“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
Trump Supreme Court justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett again cast the deciding votes in a 6-3 shadow docket ruling to authorize Trump to fire an agency official, this time from the Federal Trade Commission (FTC), who is supposed to be protected from such action due to congressional statute. The majority also set an argument for later this Term on a Court precedent that has protected the independence of such officials. The September 2025 ruling is in Trump v Slaughter.
What happened in this case?
As part of his continuing effort to assume control over federal agencies that are supposed to be independent, Donald Trump fired earlier this year Rebecca Slaughter, a Democratic member of the FTC. In July, a federal court in DC issued an order that prohibited the firing from taking place, based on a law passed by Congress and the Supreme Court’s 90-year-old decision in the Humphrey’s Exeeutor case that has protected the independence of such agencies and officials.
How did the three Trump justices and the rest of the majority decide and why is it harmful?
In a 6-3 shadow docket order made possible by the three Trump justices, the Supreme Court stayed the lower court injunction. It also took the rare step of granting review prior to a lower court final judgment and set for full briefing and argument the issue of the validity of the federal law that protects FTC members from such arbitrary removal by the President and the continuing vitality of the Supreme Court decision in Humphrey’s Executor that provides constitutional protection for the independence of such agencies.
Justice Elena Kagan strongly dissented on behalf of herself and Justices Sotomayor and Jackson. She noted that this shadow docket ruling was “just the latest” in a number of such orders allowing similar action by Trump as to other agencies that are designated by law as independent and free from such action. As Kagan explained, the majority has now “handed full control” of these agencies to Trump, allowing him to remove anyone he wishes and “extinguish the agencies’ bipartisanship and independence.”
Justice Kagan wrote that these results are contradicted by the Humphrey’s Executor decision, which the Court has now made clear it is “raring to take” the action of overruling. In the meantime, she criticized, the Court majority has effectively and improperly used its shadow docket power to “transfer government authority from Congress to the President” and “reshape the Nation’s separation of powers.”
The full impact of this shadow docket ruling will not be clear until the Court issues its decision later this term on Humphrey’s Executor. In the meantime, the majority has clearly undermined the independence and functioning of the FTC by allowing Trump to fire one of its members. In addition, the ruling illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.