How the Supreme Court claimed supreme power

The Supreme Court's 2025-26 term has been punctuated with some high-stakes cases: birthright citizenship, voting rights, presidential powers and consequential civil rights cases. Some of the most anticipated and significant cases have yet to be decided. As the justices make the final sprint to the end of the term in early July, we take stock of how the Supreme Court evolved from the weakest branch of government to the powerhouse arbiter it is today. This episode originally aired in 2020. Guests: Larry Kramer, former dean of Stanford Law School and author of The People Themselves: Popular Constitutionalism and Judicial Review Rachel Shelden, associate professor of History and director of the George and Ann Richards Civil War Era Center at Penn State University, and author of The Political Supreme Court Lucas Powe Jr., professor of Law and Government at the University of Texas Support shows like Throughline with NPR+. Sign up today at plus.npr.org. See pcm.adswizz.com https://pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences. NPR Privacy Policy https://www.npr.org/about-npr/179878450/privacy-policy

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

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• 0:16Rund Abdelfatah?

  Hey, it's Rand. As the clock ticks down to the close of the Supreme Court's 2025-2026 term, and we await the justices to hand down nearly two dozen more rulings by early July, the most anticipated of which involved birthright citizenship, the counting of mail-in ballots, the president's power to remove any official, and state bans on female transgender athletes, we thought it would be helpful to share a through-line episode from our archives that tells the story of the Supreme Court, how it evolved from the weakest branch of government to the powerhouse arbiter it is today.

• 1:01Speaker 02

  There is with a 2-0 pitch. And this ball smashed. High and deep to center field. It is one!

• 1:11Speaker 03

  That ball driven to right. Is it fair? It is a home run!

• 1:20Rund Abdelfatah?

  When I was growing up, I remember my dad having this strange love of baseball.

• 1:28Rund Abdelfatah?

  He was new to this country. Everything about it was foreign to him.

• 1:35Rund Abdelfatah?

  Different food, different languages, different politics. But baseball? That made sense.

• 1:42Speaker 03

  There's a drive to right center field by Piazza. His first major league hit. He'll go into second.

• 1:49Rund Abdelfatah?

  He didn't know all the rules necessarily, but he got the basic gist of it. One person throws the ball, the other tries to hit it. And the person behind the plate, behind the catcher, the person calling the strikes or balls.

• 2:03Rund Abdelfatah?

  That's the umpire.

• 2:07Rund Abdelfatah?

  The arbiter of justice. What he says goes. No questions asked. Well...

• 2:15Rund Abdelfatah?

  Most of the time.

• 2:23Rund Abdelfatah?

  But even when people don't like the ump's call, they have to live with it or get thrown out.

• 2:32Rund Abdelfatah?

  That's just the way the game was set up.

• 2:39Rund Abdelfatah?

  But this isn't an episode about baseball.

• 2:42Speaker 04

  Justice Ginsburg, will you raise your right hand and repeat after me?

• 2:46Rund Abdelfatah?

  This is an episode about the Supreme Court.

• 2:50Speaker 05

  I, Ruth Bader Ginsburg, do solemnly swear

• 2:55Speaker 04

  that I will support and defend the Constitution of the United States.

• 2:59Rund Abdelfatah?

  Which some people like to think of as America's umpire.

• 3:02Speaker 05

  Judges are like umpires.

• 3:11Rund Abdelfatah?

  Calling the shots for the country, no questions asked, right?

• 3:17Rund Abdelfatah?

  The death of Supreme Court Justice Ruth Bader Ginsburg has forced abortion rights advocates to face their biggest fear. And this is just one of several hot-button

• 3:26Speaker 02

  issues like health care and voting rights that could now be transformed for decades to come.

• 3:32Speaker 02

  The president vowed to go to the Supreme Court to dispute the election count. The court has the power of life and death. The more the court expands into every area of American society, the bigger ticket item it becomes. Because of this kind of power, the leanings

• 3:46Rund Abdelfatah?

  of a new and ninth justice are so crucial.

• 3:51Rund Abdelfatah?

  You're listening to Throughline from NPR.

• 3:53Speaker 03

  Where we go back in time?

• 3:56Rund Abdelfatah?

  To understand the present.

• 4:03Rund Abdelfatah?

  The Supreme Court as America's umpire may not be a perfect metaphor, but it gets at a really important point. Nowadays, the Supreme Court has the final say over so much of our lives, which hasn't always been the case. For most of our history, people thought of the Supreme Court as like the coach, with some say over the flow of the game, but definitely not the final say. Okay, we're gonna stop with the baseball metaphors now.

• 4:32Speaker 06

  Thing is too many baseball metaphors. Anyway, in the beginning, back in 1787, when the framers of the Constitution were designing how this federal government would work, you know, three branches, checks and balances. The way they saw things, the president controlled the army, Congress controlled the money and the courts, the judiciary. Well, as Alexander Hamilton put it,

• 4:56Speaker 02

  "The judiciary, on the contrary, has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no act of resolution, whatever."

• 5:12Speaker 06

  In other words, without the sword or purse, the Supreme Court didn't have much power to enforce its decisions, making it the least dangerous and least powerful branch.

• 5:23Speaker 02

  There was just no notion that it would be powerful. It wasn't yet in really anybody's imagination that they had to worry about.

• 5:29Speaker 06

  That's Larry Kramer.

• 5:31Speaker 02

  Formerly the dean of Stanford Law School. And I wrote a book called The People Themselves: Popular Constitutionalism and Judicial Review.

• 5:40Speaker 06

  So the framers came up with Article III.

• 5:44Speaker 05

  The Constitution in Article III gives Congress the power to shape what the federal judiciary is.

• 5:51Speaker 02

  "The judicial power of the United States shall be vested in one Supreme Court."

• 5:57Speaker 05

  There's a Supreme Court and any other courts that the Congress at the time wanted to create.

