The Volokh Conspiracy
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Cooking Up A Blue Plate Special
A few miscellaneous points about one of the most unusual opinions of the term.
I have an essay on Slaughter and Cook coming out in an online symposium from Law & Liberty. I found Cook to be one of the Chief's most unusual blue plate specials. It was so out of character from the Chief's usual writing style. Moreover, it is so strange to see the Chief respond to Justice Thomas's dissent, all in service of deciding an unnecessary constitutional law question. As I noted before, I think something happened behind the scenes.
Here are a few miscellaneous points that didn't fit into my (already-too-long) essay.
First, Chief Justice Roberts casually announced a principle of judicial supremacy using novel terminology:
Indeed, as a matter of vertical stare decisis, the lower courts have no choice but to follow our lead. When we define a term or establish a background rule, we need not repeat ourselves—once is enough.
The term "vertical stare decisis" has been used in several concurrences and dissents--Justice Kavanaugh has several of them. But the term has never appeared in a majority opinion to refer to the Supreme Court's supremacy. (I found one reference in a case involving vertical stare decisis between a district court and a circuit court.) Nothing in the Constitution requires lower courts to "follow our lead." Vasan Kesavan recently wrote a book-length law review article on the topic. But the Chief Justice pronounced that lower courts have no choice but to bend the knee. If only the Warren Court could have been so concise in Cooper v. Aaron in establishing the principle of judicial supremacy. Still, I don't think this line has gotten nearly enough attention. And it was certainly ignored by the federal judges in Boston and elsewhere who thought the Court's TPS ruling was optional.
Second, there was an important threshold question: did Cook have a cause of action to challenge the President's removal. Justice Thomas argued at some length that the federal courts lacked the authority to provide a remedy to Governor Cook. Justice Thomas points out that the majority fails to "identify[] a right of action . . . that overcomes sovereign immunity." Thomas observed the majority did not identify an "equitable remedy" from common law.
Chief Justice Roberts briefly replied in a footnote that Cook could sue "in equity."
As a final procedural roadblock, Justice THOMAS contends that Cook may not herself "enforce the terms of the Federal Reserve Act," for "[n]o plaintiff … can sue without a right of action" that "come[s] from Congress." Post, at ––––. That is mistaken. We have often held that plaintiffs may sue "in equity" without a congressionally-provided cause of action " 'to prevent an injurious act by a public officer.' " Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 327, 135 S.Ct. 1378, 191 L.Ed.2d 471 (2015) (quoting Carroll v. Safford, 3 How. 441, 463, 11 L.Ed. 671 (1845)); see also W. Baude, J. Goldsmith, J. Manning, J. Pfander, & A. Tyler, Hart and Wechsler's The Federal Courts and the Federal System 1348–1350 (8th ed. 2025) (noting "the availability of Ex parte Young-style litigation to challenge the legality of federal official action"). We see no reason why Cook may not pursue such a challenge here.
This throwaway line allowed Cook to proceed, but will have collateral consequences in countless other areas of the law where private litigants seek to challenge federal actions. Armstrong does not support what Cook did in this case, but the Chief Justice unfortunately breathed new life into that precedent.
Third, in Cook, Chief Justice Roberts ruled that President Trump did not provide Louise Slaughter with the appropriate process before firing her. The Court did not spell out exactly what Trump should have done, but stated simply that the President's social media postings announcing the firing were not enough. The Court could have stopped there. Instead, the Court opted to declare emphatically that the Federal Reserve was independent, and the President could not remove the Commissioner at will.
How the Chief Justice took this tack is unusual. Generally, once Roberts has five votes, he feels no obligation to respond to dissents. For example in Trump v. Barbara, the birthright citizenship case, Justices Thomas and Alito wrote nearly 150 pages of dissents. Roberts spends at most about 5 pages responding to them. Yet in Cook, Roberts responds nearly point-by-point to Justice Thomas, including the dissenter's argument that the purported independence of the Federal Reserve is unconstitutional in light of Slaughter, a decision that Roberts himself wrote. Again, the government did not contest the Fed's independence.
