SCOTUS Kills Independent Agencies, Expands Presidential Power

In this emergency episode, Leah and Kate break down today’s incredibly consequential decisions in Trump v. Slaughter and Trump v. Cook, which followed the Project 2025 playbook to rewrite almost a century of precedent regarding presidential power. They also discuss how close the Court came to ruling that states can’t count absentee ballots that are cast by election day but received after election day in Watson v. RNC. Get tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.com http://Crookedcon.com Buy Melissa’s book,The U. S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader https://bookshop.org/p/books/the-constitution-annotated-for-the-contemporary-reader-melissa-murray/8e7f0dfa472fc3ca?ean=9781668221938&next=t& Buy Leah’s book, Lawless https://bookshop.org/p/books/lawless-how-the-supreme-court-runs-on-conservative-grievance-fringe-theories-and-bad-vibes-leah-litman/5b562d6fcb316d6e?ean=9781668054642&next=t, now out in paperback Follow us onInstagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.social For a transcript of an episode of Strict Scrutiny, please email [email protected] mailto:[email protected].

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Melissa Murray?

  Strix Hirtney is brought to you by Americans United for Separation of Church and State. The Trump administration's excessive Christian nationalist rhetoric is only building as we move toward the 250th anniversary of the Declaration of Independence. Those most caught in the crossfire are federal workers, specifically, a multi-faith group of federal employees who have filed a new lawsuit against the U.S. Department of Agriculture for violating the separation of church and state and the religious freedom promised in our Constitution. Our friends at Americans United for Separation of Church and State received emails from multiple USDA employees. A handful of employees reached out to say that the proselytizing Easter email sent by

• 0:40Melissa Murray?

  Secretary of Agriculture Brooke L. Rollins to more than 100,000 USDA employees is an abuse of power that violates the separation of church and state promised in the First Amendment. They are absolutely right. And I just have to remind you, as we continue to think about the nation's 250th anniversary, that the whole question of religious freedom is not solely about religious pluralism, about different religious sects being able to flourish in the United States. It is also a hedge against tyranny, the idea that religion provides alternative sources of values and allegiances that imbue the individual with the capacity to be skeptical when the government comes peddling its own orthodoxies.

• 1:22Melissa Murray?

  So, when you think about this, it's not just about letting a million flowers bloom. It's literally about keeping limited government in place. And the hits just keep coming from this administration, and Americans United is doing their level best to keep up the fight against Christian nationalism. And if you want to help, head over to au.org/crooked to learn more about their work and how you can get involved.

• 1:45Speaker 01

  It's said everything happens for a reason, but maybe everything happens for a recess. Take noise-canceling headphones. Do they block hearing to heighten taste? Hmm. That sound seems to show everything happens for a recess.

• 2:03Speaker 02

  Mr. Chief Justice, please report. It's an old joke, but when a arrogant man argues against two beautiful ladies like this, they're going to have the last word.

• 2:14Speaker 03

  She spoke not elegantly, but with unmistakable clarity. She said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

• 2:45Kate Shaw?

  Welcome back to District Scrutiny. Yes, it is a two-episode Monday because the Supreme Court has just decided that no matter how much power they have given to the president, or maybe just this president, it is still never enough. We are your hosts. I'm Kate Shaw.

• 3:01Leah Litman?

  I'm Leah Litman, and Melissa is currently on a plane, doing her level best to scramble here to tell John Roberts to pound sand. So just wanted to give you a heads up in case she is able to make it and get into this recording. We work overtime because the court makes it as difficult as possible.

• 3:17Kate Shaw?

  She's personally piloting the plane to get here.

• 3:19Leah Litman?

  She did offer to do so.

• 3:21Kate Shaw?

  I hope she stays here.

• 3:22Leah Litman?

  And speaking of bad decisions, today we got some big, bad ones, including ones that give Donald Trump the power to control agencies that have historically been independent from the president, except, of course, the independent Federal Reserve Board, because of the economy and reasons. And if you think that's an exaggeration of the court's analysis, I think you'd be wrong because, OMG, they basically admit it.

• 3:45Kate Shaw?

  And yes, we are, of course, talking about the opinions in Trump versus Slaughter and Trump versus Cook, where SCOTUS, pardon the puns, but we just can't avoid it, slaughtered its precedent, cooked Congress, and handed the president the power to fire the head of every independent agency and commission, ending the existence of independent agencies. But wait, there is an important exception, and that is the Fed, because...

• 4:11Kate Shaw?

  You know, like somehow the press like leaves it TK in a draft that gets published because TK insert economic reason here. That is basically the distinction the court doesn't even particularly try to offer between the big win for Trump, 6-3 in Slaughter, and the loss-ish for Trump, but maybe long-term win for the political fortunes of the Republican Party in Cook, 5-4.

• 4:40Leah Litman?

  Both decisions were written by noted institutionalists and maybe Civil War cosplayer and maybe on the side of the Confederacy, Chief Justice John G. Roberts. We'll explain that remark, don't worry.

• 4:51Kate Shaw?

  Andrew Johnson just jumped off the page in that opinion.

• 4:53Leah Litman?

  I could not believe it when I got there.

• 4:56Kate Shaw?

  We will explain. But little more introductory material. First, Slaughter, as we have, I think, been already signaling, is a hugely consequential decision. It is a massive redistribution of power and sort of completion of this slow accretion of power over the federal administrative state and its vast regulatory powers into the president. And so this shift is also an enormous expansion of presidential power.

