3/ SG Sauer cited Reagan (1901) and Shurtleff (1903).
Justice Sotomayor suggests Sauer misinterpreted those cases and took them out of context. (They're not about removal for good cause).
Sotomayor is right.
See Manners's amicus passim, p. 2, 11-14...
4/ Manners Amicus at p. 11:
"This Court cited that proposition as a settled rule:
'where causes of removal are specified by constitution or statute, as also where the term of office is for a fixed period, notice and hearing are essential.' Reagan.
Two years later, the Court reaffirmed. Shurtleff"
6/ And my amicus on p. 16-17:
Quoting Chief Justice Fuller:
"Where causes of removal are specified [and] the term of office is for a fixed period, notice and hearing are essential.
If there were not, the appointing power could remove at pleasure..."
7/ Kavanaugh is hammering SG Sauer.
"What's the fear of more process here?"
At the same time, he gives a gratuitous endorsement of Scalia's lone dissent in Morrison ("always a good source of wisdom") which just shows how Kavanaugh has ignored the historical scholarship showing Scalia was wrong.
8/ Kavanaugh & Barrett sound opposed to Sauer.
Kavanaugh implies that presidents might use past conduct as a pretext. (!!!)
Barrett repeats: "What's the big deal if you give her notice and hearings?"
Even Alito & Thomas sounded skeptical of Sauer's arguments. It's too early to know, but...
2/ Oral argument is now focusing on statutory interpretation: if requirement of "good cause" also requires notice and hearings - which is the core of Manners and Menand's work.
Manners's amicus addresses this question: "Good cause" implied notice and hearings:
www.supremecourt.gov/DocketPDF/25...
The government is trying to say that Manners's brief is wrong. All I can say is that I tried to test her reading of the law of officeholding in the 19 ca. I made a big spreadsheet of cases trying to find anywhere where she was wrong. I gave up after a hundred. She just seems overwhelmingly right.
12/
Paul Clement (oral argument for Cook) is very very good at this job.
He has gravitas and command of the law and the history.
And he knows how to preview and layer back-up arguments along the way, while sticking to a main argument.
13/ Gorsuch doubts whether an officer can have a property interest in their office as a matter of original public meaning.
I guess my articles and amicus did not persuade him, but it is true: These types of protected offices were freehold property for centuries.
www.supremecourt.gov/DocketPDF/25...
14/ So it makes sense:
Clement is putting his emphasis on statutory interpretation (plus constitutional avoidance leaving the question of offices as property interest with due process protection for another day)
See my historical context for this argument here:
ndlawreview.org/venality-a-s...
15/ Now Paul Clement turns to the common law on what counts as "good cause," which is also in Manners brief and my brief:
Here's my table of contents and p. 10 on common law background
16/ My p. 11-12 on the common law standard:
English common law cases – the background for the Supreme Court precedents interpreting “cause” to require notice and hearings – clarified that the threshold for “cause” is high: not just minor violations, but only for offenses "so infamous a nature..."
17/
p. 13: Mansfield in Rex v. Richardson (1758), the most relevant common law case:
Mansfield set forth “infamy” and “unfitness” for any public office or a “breach” of duty as the three types of offenses that could justify removal from office.
Those 3 thresholds are high:
18/ Paul Clement is so good at this.
This audio of Clement (and the Cook briefs on a lightning docket) should be part of training & preparation for all oral arguments & appellate advocacy.
Outstanding work all around.
Cook will win.
The devil is still in the details for what constitutes cause...
19/ Clement wisely accepts what the majority wants to give him:
"I don't mean to denigrate other govt agencies, but the Fed is special & different b/c of monetary policy's sensitivity" (paraphrase)
But I must reiterate from my Slaughter amicus: There is no historical basis for this gerrymandering.
20/ Justice Jackson rightly goes back to defend the district court's approach on the high legal standards "for cause."
She notes the district court relied on MANY common law cases.
And Paul Clement runs with her invitation.
Great job re-focusing the argument, Justice Jackson and Paul Clement.
22/ I think it is ironic that Trump's "pretexts" were essentially "text" messages in Truth Social posts.
Poetic injustice:
Trump's texts are usually pretexts.
23/ Here's my prediction:
In less than 2 months, the Court will issue a short unanimous opinion -- possibly a short order per curiam (for the Court, unsigned) -- remanding the case to the district court on the merits w/o a lot of specifics.
I didn't see any consensus about what "for cause" means.
24/ The order would need to be short and vague, bc the 6 conservatives aren't likely agreeing on any standard at this stage.
They noted the emergency/lightning docket problem:
The courts below didn't have time to review historical evidence, and there is insufficient briefing at this stage.
25/ And Roberts would not want to invite critical concurrences from the right.
I assume Kagan/Jackson/Sotomayor will write a concurrence emphasizing the high threshold for "cause" at this stage and the importance of agency independence, no matter what the 6 conservatives write.
