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Lisa Graves is the author of Without Precedent, a history and analysis of the Roberts Court and the expert on how the Federalist Society has been working to undermine democracy. Yesterday this happened:
So I managed to arrange a conversation with Lisa about what is happening:
. . .
TRANSCRIPT:
Paul Krugman in Conversation with Lisa Graves
(recorded 6/29/26)
Paul Krugman: Hi everyone. This is a bit of an emergency recording and podcast because today, which is Monday as we’re recording this, the Supreme Court has just handed down several decisions, of which one was really alarming. And I had talked earlier with Lisa Graves, head of True North Research, and Court Accountability who had been warning about all this stuff when I talked with her previously and on other occasions. And I wanted to get somebody who’s actually following this to weigh in. So, hi Lisa.
Lisa Graves: Paul, thank you so much for inviting me back on. I really appreciate it.
Krugman: Yeah. So, there were obviously several decisions that came down, but Humphrey’s Executor… This is absolutely mind-boggling. So why don’t you talk about Humphrey’s Executor and then we’ll talk about the background and what this says about the Roberts Court?
Graves: Yes. Today’s Slaughter case involving the FTC, is a case where the Roberts Court has overruled nearly a century of legal precedent which prohibited presidents from firing commissioners, specifically on the Federal Trade Commission, the case that you mentioned, Paul. Humphrey’s Executor was specifically about the FTC. It was about this provision that barred FDR, Franklin Delano Roosevelt, from firing someone whom Hoover appointed to that commission. When Congress created the FTC, it set a standard that required that you would have to have cause to fire someone outside of their term.
The way the FTC is set up is that it has five commissioners by statute. Three of those commissioners are appointed by the president, two from the president’s party, and two are not from the president’s party. What’s happened over the past year is since Donald Trump became president again, he fired the Democratic commissioners on that commission. And so for the last 15 months, that commission has had only two commissioners, two Republican appointees, which has meant there hasn’t been a Democrat even in the room to consider these cases that are brought to the FTC, which relate to the power of huge corporations to merge with one another or not. And so, in essence, the FTC investigates proposed mergers and other things that might be considered a restraint on trade or affect the ability of consumers to get a fair price on things, for example. And what Trump has done is that he’s basically dominated that board in defiance of the plain language of the statute.
So any legal action by Donald Trump that has been countenanced by this Supreme Court, which allowed that firing to stand, in essence, did not allow the lower courts to reinstall Rebecca Slaughter to that post while the case was pending, and then just today ruled that, in fact, under their new approach to the Constitution, Donald Trump has the power to fire anyone at any independent agency—other than the Fed, it seems—no matter what Congress has said. And this is the result of an invention of a theory from the Reagan revolutionaries back in the day to try to aggrandize presidential power through what they describe as “the unitary executive theory.”
So the bottom line is that this ruling by the Roberts Court will allow more of the corruption that we’ve seen going on by this administration in terms of people who may be donors to Trump seemingly getting out of investigations or having their mergers go through, and we will not have a commission at the FTC that has any independence—just loyalists for Donald Trump for the foreseeable future.
Krugman: And it applies obviously not just to the FTC but to any agency except not the Federal Reserve. But the FDA—if there’s an FDA official who is viewed as being too hostile to RFK Jr’s vaccine doctrine or something, then Trump can fire him. And the Supreme Court has said, “Well, yes, the president has that power. Congress cannot set any ground rules that can’t be overruled by presidential edict.” Is that a correct interpretation?
Graves: Well, that’s the broad strokes of it, but just to add a little bit of gloss to that, which is that Roberts has been pursuing this agenda for years now. And he accomplished part of it through a case called the Seila Law LLC case, where he allowed Trump to remove the head of the Consumer Financial Protection Bureau. And the CFPB also had restrictions on whether that person could be fired without cause, and Roberts already moved the ball forward on that. And that has had a cascading effect along with the terrible, unprecedented immunity decision, where the Roberts Court gave Donald Trump immunity from criminal prosecution for any of his so-called official acts, which included directing agencies like the Justice Department to do his bidding.
