236. Three Thoughts Heading into the Last Decision Day of the Term

A quick post reflecting on (some of) the news the Supreme Court made on Monday and (some of) the news we expect from the justices later today.

Later this morning, we expect the last four rulings from the Supreme Court in cases argued during the October 2025 Term: an important campaign finance case; two cases about whether discrimination against transgender high school athletes violates the Constitution; and, of course, the birthright citizenship case. We also expect orders out of the Court’s “Cleanup Conference” sometime this afternoon, after which the justices will rise for their summer recess—and folks who cover the Court can take a breath.

There is already a lot to say about yesterday’s decisions (some of which I said in last night’s “Decision Day Summary” video for paid subscribers); and there will be a lot to say about whatever is coming today. But to both briefly hit on the biggest headline from yesterday and to set the table for today, I thought I’d offer three brief observations:

I. Slaughter is a Nuclear Bomb for the Separation of Powers

I wrote a lot last summer about the problems with the “unitary executive theory” in general, and with what Justice Kagan called a “bespoke exception” for the Federal Reserve in particular. Now that those “interim” (LOL) rulings have become permanent, it’s worth underscoring just how massively important yesterday’s ruling in Trump v. Slaughter is (and will be)—and how modest Trump v. Cook is.

To my mind, Slaughter is the most important separation-of-powers ruling of the twenty-first century—and, by far, the most important decision of the current term. It embraces a remarkably strong form of the unitary executive theory. It runs roughshod over a heck of a lot of sophisticated, persuasive scholarship arguing that Founding-era understandings were far more nuanced and complicated about the sharing of power across the branches. It doesn’t distinguish inferior officers, civil servants, or administrative adjudicators; it merely asserts that it isn’t resolving the constitutionality of protections for those executive branch employees—even though, as Justice Sotomayor’s dissent points out, it isn’t at all clear why its analysis wouldn’t cover them, too. It makes all kinds of absolutist claims without even trying to persuade readers that the simultaneous carve-out for the Federal Reserve adopted in Cook is somehow consistent with that absolutism. And it does all of this at the exact moment in American history in which the most troubling implications of the unitary executive theory have never been more visible or immediate.

I saw lots of folks claim online yesterday that Slaughter is a good thing (or, at least, that it has a silver lining) because it will make it easier for the next Democratic president to simply clean house—and fire many, if not most, individuals who were appointed/hired/installed by President Trump. That may be true in the short term, but that comes at the enormous expense of (1) Congress, which will find itself increasingly hamstrung in trying to exert any control over how the executive branch exercises the powers Congress authorizes and delegates; and (2) the American people, who will find themselves subject to executive branch agencies doing the bidding of the incumbent administration rather than the goals Congress set for them by statute. That may feel good when we like the current administration, but it’s a recipe for instability and for the elimination of expertise in almost every facet of governmental regulation. And in the interim, it also gives even more power to the courts (the Supreme Court, in particular), to sort out all of the subsidiary questions that Slaughter has already raised.

Cook, in contrast, is a footnote. It’s a major ruling for Wall Street because of how it carves out the Fed, but that writing has been on the wall since last May. And it is a decidedly modest win even for Cook herself—who could still easily lose on remand if the administration actually has meaningful evidence of misconduct or malfeasance on her part. All the Court held yesterday is that for-cause removal requires more than just the executive branch’s assertion that cause exists, and so Trump isn’t entitled to a stay of a lower-court ruling that blocked Cook’s removal. That’s a (potentially fleeting) win for Cook, but about as modest and thin a victory as the Court could’ve provided—and even that was 5-4.

II. Barbara Won’t Change the Broader Narrative of the Term

Turning toward today’s decisions, there’s a remarkable degree of consensus as to how all four are likely to come out. Most Court watchers expect the Court to side with the National Republican Senatorial Committee in the campaign finance case; to side with Idaho and West Virginia (and against the transgender athletes) in the transgender discrimination cases; and to rule against President Trump in the birthright citizenship case. If that happens, the headlines will obviously gravitate toward the last of those results—and the claim that the Court delivered some kind of major smackdown to one of President Trump’s most visible immigration initiatives.

I’ll be the last person to suggest that the birthright citizenship decision won’t be important. But we should be careful not to give it outsize weight just because it comes last. By my count, birthright citizenship would be only the fourth real loss for Trump at the Court this term—alongside the Chicago National Guard ruling from December; the tariffs ruling from February; and the Lisa Cook case from yesterday. But that’s against Slaughter (which, again, dwarfs these other cases with regard to immediate and long-term importance); last week’s immigration cases; and, beyond cases in which the federal government is a party, the Court’s sustained … misadventures … with voting rights and redistricting over the last two months. With regard to the significance of these decisions, this term should go down alongside OT2021 (the Dobbs/Bruen/West Virginia term) for the volume of major victories the Supreme Court has handed down for right-coded and/or visibly Republican legal positions. That some of those positions (like in the mail-in ballots case) were too extreme for the “middle” of the Court doesn’t somehow prove that the Court is, in fact, “moderate”; it just suggests that, for as emboldened as right-wing litigants have become, the Court isn’t all the way there yet. That’s an important narrative, but it’s not one for which the justices deserve a participation trophy.

III. The Term Doesn’t Actually End Today

Finally, and to beat a drum I’ve pounded before, traditional coverage of the Supreme Court treats today as the “last day” of the Court’s term. That’s incorrect as a matter of fact—and, increasingly, as a matter of reality. The October 2025 Term doesn’t formally end until the October 2026 Term begins—when the Court gavels into session on Monday, October 5. Today just marks the end of the Court’s disposition of cases argued during the current term.

Not that long ago, that might’ve been a distinction without a difference. But as the emergency docket has become more significant and more active, the summer has become an increasingly significant part of the Court’s work, too. My rough math counts nine significant decisions by the full Court on emergency applications last summer—from Boyle and Slaughter on who President Trump could fire to Vasquez Perdomo on ICE raids to … well, you get the gist. It’s hard to imagine that this summer will be quite as busy as last summer (given how much less active President Trump’s pen has been), but it’s also hard to imagine that it will be as quiet as the summers that typified the Court’s docket as recently as a decade ago. As I wrote last fall, we shouldn’t really “close the book” on the Court’s term until the term, you know, ends.

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I’ll be covering today’s decisions in real time for paid subscribers through Substack’s chat feature; and later today in the next “Decision Day” video feature. And, of course, we’ll have our regular “bonus” issue on Thursday and our full coverage of the Court next Monday. What can I say? I have no life (especially with the girls off at summer camp).

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As always, stay safe out there, y’all.