Civil Discourse – Monday in Court and Beyond – Joyce Vance

Civil Discourse with Joyce Vance

Monday in Court and Beyond

By Joyce Vance, Dec 08, 2025

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Donald Trump fired Federal Trade Commission (FTC) Commissioner Rebecca Slaughter earlier this year. She sued.

In a landmark 1935 decision, Humphrey’s Executor, the Supreme Court held that Congress could put limits on the president’s authority to remove certain executive branch officials. That longstanding precedent has been on a collision course with Donald Trump’s quest for maximal power for as long as he’s been in office. Today, a Court that has been very sympathetic to Trump heard argument in Slaughter’s case.

The type of executive branch positions at stake are appointments to high-ranking positions in quasi-independent federal agencies like the FTC and others, including the Federal Reserve. The top line question is whether presidents can fire them in the absence of misconduct. We discussed the backstory to Humphrey’s Executor here, back in March. President Franklin Delano Roosevelt fired an FTC Commissioner, writing to him that “your mind and my mind [don’t] go along together on either the policies or the administering of the Federal Trade Commission.” The Court held that Congress intended to restrict a president’s power of removal to cases involving inefficiency, neglect of duty, or malfeasance in office, and that Roosevelt couldn’t dismiss Humphrey simply because they were of different minds on policy.

That precedent is about as on-point as they come. It suggests that Slaughter, who had done nothing wrong, should win her case. She was advised of her termination in an email that said her “continued service on the FTC is inconsistent with [the Trump] Administration’s priorities.”

But our tea leaf reading at the start of the term, which concluded that the Court would weigh in for Trump, appears to have been on target. We based that analysis on the fact that the Court declined to stay Slaughter’s dismissal from the FTC until it could hear the case. If there had been a majority, or something close to it, inclined to follow Humphrey’s Executor and rein Trump in, the Court would have prevented the firing from taking effect until it could hear the case. The fact that they allowed her dismissal to take effect implied the Court was prepared to undo the precedent that would have prohibited it. Oral argument bore out that conclusion.

Justice Kagan went straight to the heart of the matter when Solicitor General John Sauer argued the government’s case. She pointed out that “the central proposition of your brief” was that the Vesting Clause of the Constitution gives all of the executive power to the president. “Once you’re down this road, it’s a little difficult to see how you stop,” Justice Kagan said. Sauer talked over her and around her, but never disagreed. The government’s position, even though it didn’t go this far today, is that everything that happens in the executive branch is at the president’s pleasure. Everything. That could include matters like who DOJ indicts, what businesses the EPA regulates, and all sorts of individualized decisions that are currently made by people with expertise, guided by long-standing practices and ethical constraints.

Justice Sotomayor said to Sauer, “You’re asking us to destroy the structure of government and to take away from Congress its ability to protect its idea that the government is better structured with some agencies that are independent.” Justice Alito invited Sauer to respond. “The sky will not fall,” he said, adding, “The entire government will move toward accountability to the people.” Justice Sotomayor ultimately responded, “What you’re saying is the president can do more than the law permits.” There was silence for a moment. Then Sauer hurriedly repeated a few of his earlier points and concluded that Humphrey should be reversed.

We don’t know precisely how the Court will rule, but the Chief Justice tipped his hand a bit, saying “the precedent” had “nothing to do with what the FTC looks like today,” and claiming that the FTC back then was different, and “had very little, if any executive power,” suggesting different rules might apply today for an agency that had become more powerful. It’s the sophistic kind of reasoning we have seen before when the Roberts Court twists itself into pretzel logic so that it can reverse longstanding precedent—while pretending it is doing nothing of the sort.

A decision in this case is likely to come at the end of the term, late next June or the first week in July, although it could come at any time. It is likely to be one of the most consequential of this term.

A lot more happened today that is worthy of our attention. But because there is so much of it, instead of trying to cover it all, I’ll flag some of the most important developments here, and you can read further on any of them that interest you. We will take them up in more detail as they develop.

