Legal Theory Blog

Introduction

Today, June 29, 2026, the United States Supreme Court decided two removal-power cases. Chief Justice Roberts wrote the majority opinions and there were several concurrences and dissents. Trump v. Slaughter held that the FTC’s for-cause removal protection is incompatible with Article II and overruled what remained of Humphrey’s Executor. Trump v. Cook declined to disturb the for-cause protection enjoyed by Governors of the Federal Reserve and left a District Court injunction against Lisa Cook’s removal in place.

In this Legal Theory Blog post, I will be analyzing the role that constitutional theory played in each case on the basis of the evidence provided by the votes of and opinions written by the Justices. Even in a longish blog post, my analysis will necessarily simplify many complexities. Moreover, I am working fast—too fast for my own good. Undoubtedly there will be errors and omissions. Please accept my apologies in advance and my confession that I am simply not capable of getting everything right in a few hours given all of the complexities that attend an undertaking of this scope.

Two theories frame the analysis. Originalism holds that the meaning of the constitutional text was fixed when it was ratified and that this original meaning is binding on interpreters today; in its dominant form it locates that meaning in the communicative content of the text, established through evidence of founding-era usage and, secondarily, through early historical practice. Constitutional pluralism holds that constitutional questions are properly resolved by appeal to several distinct modalities of argument — text, historical practice, precedent, constitutional structure and values, and institutional capacities — with no one modality lexically prior to the others. The practical difference is decisive: because pluralism permits the modalities to be weighed against one another, and does not fix in advance which one governs, the choice of modality can determine the result, and for that reason, constitutional pluralists can reach opposing conclusions—even when they agree about the way each individual modality points.

Enough throat clearing. Let’s get to the substance!

Superficially, Roberts’s two majority opinions might be read as inconsistent in two ways. Doctrinally, Roberts reaches two different conclusions on the question whether Congress may insulate the heads of a multimember agency from at-will Presidential removal. And at the level of constitutional theory, it might appear that Roberts was an originalist in Slaughter but a constitutional pluralist in Cook. But surface appearances can be deceiving. And Chief Justice Roberts has eight colleagues, all of whose views must be considered in order to reach conclusions about the role of constitutional theory in Slaughter and Cook. This post will attempt to provide a preliminary assessment of the role that constitutional theory played in the removal cases by examining all nine Justices. The discussion will proceed Justice by Justice at the top level, with each Justice’s opinions in Slaughter and Cook analyzed for their constitutional theory content.

Justice Roberts

Slaughter

On a surface level, Roberts’s majority opinion in Slaughter is originalist. Its holding seems to rest on a textual-structural inference from Article II’s Vesting Clause and Take Care Clause — the executive power is vested in one President, who must therefore be able to remove those who exercise it. Of course, some originalist reasoning does not by itself establish that an opinion is genuinely originalist. Constitutional pluralism has a textualist modality, and an opinion that rests on that modality can appear originalist — just as an opinion that rests solely on precedent can appear to be an instantiation of common law constitutionalism. But in Slaughter, Roberts leans heavily on text to overcome both precedent (Humphrey’s Executor) and substantial historical practice in the form of many statutes imposing for-cause removal limitations. That reliance is what makes the opinion originalist in form: it weights the textualist modality above the others, even though Roberts does not commit himself to the strong originalist premise that the original public meaning of the text is binding unless a limited and exceptional defeasibility condition obtains.

But there is another test for originalism: does the opinion conscientiously engage the relevant evidence of original meaning? Or does it merely pay lip service to the evidence, with some other factor — constitutional values or ideological preferences — driving the result? How does Roberts’s Slaughter opinion fare on this measure?

On this second test, the Slaughter majority receives a very mixed grade, certainly not an “A”. The opinion does not simply assert that the Vesting Clause settles the question; it builds the textual inference structurally, reading “[t]he executive Power” in Article II, Section 1 together with the Take Care Clause and the constitutional choice of a unitary rather than a plural executive. It then marshals founding-era evidence to fix the public meaning of that structure: the Convention’s rejection of a multimember executive as “the foetus of monarchy,” Hamilton’s account in Federalist Nos. 70 and 72 of subordinate officers as “assistants or deputies” subject to the President’s “superintendence,” and — most importantly — the Decision of 1789, which the opinion treats as a “regular course of practice” that “liquidate[d] & settle[d]” the removal power in Madison’s sense. This is engagement with original meaning, not mere lip service. Evidence from the constitutional record is offered to establish what the text meant when ratified, and the opinion’s reading of the Decision of 1789 is doing evidentiary work as well.

