What’s that I perceive, glimmering faintly in the smoldering ashes of a republic we couldn’t keep after all? Is that barely perceptible glint the rule of law?

I’m not optimistic about the future of American democracy, but hope floats. On Wednesday, the Supreme Court declined to endorse Donald Trump’s effort to immediately fire Lisa Cook from the Fed Board.

Following Trump’s attempt to oust her in August, Cook secured a reprieve from a US district court which allowed her to carry on in her capacity as a Fed governor, including casting a vote on monetary policy at the September FOMC meeting. Trump asked John Roberts to stay the D.C. Circuit Court injunction, setting up a high-stakes test of the Court’s unofficial, recently-established “Fed exception” which ostensibly insulates both the Fed Board and the FOMC more generally from the sort of ad hoc, at-will dismissals the Justices countenanced in May.

As discussed here on September 18, Trump’s appeal to Roberts set up yet another potential subversion of process (and, in Cook’s case, of due process). The White House is, in the eyes of some critics anyway, colluding with the conservative majority to leverage the shadow docket in the service of granting Trump the powers of an autocrat. It’s a kind of appeasement, and it was used to green-light firings of two independent agency officials earlier this year.

In that May ruling, the Court used contorted logic to get around the assertion that permitting the dismissals put the Fed at risk. The fact that it took Trump less than five months to challenge that logic speaks to the inherent peril of appeasement as a strategy.

The administration’s emergency request seeking the Court’s blessing to sideline Cook until her lawsuit against Trump works its way through the courts was an absolutely critical test of Roberts’s commitment to preserving whatever’s left of America’s checks and balances. Had the Court stayed the injunction which allowed Cook to keep her job pending resolution of the case, it would’ve arguably opened the door for Trump to remove Jerome Powell assuming he (Trump) could conjure something even remotely resembling “cause.”

Remember: Cook wasn’t charged with a crime. Indeed, the mortgage fraud allegations weren’t even couched in unequivocal terms. When Trump tried to fire her, the excuse was that based on documents unearthed by FHFA chief Bill Pulte, Cook might’ve committed fraud. The mere possibility that she did constituted “cause” for her removal, Trump said, at least on an interim basis.

That’s a very dangerous precedent to set. A lot of people “might’ve” done a lot of things. If everyone who can only be fired permanently “for cause” can be removed provisionally by Trump for everything they “might’ve” done, and if those removals stand unless and until the affected individuals can prove they didn’t do what Trump says they might’ve, well then we’re operating on a de facto guilty until proven innocent system.

Mercifully, Roberts drew a line at the Fed on Wednesday. Here it is:

WEDNESDAY, OCTOBER 1, 2025

ORDER IN PENDING CASE

25A312

TRUMP, PRESIDENT OF U.S., ET AL. V. COOK, LISA D.

The application for stay presented to The Chief Justice and by him referred to the Court is deferred pending oral argument in January 2026. The Clerk is directed to establish a briefing schedule for amici curiae and any supplemental briefs responding to amici.

So, Trump’s going to have to make the case. The Court wants to hear from both sides at oral arguments early next year. There will be no shadow docket, “emergency” end-around. Not this time. Not for this.

My guess is this was a way for the conservative majority to avoid the bad optics that would’ve accompanied a decision to effectively overturn their own Fed exception established a mere four months ago. I suspect they’re still more than willing to let Cook’s firing go ahead, but the problem for Trump now is that she has three months to prepare. And it still isn’t completely clear that she did in fact commit fraud.

In addition, Cook’s lawyers will have that time to gather more in the way of support for their position that firing a Fed governor for anything other than egregious, unequivocal misconduct committed contemporaneous with her position on the Board is a very dangerous step down a very slippery slope. Cook’s legal team will doubtlessly point to the Fed exception in Wilcox while making their case.

I’d be remiss not to note that Elena Kagan can be thanked for preempting what might’ve otherwise gone “wrong way” with this ruling. In May, she sarcastically lauded her conservative colleagues for the Fed exception writing, in her Wilcox dissent,

The majority closes today’s order by stating, out of the blue, that it has no bearing on ‘the constitutionality of for-cause removal protections’ for members of the Federal Reserve Board or Open Market Committee. I am glad to hear it, and do not doubt the majority’s intention to avoid imperiling the Fed.

Hat tip to Justice Kagan. She saw it coming.