• 6:03Speaker 06

  Being a Supreme Court Justice in these early days wasn't glamorous. I mean, the original Supreme Court didn't even get its own building.

• 6:12Speaker 05

  The Supreme Court is going to be situated in the basement of the Capitol. And that gives you a sense, actually, of the hierarchy of what people at the time thought about the Supreme Court.

• 6:23Speaker 06

  By the way, this is Rachel Shelden.

• 6:26Rund Abdelfatah?

  I'm a historian of politics, law, and the Constitution in the 19th century. And her book, The Political Supreme Court, will be published later this year.

• 6:40Speaker 05

  They sat at individual desks as opposed to sort of what we assume today of that sort of long bench. They did not have separate offices the way that we think of today.

• 6:51Rund Abdelfatah?

  And that was only when they were in Washington DC, where they spent just some of the year. The rest of the time, they were doing this thing called riding circuit, meaning they would basically travel around the country.

• 7:04Speaker 05

  A judge would, in fact, yes, ride around horseback, or really in a carriage, and go from town to town where the circuits were held.

• 7:12Rund Abdelfatah?

  And they would preside over trials. Keep in mind, there wasn't a vast web of federal judges around the country that could filter some of these cases for the court like there is today. So the Supreme Court justices rode around and handled things themselves.

• 7:29Speaker 05

  At the end of the day, the justices would, you know, take off their judge hat. They would go and stay in their boarding houses.

• 7:37Rund Abdelfatah?

  These boarding houses were typically shared with the lawyers who were trying the cases.

• 7:42Speaker 05

  Getting to know the town, spending time with the political folks who are around. Lots of the lawyers who tried cases in front of the circuit courts tended to be state legislators.

• 7:53Speaker 02

  Everything's a lot looser than it subsequently becomes.

• 7:58Speaker 06

  At this time, politics and the Supreme Court were very intertwined. The justices saw no separation between the two.

• 8:06Speaker 02

  They viewed themselves as perfectly capable of participating in political debate as judges.

• 8:11Speaker 06

  In fact, the court was so political that many of the justices just saw their job as a stepping stone in their quest for political power. They didn't hang around that basement for very long, if you know what I mean.

• 8:27Rund Abdelfatah?

  But some people, even then, had a different vision for the court. They wanted the court to be taken seriously, to reign supreme. And over the next 200 years, that vision would slowly be realized.

• 8:47Speaker 06

  I'm Ramtin Arablouei.

• 8:48Rund Abdelfatah?

  I'm Randa Abdel Fattah.

• 8:50Speaker 06

  And on this episode, we're diving into the long, complicated political history of the highest court in the land, the Supreme Court of the United States. How did it become America's umpire? And when did it get the final say on human rights, health care, and even who we choose as president?

• 9:36Speaker 00

  Hi, this is Ellie, and I'm calling from Washington, DC. And you're listening to Throughline from NPR. Stay tuned for the following announcements and messages from our sponsors. This message comes from iXL, a learning platform for helping kids build confidence and get up to speed fast. One subscription covers math, science, and reading for all children in a household. Receive 20% off at ixl.com/npr.

• 10:04Speaker 05

  The 2026 midterm elections are upon us. On November 3rd, voters will determine what the next two years of their local leadership and the balance of national government will look like. Listen to the NPR News Now podcast for all the updates you need ahead of and after November 3rd from NPR News.

• 10:26Speaker 02

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• 10:52Speaker 02

  Part one. Who's say is it anyway?

• 11:00Rund Abdelfatah?

  We start our story with a contested presidential election, the election of 1800, one of the most partisan showdowns in our country's history.

• 11:10Speaker 02

  It's the most divisive period in American history, except for the Civil War and possibly today.

• 11:16Rund Abdelfatah?

  The country was still pretty new, and everybody was trying to figure out how this democracy thing was going to work. Things like trade, taxation, foreign relations, state versus federal power.

• 11:28Speaker 02

  It's a period of a lot of turmoil, and there's essentially one huge division around which the political parties form.

• 11:37Speaker 06

  The United States didn't start out with any political parties, no teams. But competing visions of government were pulling people apart, which led to the creation of these two parties.

• 11:49Rund Abdelfatah?

  The Federalists, the party of incumbent President John Adams, and the Democratic-Republicans. Always confusing because it has both Democrat and Republican in it. The party of candidate Thomas Jefferson.

• 12:01Speaker 06

  These parties had radically different outlooks on government.

• 12:04Speaker 02

  Almost all of the debates are around, what is it that we mean by, you know, they would have said republicanism, we would say democracy. That is to say, how popular is it supposed to be?

• 12:17Speaker 06

  The Democratic-Republicans were fans of popular politics.

• 12:21Speaker 02

  This is our law.

• 12:22Rund Abdelfatah?

  Allow more power to grow up from the people themselves.

• 12:25Speaker 02

  Final interpretation rests with us in the community.

• 12:29Speaker 06

  Jefferson famously said,

• 12:31Speaker 02

  "I hold it that a little rebellion now and then is a good thing and as necessary in the political world as storms in the physical."

• 12:42Speaker 02

  The much more conservative Federalists pushed back in all sorts of ways, interpreting the Constitution in ways that would limit the capacity for popular politics to grow.

• 12:52Rund Abdelfatah?

  The Federalists wanted more stability, and they thought in order to get that, the federal government ought to have more power. They believed their still very young country needed a strong centralized government with lasting institutions that would be around much longer than elected officials, institutions like the courts.

• 13:11Speaker 06

  The Federalists were the party of power throughout the 1790s. But in the election of 1800, they faced defeat. Adams lost the race, and Jefferson became president.

• 13:23Rund Abdelfatah?

  So Congress becomes Democratic-

• 13:26Speaker 00

  Like Republican and you have Jefferson in the White House.

• 13:30Speaker 06

  But as outgoing president, John Adams' term was coming to an end. He and his party made one final power grab.