But a full assessment of the quality of the originalist reasoning in Roberts’s majority opinion requires an examination of two distinct kinds of evidence that are relevant. The first is direct evidence of communicative content: historical linguistics, including period dictionaries and evidence of founding-era usage, which fixes what the words of the text — here, “[t]he executive Power” and “vested” — actually meant to competent speakers at ratification. The second is early historical practice, which supplies secondary evidence of meaning: the decisions of the First Congress, the conduct of early administrations, and the liquidation of indeterminate text through a settled course of practice. The first kind tells us what the text said; the second tells us how those closest to the founding understood and applied it. A conscientiously originalist opinion will draw on both, and will weigh the evidence that cuts against its result as carefully as the evidence that supports it. Roberts’s Slaughter opinion draws on the second kind of evidence but not the first, and it draws on the second selectively.

Begin with historical linguistics. Roberts does not analyze the communicative content of the Vesting Clause at all. There is no founding-era dictionary, no evidence of how “executive Power” or “vest” was used in 1788, no corpus evidence, no parsing of the operative words against contemporaneous usage. The clause is quoted and its force asserted, but the meaning of its terms is treated as self-evident rather than analyzed and demonstrated by consideration of the evidence. This is a real gap for an opinion that presents itself as resting on text, because the question of communicative content — whether “the executive Power” was understood at ratification to carry an illimitable removal authority that Congress could not modify — is exactly the question on which the dissent and the recent scholarship join issue. The majority does not establish the original meaning of the text; it infers a structure from the choice of a unitary executive and then treats that structure as though it were the text’s demonstrated meaning. On the pluralism taxonomy, that is structural inference, not the textualist modality grounded in evidence of communicative content. Whatever else the Slaughter majority is, it is not an exercise in historical-linguistic originalism, because it never does the linguistic work.

What Roberts does engage is the second kind of evidence: early historical practice, and chiefly the Decision of 1789, which the opinion treats as a “regular course of practice” that “liquidate[d] & settle[d]” the removal power in Madison’s sense, confirmed by Myers and the early administrations. This is legitimate originalist evidence — liquidation is a recognized mechanism for settling indeterminate text — but the engagement is asymmetric. The opinion reads the 1789 episode as decisively settling at-will removal, while the revisionist scholarship reads the same episode as equivocal: Shugerman’s work on the “indecisions” of 1789 and on strategic ambiguity, Prakash’s reassessment, and the broader literature arguing that the First Congress rejected a congressional role in removal without resolving whether Congress could impose for-cause limits. Roberts does not grapple with that scholarship, nor with the founding-era practice running the other way — the Sinking Fund Commission, the fixed-term tenures that were understood to preclude removal, the early independent bodies catalogued in the dissent. The contrary historical practice of the nineteenth and twentieth centuries — the long line of for-cause commissions from the Interstate Commerce Commission forward — is not weighed as evidence of meaning at all but subordinated, reconceived as a century of constitutional error rather than as practice bearing on what the text permits. So even on the one kind of original-meaning evidence the opinion does engage, it engages the supporting instances while all but ignoring the contrary evidence. In sum, a careful reading of the opinion suggests that it has originalist elements but that it is far from clear that the reasoning is truly originalist. Put another way, the opinion does not live up to the demands of a rigorous originalist methodology.

Cook

Doubts about an originalist reading of Roberts’s opinion in Slaughter are confirmed by his opinion in Cook. If Roberts were truly an original-public-meaning originalist, the same Vesting Clause reasoning that doomed the FTC’s removal protection should have doomed the Federal Reserve’s. The executive power is vested in one President; the Board of Governors exercises executive power; the for-cause protection therefore impairs the President’s removal authority in precisely the way Slaughter held impermissible. That is exactly the syllogism Justice Thomas presses in dissent, and if Thomas is correct about the original meaning, his critique would require an answer from a Justice who is truly committed to originalism. Yet Roberts upholds the Fed’s protection. The interesting question is not whether the two results can be reconciled at the level of outcome — they can, if the Fed is special — but how Roberts reasons his way to the carve-out, because the reasoning reveals the true role that originalism played in Slaughter.

Roberts does not derive the Fed’s exemption from the communicative content of Article II. He derives it from history used in a particular way. The constitutional holding rests on the Fed’s “unique historical status and role” — the tradition of independent central banking running from the Bank of North America through the First and Second Banks — and on the institutional rationale, drawn from Hamilton and the amici, that monetary policy must be insulated from the suspicion of political manipulation. The decisive move is the invocation of Rahimi: the Court looks to history “not as an end in itself” but to give “essential content to undefined provisions in the frame of our government,” quoting Frankfurter’s Youngstown concurrence, and asks whether the Fed “remains consistent with the principles that underpin” the First and Second Banks under “modern circumstances.” Roberts expressly declines to leave the central bank “trapped in amber.” This is the principles-and-tradition method, and it is not originalism. Original-public-meaning originalism treats history as evidence of meaning fixed at ratification; the principles-and-tradition method treats history as a source of governing principles that the Court then translates forward to circumstances the founders did not confront. The Cook majority does the latter openly. Its load-bearing modalities are historical practice and institutional capacities — two of the modalities the pluralist deploys — with the Article II text treated as an “undefined provision” requiring content the Court supplies by translation rather than recovery.

