Kate Shaw, a contributing Opinion writer, hosted a written online conversation with William Baude, a law professor at the University of Chicago, and Stephen I. Vladeck, a law professor at Georgetown and the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” to dissect and debate the state of the Supreme Court and the sweeping cases at the end of the court’s term.
Kate Shaw: Let’s start with the big picture. Have the emphatic six in the six-to-three splits that have dominated the last few weeks of decisions made clear that this court is one devoted `— and increasingly nakedly so — to an ideological project?
William Baude: No way. In the past few days, the decisions on birthright citizenship (Trump v. Barbara), Election Day (Watson v. Republican National Committee), Federal Reserve independence (Trump v. Cook) and geofence warrants (Chatrie) — all on top of the tariffs decision from a few months ago (Learning Resources) — show that this is one of the most independent courts I can imagine at this stage of the second Trump administration.
Stephen I. Vladeck: Will and I have different definitions of “independent,” but maybe that tracks, given the demise of independent agencies. It’s obviously true that some of the court’s biggest rulings of the term didn’t put all six Republican appointees in the majority and all three Democrats in dissent, but a lot of them did — far more than last term or the term before.
Beyond that, I’m struck by how few rulings we saw with weird splits: There were 24 total rulings in cases argued this term that split the court 5-4 or 6-3, and the Democratic appointees were all on the same side in 23 of them. That’s not a coincidence. That one or two Republican appointees sometimes crossed over doesn’t prove a lack of ideology so much as it suggests that there are some lines even they wouldn’t cross.
Shaw: I’ll spot Will that there are important exceptions to the 6-3 trend — but to my mind, most of those are (at least potentially) attributable to crosscutting ideological commitments. The tariffs and Fed decisions, for example, seem likely driven by concerns about the economy and market stability; in those cases, some of the conservative justices were willing to subordinate their enthusiasm for presidential power to those other concerns.
Baude: I struggle to think of the last time that a court with six members appointed by the president’s party and three of his own appointees ruled against him on at least three different things he seemed to care a lot about in one term.
Vladeck: But that’s a point about volume. President Trump’s aggressiveness, lawful or not, has provoked an unprecedented number of lawsuits. I’m not sure the court deserves a participation trophy just because the numerator is higher relative to prior presidents given how much higher the denominator is, too.
Baude: I agree that we are in unprecedented times, maybe even a constitutional crisis, but if we survive it, the court deserves no small share of the credit.
Vladeck: Exactly the same credit we might give to the arsonist who shows up with a fire extinguisher.
Shaw: Let’s dig in on two of the biggest decisions of the term when it comes to presidential power, Slaughter and Cook. The court’s decision in Slaughter overruled Humphrey’s Executor and gave the president the power to fire heads of many independent agencies. Steve, you described the decision as “the most important separation of powers ruling of the 21st century — and by far, the most important decision of the current term.” Can you explain why?
Vladeck: We don’t need to speculate about what it would mean for the president to be able to exert direct political control over the day-to-day operations of any and all executive branch agencies. Just look at this week’s reporting about the intimidation of the Merit Systems Protection Board, or what’s happened with the Department of Justice, or what’s happened with military promotions at the Department of Defense, or … I could go on for a while.
The theory aside, holding that Congress can’t do anything to restrain those impulses is a far broader shift of power from the legislative branch to the executive branch than any decision I can think of — all the more so when Congress had tried to restrain some of those impulses.
Baude: Steve’s observations about the Department of Justice and the Department of Defense are also a reminder that even without Slaughter, the president has a ton of power over the executive branch.
Vladeck: There’s also that pesky little problem that the court handed down a ruling (Cook) at the exact same moment that fatally undermines its analytical coherence. The reality is that we still had executive branch agencies with meaningful independence as recently as 18 months ago and, with one “bespoke” exception, we won’t tomorrow.
Shaw: Will, you’ve noted that “one of the distinctive patterns of the Trump administration is the use — and abuse — of a broad range of constitutional and statutory powers to reward the friends and punish the enemies of the regime.” As you just noted, that was true before Slaughter. But isn’t this opinion likely to further empower the president to do things like sic the Federal Communications Commission on press outlets that are critical of him — and this time claim the mantle of the Constitution when he does?
Baude: Well, the F.C.C. had no trouble going after the regime’s enemies even before Slaughter, and I don’t think Humphrey’s Executor is what was holding them back under earlier presidents, either. But still, yes. The administration’s pattern of abuse of power is outrageous, and it is disquieting that the federal courts won’t always have the power or ability to stop it.
