The Supreme Court isn’t really on summer vacation. In fact, the justices are now doing some of their most significant work of the year.
Last month, they handed down their final opinions of the term in cases that were granted full briefing and argument. But before they return to the bench in the fall for the next term, they’re continuing to resolve emergency appeals on the so-called shadow docket (or emergency docket, or whatever term one prefers).
The latest example came Wednesday, when the Republican-appointed majority approved Republican President Donald Trump’s power to fire Democratic members of the Consumer Product Safety Commission without cause, over dissent from the court’s three Democratic appointees. The decision continues a theme of the Roberts Court empowering the presidency during Trump’s second term.
To justify its decision in Wednesday’s case, called Trump v. Boyle, the majority pointed to a shadow docket decision it handed down in May, Trump v. Wilcox, in which the court let Trump fire members of the National Labor Relations Board and Merit Systems Protection Board without cause (there, too, over dissent from the court’s three Democratic appointees).
Justice Elena Kagan had written the dissent in Wilcox, and she led the three Democratic appointees on Wednesday in Boyle, too, reprising her critiques from Wilcox regarding what the majority did and how it did it. (The majority orders in both cases were unsigned, as is generally the case on the shadow docket.)
Kagan began by chiding the majority for “once again” using “its emergency docket to destroy the independence of an independent agency, as established by Congress.” She noted that, like the labor agencies at issue in Wilcox, Congress wanted the consumer agency at issue in Boyle to operate independently, with members who serve staggered terms and can’t be removed without cause.
“But this year, on its emergency docket, the majority has rescinded that status,” Kagan wrote, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson. The Obama appointee continued, “By allowing the President to remove Commissioners for no reason other than their party affiliation, the majority has negated Congress’s choice of agency bipartisanship and independence.”
As she did in Wilcox, Kagan criticized the majority for stealthily having “all but overturned” a 90-year-old precedent called Humphrey’s Executor that had protected independent agencies. The dissent concluded by lamenting the majority’s facilitating of “the permanent transfer of authority, piece by piece by piece, from one branch of Government to another.” To the extent that’s so, a future Democratic president would enjoy the same power that Trump is acquiring. But whatever the future holds, the majority seems to appreciate the appeals presented by the administration to accomplish the conservative legal movement’s remaining goals. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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