A defender of Roberts might resist this characterization by arguing that the carve-out is itself originalist: the question, on this view, is the historical-fact question whether the First and Second Banks of the United States exercised executive power, and if they did not, the Fed inherits a founding-era pedigree that genuinely distinguishes it from the FTC on original-meaning grounds. The trouble is that this is not the argument Roberts makes, and it is not an argument the opinion could sustain. Thomas’s dissent presses precisely the historical point — that the First and Second Banks “possessed no sovereign power,” did not regulate other banks or set monetary policy, and were defended by Hamilton as essentially private corporations “resembl[ing] the rules of a private mercantile partnership” — and on that historical record the modern Fed is not the descendant of the early Banks but a categorically different institution, a regulatory agency wielding executive power the Banks never held. Roberts does not refute this. He concedes that the Fed is “more powerful than its predecessors” and that it exercises executive power, and he upholds the protection anyway. That concession is fatal to the originalist reading of the carve-out. If the early Banks exercised no executive power, then they supply no original-meaning warrant for shielding an institution that does; the analogy holds only at the level of principle — independence from political control over monetary functions — and not at the level of communicative content or institutional identity. Roberts’s own framing confirms this. He does not claim the Fed wields no executive power, as Humphrey’s Executor once claimed of the FTC; he claims the Fed “remains consistent with the principles that underpin” the Banks. The shift from “exercises no executive power” to “consistent with the underlying principles” is the shift from an original-meaning inquiry to a principles-and-tradition inquiry. The carve-out survives only on the latter, which is to say it survives only as pluralism.

What changes between Slaughter and Cook is not the text but the institution, and the institution changes the result only because the operative method is one that lets institutional considerations select the governing modality. In Slaughter the structural-textual modality is allowed to carry the day and the for-cause protection falls; in Cook the historical-practice and institutional-capacities modalities are allowed to carry the day and the protection survives. Nothing in the text dictates which modality governs. Instead, Roberts selects the governing modality, and he selects it on grounds — the Fed’s distinctive function, the stability of the financial system — that are pluralist, not originalist ones. The conclusion, then, is not that Roberts is an originalist in Slaughter and a pluralist in Cook. It is that Roberts is a constitutional pluralist in both, whose pluralism in Slaughter happened to elevate a textual-structural modality congenial to the unitary-executive result, and whose pluralism in Cook elevates the traditionary and institutional modalities needed to spare the Fed. The originalist idiom of Slaughter was idiom. Cook is where the method shows itself, because in Cook the originalist result was available — Thomas lays it out — and Roberts declined it in favor of translated tradition.

Justice Thomas

As is frequently the case, Justice Thomas is the most consistently originalist Justice in theory, if not always in practice. He wrote in Cook but not in Slaughter, where he joined all but Part III–B of Roberts’s opinion — the part in which Roberts attempted to distinguish the Federal Reserve from the FTC.

Thomas’s dissenting opinion in Cook is clearly originalist in form. Thomas’s dissent is grounded in the communicative content of the Vesting Clause: “Under our Constitution,” Thomas writes, quoting Seila Law, “the ‘executive Power’ — all of it — is ‘vested in a President.’” From that premise the syllogism is mechanical. The Board “unquestionably exercises executive power, and must therefore be controlled by the Chief Executive, in whom such power is vested”; “[s]ubordinates who exercise the President’s power are subject to removal by him”; and so “the President may remove Cook for any reason that he wants and by any procedure that he wants.” The principle “admits no exceptions.” The form of reasoning is clearly originalist, but does Justice Thomas fare better than Justice Roberts with respect to his consideration of the relevant evidence of original meaning?

Begin, as with Roberts, with historical linguistics. Here Thomas fares no better. His Article II argument never investigates the communicative content of “the executive Power” as it would have been understood in 1788. There is no founding-era dictionary, no usage evidence, no parsing of the operative words. What he offers instead is a chain of citations to recent decisions: the Vesting Clause is quoted through Seila Law, the “admits no exceptions” principle through Slaughter and Free Enterprise Fund, the conclusion that the Board “unquestionably exercises executive power” through Slaughter again. This is precedent reciting precedent — the meaning of the text is taken as settled by the Court’s recent removal cases rather than demonstrated from founding-era materials. On the first category of original-meaning evidence, Thomas’s opinion is originalist in form but no more rigorous than Roberts’s; both assert the meaning of the Vesting Clause, and neither does the linguistic work that would establish it.

