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elena kagan
'Legislating From the Bench,' Supreme Court Greenlights Trump Firing of Labor Regulators
Justice Elena Kagan wrote in her dissent that the president believes the 90-year precedent "should be either overruled or confined... And he has chosen to act on that belief—really, to take the law into his own hands."
May 22, 2025
In a decision that alarmed legal experts, the U.S. Supreme Court on Thursday blocked the reinstatement of two labor regulators fired by President Donald Trump in apparent violation of federal law intended to prevent such ousters for political reasons.
The Trump administration asked the high court—which has a right-wing supermajority—to block orders from the District Court for the District of Columbia against the president's removal of Merit Systems Protection Board (MSPB) Member Cathy Harris and National Labor Relations Board (NLRB) Member Gwynne Wilcox.
An unsigned two-page opinion—from which the three liberals dissented—provides the Trump administration that relief, but the majority declined to take up the cases more fully, meaning they will play out U.S. Court of Appeals for the D.C. Circuit. The Hillnoted that the move "leaves both agencies without a quorum required to conduct certain business in the meantime."
In her fiery dissent, Justice Elena Kagan wrote that "for 90 years, Humphrey's Executor v. United States... has stood as a precedent of this court. And not just any precedent. Humphrey's undergirds a significant feature of American governance: bipartisan administrative bodies carrying out expertise-based functions with a measure of independence from presidential control."
While the MSPB and NLRB are the focus of this case, "there are many others," she continued. "The current president believes that Humphrey's should be either overruled or confined... And he has chosen to act on that belief—really, to take the law into his own hands."
"Our Humphrey's decision remains good law, and it forecloses both the president's firings and the court's decision to award emergency relief," Kagan added. "Our emergency docket, while fit for some things, should not be used to overrule or revise existing law."
Big, bad legal news from "the shadow docket." 6-3 overturning the stay in Wilcox, the NLRB case. Less than 2 pages of assertions that have been proven historically incorrect. A preview of expanding presidential power and allowing the Trump removals: www.supremecourt.gov/opinions/24p...
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— Jed H. Shugerman (@jedshug.bsky.social) May 22, 2025 at 5:52 PM
Slate's Mark Joseph Stern similarly stressed the significance of Thursday's development on social media, writing that "the Supreme Court just effectively overruled 90 years of precedent on the shadow docket, greenlighting Trump's firing of multimember agency leaders while their cases are pending—despite Congress' effort to protect them against removal. A huge decision."
"The Supreme Court goes out of its way to say that its order today does NOT allow Trump to remove members of the Federal Reserve because it is 'uniquely structured' and has a 'distinct history tradition,'" he noted. "I do not think those distinctions hold water."
The right-wing justices' opinion states that "Gwynne Wilcox and Cathy Harris contend that arguments in this case necessarily implicate the constitutionality of for-cause removal protections for members of the Federal Reserve's Board of Governors or other members of the Federal Open Market Committee."
"We disagree," the court's majority said. "The Federal Reserve is a uniquely structured, quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States."
Multiple other court watchers echoed Stern's take on social media.
They’re not only overturning precedent on the shadow docket, but ~deciding~ other cases in a non-binding (dicta) way to give cover for these actions. Today, this unnamed group of conservative justices, not even claiming this is “per curiam,” say that the Federal Reserve is different. Sure.
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— Chris Geidner (@chrisgeidner.bsky.social) May 22, 2025 at 5:12 PM
"I don't mean to be a caricature, but this just isn't law. The Supreme Court is always making policy. But this is beyond," said Noah Rosenblum, a New York University associate law professor law, summarizing the decision. "'This dicta in an emergency order will reassure the markets but just, uh, trust us on the law here, OK, no we're not overruling Humphrey's yet, and when we do we'll spare the Fed.'"
Christine Kexel Chabot, a Marquette University associate law professor law, said: "The court is legislating from the bench: It has eliminated removal restrictions it finds unimportant while keeping those it finds too consequential to kill (the Fed). Article II provides an undifferentiated grant of 'the executive power,' not one that applies to the NLRB and excepts the Fed."
