Clarence Thomas Clerk Warns of Supreme Court’s Concerning Agenda

A former law clerk to Justice Clarence Thomas has raised concerns regarding the Supreme Court’s trajectory. In a recent essay for the NYU Law Democracy Project, Professor Caleb Nelson expressed that the Court’s constitutional interpretations are leaning toward a dangerously pro-president stance.

Concerns About Supreme Court’s Agenda

Nelson, who teaches at the University of Virginia School of Law, emphasized that the Constitution affords Congress considerable discretion in regulating the executive branch. He argues that this includes authority over limiting the president’s power, particularly regarding the removal of government officials. Such interpretations, he warns, could undermine democratic norms if misused by a vengeful president.

Upcoming Case: FTC Leadership

• In September, the Supreme Court granted a 6–3 emergency order permitting President Donald Trump to remove Rebecca Kelly Slaughter from her role at the Federal Trade Commission (FTC).
• Slaughter, who had served since 2018, contends her dismissal violated established Supreme Court precedents.
• The Court is set to hear arguments regarding this case in December, potentially reconsidering a 1935 precedent that restricts the president’s ability to remove independent agency heads.

Nelson noted that while Article II of the Constitution vests executive power in the president, it also establishes that Congress creates offices within the executive branch. He argues the president does not possess unilateral authority to appoint or remove officials at will.

Legal Community’s Reaction

The legal community has reacted strongly to Nelson’s essay. William Baude, a constitutional law scholar, labeled it a “bombshell,” given Nelson’s status as a leading originalist scholar.

Nelson’s interpretations have influenced numerous Supreme Court decisions. Notably, Justice Thomas has cited Nelson’s work multiple times in recent opinions, indicating the impact of his views on the Court’s direction.

The Unitary Executive Theory

Central to this discussion is the “unitary executive theory.” This theory posits that the president possesses total control over executive power, including the ability to dismiss officials at will. Nelson challenges this interpretation, arguing that it grants excessive power to the presidency.

As articulated by Nelson, “If the President must have complete control over executive powers, then his authority expands tremendously.” He cautions that a future president with harmful intentions could exploit such a broad interpretation, potentially causing irreparable damage to democratic institutions.

Future Implications

Nelson concludes with a stark warning about the future of the Supreme Court’s decisions. He notes that while the current Justices might view their interpretations as timeless, the integrity of democratic institutions relies on responsible use of power.

As the Court prepares to address significant cases, including the FTC leadership dispute, the implications of its decisions could reverberate for years, affecting the balance of power within the executive branch.