On the second category — early historical practice — Thomas does considerably more, but the work is of a particular kind and is selective in a way that mirrors Roberts’s own selectivity. Thomas marshals a detailed institutional history to show that the modern Fed is not the heir of the early Banks: the First and Second Banks “possessed no sovereign power,” were defended by Hamilton as institutions that would “essentially resemble the rules of a private mercantile partnership,” and did not set monetary policy or regulate other banks; the Federal Reserve, by contrast, was modeled on the German Reichsbank and conceived by Wilson and Warburg as the “second independent regulatory commission” in American history, “a novel federal agency with broad powers affecting the entire banking and currency system.” This is genuine historical engagement, and it is the most thorough source-work in either Cook opinion. But notice what kind of evidence it is. It is practice evidence about the character of an institution, deployed to defeat the majority’s analogy — not evidence bearing on the communicative content of the Vesting Clause or on the original understanding of the removal power. And on the practice evidence that does bear on removal, Thomas is as selective as Roberts. He does not engage the founding-era record running against the unitary-executive premise — the Sinking Fund Commission, the fixed-term tenures understood to preclude removal, the contested reading of the Decision of 1789 — all of which Justice Sotomayor marshals at length in Slaughter. Thomas reckons fully with the bank history that defeats the majority’s analogy and not at all with the removal history that would complicate his own premise.

The result is a notable symmetry between the Chief Justice and his most originalist colleague. Thomas’s opinion is unmistakably originalist in form — fixed meaning, mechanical syllogism, history used to fix rather than to translate — and that form is the genuine article against which Roberts’s opinion can be measured. But on the evidence of original meaning, Thomas does not clearly outperform Roberts. He does no historical-linguistic work, resting the communicative content of the text on recent precedent; and his rich historical engagement runs to institutional character rather than to the original meaning of the removal power, while the contrary practice evidence goes unaddressed. Thomas is the better originalist in method, and the more rigorous historian of the banks. He is not, on this record, a markedly more conscientious originalist about the meaning of the constitutional text. That convergence is itself a datum: it suggests that the removal jurisprudence has reached a point where even its most committed originalist proceeds largely by precedent and structural inference, with founding-era evidence entering chiefly where it helps and exiting where it does not.

Justice Alito

Justice Alito, who joined the Slaughter majority and dissented in Cook (joined by Justice Gorsuch), sits largely off the originalism-pluralism axis, and that is the point of his opinion. His Cook dissent is not an argument about the original meaning of the removal power or about the balance of modalities that should resolve it. It is an argument about judicial role: that the Court should not have reached a series of “complicated and novel” questions — the substance of the “for cause” standard, the availability of an implied right of action, the scope of review, the propriety of interim reinstatement, and above all the constitutionality of the Federal Reserve’s removal protection — on an interim stay posture, with a record barely three weeks developed when the application arrived. He would have decided only the two questions the courts below actually passed on and left the rest for the ordinary course of litigation. “We are a court of review, not of first view,” he writes, quoting Cutter, and the Court “has strayed far from that oft-repeated maxim here.”

The methodology on display is therefore prudential rather than originalist or pluralist in the sense those terms carry here. Alito’s load-bearing commitment is to the discipline of deciding no more than the posture requires — of letting questions ripen in the lower courts before the Court resolves them, and of preferring a light touch on the emergency docket to a comprehensive opinion at this juncture. This is a methodology about when the Court should theorize, not about how.

As for his join of the Slaughter majority, it tells us little about his own theoretical commitments. He wrote nothing separately there and signed the opinion in full, which records his agreement with the result but supplies no independent window into how he himself weights the modalities. On the evidence of these two cases, Alito’s distinctive contribution is the prudential one; his substantive constitutional theory remains, for present purposes, largely unexpressed.

Justice Sotomayor

Justice Sotomayor, writing in dissent in Slaughter and joined by Justices Kagan and Jackson, is clearly relying on constitutional pluralism. She does not resist the majority by championing a rival single modality; she engages the full range of them and declines to treat any one as lexically prior to the others. Text is part of her case, not absent from it: she argues that the Constitution is “silent with respect to the power of removal,” that the only explicit removal provision is the Impeachment Clause (a congressional power), and that the Take Care Clause “speaks of duty, not power” and so cannot bear the weight the majority places on it. She marshals historical practice in two registers — the founding-era bodies that enjoyed independence (the Sinking Fund Commission, the Bank directors, fixed-term tenures understood to preclude removal) and the unbroken post-1887 line from the Interstate Commerce Commission through the Federal Reserve and the FTC — and theorizes practice itself as a modality entitled to “great weight” when “deliberately established,” invoking McCulloch and Noel Canning. She rests heavily on precedent, arguing that Humphrey’s Executor, reaffirmed across Wiener, Morrison, Bowsher, and Seila Law, should have made this “a profoundly easy case.” And she supplies the constitutional values the majority subordinates — continuity, stability, impartial administration, the anti-monarchical concern — drawing on Story, Webster, and the Federalist as the normative weights in the balance. No single one of these is claimed to be dispositive; the argument is their convergence. That is constitutional pluralism in the Bobbitt-Fallon sense: the dissent invokes text along with the other modalities as constitutional pluralism suggests is proper.