And so, up until now, what was left was this notion that if Congress created a board that specifically had limits on how a person could be removed from that board because of its regulatory function to implement congressional will to act in a legislative way, boards like the Federal Trade Commission or the National Labor Relations Board could not be swept of their members. But before this decision, through the machinations of John Roberts, in essence, Donald J. Trump was already exerting a power to fire anyone within the executive branch, whether they were on an independent board or not.
Krugman: The Consumer Financial Protection Bureau felt like it was a little bit different. It was basically Elizabeth Warren’s creation. It was a relatively new agency. But this now generalizes it to everything, and it goes back to the FTC, which is a very, very old institution and is where this whole Humphrey’s Executor comes from. So now that’s everything.
Graves: Yes, except for the Fed. That is correct. And I think, as you were describing it at the outset, Paul, this has enormous implications for the American people and American consumers, because, in essence, consolidating power in this way in a president is not required by the Constitution. Although Roberts is somehow claiming it is, it’s not. This is part of this invention of this so-called “structural Constitution” under this very rigid notion of separation of powers, which basically guts some of the core powers of Congress and vests those powers, in the views of this court, in the hands of the president and the president alone.
And this ignores the reality of what’s happening, which is that you have a president who’s not actually executing the laws passed by Congress; who’s thwarting those laws. When you look at Article One and Article Two of the Constitution, what you see is that the president’s primary job is “to faithfully execute the laws of the United States.” And what’s happening here is that the president is circumventing those laws, thwarting those laws, and doing so in ways that raise serious questions of corruption or potential corruption or undue influence.
And the area of trade and mergers is one of the most, you know, potentially profitable areas for people trying to curry favor with Donald Trump. And what we’ve seen over the past fifteen months is that the FTC under the control of two Trump loyalists has dismissed more than thirty-three investigations into mergers that were begun before Donald Trump took over.
Krugman: This is basically a Federalist Society thing, and when they began pushing this, they probably had in mind that we would be pursuing an ideological agenda, that this would be something that would allow a right wing president to essentially just overrule Congress when it was doing things that weren’t sufficiently right-wing, or weren’t sufficiently “Reaganesque,” since this goes way back to the 1980s. But now it’s very much personalist. We’re talking about this as what one guy gets to do, which might not even be ideological. As you say, it might just be corruption.
Graves: Yeah. I think it’s both, right? So there is this throughline from the Federalist Society that helped get these judges on the court. These six members were all either active members or noted to be members of the Federalist Society. They were part of the pipeline to power that the Federalist Society was created to accomplish. Roberts and Alito and the three Trump appointees, they were all appointed in the aftermath of the “No More Souter” campaign by Federalist Society activists who said they didn’t want judges who were going to follow the precedent. They wanted people who were going to basically be ringers and change the law to reverse the progress of the 20th century.
And this attack on what they call the administrative state is really an attack on expertise. It’s an attack on the ability of agencies to do the job Congress has entrusted them to do, which is to faithfully implement those laws in defense and in pursuit of the public interests of the American people. So you now have this convergence between a president who is so determined to take cash, in many ways, out of other people’s pockets, including the pockets of the taxpayers, in order to advance himself, to aggrandize himself. And this has come to a head at a time when the court has the majority. So this captured court has the majority it needs to accomplish its long-term ideological agenda.
And what a lot of people don’t realize is that when you look at the Supreme Court, this nine-member court, and the six members in the Republican-appointed majority, five of those six members were executive branch attorneys. They were people who cut their teeth for years in advancing presidential power, in trying to expand presidential power. And they’ve acted, I think, with a real arrogance toward congressional power, hostility toward congressional power, and with a bias toward their own long-standing agenda as lawyers, as Republican lawyers in this cause. And they’re moving forward even at a time when we have a president at the helm who is abusing his power almost on a daily basis in terms of asserting extraordinary king-like powers to do almost anything he wants.
Krugman: I would actually disagree with that. I don’t think it’s almost on a daily basis. I think it’s at least several times a day.
Graves: It’s an hourly basis, right? Yes. I’ll take that correction.