• 13:39Rund Abdelfatah?

  Adams nominated a bunch of Federalist judges at the very end of his term, so-called Midnight Judges, as well as a new Chief Justice of the Supreme Court, John Marshall.

• 13:55Speaker 00

  He becomes sort of the foundational Chief Justice in terms of thinking about development of the court as an institution.

• 14:03Speaker 02

  Marshall's a straight-up Federalist. He was Secretary of State for John Adams, and then he made him the Chief Justice.

• 14:10Speaker 00

  He's now in control of only one branch with the Federalists in charge.

• 14:15Speaker 06

  As Chief Justice, John Marshall made a lot of symbolic changes to the Supreme Court.

• 14:21Speaker 00

  So the story goes that Marshall wore a black robe at his swearing-in and that after that, this became common practice. There was a degree to which some people did not like to see Supreme Court justices in robes at all, thinking of it as a royal court as opposed to sort of a democratic body.

• 14:44Speaker 00

  He wants all the justices to board together and to work together. He is a big proponent of having unanimous opinions. He thought that that had the tendency to make the court seem more important.

• 14:58Speaker 06

  Marshall dreamt of a Supreme Court with national authority, a Supreme Court that gets to interpret the Constitution, basically be the umpire for the entire country.

• 15:11Speaker 02

  He believes in judicial supremacy.

• 15:13Speaker 00

  Which is much more what we accept today. The idea that the Supreme Court is the final arbiter of constitutionality.

• 15:21Rund Abdelfatah?

  This idea, judicial supremacy, gives the Supreme Court final say over what's constitutional and what's not. And then, everybody has to do what they decide, the law of the land.

• 15:34Speaker 06

  But again, this was a dream.

• 15:37Rund Abdelfatah?

  It's just not how things work then.

• 15:41Rund Abdelfatah?

  But there was this other thing, a much more restricted power that was on the table: judicial review.

• 15:49Speaker 02

  So judicial review is the notion that in a case before it, the court can say whether a statute that is raised in the case is in fact constitutional and therefore enforceable.

• 16:00Rund Abdelfatah?

  The court gets to decide what's constitutional in a case, but the ruling doesn't extend beyond that specific case. So it's the law of the case, but not the law of the land.

• 16:12Speaker 02

  The whole idea of judicial review without judicial supremacy is that you have three co-equal branches, each with equal authority to interpret the Constitution.

• 16:20Speaker 06

  Remember, that was how the federal government was designed to work. No one branch was supreme over the others, so they could all keep each other in check.

• 16:30Speaker 00

  Marshall himself was interested in having more of that supreme power for the court, but he also understood it was not possible. He operates in this world in which he knows he's a minority, especially when the Democratic-Republicans, led by Thomas Jefferson and James Madison, are in power.

• 16:49Speaker 06

  Plus, there was some personal beef.

• 16:51Speaker 00

  Marshall and Jefferson were cousins. They famously did not like each other.

• 16:57Rund Abdelfatah?

  In 1803, the Cousins, Chief Justice John Marshall and President Thomas Jefferson, met in court, going head to head in a case called Marbury versus Madison.

• 17:12Speaker 00

  Probably the most famous decision and sort of the beginning of most constitutional law experiences is Marbury versus Madison.

• 17:21Rund Abdelfatah?

  We won't get into all the details of the case, but in short, the Jefferson administration was being sued for refusing to acknowledge some of those midnight judges that John Adams had appointed right before leaving office. William Marbury was one of them. He and the other appointees were able to take the case directly to the Supreme Court, thanks to a provision in a federal law that Congress had passed more than a decade earlier. And Marshall saw this as an opportunity.

• 17:50Speaker 00

  He sees this as a Situation in which he needs to preserve the power of the court that had existed and try to grow it in opposition to the other branches of government.

• 18:01Rund Abdelfatah?

  Marshall wanted to flex his authority as the head of the judicial branch, but...

• 18:06Speaker 02

  He knows if he actually tries to order Jefferson, Jefferson's going to ignore him. So that will make the court look weak.

• 18:12Speaker 06

  Remember, the court didn't have the power to enforce its decisions. No money, no army. It all depended on how much the other branches chose to respect its decisions.

• 18:24Rund Abdelfatah?

  But there was one tool that Marshall could use, the power of judicial review.

• 18:32Rund Abdelfatah?

  Up to this point, judicial review had only been applied sporadically. But in Marbury v. Madison, John Marshall formally established it.

• 18:42Speaker 06

  It was a calculated trade off. Marshall was like, fine, we know we can't force these appointments through, but you know that provision in the federal law Congress passed? The one that allowed Marbury to bring the case directly to the Supreme Court? Well, we've decided that provision is unconstitutional. We, the Supreme Court, have the power to interpret the Constitution in any case, state or federal, even if that means overriding an act of Congress. We have the power of judicial review. It is emphatically the duty

• 19:16Speaker 02

  of the Judicial Department to say what the law is. It's one of those instances of playing politics. So he finds a way to say, you know, we don't have jurisdiction. I can't tell Jefferson what to do, but I'm going to tell you, he violated the Constitution. This was wrong. The government of the United States has been emphatically termed a government of laws and not of men. It becomes the first case in which the Supreme Court strikes down a federal law for violating the Constitution.

• 19:44Rund Abdelfatah?

  In other words, this is the first time the Supreme Court flexed its power to say that what another branch of the federal government wanted to do was not constitutional.

• 19:55Speaker 06

  It was the moment when judicial review, which had been around but heavily debated, solidified as part of the court's power. This case would reverberate for centuries to come.

• 20:09Speaker 02

  For somebody reading it at the time, it's screamingly clear that he is not pushing the Judicial supremacy position and is backing away from it, which of course he had to do because it would not have been acceptable at the time.

