Bonus 179: The Stare Decisis-Free Docket

The Court's recent treatment of Humphrey's Executor may only encourage lower-court judges to do exactly what Justices Gorsuch and Kavanaugh purported to rail against in August: not follow precedents.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, I put much of the weekly bonus issue behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit:

At least to this point, the biggest news the Court has made this week was, unquestionably, Monday’s unsigned, unexplained ruling in Trump v. Slaughter. There, the Court cleared the way for President Trump to remove, without cause, the last Democratic member of the Federal Trade Commission. And it also granted certiorari “before judgment” (leapfrogging the court of appeals to take up the case on the merits), so it can decide, as soon as early next year, (1) whether to overrule its 1935 decision in Humphrey’s Executor (which upheld statutes requiring cause before the President may remove such officers); and (2) more generally, what remedies, if any, federal courts can provide if government officers are wrongly removed by the President. (Yes, this second question is sneakily important far beyond the specific context of firing agency heads.)

Monday’s ruling wasn’t especially surprising; the writing has been on the wall for Humphrey’s Executor since at least the Court’s cryptic May order in Trump v. Wilcox—in which a majority cleared the way for the President to remove, without cause, members of the National Labor Relations Board and Merit Systems Protection Board. (Indeed, the writing has been on the wall since long before then.)

But the Slaughter ruling provides an opportune moment to reflect on what the Court has actually done in its three Trump/emergency docket removal cases (Slaughter, Wilcox, and Trump v. Boyle). Specifically, and without ever writing a majority opinion, the Court has effectively changed the standard for how stare decisis (the related principles that the Supreme Court should generally follow its precedents and that lower courts must) works when it comes to a party’s “likelihood of success on the merits.”

In a nutshell, the trilogy appears to stand for the (new) proposition that courts not only may, but must, consider the possibility that a party is likely to prevail even if the governing precedent is squarely to the contrary—if it’s a case in which the Supreme Court is likely to overrule that precedent. In other words, courts are now under an obligation to issue equitable relief even in contexts in which they’re not allowed to rule for the party on the merits—where, at the Supreme Court’s own insistence, they’re unquestionably bound to follow the relevant precedent until it is overruled.

As I explain below the fold, this move is both more than a little ironic (given recent complaints from Justices Gorsuch and Kavanaugh about lower courts not following precedent); and an invitation to future mischief—by those same lower courts (or, more realistically, different ones). More than that, it’s the latest in a series of examples of the Court effectively signaling a major shift in how stare decisis should work in the context of equitable and/or emergency relief—but without taking the time to work carefully through the implications (or, heaven forbid, take briefing, hold argument, or write some kind of majority opinion on the issue). There may be persuasive justifications for such a bizarre reconfiguration of equitable relief. But, once again, the justices aren’t deigning to provide them.

For those who are not paid subscribers, we’ll be back Monday (if not sooner) with our latest coverage of the Court. For those who are, please read on.