Advisory Opinions Podcast: "Slaughter at SCOTUS: Reaganite Ends by Roosevelt Means"

Hosts: Sarah Isgur & David French
Guest: Adam White (AEI, George Mason Center for the Study of the Administrative State)
Date: December 8, 2025

Episode Overview

This episode offers a deep-dive analysis of the Supreme Court oral arguments in the highly anticipated "Slaughter" case, focusing on the future of the administrative state, the legacy of Humphrey’s Executor, and the doctrines surrounding executive power and agency independence. The hosts, joined by expert Adam White and live reporting from Amy Howe, also discuss recent Supreme Court developments, including a cert grant on birthright citizenship and a decision in a Texas redistricting case.

Main Discussion: The "Slaughter" Oral Argument

Setting the Stage

• This is part three in a miniseries on the administrative state.
• Previous episodes covered high-level theories (with Adam White) and precedents (Myers, Humphrey’s Executor, Seila Law).
• Today’s episode is a real-time reaction and breakdown of the SCOTUS arguments in the Slaughter case, with a focus on surprising moments, justice alignments, and constitutional theory.

Key Takeaways from Oral Argument

Overall Tone and Approach

• Staid and Sleepy Argument:

  • The argument was unexpectedly subdued, especially given the case's high stakes for the future of the administrative state.
  • “This felt, dare I say, a little sleepy.” — Sarah Isgur (03:58)
  • Even Supreme Court superfan David French’s "attention wandered" at times, citing the repetitive focus on slippery slopes rather than fireworks or big philosophical debate. (04:21)

• Format and Conduct:

  • The session ran over two hours, which Amy Howe described as excessive for the content at hand.
  • “It felt like an argument they could have done in about an hour instead of two and a half hours.” — Amy Howe (06:33)

Major Themes and Justice Perspectives

Slippery Slope Arguments Dominate

• Justices explored the consequences of both expanding and restricting presidential removal power.
• Memorable Moment:
  • “A lot of this was Slippery Slope v Slippery Slope.” — David French (04:21)
  • Justice Gorsuch emphasized "jamming these branches back into their boxes," echoing arguments for a more robust separation of powers. (04:45)

Justice-by-Justice Breakdown on Humphrey’s Executor

• Three Buckets Identified (around 10:00):

  1. Defenders of Humphrey’s Executor: Justices Kagan, Sotomayor, Jackson
  2. YOLO (Overturners): Gorsuch, Thomas, possibly Alito (“Humphrey's Executor is basically irredeemable in the eyes of Gorsuch, Thomas, probably Alito.” — Adam White, 12:03)
  3. The “Narrow Path” Group: Kavanaugh, Barrett, Chief Justice Roberts (possibly Alito) — likely to uphold Trump’s firing without sweeping away all precedent.

• Possible fracture instead of a clear 6–3 split, especially depending on Roberts’ and Barrett’s positions.

Questions on the Current FTC

• Adam White was “surprised by the dog that didn’t bark,” noting little discussion about whether the current FTC fits within the historical scope of Humphrey’s Executor, leaving open the question of whether a narrow decision is possible without overruling precedent (03:01).

Remedy: Reinstatement

• Briefly discussed as a second, less important question (19:36).
• Unclear how the court will handle reinstatement/remedy, potentially an early sign of which way the decision will go.

History and Originalism

• The justices struggled with how to weigh 19th and 20th-century precedent against founding-era understandings.

• Barrett raised "liquidation": once a governmental principle has been “liquidated” (established), can it later be “unliquidated” by future generations? (27:54)

• French emphasized that while the modern administrative state is not strictly 100 years old, post-Nixon developments dramatically increased the power of executive agencies (29:27).

"Bundle of Sticks," Nondelegation, and Major Questions

• Significant debate about whether removing one legislative or executive “stick” (like for-cause removal or legislative veto) leaves behind something Congress never intended.
• Sarah’s NYT argument (endorsed by Gorsuch in argument): Strengthening the unitary executive means there must be stricter checks on what powers agencies can wield (major questions doctrine as a “unitary legislative doctrine”) (35:57, 38:51).
• “If you’re going to do unitary executive, you have to do non-delegation…” — Sarah Isgur (38:23)

Quotable Moments

• “I was surprised by the dog that didn’t bark, to be honest.” — Adam White (03:01)
• “There were times when my attention wandered. … A lot of this was Slippery Slope v Slippery Slope.” — David French (04:21)
• “Barrett … referred to Humphreys as a precedent that’s been eroded over time.” — Adam White (12:03)
• “The past is too much a foreign country on these things.” — Adam White, on originalist analogies (35:57)
• “What was intended here … was, we’re giving you something, but we’re keeping some of our own oversight.” — David French (40:36)
• “If we grant this power, how extravagant is this going to be versus if we don’t…?” — David French, on the Justices’ hypotheticals (04:32)
• “Reaganite ends by Roosevelt means.” — Adam White (33:26)
  (Sarah Isgur: “That should be the title of this podcast.” 33:26)