• 5:23Leah Litman?

  So in this emergency episode, we will cover the decisions in Trump versus Slaughter and Trump versus Cook, and then we will briefly explain why you do not, under any circumstances, have to applaud the court for its decision in Cook or for its decision in the absentee ballot case, Watson versus RNC. So justices, start your engines. It's an ordinary day at One First Street, which means it's time for the 6-3 right-wing supermajority to shred some longstanding precedent and keep working on the conservative legal movement's wish list.

• 5:53Kate Shaw?

  Okay. First up, Trump versus Slaughter. This is a big win for Trump and a big loss for the public and also for Congress. Remember that time, we alluded to it actually on the other episode we released today, when pundits were peddling fanfic, that what the court was actually doing was empowering Congress?

• 6:13Kate Shaw?

  I mean, it's unclear that that take is holding up particularly well in the face of Slaughter, which overturns the near centuries old case, Humphrey's executor, that facilitated modern governance by allowing Congress, and we should say Congress with the signature of the president, you know, over, over many, many decades, to create independent agencies and empower those agencies that are a critical part of the contemporary federal administrative state.

• 6:36Leah Litman?

  And for once, the president was on to something over at Truth Social, like even the president gets this, where he posted, quote, "To show the importance of the Slaughter case, 90 years of precedent has been," all caps, "completely and unequivocally overruled, greatly increasing presidential power at a time when it is most needed." Most needed? What are you planning to do? Is he envisioning firing the entire federal government in a year or two? I just, I don't know.

• 7:07Kate Shaw?

  Right. But most needed because he has been so constrained. And, and that is the thrust, kind of, of the opinion, which is the big separation of powers flaw that we have all been afflicted by is insufficient attention to presidential power and excessive permission of checks on presidential power from, you know, these pesky independent agencies, from Congress deciding to give some officials a degree of insulation from the president. Like, that is the most critical separation of powers problem of the day, and the court has, in its infinite wisdom, now solved it. So, the basic holding of Slaughter is that the president has to have control, and essential

• 7:51Kate Shaw?

  to that control is the power to remove or fire any officer exercising significant executive power. And because, according to the court, all agencies, even the ones we have long understood as independent, exercise significant executive power, the president has to be able to fire the heads of those agencies, even where Congress has passed and presidents have signed laws that say otherwise. And that also these laws, by their terms, insulate agency heads from presidential removal. None of that is permissible under this court's vision of the separation of powers. So a big question that the case leaves very much open is, does this rule also mean the president can fire line officials within these agencies, not just the heads of these agencies, individuals who are part of the career

• 8:35Kate Shaw?

  civil service, if they work at agencies that exercise significant executive power? It is wild that they are silent on this question, at least in the earlier cases that are sort of the foundations of building blocks that lead to slaughter. The court said, we're not touching the civil service today. The silence, I really fear speaks volumes. And it is clearly an invitation to more litigation, to fill in some of the gaps and to kind of demarcate the boundaries of this decision. But I fear it is just incredibly expansive.

• 9:11Leah Litman?

  Yes. While they left that unclear, the justices did make perfectly clear that Humphrey's executor, the near centuries old case in which the court upheld the statute governing the Federal Trade Commission that the court invalidated today, the decision that said Congress was constitutionally authorized to insulate certain officials from presidential control and removal in order to form independent and expert agencies, that case is dead, dead, dead.

• 9:36Kate Shaw?

  Yeah. Now, it is not entirely clear from the decision whether the case is dead, dead, dead, because it has already been overruled, maybe in the court of history, maybe being left in a lockbox at a fire station, or if it's dead because the court overruled it today in slaughter. The court said, kind of why not both? Basically said, the framework has not stood the test of time, and if anything more is left of it, then the court overrules it. So it can't even make up its mind about whether it is acknowledging the overruling that's already occurred or affirmatively overruling today. It sort of tries to have it both ways.

• 10:17Leah Litman?

  Regardless of whether Humphreys was already dead, Project 2025's goal of getting rid of Humphreys executor and expanding presidential power to enable more king-like presidencies, mission accomplished. They can go ahead and check that one off the list.

• 10:29Kate Shaw?

  Yeah. And it's been a busy day on Truth Social for Trump because in addition to the Truth post that we already read, he also just kind of wanted to make sure that everyone knew that a lot of people, including John Roberts, when he was a young lawyer in the Reagan administration, have been trying to end Humphreys executor for a long time. But only he, Donald John Trump, was actually able to do it. As he wrote in this Truth Social post, quote, "This decision was long sought by United States presidents dating all the way back to the 1930s." It is-

• 11:03Leah Litman?

  You gotta read it, Kate. You gotta read it.

• 11:06Kate Shaw?

  It is such an honor to be the sitting president who won this historic and unprecedented ruling, one of the most important ever given with respect to presidential powers. Thank you for your attention to this matter. He's literally like, I accept this award in honor of FDR, Ronald Reagan-

• 11:22Leah Litman?

  This is the SCOTUS Peace Prize, like the FIFA Peace Prize?

• 11:26Kate Shaw?

  Yes, he's finally won it. And, and he's very, very proud that it is, that it is he who has done this. So this is another benefit of stacking the Supreme Court. Not only will they gift you immunity, which of course they did just over, almost exactly two years ago before he was even back in office, but they will also hand you wins that no court has ever had the audacity to attempt before.