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Ginni Thomas Thanked Group Fighting Ethics Reforms Spurred by Her Husband's Scandals
Leaked audio reveals that the wife of Supreme Court Justice Clarence Thomas praised a far-right group whose president later attacked Justice Elena Kagan as "treasonous."
Sep 04, 2024
Leaked audio published Wednesday by the investigative outlets ProPublica and Documented reveals that the wife of U.S. Supreme Court Clarence Thomas effusively thanked a far-right group fighting judicial ethics reform effort spurred in large part by revelations about her husband's undisclosed gifts from Republican billionaires.
During a private July 31 call with the organization's top donors, First Liberty Institute president and CEO Kelly Shackelford read aloud an email—some of it in all-caps—from Ginni Thomas hailing the group's opposition to court reforms that are broadly popular with the U.S. public.
"YOU GUYS HAVE FILLED THE SAILS OF MANY JUDGES. CAN I JUST TELL YOU, THANK YOU SO, SO, SO MUCH," Ginni Thomas, who was closely involved in efforts to overturn the 2020 election, wrote to the group, according to Shackelford.
"I cannot adequately express enough appreciation for you guys pulling into reacting to the Biden effort on the Supreme Court," Thomas wrote.
Later in the call, First Liberty's president attacked liberal Supreme Court Justice Elena Kagan as "treasonous" and "disloyal" for supporting an enforcement mechanism for the toothless ethics code that the high court unveiled under immense public pressure late last year.
Listen to the audio released by ProPublica and Documented:
The First Liberty Institute's donor call came days after Senate Finance Committee Chairman Sen. Ron Wyden (D-Ore.) uncovered additional billionaire-funded private travel that Justice Thomas failed to disclose, the latest in a string of scandalous revelations that began with ProPublicareporting last year.
ProPublicaestimates that Thomas—part of a right-wing Supreme Court supermajority that has overturned the constitutional right to abortion care and dramatically curtailed the power of federal regulatory agencies—has over the past three decades taken dozens of luxury vacations bankrolled by billionaire Harlan Crow and other GOP megadonors with interests before the court.
Survey data released shortly after ProPublica's first bombshell report in April 2023 found that a majority of U.S. voters at the time backed Supreme Court ethics reforms and wanted Thomas to resign from the nation's most powerful judicial body.
"Ginni Thomas isn't protecting the court. She's protecting her and her husband's bribes."
ProPublica noted that Shackelford held the First Liberty donor call "shortly after President Joe Biden had announced support for a slate of far-reaching Supreme Court changes," including term limits and a binding ethics code for justices.
"On the donor call, Shackelford voiced strong opposition to various court reform proposals, including the ones floated by Biden, as well as expanding the size of the court," the investigative outlets noted. "All of these proposals, Shackelford said, were part of 'a dangerous attempt to really destroy the court, the Supreme Court.' This effort was led by 'people in the progressive, extreme left' who were 'upset by just a few cases,' he said."
News of Ginni Thomas' support for First Liberty's efforts to combat Supreme Court ethics reforms was seen as further confirmation of the urgent need to overhaul the judicial body, whose favorability ratings are near historic lows.
"Ginni Thomas isn't protecting the court," progressive activist Melanie D'Arrigo wrote on social media. "She's protecting her and her husband's bribes."
Brett Edkins, managing director of policy and political affairs at Stand Up America, said in a statement Wednesday that "the First Couple of the Supreme Court—Clarence and Ginni Thomas—have once again reminded us why we need term limits and a binding code of ethics to restore faith in our nation’s highest court."
"In a brazen political move, Ginni Thomas praised right-wing advocates working to quash commonsense Supreme Court reforms," said Edkins. "Having spent countless hours on all-expense-paid vacations on superyachts paid for by right-wing billionaires with interests before the court, it's almost too on the nose that Ginni thanked these advocates."