• 20:23Speaker 06

  So while this was an important win for the court, it was a long way from Marshall's ultimate goal, judicial supremacy, the court as umpire with final say. He was a visionary though, and he knew he had to play the long game. During his three decades on the bench, he helped plant the seed of what the court could be and the amount of power the Supreme Court could have in the future.

• 20:48Speaker 00

  In the next iteration of the court where Roger Taney becomes Supreme Court Justice, Chief Justice of the Supreme Court, tends to be a little bit less involved in striking down laws. They don't strike down a federal law again until Dred Scott v. Sanford in 1857.

• 21:09Rund Abdelfatah?

  Dred Scott was an enslaved man who was suing for his freedom.

• 21:13Speaker 02

  As the controversy over slavery in the territories heats up, there are people who start to say, why don't we have the Supreme Court settle this? Like, wouldn't that be great if the Supreme Court settled it?

• 21:21Rund Abdelfatah?

  Before we get into the case, let's set the scene. This is more than 50 years after Marbury versus Madison, and by now, the country had more than doubled in size. Louisiana, Indiana, Mississippi. Adding a dozen states to the Union. Alabama, Maine, Missouri. It's the decade leading up to the Civil War. Abolition is the defining debate of this time, and with the Dred Scott case, the court was about to wade deep into that debate.

• 21:54Speaker 06

  Dred Scott was born into slavery in Virginia, and he was moved around a lot. First to Alabama, then to Missouri, both slave states, and then on to Illinois, a free state, and then the Wisconsin Territory, where slavery was forbidden by the Missouri Compromise of 1820. After returning to Missouri, Scott filed suit in court for his freedom, claiming that because he'd lived in a free territory and state, he was now a free man, a US citizen. The case eventually made its way to the Supreme Court.

• 22:29Speaker 00

  Taney is going to give the ultimate determination, but it takes a while. They start, they evaluate what they ought to do over the course of not just, you know, a few months.

• 22:42Speaker 06

  But over a year. And while the case is being determined, members of the court are in discussion with politicians in the area. Finally, the court came to a decision.

• 22:57Speaker 02

  The long trumpeted decision of the Supreme Court in the Dred Scott case was pronounced by Judge Toney yesterday, having been held over from last year. And the court holds that Scott cannot be a citizen because he's black. And Africans can never be citizens.

• 23:17Speaker 02

  They had no rights which the white man was bound to respect, and that the Negro might justly and lawfully be reduced to slavery for his benefit.

• 23:26Rund Abdelfatah?

  The court's opinion was an outright racist endorsement of slavery throughout the country. It denied all black people, enslaved as well as free, any chance at citizenship.

• 23:38Speaker 02

  It is too clear for dispute that the enslaved African race were not intended to be included and formed no part of the people who framed and adopted this declaration. It seems to like give the South everything it wanted. There's a huge explosion in the North. And this sets off all kinds of anger among quite a few people. Republicans, at this point, a new party that want to eliminate slavery from the territories with the idea that eventually it would die out. The Supreme Court of the United States has polluted its garments in the filth of pro-slavery politics.

• 24:18Speaker 02

  From this day forth, it must stand as a self-disgraced tribunal. And from this day forth, it will be one of the great and leading aims of the people of the free states to obliterate this shameful record and undo what has been done.

• 24:36Rund Abdelfatah?

  This is from an article in the New York Tribune, one of the largest newspapers aligned with that new political party, the Republicans. And one of the most vocal critics of the decision, a rising star in the Republican Party, was a former congressman from Illinois named Abraham Lincoln. Lincoln is very unhappy.

• 24:56Speaker 00

  And he says that this is a conspiracy to extend slavery across the United States. He believes Dred Scott was wrongly decided. He also believes that it does not have to be permanent law.

• 25:13Speaker 06

  After becoming president, Lincoln, as the executive, basically just ignores the Supreme Court and its rulings. During the Civil War, as his power grows, their power wanes. And by the end of the war, abolition has become the law of the land. And the court's decision in Dred Scott puts them on the wrong side of history.

• 25:33Speaker 02

  Dred Scott certainly hurts the court's credibility for a good generation. Takes them a while to rebuild credibility after that.

• 25:45Rund Abdelfatah?

  When we come back, the Supreme Court fights to restore its legitimacy as a president challenges its power at every turn.

• 26:19Speaker 02

  This is Jose Santana from Delta, Connecticut. And you're listening to Fro Line from NPR. I really love you guys. Thank you for bringing so much information to us. Bye.

• 26:37Speaker 02

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• 26:41Speaker 00

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• 27:21Speaker 02

  American journalist Austin Tice vanished in Syria over a decade ago. For years, we've been searching for him, and now we finally have some answers. This is the prison that Austin was in. Oh my god, we found Austin's file. Listen to Where Is Austin Tice? From NPR's Embedded and BBC Radio 4, on the NPR app or wherever you get your podcasts. Part Two: The Switch in Time Saves Nine.

• 27:57Speaker 03

  I am prepared, under my constitutional duty, to recommend the measures that a stricken nation in the midst of a stricken world may require.

• 28:08Speaker 06

  On March 4, 1933, President Franklin D. Roosevelt took office, and he was up against the worst economic disaster in American history.

• 28:19Speaker 03

  In his inaugural address, the biggest applause line was not, "We have nothing to fear but fear itself," was instead that I may have to take on the powers of a wartime president. Broad executive power to wage a war against the emergency as great as the power that would be given to me if we were in fact invaded by a farm fall.

• 28:52Speaker 04

  He has a mandate, which is to do something about the Great Depression.

• 28:56Speaker 03

  Prosperity is just around the corner, say the hopeful headlines. But around the corners wind the lengthening breadlines, and a whole new class of citizens appears in American society: the new poor. You've got unemployment running at 25%. Not since the Civil War has such pressure, political, economic, social, centered on the White House.

• 29:21Speaker 03

  And so Roosevelt pushes through the First New Deal,

• 29:26Speaker 03

  and the court strikes it all.