Deep Dive: Administrative State – Constitutional Stakes

The Realignment of Left and Right

• Political Identity and the Administrative State:

  • Adam White and Sarah Isgur probe why modern progressives defend agency independence, despite FDR’s own preference for presidential control.
  • Progressives see agencies as expert, impartial actors (a fantasy, says French); conservatives push for tighter presidential (and public) accountability, but are wary of unchecked administrative power.

• Expertise vs. Political Accountability:

  • "The status quo is not technocratic apolitical expertise. No... What we've got to focus on is constitutional structure." — David French (47:52)

Live Color from the Court

Amy Howe’s Courthouse Insights (06:11+)

• Oral argument was long and sometimes frantic, with several justices angling to ask questions at the same time.
• Even in high-stakes cases, there’s an emphasis on formality and proximity: “what always strikes me is how close that arguing lawyer is to the justices…” (19:08)

Notable Segments & Timestamps

• Big Picture on Arguments (03:01–05:56)
• Who’s in What Camp? (10:00–14:24)
• Originalism v. Modern Practice (27:34–35:57)
• Bundle of Sticks / Legislative Veto (35:57–42:32)
• Political and Legal Realignment (43:04–47:52)
• Birthright Citizenship Cert Grant Intro (53:10)
• Texas Redistricting Decision Discussion (60:36)
• Memorable Quotes & Color (Throughout; see above for specifics)

Sidebar: Other Major SCOTUS Developments

1. Birthright Citizenship Cert Grant (53:10–59:47)

• Enormous political and legal stakes: “I think you’re right that this is the most politically and morally salient case the court has heard since Dobbs.” — Adam White (54:11)
• Discussion on whether the Court could rule narrowly ("naw dog" it) and punt the constitutional issue in favor of a statutory reading.
• David French raises the comparative importance of Wong Kim Ark (1898): “How does that land in text, history and tradition land would be a very interesting question if we're going to be ... fleshing out history and tradition as an element of the Court's jurisprudence.” (57:44)

2. Texas Redistricting (60:36–72:08)

• Court keeps the 2025 maps in place for 2026 midterms (6–3):
  • The decision is more substantive than a simple procedural (Purcell) punt.
  • “Texas is likely to succeed on the merits of its claim that the district court committed at least two serious errors.” — Court order read by Sarah Isgur (62:09)
  • Dissent (per Kagan): “We are a higher court than the district court, but we are not a better one when it comes to making such a fact based decision.” (68:30)
• Broader implications: Ongoing tension between Supreme Court and lower courts on fact vs. law, judicial oversight, and gerrymandering standards.

Thematic Wrap-up

• The episode illustrates the enduring tension in administrative law: how to balance expertise and accountability, independence and presidential control, and the practical consequences of jettisoning or preserving precedent.
• The justices’ struggles—along with the hosts’ predictions—suggest a possible fractured ruling that threads the needle between formal originalism and modern governmental realities (“zombie precedent”?).

Next Episode Teasers

• The team will tackle other recently argued cases, including Oliver v. City of Brandon (challenging repeat criminal offenses) and NRSC v. FEC (party contribution limits).

Summary Table of Important Segments

| Topic | Timestamp(s) | Main Points | |-----------------------------------|--------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------| | Administrative State/Slaughter | 01:18–53:10 | Argument tone, predictions on Humphrey’s Executor, originalism vs. modern precedent, separation of powers and major questions doctrine. | | Amy Howe Courtroom Insights | 05:56–19:36 | Practicalities of SCOTUS hearings, live color, justices' question habits. | | Birthright Citizenship Cert Grant | 53:10–59:47 | Major political/stakes, possibility for a narrow ruling, comparison to Wong Kim Ark. | | Texas Redistricting Decision | 60:36–72:08 | Court’s substantive reasoning, dissent on factual findings, implications for federal redistricting oversight, Supreme Court–district court relationship, concurrence. |

Final Thoughts

Adam White’s summary of it all (33:26):
“This is all executive power. … Reaganite ends by Roosevelt means.”

David French on idealism v. reality in agency law (47:38):
“These fantasy land idealized versions of what federal agencies are—strip them from your mind, please.”

For the next episode: Expect more "advisory opinion–weedy" content including criminal constitutional challenges and campaign finance law battles.

This summary skips ads, promos, and non-content interludes, focusing on the core legal and political analysis provided by the hosts and their expert guest.