Constitution Breakdown #6: Adam Liptak

This month, Roman and Elizabeth discuss Article III, which establishes the judicial branch, alongside New York Times chief legal affairs correspondent, Adam Liptak.

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

• 0:00Roman Mars?

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• 1:54Roman Mars?

  This is the 99% Invisible Breakdown of the Constitution. I'm Roman Mars.

• 1:59Speaker 01

  And I'm Elizabeth Jo.

• 2:01Roman Mars?

  Today, we are discussing Article III, which establishes the judicial branch of the federal government. Article III is much shorter than the first two articles that we've covered so far. It begins, "The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office." Article III goes on to talk about the jurisdiction of the federal courts, or which types of cases they're allowed to hear. These include disputes about treaties, federal laws,

• 2:46Roman Mars?

  and of course, the Constitution. But just as important as what's in Article III is what is not in Article III. More on that later. Our guest for this episode is Adam Liptak, who covers the Supreme Court and other legal issues for The New York Times. He started his career as a lawyer before transitioning to reporting almost 25 years ago. Adam's depth of knowledge about the Supreme Court and Article III makes him the perfect guest. We talk about the legacy of the Roberts Court, why reforming the court is so difficult, and what it's like to be a Supreme Court reporter. But we start with what Adam believes surprises people most about this part of the Constitution.

• 3:26Speaker 02

  I guess they think that it's an elaborate description of our sprawling federal judicial system, when in fact, all it does is create a Supreme Court. It doesn't even specify its size. And it leaves the Congress a lot of the detail work.

• 3:44Roman Mars?

  Yeah. And so what are some of the important things that we should know about this part of the Constitution?

• 3:51Speaker 02

  Well, I think a key point is that it's Article 3, which is to say that the framers envisioned Congress as taking the lead role. It's a little hard for us these days to imagine that, you know, a muscular legislature was supposed to be the primary actor in the constitutional structure, the lead actor. Article 2, you know, an energetic president executing the laws that Congress enacted. And then bringing up the rear, what some of the framers called the least dangerous branch, its role kind of uncertain, not a very appealing job at first. People didn't particularly want to be Supreme Court justices.

• 4:34Speaker 02

  You know, the Supreme Court, which we'll talk about this over time, has taken on great stature and power, but in the beginning was almost an afterthought as a way to, you know, adjudicate a small set of disputes between, say, citizens of different states.

• 4:54Speaker 01

  Well, maybe that's something we could talk a bit more about. You mentioned Congress having a role. So maybe people don't quite understand what that, at least theoretical, power is. So how much power does Congress have over the Supreme Court?

• 5:06Speaker 02

  Well, for instance, it can set the size of the Supreme Court. That's by legislation. You don't need a constitutional amendment. It has been as small as five, as large as 10. And some of that court packing, call it, and court shrinking has been done for political reasons. Now, it's been steady at nine for a long time, and that norm may stick, although there was a lot of talk in the Biden years from the left that the court should be expanded because of... Progressives on happiness with some of the Supreme Court's decisions. But that's one respect in which Congress has a lot of power.

• 5:45Speaker 02

  It has some power, it's sort of untested, in telling the court what cases it can hear. And jurisdiction stripping is a thing. For instance, in the realm of habeas corpus law, it has told the court and lower courts what kinds of cases can be brought in federal court and what cannot.

• 6:06Speaker 01

  Maybe we could pause for a moment and sort of expand that for folks who might not be familiar with this idea. What is jurisdiction stripping exactly?

• 6:12Speaker 02

  Well, for starters, the Supreme Court doesn't get to decide every case in the world. It only gets to decide cases arising from federal law or the Constitution with, you know, some scattered exceptions. But it's not a court of general jurisdiction. And then Congress can also tell it that it can decide some sorts of cases and not others. And so that, how far Congress can go down that road is quite untested, but it can go down that road at least some part of the way. So, you know, we talk about the separation of powers, but the three branches also have intersecting powers.

• 6:56Speaker 02

  And Congress's power in shaping the Supreme Court and the federal court system is pretty substantial.

• 7:03Speaker 01

  So I know that over the years, members of Congress have proposed things like, we want to make sure that the federal courts maybe can hear issues on school desegregation or abortion or school prayer. So these come up, I think, for political reasons, but they never get very far. And I've always been curious why Congress has never gone maybe as far as it possibly could and test those limits. I don't know if you have a view on that.

