No Touch Money

Making Sense of the Supreme Court

“The executive of the modern State is but a committee for managing the common affairs of the whole bourgeoisie,” thundered the prophet Marx in 1848. The Supreme Court of the United States in 2026—or at least its conservative justices—says “Amen.” How else can one possibly reconcile the decisions handed down yesterday—Trump v. Slaughter and Trump v. Cook?

Slaughter overturns nearly one hundred years of precedent, beginning in Humphrey’s Executor, which prevented the president from arbitrarily removing commissioners of the Federal Trade Commission. The reasoning goes that by preventing the president from firing members of the Departments, it would threaten the “unity of the executive,” which is what they say the Founders wanted. But in Cook, the same court, the same justices, discover an exception! The president cannot remove a member of the Federal Reserve Board without establishing cause. What’s the difference? Well, the Fed is special. Again, they return to the Founding to justify this: “The United States has a long tradition of independent central banking. The Nation’s first de facto central bank, the Bank of North America, predates even our Constitution.” (I think the word they really want is “precedes,” which establishes priority in a deeper sense.)

I quote Roberts’s decision:

The protection from removal enjoyed by Governors of the Federal Reserve is consistent with the Constitution. The Founders knew from experience the calamities that could arise from even the “suspicion” of political manipulation of monetary policy. Report on a National Bank (Dec. 13, 1790), in 7 Papers of Alexander Hamilton 305, 331. So when they established the First Bank of the United States, they guaranteed its independence from Presidential control, and their successors did the same for the Second Bank. That enabled both banks to serve as the “great regulating wheel” of the early American financial system. E. Lomazoff, Reconstructing the National Bank Controversy 53. The Federal Reserve follows in this tradition, with a similar degree of independence from Presidential control. What matters is that the Federal Reserve remains consistent with the principles that underpin the First and Second Banks—namely, that monetary policy should not be subject to political interference. In the Court’s view, the Federal Reserve maintains the balance struck by the founding generation under modern circumstances.

The “Founders” didn’t even agree that such a Bank was permissible under our system. It was Alexander Hamilton’s baby, who, in this regard, turns out to be the only Founder that matters. Thomas Jefferson and James Madison both believed it was a gross violation of the Constitution. Andrew Jackson militated against its return as the Second Bank. The First Bank of the United States and the Second Bank together lasted around 40 years, less than half the time that the Humphrey’s Executor precedent stood, but for some reason, it forms an inviolable “tradition.” You could just as well say the real, old American tradition is abolishing the thing.

Kavanaugh’s concurrence reveals the real reason, which is not one of constitutional law:

Even temporary uncertainty about the status of the Federal Reserve could spark political upheaval, including confusion about whether the President could immediately remove multiple Governors at will, as well as turmoil in the U. S. and world economies. I would not go down that road. I would not risk destabilizing the U. S. economy just so that we can further mull over an issue that, in various permutations, we have been thinking about for many years. As the Court’s opinion explains and the Government agrees, the Federal Reserve occupies a unique role in the U. S. Government and maintains critical responsibility for the stability and success of the U. S. and world economies.

Okay, so in other words, messing around with the money supply would throw the capitalist system into chaos. And that’s the one thing you cannot do. “Touchez pas au grisbi.” As Marx wrote in Capital, the money market — credit and banking — is where individual capitals are stripped of their particular forms and pooled into “the common capital of a whole class.” It is where they cease to confront one another as competitors and stand instead as a single concentrated mass, fronted by the bankers as what Marx calls “the representatives of social capital”—capital’s nearest approach, within capitalism, to a perverse socialism of its own. And because the apparatus exists to hold the common interest of the class above the appetite of any single capitalist, it cannot be captured by one fraction without imperiling the operation of the whole.

A little intellectual parlor game I like to play when this sort of stuff happens so explicitly is “Miliband or Poulantzas?” This refers to the great debate between the two principal Marxian state theorists: Ralph Miliband and Nicos Poulantzas. Very quickly, Miliband—father of Ed and David, if you want a piece of trivia—believed representatives of the capitalist class actually staffed the state; Poulantzas believed the state was essentially a structural function of the capitalist system, it acts as a guarantor, and its actual personnel did not matter as such. For Poulantzas, to behave as such a guarantor of capital, “a regulating factor of its global equilibrium”—a pretty close translation of exactly what Kavanaugh is calling—the state must have “relative autonomy,” that is to say, it cannot be captured by this or that capitalist, whose particular competitive needs would disrupt the overall functioning of the system.

The “corruption” of Supreme Court Justices—the friendliness with businessmen, receiving gifts from them, etc.—seems to recommend Miliband; they are part of the capitalist class writ large, but the clear referee role in these rulings, keeping the state structure intact, really looks much more Poulantzian to me. What we are seeing then is the Supreme Court decreeing how the “committee for the common affairs of the whole bourgeoisie” is to be constituted: it can be captured by quasi-criminal elements, manipulated by petty businessmen seeking a quick buck from fat government contracts, it can be used to line the pockets of cronies, and to practice increasingly outrageous forms of open corruption—but only up to a point. Just don’t mess with the program.