One of the Worst Cases of This Supreme Court Term Has Been Years in the Making

The following essay has been adapted and excerpted from Without Precedent: How Chief Justice Roberts and His Accomplices Rewrote the Constitution and Dismantled Our Rights, published last month by Bold Type Press, an imprint of Hachette Book Group.^[1]

Chief Justice John Roberts has been working for years to ensure that a president’s power is as unchecked as possible. Roberts has advanced the unitary executive theory, which basically envisions a president who can fire anyone in the executive branch at any time at will. Project 2025, which Donald Trump repeatedly denied ties to during his run for the White House in 2024, asserted that a president has absolute authority over the executive branch and all of its employees. It called on Trump to demand that the Roberts court formally overrule a case called Humphrey’s Executor v. United States, which approved certain kinds of executive agencies whose directors could not be removed without cause. It hears such a case later in the term, which opened this week. But the Roberts court has already laid the groundwork for this particular Project 2025 mission.

Five years ago, in Seila Law v. Consumer Financial Protection Bureau, Roberts authored the court’s declaration that Congress did not have the authority to protect the director of the CFPB from removal even though federal law creating the bureau specified that its director could be removed only on the grounds of “inefficiency, neglect of duty, or malfeasance in office.” Roberts asserted that allowing Congress to impose such conditions for termination of the CFPB’s director violated the “separation of powers,” although he did not expressly overrule Humphrey’s Executor. The chief justice left the door open for a more propitious time to continue his quest to advance the right-wing program to overturn legal precedents targeted by Leonard Leo and his cadre.

By Lisa Graves. Bold Type Books.

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The Roberts court had previously begun to take up part of the Project 2025 agenda, specifically surrounding administrative law judges. The Republican appointees to the court have asserted that the “separation of powers” prevents executive branch agencies from engaging in judicial-type functions. Such procedures have long helped America contend with the complexity of our economy and the growth of our nation, providing vital tools for enforcing our laws without making every matter into a federal court case.

In Securities and Exchange Commission v. Jarkesy, Roberts struck down decades of administrative law practice to declare suddenly that Congress cannot assign the administration of civil penalties for securities fraud to the SEC. Instead, such cases must be tried in federal court. This dramatic change in the law will make it far more difficult and expensive for the agency to enforce regulations on trading securities, rules that protect investors—literally millions of Americans.

In her fiery dissent, Justice Sonia Sotomayor took direct aim at Roberts’ famed claim during his confirmation hearings that his job as a judge was to be a neutral “umpire” calling “balls and strikes”:

Throughout our Nation’s history, Congress has authorized agency adjudicators to find violations of statutory obligations and award civil penalties to the Government as an injured sovereign. The Constitution, this Court has said, does not require these civil-penalty claims belonging to the Government to be tried before a jury in federal district court. Congress can instead assign them to an agency for initial adjudication, subject to judicial review. … The majority today upends longstanding precedent and the established practice of its coequal partners in our tripartite system of Government. … Because the Court fails to act as a neutral umpire when it rewrites established rules in the manner it does today, I respectfully dissent.

As Sotomayor notes, the delegation of such enforcement to administrative agencies was long-settled law, repeatedly reaffirmed by decades of Supreme Court decisions. Roberts’ edict affected not just the SEC. As the dissenters stated, it has unleashed chaos in the enforcement of “more than 200 statutes authorizing dozens of agencies to impose civil penalties for violations of statutory obligations.”

This is the kind of wreckage that Leo, then the Federalist Society’s executive vice president, was conjuring when he boasted to funders and operatives about the successes to come from the elevation of his friend Brett Kavanaugh to the court in 2018.

Swapping in Kavanaugh for Justice Anthony Kennedy gave Roberts the votes on the court that he needed to accelerate the imposition of the right’s legal agenda that Leo has been advancing. Kennedy was a problem for them due not just to his defense of gay marriage but to his affirmation of administrative law precedents that Leo and his confederates opposed for supposedly violating what they call “the structural Constitution.” That’s code for rolling back the clock to before the New Deal and shackling us to the law a century ago, when the robber barons reigned supreme and the Supreme Court helped protect the rich from the demands of the poor.

How can one make sense of the seemingly contradictory demands of the unitary executive theory, which concentrates immense powers in the presidency, and the new judicial limitations on executive branch regulatory power that the Roberts court is also imposing? The most straightforward way to understand this seeming contradiction is to realize that both “principles” support the same underlying political priority of protecting corporate power and prerogative. The Roberts court is advancing a superficially more sophisticated version of the ridiculous claims ham-handedly pushed by Trump and his militants about needing to “drain the swamp” and smash a supposedly out-of-control federal government that they malign as the deep state.

Apparently, Trump was offended in his first term that federal agencies continued to do the business of the American people—endeavoring to protect the rights of workers, guard against discrimination, administer rules fairly, and develop policies based on provable facts and not capricious whims. Trump also seems to have a visceral hatred of the “administrative state” precisely because rule following is not something he particularly values. The objective of both Trump and the court is to do away with the rules and regulations that protect ordinary people from corporate exploitation. In so doing, the court is also leveling the part of our government that protects a democracy against autocracy.

The systematic destruction of properly functioning administrative agencies is a goal that the Republican majority on the Supreme Court has repeatedly embraced in recent years. That this embrace gives Trump more unchecked power is a short-term effect. The Roberts court’s thrust toward this goal would proceed even if Trump were not president, because it is baked into the composition of the court. It is key to the long-term objectives supported by and benefiting the billionaires who funded the court-capture machine.

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