The World View Of The Supreme Court's Liberal Bloc

Over the course of the past week, the Supreme Court has released a group of the most important decisions of this year’s term. Most of those decisions involved the federal government/Trump Administration as a party. As you probably have seen, the government won the majority of those decisions (ability of President to fire FTC Commissioner Rebecca Slaughter, ability of President to end “Temporary Protected Status” for certain migrants, ability of government to refuse to consider asylum applications from those who have not entered the U.S.), but also lost a few (birthright citizenship, ability of President to fire Federal Reserve Board Member Lisa Cook).

Many things about these cases are interesting and worth commenting on, but to me one thing is particularly fascinating: the three “liberal” justices (Kagan, Sotomayor and Jackson) voted as a unified bloc in every case. This is in contrast to the six “conservative” justices (Roberts, Thomas, Alito, Gorsuch, Kavanaugh and Barrett). Those six may vote together most of the time (on politically significant cases), but they also sometimes break apart, as they did in some of these cases. They vote differently when they have principled disagreements as to the interpretation of a constitutional or statutory provision.

But somehow, the liberals never have any such principled disagreements. Instead, when a particular position in a case is important to the ability of the Democratic Party and its operatives to control government policy, the liberal justices can always find a way to support that position. When a Democrat holds the presidency (recently, Biden), the liberal justices can always find a way to uphold his actions. Here in President Trump’s second term, when a case challenging a presidential action comes before the Court, the liberals can always find a reason to strike that action down.

I’ll consider a couple of the recent decisions:

Trump v. Slaughter.

At the beginning of his second term, President Trump fired Rebecca Slaughter, a Democratic Commissioner of the Federal Trade Commission. Trump did not give any cause for the firing, and claimed a Constitutional right to fire Slaughter without cause. Slaughter brought suit challenging her firing, and the case quickly got to the Supreme Court.

Trump asserted the right to fire Slaughter under the combination of Article II, Section 1 of the Constitution (“The executive Power shall be vested in a President of the United States of America”), plus Article II, Section 3 (“[the President] shall take Care that the Laws be faithfully executed”). The claim was that the power to fire subordinates at will is inherent in those two provisions because the President cannot effectively hold and carry out the full executive power, and assure faithful execution of the laws, without the power to discharge subordinates.

Nevertheless, Trump’s action firing Slaughter was in open conflict with the FTC’s statute. The FTC was created in 1914, during the presidency of Woodrow Wilson. It was the embodiment of a progressive-era fantasy of an apolitical bureaucracy, staffed by so-called experts, who could run and regulate the economy based on their supposedly superior intelligence and knowledge. In furtherance of the idea of independence from crass political influence, the FTC’s statue provided that Commissioners could only be removed for “inefficiency, neglect off duty, or malfeasance in office.”

The FTC’s statutory restriction on removal of Commissioners had been tested in a 1935 Supreme Court case called Humphrey’s Executor. In that case, President Franklin Roosevelt had purported to fire one of the FTC Commissioners, Humphrey, without cause, just as Trump had now fired Slaughter. The Supreme Court held the firing invalid, in one of the most bizarre and incoherent decisions in its 200 plus year history.

Trump’s position in firing Slaughter appeared to me to be completely right. The Supreme Court’s Humphrey’s Executor decision had given rise to a proliferation of an alphabet soup of these so-called “independent” agencies, outside the President’s control and outside the carefully constructed three-branch constitutional structure. The Constitution created three branches of government — executive, legislative, and judicial — but these new “independent” agencies were often referred to as a fourth branch, unaccountable to anyone, who could not be controlled or reined in by the voters in any way. In 1935, at the time of the decision in Humphrey’s Executor, it was perhaps not obvious that agencies outside of the control of the President and of all democratic accountability could quickly become a metastasizing cancer in the government. But by 2026 the problem could not be denied.

I had a post in January 2025 (“Next Up: Humphrey’s Executor”) where I criticized the Court’s decision in Humphrey’s Executor, and predicted that it would shortly be overturned. Excerpt:

The Supreme Court held, in one of its most bizarre opinions ever, that Humphrey was improperly fired . . . . The Court’s logic turns on the idea that the power of an FTC Commissioner is not “executive” in nature, even though the Commissioners have the authority to execute and enforce the laws. The opinion makes no sense whatsoever. However, it has never been overruled, and stands today as Supreme Court precedent.

