The Court Is Still Dangerous to Democracy

Last week's shadow docket decision greatly advances Trump’s authoritarian agenda.

May 26, 2025

The Supreme Court’s decision last Thursday in Trump v. Wilcox is a sobering reminder that we can't depend on the courts—and the High Court in particular—to get us entirely out of this mess.

The decision significantly augmented Trump’s power by effectively overruling a key precedent that authorizes Congress to specify that the heads of certain agencies can be fired only for good cause—not mere caprice or, in Trump's case, to replace professional incumbents with loyal lackeys.

If that sounds like a technical requirement, it isn't. It’s perhaps the core restraint against Trump’s mad spree—unparalleled in at least the last 200 years—of replacing good government principles with raw political control, in the process laying the potential groundwork for an authoritarian takeover of the entire government apparatus.

Just as troubling, the Court made this sweeping move through the shadow docket—without full briefing or oral argument. It issued a hastily published, two-page unsigned opinion with scant reasoning.

The decision conjoined two unfortunate hallmarks of the Court’s current conservative majority—one of substance and one of process.

The substantive trend is solicitude for the so-called unitary executive theory.

Since the New Deal, Congress has routinely imposed limits on the President’s ability to fire agency heads. It is a very long list comprising some 16 mainstays of the administrative state, including the FCC, SEC, NLRB, and EEOC. For these so-called “independent agencies,” the President normally needs a good reason to discharge the leadership—some of which consist of multi-member boards and others of individual leaders.

There are two main reasons for a for-cause requirement. The first is to provide some measure of political distance from the administration, which in turn leads to greater stability, professionalism, and non-partisanship. The second is to foster expertise and technical prowess in government, particularly critical for some of the more specialized areas that certain agencies administer.

As a practical matter, independent agencies have been a significant success story since the first FDR administration, bringing apolitical expertise and non-partisan public spirit to the regulation of wide-ranging areas of modern life.

But the existence of independent agencies has long stuck in the craw of a certain faction of conservative thinkers.

Here's where the "unitary executive" theory comes in. In its first three articles, the Constitution lays out a carefully delineated separation and distribution of powers. Article II begins with a broad categorical statement: "The executive power shall be vested in a President of the United States of America.”

To proponents of a unitary executive, the sentence gives rise to a sort of syllogism: if executive power, then it must be vested in the President.

Independent agencies sit awkwardly within this rigid scheme. They exercise executive power. Yet to the extent that their power is at least partially unchecked because of the limits on the President’s ability to remove, that increment seems to be a free-floating grant of power by Congress—not subject to the President’s unitary control and therefore not fully vested in the President.

There’s a certain pristine quality to this maximalist reading of Article II’s opening line. The problem is, it has long since ceased to accurately describe the breakdown of governmental power. The New Deal remade America into a modern administrative state, and the Constitution shifted ground somewhat to reflect it.

And the Court’s jurisprudence reflects it. The landmark Humphrey's Executor case, which dates to 1935, upheld a for-cause removal provision for the leadership of the National Labor Relations Board. The Board consists of five persons, appointed by the President and confirmed by the Senate, serving in staggered five-year terms, and no more than three from the same political party. That structure is designed to prevent the NLRB from being taken over for partisan ends.

In recent years, the Court’s conservative majority has set its sights on independent agencies, striking down congressional for-cause provisions for agencies with single heads rather than modern member boards, or where, in the Court’s estimation, the agency exercises traditional executive power.

Those decisions served notice that the majority might be contemplating revisiting Humphrey’s Executor itself. But as of last Thursday, when the Supreme Court issued its decision—and even technically as of this moment—the case is still good law.

That brings us to the second problematic dimension of Trump v. Wilcox. Trump, in rank violation of the law and well-established precedent, discharged several officers of classic independent agencies without cause, including the NLRB. As Justice Kagan wrote in dissent, “he has chosen… to take the law into his own hands.”

Not for the first time. And the decision all but ensures not for the last.

With Humphrey’s Executor still on the books, Wilcox was an easy case. Applying governing precedent and legislation, the district court enjoined the President from removing the NLRB member and a member of the structurally comparable Merit Systems Protection Board. The Administration, something of a one-trick pony in response to adverse district court rulings, moved for emergency relief in the D.C. Circuit. That court left the stay in place, as only makes sense if Humphrey’s Executor is still good law.

