Just days after the U.S. Court of Appeals for the D.C. Circuit reinstated a dismissed FTC commissioner, citing a 90-year-old Supreme Court ruling that impeded President Donald Trump, Chief Justice John Roberts on Monday challenged this precedent in an emergency docket decision. This move has significant implications for Lisa Cook, who is defending her position on the Federal Reserve Board of Governors against a potential dismissal.

Last week, a long-serving federal district judge was taken aback by how the high court’s decisions on the “shadow docket” — a term Justice Brett Kavanaugh prefers to downplay as “interim docket” — became binding precedent. Several lower court judges voiced their concerns in a news piece, urging the Supreme Court to provide more clarity when issuing emergency orders.

On Monday, Roberts granted no explanation when he approved Trump’s request for an administrative stay on a lower court’s decision, which ruled that FTC commissioner Rebecca Kelly Slaughter was unjustly dismissed “without cause.” By this action, the 1935 Supreme Court decision in Humphrey’s Executor, which involved President Franklin Delano Roosevelt’s contentious removal of an FTC commissioner and highlighted that reasons such as “inefficiency, neglect of duty, or malfeasance in office” are legitimate grounds for removal, was effectively diminished, awaiting further directive from either Roberts or the Court, according to some legal experts.

#SCOTUS nearly nullified a 90-year-old unanimous precedent through an unexplained “administrative” stay this morning, and that wasn’t even the most concerning action it took before noon.

— Steve Vladeck (@stevevladeck.bsky.social) September 8, 2025 at 12:17 PM

But, let’s be clear what John Roberts did this morning:

Roberts essentially nullified the Humphrey’s Executor precedent and invalidated the lower courts’ judgments in this instance to permit Trump to temporarily remove Slaughter, doing so on the shadow docket with an “administrative” stay issued solely by him.

— Chris Geidner (@chrisgeidner.bsky.social) September 8, 2025 at 11:16 AM

SCOTUS now ~officially~ allows the Trump admin and the Court to overrule centuries old cases on the shadow docket.

Apparently “irreparable harm” entitling the gov’t to a stay now means “The Trump admin can’t preemptively by fiat overrule cases it & we don’t like.”

[image or embed]

— Leah Litman (@leahlitman.bsky.social) September 8, 2025 at 11:51 AM

The upshot, for either opponents or proponents of expanding the executive’s ability to fire officials at independent agencies at will, is that the days of Humphrey’s Executor as good law could be “numbered.”

Not really.

1) it’s only an administrative stay

2) the 1935 order did not address availability of injunctive relief (as opposed to damages), and

3) there are serious arguments thr current FTC would not satisfy the basis for that 1935 decision https://t.co/7FhsBCN0ku

— Jonathan H. Adler (@jadler1969) September 8, 2025

In July, U.S. District Judge Loren AliKhan, an appointee of then-President Joe Biden, wrote that to permit Slaughter’s firing would be to “bless what amounts to the implied overruling of a ninety-year-old, unanimous, binding precedent.”

Not willing to do so, AliKhan said that the facts of Humphrey’s Executor and the alleged facts surrounding Trump’s attempted removal of Slaughter — the lone Democratic commissioner left at the FTC — “almost identically mirror” one another, and so an injunction blocking that firing from being carried out was warranted.

Rebecca Kelly Slaughter (FTC photo).

“It is not the role of this court to decide the correctness, prudence, or wisdom of the Supreme Court’s decisions — even one from ninety years ago,” AliKhan said. “Whatever the Humphrey’s Executor Court may have thought at the time of that decision, this court will not second-guess it now.”

The judge added that the Trump administration is “free to take their quarrels with Humphrey’s Executor to the Supreme Court,” but stated Slaughter’s “purported removal” was “unlawful and without legal effect.”

This is the order that Roberts administratively stayed — the same order that was persuasive enough for the D.C. Circuit, in a 2-1 decision last week, to reinstate Slaughter as an FTC commissioner. The majority concluded that doing anything else “would be to defy the Supreme Court’s decisions that bind our judgments.”

U.S. Circuit Judges Patricia Millett and Cornelia Pillard formed the majority, with U.S. Circuit Judge Neomi Rao writing a lone dissent, insisting that the court should have issued a stay “because the government is likely to prevail on the merits of its challenge” of the lower court’s “remarkable injunction.” Millett and Pillard were appointed by former President Barack Obama and Rao was appointed by Trump during his first term.

Rao said the D.C. Circuit should have stayed AliKhan’s injunction because SCOTUS has “reaffirmed” in Trump v. Wilcox and Trump v. Boyle that “when a court orders reinstatement of an officer removed by the President, the balance of harms favors the government and warrants a stay.” It’s unclear if that is why Roberts issued the administrative stay, because he didn’t say so, but Slaughter argued against this result in opposition, stating that the Trump administration “fail[ed] to identify any threat posed by Commissioner Slaughter’s service” while SCOTUS considered the government’s case for removing her.

In its application at SCOTUS, the Trump administration called for supreme intervention and suggested that AliKhan and the D.C. Circuit majority had themselves defied precedent while claiming to uphold it, even referencing a recent Gorsuch rebuke of a judge for defying the high court:

The lower courts erred, therefore, by treating Humphrey’s Executor as binding while ignoring this Court’s equally binding explication of Humphrey’s Executor in Seila Law. And that error — an unduly expansive reading of Humphrey’s Executor that ignores this Court’s more recent precedents — is the very same error that formed the basis of the orders that this Court stayed in Wilcox and Boyle.

Once again, this Court should intervene. “Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them.” NIH v. APHA, No. 25A103, slip op. 1 (Aug. 21, 2025) (Gorsuch, J., concurring in part and dissenting in part). This case is indistinguishable from Wilcox and Boyle, and the lower courts should have treated it so.

After reading these opposing filings, Roberts responded by issuing the administrative stay and ordering a response from Slaughter’s legal team by 4 p.m. on Sept. 15.

To get an idea of what the implications could be, look no further than Lisa Cook’s lawsuit to block her firing from the Federal Reserve Board.

During her legal team’s first hearing in court and in multiple court filings, Cook has repeatedly warmed to the argument that mortgage fraud allegations against her, which she denied, cannot — based on Humphrey’s Executor — be “cause” for Trump to fire her.

For instance, Cook attorney Abbe Lowell argued that Trump’s attempted firing of her was based on pretext and impermissibly rooted in policy disagreements, as both Cook has repeatedly sided with Fed Chair Jerome Powell in refusing to lower interest rates. If that’s “cause,” the plaintiff suggested, then Trump and future presidents would be unshackled — and roadblocks would be removed for a remaking of the Federal Reserve, a “uniquely structured, quasi-private entity” with a characteristic history of independence from politicization given the essential importance of the economy.

“The Supreme Court recently made clear that the analysis in Humphrey’s Executor applies with particular force to the Federal Reserve,” the lawsuit continued, claiming that if Trump’s limitless conception of “cause” were greenlit, then it would “allow him to remove any Federal Reserve Board member with whom he disagrees about policy based on chalked up allegations.”

Put another way, Lowell added, “any articulable justification that the President deems sufficient to warrant removal” would be enough.