• 29:35Rund Abdelfatah?

  By this time, the Supreme Court was beginning to find its voice again, to come out of the shadows.

• 29:41Speaker 06

  But you can't expect to be taken more seriously and expand your power if you're stuck in a basement. Construction on a new Supreme Court building was underway when Roosevelt took office.

• 29:53Rund Abdelfatah?

  And not long after Roosevelt tried to pass the first New Deal, the court moved into its fancy new building.

• 30:01Speaker 02

  Amid the architectural glories that grace our nation's capital, the United States Supreme Court Building is one of the most imposing, a worthy meeting place for the highest tribunal of the land.

• 30:12Rund Abdelfatah?

  This was a real step up from their old basement quarters. It's big, regal, like something out of ancient Greece, with a wide oval plaza, tall imposing columns lining the front, marble statues on either side, and a staircase, perfect for a Rocky-style training montage welcoming you to the entrance, which is inscribed with the words "Equal Justice Under Law."

• 30:38Speaker 03

  There's a statement in The New Yorker in 1935 as this new Supreme Court building, the current marble palace, is open for the justices. And the quip was, "The new building has wonderful, large windows to throw the New Deal out of."

• 31:00Speaker 03

  My name is Lucas Powe Jr. I'm a professor of law and government at the University of Texas. My specialty is the United States Supreme Court.

• 31:12Speaker 06

  Okay, so why were the newly enthroned Supreme Court justices so staunchly against Roosevelt's plans?

• 31:19Speaker 06

  Well, first of all, this was still a conservative court, and they didn't like his populist agenda. And second, Roosevelt was dramatically expanding the power of the presidency as they were trying to expand their power. But Roosevelt was like, OK, you want to fight? I'll give you a fight.

• 31:38Speaker 02

  He begins using all the old themes that had been there all along, pushing back that the court doesn't have this authority, shouldn't have this authority, that it shouldn't be able to strike these laws down in this way.

• 31:49Rund Abdelfatah?

  Roosevelt was determined to push through a second New Deal, which he saw as the only way to rescue the country from the ongoing depression. Congress was on board. The only thing that stood in his way was the Supreme Court, which was threatening to strike down that deal, too.

• 32:06Speaker 02

  And he's putting more and more pressure on the court, and they're still holding out to do it.

• 32:10Rund Abdelfatah?

  It was like a game of chicken. Who would blink first? Eventually, Roosevelt reached his breaking point.

• 32:17Speaker 03

  The President of the United States.

• 32:19Rund Abdelfatah?

  And decided to reset the rules of the game.

• 32:22Speaker 03

  I want, as all Americans want, an independent judiciary as proposed by the framers of the Constitution. He proposes a plan to add new justices to the court. What is my proposal? It is simply this. Whenever a judge or justice- It would allow a new justice, for every justice over the age of 70 not retiring. And at that time, the court was the oldest in American history, and that would have given Roosevelt six new appointees for a 15-member court. I seek to make American democracy succeed.

• 33:05Speaker 03

  You and I will do our part.

• 33:08Speaker 02

  It's disingenuous. You know, everybody understands why he's really doing it.

• 33:12Speaker 03

  He was going to point yes men to the court. And there's a cartoon of that era that shows you a jury box when everyone is filled with an image of FDR voting aye. And that's what people feared would happen, Republicans especially.

• 33:32Speaker 02

  It's not particularly popular, but it is still a huge amount of pressure on the court because he's Roosevelt and he's got a lot of political capital to use.

• 33:42Speaker 03

  You know, it's a warning shot that you've gone too far.

• 33:47Speaker 02

  And it's working its way through Congress and it's not clear what's going to happen.

• 33:52Speaker 06

  Roosevelt's court packing plan set off a heated debate in Congress. But this wasn't the first time a president had proposed changing the number of justices on the court.

• 34:02Speaker 02

  Turns out right now to be the last time, but it wasn't the first time at all, right?

• 34:06Speaker 06

  Back in 1801, John Adams did it right before leaving office.

• 34:10Speaker 02

  They shrunk the court from six to five so that Jefferson wouldn't get to make any appointments.

• 34:14Speaker 06

  But Congress increased the number to seven. Then Andrew Jackson added a couple and Abraham Lincoln added one more.

• 34:22Speaker 02

  Congress increases its size from seven to 10.

• 34:24Speaker 06

  Under Andrew Johnson, it shrunk.

• 34:26Speaker 02

  To seven so that he won't get any appointments.

• 34:29Speaker 06

  In 1868, Ulysses Grant was elected.

• 34:32Speaker 02

  They increase it again to nine.

• 34:34Speaker 06

  And it stayed there till Roosevelt came along.

• 34:37Speaker 02

  Roosevelt was the last serious effort. No one had ever doubted its constitutionality.

• 34:45Speaker 06

  And the way Roosevelt saw it.

• 34:47Speaker 02

  The court had this outmoded, outdated interpretation that did not fit the modern world at all and that there was no way that theirs should be the final and binding interpretation. So how do you push back at them to get them to stop striking down laws? You use the tools the Constitution provides, which include that the political branches get to decide how the court is made up. So I'm going to add some justices. It's a way to turn it around. They're all just ways of pushing these controversies back out to the people who are the ultimate deciders. People themselves are actually the interpreters of their own Constitution.

• 35:26Speaker 06

  With the court packing plan on the table, the future of the court was uncertain. And after months in limbo, the court retreats.

• 35:36Speaker 03

  The court packing plan just scared the hell out of the justices and caused what the best con law professor at the time, Thomas Reed Powell, said, "The switch in time that saves nine as the court changed."

• 35:54Rund Abdelfatah?

  In 1937, Roosevelt's Second New Deal was upheld. Case after case came before the court, and they basically just greenlit everything: a minimum wage, social security, the right of workers to unionize. And not long after...