Roberts still engaged in a novel constitutional analysis, upholding the Federal Reserve's constitutionality. In a few breezy paragraphs, he drew an analogy between the Fed and the First and Second Banks of the United States, enacted during the Washington and Madison administrations, respectively. Roberts acknowledged there were differences between the institutions, as the Federal Reserve is "more powerful than its predecessors, managing a vastly more complex economy in a vastly more complex world."
But Roberts makes a glaring pivot that undermines any pretense of originalism. Roberts wrote "We see no reason, however, why our central bank ought to be 'trapped in amber' any more than any other aspect of our constitutional scheme." Here, Roberts cited his own opinion in United States v. Rahimi, which rolled back protections of the Second Amendment, which lacked a clear historical tradition. He also cited Noel Canning, a case he dissented in. All that is needed, Roberts writes, "is that the Federal Reserve remains "consistent with the principles that underpin" the First and Second Banks—namely, that monetary policy should not be subject to political interference." Finally, Roberts invoked Justice Frankfurter, who was no originalist; We thus look to history not as an end in itself, but (as we often do) to give "essential content to undefined provisions in the frame of our government."
Of course, there is the greatest inconsistency. How to reconcile Slaughter and Cook? Justice Thomas observed that Slaughter held that the President can remove a subordinate at "'will,' without cause, without notice, and without a hearing, so long as they exercise any executive power." Justice Barrett, in dissent, opined that the constitutionality of the removal restriction for Federal Reserve Governors is "is in a league of its own" yet is "entirely outside the scope of this case."
Yet, even with the Court's decision to reaffirm the Federal Reserve's independence, Roberts left open in a footnote whether Congress could delegate "additional regulatory powers that are attenuated from monetary policy," thus leaving the status of the agency in some "limbo."
Fourth, there was an unstated fear lurking in the background: if the President could conjure up dubious causes to fire a member of the Federal Reserve, the board's independence could be skirted. The Chief Justice suggested that the courts could scrutinize if the stated rationale provided for firing the Governor was in fact cover for an impermissible motivation. Such a "pretext," Roberts wrote, would be "corrosive of the independence that Congress sought to preserve." Here, Roberts cited his own ruling from Department of Commerce v. New York (2019)--quite possibly his worst decision of all time--which suggested the Trump Administration offered a pretextual reason for adding a question about citizenship to the census forms.
The upshot could not be clearer: Roberts has long been skeptical of the reasons offered by Trump, and would second-guess the elected president when he is suspicious. Yet, in an attempt to hold Trump accountable, Roberts has given the lower courts a green light to ferret out "pretext" in all manner of presidential decisions. As Adrian Vermeule observed, Roberts cooked up a mess.
Especially striking, as I will discuss at the end, is that Cook very arguably contains the Court's strongest assertion to date of a loose, unstructured judicial competence to review presidential findings and conclusion for "pretext" - an assertion that is potentially destabilizing in the extreme, and whose dangers the Court probably ought to consider more fully.
But of course, the Chief Justice blew right past this concern because the Federal Reserve is just too big to fail and orange man bad.
Fifth, Justice Thomas notes all of the firsts. The Court "upholds an injunction against the President's removal of an executive officer for the first time in the Constitution's 237-year history." No court ever "held that any federal statute implicitly requires notice and a hearing when it provides for a term of years limited by removal for cause."
Sixth, observers measure how partisan a Justice is based on how close to the "middle" they vote--not too conservative, not too liberal, Justice right. Justice Clarence Thomas is often assailed as the most ideological Justice. Nonsense. Thomas has an actual judicial philosophy that he steadfastly follows. Likewise, Justice Jackson on the other end has an actual judicial philosophy that she steadfastly follows. The most partisan Justices are those at the middle, who cast their votes going to the left or the right based on their read of the situation at the moment.
Here's looking at you, Chief.