In that post, I went as far as to predict that Humphrey’s Executor was so obviously absurd that even the liberal justices would go along with overruling it:

I’ll even go out on a limb and say that I expect the decision to be unanimous — I can’t even think of how the liberals might try to support its ridiculous logic.

Well, how wrong I was. Of course the liberal justices voted to continue the rule of Humphrey’s Executor in force, because that rule limits the ability of a Republican President, elected democratically, to change the course of the policies of huge swaths of the government away from the priorities of the Democrats. (In the case of a Democratic President, the policy goals of the “independent” agencies, who are staffed by certified members of the D.C. swamp, almost always align with the President’s priorities. So the liberal justices can perceive no problem there.)

In this instance, the dissent of the three liberal was written by Justice Sotomayor. Basically, the dissent emphasizes the “wisdom” of the long history of these “independent” agencies, and of the Supreme Court precedent (i.e., Humphrey’s Executor) upholding their existence. Excerpt:

[F]ealty to the Constitution means respecting not just what it says, but what it does not say and by its silence leaves to others to decide. It also means respecting precedent—not as a wooden exercise, but out of a recognition that, whatever our confidence in the theories of the present moment, the wisdom of our founding document does not belong to today’s Justices alone.

I guess it’s the best argument they could think of to try to tie the hands of a Republican who got elected President. In this case, it did not work.

Mullin v. Doe

In this case, litigants from Haiti and Syria challenged the Trump administration’s termination of what is called “Temporary Protected Status” (TPS) for migrants from those countries. TPS had been granted to migrants from Haiti in 2010 in the wake of a major earthquake in that country, and in 2012 to migrants from Syria, during a civil war there. As stated in the opening lines of Justice Alito’s majority opinion, “Congress created TPS in 1990 to provide short-term humanitarian relief for aliens who cannot safely return to their home countries due to events such as armed conflict or natural disaster.” And yet here in 2026 — sixteen years after “temporary” protected status was granted to Haitian migrants, and fourteen after it was granted to Syrians, those designations remained in effect. In a Democratic presidency, or series of them, those designations would have remained in effect essentially forever. But Trump withdrew them, on the ground that the crises that led to the temporary designations had long passed.

You might think that a case challenging termination of TPS would be about the easiest case ever to come before the Supreme Court. That’s because the statute creating the TPS program precludes judicial review of an executive decision to terminate a designation. From Justice Alito’s majority opinion:

The TPS statute plainly bars consideration of respondents’ non-constitutional claims. It allows “no judicial review of any determination . . . with respect to the . . . termination” of a TPS designation. 8 U. S. C. §1254a(b)(5)(A).

So if you are a liberal justice, how are you going to get around that one? Justice Kagan’s dissent for the three liberals comes up with a gaggle of objections, all of which add up to the idea that if the Republican President tries to implement policies we don’t like, we can always find ways to tie him up in knots. Most of the objections are procedural (e.g., the Secretary of Homeland did not consult with all of the other agencies that she should appropriately have consulted with in rescinding the TPS designations). But my favorite objection is that Trump is barred from terminating TPS as to Haitians because he made some allegedly racially charged statements about people from that country. From Kagan’s dissent:

The Haiti plaintiffs have yet another claim that is likely to succeed: that race entered into the decision to terminate Haiti’s TPS designation, in violation of equal protection. . . . [This claim] is more than plausible: Even putting the clear-error standard aside, the Haiti plaintiffs have carried their burden. The evidence they have offered includes statements by the President [that are] repellent and racially inflected. . . .

The evidence in question consists of the well-publicized statements by President Trump in 2025 that Haitians in Springfield, Ohio, were eating dogs and cats that were pets of people in the town. Whatever you might think about Trump’s statements on this subject, note the consequences that the liberal justices think follow: once a President has uttered any statement we deem racist against any group subject to a TPS designation, then he can no longer rescind that designation. It must remain in place forever (or at least until this President is replaced by a President more to our liking). Meanwhile, we and not the President get to run the immigration policy of the U.S. as to this country. And so, I guess, every single Haitian can come here and stay indefinitely without any ability of the President to do anything about it.

This is the quality of the judging that we can expect when the Democrats achieve their dream of packing the Supreme Court.