• 7:26Speaker 02

  I think it's a, it's a kind of... Deep American norm that it would be untoward, it would be unseemly, it would be unjust to do it, but I'm not sure that the Constitution wouldn't allow it. I think probably if Congress were to do something along those lines, perhaps in an uncontroversial area like patent law, it ought to have to be prospective. It would be problematic probably for Congress to say that in pending cases, the court has to do X or Y, although there are cases that reach the court where statutes are quite specific,

• 8:08Speaker 02

  including by docket number, saying that they have to be resolved one way or the other. And the court has basically gone along with those congressional enactments. So your larger point, Elizabeth, is quite right, that we don't know how much power Congress has, but Congress hasn't tried to exercise it very much.

• 8:27Speaker 01

  Right, I mean, I think maybe some of the most significant cases about jurisdiction stripping and even taking some cases away, even from the Supreme Court itself, you know, the biggest ones go all the way back to the Civil War era. And that suggests that there's some, as you've mentioned, this timidity or kind of uncertainty in the Congress being reluctant to force that issue as far as it can go. And maybe you're suggesting that if Congress were to go that far, maybe that would really be a pointer of, that would really point us to some sort of constitutional crisis moment. Oh, if we haven't reached that already.

• 9:02Speaker 02

  Right, well, also, the political branches are accountable to the electorate, and it's entirely possible that people wouldn't put up with it. Just as FDR, who could not have been more popular in the polls and commanded supermajorities of support in both houses, couldn't get court packing done because the public wouldn't put up with it. So, I mean, one reason politicians may not do it is because it's at least possible the public won't stand for it.

• 9:33Roman Mars?

  But also, like, the Congress wouldn't stand for it. Like, it wasn't, like, all lockstep behind the executive back then.

• 9:39Speaker 02

  Yeah, well, we do live in different times, so.

• 9:45Speaker 01

  And that's also, we talked about the authority of Congress to maybe limit the kinds of cases that the federal courts and even the Supreme Court itself can hear. But, you know, we should also mention here, Congress has a great deal of power over the very structure and funding of the courts. And I guess that too could be a kind of source of power or control from Congress. But we haven't seen too much of that either. Is that right?

• 10:07Speaker 02

  Right. This came up a little bit and it's basically political statements. But the question of whether you can impeach judges and justices because you don't like their rulings was kind of tested early in the life of the republic. And the consensus view after Samuel Chase was impeached by the House but acquitted by the Senate was that we're not going to have that kind of system, which in much of the world happens, that you sort of get new judges with a new administration. And we will impeach judges for authentic misconduct, but not for disagreement with how they rule, or at least not so far.

• 10:50Roman Mars?

  So we've talked about that there isn't a lot in Article III. But of the stuff that is in Article III, what are some of the important things that, like you would teach your students, Elizabeth, for example, and what should we know?

• 11:01Speaker 01

  Well, certainly, the, some of the topics we've just discussed, this idea that Congress does have a significant role, which it hasn't always exercised to its most extreme in the kinds of cases that the federal courts in general and the Supreme Court can hear. What's also in Article III is this idea that the federal courts are courts of limited jurisdiction. And that's just a fancy way of saying the federal courts can't actually hear every single kind of case. You know, your average slip and fall, your contract dispute, generally those are for the state courts. And in fact, most of the criminal justice cases in the country are within the state court systems rather than federal courts.

• 11:41Speaker 01

  So as powerful as we think the federal judiciary is, and it is, it actually can only hear a circumscribed number of different types of cases. So that's really important. And then I think, you know, so much of this is thinking about how the court itself has interpreted the very part of the Constitution that regulates it. You know, the Article III is just six paragraphs. So there's not a whole lot there.

• 12:05Speaker 02

  I might point to a distinctive feature of the American federal judicial system, which is that judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, which is to say that they have life tenure.

• 12:23Roman Mars?

  Yeah.

• 12:24Speaker 02

  They can be impeached, but otherwise, they get to decide when they will step down. We are the only developed nation in the world without either a mandatory retirement age or term limits, and that is not widely thought to be a good thing. It leads to questions about people serving longer than they should, about cognitive decline, and it also injects an element of politics at the back end of Supreme Court service. It's bad enough that Supreme Court justices are appointed through an intensely political

• 13:05Speaker 02

  process, nominated by a politician, the president, confirmed by 100 politicians in the Senate. But then, this idea of good behavior ought to give them a measure of independence, and also that their pay can't be diminished. So that's meant to insulate them from politics. But then, on the back end of their careers, they get to decide whom they're going to retire under, and they tend to try to retire under a president whose politics are simpatico with their own. And that brings an element of politics as a kind of bookend to this process. And, you know, I guess I submit that that's problematic and unfortunate.

• 13:50Roman Mars?

  Yeah, yeah. And since this is one part that actually is in the Constitution, or it could be interpreted that way, if you were to consider term limits for Supreme Court justices, that would actually require an amendment. Is that correct?

