In late 2023, around Christmastime, former special counsel Jack Smith went to the U.S. Supreme Court asking the justices to take the typically rare step of leapfrogging the appellate court and swiftly ruling on Donald Trump’s “absolute immunity” claims, imploring the high court to treat the Jan. 6 prosecution of the then-presidential candidate like Richard Nixon’s Watergate.

SCOTUS was unmoved in that instance, kicking the can down the road for half a year and ever closer to the 2024 election before ruling in Trump’s favor — with various impacts on both of his since-tossed federal cases and the New York hush-money prosecution that nonetheless ended with 34 felony convictions.

But on Monday, the conservative majority jumped at the chance to potentially upend a 90-year-old precedent, granting Trump certiorari before judgment on the president’s bid to assert executive power over independent agencies through the firing of the lone Democratic FTC commissioner “without cause” — and much to the dismay of the court’s liberal minority.

As Law&Crime reported earlier in September, Chief Justice John Roberts put the 1935 precedent known as Humphrey’s Executor on the brink by administratively staying, through a “shadow docket” order, the U.S. Court of Appeals for the D.C. Circuit’s reinstatement of Rebecca Kelly Slaughter.

At the time, many legal commentators said the move had “all-but overruled” the Franklin Delano Roosevelt-era holding that — after FDR had canned FTC commissioner William Humphrey without cause amid policy disagreements — “inefficiency, neglect of duty, or malfeasance in office” were “cause” for removal.

And now, just a couple of weeks later, SCOTUS has agreed to grant Trump’s application for a stay, to fast-track the case through certiorari before judgment, and to take up the question of whether “statutory removal protections” for FTC commissioners like Slaughter are violative of the separation of powers, which would mean Humphrey’s Executor very well may be “overruled” sometime after oral arguments are heard this December.

Rebecca Kelly Slaughter (FTC photo).

The court’s division on the issue is already stark, as articulated in Justice Elena Kagan’s dissent, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.

For SCOTUS’ liberal wing, the stakes could not be higher for the insulation of certain independent agencies from politicization in our government — over which, they assert, Trump has effectively taken control regardless of congressional intent or historical practice and with the help of the conservative majority’s “shadow docket” rulings.

“On top of granting certiorari before judgment in this case, the Court today issues a stay enabling the President to immediately discharge, without any cause, a member of the Federal Trade Commission. That stay, granted on our emergency docket, is just the latest in a series,” Kagan began. “Earlier this year, the same majority, by the same mechanism, permitted the President to fire without cause members of the National Labor Relations Board, the Merits Systems Protection Board, and the Consumer Product Safety Commission.”

Even though “everyone agrees” that Congress “prohibited each of those presidential removals,” and even though everyone knows Humphrey’s Executor is “existing law” until it is overruled, the majority has “handed full control of all those agencies to the President” anyway, Kagan continued.

“He may now remove—so says the majority, though Congress said differently—any member he wishes, for any reason or no reason at all. And he may thereby extinguish the agencies’ bipartisanship and independence,” Kagan explained.

The dissent concluded by coming close to predicting that Humphrey’s Executor will be overturned, accusing the conservative majority along the way of abusing the emergency docket to empower Trump:

The majority may be raring to take that action, as its grant of certiorari before judgment suggests. But until the deed is done, Humphrey’s controls, and prevents the majority from giving the President the unlimited removal power Congress denied him. Because the majority’s stay does just that, I respectfully dissent. Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the President, and thus to reshape the Nation’s separation of powers.