‘s damage to America. After all, both JD Vance and Elon Musk have said that they’re willing to ignore decisions of the Supreme Court; once an administration has gotten away with that, pretty much any power the Supreme Court has completely vanishes.
This is a horrible truth all nine members are well aware of, one alluded to by both Alexander Hamilton and John Marshall. The court has no mechanism to enforce it rulings other than its credibility.
The Trump administration last week asked Congress for an additional $58 million to provide security to federal judges, presumably including the Supreme Court. Ironically, if they begin to feel safe as a result, Trump may rue the day he provided them with that additional security.