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Cooking Up A Blue Plate Special

A few miscellaneous points about one of the most unusual opinions of the term.

Josh Blackman | 7.31.2026 8:00 AM

I have an essay on Slaughter and Cook coming out in an online symposium from Law & Liberty. I found Cook to be one of the Chief's most unusual blue plate specials. It was so out of character from the Chief's usual writing style. Moreover, it is so strange to see the Chief respond to Justice Thomas's dissent, all in service of deciding an unnecessary constitutional law question. As I noted before, I think something happened behind the scenes.

Here are a few miscellaneous points that didn't fit into my (already-too-long) essay.

First, Chief Justice Roberts casually announced a principle of judicial supremacy using novel terminology:

Indeed, as a matter of vertical stare decisis, the lower courts have no choice but to follow our lead. When we define a term or establish a background rule, we need not repeat ourselves—once is enough.

The term "vertical stare decisis" has been used in several concurrences and dissents--Justice Kavanaugh has several of them. But the term has never appeared in a majority opinion to refer to the Supreme Court's supremacy. (I found one reference in a case involving vertical stare decisis between a district court and a circuit court.) Nothing in the Constitution requires lower courts to "follow our lead." Vasan Kesavan recently wrote a book-length law review article on the topic. But the Chief Justice pronounced that lower courts have no choice but to bend the knee. If only the Warren Court could have been so concise in Cooper v. Aaron in establishing the principle of judicial supremacy. Still, I don't think this line has gotten nearly enough attention. And it was certainly ignored by the federal judges in Boston and elsewhere who thought the Court's TPS ruling was optional.

Second, there was an important threshold question: did Cook have a cause of action to challenge the President's removal. Justice Thomas argued at some length that the federal courts lacked the authority to provide a remedy to Governor Cook. Justice Thomas points out that the majority fails to "identify[] a right of action . . . that overcomes sovereign immunity." Thomas observed........

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