Krugman: But yeah. You say that these cases were not brought to try and stop corporations from doing stuff, but the ability to exercise the function of the FTC as a guardian of the public interest. But it’s also a negative power. You can imagine that a merger that the FTC would normally have blocked is allowed, but also one that it would normally have approved could be blocked if, you know, the corporation in question has not cut Jared Kushner in on the deal, basically.
Graves: Well, right. You know, I looked into those instances where you can see the list of the various mergers that the FTC has stepped away from investigating. And one of the things I saw was that before Trump’s appointees took office, there was a Joe Biden appointee—her name is Lina Khan. She’d been a vocal critic of Google and Amazon’s market powers. And what happened in one of these cases was that the FTC terminated the examination of one of Google’s acquisitions.
You had Google’s CEO at the inauguration last year, you had Google Alphabet giving like a million dollars to the inauguration committee. You have a tie-in on underwriting the Trump ballroom, and then you have an FTC that is not pursuing a further examination of that acquisition. Maybe it would have been approved with the full commission, maybe it wouldn’t have—we don’t know. But what we do know is that there are other ongoing investigations, perhaps around Facebook, for example. Maybe in their view or in someone’s view, Facebook hasn’t ponied up enough cash to get that dismissed. It creates this real environment of coercion and shakedowns, the perception that if you’re not playing ball with Trump, you’re going to be treated unfavorably. And in fact, he’s routinely threatened companies that he thinks aren’t sufficiently loyal to him.
Krugman: Yeah, I mean, it’s so raw and out in the open now. And by the way, Lina Khan is impressive as hell. I had a dialogue with her at the Graduate Center a few months ago, and she’s now advising Mamdani in New York. It’s just worth saying that a lot of the players in this have been around for a while and keep on showing up in different venues.
But the power to do favors is also the power to withhold favors. So this is, as you say, an enormous source of potential corruption. You also have to wonder, if you’re a business, do you even know what the ground rules are? That’s what I’m wondering about a lot now.
Graves: Well, you know, I think that that is a really good question. And it reminds me of this historical episode from that robber baron era when Teddy Roosevelt was president and the big companies—Standard Oil, for example, the mega-millionaires who would be billionaires today—were exerting such power over Congress that the smaller companies, the median-sized and smaller companies, were being shut out of the ability to really influence legislation. And that resulted in the Tillman Act, which is still on the books, that bars direct corporate contributions to a candidate. They get around that through PAC donations that are allowed, or through giving now to these C4 nonprofit groups.
But you know, since about 110 or 115 years ago, it has been banned for there to be direct corporate contributions because, at that time, other businesses who weren’t the super-bigs were feeling like they were getting the raw end of the deal. And so I think that’s probably repeating now, where there are smaller companies that can’t afford to make million-dollar donations to the inaugural committee or make tens of millions of dollars of secret donations to this ballroom boondoggle, who are going to be disadvantaged because they can’t potentially buy their way in to favorable treatment.
Krugman: Yeah. I mean, even big corporations who happen, for whatever reason, to be not sort of buddies. You know, it definitely looks like this administration has it in for Anthropic. I’m sure that they’re not angels, but this is still pretty amazing that this is one of the best AI out there, but they are not friends with the president and so they’re…
Graves: Right. And look what happened at TikTok. For quite a while there we were hearing all of these attacks on TikTok, concerns about security or security access through that app. And with the visit of one billionaire, Jeff Yass of Pennsylvania, who’s one of the fifteen richest billionaires in the world—who made part of his fortune on super-rapid trading, but another part of his fortune on an early investment in ByteDance, the owner of TikTok—with one visit to Mar-a-Lago by Jeff Yass, suddenly Donald Trump was singing a different tune about TikTok, and then ultimately intervened in a way that ended up giving some of his allies ownership in TikTok.
And so you have this real... I would say the most generous thing I could say would be it’s unseemly. I mean, it’s outrageous, actually, to have a president engaging in sort of corporate manipulation in this way to reward his friends and punish his enemies, as we’ve seen with Trump going after law firms, Trump going after universities, Trump assailing different corporations whom he dislikes or whom he considers not to have donated to him or advanced him. This is extraordinary in American history. I think it’s unprecedented, actually. Even with the corruption that was unfolding during that robber baron era, I think we’ve never seen anything like this kind of grift and graft.