• 14:03Speaker 02

  Yes, that's right. So it's kind of a weird paradox, or incompatibility, or something, where the reform that is widely

• 14:16Speaker 02

  Accepted by the public and legal scholars and so on of term limits or mandatory retirement age requires a constitutional amendment, which means it ain't never gonna happen.

• 14:27Roman Mars?

  Exactly.

• 14:28Speaker 01

  Right.

• 14:28Roman Mars?

  Like, the proper remedy is the hardest one to actually get done.

• 14:32Speaker 02

  Whereas expanding the size of the court, many people think is a bad idea because it will just result in a kind of tit-for-tat expansion and we'll have a Supreme Court of 90 people. And at least the current Supreme Court thinks that the phrase in the Constitution, there shall be one Supreme Court, means that they have to sit in a single panel. It would become pretty unwieldy pretty quick. But that doesn't require a constitutional amendment. That can be done by simple majorities of the two houses.

• 15:04Speaker 01

  Yeah, I think actually one effect of the life tenure of all federal judges, including the Supreme Court justices, is that they subsequently attain this kind of celebrity. You know, they served for so long that, you know, a lot of people, though not all, of course, a lot of people know who the justices are. And that seems so at odds with, you know, some of the statements that I remember from Roberts's confirmation hearings. You know, he famously said, "The job of a judge is to call balls and strikes." But the thing that struck me in particular is that he says before the Senate, "Nobody ever went to a ballgame to see the umpire." But it strikes me that that's your whole job, isn't it? To watch the umpire, in this case.

• 15:46Speaker 02

  Right. Also, I mean, they wear black robes to signify a kind of anonymity and disinterestedness and dispassion. And this idea that they go on book tours and go on TV, and go on TV kind of slanted in the ideological direction that their rulings might suggest, I don't think the framers envisioned that.

• 16:09Speaker 01

  Right. And Chief Justice Roberts's term has coincided with your time at the New York Times reporting on the court. So, you know, my question is, what do you think are some of the most important ways that the Roberts Court has changed our understanding of the Constitution itself from your vantage point, from your long tenure watching them?

• 16:31Speaker 02

  Well, that's a big question, and it's hard to give a general answer.

• 16:36Speaker 01

  Sure.

• 16:36Speaker 02

  I guess... So two thoughts come to mind that you think of the Roberts Court as an unbroken 2021 year entity, but really I'd separate it out with the Kennedy years where it was a 5-4 court that leaned right, but not always with Justice Kennedy in the middle, who would, you know, more than occasionally join the then four liberals in cases on abortion, affirmative action, the death penalty, and especially gay rights to deliver liberal victories. So you had a court that seemed to a lot of people to be more balanced. And

• 17:17Speaker 02

  then with his retirement and the appointment of three Trump justices, you enter a different era where it's more lopsided and predictable. The other thing I might say about the Roberts era is that what some people call the democracy docket has kind of gone in one direction with the Rucho redistricting case, the Citizens United campaign finance case, the Shelby County case on the Voting Rights Act, all seeming to make it harder for the less powerful to have an influence in the democratic process.

• 18:00Speaker 01

  And, you know, that's the democracy docket. And I think a lot of folks are turning now to the court's decisions during the second Trump administration. And do you have a sense of what is the Roberts Court's view of the presidency that you have observed? Like, what's the view of what the executive branch, the extent of its powers are?

• 18:21Speaker 02

  You know, it may well be that the most important decision of the entire Roberts tenure is Trump against the United States, the immunity decision, partly because of the practical impact of ensuring that then candidate Trump wasn't tried on the charges Jack Smith brought against him, but more for its vision of unbridled executive power, which maps onto or maybe even emboldened President Trump to pursue his maximalist vision of executive power. That decision is in tension with Elizabeth, the kind of balls and strikes.

• 19:05Speaker 02

  A version of judging that you described. And I don't know that is a matter of judicial craft. It was the chief justice's finest hour. And then you have this spate of, you know, more than 20 decisions on what critics call the shadow docket, these emergency orders that raced to the court on thin briefs and typically no oral argument and decided often in a matter of weeks with sometimes no reasoning and sometimes very scant reasoning. Where Trump has won the vast majority of them. He did face a setback in the Illinois National Guard deployment case.

• 19:47Speaker 02

  He may well lose on the merits docket, on the argued cases, in the tariffs case, in the birthright citizenship case, maybe even on his attempt to fire Lisa Cook, the Fed governor. So it may be that by the end of the term, we have a more balanced perspective on the Roberts Court. But currently, President Trump is getting almost everything he wants out of this court.

