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‘Biting’: Legal analyst in awe as liberal Supreme Court justices ‘lambaste’ majority
The Supreme Court's right-wing majority handed Trump a sudden "shadow docket" win on Thursday, granting him, at least temporarily, the power to fire independent agency heads at the National Labor Relations Board and the Merit Systems Protection Board.
The ruling, the majority emphasized, does not overturn the landmark 1935 Humphrey's Executor v. United States ruling that allowed Congress to bar the president from firing the heads of independent, multi-member agencies without cause — but, wrote The Economist's Supreme Court reporter Steven Mazie, the liberal dissent angrily pointed out that in practice, that's exactly what they're doing.
"The dissent is biting," wrote Mazie, analyzing the minority opinion of Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. "Lambastes the majority for all but overruling a 90 year-old precedent on the emergency docket. Calls the move extraordinary. And says the majority’s reasoning is 'unedifying' and favors the 'President over our precedent'."
The ruling also quoted Alexander Hamilton in cautioning the courts to set out a consistent precedent, which the majority is not doing.
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"Our Humphrey’s decision remains good law, and it forecloses both the President’s firings and the Court’s decision to award emergency relief," wrote Kagan. "Our emergency docket, while fit for some things, should not be used to overrule or revise existing law. We consider emergency applications 'on a short fuse without benefit of full briefing and oral argument'; and we resolve them with out fully (or at all) stating our reasons" — directly quoting Justice Amy Coney Barrett criticizing the shadow docket in a separate case.
"The court has been sitting on this application for weeks," Mazie wrote. "The extremely unsatisfying reasoning, which justice Kagan expertly exposes, shows how stymied they were, allowing Trump to take the law into his own hands without formally acknowledging the change."
"If this disingenuous, mealy mouthed order doesn’t convert everyone to being a legal realist, I don’t know what will," Mazie concluded.