• 11:49Leah Litman?

  As we mentioned, Project 2025 called for Humphreys to be overruled. And this seems as good a time as any to remind you that Project 2025 was spearheaded by the Heritage Foundation. In recent years, the Heritage Foundation has expanded beyond the imperial judiciary, which it helped to construct, to just straight up empire. So despite the fact that its brand symbol is the Liberty Bell, the Heritage Foundation has been offering some pro-monarchy content just in time for the semi sesquicentennial. On its website, Heritage offers commentary that is titled, quote, "An American Defense of Britain's Constitutional Monarchy. George Washington and the soldiers at Valley Forge Would Like a Word." Heritage even hosted an event called, quote, "The Crown Under Fire. Why the Left's Campaign

• 12:34Leah Litman?

  to Cancel the Monarchy and Undermine a Cornerstone of Western Democracy Will Fail."

• 12:41Kate Shaw?

  The monarchy material in this opinion was just so unhinged. There was this like this logic that I just struggled so hard to follow, but it was basically, it is actually, you know, the founders, they wanted to throw off a monarchy. And the only way to guard against a monarchy was to have this super powerful president. Like, they literally, basically say that. It is good for the separation of powers and it will keep us from having a monarchy. If only a quote, "single person" that is like a powerful president can produce the vigor and activity necessary to preserve the Constitution separation of powers.

• 13:15Leah Litman?

  Yeah, no, their reasoning is basically like, George III may have been on to something and the founders were too woke.

• 13:21Kate Shaw?

  Yeah. So, obviously, those guys were on board with overruling Hummer's executor. And as Justice Ochoa observed in a very powerful dissent that she wrote, joined by Justice Kagan and Justice Jackson, "The court gives the president a power unknown even to the English crown against which the founders revolted, elevating him above his once co-equal branches." Okay, let's walk through the reasoning, such as it is, and then also talk about the implications of the decision. The reasoning, I think, boils down to just, this is the ultimate triumph of the unitary executive theory. The idea the president has and must have, under a correct understanding of the Constitution, full control over the executive branch, including administrative agencies.

• 14:04Kate Shaw?

  The Chief Justice wrote the opinion, because of course he did, and under that opinion, broad, illimitable removal authority, even though nowhere to be found in the text of Article II or anywhere else in the Constitution, is authorized and compelled by the notion of executive power and the president's duty to take care that the laws be faithfully executed. Somehow, this unwritten but necessary power to fire kind of is critical to the full realization of those constitutional authorities.

• 14:33Leah Litman?

  So, in this, telling members of the executive branch aren't really independent. They are just there to assist the president, who is the head of the executive branch. And in order for the president to remain accountable to the people, he has to have the power to remove those members of the executive branch, quote, "if they are not performing well." Like we said, recents.

• 14:53Kate Shaw?

  There's this vision of like the boss president, like daddy slash boss that like emerges here. The president, there's this quote that I want to read. It's only when the president has complete control over those who assist in executing the law, and Roberts writes, can the Constitution, quote, "live up to Justice James Iredell's boast that the president would be personally responsible for everything." Everything? Like, really? That's what you think the Constitution?

• 15:20Leah Litman?

  Okay, so I was gonna highlight that quote later on because it's like, okay, you're calling Donald Trump the personal responsibility presidency. This is the guy who was asked about sending migrants to Libya, his administration doing that, and he was basically like, you'll have to ask Homeland Security. And he's done that on a host of things.

• 15:40Kate Shaw?

  Absolutely. It's a preposterous proposition in general terms, and it is laughable in the context of this, you know, I don't know, ask somebody else president whenever anything inconvenient is put to him. So as we have already said, to get to the conclusion that the president has to have this authority to fire anyone and everyone, the court had to overrule Humphrey's executor. And to kind of do that, in addition to sort of this hedgy, either we're overruling it now, or we already did, and we just didn't tell you then, but we're telling you now, Roberts maintains in part that the FTC in 1935, when Humphrey's executor was decided, is totally different from the FTC today. Then, according to Roberts,

• 16:22Kate Shaw?

  the role of the FTC was quite limited, and FTC commissioners were, quote, "neither political nor executive, but predominantly quasi-judicial and quasi-legislative." And today, the FTC exercises these broad and very different authorities, and thus must be under complete control of the president. So there's that effort. You know, another sort of argument maybe in the alternative seems to be that Humphrey's executor, anyway, is kind of part of the anti-canon, right? These decisions that we have sort of all come to realize were fundamentally flawed and inconsistent with core constitutional principles. And he tries to liken the current court to... Essentially, the New Dealers.

• 17:04Kate Shaw?

  Writing of Hummer's executor, the court said that, quote, "On a day that New Dealers would dub Black Monday," the court ruled unanimously against the president.

• 17:12Leah Litman?

  If you wanted any example of how this court can't do history, this would be it. They have learned all of the wrong lessons from history. The court during the New Deal was bad because the court was striking down congressional statutes and reordering the separation of powers and federalism in the court's preferred image to advance an ideological agenda. And in the process, the court was hamstringing government from solving people's problems with practical solutions. Does any of this sound familiar, John Roberts pot meat court kettle?

• 17:45Melissa Murray?

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• 18:30Melissa Murray?

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• 19:11Melissa Murray?

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• 22:04Melissa Murray?