• ProPublica, widely regarded as a highly credible source of independent investigative journalism (they broke the story on Clarence Thomas and Samuel Alito accepting vacation travels and other favors from conservative power players) reported today that some of Trump’s mortgages match his description of mortgage fraud, according to records they reviewed. While living in New York, he claimed two 1993 real estate purchases made within two months of each other in Florida would both become his principal residence. The report says: “The Trump administration has argued that Fed board member Lisa Cook may have committed mortgage fraud by declaring more than one primary residence on her loans. We found Trump once did the very thing he called ‘deceitful and potentially criminal.’” Trump has accused multiple political adversaries of mortgage fraud for claiming more than one primary residence, and that appears to be the rationale behind federal criminal investigations into New York Attorney General Letitia James, California Senator Adam Schiff, and California Representative Eric Swalwell, and others, although there are at best flimsy facts to support the allegations.
• Twelve former FBI agents sued Attorney General Pam Bondi and FBI Director Kash Patel, along with others, alleging “unlawful retaliation” because they were fired for kneeling in response to protests in Washington, D.C., after George Floyd’s murder. The lawsuit is based on First Amendment violations and also points out the wisdom of the plaintiffs’ decision to kneel with the crowd: “As a result of their tactical decision to kneel, the mass of people moved on without escalating to violence.”

Editor’s Note: Read the rest of the story, at the below link.

Continue/Read Original Article Here: Monday in Court and Beyond

#1935 #ChiefJusticeRoberts #CivilDiscourse #December82025 #DOJ #FBIAgents #FederalTradeCommission #FiredForKneeling #FTCCommissioner #HumphreySExecutor #JohnSauer #JoyceVance #JusticeAlito #JusticeKagan #JusticeSotomayor #MortgageFraudByTrump #ProPublica #RebeccaSlaughter #SCOTUS #USSupremeCourt

Roberts and Kagan prepare for another showdown on executive power – CNN Politics

Politics 9 min read

Roberts and Kagan prepare for another showdown on executive power

By Joan Biskupic, CNN Chief Supreme Court Analyst, Dec 5, 2025 See all topics

Chief Justice John Roberts and Justice Elena Kagan are well matched, rhetorically forceful opposites. And they have been clashing for more than a decade over an increasingly relevant question of presidential power: How easy should it be for the president to fire the heads of independent agencies?

That issue, to be aired at the Supreme Court on Monday, has grown more salient as President Donald Trump has attempted to remove multiple officials, including at the Federal Trade Commission, National Labor Relations Board and Federal Reserve.

Their first faceoff occurred in 2009 before Kagan had even joined the court, as she was serving as US solicitor general, standing in the well of the courtroom, with Roberts looking down from the center chair. They tangled over a 1935 precedent that protects agency independence and that now hangs in the balance, Humphrey’s Executor v. United States.

Since his days as a young lawyer in the Ronald Reagan administration, Roberts has argued for vast executive power, including the authority to fire individuals who lead administrative agencies. “Without such power,” Roberts wrote in the 2009 dispute over a corporate auditing board, “the President could not be held fully accountable for discharging his own responsibilities; the buck would stop somewhere else.”

Kagan, in contrast, believes the constitutional separation of powers allows Congress to establish and safeguard certain areas of administrative independence. And she has relied on Supreme Court rulings, including the 1935 milestone, that have allowed Congress to prevent the president from removing independent administrators without sufficient grounds.

Monday’s case was brought by former Federal Trade Commissioner Rebecca Slaughter, who received a March 18 email from Trump saying her “continued service on the FTC is inconsistent with my Administration’s priorities.” (Under the law governing the FTC, commissioners can be removed only for “inefficiency, neglect of duty, or malfeasance in office.”)

The court’s ruling will extend far beyond Slaughter and the FTC and have vast consequences for specialized regulation in an array of financial, environmental and public safety spheres.