And this corruption is inherently destabilizing to American society, to American business, to investments in the United States. If the U.S. becomes, as it is becoming, a society in which basically you have to engage in these sorts of legalized bribes—although I’m not sure how legal some of them may ultimately be—that changes the U.S. as a stable economic superpower.
Regardless of what a particular policy preference may or may not be at a given time, this is an extraordinary devolution of Americans’ role in both the U.S. economy and our role in the world—to have a situation where companies and countries have to pay up to a president or cut a deal with the president’s son-in-law or Howard Lutnick on minerals or what have you, or where someone can make a call to the Pentagon to get a special contract approved for Donald Trump’s sons. As you said, this is not just corruption on a daily basis. Whether it’s legally actionable—some of them may be, some of them may not be—but on a moral level, it’s corrupt on an hourly basis.
Krugman: Yeah, on average every hour now. So, you mentioned devaluing expertise. The role of experts in a lot of this stuff—I think part of the issue is whether there are sort of procedures for consulting experts on things that will now be by the chopping block. Is that right?
Graves: Yeah, I mean, that is part of a broader trend. It transcends the Slaughter case. But what we’ve seen is a real war on expertise. Certainly part of that was through the DOGE efforts of Musk, but those efforts, those firings of so many people, so many experts across the board in all these agencies, that has really decimated, not just the baseline of our skilled workforce in the federal government, but also demoralized the people who remain. And that’s across the board. That’s in areas of vaccines, it’s in public health, it’s in climate science, it’s in earth science, it’s in trade. It’s in all areas where we’ve probably cumulatively lost I don’t know how many thousands of years of expertise that the people actually invested in through paying these civil servants who were hired on a non-political basis, who were hired for their expertise to serve the American public. Whether it’s through the National Institutes of Health, or the FDA, or the U.S. Department of Agriculture, we’ve lost an enormous amount of expertise.
And we’ve also seen the ways in which this Roberts Court has not intervened to protect against those firings. You’ve had people who should never have been fired, and months and months later, some of them are reinstated. Meanwhile, they may have moved on to other jobs, they may not want to come back into the government. This loss of expertise is a disadvantage for we, the people of the United States, in terms of having people who are looking out for our interests based on years of work, as well as scientists who’ve been reliant at the universities on these grants and more.
This also is a real disadvantage for our national security, because it’s not just in U.S. civil society that we’ve seen these firings. We’ve seen people fired from the Pentagon who were, leading lights, people who had records of impeccable service to our country. We’ve seen that happening in the national security arena, in the intelligence community, where people who have deep expertise have been fired. We’ve seen that at the Justice Department where people who had expertise in anti-corruption, in enforcing DOJ’s rules to make sure that prosecutions weren’t politicized. We’ve seen the FBI firing people for just the act of doing their job to protect and investigate those who committed violent acts against our Capital Police officers. So this war on expertise, this war on civil servants, is deep and wide, and it is going to take a lot to repair.
Krugman: Yeah, my experience in dealing with higher-level civil servants has always been that we had far better people in those positions, in a sense, than we deserved. You had all of these people at Treasury or at agencies that I would deal with, who could have made two or three times as much money in the private sector, but they did what they did because they thought they were doing something meaningful. They felt that it was a better use of their lives. And now, even if you haven’t fired them, if you’re disrespecting them, we’re going to lose that.
Graves: Yeah, I mean, I have a bias on this because I was a career hire for the Justice Department and ultimately became Deputy Assistant Attorney General in the Office of Policy Development, the Office of Legal Policy. And I was there with other attorneys who could have been making three, four, five, six times as much in the private sector, but we were honored to be able to serve the American people.
And I felt, every time I walked into the Justice Department back then—this was in the Clinton administration with Ms. Reno as the attorney general—there was this engraving that said, “The place of justice is a hallowed place.” And I thought about it as a place where people set aside their partisan political views or their personal religion to do the work of the American people. And almost in every instance where I had the chance to work with someone across that agency and other agencies, I was so impressed with the devotion and intellect and wisdom of the people who had chosen public service as their career.