  If you listen to Strict Scrutiny, you already know this administration, this Congress, and these courts have spent the last few years making it harder to get health care in this country and its patients who are paying the price. Take the Supreme Court. The Supreme Court paved the way for states to exclude Planned Parenthood Health Centers from state Medicaid programs in Medina versus Planned Parenthood. This undoubtedly violates patients' rights to get care from quality providers that they choose. And last year, the Trump administration and Congress defunded Planned Parenthood, trying to shut down Planned Parenthood and block patients with low incomes from accessing birth control, cancer screenings, STI testing, and more. That's why Planned Parenthood is fighting back.

• 22:48Melissa Murray?

  But fights like these take resources and supporters just like you. No matter the size, your donation makes a real difference, helping Planned Parenthood meet this moment and protect patients' access to care when and where it matters the most. If you believe that all people should get health care no matter their income, donate now at PlannedParenthood.org/defend.

• 23:16Kate Shaw?

  So to justify their great new unitary executive theory, the super majority goes all in on something they've done before, but sort of reaches new heights in this opinion, which is elevating Chief Justice Taft's opinion for the court in Myers versus United States, which struck down a restriction on the president's power to remove a postmaster. So, as I said, the opinion in Myers was written by the Chief Justice, who is also a former president, William Howard Taft. Roberts refers to it as a scholarly opinion. It is long. Like, I think we can all agree on that. But it is mostly like historical fiction, if you're talking about scholarship. I will just interject

• 23:57Kate Shaw?

  here that Professor Andrea Katz at Wash U has written some amazing work on Myers, including a recent Substack piece, and also, I think, makes a terrific point that Taft says a bunch of things in the Myers opinion, some, you know, cherry picked statements that Roberts luxuriates in, in this opinion, and then some statements pointing in totally different directions, like the civil service is clearly protectable from the president. But also Taft, when he was the president, wasn't a unitary executive at all. Like, so Taft, the president, and Taft, like, the author of this tome, actually were pretty different. But, of course, that scholarship and tons of other scholarship poking so many holes in both what Roberts says about Myers and also what Roberts says about the drafting

• 24:42Kate Shaw?

  of the Constitution and the so-called decision of 1789, you know, which, on Roberts' telling, basically conclusively resolves that the president has to have the total power to fire everybody, which is very much not what happened. None of that scholarship really gets any treatment in the majority opinion. It's just completely overlooked.

• 24:59Leah Litman?

  Yeah, no, his is also a scholarly opinion. It's long and contentless. Just, you know, brief word on that decision of 1789. That's just a reference to some statutes that Congress passed, setting up some departments. And in those statutes, they debated the president's authority to remove these officers. And the idea that those statutes somehow represented a conclusive Determination about what the Constitution required is insane. People went into those debates not even realizing that this was going to be a question. Their positions were unsettled. There were sequenced votes that arguably pointed in different directions. It is just an insane reading of history. And somehow Roberts makes all of this even worse on Myers because

• 25:44Leah Litman?

  he goes on about the historical pedigree of Myers by going all in on the lost cause. This is the part where Kate and I were saying, we gasped when we got to the references to Andrew Johnson. Because the lost cause is the movement that emerged during Reconstruction that was anti-Reconstruction. To depict the South as fighting for this cause and that the North was just so mean and overreached and harsh to the South, that the South was actually in the right and the North was in the wrong. So why does this opinion channel the lost cause? Well, Roberts writes that in the wake of the Civil War, quote, "Congress sought to reverse this constitutional construction."

• 26:28Leah Litman?

  He's referring to the president's power to remove officers. And quote, "This reversal grew out of the serious political differences between President Johnson and congressional Republicans." And then he goes on to talk about the Tenure of Office Act. Let's again just explain this in plain English. Andrew Johnson was a Confederate sympathizer. The Reconstruction Congress, controlled by Republicans, didn't want him to end Reconstruction. And so they limited his power to fire the generals who were deployed in the South to try to make the South a multiracial democracy. That is the Tenure of Office Act. Like literally generals blockaded themselves in their offices so that Johnson couldn't fire them. And according to Roberts, everyone recognizes Johnson was right

• 27:13Leah Litman?

  and that the law was obviously invalid. It's just insane.

• 27:16Kate Shaw?

  Yeah. And specifically like the dispute that actually leads to Johnson's impeachment and near removal is his violation of the Tenure of Office Act by trying to fire without Senate consent the Secretary of War at Stanton. But there's also this completely unacknowledged distinction. Between what the law and the tenure of office act and in Myers did and what a law like the FTC act does, which is those laws required the Senate to consent before the president could remove someone, which may be a different, which is clearly, I think, a different kind of separation of powers problem than any separation of powers problem that might exist, such as it is with just saying the president has to have reasons before firing someone. So there's just an enormous difference, you know, even if you think the tenure of office

• 28:01Kate Shaw?

  act had constitutional problems, it's very different from the FTC act and the other statutes that Congress has passed and that the Supreme Court in this latter decision has now said are constitutionally intolerable. But there's also just like, again, there's all this tonal stuff in this opinion that is so insane. Like, again, there are people, I think, who are not sympathetic to Andrew Johnson and his anti-reconstruction agenda, who say, yes, Congress shouldn't be able to like, give the Senate a veto over the president's firing of a cabinet secretary. Like, that's not a crazy position. But that the tone of sympathy that the opinion evinces toward Andrew Johnson is really wild. And that, I think, was what I found so insane as I started to read the opinion. So here, just like to connect this, that passage we

• 28:43Kate Shaw?

  have just been talking about to other decisions issued in the past, say, week. Remember how Alito and Barrett were like pearl clutching about the complete impropriety of relying on the kind of redemption era statutes, black codes in Louisiana that were offered as historical analogues to justify the Hawaii gun control law that was at issue in the Wolford case? No such energy on display in pointing to Andrew Johnson's efforts to end reconstruction. And they're clearly also very offended by Congress's efforts to try to thwart President

• 29:24Kate Shaw?

