Supreme Court Moves Toward Throwing Out Precedent in Recent and Upcoming Court Decisions
“Justice Clarence Thomas said the Supreme Court should take a more critical approach to settled precedent, saying decided cases are not ‘the gospel’ and suggesting some may have been based on ‘something somebody dreamt up and others went along with’” (msn.com).
The concept of common law – that court decisions should be decided by past decisions, goes back at least as far as Britain in the 1100s. The reasoning behind this approach is that too much change too quickly is often wrong. Change should be slow and done incrementally.
The six conservative U.S. Supreme Court justices are looking to ignore precedent going back to the ratification of the Constitution in 1788. Their move to overthrow precedent is based upon the Unitary Executive Theory.
This theory, once on the fringes of American jurisprudence, asserts that the power of the president is virtually unlimited based on the Court’s new view of Article II of the Constitution. Here are three major examples of this theory being applied by the President.
1) “Trump v. United States, 603 U.S. 593, is a landmark decision of the Supreme Court of the United States in which the Court determined that presidential immunity from criminal prosecution presumptively extends to all of a president’s “official acts” – with absolute immunity for official acts within an exclusive presidential authority that Congress cannot regulate such as the pardon, command of the military, execution of laws, or control of the executive branch” (wikipedia.org).
Giving such immunity by SCOTUS is precedent-setting. It is in direct contradiction to the concept of checks and balances. Using this immunity given him by SCOTUS, the President has been destroying alleged drug boats off the coast of Venezuela and in the Pacific, killing almost a hundred people without giving them the right of due process in a court of law.
These attacks are based upon unsubstantiated executive statements that these “drug dealers” were heading to the U.S. when they were incapable of such a trip due to lack of fuel or seaworthiness of their vessels. Such wartime actions require Congress’s approval under the Constitution. These are unconstitutional and precedent-breaking acts.
2) So, also, is federalizing the National Guard to send troops into cities like Los Angeles, Chicago, and Portland against the wishes of mayors and governors of those cities and states based on Congressional law. Numerous lower federal court decisions have upheld their illegality. SCOTUS is yet to rule on this issue. The President is using his judicially bestowed power to “command the military” in unprecedented ways.
3) The president fired Lisa Slaughter of the Federal Trade Commission, Federal Reserve governor Lisa Cook, and Sheila Perlmutter, Copyright Director of the Library of Congress even though she works for Congress and is not in the executive branch. These individuals are suing to get their jobs back based upon the 1935 Humphrey’s Executor Supreme Court decision limiting the power of the President to fire agency directors without cause.
These firings will all be heard by SCOTUS in January 2026. Based upon previous testimony, it seems certain that the conservative justices will do away with the Humprey’s Executor precedent after 90 years and rule against Slaughter.
What will happen to Perlmutter is more uncertain since she works for Congress and not the President. Cook’s Federal Reserve position seems to be protected by SCOTUS based upon their previous court decision separating the Federal Reserve created in 1913 from the other agencies created during the New Deal Era of the 1930s. Over two dozen federal agencies will be affected by these decisions as part of a ripple effect.
These three lawsuits are just a few of the precedent-ignoring attitudes of the majority justices on the Supreme Court, all of which increase the power of the executive. The whole concept of separation of powers and checks and balances is being altered or destroyed.
If Congress created these agencies and set up their functions, what right does the president have to ignore the laws of Congress? What right does SCOTUS have to give so much power to the Executive Branch? In Article II Section 3, the president is instructed: “He shall take Care that the Laws be faithfully executed.” SCOTUS has no right to tell the president he can ignore Congress.
If our current president, or any future ones, while claiming to be immune from prosecution according to SCOTUS, breaks laws and the Article II Section 3 mandate to faithfully execute the laws, what will keep the United States from becoming a dictatorship? Justice Thomas’ words: “something somebody dreamt up and others went along with,” seem to be exactly what SCOTUS is attempting to do.