In an early phase of Slaughter’s lawsuit, in September, the Roberts majority reversed a lower court order that would have allowed Slaughter to stay in her post. The move was consistent with Roberts’ opinions that have steadily eroded the reach of Humphrey’s Executor v. United States and signaled he considers it a dead letter.

Related article Supreme Court flicks at First Amendment concerns with state’s subpoena of faith-based pregnancy centers

“The majority may be raring to take that action,” Kagan observed as she dissented from that September action. “But until the deed is done, Humphrey’s controls, and prevents the majority from giving the President the unlimited removal power Congress denied him.”

More broadly, the eventual ruling could build on other decisions providing Trump more power as he carries out his second term agenda. Last year, Roberts and his fellow conservatives granted Trump substantial immunity from prosecution as it expanded the concept of a president’s “conclusive and preclusive” authority. Then, earlier this year, the court freed the administration from lower-court nationwide orders against his various policy initiatives.

These decisions have dissolved constraints on the president, and if the court were to reverse the 1935 case, the president would be further unburdened by congressional legislation barring him from removing agency officials without sufficient grounds.

Vanderbilt University political science professor John Dearborn, who has studied the Reagan era development of a “unitary executive theory” and Roberts’ writings, told CNN, “He’s had these kinds of ideas for a long time, that the only way that agencies are accountable is if the president has the power to fire people.”

‘I didn’t say anything bad about Humphrey’s Executor’

Before joining the bench, Roberts and Kagan were first-rate oral advocates with their own, respective, steady and tenacious styles. Roberts served as a deputy US solicitor general during the George H.W. Bush administrations and then appeared frequently at the court in private practice. He argued a total 39 cases before the high court.

Kagan, who hadn’t previously argued a case at the high court, was named US solicitor general in 2009 by President Barack Obama. She went on to argue six cases, including the presidential-removal controversy, before Obama nominated her to the bench in 2010 to succeed retiring Justice John Paul Stevens.

Continue/Read Original Article Here: Roberts and Kagan prepare for another showdown on executive power | CNN Politics

#ChiefJusticeRoberts #CNN #CNNPolitics #Conservative #ExecutiveBranch #ExecutivePower #IndependentAdministrators #JusticeKagan #Liberal #President #RemoveOfficials #Showdown #SufficientGrounds #USCongress #USPresident

Elena Kagan – Profile & Analysis

Elena Kagan – Profile & Analysis

Appointed by: President Barack Obama (2010), replacing Justice John Paul Stevens.

Ideological position: Generally part of the Court’s liberal wing on voting rights, reproductive rights, LGBTQ+ equality, and the administrative state.

Background

• Born in New York City in 1960; educated at Princeton, Oxford, and Harvard Law School.
• Served as a law professor and later Dean of Harvard Law School.
• Became the first woman Solicitor General of the United States before her Supreme Court appointment.

Judicial Style & Philosophy

• Pragmatic liberal: Usually votes with the Court’s liberal bloc, but frames her opinions in practical, institutional terms rather than in sweeping theory.
• Readable, accessible opinions: Known for clear, conversational writing aimed at lawyers and non-lawyers alike, often using concrete examples and occasional humor.
• Institutionalist focus: Emphasizes process, transparency, and the Court’s legitimacy, especially in how it uses its emergency or “shadow” docket.

Key Themes & Notable Opinions

• Voting rights & democracy: In cases like Brnovich v. Democratic National Committee, Kagan’s dissents warn that narrowing the Voting Rights Act weakens core protections for minority voters and harms democratic participation.
• Administrative state & regulation: Opinions such as Kisor v. Wilkie and dissents in cases like West Virginia v. EPA show her concern for giving expert agencies room to implement complex statutes while still keeping them accountable to Congress and the courts.
• Shadow docket criticism: Kagan has become one of the most vocal critics of the Court’s growing use of emergency orders to decide high-stakes disputes, arguing that unexplained late-night rulings undermine lower courts and public trust.
• LGBTQ+ rights: She joined the majority in Obergefell v. Hodges (same-sex marriage) and has continued to support LGBTQ+ protections, warning that broad exemptions risk hollowing out formal equality.

