Balkinization: The Roberts Court’s Unprecedented Abuse of Precedent

The Roberts Court’s Unprecedented Abuse of Precedent

Bruce Ackerman

Now on SSRN: The Roberts Court’s Unprecedented Abuse of Precedent – A Fundamentally Revised Version of My Earlier Essay on SSRN

Abstract:

The Roberts Court will be hearing oral argument on President Trump’s decision to fire Rebecca Slaughter from the Federal Trade Commission this coming Tuesday and will follow up with an expedited consideration of Trump’s dismissal of Lisa Cook from the Federal Reserve Board in January. Both will require the Court to deal with the continuing legitimacy of Justice Sutherland’s 1935 decision in Humphrey’s Executor’s upholding the constitutionality of “independent agencies.”

The earlier version of this essay represented a first attempt to place the Court’s confrontation with Humphrey’s Executor within the larger historical framework marked out by my multi-volume series, We the People. When I published this initial version of my essay on SSRN a month ago, I invited my readers to send me their reactions – and within days, they began to respond with a remarkable series of commentaries that generated a host of new insights into the questions of principle raised by Humphrey in connection with the Court’s impending decisions in the Slaughter and Cox cases.

In response to these commentaries, I’ve been spending my days, and some sleepless nights, writing up a new (4300 word) Introduction that tries to create an analytic framework incorporating many of my commentators’ insights. I then rewrote my original Essay to take this new Introductory framework into account.

To be sure, there is much more to be said on the key issues – and I hope that my new effort will encourage readers to write additional essays and publish them on SSRN. To be sure, there is no guarantee that members of the Roberts Court, or their law clerks, will take the time to consider at least some of these commentaries as they struggle to write up genuinely thoughtful opinions before announcing their final decisions in the Spring of 2026. But they would be well advised to do so, especially given their treatment of Humphrey’s Executor on the emergency docket.

At that point, John Roberts wrote a brief 440 word opinion for his Republican colleagues that dismissed Humphrey’s continuing precedential value without serious analysis -- despite an elaborate dissent filed by the Court’s three Democratic Justices protesting the majority’s failure to engage in a thoughtful discussion of the merits.

If it turns out that the six Republicans repeat this performance when overruling Humphrey in their final Springtime opinions, they will not only be enabling Trump, and his successors, to transform a host of independent agencies into mere playthings of partisan loyalists dispatched by the White House. They will be shattering the entire American tradition, begun by John Marshall in Marbury, that seeks to justify review by arguing that the Court’s on-going effort at principled constitutional argument rightly serves as a fundamental check-and-balance on the acts of political will in the statutes enacted by the elected branches of government. Yet the Republican majority will be destroying the very foundations for judicial review if it continues its emergency-like opinion-writing in its Springtime decisions on Humphrey’s Executor. As a consequence, even if the Republican majority is unpersuaded by the fundamental arguments for agency-independence that I will be presenting in this essay, a great deal will depend on whether they provide reasons for thinking that such arguments are unpersuasive – or whether they continue down the pathway of sheer willfulness that they have been traveling in their emergency decisions.

Posted 4:00 PM by Bruce Ackerman [link]