Measured by the same two categories of original-meaning evidence applied to Roberts and Thomas, Sotomayor’s dissent is, somewhat against expectation, the more thorough — even though pluralism, not originalism, is her method. The qualification is important, and it sharpens the comparison rather than softening it. On the first category, historical linguistics in the strict sense — founding-era dictionaries, corpus evidence, documented patterns of usage establishing what “the executive Power” or “vest” meant as words to competent speakers in 1788 — Sotomayor does no more than the others. None of the Justices does this work in Slaughter or Cook.

Where Sotomayor does engage the evidence of original meaning in depth is on the adjacent body of evidence that bears on original meaning without being linguistic: background legal understandings and pre-ratification practice. She engages the English and pre-ratification baseline the majority neglects — that Parliament could restrict the Crown’s removal of even high royal officers, and that States with vesting clauses like the Constitution’s allowed legislative limits on gubernatorial removal — and she reads the Take Care and Vesting Clauses against the founding-era understanding rather than asserting their meaning. Where Roberts and Thomas quote the Vesting Clause through recent precedent, Sotomayor reaches behind the precedent to that understanding and to the post-Seila Law scholarship reconstructing it: Bamzai and Prakash on the executive power of removal, Manners and Menand on fixed-term tenure, Shugerman on the indecisions of 1789 and the misuse of ratification-era sources, Chabot on the unitary executive, and the faithful-execution literature. On the second category, early historical practice, she is likewise the most complete, treating both the founding-era record and the long subsequent practice as evidence of meaning and as a liquidation running against the majority.

There is an irony here: the avowedly pluralist dissent engages the evidence of original meaning — the background-understanding and practice evidence, if not the strict linguistic evidence no one offers — more conscientiously than either opinion that claims an originalist mantle. Nonetheless it is clear that Sotomayor is no originalist. Her load-bearing modalities remain historical practice and precedent — strike the 140 years of practice and the Humphrey’s line and it is no longer clear that the dissent’s result follows.

Sotomayor did not write separately in Cook; she joined the majority. That silent join is fully consistent with her pluralism and quietly confirms it. The modalities she could not make prevail in Slaughter — historical practice, precedent, the institutional case for independence — are the very modalities the Cook majority relies on to spare the Federal Reserve. The pluralist who lost on practice-and-precedent on Monday’s FTC prevailed on practice-and-precedent on Monday’s Fed, in an opinion written by the author of the Slaughter majority. For Sotomayor there is no inconsistency to explain: a pluralist can lose when text is elevated and win when tradition is, because nothing in her method demands that one modality always govern. The inconsistency, such as it is, belongs to the Justices who profess that text always governs and then, in Cook, let tradition govern instead.

Justice Kagan

Justice Kagan wrote separately in neither case. She joined Justice Sotomayor’s Slaughter dissent in full and the Cook majority, and the join is itself informative: a Justice as protective of her own methodological commitments as Kagan, and as willing to write to register a difference, evidently found nothing in Sotomayor’s pluralist opinion to object to. Her silence is therefore not the absence of a position but the endorsement of one. On the evidence of these two cases, Kagan is a constitutional pluralist of the same stripe as Sotomayor, and her Cook join carries the same significance: the modalities she could not make prevail against the FTC she helped make prevail for the Federal Reserve.

Justice Gorsuch

Justice Gorsuch joined the Slaughter majority in full and wrote a concurrence, and joined Justice Alito’s dissent in Cook. His Slaughter concurrence is the most ambitious separate writing in either case, and it is not really an opinion about the FTC at all. Accepting the Court’s holding that the President must be able to remove principal officers who exercise executive power, Gorsuch writes to argue that the decision is only a first step. Congress delegated vast legislative and judicial power to independent agencies, he contends, on the assumption that their leaders would be insulated from removal; now that the insulation is gone, those delegated powers have effectively passed to the President, and the Court must “finish the journey” by reviving the nondelegation doctrine, enforcing the major questions doctrine, and restoring Article III and Seventh Amendment limits on agency adjudication. The body of the concurrence is an intellectual history of the administrative state’s Wilsonian and Progressive origins — Woodrow Wilson, James Landis, the Prussian model of unified administrative power — offered to show that the modern agency was conceived in tension with the Constitution’s three-branch design and the anti-accumulation principle of Federalist No. 47.

