Supreme Court Justice Neil Gorsuch Cites FCC Chairman’s Jimmy Kimmel Criticism as Evidence of Agency Overreach

Neil Gorsuch Photo by Mario Tama/Getty Images Logo text

In a landmark ruling announced Monday morning, the U.S. Supreme Court overturned a landmark precedent known as Humphrey’s Executor, giving the President vastly more control an authority over federal agencies like the SEC, FTC and FCC.

The ruling, Trump v. Slaughter, was about an FTC commissioner, Rebecca Slaughter, who was terminated from her position by President Trump without cause. The court, in a 6-3 decision written by Chief Justice John Roberts (with the three Democratic appointees dissenting) ruled that the firing was legal, overturning the 91-year old precedent in the process.

The decision will inevitably have consequences for business in the media, entertainment technology space, with the FTC and FCC taking active roles in regulating those areas (not to mention the SEC, among other agencies).

But it is a concurring opinion by Justice Neil Gorsuch that may be of most interest to Hollywood: He cites FCC Chairman Brendan Carr’s public criticism of ABC late night host Jimmy Kimmel as evidence that the agency may have too much power, while warning of the “implications” of the decision.

Roberts does not delve much unto the FCC (aside from citing FCC v. Fox Television Stations, Inc.) but Gorsuch does, writing:

“Independent agencies today hold tremendous sway over the Nation’s affairs. They regulate our businesses, and our financial markets. They set the rules for the internet and airwaves. They decide how we light our homes, how we run our elections, and the manner of our employment. They determine what toys our children will play with, and how we interact with each other at work. And, as the dissent explains, so much more,” he writes. “Often, these agencies do all this with hardly any statutory guidance, based on broad grants of legislative authority.”

He proceeds to cite the SEC’s 2024 rules on climate disclosure, and the FTC’s attempt to ban non-compete clauses, before adding: “And then there’s late-night comedy.”

“Last year, taking objection to a network host’s on-air remarks, the Chairman of the FCC suggested there would be ‘additional work . . . ahead’ for the agency if broadcasting companies did not ‘find ways to . . . take action.’ The Benny Show, Sept. 17, 2025 (‘[W]e can do this the easy way or the hard way’).”

That was a reference, of course, to Carr’s threat to Kimmel last year, which sparked a brief ABC suspension.

ABC is currently fighting with the FCC over two separate issues: An investigation related to the agency’s equal opportunity rules, focused on The View, and a request to review its broadcast licenses, which came just a day after President Trump criticized Kimmel on social media. Carr said that the license renewal was “unrelated” to Kimmel, and was about Disney’s DEI policies, though the timing certainly raised eyebrows.

Gorsuch’s opinion may be a concurrence, not part of the majority opinion, but it does suggest that there are conservatives on the court who are skeptical of the FCC’s actions.

Though as Gorsuch also notes, with the power now more firmly in the President’s hands, the ruling will also raise new questions, and will likely require more action from Congress, or more clarifying decisions from the Court itself. And he once again appears to reference Disney and the FCC:

“The whole of the President’s authority also may be greater than the sum of its parts,” he writes. “It would be one thing if today’s decision afforded the White House more control over the airwaves. Or financial markets. Or energy. But Presidents now will enjoy waxing authority over all those areas and more.

“A business out of favor with the party in control of the White House might be able to stave off an FCC investigation,” he adds. “But can it survive a subsequent FTC rule declaring unlawful one of its longstanding trade practices? What about an in-house adjudication by OSHA? Or a prosecution for a new crime the SEC announces? Not to mention what these now-coordinated powers could do to disfavored individuals who lack the resources needed to fend off such attacks. It may be true that after today there is no more ‘fourth branch’ of government. But the fourth branch’s powers still exist; they have just been reassigned to the President.”