Krugman: Yeah. I mean, this was the Clinton administration, but you know, I had my year in government in the Reagan administration at sub-political level. But you know, the kind of deputy assistant secretary and office director level were astonishingly good people. Once in a while, you would get to see one of them lay down the law to the political appointee above them and say, “No, that’s not how it works.”
So, this is a long-term project, as you said—the unitary executive, the stripping away. Presumably, when John Roberts and his friends began this, they didn’t imagine that “the unitary executive” to whom they would give all this power would be—to use the technical term—a fuck-up like Donald Trump. I mean, I’m a little surprised that didn’t at least give them some pause here.
Graves: Yeah, it’s interesting. You’d think that they could slow things down for a moment given how reckless and destructive Donald Trump is, but they haven’t, right? This is not necessarily something they’re compelled to do. So, for example, Humphrey’s Executor has been on the books since the 1930s. They could easily have just said, “We affirm the lower court in Slaughter’s case and we affirm Humphrey’s Executor as still good law,” and just been done with the case. She would have been back on the commission months and months ago, maybe last summer. For Lisa Cook, you know, they sort of held that for a moment, held out this notion that they were going to allow her to remain, that they weren’t going to intervene on the Fed, but everything else was fair game.
This court is taking cases where it could easily just either affirm the ruling below or reverse it based on a citation of long-standing legal precedents, but it’s not. And what most people don’t know is that this Roberts Court is only hearing 60 to 70 cases a year. A couple of years back, the Supreme Court was hearing up to a hundred or more cases. In the 1980s, there were changes to the court’s jurisdiction to basically leave most of its jurisdiction discretionary. The court only has to take cases basically where there’s like a fight between Arizona and Colorado over the Colorado River—when there’s a fight between two states. Otherwise, every case they take is discretionary. They are choosing this docket.
They’re choosing, in Donald Trump’s term, to take up cases on the shadow docket where they ruled for him almost all the time—more than 90% of the time—and on the main docket, the docket that we’re seeing the decisions coming from now. Those are all cases where the Roberts Court has decided to have an oral argument and issue a decision, even where the long-standing precedent is against Trump’s actions.
And so I wish that they had some heartburn over it. They don’t seem to, though, because they could easily, in the Slaughter case, have said, “No, she has to go back on that commission under the long-standing precedent of Humphrey’s Executor.” And they chose not to do so. And they chose not to do so even as the Musk operation, the DOGE operation and more were decimating our agencies; as they were decimating—not the FTC in that particular sense because it was hitting all the agencies,—but they did so knowing who Trump is and knowing what he’s doing.
Krugman: And now they have to know him even more, right? In some sense, we are all in the reflecting pool, and yet they are giving him unbridled power. Just amazing.
Suppose that we actually do manage to have a genuine election in 2028 and the next president is a Democrat. What do you think this court does then?
Graves: Well, if the court were principled, and I don’t think it is, then it would, in essence, allow a Democratic Senate to confirm only Democratic appointees to those agencies and let them revise the rules and restore the statutory actions, the regulations that were stripped away by Trump. The reason I’m reluctant to believe that they will allow this to happen is how this court behaved toward Joe Biden and toward Barack Obama.
During the Biden administration, there was a very modest student debt relief proposal. It was, I think, about $10,000 for people who made just about the average income in the United States, and that was based on a law that allowed emergency debt relief. It was expressly allowed for emergency debt relief; we were in an emergency under COVID. People were losing their jobs or weren’t working as the economy was cascading, and that was the basis, the statutory basis, for Biden doing so.
But this Roberts Court asserted that Biden couldn’t do that, that this was a so-called “major questions doctrine,” and things like that had to go through Congress—that a president couldn’t just implement this through a regulation. And yet Donald Trump has done something far broader and deeper than that small, modest debt relief on a daily, if not weekly basis, and the court has barely breathed the words “major questions doctrine.”
