Summary of Constitution Breakdown #6: Adam Liptak

Overview of Constitution Breakdown #6: Adam Liptak

This episode of 99% Invisible’s Breakdown of the Constitution (hosted by Roman Mars and Elizabeth Jo) examines Article III and the federal judiciary with New York Times Supreme Court reporter Adam Liptak. The conversation covers what Article III actually says (and omits), Congress’s powers over the courts, life tenure and reform prospects, the character and major rulings of the Roberts Court, the rise of the “shadow docket,” key doctrinal tools (standing, stare decisis, judicial review), and behind-the-scenes realities of how the Supreme Court operates and is covered by the press.

What Article III actually says — and what it leaves out

• Article III is short: it vests “the judicial power” in one Supreme Court and any inferior courts Congress creates; guarantees federal judges hold office during “good behavior” (life tenure) and that compensation can’t be diminished while in office.
• Important omissions:
  • Article III does not specify the size of the Court (Congress sets it by statute).
  • It does not explicitly create judicial review (that role developed later under Chief Justice John Marshall).
  • It does not lay out modern details of jurisdiction, standing, procedures, clerks, or the Court’s emergency practices (shadow docket).

Congressional powers and limits over the judiciary

• Congress can:
  • Set the number of Supreme Court justices (historically varied from 5 to 10; currently 9).
  • Organize the federal court system and control funding/structure.
  • Limit (to some degree) jurisdiction of federal courts — “jurisdiction stripping” is legally real but largely untested in extreme forms.
  • Impeach federal judges (for misconduct, but not for disagreement over rulings — Samuel Chase impeachment set a norm against political impeachments).
• Political and normative restraints (public reaction, institutional norms) have historically restrained Congress from aggressively reshaping the courts.

Life tenure, reform prospects, and political consequences

• Life tenure (“during good behavior”) and pay protections are meant to insulate judicial independence.
• Downsides: questions of aging/capacity, strategic timing of retirements to preserve ideological successors, and the emergence of a quasi-elite judicial aristocracy.
• Reform friction:
  • Term limits or mandatory retirement would require a constitutional amendment (difficult).
  • Court expansion (packing) is legislatively possible but politically fraught and likely to provoke tit-for-tat responses.

The Roberts Court — eras and jurisprudential trends

• Two broad phases:
  • The “Kennedy era” (5–4 conservative court, with Kennedy as occasional swing vote producing mixed outcomes).
  • The post-Kennedy era (three Trump appointees creating a more solid conservative majority, more predictable outcomes).
• Democracy docket concerns: major rulings (Citizens United, Shelby County, cases on redistricting) seen by many as reducing protections for the less powerful in democratic processes.
• Notable recent decisions:
  • Trump v. United States (presidential immunity) — signals expansive view of executive power.
  • Dobbs — example of overturning longstanding precedent (raised questions about stare decisis).

The shadow docket (emergency / interim orders)

• Definition: rapid decisions on stays or emergency relief made on limited briefing, often without oral argument, frequently without full merits-stage consideration or reasoning.
• Characteristics and concerns:
  • Fast, sometimes cryptic thumbs-up/thumbs-down orders with thin or no opinion.
  • Lower courts are often left to interpret these orders as precedent despite limited reasoning.
  • Critics argue the shadow docket undermines the Court’s legitimacy because it bypasses the Court’s usual reasoned, persuasive jurisprudential model.
• Recent pattern: the Trump administration has had high success rates on many shadow-docket emergency applications.

Doctrines the Court uses to manage its docket and power

• Judicial review: not explicitly in Article III but established under Marshall; later crystallized into judicial supremacy (e.g., Cooper v. Aaron).
• Stare decisis (respect for precedent): the Court’s application is malleable; overruling precedent remains possible and contested (magnitude of overrulings matters).
• Standing and “cases or controversies”: Article III’s limitation has been interpreted into doctrines that gate access to federal courts — but their application can be inconsistent, sometimes admitting cases the Court wants to hear and rejecting others.
  • Standing can be used selectively; the Court sometimes finds standing when convenient to reach the merits (e.g., cases involving student loan cancellation).

Covering the Court: how Supreme Court reporting works

• Journalistic workflow:
  • Long lead-up reading briefs, previewing certiorari grants, and attending arguments; many background stories and “B-matter” drafts prepared in advance.
  • Live/reporting rhythm: instant “who won/who lost” pieces, followed by in-depth analysis (vote counts, doctrinal context) that take longer to research and write.
• Practical notes:
  • Most opinions are issued October–June; April arguments often produce rushed decisions.
  • Live audio (pandemic-era) provides much of the public transparency; televised arguments remain unlikely but would be mostly redundant with audio.
• Court culture: clerks do substantial work (cert pool memos, drafting, research); each justice typically has four clerks with outsized influence.

Other institutional and historical notes

• Original jurisdiction: Constitution contemplates Supreme Court as trial court in rare cases (e.g., state v. state); today the Court usually appoints a special master to handle fact-finding.
• Treason clause: Article III, section 3 defines treason and limits punishment (e.g., no “corruption of blood”); placement feels idiosyncratic but reflects founders’ priorities.
• Backgrounds of justices: increasingly concentrated elite pedigree (Harvard/Yale), with many clerking for the same justices they later replaced — raises questions about institutional insularity.

Notable quotes and insights from the episode

• On the framers’ view: the judiciary was originally intended as the “least dangerous branch.”
• On judges’ role (Roberts quote recalled): “the job of a judge is to call balls and strikes.”
• On legitimacy: the judiciary derives legitimacy through reasoned persuasion, and rushed shadow-docket decisions strain that claim.
• On life tenure paradox: widely favored reforms (term limits) would require the hardest constitutional fix.

Key takeaways

• Article III sets a skeletal framework; most modern Supreme Court structure and power developed through statute, practice, and the Court’s own doctrines.
• Congress has significant but underused levers over the federal judiciary (size, jurisdiction, funding).
• Life tenure shapes retirement timing and political dynamics at both ends of judicial service; meaningful change is constitutionally difficult.
• The Roberts Court has shifted over time; recent trends include broad deference to executive power in some cases and a controversial use of the shadow docket.
• Doctrinal tools (standing, stare decisis, judicial review) are applied with discretion and often in service of the Court’s willingness to decide a case.
• Transparency and process adjustments (vote counts on applications, more spacing of argument/decision calendars, continued open audio) are practical reforms reporters and observers would welcome.

Recommended follow-ups / reading

• Adam Liptak’s reporting in The New York Times on:
  • Trump v. United States (presidential immunity) and the Court’s shadow-docket activity.
  • Coverage of Dobbs, Citizens United, Shelby County, and other democracy-docket decisions.
• Historical context: Marbury v. Madison (origin of judicial review) and Cooper v. Aaron (judicial supremacy).
• Scholarly debates on term limits vs. court expansion and on the legal/political limits of jurisdiction stripping.

Produced topics: Article III basics, Congress’s role, life tenure, Roberts Court’s phases and democracy docket, shadow docket mechanics, standing and case/controversy doctrine, how the Court is covered by media, and institutional quirks (clerks, treason, original jurisdiction).