Telling that the Supreme Court will let Trump fire the FTC head (despite precedent against the exact same situation) but not the Fed governor. You can see the court just outright ruling based on the preferences and not law.
The concrete impact of the act to be allowed or constrained is, very much, a part of that analysis, so situations which are otherwise legally similar in terms of the underlying issues but where the potential impacts in the interim of adjudication are different can very easily have very different outcomes at this level without judicial favoritism or misconduct.
Which isn't to say that there aren't problems with recent Supreme Court decisions in this area, just than you need more than “cases with similar underlying legal questions have different outcomes on preliminary orders governing what is allowed before the case is resolved” to make that case.
The problems aren’t with the recent decisions, but the 1930s ones. I don’t think there’s a decision on the books today that was more clearly wrongly decided than Humphrey’s Executor. I mean:
> The commission is to be nonpartisan, and it must, from the very nature of its duties, act with entire impartiality. It is charged with the enforcement of no policy except the policy of the law. Its duties are neither political nor executive, but predominantly quasi-judicial and quasi-legislative.
The concession in italics should have made this a slam dunk case in the other direction. Enforcement of the law is the quintessential executive power. An English peasant in the 1600s could have gotten this one right. And where does the constitution say anything about Congress being able to create “quasi-judicial and quasi-legislative” bodies? The founders spilled all this ink to make three branches of government, but they really meant “j/k mix them all up into one unelected body if you want!”
Having different playbooks for players to follow depending on whether one team is for you or against is an interesting approach but one that’s been tried many times before and not one that will leave this country unified or in a better shape than it was found.
The Second Amendment says: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
There is nothing complicated about the prefatory clause. If the amendment read: “News reporting, being necessary to the public debate of a free State, the right of the people to free speech shall not be infringed,” nobody would say that only professional news reporters have a right to free speech. They would say that “the right of the people to free speech” refers to a preexisting right that belongs to “the people” and the introductory clause provides the rationale for protecting it. The meaning isn’t even confusing when you recall that, at the time, militias were “bring your own firearm.” You don’t even need to open up the Federalist Papers and read Hamilton’s writing on European monarchs disarming their people.
Even Larry Tribe, who hates Trump and conservatives more than anyone in legal academia, came around to this view of the Second Amendment: https://hls.harvard.edu/today/why-i-changed-my-mind.
In contrast, there concededly is no “right of privacy” in the Constitution. Griswold turned to “emanations from penumbras” to find such a right. Nobody left of center would apply similar reasoning to find economic rights in the “emanations from penumbras” of the Contract Clause. This is such a case—Lochner—and folks on both sides agree it’s wrong. Griswold and Roe are just Lochner applied to sexual liberties rather than economic ones.
Even most left of center folks would struggle to write an opinion like Griswold and Roe today. They’re relics of an age when the Supreme Court was like a Yankee WASP version of Iran’s Guardian Council, ensuring compliance of temporal law with higher moral law.
The right to bodily autonomy as such is implicitly protected by the 9th amendment which states the constitution is not a set of positive enumeration of rights granted but instead limits placed on the power of government to take away all rights which are inherently ours.
Whether you find those rights because you want to look for it in the 4th amendment limits on governments right to invade your privacy is largely irrelevant.
I’ll also point out that regardless of the arguments on the 2nd amendment, historically regulation of arms was completely allowed and even today that’s allowed (eg you can’t get a nuclear weapon). And ignoring that is very interesting considering the current SCOTUS’s random “historic tradition” argument from conservatives.
In any event, whatever right to bodily autonomy you think exists, the constitution is plainly more concerned about the right to bear firearms. The document devotes a whole amendment to firearms. But the most you can say about the right to bodily autonomy is that the constitution’s silence on it doesn’t preclude its existence.
What it says is that the constitution cares a lot about the power of the government to regulate the natural right to hold weapons and monopolize violence and how that monopoly works. Bodily autonomy comes for the natural born right of liberty from the government and I don’t see the governments power to regulate medical care anywhere in the positive enumeration of powers in the constitution. Like I don’t even know what gives the government constitutional power to regulate medical care in the first place.
That's not what it says! It says: "the right of the people to keep and bear Arms, shall not be infringed." The operative language is no less emphatic than the First Amendment: "Congress shall make no law ... abridging the freedom of speech."
Again, nobody would adopt this tortured reading if the underlying right was speech. You'd have Tik Toks saying "shall not be infringed means shall not be infringed!"
> Bodily autonomy comes for the natural born right of liberty from the government
What is the source of these supposed "natural born rights?"
> I don’t see the governments power to regulate medical care anywhere in the positive enumeration of powers in the constitution. Like I don’t even know what gives the government constitutional power to regulate medical care in the first place.
The federal government doesn't have the power to regulate medical care. But the state governments are not governments of enumerated powers. The state governments are successors of the British Parliament, and, "vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to ... public health, welfare and morals." Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 41 (1966).
The US Declaration of Independence lists it:
> We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness
But I’m not sure what you mean by “origin” and clearly these truths are not self-evident to some.
> The federal government doesn't have the power to regulate medical care
Tell that to the FDA, DEA and FTC.
> That's not what it says! It says: "the right of the people to keep and bear Arms, shall not be infringed."