And that so-called doctrine, which is really a theory, was invented to gut our power to mitigate climate change through the EPA. That was in a case that Charles Koch and his billionaire-funded groups brought—or basically aided—in the West Virginia v. EPA case, where the Roberts Court invented the notion that the EPA could not regulate carbon without specific congressional approval under the so-called major questions doctrine. And so, in that instance, what you had was again what I consider to be a modest effort to mitigate climate change by way of requiring utilities to invest more in solar and wind energy to help address the climate changes underway—not a radical cutting off of fossil fuels or anything, but just a transition.
Krugman: Right.
Graves: And that was blocked by the Roberts Court. So when it comes to a Democratic president, they seem very eager to block actions that are ameliorating or compromises. But when it comes to a Republican president, they seem very eager to do the opposite—to allow even some of the most radical actions to take hold and proceed while litigation goes forward, or even to authorize and give a blessing to those actions.
But there’s hope. Should I say there’s hope? There is hope. Can I tell you why I think that?
Krugman: Well, sure. What is the hope, actually? What does “Supreme Court Project 2029” look like? What do we do?
Graves: Look, this is a situation where we have not just executive branch aggrandizement, but we have judicial supremacy happening. We have a Roberts Court that is deciding that it is the decider—basically being the kingmaker for Donald Trump—but also the decider on almost any issue that they want to take up and issue a decree on. And that is disempowering to the American people, to representative government, to our democracy.
And so what we need to have is a really robust Congress. In my personal view, we need to elect people to Congress who are going to clean house, who are going to deal with this corruption in the near term, who are going to investigate this corruption and engage in oversight in ways that make it crystal clear to as many people as possible how this is not a tenable way to run a democracy, and then build on that to hopefully sweep into power real reformers in 2029. Like what happened with Franklin Delano Roosevelt, where you have a real surge in demand by the American people to clean things up and create policies that actually help the American people.
If we can move forward despite the threats this president is making with the aid of this court in terms of intervening in this midterm election with the map drawing, if the will of the people can prevail as you see it in the polls, then we have a real chance not just at a rebuke of this corruption, but actually of creating new ways to protect our interests and having an even more vigorous federal government that can help serve our needs. But that’s going to also require court reform to be part of it, because this court will strike down the same thing if it’s passed again unless we reform this court.
Krugman: Okay, but what does reform look like? Is it court packing? Is it something like that?
Graves: I think it’s all of the above. I think we have to have a real conversation about how we contain this out-of-control court. It could be expanding the court; there’s no number set in the Constitution. Nine isn’t the magic number. The Republicans were willing to have eight as long as it served them, you know, when they were blocking Barack Obama’s nominee.
I think we have to look at jurisdictional reform. Article III of the Constitution specifically allows Congress to set the jurisdiction of the Supreme Court—it’s in plain language there.
We certainly need ethics reform because the court has also been enveloped in a cloud of scandal over trips and kissing up to billionaires by Clarence Thomas and other members of that court.
And we also need to have a real sense of our power in the 21st century, the American people’s power, to have a people’s Congress that actually represents our interests and not just the interests of the richest few. Because of this Roberts Court in the Citizens United ruling, because of the concentration of wealth as Ronald Reagan sought to take down the progressive taxation of billionaires, we now have these billionaires who have so much money they can invest millions, hundreds of millions, in elections without missing a beat.
I did a calculation once, by the way, on Jeff Yass in terms of his spending in the Pennsylvania Supreme Court race. His spending, which was in the millions, was the equivalent of an ordinary Pennsylvanian buying a coffee and a bagel once a week. And that’s not just because they’re lucky and they’ve got money to invest in risk; it’s because the tax rate is so out of whack and has to be fixed as well.
Krugman: Okay, well, let’s hope for the best. But my god, that’s among the reasons not to celebrate the 250th anniversary as wholeheartedly as one might have liked. Thanks for talking to me, and especially on such short notice.
Graves: Gosh. Well, I will just say, you know, there still is a lot to celebrate, and we can set the course of the next 250 years if we don’t give up and we don’t give in.
Krugman: Okay. On that note, let’s press on with the fight we are in, as Lincoln would have said.
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