Role on the Trump-Era Court

In Donald Trump’s second term, the conservative supermajority has repeatedly expanded presidential power, particularly over independent agencies and the federal workforce, often through the emergency docket. Kagan has emerged as a leading critic of this trend. In dissents to emergency orders and major merits cases, she argues that:

• Congress, not the president alone, should control how agencies are structured and how their leaders can be removed.
• Large shifts in federal power should not be made through unexplained emergency orders.
• Weakening voting rights and dismantling regulatory protections threatens the democratic system the Court is meant to safeguard.

Bottom line: Justice Kagan is the Court’s institutionalist liberal voice—focused on protecting democracy, preserving Congress’s role, and insisting that the Supreme Court explain itself openly when it makes decisions that reshape American law and government.

Selected Sources & Further Reading

• Oyez, “Elena Kagan: Biography and Cases.”
• Justia, “Justice Elena Kagan – Biographical Profile & Opinions.”
• Elena Kagan, dissents in major voting rights and administrative law cases (e.g., Brnovich v. DNC, Rucho v. Common Cause, West Virginia v. EPA).
• Recent speeches and commentary on the Supreme Court’s emergency or “shadow” docket and judicial independence.

#2025 #apppointedByObama #elenaKagan #justiceKagan #profile #scotus #supremeCourt #supremeCourtOfTheUnitedStates

Kagan criticizes fellow justices over lack of explanation in recent Supreme Court rulings | PBS News

The Supreme Court has handled a flood of appeals from the Trump administration on its emergency docket, also known as the shadow docket. In the first six months of Trump’s term, the conservatives on the court have sided with him on several key policies, but the decisions have come with little to no explanation for their rationale. Geoff Bennett discussed more with Supreme Court analyst Amy Howe.

Read the Full Transcript

Notice: Transcripts are machine and human generated and lightly edited for accuracy. They may contain errors.

• Geoff Bennett:

  Supreme Court Justice Elena Kagan is urging her colleagues on the bench to be more transparent as they make more emergency decisions, including those involving President Trump.

  At an event in California, Kagan criticized how the court has handled a flood of appeals from the Trump administration on their emergency docket. The emergency docket, also known as the shadow docket, is a process the Supreme Court uses for urgent cases that are decided quickly with no oral arguments.

• Elena Kagan, U.S. Supreme Court Associate Justice:

  As we have done more and more on this emergency docket, there becomes a real responsibility that I think we didn’t recognize when we first started down this road to explain things better.

  I think that we should hold ourselves sort of on both sides to a standard of explaining why we’re doing what we’re doing.

• Geoff Bennett:

  In the first six months of President Trump’s second term, the conservatives on the court have sided with him on several key policies, including allowing the administration to continue mass firings at multiple government agencies and to cancel certain federal grants. But those decisions have come with little to no explanation for their rationale.

  For more on all this, we’re joined now by SCOTUSblog co-founder and “News Hour” Supreme Court analyst Amy Howe.

  Always great to have you here.

Continue/Read Original Article Here: Kagan criticizes fellow justices over lack of explanation in recent Supreme Court rulings | PBS News

#2025 #America #DonaldTrump #Health #History #JusticeKagan #Libraries #LibraryOfCongress #Opinion #PBS #Politics #PublicBroadcastingService #Resistance #Science #SCOTUS #Trump #TrumpAdministration #UnitedStates

@legoktm But as #JusticeKagan wrote in Biden v. Nebraska: «The Court's first overreach in this case is deciding it at all. Under Article III of the Constitution, a plaintiff must have standing to challenge a government action. And that requires a personal stake—an injury in fact. [...] The Court acts as though it is an arbiter of political and policy disputes, rather than of cases and controversies.»
https://www.supremecourt.gov/opinions/22pdf/22-506_nmip.pdf

Lawrence got a fine. The injury was real.

#SCOTUS