Measured by the two categories of original-meaning evidence, Gorsuch’s concurrence does even less than the majority it joins, and for a discernible reason: its project is architectural rather than interpretive. On the first category, historical linguistics, there is nothing — no engagement with the communicative content of any clause, no founding-era usage, no semantic inquiry. On the second category, early historical practice, there is also very little; the founding-era sources that appear, chiefly Federalist No. 47 and Madison’s “chain of dependence,” are deployed as structural axioms rather than as evidence of how any provision was understood or applied at the founding. The load-bearing modality is constitutional structure — the separation of powers treated as a freestanding architecture from which conclusions are deduced — reinforced by a normative history of how that architecture was departed from. This is a recognizably originalist sensibility in its conclusions, but it is structural inference and intellectual history rather than original-meaning interpretation, and the evidence categories that test the latter do not really bite on it. Gorsuch is the Term’s clearest structuralist: where Thomas fixes meaning and Sotomayor balances modalities, Gorsuch reasons from the design of the whole to the powers of the parts, and uses the history of the administrative state less as evidence than as a cautionary narrative.

Gorsuch’s join of Alito’s Cook dissent tells us little to add. It places him with the prudential rather than the originalist wing of the Cook dissenters — he signed Alito’s scope-and-posture objection, not Thomas’s merits originalism — but because Alito’s dissent declines to reach the removal merits, the join carries no separate signal about how Gorsuch would resolve the Federal Reserve question. What the two cases together show is a Justice whose constitutional theory is structural and prospective: in Slaughter he looks past the holding to the architecture he wants rebuilt, and in Cook he joins the opinion that declines to build anything yet.

Justice Kavanaugh

Justice Kavanaugh joined the Slaughter majority and joined the Cook majority in full, writing a short concurrence in Cook to emphasize two points. The first is prudential: the interim ruling does not decide whether the President may ultimately remove Cook for cause, which will turn on facts not yet found. The second is the one that matters for constitutional theory. Kavanaugh writes to insist that the Court was right not to leave open whether the Federal Reserve can remain independent after Slaughter, and his ground for sparing the Fed is openly the modality the Slaughter majority subordinated. “Most importantly for constitutional purposes,” he writes, “the Federal Reserve follows in a distinct historical tradition of central bank independence that has long coexisted with Article II,” and “[t]hat history of course carries great weight in Article II cases” — citing the Frankfurter and Jackson concurrences in Youngstown. He adds an institutional-stability rationale: leaving the question open would invite “turmoil in the U. S. and world economies,” and he “would not risk destabilizing the U. S. economy” to mull the issue further.

By the two categories of original-meaning evidence, Kavanaugh’s concurrence offers little, and offers nothing originalist. There is no historical-linguistic work and no inquiry into founding-era understanding; the “history” he invokes is the institutional tradition of central-bank independence and the Government’s own litigation concession that the Fed stands “in the distinct historical tradition of the First and Second Banks.” His load-bearing modalities are historical practice and precedent, expressly identified as such and expressly given “great weight,” and they are harnessed to an institutional-capacities rationale about the stability of monetary policy. This is constitutional pluralism in nearly undiluted form — practice and precedent, weighted by institutional consequence, with the Article II text doing none of the work. Where Roberts reaches the same destination through the Rahimi translation of tradition into principle, Kavanaugh dispenses with even that machinery and rests directly on the weight of settled practice.

His join of the Slaughter majority, considered alone, tells us little; he wrote nothing there. But the pairing is telling. The same Justice silently joined the text-driven opinion that struck the FTC’s protection and then wrote separately to ground the Fed’s protection in historical practice and precedent, “great weight” and all — without a word acknowledging that the modality he elevates in Cook is the one he helped subordinate in Slaughter. He is a pluralist when the institution is the Federal Reserve. Whether he is anything else when the institution is the FTC, his silence in Slaughter does not say.

Justice Barrett

Justice Barrett joined the Slaughter majority and dissented in Cook. Her dissent is, in the first instance, a scope objection of the same family as Alito’s, and she aligns with him explicitly. The constitutional status of the Federal Reserve, she observes, was expressly waived — the Government’s application stated that it “does not contest the constitutionality of the Federal Reserve Board’s for-cause removal provision” — and was never briefed, so the Court should not have reached it: “We ordinarily do not jump ahead of the lower courts to decide waived issues.” On her view the Court “chooses to go big” where “a modest approach would have been appropriate,” settling a series of consequential questions an interim posture did not require it to settle. To this she adds a technical objection to the disposition — that the injunction as written bars removal for the mortgage-fraud grounds altogether, so the majority’s “try again” off-ramp is illusory and the stay should have been granted.

