Constitution Breakdown #6: Adam Liptak

The U.S. Constitution's Article III, which establishes the judicial branch, is remarkably brief—just six paragraphs—yet it has generated centuries of debate about the power and limits of federal courts. In this episode of *99% Invisible*, hosts Roman Mars and Elizabeth Joh are joined by Adam Liptak, the New York Times' chief legal affairs correspondent, to explore how this sparse text has been interpreted, stretched, and occasionally ignored. The conversation moves from the framers' vision of a "least dangerous branch" to the modern Supreme Court's aggressive use of the shadow docket, the political implications of life tenure, and the peculiar American insistence that courts only decide "cases and controversies"—a requirement that has proven remarkably flexible when the justices want to reach a particular outcome.

1:18The Astonishing Brevity of Article III

Adam Liptak begins by noting what surprises most people about Article III: it does not create an elaborate federal judicial system but merely establishes a Supreme Court, leaving its size unspecified and delegating most structural details to Congress. The framers envisioned Congress as the lead actor in the constitutional structure, with the presidency executing laws and the judiciary "bringing up the rear" as what some founders called "the least dangerous branch." Early Americans did not particularly want to be Supreme Court justices; the Court was almost an afterthought, designed primarily to adjudicate disputes between citizens of different states.

This historical context matters because it reveals how dramatically the Court's stature has grown. The Constitution's Article I (Congress) comes first, Article II (the presidency) second, and Article III (the judiciary) third—a deliberate ordering that reflects the framers' priorities. Liptak emphasizes that the modern Court's power and celebrity would be unrecognizable to the founders, who likely imagined a modest institution resolving a narrow set of disputes rather than the final arbiter of constitutional meaning.

4:11Congress's Untested Power Over the Courts

A central theme of the discussion is the substantial but largely unexercised power Congress holds over the federal judiciary. Congress can set the size of the Supreme Court by simple legislation—no constitutional amendment required. The Court has been as small as five and as large as ten, with changes often driven by political motives. It has been stable at nine justices for a long time, but Liptak notes that this norm may not hold indefinitely, especially given progressive calls for expansion following conservative victories.

Congress also possesses the power of "jurisdiction stripping"—telling the federal courts what kinds of cases they can and cannot hear. This power is largely untested at its outer limits. Members of Congress have periodically proposed stripping federal courts of jurisdiction over school desegregation, abortion, or school prayer, but these efforts never gain traction. Liptak suggests this restraint reflects a "deep American norm" that such action would be untoward, though he is not convinced the Constitution would forbid it. The most significant jurisdiction-stripping cases date back to the Civil War era, suggesting that forcing this issue would precipitate a genuine constitutional crisis.

The political branches are accountable to the electorate, and Liptak points to Franklin Roosevelt's failed court-packing attempt as evidence that even wildly popular presidents cannot necessarily bend the judiciary to their will. FDR commanded supermajorities in both houses of Congress and enormous public support, yet the public would not tolerate his plan to expand the Court. This historical episode suggests that institutional norms and public opinion can constrain Congress even when legal authority exists.

10:12Life Tenure: An American Anomaly

Elizabeth Joh highlights a distinctive feature of the American federal judiciary: judges "shall hold their offices during good behavior," which effectively means life tenure. The United States is the only developed nation in the world without either a mandatory retirement age or term limits for its highest court. Liptak argues this is "not widely thought to be a good thing," as it raises questions about cognitive decline among aging justices and injects politics into retirement decisions.

The problem is structural. Supreme Court justices are already appointed through an intensely political process—nominated by a president, confirmed by the Senate—but life tenure means they also get to decide when to step down. They tend to retire under presidents whose politics align with their own, adding "a kind of bookend" of politics to an already politicized process. This creates a paradox: the reform most widely supported by legal scholars and the public—term limits or a mandatory retirement age—would require a constitutional amendment, which is nearly impossible to achieve. Meanwhile, the reform many consider a bad idea—expanding the Court's size—can be accomplished by simple majorities in Congress.

Roman Mars observes that life tenure also contributes to the celebrity status of Supreme Court justices. They serve so long that they become household names, which seems at odds with Chief Justice John Roberts's famous confirmation hearing analogy that judges are like umpires calling balls and strikes. "Nobody ever went to a ball game to see the umpire," Roberts said, yet the modern Court is filled with justices who go on book tours and television appearances, often in ideologically slanted venues. Liptak notes that the framers, who designed judges to wear anonymous black robes, almost certainly did not envision this level of public visibility.