Vladeck: I continue to be struck by the suggestions that the courts are powerless to do what (1) lower courts have done and (2) multiple justices have argued, with more than a little force, they were right to do. To simultaneously say “the president keeps abusing all of these powers” and “the Supreme Court is right to let him” is a remarkably formalist take that fails to account for the strength of the contrary legal arguments.
Baude: I’m guilty of formalism as charged, and I have always thought that violations of Article I and Article II are not enough to justify violations of Article III.
Vladeck: The lower court rulings in Slaughter, in the Temporary Protected Status cases and in the asylum case weren’t violations of Article III. They were based on completely reasonable statutory and/or constitutional arguments that only the Republican appointees rejected. To suggest that those lower courts were violating Article III the way Trump is violating the rest of the Constitution does a real disservice to those courts.
Baude: That is fair, and I may have been too glib. I don’t mean to cast aspersions on any lower court judge in any of these cases. But I do think the Supreme Court should be worrying about the proper role of the judiciary, even if that means, effectively, tying one hand behind its own back when the executive branch is not doing the same thing.
Shaw: Will, what did you make of the historical account in Chief Justice John Roberts’s opinion? It felt to me like a laughably one-sided account of the debate over the president’s power to remove.
Baude: I agree that Slaughter’s historical account is not as nuanced as the one I would give: It probably overreads the so-called Decision of 1789, for instance. And I am also sympathetic to the argument, made by the legal scholar Caleb Nelson and countless others, that we ought to err on the side of deferring to Congress’s judgments under the Necessary and Proper Clause.
But I still think the majority opinion is basically right about the long sweep of historical practice. Humphrey’s Executor had roughly 50 goodish years, until sometime during the 1980s, but that stretch of time seems anomalous to the broader understandings before and after it.
Vladeck: The notion that the “long sweep of historical practice” shouldn’t take seriously what was Congress’s dominant approach throughout the entire 20th century is why I get nervous about the historical claims animating the majority opinion.
Shaw: And it’s not just the 20th century. At a minimum, the evidence from the first 150 years of our history is mixed; I think — and several excellent amicus briefs the chief either ignored or didn’t read make clear — that the dominant view was that Congress could limit the president’s power to fire.
One more question about Slaughter. The majority opinion is conspicuously silent on the implications of its readings for the Civil Service. Civil servants, like some agency heads, enjoy statutory protections from removal by the president. Is the Civil Service seriously imperiled?
Vladeck: Justice Sonia Sotomayor had this exactly right in her dissent: probably not, but not because of anything in Chief Justice Roberts’s majority opinion. But so much, then, for Chief Justice Roberts’s “no ifs, ands or quasis about it” (in the Slaughter opinion). It turns out there are lots of ifs, which should have been fatal to the unitary executive “theory” in the first place.
Shaw: Let’s turn to Slaughter’s companion case, Trump v. Cook, in which the court ruled against Trump’s effort to fire — here, ostensibly with cause — the Federal Reserve Board governor Lisa Cook. I was relieved at the outcome, but I struggled to find any recognizable legal reasoning in the case. I don’t think I was alone; Justice Amy Coney Barrett dissented in Cook, arguing, “How can history support both a categorical rule and a carve-out?” Will, does that mean that Slaughter is wrong, or that Cook is?
Baude: I don’t read Justice Barrett to firmly disagree about the constitutional status of the Fed so much as to complain that the majority’s explanation is insufficient. She’s right. There’s a very good argument that the Federal Reserve’s monetary powers can be understood as outside of the executive power, by analogy to the Banks of the United States, but that argument should require more explanation (and is explored by some of the scholarship she cites), and it still wouldn’t explain what to do with the Fed’s regulatory powers (eliminate them, as a matter of severability doctrine?).
Vladeck: But this is the whole point. Justice Kavanaugh, as is so often his way, said the quiet part out loud in his concurrence. (“Even temporary uncertainty about the status of the Federal Reserve could spark political upheaval, including confusion about whether the president could immediately remove multiple governors at will, as well as turmoil in the U.S. and world economies.”)
The point isn’t that some deep principle or indisputable historical fact explains why the Fed got carved out from Slaughter; instead, it’s the economy, stupid. That has at least some common sense; the unitary executive theory, it ain’t.
Baude: If you’re complaining that the Supreme Court isn’t originalist enough, I don’t disagree.
Shaw: There’s no way to talk about this term without discussing Louisiana v. Callais, which gutted Section 2 of the Voting Rights Act and sent state legislatures racing to redraw their voting maps just months out from the midterms. Since you’re both experts on the emergency or so-called shadow docket, I want to focus on what came after the opinion in Callais — in particular the Supreme Court order in Allen v. Milligan greenlighting Alabama’s use of a map that the lower court had found was the result of intentional racial discrimination. Why reach out so aggressively in that case?
