Could the showdown between President Trump and Jack Smith lead to the overturning of Morrison v. Olson? That is the case that gave the imprimatur of the high court to an independent counsel, which overlaps with the issues as the 11th Appeals Circuit gets ready to review Attorney General Garland’s appointment of the Special Counsel. Justice Antonin Scalia’s lone dissent in Morrison could be tomorrow’s majority.  

The thing to remember about Morrison is that Congress and the public eventually came over to Justice Scalia’s side when they let the statute at issue lapse in 1999. How sage it would be for the Supreme Court to address this fact plainly in the current case. For what so worried Scalia then — the infringement of separated powers — is a concern today. Judge Aileen Cannon’s decision disqualifying Mr. Smith in the Mar-a-Lago prosecution could bring this to a head.

The action at the moment is in the south. Trump’s argument for why Judge Cannon was right is due to the 11th Circuit on Friday. He will urge the circuit riders to affirm her finding that Mr. Garland’s appointment of Mr. Smith lacked statutory authority. Judge Cannon wrote that Mr. Smith’s hiring “effectively usurps …  important legislative authority … in the process threatening the structural liberty inherent in the separation of powers.”

No matter which party prevails in the 11th Circuit, an appeal could be possible — though toppling Morrison is not strictly necessary for deciding this case. Judge Cannon’s decision applies only in her district, and only to Mr. Smith. Still, as our A.R. Hoffman reports, some sages have laid the groundwork for a challenge to the precedent by raising it before Judge Cannon. Justice Clarence Thomas appears to share her skepticism of the special counsel.

The key document is an amicus brief bolstering Judge Cannon. It was written by scholars Joshua Blackman and Robert Sasso on behalf of another sage, Seth Barrett Tillman, the onetime Whitewater prosecutor Robert Ray, and the Landmark Legal Foundation. In a nod to Scalia’s language, they declare that “the Special Counsel, like the Independent Counsel, still comes as a wolf.” The Supreme Court can take up issues raised by amici.

What a boost for the presidency it would be for the Nine to pick up Scalia’s banner. Mr. Blackman tells Mr. Hoffman that Morrison trails only Roe v. Wade and Chevron U.S.A., Inc. v. Natural Resources Defense Council in the pantheon of erroneous rulings. The Roberts court has banished those to the legal dustbin. Now, there are some stirrings from the justices — a possible faction, if not yet a majority — that augur a revisiting of precedent. 

Those hints came during oral arguments in Mr. Smith’s other case. Justice Brett Kavanaugh ventured that “one of the Court’s biggest mistakes was Morrison v. Olson.” He called it a “terrible decision for the presidency and for the country.” He worried that the prosecution of former presidents is “not going to stop.” That could in turn impair what Scalia called the “boldness of the president.” Might other justices join Justices Kavanaugh and Thomas?

The most daring part of Judge Cannon’s démarche is her reading of another Supreme Court precedent, United States v. Nixon. In 1974, a unanimous court ruled in respect of the appointment of Leon Jaworski as special prosecutor that attorneys general have the authority to appoint subordinate prosecutors. She found that conclusion to be dictum, or “not binding precedent.” The justices could agree — or also overrule Nixon, in addition to Morrison.

Morrison, of course, may stand. Today’s special counsels are not as autonomous as yesterday’s independent counsels, mitigating Scalia’s concerns. Still, the logic of the Supreme Court’s immunity decision implies a concern with whatever might precipitate a president’s “hesitation to execute the duties of his office fearlessly and fairly.” Somewhere beyond the Pearly Gates, we imagine that Scalia nods assent, while his fingers drum upon a cloud.