The Supreme Court Shows It’s Willing to Thwart Trump—When Money Is on the Line

The Supreme Court heard oral arguments on Wednesday in Trump v. Cook, a case that centers on Donald Trump’s illegal attempt to fire Federal Reserve Board commissioner Lisa Cook. The legal arguments should be familiar to anyone who has been watching Trump’s authoritarian takeover of the federal government: Trump claims he has the authority to fire anybody he wants; Cook argues “that’s not how it works, that’s not how any of this works.”

Over the past year, the Supreme Court has generally been game to allow Trump to fire whomever he wants. The court says Trump is entitled to this power under the “Unitary Executive Theory,” a fringe theory that was made up by Republican academics to justify dismantling the regulatory state and that has been adopted by Supreme Court Republicans over the past few years. The theory reimagines every independent agency created by Congress as part of Trump’s personal fiefdom. Based on this view, the Supreme Court has allowed Trump to fire members of the National Labor Relations Board (see Trump v. Wilcox); and it will likely allow him to fire commissioners from the Federal Trade Commission (see Trump v. Slaughter. If the theory holds, Trump should be able to fire Cook.

But here’s the benefit of using a made-up thing like Unitary Executive Theory: The Republicans on the court can make it do whatever they want it to do. While Trump has been busy waving his magic wand and shouting “unitarium executatus!” at the Fed, he’s failed to grasp that the Supreme Court is the author of the entire book of spells. The court can make the spell fizzle out whenever it wants.

Unlike the NLRB and the FTC, Republicans on the court like the Fed. They like its independence. They like what it does. Since Unitary Executive Theory did not exist as a practical thing until Trump decided to take away the independence of all the executive agencies Republicans don’t like, it’s very easy for the Republican justices to say that Unitary Executive Theory doesn’t exist when it comes to the one independent agency they actually care about.

Indeed, Chief Justice John Roberts laid the groundwork for granting the Fed a made-up cloak of protection during the Trump v. Wilcox arguments, which took place after Trump made his first noises about firing Cook. Anticipating her likely firing, Roberts noted that the Fed was a “uniquely structured, quasi-private” independent agency, distinct from all the others. Alleged attempted rapist Brett Kavanaugh has made similar statements. This means at least two Republican justices are already poised to allow Trump to run roughshod over every independent agency except the Fed.

Why? Well, the easy answer is that the Fed has a direct impact on the financial health of the Republicans on the Supreme Court and the donors who’ve bought them. The stability of monetary policy, and its independence from the crazy white supremacist installed in the White House, is important for the stock market, and thus all of the investments rich people have.

It’s also worth pointing out that destabilizing the Fed could, without hyperbole, crash the economy. Even beyond the matter of their personal finances, it’s likely that the Republican justices care about that. Remember, before the Roberts court was known as the most pro-authoritarian court in US history, it was widely regarded as the most pro-business court in US history.

Practically speaking, giving Trump personal control over the Fed is bad for business. While the Republicans famously do not care about practicality when it comes to abortion rights or gun rights, when it comes to money? The Republicans care a great deal.

The majority of the justices’ evident skepticism toward Trump in this case are only really intelligible if you understand both the personal and national implications of the issue in front of the court. The core argument made by the Trump administration was that Cook was fired “for cause,” as is required by statute. The administration claims that the “cause” is an allegation that Cook committed mortgage fraud (she did not) before she was appointed to the Fed. Ostensibly, the justices were arguing over whether this particular alleged fraud is enough of a cause (because not only are the allegations false; they’re allegations over conduct from before she was on the Fed, which is not normally a “for cause” reason to fire somebody from a federal position). The justices were also arguing over whether Cook should have any opportunity to defend herself from these (again, provably false) allegations.

Again, Trump has fired people based on made-up allegations before. The only reason the court is skeptical about this firing, based on these made-up allegations, is that the ability to fire Fed commissioners at will places the monetary policy of the entire nation at the whim of Trump. We are literally watching Trump trying to push Fed chair Jerome Powell out right now, but he won’t have to push him if the court says the president can just fire Fed officials whenever he wants.

Because of this, Kavanaugh finally raised the question that he should have raised during every Trump-fires-someone case the court has heard thus far. He asked Solicitor General John Sauer what would stop future presidents from “manufacturing” artificial “cause” to justify firing Fed commissioners whose political positions they don’t like. Sauer said that Trump’s reasons were not manufactured, and that the “for cause” provision protects commissioners from being fired for policy reasons. But everyone knows that the only reason Cook was fired by Trump was policy reasons. Kavanaugh rightly intuited that if Trump can fire Cook, a future Democratic president can just come in and fire all the Trump appointees and install Fed commissioners loyal to the new administration’s monetary policies. Kavanaugh literally quoted himself—from his confirmation hearing, when he threatened retribution on his political enemies—and warned: “What goes around comes around.”

That’s always been true with these firing cases. Kavanaugh just suddenly cares about it now.

Nor is it just Kavanaugh who has suddenly decided to care about the obvious. Here’s what will really shock people who naively think the Republicans on the Supreme Court are committed to their own logic: I think Justice Sam Alito is in play for ruling against Trump. For the first time during Trump’s second reign, he sounded like he was trying to find a way to rule against the president—specifically, to send the case back down to a lower court to have it decide whether the alleged pre-office mortgage fraud was sufficient “cause” for this firing. Roberts and Kavanaugh wanted to end this attack on the Fed now, but Alito (and Ketanji Brown Jackson, to an extent) seemed interested in letting a lower court simply say “this isn’t cause,” as opposed to forcing the Supreme Court to do the dirty work.

The two justices most aligned with Trump’s position were Clarence Thomas and Neil Gorsuch, and that should not be surprising. Say what you will about those two (and I’ve said a lot about how much they suck), those guys are consistent in their belief that the practical consequences of their decisions should be ignored, even when their decisions lead to suffering and death. Thomas and Gorsuch are, like the rest of the justices from both parties, outcome determinative. But in this case, the outcome these two value most is power, not the health of the American economy. If Trump wants to use that power to crash the economy, that’s his problem, not Thomas’s or Gorsuch’s (according to them).

Still, they were in the minority. Ultimately, Roberts does not want Trump to have personal control over the Fed, so Trump won’t have it. I also don’t think Roberts wants Trump to be able to impose retaliatory tariffs, so Trump likely won’t have that power either. Roberts does want Trump to be able to kill the NLRB and USAID, so he can. I don’t yet know if Roberts wants Trump to be able to end birthright citizenship, but I guess I’ll find out soon.

I wish Roberts thought immigrants and white ladies in Minnesota were as important as the Federal Reserve. I wish Roberts thought protecting American schoolchildren was as important as protecting American investments. I wish Roberts thought discriminating against a Black woman working at Publix was as important as discriminating against a Black woman working for the Fed. But… he doesn’t.

Trump will lose this case because he’s trying to mess with something the Supreme Court thinks is important. I wish we all could be so lucky as to appear valuable to John Roberts and the Supreme Court.