Baude: I wish we knew. That said, I think it was Callais that functionally overruled Allen v. Milligan (despite implausibly claiming otherwise). And I also wish we knew why it took the court so long to get to Callais. In that sense, the court made some of the timing problems for itself.
Vladeck: I’d also add the decision, over Justice Jackson’s dissent, to issue the judgment immediately in Callais, and the decision to summarily vacate the earlier district-court ruling in the Alabama case. Beyond Callais, let’s not memory-hole the Texas and New York redistricting cases.
Shaw: Yes! Alabama was not the court’s only under-the-radar intervention this term with electoral consequences. New York in particular is one I think people have forgotten. Last week saw important primary elections in New York; among other things, Brad Lander, the former New York City comptroller, ousted Representative Dan Goldman in a Democratic congressional primary. But people may not realize that the Supreme Court was largely responsible for the existence of that face-off. Months ago, there was a map in place that had two separate districts Lander and Goldman could have run in; the court’s shadow docket order in Malliotakis v. Williams threw out that map. Steve, you’ve described that order as essentially unprecedented. Why?
Vladeck: Unlike all of the other redistricting cases from this term, Malliotakis came from a New York State court — and the Supreme Court’s jurisdiction over state courts is, or is supposed to be, far more heavily circumscribed. Justice Sotomayor argued in her dissent in that case that the court ran roughshod over those constraints and, for the first time ever, granted emergency relief to block a state court ruling before the state’s highest court had a chance to rule. She was right.
Shaw: Another important through line from this term was the court’s unprincipled inconsistency in its treatment of race. This is a court that appears eager to find government action tainted by impermissible racial motives when those motives are to enfranchise or protect minority voters; consider Justice Samuel Alito’s concurrence in Malliotakis, which explained that the drawing of a new congressional map “for the express purpose of ensuring that ‘minority voters’ are able to elect the candidate of their choice” was “unadorned racial discrimination, an inherently ‘odious’ activity that violates” the Equal Protection Clause.
But in the cases involving the termination of T.P.S., Justice Alito refused to assign the same force to the president’s description of Haiti as a “shithole country,” which is “filthy, dirty and disgusting,” and his accusation that Haitians, among others, were “poisoning the blood of our country.” Justice Alito’s majority opinion implausibly claimed that none of the statements at issue was “overtly racial.”
Vladeck: Adam Serwer nicely captured the tension between the speed with which the court finds racial animus in some of its cases and the lengths to which it avoided finding it in the T.P.S. cases. It would be easier to find these outcomes persuasive if the court seemed more committed to consistency here — let alone if it were more willing to publicly acknowledge the president’s behavior. He’s the unitary executive, except when he opens his mouth.
Shaw: In the birthright citizenship case, Trump v. Barbara, perhaps the most striking feature of the case was that Trump lost by only the narrowest of margins; the vote was 5-4 on the constitutional question. What does it say that this effort — which, Will, I’ve heard you describe as the most unconstitutional thing Trump has done — came this close to succeeding?
Baude: It says that we should be thanking our lucky stars for Chief Justice Roberts and Justice Barrett.
Vladeck: It’s a striking indictment of the dissenters — especially Justices Neil Gorsuch and Brett Kavanaugh. And it’s reason to be concerned about the court’s ability to speak emphatically if (if not when) Trump tries to push the constitutional envelope even further — including but not limited to with respect to the 2026 and 2028 elections.
Baude: To give Justices Gorsuch and Kavanaugh their due, both of them try to moderate their own positions in important ways. Justice Kavanaugh would still have ruled for the plaintiffs on statutory grounds, which would be a de facto complete loss for the Trump administration; Justice Gorsuch still emphasized that the children of many undocumented immigrants could prevail under his approach.
Shaw: But if a principle this important turns on the idiosyncratic views of two or three justices, is this how to fend off a constitutional crisis, which Will mentioned earlier? Hope for a few appointments of justices that won’t drive the constitutional project off a cliff?
Baude: Well, one of the risks of trying to oppose every Supreme Court nominee put forward by the other side — a point we haven’t quite reached, but may reach soon — is that you lose the ability to see that some of them are better than others.
Vladeck: That this is where our conversation has led says about as much about how bleak a term this was for the Supreme Court as anything could.
Baude: I was just getting ready to sing “The Star-Spangled Banner.”
Source photograph by Olivier Douliery, via Agence France-Presse — Getty Images.
William Baude is a professor at the University of Chicago Law School and a host of the “Divided Argument” podcast.
Stephen I. Vladeck, a professor of law at Georgetown, writes the One First Supreme Court newsletter and is the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.”
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