'Flailing to figure out': Conservative justices show cracks in high-stakes case

The Supreme Court’s conservative majority may be poised to hand President Donald Trump sweeping new power over independent federal agencies in the new year, but recent oral arguments revealed growing unease – and internal cracks – around the right’s long-standing belief that presidents should have near-total control over the executive branch.

That’s according to a Friday analysis in The New Republic, which dissected the case stemming from Trump’s unexplained firing of Federal Trade Commission Commissioner Rebecca Slaughter and the Justice Department’s argument that longstanding protections shielding commissioners from at-will removal are unconstitutional. A ruling in favor of the Trump White House would allow presidents to wield direct control over dozens of agencies that have operated independently for decades.

“But beneath the conservative justices’ convergence around that bottom line, the lengthy session exposed reservations, confusion, and differences across the conservative bloc, potentially heralding divergence, uncertainty, proliferating lawsuits, and regulatory gridlock in years ahead—perhaps even this term,” according to the analysis by attorney Simon Lazarus, who was part of President Jimmy Carter's staff in the late 1970s and later worked in Washington, D.C. law firms.

“The right-wing justices’ emergent disarray seemed to reflect their awareness of pitfalls lurking in and around their hitherto unquestioned unitary executive gospel—including logical, legal, and most of all, real-world consequences that menace the economy, the nation, and the court itself,” Lazarus added. “With these threats suddenly hoving into view, the conservative justices were flailing to figure out credible strategies to head it off.”

At one point during the oral argument session, the analysis noted, Justice Amy Coney Barrett floated the idea that the high court could rule for Trump without specifying a clear constitutional basis.

“Would that ploy pass any relevant smell test? Should six unelected, life-tenured justices wipe out over a century of precedent structuring vast sectors of the economy—without bothering to explain where and how they derive the authority to engineer such an epochal upheaval?” Lazarus asked. “Unsurprisingly, no takers spoke up to endorse this approach.”

Rather than relying on constitutional text, conservative justices increasingly leaned on policy arguments warning that independent agencies are unaccountable and dangerous, Lazarus noted.

“They never invoked constitutional text or Framers’ design at all,” he wrote.