• 20:11Speaker 01

  Right, so let's step back for a moment. For those who aren't familiar, the idea of the merits docket is sort of the traditional view we have of the Supreme Court, where lawyers file briefs, there's oral argument before the full court, there's some period of time in which we're all waiting for a decision, and then a majority opinion and perhaps concurrences and dissents are issued. Could you say more about what the emergency or shadow docket is for people who aren't familiar with that idea?

• 20:37Speaker 02

  It has many flavors, but the basic idea is this. A president initiates a new program. And all presidents do this, but not quite as aggressively as President Trump in his second term. Some executive order happens, and it's challenged in court. And let's say a trial judge says, I'm going to block it while the litigation goes forward. I think this is probably unlawful, I'm going to block it. And we'll figure out whether it's lawful over the next 18 months, two years. It takes a while to litigate this stuff. And so a presidential program is frozen, and that's, you know, that's a big deal. It goes up to an appeals court, and the president's lawyer says,

• 21:22Speaker 02

  Please unblock it. Please let this program go into effect while the litigation goes forward. And let's say the appeals court says, no, we're not going to stay the injunction. We're going to let the program remain blocked. And then it races up to the Supreme Court and the Supreme Court says yea or nay. And all of this happens very fast and in this preliminary posture, without the facts being fully developed, without the legal arguments being fully developed, on thin briefing, one round of briefing, no oral arguments. My best understanding is the justices never meet to discuss the case.

• 22:04Speaker 02

  They exchange some memos and they give birth to an order, which quite often is just thumbs up, thumbs down, you win, you lose, often with elaborate dissents. But the actual opinion can have no reasoning or very slight reasoning. And then a recent development is that nonetheless, lower courts are meant to treat these orders with like zero reasoning as binding precedent and make sense of them. So, I mean, I don't think anybody's crazy about this shadow docket. Some people call it, some people call it the emergency docket.

• 22:47Speaker 02

  Lately, the court likes to call it the interim docket. Some people call it the short order docket. It's not good in two senses. Nobody thinks the court does its best work on a rushed basis. Whatever else you can say about the court, its decisions on the merits docket and the argued cases are reasoned and engaged and tell you what the basis for the ruling is. And these shadow docket rulings do not. And also, I mean, just as a general idea of the nature of law. Is that the political branches claim legitimacy by dint of having been elected,

• 23:31Speaker 02

  by dint of democracy. The judicial branch claims legitimacy by dint of reason, by dint of persuasion. And when that's missing, it's hard to see how the branch is legitimate at all.

• 23:45Roman Mars?

  Yeah.

• 23:45Speaker 01

  I guess one question is just to look at the sheer amount of wins that the Trump administration has had on the emergency docket. Is there anything other than pure partisanship that can explain that just the fact that the Trump administration generally will tend to win in these cases?

• 24:04Speaker 02

  I think the conservative justices are generally inclined to defer to the executive branch. And I'd like to say whether the president is Republican or Democratic, but the political science data don't quite bear that out.

• 24:23Roman Mars?

  Yeah. Well, I have a shadow docket. It seems like the whole system that was established with Article III is a slow system. It's not meant for things to happen quickly. Is there any reason why, or any reason why not, that they should just refuse all these things?

• 24:44Speaker 02

  So I have conflicting thoughts. On the one hand, it is a little surprising that a single district court judge, who might well have been, you know, if not selected by the litigants, at least sitting in a place. You know, if you're a Republican, you go to Texas.

• 25:06Roman Mars?

  Yeah.

• 25:07Speaker 02

  If you're a Democrat, you go to San Francisco or Boston.

• 25:09Speaker 01

  Right.

• 25:10Speaker 02

  You're likely to get someone kind of favorable to you. And that that person, that single judge, should be able to decide for a matter of maybe years to shut down a major initiative of an elected leader of a great nation. That might be a decision for the Supreme Court to make.

• 25:32Speaker 02

  On the other hand, the Supreme Court's general attitude on the merits docket, on the usual docket, on the argued case docket, is our default is we don't take the case. It may have been wrongly decided, but we take one out of 100 cases.

• 25:48Roman Mars?

  Yeah.

• 25:49Speaker 02

  And you file your petition, you take your chances, and we don't do error correction. We only decide cases that are, you know, that either have divided the lower courts or are really important. And I think at least in some of these shadow docket cases, that kind of attitude that, let's let this play out, and as you were saying, Roman, we'll get to it when we get to it. It'll reach us in the fullness of time.

• 26:21Speaker 01

  Well, I think that's, you know, one tension here, though, is that that is the traditional view of the courts in general and the Supreme Court in particular. But what seems to me notable about Trump's second term is just the sheer amount of conduct that seems to be challenged in court. And it's almost an attempt to flood the zone of things that raise all kinds of legal and constitutional questions. But that seems like a tactic that is deliberately intended to overwhelm the courts. I don't know if you have a sense of that kind of dynamic happening right now.

