At time of writing, the Roberts Court is hearing Donald Trump’s preposterous challenge to birthright citizenship—a constitutional knot so neatly tied that not even the court that gave us Plessy could feign to find fault with it in 1896. Furthermore, Jodi Kantor and Adam Liptak dropped a major report with the New York Times, exposing the internal reasoning, or lack thereof, that ultimately led to the modern “shadow docket.” This strategy has been used to grant President Trump numerous victories in his second term while sidestepping the transparency, deliberation, and jurisdictional sequence the court has historically preferred. And make no mistake: it is a strategy. Along with originalism and the major questions doctrine, the Roberts Court has given itself a raft of new or enhanced tools with which to empower conservatives and thwart liberals. Such developments reveal a remarkably rapid decay undermining the legitimacy of the Supreme Court.
Given the dangerous disregard for the Constitution this court has demonstrated, it’s worth taking a deeper look at the highest court in the land: what it is, and what it could be.
The Supreme Court has always been tricky. Its principal role in our republic—judicial review, which gives it the power to overturn acts of Congress—is not enumerated in the Constitution. Neither is its size nor the responsibilities of its justices, both of which have changed much over the centuries—from one chief justice and five associates, splitting their time riding circuit across their new country then returning to drafty, borrowed chambers in Philadelphia as the Supreme Court, to nine full-time justices serving exclusively in their handsomely appointed neoclassical temple in Washington. Most of its features have evolved or accreted over time, and unlike the expansive language of Article II that establishes an independent executive, the Constitution explicitly places the courts almost entirely under the statutory authority of Congress.
Authority which Congress has used. Many times. Throughout our history, Congress has wielded its power to discipline, manipulate, and sculpt the Court, sometimes creatively. In the very case that established the power of judicial review, the outgoing Federalist Congress decided to pack dozens of newly formed lower courts with judges hostile to the incoming Democratic-Republican majority and the new president, Thomas Jefferson. Jefferson, through his Secretary of State James Madison, tried to block the appointments with a procedural trick, which eventually produced Marbury v. Madison.
Then consider when, furious with Andrew Johnson’s opposition to Reconstruction in 1866, the Radical Republican Congress passed a law abolishing each Supreme Court seat after it fell vacant. The effect was that Johnson, for all the damage he did do, never appointed a Supreme Court justice, and the bench fell to seven. When Ulysses S. Grant won the presidency in 1868, Congress expanded the court back to nine, where it has remained since.