  Johnson. And it's just a little hard. We're talking about the same period of time here, and entirely different Supreme Court treatment of these historical episodes.

• 29:35Leah Litman?

  Yeah. What it is, is absolute boss level Southern grievances, you know, by Jim Crow, John Roberts, and it's just wild.

• 29:43Kate Shaw?

  Yeah.

• 29:44Leah Litman?

  So part of their reasoning is also continuing with their fetishization of executive power and how that's great for democracy. If you heard that sentence and you thought, what? I too had that reaction, wondering if the court has been hibernating for the last 18 months.

• 30:00Kate Shaw?

  Completely. It really, again, like, this is what you think the problem is, John Roberts. I mean, so on the eve of the Fourth of July, America's 250th birthday, it does feel like this is a let's go all in on making America a monarchy again. Make America a MAMA, I guess would be like the new acronym. And like so many things that they have the gall to do with a straight face, they are justifying it in terms of democracy. Like, that is what they did in Dobbs. It's what they are doing here. So let's just, like, say the quiet part out loud. Insulating the executive branch from congressional oversight and congressional control

• 30:44Kate Shaw?

  isn't great for democracy or accountability, no matter how many times they somehow suggest that it is. And in any case, even if you're actually concerned about accountability, there is still plenty of accountability, even when agency heads are somewhat insulated from presidential control, a point that Justice Otemeyer underscored repeatedly in her dissent.

• 31:09Leah Litman?

  Okay, we want to spend some time talking about the implications of this decision.

• 31:14Kate Shaw?

  So they have doubled down on their unitary executive theory, because clearly it has gone so well in the last few months. That theory was an issue in the immunity opinion. I think we, at the time, two years ago, we thought like, this sort of is the culmination of the unitary executive. And then came the 18 months of the Trump administration, which I think were an illustration that you can go much, much further on the unitary executive than that decision did. So here, the implication of the theory really is that POTUS was already beyond the reach of the criminal laws in the immunity decisions. He is now above or beyond laws that might constrain what the court deems to be his executive powers. You know, which is kind of concerning when you're talking about a president who hasn't been particularly shy about lawbreaking.

• 31:56Leah Litman?

  And the justices have handed this president more power to control agencies when we have seen how agencies subject to his control have acted. You know, the Department of Defense has awarded contracts to companies that are linked with his family. Contracts are given to companies that are on the ins with the administration. There are merger approvals granted to companies that have bent the knee, favorable settlements are reached with companies that are favored by the administration. I think that's part of why I view this as a pro-corruption ruling and that this decision should be understood as part of the Supreme Court's commitment to a re-gilded age of robber barons.

• 32:31Kate Shaw?

  Yeah, it does feel like an important sort of step on the road to reinstituting the spoils system, a patronage system of government where government offices are awarded not based on merit or expertise or competence, but personal favors, political loyalty, you know, what campaign contributions you gave, what rallies you attended. And this is how you get a government run by incompetent blowhards and also incredibly conducive to corruption. So both incompetence and corruption were on display in the era of the spoils system, and that is what we are on a path back to. You know what else the opinion decides that

• 33:12Kate Shaw?

  might be a good idea to go ahead and sort of approve of? Loyalty tests. Like, those are maybe on the logic of this opinion, good now. Roberts writes, quote, "To discharge the duties of his trust, the president must have the assistance of officers he can trust." So maybe those are now fine. And that is all to say nothing about implications in future cases. So as we said, the court doesn't say anything about the civil service. Justice Sotomayor notes in her dissent that the court suggests that its new-fangled rule might not apply to adjudicatory agencies, including non-Article III courts like the tax court. But it's unclear why. And then, as again, you know, nothing in the opinion about not

• 33:53Kate Shaw?

  just civil servants, but also inferior officers, whose removal protections have been upheld by the court's prior precedents, but unclear what this opinion means for those.

• 34:02Leah Litman?

  So as Justice Sotomayor wrote in the dissent, quote, "The majority replaces 90 years of proven workable practice with a half-baked theory of executive power that is simultaneously all-encompassing, yet also subject to necessary but undefined exceptions."

• 34:18Kate Shaw?

  Okay, let's maybe say a quick word about the Gorsuch concurrence. And here I will confess, when I started reading the Gorsuch concurrence, I was like, oh, I actually, maybe he's got something sensible and reasonable to say because he starts off by observing, you know, Congress created all these agencies and gave them all these broad powers, and I don't think they thought that the president was going to have complete control over these agencies. So for a minute, I was like, whoa, am I going to agree with something Neil Gorsuch has written?

• 34:44Leah Litman?

  And yet, he takes it to the crazy place.

• 34:46Kate Shaw?

  And then, of course, into like the under Roman I, it was like, oh, my God, of course, this is like ergo, we should just completely dismantle the administrative state. So let's kind of revive nondelegation in addition to empowering the president. Like, literally, this is his opportunity to fully make good on this promise he may be made to his mother at one point as a boy, which is, we're going to abolish the administrative state and you will be avenged. So we have all that to look forward to.