• 36:11Speaker 02

  One of the five justices who were the conservative majority holding this all back, Van de Vanter, retires in the middle of all this, and Roosevelt is able quickly to replace him. So now, he's got the law that he wants, the court has retreated, he's got the court that he wants, so he lets the Court Packing Plan go. He doesn't need it. He's gotten what he needed. And in the next couple of years, the rest of them retire, and he's able to appoint other justices.

• 36:32Rund Abdelfatah?

  So Roosevelt did get the court he wanted, just not in the way he expected.

• 36:38Speaker 03

  From the time of the Court Packing Plan onward, the court simply rubber stamps the federal government. Whatever the federal government does, the court is going to approve.

• 36:52Rund Abdelfatah?

  But the court's bid for judicial supremacy wasn't over just yet.

• 36:58Rund Abdelfatah?

  Tucked away in one of the cases decided by this court was a footnote that said...

• 37:03Speaker 02

  "We are reserving heightened judicial entanglement in a certain number of areas." And they refer to discreet and insular minorities and the protection of individual rights.

• 37:13Rund Abdelfatah?

  Individual rights: life, liberty, the pursuit of happiness.

• 37:17Speaker 02

  Nobody paid much attention to that footnote, because in 150 years before then, none of those issues had actually been major issues in constitutional law. So it'd be like me saying, "I'm gonna let you control the whole house, but I'm gonna keep this corner over here." Like, "Fine, keep that corner. What do I care?"

• 37:33Rund Abdelfatah?

  To be clear, that corner was the civil rights corner.

• 37:37Speaker 02

  And then, what the Warren Court does is pick that up in ways that actually nobody had really thought would happen, and runs with it. Takes those doctrines and turns them into major issues of constitutional law for the first time.

• 37:57Speaker 06

  When we come back, we enter the Warren Court era, and the battle for judicial supremacy reaches a tipping point.

• 38:16Speaker 02

  This is Dano from Phoenix, Arizona, and you're listening to Throughline from NPR.

• 38:22Speaker 00

  Stay tuned for the following announcements and messages from our sponsors. This message comes from iXL, a learning platform for helping kids build confidence and get up to speed fast. One subscription covers math, science, and reading for all children in a household. Receive 20% off at ixl.com/npr.

• 38:43Speaker 02

  This week on Up First, we're in the final days before the midterm elections. And this is one of the wonderful things about politics, one of the wonderful things about humanity. We have all this data. We have all this information, and nobody really knows what's gonna happen. We're gonna follow it day by day, through Election Day and beyond. And you can listen to Up First every morning on the NPR app or wherever you get your podcasts. Midlife brings a lot of changes. Your Turn with Alison Aubrey is a new podcast to help you navigate the twists and turns. From health and relationships to creativity and purpose, we can help steer your next chapter with Your Turn with Alison Aubrey. Find it on the NPR app or wherever you get your podcasts.

• 39:30Speaker 02

  Part Three: The Ceiling and the Floor.

• 39:37Rund Abdelfatah?

  Little Rock, Arkansas, and the first phase of the trouble. The white population are determined to prevent colored students from going to the school their own children attend. Picketing the school, they crash for the park. Little Rock, Arkansas, September 25, 1957. An angry mob stands outside Central High School, a formerly all-white school, waiting to see if nine black students will show up. Mini Jean Brown Tricky was one of those students.

• 40:04Speaker 03

  The world came to Little Rock to see what would happen.

• 40:10Rund Abdelfatah?

  Years of rising tensions had led to this moment. Here is the sequence of events in the development of the Little Rock.

• 40:17Speaker 06

  Little Rock School case.

• 40:20Speaker 06

  In 1952, the issue of school segregation went to the Supreme Court in the case Brown v. Board of Education. A lawyer named Thurgood Marshall, then the chief attorney for the NAACP, argued for the plaintiffs. He argued that segregation in schools was a violation of the 14th Amendment of the Constitution, and the court unanimously agreed. They ruled that segregation in public schools was unconstitutional.

• 40:50Rund Abdelfatah?

  Now, states across the country had to figure out a way to integrate their schools, which made a lot of people, especially in the South, really angry. They resented the idea that the federal government could just come into their state and tell them what to do.

• 41:13Speaker 03

  We are going to maintain segregated schools down in Dixie.

• 41:18Speaker 06

  And that included Little Rock.

• 41:23Speaker 06

  In 1955-

• 41:24Speaker 03

  The Little Rock School Board approved a moderate plan for the gradual desegregation of the public schools in that city.

• 41:32Speaker 06

  But white community members refused to carry out that plan, so the courts pushed back. The Supreme Court issued a follow-up decision, known as Brown II, ordering school districts to integrate. And in Arkansas, a federal district court judge followed up with another order.

• 41:52Speaker 06

  Still, the community resisted vocally and sometimes violently.

• 42:01Speaker 03

  It's just chaos in the Little Rock schools, and it's impossible for the students to attend.

• 42:14Speaker 06

  And the protesters got backup from the governor of Arkansas.

• 42:17Speaker 02

  The governor calls out the National Guard. They're not going to allow the integration to take place.

• 42:21Speaker 03

  If it interferes for a time with certain other liberties, then that has always been the case. Which reminds me of a statement of Abe Lincoln one time when he said, "If I tried to answer all the charges that come to this office, that I might as well close up shop for any other business. That if I am right, then all the things they say don't matter in the end."

• 42:46Rund Abdelfatah?

  As pressure mounted to carry out the court's order, a mob formed outside the high school. Little Rock became a tinderbox, ready to ignite at any moment. And by September 1957, President Eisenhower decided he had to step in.

• 43:03Speaker 03

  Our personal opinions about the decision have no bearing on the matter of enforcement. Responsibility and authority of the Supreme Court to interpret the Constitution are very clear. Mob rule can not be allowed to override the decisions of our courts. Phase two. President Eisenhower sends troops of the 101st Airborne Division of the United States Army to Little Rock by night. They are to keep order and to see that the law of the land is obeyed.