• 26:54Speaker 02

  So it's complicated, and it starts at the root. I mean, the root is that the administration has issued more executive orders than anybody else. And that gives rise to a lot of litigation, and a bunch of that litigation reaches the Supreme Court. But there is a kind of funnel. And while the Justice Department in general is not doing great work these days, the unit of the Justice Department that litigates before the Supreme Court, the Solicitor General's Office, continues to be an elite classy outfit. And it's been quite strategic in the cases it takes to the court. And it's possible to overstate this, but one reason why it's been as successful as

• 27:38Speaker 02

  it has been is that it's picked its best cases. It hasn't taken every case to the Supreme Court. It didn't, for instance, initially take The merits of the birthright citizenship case to the Supreme Court. It has slow walked its preposterous cases attacking law firms. And it's taken cases to the court where the court is already in earlier years indicated that it's sympathetic to the point of view, for instance, that the president can remove leaders of independent agencies. You know, that's not like a Trump idea. That's a Republican idea.

• 28:18Roman Mars?

  We have to take a break. When we come back, we talk about the modern Supreme Court's main function, which is not in the Constitution.

• 28:31Roman Mars?

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• 31:17Roman Mars?

  So we've been talking a lot about, basically about judicial review, about what the Supreme Court does. And this is a thing that is not in Article 3. Can we talk about the fact that this is the major purpose as we've seen it in the court and is not present in the Constitution at all?

• 31:37Speaker 02

  Right, well, I mean, without turning this into that class that baffles first-year law students.

• 31:43Speaker 01

  Which I just taught, by the way.

• 31:45Speaker 02

  Maybe you should tell the story of Marbury v. Madison.

• 31:49Speaker 02

  I mean, John Marshall was the genius. And he sort of announced that the court gets to say what the law is.

• 31:59Speaker 02

  Now, I think when he announced it, and I'm curious about your views, Elizabeth. You know more about this than I do. But when he announced it, I don't think he was announcing that it's the exclusive interpreter of what the law is. Members of the other branches have an independent obligation to assess their constitutional obligations. And only later did the court declare judicial supremacy, I think in Cooper against Aaron.

• 32:28Speaker 01

  That's right.

• 32:30Speaker 02

  But this idea that this kind of third tag along branch is actually going to take a leading role in telling people what the law is, as opposed to just deciding disputes. I mean, this came up in Trump against Casa, which was the first version of the birthright citizenship case that didn't really involve birthright citizenship. It involved the question of what is the power of district courts to impose so-called nationwide or universal injunctions, which is to say, can a district court not only bind the people before it, but also everybody else similarly situated?

• 33:12Speaker 02

  And in the process of arguing that case, the lawyer for the Trump administration, Solicitor General John Sauer, is asked by several justices, like, we get it, a district court can't do that. And that is how they came out in the end. But if we were to say that not only are the people in front of us bound by our opinion, but everybody else is, that's true, isn't it? And he said, oh, yeah, that's true. There's a great court.

• 33:42Speaker 01

  Right. Well, you know, it's funny, it happens to be a very convenient way for the court to also consolidate its own authority and power, of course. And, you know, this concept of judicial review, that not only do they interpret the Constitution, but they have the final say, which we could only ever disagree with through constitutional amendment, which rarely ever happens, of course. And that means that there are only a few theoretical limits to what the court can do. And that seems to be things like stare decisis, this idea, the reluctance to overturn prior precedent. But I have to say that, you know, it seems like there's a lot of instability happening right now in our sense of constitutional law. So, you know, for example, in my syllabus

• 34:27Speaker 01

  this semester, I actually have a section where I've told the students, this might not be good law by the time we get to it. The section on appointment and removals. And part of this is because we know the court is comfortable overturning even longstanding precedent. You know, Dobbs, the case that overturned a woman's right to an abortion in 2022 is maybe the the chief example here. So how do you, what do you make of the court's attitude to this idea, stare decisis?

• 34:56Speaker 02

  I don't know that the Roberts Court is any worse than earlier courts in overturning earlier decisions. Just as a matter of counting the cases in which it's used the words, we overrule X. It's done that at a similar and slightly lower pace than earlier courts. Now, that doesn't take account of the magnitude of what it's overruling. It doesn't take account of, for instance, the Harvard and North Carolina affirmative action cases where they don't actually mouth those words, we're overruling. And it doesn't take account of cases that that ought to be overruled. I mean, we certainly don't want Plessy and Korematsu and other

• 35:40Speaker 02

  parts of the court's shameful legacy to be in place. But in general, I take your point that this is a court that is, that does not lack in self-confidence. And the so-called stare decisis factors, the criteria the court says it looks to in deciding whether overruled cases are really quite malleable. And, you know, starting with, was the earlier decision egregiously wrong? Well, you know, that would seem to be in the eye of the beholder.