The Administration petitioned the Supreme Court for emergency relief, and the Court responded within hours. While giving lip service to the case’s continuing vitality, it issued a barely reasoned two-page per curiam (unsigned) opinion that tossed Humphrey’s Executor into an unmarked grave.

Because the question before the Court was whether to keep emergency relief in place, the Court had to determine if the Administration is likely to prevail on the merits. Instead of basing the analysis on current law, the Court blithely delivered a prophecy that the government would be likely to show that the two independent agencies “exercise considerable executive power,” and therefore Humphrey’s Executor would fall.

The upshot was to validate Trump’s lawless power grab and discharge agency heads who still, in theory (only), enjoy protection from arbitrary sacking.

They did this even while disavowing that they were overruling the case, but no court watcher missed the import of the brief, elliptical opinion. Humphrey’s Executor is a dead letter. And Trump’s power to force nearly every heretofore independent executive agency to join the long line to kiss his ring is hugely enhanced. The consequences for the coming months—and even the coming years—are immense.

Notably, the Court didn't even have the courage of its convictions in its imposition of a unitary executive rationale to mow down Humphrey’s Executor. Lawyers for the fired agency leaders had pressed the point that arrogating to Trump the authority to decapitate leadership would imply the same authority for the Federal Reserve, which sets monetary policy and interest rates.

Everyone—even the purist “unitary executive” justices—recognizes that giving Donald Trump the power to discharge the leadership of the Fed, beginning with Jerome Powell, the current Chair of the Board of Governors, would be a recipe for a worldwide economic free fall.

So the Court simply, in unpersuasive fashion, carved out the Fed from its holding. It described the Fed as a “uniquely structured, quasi-private entity that follows in the distinctive historical tradition of the first and second banks of the United States.” Okay. But that doesn't begin to explain why the supposed all-encompassing grant of executive power to the President in Article II doesn’t preclude the independence of the Fed from presidential control.

Justice Kagan, joined by Justices Sotomayor and Jackson, had a field day in dissent. Kagan, the Court’s leading expert on administrative law, started by reminding the Court and the country how for-cause discharge limitations serve the long-term public good: “They maintain Congress’s idea of independent agencies: bodies of specialists balanced along partisan lines, which will make sound judgments precisely because [they are] not fully controlled by the White House.”

Kagan next focused on the Court’s wrongheaded use of its shadow docket to do away with a long-standing, important precedent. She wrote, “our emergency docket, while fit for some things, should not be used to overrule or revise existing law.” That principle is all the stronger in the case of a landmark precedent that constrains the power of a power-mad President.

Kagan finished with a devastating takedown of the Court’s clunky attempt to carve out the Federal Reserve, which she called out for what it was—an unprincipled way to reassure the markets while abandoning the purist unitary executive idea.

The Court’s conservative über-majority has done the nation a serious disservice and strengthened the hand of a would-be autocrat who may yet bring down our constitutional structure. The opinion was a shot in the arm for Trump and a slapdash judicial product surpassed only by the Court’s immunity opinion.

Still, it’s important to locate the transgression in the overall context of the Court’s response to Trump’s second term, which has been far better than we might have feared. The Court has so far stood firm three times in by far the most important test of its mettle—namely, its insistence on its own authority to determine the content of due process and its rebuff of the Administration’s efforts to preempt judicial review.

Even those essential rulings do not preclude the gravest risk: that Trump could disregard the Court entirely. And judicial decisions like Wilcox that approve his assertion of unchecked authority only heighten that danger.

Moreover, the Court’s pro-Trump decision reminds us that even if, as I continue to believe, we are able to prevent Trump from utterly destroying constitutional rule, the remaining years of his rule will be a rugged ordeal, with some bitter setbacks abetted by the Supreme Court.

In many ways, it falls to us—there is no real alternative—to try to mitigate the damage. We need to show up at every constitutional crossroads and name the abuses. All democratic government runs ultimately on popular support. There are more robust wellsprings of power in popular resistance than we generally appreciate, because before Trump we weren’t called into defense of the rule of law.

We can’t let down our guard. We may yet be the only thing standing between Trump and full-on authoritarian rule. It's a lesson from the country’s earliest days, bound up in countless sacrifices we commemorate today, and never more pertinent than now: eternal vigilance is the price of liberty.

Talk to you later.