• 43:37Rund Abdelfatah?

  Nine black students escorted by federal troops prepared to enter Central High School. They would come to be known as the Little Rock Nine.

• 43:55Speaker 03

  It's early morning in Little Rock, and a new school day is dawning.

• 44:05Speaker 03

  What about you, sir? Do you think the colored students will show up? If I got anything to do with it, they won't show up. They meet here and are conducted to school by the Army to make sure of their safety.

• 44:20Rund Abdelfatah?

  This was an important moment for the Supreme Court. The President had sent in federal troops to defend their decision, to back up their authority, but the drama wasn't over.

• 44:32Speaker 06

  A few months later, the Little Rock School Board petitioned to postpone their integration plan. That case, Cooper v. Aaron, eventually made its way to the Supreme Court. And the Supreme Court, feeling bold, decided that the state of Arkansas wasn't allowed to undermine their ruling in Brown v. Board. And then...

• 44:53Speaker 03

  They go way beyond that.

• 44:56Speaker 02

  The Court, for the first time, explicitly asserts that it is supreme in the interpretation of the Constitution.

• 45:02Speaker 03

  It was a claim of judicial supremacy, the likes of which had never occurred at the Supreme Court.

• 45:09Speaker 02

  And cites Marbury.

• 45:11Speaker 03

  Marbury versus Madison says it's the function and duty of the Supreme Court to interpret the Constitution, but it didn't say everybody's bound by it.

• 45:21Speaker 02

  Right, but the Court takes a sentence out of context. So there's the famous line in it where Marshall says... It is emphatically the duty of the Judicial Department to say what the law is.

• 45:33Speaker 06

  As we learned earlier in the episode, what that meant in 1803 was that the Court could decide what the law is only in the case at hand. But in 1958, the Court was asserting that it had carte blanche power. A decision in one case applied to everyone, everywhere in the country. In other words, judicial supremacy.

• 45:55Speaker 03

  We set the floor and we set the ceiling.

• 46:01Rund Abdelfatah?

  Thing is, not everyone was bought into the idea of judicial supremacy yet.

• 46:06Speaker 02

  It's greeted with widespread skepticism because remember, most of the people on the left had fought the earlier court battles. They were Roosevelt people, and the idea of judicial supremacy was anathema to their understanding.

• 46:18Rund Abdelfatah?

  How could they give final say power to a court that had stood in the way of so much legislation they believed in?

• 46:24Speaker 02

  But there is a new generation of rising liberals who, seeing an activist liberal court, like, love this. So they embrace the idea of judicial supremacy because they're looking at a court that's enabling them to do all sorts of things that they think are good and right and important.

• 46:42Speaker 03

  I believe that we can and that we must restore integrity in government and the confidence of people in the integrity of their government.

• 46:55Rund Abdelfatah?

  This is the voice of Earl Warren. He was chief justice of the court during both Brown v. Board and Cooper v. Aaron, which marked the beginning of what would come to be known as the Warren Court era. And over the next decade, the 1960s, under his leadership, the court will expand its power like never before. I think on this day, many of us didn't realize just how important our movement with those people.

• 47:25Speaker 03

  The real invader is integration. Unless we integrate, we shall very quickly. The people will get to the promised land. My eyes have seen the glory of the promised land.

• 47:44Speaker 03

  The 60s are a time of incredible ferment because African-Americans in the South are starting to demand the rights that the Constitution gave them a century earlier. You've got Martin Luther King. You have demonstrations. You have citians. You go to a counter and sit down beside him. You cause no violence. You're friendly. It sort of helps to project the idea that here sits beside me another human being. And the South is fighting to maintain white supremacy.

• 48:27Speaker 03

  Well, it's just not the things we're used to down here. I mean, because I wasn't raised with them. I never have lived with them, and I'm not going to start now. And the court is at the forefront of the national government in trying to bring civil rights to the fore.

• 48:45Rund Abdelfatah?

  Remember that footnote in the case back in the Roosevelt era? The one about the civil rights corner being reserved for the Supreme Court to look at cases in which civil rights might have been denied? Well, during the 1960s, the Supreme Court started getting case after case relating to civil rights issues. And in case after case, the court ruled in favor of expanding civil rights nationwide. It was slowly setting the precedent on the most important issue of the day.

• 49:15Speaker 06

  And the real tipping point came in 1963. President Kennedy is reported to be fighting for his life in a Dallas hospital, but reports conflict. CBS says he is dead. After John F. Kennedy was assassinated, Lyndon B. Johnson replaced him as president.

• 49:34Speaker 03

  When Lyndon Johnson takes the presidency, he tells the country that the legacy of John Kennedy is civil rights, and to cement it, we need the Civil Rights Act. This Civil Rights Act is a challenge to all of us. Something that Kennedy might not have been able to get passed, but Johnson is able to get passed. To go to work in our communities and our states, in our homes and in our hearts, to eliminate the last vestiges of injustice in our beloved country.

• 50:10Speaker 03

  And the Court can look at the Civil Rights Act and say, "We were right, and now Congress agrees that we were right."

• 50:21Rund Abdelfatah?

  A decade after Brown v. Board, Congress and the President were agreeing with the vision first proposed by the Court: A desegregated nation with equal rights for all.

• 50:31Speaker 03

  The Court is identified quite properly as the vanguard in civil rights among the branches of government. So it's a tremendous validation by Congress of what the Court had been doing. And Lyndon Johnson, at one time, a couple of years later, stated, "Never in American history have the three branches of government worked so well together." You have each of the branches of government doing what it can do to further the national interest.

• 51:07Rund Abdelfatah?

  In other words, there was no pushback. All three branches had the same shared goals, which meant they weren't going to stand in each other's way.