"It's a shameless reminder that the First Couple, and the Supreme Court broadly, must be held accountable," he added. "Congress must act by passing term limits and a binding code of ethics. The American people deserve a Supreme Court free from corruption and political bias."
This story has been updated to include a statement from Stand Up America.
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Justice Jackson Warns New Ruling Could 'Devastate' Federal Regulators
The liberal justice said Congress can remedy the "profoundly destabilizing" decision by passing legislation to strengthen the federal regulatory regime.
Jul 01, 2024
As the U.S. Supreme Court dealt yet another blow to the federal government's regulatory authority, Justice Ketanji Brown Jackson on Monday stressed that "the ball is in Congress' court" to enact legislation to "forestall the coming chaos" wrought by the right-wing supermajority's decision.
The justices ruled 6-3 in Corner Post Inc. v. Board of Governors of the Federal Reserve System that the Administrative Procedures Act's (APA) statute of limitations period does not begin until a plaintiff is adversely affected by a regulation. The ruling reverses a lower court's dismissal of a lawsuit filed by Corner Post—a North Dakota truck stop that challenged a U.S. Federal Reserve rule capping debit card swipe fees—because the six-year statute of limitations on such challenges had passed.
Monday's ruling makes it much easier to sue government agencies. As Sydney Bryant and Devon Ombres at the Center for American Progress explained, the decision "is intended to allow a swarm of legal challenges to rules that have protected the American people from bad actors and corporate malfeasance for decades."
"Corner Post is not the story of David versus Goliath but rather the Trojan Horse, where moneyed interests attempt to sneak in their anti-regulation politics under the guise of altruism."
In a dissent joined by fellow liberal Justices Sonia Sotomayor and Elena Kagan, Jackson wrote that "today, the majority throws... caution to the wind and engages in the same kind of misguided reasoning about statutory limitations periods that we have previously admonished."
"The court's baseless conclusion means that there is effectively no longer any limitations period for lawsuits that challenge agency regulations on their face," she continued. "Allowing every new commercial entity to bring fresh facial challenges to long-existing regulations is profoundly destabilizing for both government and businesses. It also allows well-heeled litigants to game the system by creating new entities or finding new plaintiffs whenever they blow past the statutory deadline."
"At the end of a momentous term, this much is clear: The tsunami of lawsuits against agencies that the court's holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the federal government," Jackson added, referring to last week's 6-3 overturning of the so-called Chevron doctrine, the legal principle under which courts deferred to federal agencies' interpretations of ambiguous laws passed by Congress.
While numerous business advocates welcomed Monday's ruling, a broad range of consumer, labor, and other groups echoed the alarm in Jackson's dissent.
"Americans expect that safeguards will protect us and our families from unsafe food, products, polluted air and water, and dangerous and unfair working conditions. This decision provides special interests, opposed to the safeguards that people rely upon, with more opportunities to challenge and seek to overturn these important protections," said Rachel Weintraub, executive director of the Coalition for Sensible Safeguards.
Weintraub added that the ruling "undermines federal agencies' ability to use administrative courts to impose civil penalties for violating regulatory protections" and "starkly impedes agencies' ability to protect the public."
Bryant and Ombres wrote that "Corner Post is not the story of David versus Goliath but rather the Trojan Horse, where moneyed interests attempt to sneak in their anti-regulation politics under the guise of altruism."
Jackson's dissent states that "Congress still has a chance to address this absurdity and forestall the coming chaos" by "clarifying that the statutes it enacts are designed to facilitate the functioning of agencies, not to hobble them."
"In particular, Congress can amend §2401(a)," Jackson offered, referring to the default six-year statute of limitations, "or enact a specific review provision for APA claims, to state explicitly what any such rule must mean if it is to operate as a limitations period in this context: Regulated entities have six years from the date of the agency action to bring a lawsuit seeking to have it changed or invalidated; after that, facial challenges must end."
"By doing this," she added, "Congress can make clear that lawsuits bringing facial claims against agencies are not personal attack vehicles for new entities created just for that purpose."
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