What makes Barrett’s dissent significant for constitutional theory is not the scope objection but the methodological critique nested inside it, because she is the one Justice who names, from the bench, the tension between the methods of the two cases. Even assuming the majority is right on the merits, she writes, its holding is “in serious tension with Slaughter.” Slaughter “announces a categorical rule: Whenever ‘an agency “executes” a congressional mandate against private parties, it exercises executive power’ and must be subject to plenary executive control — ‘no ifs, ands, or quasis about it.’” “Yet here, the Court claims a special exception ‘sanctioned by history.’” Then the central question, put by a member of the Cook dissent: “How can history support both a categorical rule and a carveout?” She drives the point with the unanswered follow-ons — whether all the Fed’s existing powers connect to monetary policy, whether the others are “grandfathered in,” whether the Fed is “unique” or whether “history sanction[s] other exceptions too” — and concludes that “[t]he Court does not say.” Tellingly, she cites Justice Sotomayor’s Slaughter dissent at the pivot, a cross-bloc citation that confirms the critique is methodological rather than partisan: the objection is that the Court has used tradition to defeat the FTC and to spare the Fed in the same Term, and has not explained how the same modality yields opposite results.

This is a pluralism-internal critique, and it is the sharpest statement of the tension between the two decisions that appears anywhere in either case, because it comes from a Justice who joined the Slaughter majority and is therefore charging the method she helped deploy with incoherence. Two things follow. First, whether the critique ultimately lands — whether the Fed genuinely is distinguishable or whether the carveout is, as Barrett suspects, unprincipled — is a question I leave open here; what matters is that the tension is real enough to draw the objection from inside the majority coalition. Second, Barrett’s own methodology is harder to fix from these two cases than the critique might suggest. She joined the text-driven Slaughter majority without separate writing and dissents in Cook primarily on scope, so her affirmative commitments remain mostly implicit. What the dissent does reveal is a demand for methodological consistency: a Justice who will hold the Court to account when a single modality is made to produce a categorical rule in one case and a carveout in the next. That demand is itself a third-order position — a meta-level insistence that the method, whatever it is, be applied evenhandedly — even where the first-order method goes unstated.

Justice Jackson

Justice Jackson joined Justice Sotomayor’s Slaughter dissent in full and joined the Cook majority, writing separately in Cook to make a narrower point: that the stay application “could be resolved by evaluating the equities alone.” She agrees with the Court that the Government’s merits arguments are unlikely to succeed — that is why she joins the majority — but her own opinion rests on the stay factors rather than the constitutional question, and her treatment of those factors is where her contribution lies. The Government, she argues, identifies no irreparable harm beyond the bare claim that the President is injured whenever a Governor exercises power “over [his] objection,” which is “just another species of the far-fetched contention that the President [is] injured whenever he is prevented from doing as he wishes.” And the public interest, she contends, runs decisively the other way.

Her public-interest analysis is the methodological core, and it is built almost entirely from institutional capacities. Drawing on the amici briefs of former Treasury Secretaries and former government officials, Jackson argues that “effective monetary policy requires a commitment” to “long-term goals of price stability and steady growth” that are not served when monetary officials are “subject to the whims of politicians,” and that “even the mere perception of partisan influence” over the Federal Reserve can trigger “high inflation, price variability, and, ultimately, financial panic.” This is a functional argument about what the institution is for and what it requires to perform its role — the institutional-capacities modality in its purest form. By the two categories of original-meaning evidence the concurrence offers nothing, and is not trying to: there is no historical-linguistic work and no inquiry into founding-era understanding, because Jackson’s case is prudential and institutional rather than interpretive. Her load-bearing modalities are equity and institutional function, deployed to show that the balance of harms and the public interest forbid the stay regardless of how the deeper constitutional question is ultimately resolved.

Taken together with her full join of the Slaughter dissent, Jackson’s position completes the pluralist bloc. Where Sotomayor leads with historical practice and precedent and Kagan signs that account in silence, Jackson adds the equitable and institutional register — the same family of non-textual modalities, emphasized differently. And her pattern across the two cases mirrors the others’ in the bloc: a Justice who dissented when text was made load-bearing against the FTC and concurred when institutional function and equity were allowed to spare the Fed. For Jackson, as for the rest of the bloc, there is no inconsistency to reconcile, because her method never claimed that text must always govern. The strain falls only on those who did.

The Tally

It is useful to collect the foregoing assessments in a single table. Each Justice is characterized, on the evidence of these two cases alone, as primarily originalist, primarily a constitutional pluralist, or uncertain—the last category reserved for Justices whose opinions do not supply enough to fix a method on the originalism-pluralism axis.

Justice	Classification	Basis in these two cases
Roberts	Primarily constitutional pluralist	Originalist idiom in Slaughter, principles-and-tradition pluralism in Cook; the governing modality shifts with the institution, and text is never independently load-bearing across both.
Thomas	Primarily originalist	Fixed-meaning Vesting Clause syllogism; history used to fix meaning rather than translate it; reaches the constitutional question the Government waived.
Alito	Uncertain	Silent join in Slaughter; the Cook dissent is prudential (scope and posture) and does not reach the removal merits.
Sotomayor	Primarily constitutional pluralist	Engages four or more modalities with none lexically prior; concedes textual underdetermination; the Term’s paradigm pluralist.
Kagan	Primarily constitutional pluralist	Joined Sotomayor’s dissent in full and the Cook majority; silence reads as endorsement of the pluralist account.
Gorsuch	Uncertain	The Slaughter concurrence is structural and prospective; does no original-meaning evidence work yet reaches originalist conclusions.
Kavanaugh	Primarily constitutional pluralist	The Cook concurrence rests openly on practice and precedent given “great weight,” harnessed to institutional stability; the Slaughter join is silent.
Barrett	Uncertain	Silent join in Slaughter; the Cook dissent is mainly scope-based; affirmative method implicit, though she demands methodological consistency across the two cases.
Jackson	Primarily constitutional pluralist	Institutional-capacities and equity in Cook; joined Sotomayor’s dissent in full.