• 51:15Speaker 06

  And just as fast as the federal government's power was growing, state's power was shrinking.

• 51:22Speaker 03

  There's no doubt that the Court has very little respect for states' rights. So what you have is a nationalization of criminal procedure, forcing a number of states, all of a sudden states, a number of northern states, to change the way that they do business.

• 51:46Speaker 03

  Furthermore, the Court, for the first time, gets involved in elections.

• 51:52Speaker 04

  This is a voting rights case. It's brought here on a--

• 51:58Speaker 03

  It says that, you know, it's not a problem for the federal judiciary to evaluate state and federal elections.

• 52:06Speaker 04

  They are the intended and actual victims.

• 52:10Speaker 04

  of a statutory scheme which reduces their right to vote to about 1/20 of the value of the vote given to certain rural residents.

• 52:22Speaker 03

  And then that turns out to be one person, one vote?

• 52:27Speaker 06

  One person, one vote. In a series of Supreme Court cases that came to be known as the apportionment cases, the court decided that electoral districts had to be divided up according to population size.

• 52:40Speaker 04

  We're not arguing for absolute mathematical equality here. We're asking for the reasonable equality required for the 14th Amendment.

• 52:47Speaker 06

  Therefore, making each district roughly equal in population, which meant black voters would be more fairly represented in their districts.

• 52:56Rund Abdelfatah?

  In the eyes of liberals, the court was behind a lot of the success of the civil rights era. And by the late 1960s, any doubts they'd had about judicial supremacy were pretty much gone.

• 53:08Speaker 03

  Liberals, a big skeptical of the court from the New Deal period, are changing. Hey, this is working.

• 53:17Rund Abdelfatah?

  Plus, there was now a black Supreme Court justice, the first ever.

• 53:22Speaker 04

  Historians will note this hour at the White House. In a Rose Garden ceremony, a 58-year-old great-grandson of a slave is nominated by President Johnson to be a Supreme Court justice. He is Solicitor General Thurgood Marshall, acknowledged the best-known Negro lawyer of the century.

• 53:38Rund Abdelfatah?

  As for conservatives who hated the decisions of the Warren Court, they were still totally fine with the principle of judicial supremacy. They were just biding their time till the court flipped conservative again.

• 53:51Speaker 06

  So for the first time in American history, there was consensus across the board that the Supreme Court should have the final say over the Constitution.

• 54:01Speaker 02

  So that settles that who has final authority debate. And the debate shifts from who has final interpretive authority, now everybody says it's the court, to how the Constitution should be interpreted.

• 54:22Speaker 04

  At almost midday Eastern time, NBC News projected Richard Nixon, the 37th President of the United States. It was so close, it took forever, but he won it.

• 54:31Speaker 06

  It was, again, one of the closest elections in American history. After Richard Nixon, a Republican, was elected President in 1968, the tables began to turn on the court. Over the next few years, Earl Warren and several other liberal justices would leave the court, and Nixon would replace them with more conservative justices.

• 54:53Rund Abdelfatah?

  As the Warren Court era wound down, the court tried to advance individual rights. Its swan song was Roe v. Wade, in which the court ruled that restricting access to safe and legal abortion was unconstitutional.

• 55:09Speaker 03

  Roe versus Wade is the last gasp of that reforming liberalism.

• 55:19Rund Abdelfatah?

  And from that point on...

• 55:21Speaker 02

  It's been a steady march to the right in terms of the court's ideology. The irony is, the subsequent courts have been using the Warren Court's credibility, the court's credibility from the Warren Court, to undo everything the Warren Court accomplished over the last 50 years. So, most of what the court has done has been trying to reverse decisions and trends and bodies of doctrine that the Warren Court set into motion.

• 55:46Speaker 03

  Fortunately, they're saying, "You guys showed us how to do it, now we're gonna do it our way." You had your Warren Court, we want our Warren Court. And that may be what the three Trump appointees to the Supreme Court will provide, that now the Republicans may have their Warren Court.

• 56:09Speaker 02

  And it doesn't matter whether it's a liberal court like the Warren Court, a moderate court like the Burger Court, or a conservative court like the Rehnquist and Roberts Courts, all of them have been the same in this, which is they just keep expanding their power because there's nobody pushing back.

• 56:40Rund Abdelfatah?

  That's it for this week's show. I'm Randa Abdel Fattah, and you've been listening to Throughline from NPR. This episode was produced by me, Ramtin Arablouei, and Jamie York, Lawrence Wu, Laine Kaplan-Levinson, Julie Kane, Victoria Whitley Berry,

• 56:55Speaker 02

  Parth Shah.

• 56:56Rund Abdelfatah?

  Thank you to Austin Horn, Travis Lux, Pranjali Shah, and Jess Berry for their voiceover work. Thanks also to Irene Noguchi, Julia Redpath, Yolanda Sangwene, Beth Donovan, Leanna Simstrom, and Anya Grunman. Our music was composed by Ramtin and his band Drop Electric, which includes Navid Marvi,

• 57:16Speaker 03

  Sho Fujiwara,

• 57:17Rund Abdelfatah?

  Anya Mizani. If you have an idea or like something on the show, please write us at [email protected] or leave us a review on Apple or Spotify. Thanks for listening.

• 57:38Speaker 02

  Stay tuned for the following announcements and messages from our sponsors. This message comes from Bombas. For every item purchased, they donate an item to someone who needs it. Bombas customers have powered over 200 million donations. Go to B-O-M-B-A-S dot com slash NPR for 20% off your first purchase.

• 57:59Rund Abdelfatah?

  Midlife brings a lot of changes. Your Turn with Alison Aubrey is a new podcast to help you navigate the twists and turns. From health and relationships to creativity and purpose, we can help steer your next chapter with Your Turn with Alison Aubrey. Find it on the NPR app or wherever you get your podcasts.

• 58:17Speaker 00

  Support comes from NPR sponsor AARP.