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• 36:49Melissa Murray?

  off for Strict Scrutiny listeners. Support Strict Scrutiny and let Lisa know that we sent you for a good night's sleep after checkout. That's leesa.com promo code strict. Strict Scrutiny is brought to you by Slow Burn. Slow Burn, the award-winning narrative series from Slate, is back with a new season, and it feels like one that was literally manifested by the ladies of Strict Scrutiny: Becoming Justice Gorsuch. That's right. In this season, host and Slate executive producer Susan Matthews traces Neil Gorsuch's formative years, from his mother's rocky tenure in the Reagan administration to his coming of age as a young conservative in the 1980s.

• 37:31Melissa Murray?

  She'll lead you through his legal philosophies and his controversial nomination to a stolen seat on the high court, and she'll shed light on a man who many Americans can't even identify in a lineup, but who has nonetheless played a major role in ending affirmative action, limiting abortion access, and upending voting rights. Featured in this season are friends of our podcast, Dahlia Lithwick and Mark Joseph Stern, the hosts of Amicus, Slate's podcast about the courts. They break down how Gorsuch fits into the current court, where he's going next, and why he never took his job on the court's cafeteria committee very seriously. As you all know, the Supreme Court's end of term is upon us, and this is the perfect

• 38:12Melissa Murray?

  podcast to learn why Justice Gorsuch is such an unpredictable vote and to round out your understanding of this Supreme Court. Listen to the entire season of Slow Burn: Becoming Justice Gorsuch now on Apple Podcasts, Spotify, or your favorite podcast app.

• 38:53Leah Litman?

  Okay, so despite telling us how awesome presidential control is for democracy, for accountability, and for the execution of laws, and how the Constitution requires the president to have the power to remove executive officials, and this is a direct quote, "no ifs, ands, or quasies about it," the Supreme Court also said, unless we're talking about the Federal Reserve Board and our 401Ks.

• 39:14Kate Shaw?

  Right, so that's Trump versus Cook, in which a bare majority of the court, in an opinion by the Chief Justice, held that Federal Reserve Governor Lisa Cook can keep her job while she challenges the president's attempt to fire her via a Truth Social post, which is actually how he tried to fire her. We have joked about how the court's reasoning, that is like scare quotes reasoning, about why the president can control and fire the heads of every single independent agency except the Fed, basically came down to something like, but the stock market, but my investment portfolio, but my emotional support billionaires.

• 39:47Leah Litman?

  And today, John Roberts may have made that subtext the text. In a kind of OMG, he admitted moment, John Roberts wrote in Cook, quote, "We see no reason to leave the public in limbo or to sow doubt as to the status of one of our nations and the world's most important financial institutions." He offered that as a reason for why he was, in this opinion, addressing several issues in the case that the lower courts had not reached, including the constitutionality of the provision that limits the president's power to fire governors of the Fed, to occasions where the president has cause for firing them. Shorter John Roberts, like, "It might be okay to mess with consumers," which is the group that the Federal Trade Commission seeks to protect, "but it's definitely not okay

• 40:29Leah Litman?

  to mess with me and my stock portfolio." We call this, maybe, the independence we care about doctrine, like, agencies get to be independent when we, Supreme Court, decide they should be independent. Independence for me, but not for thee, like, Trump can wreck the separation of powers, maybe also the rule of law, but not capitalism.

• 40:48Kate Shaw?

  Totally. And the opinion in Cook focuses on rejecting the three arguments that the Trump administration had made. So first was an argument that might sound familiar if you've been listening to all of our dispatches in the last week. So there was an argument that the president's decision to fire someone for cause was not judicially reviewable. Roberts rejects that argument, says no, because if it wasn't judicially reviewable, then the legal protections and statutes would be meaningless. Note, and this is what I was just referring to, that this same argument did not seem to move him in the TPS cancellation case, where Roberts signed on to Sam Alito's opinion, saying that courts could not review whether the president complied with laws governing the TPS termination process.

• 41:31Kate Shaw?

  So those can evidently be rendered meaningless, but not the ones regarding the Fed. Interesting.

• 41:39Leah Litman?

  Insert economic reason here, TK.

• 41:43Kate Shaw?

  So that's the first reason. Roberts then addresses and also rejects the government's argument that even if the courts can review whether the president has cause to fire someone, that review is so deferential, it is basically essentially meaningless.

• 41:58Leah Litman?

  So while Roberts rejects that standard, he won't go so far as to commit himself or the court to an actual legal test about how courts should decide whether the president has cause. He writes, quote, "Having rejected both parties' positions, we need not fully demarcate the contours of cause today. For present purposes, it is sufficient to observe that any definition of cause in this context must reflect the Federal Reserve's unique historical status and role, AKA economic reasons, TK." But he also adds, quote, "It is true, of course, that cause cannot be reduced to a precise set of rules, and some close calls are inevitable."

• 42:34Kate Shaw?

  I think this part, it was like just a kind of insert legal test.

• 42:37Leah Litman?

  Right, exactly. Yeah, that's fair. That's fair.

• 42:40Kate Shaw?

