Thomas Jefferson owned 610 enslaved persons over the course of his lifetime. In a volume of Notes on Virginia II, he nonetheless claimed to fear the wrath of God due to the practice:
This is so true, that of the proprietors of slaves a very small proportion indeed are ever seen to labour. And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep forever: that considering numbers, nature and natural means only, a revolution of the wheel of fortune, an exchange of situation, is among possible events: that it may become probable by supernatural interference! The Almighty has no attribute which can take side with us in such a contest.
Jefferson is widely heralded for penning the Declaration of Independence, in which the colonists’ grievances against King George III were outlined. He championed the ideals of liberty and equality. But he did not apply these principles uniformly, as evident through his extensive dependency on slave labor to support his acquisition of wealth and blaming the British for introducing the practice.
The way in which we rationalize contradictory actions in our psyches, as Thomas Jefferson blamed his contradictions on the British, is known in psychology as cognitive dissonance.
The Supreme Court’s 6-3 majority seems to be suffering from it. While it unilaterally reconstructs the country as a monarchy, leaving multiple acts of Congress dead on the stage of history, the justices in the majority still claim to be “conservatives.” The American Heritage Dictionary defines “conservative” as “tending to oppose change,” “restrained in style,” and “moderate; cautious.” This Court is anything but.
In a monumentally important case this term, Trump v. Slaughter, it permitted President Trump to ignore an act of Congress and fire an administrative agency official without cause, in violation of a statute that had been declared constitutional way back in 1935. This was not “conservative” judging.
In a separate opinion issued on the very same day, it abandoned its monarchy theory for another officer that Trump tried to fire, a Federal Reserve Board Member, in Trump v. Cook. The justification for greenlighting Trump’s firing of a Federal Trade Commissioner but not a Federal Reserve Board member was a loose comparison to a defunct historical bank. This, again, was not “conservative” judging.
For the rule of law to function, standards — what some call a justice’s supposed “judicial philosophy” — must be applied across-the-board, not just when it suits or interests the justices in majority. This is especially true for federal judges who cannot be held accountable by the people at the ballot box.
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Check out my latest article for The Hill on this subject:
Article II of the Constitution sets forth the powers of the executive branch, including the power to appoint officers with the advice and consent of the Senate. It says nothing about the removal of agency officials. However, the Court has long inferred that the power to remove is inherent in the power to appoint. The theory is that the president must be able to fire people if he is to ably execute the functions of the presidency.
But that doesn’t mean the power to remove is absolute.
In 1935, in a case called Humphrey’s Executor, President Franklin Delano Roosevelt fired a member of the Federal Trade Commission (FTC) following his opposition to some of Roosevelt’s New Deal initiatives. The Supreme Court upheld the 1914 federal statute creating the FTC, which restricted the grounds for firing to incidences of inefficiency, neglect of duties, or committing malfeasance in office — never at the will of the President.
“Independent” agencies like the FTC have multi-member boards or commissions whose terms are staggered. No one president can fire everyone at once and replace them with loyalists. The theory behind creating such independent agencies is that expertise around certain issues of grave importance (example: the Nuclear Regulatory Commission is an independent agency) should not be beholden to politics. The structure was designed to protect the public by fostering neutrality and expertise over political jockeying.
No longer.
As I explained in a prior post, I approach Constitutional Law by teaching students about the various tools judges can use to analyze obscure constitutional or statutory language. One of them, known as “originalism,” is traditionally espoused by conservatives. It looks at the law through the lens of what the lawmakers were thinking or arguing at the time a law was enacted. Originalism has problems. Although the Framers were a complex group of individuals, they did not include women or people of color, who could not even vote in 1787. Nonetheless, the argument for originalism is that it keeps judges from imposing their own ideology on ambiguous language in 2026. In other words, it supposedly forces them to act conservatively.
At the time the Constitution was written, many of the framers favored a powerful central government after the failure of the Articles of Confederation. The modern majority has morphed this detail of history into something known as the “unitary executive theory,” which it has employed multiple times to justify entrenching power in the Oval Office (read: Donald J. Trump). What they forget, of course, is that a revolution was fought to overthrow a monarch by the name of King George III. The 1970’s Saturday morning kids’ cartoon, School House Rock, and the lyrics of the hit musical, Hamilton, know this. It isn’t hard. No more kings.
Writing for the Supreme Court majority in Trump v. Slaughter, Chief Justice Roberts embraced the language of monarchy to justify siding with Trump in his bid to expand presidential power. The case arose when Trump fired an administrative agency official, FTC commissioner Rebecca Slaughter, without cause under the very law that the Court upheld as constitutional in 1935. This has been the backdrop against which Congress has legislated — and agencies have operated — for nearly a century.
To justify holding that the Constitution mandates that if Congress creates agencies presidents are entitled to fire its officers willy-nilly, Roberts compared presidents to monarchs. “Within living memory were the ‘long train of abuses and usurpations’ of a King who reigned as ‘a Tyrant,’” he conceded, so “several delegates to the Constitutional Convention pushed for a multimember council instead of ‘unity in the Executive magistracy,’ which they feared would serve as ‘the foetus of monarchy.’” Alas, Roberts concluded, “unity won out.” The framers chose “the foetus of monarchy.”
Justice Roberts thus reasoned that Trump wins because the framers knowingly chose a system that smacked of a monarchy. His reason? If the president holds all the power, the people will know “‘on whom the blame or the punishment of a pernicious measure . . . ought really to fall.’” If president’s cannot fire their subordinates, the buck doesn’t completely stop with them.
In another case, Trump v. Cook, Justice Roberts reasoned that the Federal Reserve is like the “first de facto central bank” of the nation, which no longer exists, but “predates even our Constitution.” So although the Constitution mandates at-will removal for FTC commissioners, he reasoned, the Federal Reserve’s supposed resemblance to a defunct, “de facto” historical bank makes the Constitution’s mandate that presidents have implied removal power somehow inapplicable to Cook. This selective criterion for awarding presidential power has no guidelines or limits — an incoherent theory of presidential power.
Before Trump v. Slaughter, there were over a dozen “independent agencies” whose heads could only be removed for inefficiency, neglect of duty, or malfeasance in office — entities like the FTC, SEC, FCC, NLRB, MSPB, CPSC, FEC, and other multi-member commissions.
Trump can now basically dismantle these agencies, created by Congress and signed into law at the behest of voters, by firing everyone at the helm.
This is not “conservative” judging. It’s radical judging.
The conservative majority on the Court continues to rationalize its inconsistency despite established laws and constitutional principles that should govern their decisions with intellectual honesty and the highest ethical standards. The majority’s dissonance undermines the Supreme Court’s very legitimacy, positioning it not as a democratic institution, but rather as a band of kings.
The justices should be sharply scrutinized and held to account. No more kings in America.
I’m glad you’re here,
KW
My deepest thanks to the University of Baltimore Law students who assisted with this post!
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