The tally yields a striking result. Of the nine Justices, exactly one—Thomas—is primarily an originalist if evaluated on the evidence of these two cases alone. Five—Roberts, Sotomayor, Kagan, Kavanaugh, and Jackson—are primarily constitutional pluralists in these two cases. The remaining three—Alito, Gorsuch, and Barrett—are uncertain on the evidence of these two cases, though for different reasons: Alito and Barrett wrote primarily about the scope of interim-docket decisionmaking and left their substantive method largely unexpressed, while Gorsuch wrote at length but in a structural register that the originalism-pluralism axis does not cleanly capture. That “uncertain” coding should not be mistaken for a finding that these Justices are not originalists. Nothing Gorsuch or Barrett did in either Slaughter or Cook is inconsistent with the originalist commitments their prior opinions and public statements express; the removal cases simply did not turn on the original-meaning work that would have put those commitments on display. Alito, for his part, has long described himself as a practical originalist who, like Justice Scalia, departs from original meaning for pragmatic reasons in particular cases—so a prudential opinion in Cook is no evidence against his prior commitment to “practical originalism” either.

Let me be clear. I am not making claims about originalism on the current Court in general; nor do the classifications the table above represent my views about the overall theoretical orientation of the individual Justices. Instead, my conclusions are about how the Justices behaved in two cases. As an empiricist might put it, there would be a small N problem if one were trying to extrapolate overall conclusions about the Justices’s behavior in all cases from such a limited data set.

Conclusion

A great deal will be written about Slaughter and Cook. Prediction is perilous, but I would guess that much of it will characterize Slaughter as an originalist decision and then charge the Justices who joined both the majority in Slaughter and the majority in Cook with selective originalism — with invoking the fixed meaning of Article II to strike the FTC’s protection and then abandoning it, days later, to spare the Federal Reserve. The charge has surface appeal, and Justice Barrett, from within the majority coalition, lodges a version of it when she asks how history can support “both a categorical rule and a carveout.”

But that reading is not borne out by what the Justices actually did. The premise of the selective-originalism charge is that Slaughter was an originalist decision — that its majority reasoned from the fixed communicative content of the constitutional text. It did not. As the analysis above shows, no opinion in either case does the historical-linguistic work that originalism in its dominant form requires; the Slaughter majority rests on structural inference and a selective reading of early practice, dressed in originalist idiom but not executed as originalism. Only one Justice — Thomas — reasons as a genuine originalist across these cases, fixing the meaning of the Vesting Clause and following it to its conclusion even where the Government declined to ask. The three Slaughter dissenters are avowed pluralists, and they prevail in Cook on the very modalities they could not make prevail against the FTC.

So the inconsistency the selective-originalism charge depends upon largely dissolves once we go beneath the surface and look at what each Justice actually said or did in each case. One cannot be a selective originalist without first being an originalist, and on the evidence of these two cases all but one of the Justices in the relevant majorities were something else in these two cases. The Chief Justice did not switch from originalism to pluralism between Monday’s two opinions; he was a pluralist in both, and the appearance of a switch is an artifact of mistaking inconsistent use of an originalist idiom for actual commitment to originalist method. The accurate account is not that the Court betrayed originalism in Cook but that it was never doing originalism in either. What looks like selective originalism is better understood as consistent pluralism, in which the load-bearing modality is selected case by case and the Justices are doing the selecting. Of course, this kind of selectivity is baked into constitutional pluralism. The theoretical structure of pluralism would have been consistent with any plausible outcome in either Slaughter or Cook and with dozens of radically different opinions justifying those outcomes.

Another test of originalism is on the horizon—perhaps as soon as tomorrow. As the birthright-citizenship case in Trump v. Barbara comes down, the question to carry forward is whether the same pattern holds: whether the Justices who present as originalists do the original-meaning work there that they did not do here, and whether a majority of the Court employs constitutional pluralism rather than originalism. If Barbara follows the pattern of Slaughter and Cook, the lesson of this Term may well be that the Court’s movement towards originalism is incremental and incomplete at best. If Barbara reveals an originalist majority that was concealed by the complexities of the removal cases, then the lesson may be that originalism on the Court is moving forward in decisive ways—even if that involves both fits and starts.

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