  You would search in vain for anything resembling one in this draft of the opinion. So instead, he basically rests his conclusion on the idea that the government won't be able to show that it can prevail on the merits of this particular case or challenge because the president here failed to comply with the procedural protections to which Governor Cook was entitled by statute, namely, basic notice and an opportunity to respond, which were not supplied by the firing via or the purported firing via Truth Social. And then finally, and this also is important, the chief rejects the government's argument that federal courts cannot issue preliminary injunctions ordering reinstatement and says that Cook is entitled to remain in office while litigation

• 43:20Kate Shaw?

  is ongoing. That is to say, the court rejects the really expansive argument that the administration had made that federal courts had no authority to ever order reinstatement. Here, court says federal courts can issue preliminary injunctions ordering reinstatement.

• 43:34Leah Litman?

  This opinion had a kind of Schrodinger's quality to it because in some ways it was big and in some ways it was small. So despite having reached several issues that the lower courts did not, the decision was also quite narrow. It does not weigh in on whether the president can fire Cook based on these specific allegations of mortgage fraud. It just says that what is contained in the president's Truth Social post doesn't fly and can't suffice to remove Cook. And even the president picked up on this on a social media post, writing, quote, "The Cook lawsuit was sent back by the Supreme Court on a strictly procedural basis. We will take appropriate action immediately to make sure that someone who has committed wrongdoing will not be making vital decisions", end quote. In other words, I'm going to keep trying to remove her?

• 44:18Kate Shaw?

  Yeah. Yeah, I had sort of hoped that this was something that was not, they were not going to remain focused on if they lost in this case. And I think it's very clear from the Truth Social feed that they're not letting this go. So Kavanaugh also emphasized the kind of narrowness, so Leah was just alluding to, yeah, it's such a weird opinion in that, yeah, like, it's unusual for the court to reach out and say a lot of things about big, important questions with constitutional dimensions that lower courts hadn't addressed. And they did that, but then also that's very narrow. And Kavanaugh does emphasize that in his concurrence, saying the case doesn't even resolve whether POTUS can lawfully remove Lisa Cook. All of that, he says, will depend on resolving factual disputes in the case. Okay, so yeah, this was, as we said, Roberts

• 45:03Kate Shaw?

  and Kavanaugh, and then the three Democratic appointees in the majority. And then there were three dissents in the case. The one was from Justice Thomas, one Justice Alito. Alito was joined by Gorsuch, and then a separate one, I think just for herself, by Justice Barrett. Barrett and Alito faulted the court for doing the thing we were just referencing, going beyond, you know, answering a bunch of big questions, going beyond what they said was necessary to say in the case, to which the court responded with this interesting passage, quote, "How much to say on our interim docket and how much to say in response to a dissent is not reducible to any mechanical formula. It is ultimately a matter of prudence upon which reasonable minds can and often do disagree."

• 45:41Leah Litman?

  In other words, balls and strikes, right?

• 45:44Kate Shaw?

  Or I do what I want.

• 45:46Leah Litman?

  Yeah, yeah, definitely. So, speaking of jokes that are 5-4 or 5-4 jokes, we also wanted to briefly talk about the opinion we got today in Watson versus RNC, which is the absentee ballot case.

• 45:57Kate Shaw?

  So, I don't know about you, Leah, but definitely, as we loaded this up, this was the first case we got this morning, and huge.

• 46:04Leah Litman?

  Yes.

• 46:05Kate Shaw?

  Like, full body kind of deflate. There was so much, like, anxiety and tension, like, kind of filling me. And then there was a sigh of relief when the court released that opinion, because it is 5-4, which is a crazy vote, we can get to that. But it says that federal law, and specifically the federal law that merely, like, sets Election Day, does not prohibit states from counting absentee ballots that are cast by Election Day but received afterwards. So, states can count absentee ballots cast by Election Day but received after Election Day if they choose to do that. Mississippi, the state whose law was at issue here, has this five-day grace period. Other states have shorter and longer ones. The total number, the majority mentions, is like, 30 states have some version of this. The challenge, if it prevailed, might have invalidated all of those. And

• 46:50Kate Shaw?

  here, Justice Barrett rejects that challenge, says, quote, "The Election Day statutes, the federal ones, say nothing about ballot receipt, and we cannot add to the words Congress chose."

• 47:00Leah Litman?

  As Kate said, opinion was five for. I gasped when I saw this. Just a bare majority. This court came within one vote of overturning laws in something like 30 states that allowed counting of ballots mailed by election day on the basis of federal election statutes that just are not remotely ambiguous about whether they displace those state laws. And four justices were okay, saying just a few months before the midterms, the RNC, the Republican National Committee, gets to dictate, you know, how states administer elections and whether and when they can count lawfully cast absentee ballots and just refashioned all of election law based on their own views about what proper voting looks like and arguing without any evidence that voting by mail leads to voter fraud. As that summary of

• 47:44Leah Litman?

  the reasoning in the dissent might suggest, the dissent was written by Sam Alito, whose brain worms, I think, really seem to have gotten worse.

• 47:52Kate Shaw?

