Constitution Breakdown #6: Adam Liptak

What It Covers

New York Times Supreme Court reporter Adam Liptak examines Article Three of the Constitution, which establishes the judicial branch. The discussion covers what the Constitution omits about the courts, including judicial review, the Supreme Court's size, and term limits. Topics include the Roberts Court's legacy, the shadow docket, congressional power over courts, and challenges facing judicial independence.

Key Questions Answered

• •Congressional Authority Over Courts: Congress can set Supreme Court size through simple legislation without constitutional amendment. The court has ranged from five to ten justices, currently stable at nine since the mid-1800s. Congress also controls jurisdiction stripping, determining which case types federal courts can hear, though this power remains largely untested due to political norms and public resistance to such interventions.
• •Life Tenure Problem: The United States stands alone among developed nations without mandatory retirement ages or term limits for federal judges. This creates political gamesmanship where justices strategically retire under ideologically aligned presidents. Implementing term limits requires constitutional amendment, making this widely supported reform nearly impossible to achieve, while expanding court size only needs congressional majorities.
• •Shadow Docket Mechanics: Emergency applications bypass normal Supreme Court procedures with thin briefing, no oral arguments, and decisions within weeks rather than months. The Trump administration wins the vast majority of these cases. Orders often lack reasoning or provide minimal explanation, yet lower courts must treat them as binding precedent. This process undermines judicial legitimacy by removing the reasoned analysis that distinguishes courts from political branches.
• •Judicial Review Origins: Marbury v. Madison established judicial review in 1803, though this power appears nowhere in Article Three's six paragraphs. Chief Justice John Marshall initially positioned the court as one interpreter among three branches, not the exclusive authority. Only later, in Cooper v. Aaron, did the court declare judicial supremacy, consolidating power to issue final constitutional interpretations binding on all parties nationwide.
• •Standing Doctrine Inconsistency: The Roberts Court applies standing requirements unpredictably based on case outcomes. A website designer won her case despite never creating websites or receiving requests from same-sex couples. Missouri gained standing in student loan cases through an independent nonprofit's theoretical losses. Meanwhile, immigration enforcement challenges face strict standing barriers. This selective application suggests outcome-driven rather than principled jurisprudence.
• •Clerk Influence Structure: Each justice employs four recent law school graduates, typically from Harvard or Yale, who draft first opinions and evaluate petitions for review. A single 26-year-old clerk in the cert pool makes preliminary recommendations affecting whether the Supreme Court hears cases. Three current justices clerked for their predecessors, creating an inherited aristocracy nowhere contemplated in Article Three's text or the founders' anti-nobility principles.