The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Justice Kagan Tells Us What She Really Thinks About President Trump
The Court "hand[s] the President the most unitary, meaning also the most subservient, administration since Herbert Hoover (and maybe ever)."
The briefing in Trump v. Wilcox concluded on April 16. The case has been pending for nearly a month. Who knows what sorts of negotiations took place to get to this faux-Solomonic ruling. Justice Kagan's eight-page dissent, however, did not take a month to write. She could have probably cranked this out in an afternoon.
In this dissent, Kagan tell us what she really thinks about President Trump. A few excerpts stand out.
First, she issues a not-so-subtle rebuke that Trump must "follow existing precedent."
It should go without saying that the President must likewise follow existing precedent, however strong he thinks the arguments against it—unless and until he convinces us to reject what we previously held. Yet here the President fired the NLRB and MSPB Commissioners in the teeth of Humphrey's, betting that this Court would acquiesce. And the majority today obliges—without so much as mentioning Humphrey's.
So much for departmentalism. Indeed, Trump's own Solicitor General acceded to the myth of judicial supremacy. Then again, Humphrey's Executor concerned the FTC. As far as I can recall, there is no Supreme Court precedent on point concerning the NLRB and MSPB. Indeed, there is an argument that the FTC as it existed in the 1930s is quite different than the FTC of today. So Trump didn't violate any existing Supreme Court precedent. And really, the only way for the President to challenge a precedent is to take some action inconsistent with the precedent.
Second, Kagan asks "Why is this President different from all other Presidents?"
And as to the President's interest in firing Wilcox and Harris, the majority gives it more weight than it has borne in almost a century. Between Humphrey's and now, 14 different Presidents have lived with Congress's restrictions on firing members of independent agencies. No doubt many would have preferred it otherwise.
Kagan would probably think that Trump is the wicked son.
Third, Kagan engages in some word play. She says the Court's decision to uphold the removal makes Trump's administration more "subservient."
But can it really be said, after all this time, that the President has a crying need to discharge independent agency members right away—before this Court (surely next Term) decides the fate of Humphrey's on the merits? The impatience to get on with things— to now hand the President the most unitary, meaning also the most subservient, administration since Herbert Hoover (and maybe ever)—must reveal how that eventual decision will go.
But the import here is greater. Kagan is calling out Trump's administration as a bunch of toadies and lackeys. Indeed, I've written that Roberts cannot stomach overruling Humphrey's Executor if it would mean giving Trump more power.
We will have to just sit and wait until June 2026 to figure out the fate of Humphrey's Executor. Yawn.
On the plus-side, my workload for the next few weeks got a tad lighter. I was planing to edit St. Isidore's and Wilcox for our casebook supplement, and maybe even for inclusion in the Fifth Edition of our casebook (forthcoming in November 2025). Now, neither case warrants inclusion. I've checked my records, and usually by Memorial Day, there is at least one case already decided that warrants placement in the supplement. But as of today, I have nothing. This term will remain unsatisfying, at least till the end.
