The oral argument in Trump v. Slaughter lived up to the hype. Not so much like a sporting event, but a wrestling match where everyone knew the conservative majority would reverse engineer their way to the result they wanted. The excitement is seeing how they manage to do it.

For Slaughter, those obstacles appeared insurmountable to a good faith actor. The Constitution, mirroring the English tradition of limited executive power developed during the English Civil War, placed restrictions on the president to “take Care that the Laws be faithfully executed.” An honest Originalist would say the Framers inserted this language to make sure presidents could not ignore legislative edicts by simply ignoring laws. The Supreme Court justices, as it happens, are Originalists of a quite dishonest flavor. And so the stricture that presidents can’t ignore Congress transmogrifies into the power to ignore Congressional commands.

And, of course, the Court has no interest in allowing Trump to replace the Federal Reserve with the sort of idiots who think the market buying Treasuries at a record clip is somehow a good sign. That sort of executive authority could crash the stock market and the justices’ healthy investments. Gutting collective bargaining rights or transforming antitrust law into a cudgel for Republican donors to buy media companies… those are acceptable assaults on the economy because who cares about consumers, am I right? Justice Keggerator seemed most interested in laying the faux academic groundwork for distinguishing the Federal Reserve, appearing satisfied with Solicitor General Sauer’s response that “There’s two adjectives there or an adjective and an adverb, unique and distinct,” which is gibberish but sounds better after a few beers.

Justice Kagan seemed to understand the majority’s sensitivity to the Federal Reserve issue — she has already humiliated the majority on this point in a shadow docket opinion about substantively similar NLRB firings — and twisted the knife, running Sauer through a number of hypotheticals to demonstrate the government’s complete lack of any limiting principle in their argument. When Sauer responded that the administration isn’t currently litigating any of those cases, Kagan responded with a withering, “I know what you don’t challenge. You’re missing the point.” The Chief Justice seemed concerned about limits too… but not enough for anyone to think his sense of shame grew three sizes this day.

With Kagan handling the Fed issue, Justice Sotomayor focused on the absurdity of the effort to overturn a near century of precedent. She actually had Sauer cornered on a question of precedent at one point, but the moment slipped away.

JUSTICE SOTOMAYOR: Ninety years. What other cases have we overturned that have had a pedigree of a hundred years?
GENERAL SAUER: Pennoyer against Neff was overruled by Shaffer against Heitner on its hundredth birthday by the –
JUSTICE SOTOMAYOR: That was an economic case. What other case?
GENERAL SAUER: For example, Erie against — Erie overruled Swift v. Tyson 96 years later.
JUSTICE SOTOMAYOR: That — that — that — so too again —
GENERAL SAUER: Those are two examples. There’s at least 13 or —

Considering the eye-rolling “adjective and an adverb” conversation, it’s particularly galling that we’re still engaging in the charade of calling the Solicitor General, “General” even though it’s an adjective modifying “Solicitor.” You went to law school, you’re not Patton.

At this point Sotomayor focuses on the distinction that a case fundamentally changing the organization of government makes this unique. Which is too bad, because this is a devastating exchange from a different perspective. How often do we overturn cases that are almost a hundred years old? So infrequently that they’re super famous and are taught as examples of how the Court only disturbs precedents like these when the passage of time renders the original opinion fundamentally nonsensical.

Not only has nothing changed about the relationship between the president and the concept of an independent agency since Humphrey’s Executor, this case is about THE SAME GODDAMNED AGENCY.

In her defense, she has inside information and knows the stooges she’s sitting with have no coherent intellectual approach. They intend to overturn Humphrey’s Executor because it appeases their patron in the White House and the only thing giving them any pause is coming up with some that makes it easier to rule the exact opposite way when a Democratic president starts firing everyone Trump put on these commissions.

If they decide to allow another real election, of course.

Sotomayor went into these questions fully aware that the majority had no interest in respecting precedent. She likely made the calculated decision to ask about this being such a long-standing precedent to set up this “disrupting the government” angle in the hopes that it could frighten the majority that their intended course of action would deliver havoc.

But sometimes you’ve got to shift gears when the answer is this bad.

Predictably, right-wing social media celebrated this as though Sauer dunked on Sotomayor for coming up with two examples and vaguely promising “at least 13” total. Over the course of 235 years… maybe 13 examples. That’s not the flex the government thinks it is.

Especially when you scratch the surface of the two he could actually think of, both of which turn on identifiable and defensible historical changes. Interstate commerce and corporate capitalism rendered Pennoyer anachronistic. That’s a story an advocate could easily stand up and explain. What’s changed about the FTC in 2025? Nothing.

Unless the Court wants to count the president’s stated interest in using antitrust law arbitrarily and capriciously to support consolidation for his cronies. In that case, the Take Care clause might inspire a Supreme Court to see the original statutory protections on the FTC as — to pull two words at random — necessary and proper to prevent the executive from circumventing the constitutional duty to execute the laws passed by Congress.

But no one wanted to deal with any of that yesterday.

Hypocrisy wasn’t going to stay the majority’s hand, but when the lawyer hands over an answer like “two… I dunno, I’m sure there might be 11 more over the last couple centuries,” it’s worth changing tack and asking them to explain how a case like this resembles Justice Stone acknowledging that airplanes were invented since Pennoyer. Make Sauer explain what’s changed, and when he inevitably refuses — retreating to a vapid “well, we think it was wrong for the whole 90 years and no one noticed” — ask then how it meshes with these cases he’s citing that infamously devote hours worth of law school lecture time to understanding in proper historical context.

Sotomayor’s strategy makes sense if she’s still hoping to influence this opinion, but that’s just not the job description anymore. It’s just like Kagan’s nods to conservative judicial philosophies, which she pulls out from time to time hoping the majority will return the favor later even though they never will. They’re still trying to stanch the Constitutional bleeding, but right now the only case worth making is the case for Supreme Court reform.

At the hearing, it played for laughs when Justice Kagan asked Sauer to agree that the Framers intended to create a government of separated powers and he responded with the “caveat” that “the one, you know, sort of exception to all this division was the presidency itself, where the Framers consciously adopted a unified and energetic executive.” Kagan replied by noting that’s not what the word “caveat” means (or “codicil,” which Sauer tried to pivot into) and is in fact “the not X to my X.”

Except it’s not funny. The official representative of the Trump administration is failing sixth grade civics. This stuff can’t continue to be milked for chuckles. These are batshit claims and there’s no need to be polite about it.

Catching the majority in hypocrisy matters now. So does laying bare the incoherence of their brand of “Originalism” and their contempt for the rule of law. The minority has taken on a more confrontational role when it comes to the shadow docket, but there’s no reason to stop there.

The justices may want to salvage America’s faith in the institution without watching the majority use that good will to burn the country down. But it doesn’t work that way. Sometimes restoring faith requires an honest assessment about the extent of the rot.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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