  I don't, it was so many pages of opinions today, like, and I was mostly focused on Slaughter and Cook. So I have to actually spend a good, like, long session with, like, a stiff drink in the Alito dissent. But as I started reading it, I was like, the syntax doesn't, it doesn't even sound like a normal one. Like, it's just, it's a, the paragraphs are just, like, so choppy and weird. And anyway, it's, and also, like, clearly, conspiracy theories have taken full residence, like, in his brain and, and heart and soul. And he's big mad about, like, vote by mail in general. So all those things, I could tell. But again, like, I need to spend a little bit more time with the opinion. But speaking of brain worms, and kind of the worsening of brain worms, like, Brett Kavanaugh also, you know, despite joining, like, sort of Team Sanity, although Team Sanity with, like,

• 48:36Kate Shaw?

  reasoning TK in the Cook case, also seems like he's getting more and more radicalized, right? Like, this lineup was Barrett, as we said, for herself, plus the three Democratic appointees and the chief justice. So Kavanaugh was in dissent here. And the dissent, as we were just saying, the Alito dissent is, like, absolutely nuts. Briefly, maybe on the majority opinion, let's just say a couple of words about it. The reasoning was just that the federal statute set the day for the election. That's the day that the electorate makes its choice, you know, does it by voting. And that's, like, straightforward and obviously correct. And the tabulating of that vote, or those votes, is something distinct from the choice. And so there's nothing

• 49:19Kate Shaw?

  Problematic under the federal scheme with those votes being counted afterwards, so long as the choice was made by election day. By contrast, Sam Alito says if ballots received after election day are counted, then the electorate's choice does not occur on election day. But he says it in a way weirder way. But anyway, that just can't be right, right? Counting ballots does not mean the choice doesn't occur on election day. The choice is the voting, not the counting.

• 49:42Leah Litman?

  So Alito's dissent also ends with the final section that is basically just a screed against voting by mail, warning that the majority's opinion, quote, "risks further undermining Americans' confidence in election integrity," and, quote, "leaves open opportunities for voter fraud that may further undermine Americans' faith in the integrity of this country's elections." And he also went out of his way to excuse Trump from having any responsibility for generating said concerns about voter fraud and election integrity, writing that, quote, "even in the absence of partisan rhetoric, drawn-out ballot counting induces a large, significant decrease in Americans' trust in elections."

• 50:19Kate Shaw?

  It just happens. It just happens organically. It just happens. It has nothing to do with that rhetoric. Yeah. And Trump was really following the court today in a way he is not usually, since he also posted on Watson, right, not just Cook and Slaughter, writing that, quote, "in light of the tremendous loss, it is more important than ever to pass the Save America Act," a law that he has been agitating for, for months, and that would disenfranchise, as we have repeatedly mentioned on the show, literally millions of voters. It's, I have just a quick, you know, kind of maybe conspiracy theory sounding kind of question for you, just something I've sort of, I think I saw someone, I can't recall

• 51:04Kate Shaw?

  who, so I can't credit them, but like, thinking through, is it, is it possible that this seemingly sane decision, which like, actually does, as a matter of kind of statutory interpretation and also kind of structural constitutional reasoning, there's like a, there's, I thought, a good passage that suggests like, the Constitution itself makes a distinction sometimes between a choice and the actual consequences of that choice, like the whole Electoral College kind of works that way, that people vote at a certain point, Congress, you know, Counts, opens and counts votes later, like that's presidential selection, as weird as it is, it's that suggests that there's no like fundamental constitutional problem with dividing the voting and counting. Anyway, so it seems like a very sane opinion to me. But it may, could it just be that Barrett and Roberts, if not the other conservatives on the court, actually realize that the kind of, the Trump position that we want to like

• 51:49Kate Shaw?

  do everything we can in the RNC, obviously the plaintiffs in this case, to like discourage vote by mail and other things, like that's something that Trump really thought and maybe still thinks for downs to his partisan advantage.

• 52:00Leah Litman?

  Right, yeah.

• 52:00Kate Shaw?

  But it's not that clear at this point that that's the case. And so it's actually a more kind of nuanced appreciation of the kind of, you know, sort of voting landscape and a desire to safeguard the electoral interests of the Republican Party, even if, again, Trump might himself be mad about that. Like, might that be something of a factor here?

• 52:18Leah Litman?

  I think that is definitely a possibility. We don't exactly know what the partisan valence of absentee voting is. And you will note that even though we don't know that, I still think absentee votes should be counted.

• 52:30Kate Shaw?

  Of course.

• 52:31Leah Litman?

  But just like there was ideological cross pressure in Cook, where the interests of the Republican Party probably counseled in favor of insulating the governors of the Federal Reserve from presidential removal, so too perhaps here.

• 52:43Kate Shaw?

  Yeah.

• 52:44Leah Litman?

  So just to wrap this up, take homes. You do not, under any circumstances, have to hand it to the Supreme Court on Watson or Cook. Do not congratulate, no ifs, ands, or quasies about it. Like, the court isn't moderate or moderating. I think it's fair to say, like, they are advancing their own agenda. And the fact that they occasionally do the bare minimum and not the most insane thing just cannot be a justification or apology for their other behaviors. So we will likely be in your ear holes again tomorrow, Tuesday, June 30th, which will be the final day of the term, talking birthright citizenship, or lack thereof. I still think birthright citizenship.

• 53:24Kate Shaw?

  Yeah, yeah, same. But, um, you know, we have less than 24 hours to wait, and we will bring you our quick reactions to that. And then we will have our regular term review in your ears on Monday. So, see you soon.

• 53:41Leah Litman?

  Strick's Gertney is a Crooked Media production. Our show is produced by Melody Raul and Michael Goldsmith. Jordan Thomas is our intern. Our team includes Matt DeGroot, Ben Heathcote, Johanna Case, Kenny Moffett, Eric Schut, and our music is by Eddie Cooper. Our production staff is proudly unionized with the Writers Guild of America East.

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