Supreme Court justices – liberal and conservative alike – largely expressed skepticism during oral arguments Wednesday over President Donald Trump’s attempt to fire Federal Reserve Gov. Lisa Cook.
One major point of contention in the two-hour hearing is whether Trump gave Cook sufficient notice of her dismissal.
The president demanded that Cook resign in an Aug. 20 post on Truth Social, in which he linked to a story on a Justice Department probe into mortgage fraud allegations against the Fed governor.
Five days later, Trump posted a letter to social media, saying he was firing Cook “effective immediately.”
Solicitor General John Sauer, arguing for Trump, told the Supreme Court in September that the firing came after Cook “declined to bring any defense to the President’s attention or to dispute any material facts.”
“She was supposed to post about it and that was the opportunity to be heard that you’re saying was afforded to her in this case?” Justice Ketanji Brown Jackson, a Democratic appointee, asked Sauer on Wednesday.
Justice Amy Coney Barrett, a Republican appointee, asked why Trump didn’t offer Cook a hearing, saying it “wouldn’t be that big a deal” to lay out the alleged evidence and hear her response.
“If there isn’t anything to fear from a hearing, and if you have the evidence, why couldn’t those resources have been put into a hearing?” she asked Sauer.
Cook’s lawyer, Paul Clement, did not argue Wednesday whether a social post amounted to “notice,” rather calling the Trump administration’s process “fundamentally defective notice,” because it showed “indisputable evidence that the president prejudged the matter.”
Justice Samuel Alito, a Republican appointee, asked Clement what due process would look like for Cook, whose removal must meet a “for-cause” standard but for whom no appeals process is mentioned in the Federal Reserve Act.
“One is notice,” Clement said, adding that Cook would have benefited from being given a forum with an impartial third party. “The second is an opportunity to provide evidence to the decision maker, and we don’t think that happened here. And then the third thing is some effort to keep the final decision maker from prejudging the issue.”
Cook’s lawyers on Wednesday reiterated their stance that Trump’s given “cause” for her dismissal is a “pretext” because she has historically disagreed with Trump’s unrelenting push for lower interest rates.
Cook issued a statement after Wednesday’s hearing, saying her case was “about whether the Federal Reserve will set key interest rates guided by evidence and independent judgment or will succumb to political pressure.”
Justice Brett Kavanaugh, a Republican appointee, touched on the potentially monolithic standard that allowing Trump to fire Cook would set.
“Your position that there’s no judicial review, no process required, no remedy available, very low bar for cause – that the president alone determines – that would weaken, if not shatter, the independence of the Federal Reserve,” Kavanaugh said Wednesday.
The Supreme Court in May exempted the Fed from a case that allowed Trump to fire officials at the National Labor Relations Board and the Merit Systems Protection Board.
Kavanaugh cautioned Wednesday that allowing Cook’s dismissal would beget retribution.
“Once these tools are unleashed, they are used by both sides, and usually more the second time around,” Kavanaugh said, adding that such a precedent may “incentivize” presidents to “come up” with “trivial or inconsequential or old allegations that are very difficult to disprove.”
“We have to be aware of what we’re doing and the consequences of your position for the structure of the government,” he said.
The Supreme Court is set to rule on the matter by July.