And yet we’ve regularly infringed that right if that right is interpreted at the individual level. Also “arms” as understood in the constitution was specifically around personal weapons an individual could carry (muskets, pistols, swords). Not necessarily machine guns or weapons of mass destruction; even Scalia, one of the more conservative justices recognized this, writing in Heller that weapons that are “dangerous and unusual” (e.g., machine guns, bombs, or military-grade explosives) can be restricted.
If that distinction sounds preposterous to you, then congratulations, you reached the same conclusion that Justice Jackson reached when she complained that the conservative majority is playing "Calvinball" to reach results-based decisions regardless of statute, precedent, and the Constitution.
For those who didn't grow up in the 90s, Calvinball is a reference to a fictional sport from the comic strip Calvin and Hobbes, in which the sport's rules are made up and change constantly.
https://www.dailycartoonist.com/index.php/2025/08/21/calvinb...
Justice Jackson said:
> This is Calvinball jurisprudence with a twist. Calvinball has only one rule: There are no fixed rules.6 We seem to have two: that one, and this Administration always wins.
I'm really not sure what you're talking about here because the decision didn't go against the administration.
Justice Jackson's comment was part of a dissenting opinion.
It's like claiming a game is rigged when your team won.
> You can see the court just outright ruling based on the preferences and not law.
And my reply was:
> The Supreme Court is playing "Calvinball" now, and that's not me saying it but (a member of) the Supreme Court saying it.
Who the Court decided for in the OP linked article is completely irrelevant to my reply.
It was merely reinforcing the idea that the Court appears to many to be making up the rules as they go along to suit their preferences, which is quite analogous to the rules for Calvinball.
My reply was not worded as, nor meant to be, an indication that I disagree with their ruling in the OP article.
How they ruled on any single specific matter is irrelevant to the case that they've made a lot of rulings lately which are at odds with precedents including some of their own.
But anyone reading the parent comment and your comment would have no idea that in your mind, you were replying to a general reading of the second sentence.
It's also worth noting that none of Justice Jackson's colleagues (even the other liberal ones) joined her outraged dissent. It was essentially 8-1 against. The current decision proves that she was in fact incorrect.
Someone should tell the Federal Reserve Board of Governors that they aren’t a government agency:
https://www.federalreserve.gov/aboutthefed/fedexplained/who-...
“The Federal Reserve System includes
· The Board of Governors, a federal agency located in Washington, D.C."
The whole federal reserve is also privately funded, and doesn't get money from congress.
From the outside it may appear like a regular federal agency, but it is very different from the FTC, DEA, FDA, DOE, etc.
No, its a federal agency. Explicitly.
> But the board is a subsection of the federal reserve systems.
Yes, the Federal Reserve System is a different thing from the Board with a sui generis relation to the government, which would maybe be relevant if the personnel action involved some part of the system which was not the Board, but we are talking about a personnel action pertaining to the Board.
> And even the board is kind of odd in it's structure, because the governors have staggered appointments and serve a term.
That’s not at all special (particularly when comparing to the FTC), but typical of “independent” federal agencies (including the FTC), which tend to have fixed terms that are longer than a Presidential term (7 years for the FTC, 14 for the Fed Board), staggered terms, and an explicit statutory limits on the number of members of the body that can be from one political party.
When the Court does what people like, they're a legitimate and vital check on government power. When it does what people don't like, they're unelected politicans in robes.
SCOTUS does not care about regulatory or labor protections, because the Justices are friends with and receive payments from the billionaire class (Leonard Leo, Charles Koch, Erik Prince) who benefit from weaker protections.
On the other hand, a corrupt Fed could lead to rampant inflation, which would devalue their 401k.
In other words, SCOTUS is motivated by self interest, not rule of law or justice.
Yes, it's bullshit either way, but it's not hard to see the court's reasoning here.
The FTC is not simply under the executive branch, it’s defined to be an independent agency.
The handling of the Federal Reserve and the FTC cases are creating a very interesting situation for how agencies can be defined by Congress.
Ends up the USSC will have to decide.
The argument is all of this violates the constitution. There has not yet been a clear principle articulated by the court for treating them differently.
The idea of a unitary executive is obviously being relitigated but there's no question that independent executive agencies have existed for a century.
I will argue that the inconsistency in the Supreme Court’s rulings are creating an environment where some independent agencies will receive special consideration based on their function. This sets up an environment where Congress loses out on the collaborative benefits and safeguards of independent agencies in favor of the courts further empowering the Executive.
That said, there isn’t a fourth branch of government and the strict boundaries of branches is a rather… elementary understanding how our government works.
If an independent agency is “unconstitutional” and a fourth branch, how would you define our Armed Forces in practice?
The Supreme Court has power because the express grant of power in Article III; the idea that they could somehow fulfill their role in adjudicating cases and controversies arising under the Constitution and laws of the United States without both deciding what those writings mean and deciding whether something purporting to be a law of the United States was, in fact, an act authorized by the Constitution when that is precisely the source of the controversy before them is patently absurd.
I think you know that blanket statements of this type are at best inaccurate and not helpful to the discussion. The Fed is an entity created by federal statute and staffed by presidential appointees, so it's at least a little misleading to say that it's not part of the federal government.
The Court will have a bunch of briefs from both sides giving them legal justification for any decision. They will choose which briefs they like.
The Federal Reserve System is a bit more complicated than the Board of Governors (but is also effectively part of the federal government, but a sui generis, highly corporatist part of the federal government, with direct involvement in an unusual manner by powerful private entities.)