15:29The Roberts Court: Two Eras and the Democracy Docket

Liptak divides the Roberts Court into two distinct eras. During the "Kennedy years," the Court had a 5-4 conservative majority, but Justice Anthony Kennedy frequently joined the four liberal justices on abortion, affirmative action, the death penalty, and especially gay rights, producing liberal victories. This created the impression of a balanced institution. With Kennedy's retirement and the appointment of three Trump-appointed justices, the Court entered a more lopsided and predictable phase.

The "democracy docket" has been a consistent feature of the Roberts era, with cases like *Rucho v. Common Cause* (partisan gerrymandering), *Citizens United v. FEC* (campaign finance), and *Shelby County v. Holder* (Voting Rights Act) all making it harder for less powerful groups to influence the democratic process. Liptak suggests that *Trump v. United States*, the presidential immunity decision, may be the most important ruling of the entire Roberts tenure—not only for its practical effect of preventing then-candidate Trump from being tried on charges brought by Special Counsel Jack Smith, but for its vision of "unbridled executive power." That decision, Liptak argues, is in tension with the "balls and strikes" model of judging and may not have been the Chief Justice's finest work as a matter of judicial craft.

The conversation then turns to the "shadow docket"—emergency orders that reach the Supreme Court on thin briefs, typically without oral argument, and are decided in weeks with minimal or no reasoning. During the second Trump administration, the president has won the vast majority of these emergency applications. Liptak notes that while the Court's merits docket decisions are "reasoned and engaged," the shadow docket rulings lack the reasoned persuasion that gives the judicial branch its legitimacy. "When that's missing," he says, "it's hard to see how the branch is legitimate at all."

30:53Judicial Review: The Power Not Written in the Constitution

Perhaps the most striking feature of the modern Supreme Court is something entirely absent from Article III: judicial review—the power to declare laws unconstitutional. Liptak traces this to Chief Justice John Marshall's genius in *Marbury v. Madison* (1803), where the Court announced its authority to "say what the law is." However, he notes that Marshall likely did not claim the Court was the *exclusive* interpreter of the Constitution; other branches have an independent obligation to assess their constitutional duties. The claim of judicial supremacy—that the Court's interpretation is final and binding on all branches—came later, most notably in *Cooper v. Aaron* (1958).

Elizabeth Joh points out that this power has only a few theoretical limits, primarily *stare decisis* (the reluctance to overturn precedent). Yet the current Court seems comfortable overturning even longstanding precedents, as demonstrated by *Dobbs v. Jackson Women's Health Organization* (2022), which eliminated the constitutional right to abortion. Liptak notes that the Roberts Court has not overruled more cases than earlier courts as a raw matter of counting, but the *magnitude* of what it has overruled is different. Moreover, the Court sometimes overrules precedents without using the word "overrule," as in the Harvard and University of North Carolina affirmative action cases.

Roman Mars raises a provocative question: does the Court sometimes avoid ruling against the executive branch because it fears being ignored? Liptak acknowledges this is plausible in the current era, when what was once "inconceivable"—a president simply disobeying a Supreme Court ruling—is now at least conceivable. The justices are "nine smart people and they live in the real world," he says, suggesting that the fear of a constitutional crisis may influence their decisions in ways that are difficult to measure.

37:08Standing: A Malleable Gatekeeper

The doctrine of standing—the requirement that litigants must have a concrete injury to bring a case in federal court—is derived from Article III's limitation of judicial power to "cases and controversies." Elizabeth Joh explains that this is supposed to prevent courts from issuing advisory opinions or deciding hypothetical disputes. In practice, however, standing has proven remarkably flexible, with the Roberts Court applying it opportunistically depending on the outcome the justices want to reach.

Liptak provides several examples. In the case of the website designer who wanted to refuse service to same-sex couples, no same-sex couple had ever actually requested her services, yet the Court found standing and ruled in her favor. Conversely, in the challenge to President Biden's student loan forgiveness plan, the Court found that Missouri had standing based on the attenuated economic interests of MOHELA, an independent nonprofit that serviced loans—even though MOHELA was not a party to the case. Liptak's assessment is blunt: standing "is not a doctrine that actually does a lot of work in keeping cases out of court that the court actually wants to decide," though it can be used to dismiss cases the Court wishes to avoid.

This malleability raises deeper questions about the American system. Liptak notes that many other countries have constitutional courts that answer abstract questions about a law's constitutionality without requiring a specific plaintiff with a concrete injury. The American insistence on finding a "real" plaintiff—a 19-year-old willing to be the face of a challenge to affirmative action, for example—is not obviously the best way to run a judicial system, but it is the American way.