• 36:16Roman Mars?

  You mentioned this idea of them being self-confident in their rulings. But sometimes when I, my interpretation is just a layperson watching is that they have actually a lack of confidence that they feel if they ever made a ruling that contradicted the executive branch, that they kind of know they would lose and therefore they're trying not to force a constitutional crisis. Am I off-base there? Does that feel true at all?

• 36:46Speaker 02

  I think that is true, but it has not been true over time. I mean, I don't think they were very much afraid of Joe Biden.

• 36:53Roman Mars?

  Yeah.

• 36:54Speaker 02

  But we're now, we're now in an era where what was once inconceivable, that a president would simply disobey a ruling of the Supreme Court, is now at least plausible. I don't think likely, but at least plausible.

• 37:12Roman Mars?

  Yeah. And do you think they make decisions with that fear in their mind or thought in their mind?

• 37:18Speaker 02

  These are nine smart people and they live in the real world.

• 37:21Speaker 01

  I think another aspect of the court that, you know, maybe you can turn to, things that aren't in Article III exactly, but really important to the way the court works, the Supreme Court works today, maybe we could talk about standing, right? Let me go back for a moment and explain what I mean here. So, standing is a legal doctrine that the Supreme Court has interpreted from the idea in Article III that the federal courts are supposed to only resolve cases and controversies. In other words, they can't just provide advice to folks, they have to have a real-life case before them. So, one aspect of this idea of a case or controversy is that people with real injuries,

• 38:03Speaker 01

  and real injuries only, can bring cases in federal court. So, if you don't have a real injury, you don't really have a case and your case ought to be dismissed. So, it seems to me that this is a big hurdle sometimes in the Roberts Court, but it's a very unpredictable hurdle, depending sometimes on what the issue is. I wonder what your thoughts are on standing and the Roberts Court?

• 38:26Speaker 02

  As with sorry to say, this is malleable and opportunistic. And, I mean, John Roberts used to be a standing hawk and really didn't think...

• 38:41Speaker 02

  Marginal cases in which people didn't have much of a direct stake ought to be brought before the court. Just yesterday, as we're recording, he wrote an opinion in which a political candidate was found to have standing to challenge late mailed ballots. And some people thought that was inconsistent with some of his earlier rulings. I might step back and say that our system is different from some other countries. This insistence, at least in theory, that we have an actual case or controversy, which is language from the Constitution, is not universal. There are constitutional courts around the world which will answer questions in the

• 39:26Speaker 02

  abstract, or which will, you know, a legislature will say, we want to enact this law, is it constitutional? And I don't know that that's a bad system. This insistence that we round up a plaintiff somewhere, that we're only going to decide if affirmative action is constitutional, if we can round up a 19-year-old who's willing to be at the face of... It's not obvious that that's the right way to run a judicial system.

• 39:50Roman Mars?

  Yeah.

• 39:50Speaker 02

  But it is our way.

• 39:51Roman Mars?

  Yeah, I don't know if people really quite grasp that. Basically, that is required, A, and B, how odd that really is when you think about it.

• 40:01Speaker 01

  Yeah, and maybe we could just put some, flush this out just a little bit. I think, Adam, you know, what you might be referring to is, you know, there have been a couple of cases before the Roberts Court. For example, there was the case of the website designer. She said she was going to refuse to design a website for any same-sex couple who was going to ask her to design a website for their marriage. There's a lawsuit involving her refusal, but the problem is she never created a website and no same-sex couple had ever actually asked her to create a website for their marriage. So it wasn't even clear what kind of controversy or dispute she had. So it seemed to a lot of folks before the Supreme Court heard that case, that she doesn't have standing. How could she possibly have standing?

• 40:44Speaker 01

  But the Supreme Court didn't seem remotely bothered by this at all and went on to resolve the case. In her favor. But yeah, on the other hand, if you have an issue like we saw pretty recently during this administration, the shadow docket ruling about the roving immigration raids in Los Angeles, the court allowed the Trump administration to go forward with that. And Justice Kavanaugh wrote a long, concurring opinion explaining why he thought the district court's pause on those raids ought to be lifted. And one of the things he pointed out was, look, I don't even think that these folks have standing to ask for a forward-looking stay or an injunction on immigration officials.

• 41:28Speaker 01

  Again, you know, we could say that maybe these are principled uses of this doctrine, but they also seem to coincide with an agreement or deference to executive power.

