The Roberts Doctrine: Royalism, unless it affects my portfolio

As was almost uniformly expected among Court sickos, the Court overruled a perfectly sound 90-year-old unanimous precedent on executive power, while underscoring the incoherence of the holding by carving out an exception by pure ipse dixit. It’s interesting how the Times and WSJ choose to frame this pair of rulings:

The Times’s framing here is superior, although I suspect the Journal’s might prove to be more common. Along with the inevitable Roberts, it was Kavanaugh who switched votes to produce a 5-4 opinion protecting their investments Republican prospects in 2026 and 2028 the Fed.

I had expected Kagan to author the dissent in Slaughter since admin law is her bailiwick, but the senior liberal kept it for herself and did an excellent job:

The decision should also be a very, very long overdue hint to stop calling the Court “originalist.” The Republican faction’s monarchist view of the separation of powers is its own, and neither history nor the text and strat=cture of Constitution have anything to do with it:

I also recommend Section 4 of Sotomayor’s dissent, which explains why the majority holding is as theoretically unattractive as it is legally unrooted. And I would add that it’s remarkable to choose Trump 2.0 as the context to choose executive authority as being the dominant concern over government stability, congressional prerogatives, and the fair administration of laws. And of course in its other major executive power decision today, the Court showed that the theory was so unattractive it is unwilling to apply it consistently even now:

But the point here is to arrogate power to the federal judiciary even more than to the executive, and arbitrary exceptions are a critical component of that:

We’ll return to this in another post, but Gorsuch’s concurrence asserts that the Court has still not seized nearly enough power, and this Court is likely to trend surely in this direction. Slaughter is a very bad decision, and while a lot of people with be relieved that it refused to apply its logic to the Federal Reserve the implications are only going to get worse.