42:54Inside the Supreme Court Beat

Liptak offers a fascinating window into the craft of Supreme Court reporting. The late Anthony Lewis, a legendary Supreme Court reporter, told him that the job involves "many months getting ready for a few days in June." A reporter reads briefs at every stage—when the Court decides whether to hear a case, when the merits are briefed, and after oral argument—and writes alternative drafts of how the decision might come out. On decision day, the first story is published within minutes, containing only who won and who lost. A more substantive story follows within an hour, and by late afternoon, the reporter hopes to have written something "that will stand the test of time."

There is an unfortunate inverse relationship between quality and readership: the first, shallowest story gets the most readers, while the carefully considered analysis reaches fewer people. Liptak also notes that dissents from the Court's three Democratic appointees have taken on a sharper tone in recent years, reflecting "hopelessness" at being on a "never-ending losing streak." This contrasts with the era when there were four liberal justices who could occasionally pick up Kennedy's vote.

The discussion turns to the role of law clerks—recent law school graduates who serve one-year terms and wield extraordinary influence. Each justice has four clerks, and these young lawyers make preliminary judgments about which cases the Court should hear, write first drafts of opinions, and effectively function as a small law firm. Liptak notes that this system is "not at all contemplated by Article III"—the Constitution does not mention law clerks—yet they have become indispensable. The backgrounds of the justices themselves have become increasingly narrow: eight of the nine attended Harvard or Yale Law School, and three clerked for the very justice they succeeded (Roberts for Rehnquist, Jackson for Breyer, Kavanaugh for Kennedy). This creates what Liptak calls an "inherited aristocracy" that seems at odds with the Constitution's prohibition on titles of nobility.

1:04:05Treason and Original Jurisdiction

The episode closes with two oddities of Article III. First, the Constitution devotes an entire section to defining treason—a crime that seems oddly placed in the article about the judiciary. Liptak speculates that the framers simply needed to put treason somewhere and chose Article III because it is a federal crime that would be adjudicated in federal courts. The definition is narrow and includes a prohibition on "corruption of the blood," meaning punishment cannot extend to the traitor's descendants—a rejection of English common law practice.

Second, Article III grants the Supreme Court "original jurisdiction" in certain cases, meaning it can act as a trial court rather than an appeals court. Today, this is almost entirely limited to disputes between states, often about boundaries or water rights. The Court does not actually hear witnesses or bang a gavel but appoints a "special master" to handle those functions. Liptak suggests the framers probably expected the Court to serve as a trial court more often than it does, but historical practice has shifted almost entirely toward appellate review.

Conclusion

What stays with the listener is the profound gap between the spare text of Article III and the sprawling, powerful institution it has become. The Constitution creates a Supreme Court but says nothing about judicial review, law clerks, the shadow docket, or the celebrity status of justices. These features have been built layer by layer over centuries, often through the Court's own interpretation of the document that supposedly constrains it. Adam Liptak's perspective as both a former lawyer and a veteran reporter gives the conversation unusual depth: he understands the legal doctrines but also sees how human beings—justices, clerks, litigants, and reporters—actually operate within them. The episode matters because it makes visible the invisible architecture of American judicial power, revealing how much of what we take for granted about the Supreme Court rests on norms, practices, and interpretations that could change.

Key takeaways

• Article III of the Constitution is only six paragraphs long and does not specify the size of the Supreme Court, leaving that and most structural details to Congress by simple legislation.
• The United States is the only developed nation without mandatory retirement ages or term limits for its highest court; life tenure injects politics into retirement decisions and raises concerns about cognitive decline.
• Judicial review—the power to declare laws unconstitutional—is not mentioned in Article III but was claimed by the Court in *Marbury v. Madison* (1803) and expanded to judicial supremacy in *Cooper v. Aaron* (1958).
• The "shadow docket" allows the Supreme Court to decide emergency applications with minimal briefing, no oral argument, and often no reasoning, raising serious legitimacy concerns.
• The doctrine of standing is applied opportunistically by the Roberts Court, serving as a barrier to cases the justices want to avoid but vanishing when they want to reach a particular outcome.
• Congress has substantial but largely untested power over the federal courts, including jurisdiction stripping and court expansion, but has rarely exercised these powers to their limits.
• The Roberts Court has overseen a "democracy docket" of decisions that make it harder for less powerful groups to influence the political process, while simultaneously expanding executive power.
• Supreme Court law clerks—recent law school graduates with extraordinary responsibilities—are not mentioned in the Constitution, yet they play a central role in case selection and opinion drafting.