• 41:38Speaker 02

  Yeah, I mean, I could make the counterarguments in both cases, but I but I take your general point that this is not a doctrine that actually does a lot of work in keeping cases out of court that the court actually wants to decide. It can be a way to get rid of cases it doesn't want to decide.

• 41:59Speaker 01

  Right. I mean, it seemed to be no hurdle to the court deciding whether or not President Biden could cancel billions of dollars of student debt.

• 42:08Speaker 02

  Based on some servicing companies attenuated interest and hundreds of millions of dollars turned on whether Mohila, was it?

• 42:22Speaker 01

  Right.

• 42:23Speaker 02

  It did not have standing.

• 42:24Speaker 01

  A little bit of background, this is the student loan challenge to the cancellation of loans. And basically, the idea is, well, you know, the states argue that who brought this case, you can't do that because you're going to reduce funds in the Treasury. That's the classic, you can't bring this kind of lawsuit, you're just yelling at the TV kind of lawsuit, right? But Missouri said, well, we created this independent nonprofit called Mohila, and they service the loans. And if the loans are canceled, then this independent nonprofit suffers an economic harm. I mean, it wasn't even a party in the case. But nevertheless, as Adam points out, I think the Supreme Court really wanted to decide this case. So conveniently, it was, you know, thought that there was standing, insufficient standing for the case to be decided.

• 43:08Speaker 02

  That's amazing.

• 43:10Roman Mars?

  I want to ask you a little bit about covering the court and interpreting it for for people for your paper. You know, these decisions, they're long, they are complicated to read, and you have to digest them and report them very, very quickly. Could you talk about the challenge of that?

• 43:28Speaker 02

  You know, Anthony Lewis, the great Supreme Court reporter, used to tell me, you spend many months getting ready for a few days in June. So if you're doing your job right, you will have read the briefs at the early stage of when the parties are asking the court to hear or not hear the case. You'll write a story about the court's decision to hear the case. You'll maybe do a setup piece on the parties to the case. You'll go to the argument. You'll read the briefs in connection with the merits briefing, write a story about the argument.

• 44:10Speaker 02

  You will have steeped yourself in the mechanics of it. And I should also say that if you do it long enough, the court tends to decide the same set of issues over and over again. So you have a pretty good sense of how they think about things. And then, as the decisions approach, you write alternative drafts of how it might come out. Or more strictly speaking, you write what journalists call B-matter, which is just background material that's going to be the same regardless of what they do. And in the earliest versions of the stories, basically just a who won and who lost.

• 44:48Speaker 02

  And in a really big story, we will publish, you know, within a matter of minutes, assuming that I can figure out at least that much.

• 45:02Speaker 02

  A very quick story and then almost immediately go back in with a vote count and a couple of quotes and only then sit down and it might take me an hour to really read the decision with care and get a sense of its architecture and the dialogue between the dissent and majority and concurrences, if there are any, and a sense of where this fits in doctrinally and what the consequences might be. And then by, you know, the early middle afternoon, try to give birth to the first actually valuable story, the first one that's not like wire service. And then by the end of the day, you hope you've written

• 45:47Speaker 02

  something that will stand the test of time and will be in the archives and will be of some use to somebody. But unfortunately, there's a real inverse relationship between quality and readership. So the first story gets an enormous readership and the last story, which you take some pride in, rather less so.

• 46:09Speaker 01

  Are there ever back channel messages you get, you know, that somehow come from the court that they disagreed with what you said or thought you did a great summary or anything like that?

• 46:21Speaker 02

  It would probably be more of the first than the second.

• 46:27Roman Mars?

  Has the nature, I mean, maybe I'm just more aware of them now, but the dissents seem to take on a more of a harsher tone, I guess is the way I'd say it, or have a lot going on in them. Am I just more aware or has that always been the case?

• 46:44Speaker 02

  I think there's a quality to the dissents these days from the three justice Democratic appointee liberal minority that is the product of hopelessness and just being on a never ending losing streak.

• 46:57Roman Mars?

  Yeah.

• 46:59Speaker 02

  That is different from when, you know, there were four of them and they could pick up Kennedy's vote from time to time. It's just got a different feel to it. And the stakes may be thought to be higher in some ways. So I agree that it's got a different tone. That said, you know, Justice Scalia in dissent could write some pretty sharp things.

• 47:20Speaker 01

  That's right.

• 47:22Speaker 01

  So do you have a sense that, you know, there's a lot of discussion about what happens after Trump and further discussion about with a Democratic president change the composition of the court? Do you think it's as simple as that, that, you know, changing the majority could sort of undo some of what's been done during the Roberts era? Or are we headed in a totally different direction?

