An Indecent Burial for Humphrey's Executor

This is an essay that AI and I collaborated on this evening. If there are still people out there who believe that AI can't think or that it just hallucinates or that people working at relatively high levels in law can't benefit from it, I offer this as refutation. And if you disagree with the essay, that's fine. But blame me. I gave the AIs (a combination of Claude, Grok4, and Gemini Deep Mind) pretty clear direction as to what I wanted and a command to challenge my perspective so I could sharpen my argument). For a synthetic podcast recapitulating the main ideas of the blog entry, click here.

The Supreme Court’s emergency order this evening in Trump v. Boyle is constitutional nonsense.¹ In two terse paragraphs, the majority stayed a lower court order, allowing the President to fire members of the Consumer Product Safety Commission (CPSC) for purely political reasons.¹ This action makes absolutely zero sense if Humphrey's Executor v. United States—the 90-year-old precedent that sanctions the independence of such agencies—is still good law. Because if it is good law and the CPSC commissioners shouldn't have been fired, the government can't possibly have suffered a serious (let alone irreparable) loss by letting them stay on the job. The majority, of course, never says Humphrey isn't good law. Instead, it creates a state of zombie jurisprudence, where a foundational precedent is left to stagger along, formally alive but functionally dead, creating chaos for the rule of law.

The substantive outcome was perhaps inevitable. The intellectual assault on the independent administrative state, fueled by a muscular unitary executive theory, has been underway for years. But the method the Court chose for this final blow is an institutional disgrace. The real crisis of the Boyle decision is not what the Court did, but how it did it. By using the opaque "shadow docket" to effectively kill a cornerstone of administrative law, the Court has chosen judicial fiat over reasoned deliberation. Whether one celebrates or mourns the demise of Humphrey's Executor, it deserved the dignity of a decent burial. What it received was a back-alley execution.

I. A Public Funeral vs. A Back-Alley Execution

The Court knows how to overrule major precedents properly. Just last year, in Loper Bright Enterprises v. Raimondo, it overturned the 40-year-old Chevron deference doctrine. Like Humphrey's, Chevron was a pillar of the modern administrative state.² The Court gave it a full, public funeral. The case was accepted onto the merits docket, subjected to extensive briefing, and debated for hours during oral argument.³ When the final opinion came down, it was lengthy and reasoned, explaining to the public, Congress, and the lower courts why the majority believed the precedent had to fall.⁵ One can disagree with the outcome, but the process was transparent and accountable.

The treatment of Humphrey's Executor could not be more different. It was not given a public funeral but a back-alley execution on the Court's emergency, or "shadow," docket.¹ This docket, historically used for routine procedural matters, has been transformed into a tool for making major, often unexplained, legal changes on an expedited basis. As Justice Elena Kagan’s biting dissent in Boyle makes clear, the decision was made "on a short fuse without benefit of full briefing and oral argument."¹

The majority’s entire justification for its action is a single sentence citing a prior, equally unreasoned shadow docket order in Trump v. Wilcox.¹ That order, in turn, offered no substantive analysis of Humphrey's, relying instead on a cursory balancing of equities.¹ This is, as Justice Elena Kagan aptly puts it, "turtles all the way down."¹ The Court is layering nothing on top of nothing, manufacturing its own precedent in the shadows to dismantle a legal structure that has stood for nearly a century. This is not judicial reasoning; it is an assertion of raw power that evades public scrutiny and accountability.

Nor is this procedural malfeasance an isolated incident. As Justice Kagan points out, it is part of a pattern. Just last week, in McMahon v. New York, the Court granted another unexplained stay, this one permitting the President to move forward with dismantling the Department of Education, an agency created by and tasked with vital functions by Congress. That order, like the one in Boyle, was a cryptic decree from the shadows, offering no reasoning for why the President could simply ignore a federal statute or why the President's stripping of agency personnel is constitutionally different from the prohibited impoundment of funds. Together, these cases paint a disturbing picture: the Court's emergency docket is being used to facilitate, piece by piece, a "permanent transfer of authority" from the legislative branch to an aggrandized executive. They essentially restore a system in which politics triumphs over all and the concept of apolitical expertise is interred.

II. The Kavanaugh Solution: A Call for a Decent Burial

Amid this procedural wreckage, Justice Brett Kavanaugh’s concurrence offers the only principled path forward.¹ His position is not a defense of Humphrey's Executor on the merits. Rather, it is a defense of judicial integrity. He argues that when the Court is likely to narrow or overrule a major precedent, the "better practice" is to grant certiorari before judgment and decide the issue definitively.¹

His reasoning is pragmatic and grounded in the rule of law. Simply granting stays while leaving the underlying precedent in limbo creates "extended uncertainty and confusion" for lower courts, government agencies, and the public.¹ Lower courts cannot overrule the Supreme Court, so forcing them to "percolate" on an issue the high court has already signaled it intends to resolve is pointless.¹ Kavanaugh implicitly acknowledges that everyone knows where this is heading. His argument is a plea for judicial candor: if the Court is going to kill a precedent, it should do so openly, with the intellectual honesty of a full opinion.¹

This approach aligns with his broader, nuanced view of stare decisis.¹⁰ He has acknowledged that many of the Court’s "finest moments came when it overruled precedent," but he has also laid out frameworks for when doing so is appropriate. A key factor is whether a precedent has been eroded by subsequent legal developments—a description that certainly fits Humphrey's after a decade of hostile jurisprudence in cases like Free Enterprise Fund and Seila Law.¹² For Kavanaugh, the issue is not whether to overrule, but how. A decent burial involves a public acknowledgment of the precedent's demise and a clear statement of the new rule. The majority’s approach, by contrast, creates a legal twilight zone, undermining the very stability that stare decisis is meant to protect.

Conclusion: The Indecent Burial

The debate over the constitutional status of the administrative state is one of the most consequential of our time. It pits two competing visions of American governance against each other: one that values apolitical expertise and insulation from partisan pressure, and another that prioritizes direct presidential accountability through a unitary executive. There are legitimate arguments on both sides of this divide. I for one have no real idea what the Founders would have thought about the matter; they lived in such a different world from ours that the translation of preferences – as they themselves might well have acknowledged – is largely indeterminate.

But whatever the right answer is, the Supreme Court’s action in Trump v. Boyle does a profound disservice to that debate. By choosing to resolve this fundamental conflict by silent fiat, the Court has abandoned its commitment to reasoned explanation. It has signaled that for certain disfavored precedents, the deliberative process of the merits docket is an inconvenience to be bypassed.

The ultimate fate of Humphrey's Executor may have been sealed long before this order was issued. But the precedent that shaped the federal government for nearly a century deserved better than an unexplained edict from the shadows. It deserved a decent burial. The Court’s failure to provide one is a self-inflicted wound to its own legitimacy, and that is a constitutional crisis that should alarm us all.

Works cited

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