Scalia's Revenge: A Lone Dissent Haunts the Court

In order to make America great again — which means, evidently, going back to the royal prerogatives of George III — the Supreme Court’s conservative majority seems on the brink of creating a system in which Justice Ketanji Brown Jackson foresees “having a President come in and fire all the scientists and the doctors and the economists and the Ph.D.s and replacing them with loyalists and people who don’t know anything.” Kind of like what we have now. Only more so.

The court gets an opportunity to do this when it decides the case of Trump v. Slaughter, which it will do before the end of this term. Rebecca Kelly Slaughter was a member of the Federal Trade Commission (FTC). Legally, she could only be fired for cause, but without alleging any cause, Trump fired her anyway. Slaughter sued to get her job back. A lower court found in her favor. The Trump administration appealed to the Supreme Court. This wasn’t one of the many cases the Court decided on its “Shadow Docket,” without oral argument or legal reasoning. The Court held oral arguments on December 8.

Most observers seemed to think that the majority was ready to vote for Trump. This meant most justices were ready to scrap a 1935 decision, Humphrey’s Executor, that found a President couldn’t just fire an FTC commissioner. (Humphrey had been that commissioner.) In the early years of the New Deal, President Franklin D. Roosevelt had fired him. If he had been fired illegally, Humphrey would be entitled to back pay. After Humphrey died, the executor of his estate sued to get the money. (Hence “Humphrey’s Executor.”) The Court ruled unanimously in the executor’s favor.

Roosevelt was trying to make significant changes in American law and government in order to pull the nation out of its slump. The Court initially stymied him, declaring one law after another unconstitutional. Later, of course, it rubber-stamped nearly everything FDR’s administration tried to do. (New Deal legislation relied heavily on the Constitution’s Commerce Clause. Once the government got on a roll, the court didn’t rule against it in a Commerce Clause case until 1995.)

https://www.postalley.org/2026/01/03/scalias-revenge-a-lone-dissent-haunt-the-court/