• 47:45Speaker 02

  I think a change in personnel would in short order move the court in a different direction jurisprudentially. There was a moment in time, you'll remember, when it looked like President Obama would be able to replace Justice Scalia with Merrick Garland. He didn't get a hearing in the end. But political scientists predicted that if that happened, cases like Citizens United and Heller on the Second Amendment could well be reversed. It's entirely conceivable. I mean, stare decisis is a game two sides can play.

• 48:28Speaker 01

  But at great risk of really undermining the court's legitimacy, don't you think?

• 48:34Speaker 02

  I guess, although, you know, we talked about the court's legitimacy and the court has been quite active and its approval ratings have fallen some. But in truth, they're still higher than most of the rest of the government. The military is higher, but Congress is in the toilet, is higher than journalists, probably higher than the academy.

• 48:57Speaker 01

  For sure.

• 48:59Speaker 02

  And I mean, at the end of the day, I think all legitimacy means is, will people do what the court says? And so far, there's no indication that people won't.

• 49:11Roman Mars?

  Do you think that the idea of legitimacy, which I only hear in reference to the judicial branch, or the idea of reason and logic being the ruling principle, is that a consequence of the vagueness of Article III? That's built on top of kind of, we're building our foundation as during the creation of the thing, you know, in a way? So it has to have some other sort of foundation to stand on?

• 49:38Speaker 02

  I think that's a good point and a little too abstract for the likes of my simple-mindedness.

• 49:47Roman Mars?

  Fair enough.

• 49:48Speaker 01

  Well, you know, one thing to think about with legitimacy, though, is I think there's like, you know, there's a tension here with the courts have to be legitimate. That's part of their independence. At the same time, I think a lot of individual, some individual federal judges feel under threat or under attack. And I want to go back for a moment to Chief Justice Roberts, who said, I believe at his 2024 end of the year report, he openly acknowledged that, look, you can't, you can't threaten the judiciary. That is unacceptable. Right? And then this just past year's report, he had a kind of rosy colored vision of the country's 250th birthday. And I just, it's such a swing back and forth.

• 50:30Speaker 01

  Where do you see your sense of how the judiciary is responding, sometimes to literal threats, sometimes to social media threats of impeachment, things of that nature?

• 50:42Speaker 02

  I don't know what to say other than that these threats are real. The judiciary is quite concerned about them. The Supreme Court has excellent security. Lower court judges, much less so. They're deeply concerned about it. I think the chief justice should speak out about it often and robustly. I don't think it's affecting their work, but I don't know. It's different in kind from anything I've lived through before. Political violence is, I guess it's always been with us, but it seems to be woven into the texture of ordinary American life these days in a way that's really disturbing.

• 51:23Roman Mars?

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• 54:10Roman Mars?

  If there's something that you would change, what do you think is the right way to make things better? I know you're a reporter and you're just trying to tell the story of what happened. But as you see it close up, what do you think would be like an effective way to make the Supreme Court more effective or the decisions make more sense?

• 54:30Speaker 02

  You know, reporters always want transparency.

• 54:33Roman Mars?

  Yeah.

• 54:34Speaker 02

  I would love to know, for instance, the vote counts on these emergency applications we were talking about earlier, or when the court decides not to hear a case, how many justices voted for that or not. They also have a tendency, it's not the world's hardest working court, I mean, they issue maybe 60 decisions on the merits a year, but they do tend to do everything all at the same time. So there are days when they agree to hear cases and issue opinions and hear arguments and then they go away for two weeks. So if they were to space those things out a little bit, that would be nice.

• 55:13Speaker 01

  Do you think it would be a good idea if the Supreme Court arguments were televised live?

• 55:18Speaker 02

  I'm in favor of that. It's an academic question, only it's not going to happen. I don't think it would add a whole lot. You know, it's an open government proceeding. It ought to be open to the public in the realist sense imaginable. That said, the live audio, which is an artifact of the pandemic and would have been unimaginable 10 years ago, gets you 95% of the way. Certainly, if you can recognize the justices' voices, you're really getting almost all the information that you need. I think some of the justices value their privacy, although their book tours would seem to cut in the other direction. But that's not a legitimate reason not to have cameras.

• 56:03Speaker 02

  Some of them say goofy things on the bench and they're afraid that that would... Turned up on late night television. That's an authentic concern, but not a legitimate one. Are there security concerns around this? I don't know. But anyway, I mean, this is a thought exercise only. They're not going to do it.

• 56:22Speaker 01

  So putting its constitutionally aside, one thought I'd had is, you know, would it be better for the system if the justices were just told, look, when you hear an argument, you have to issue an opinion, you know, let's say, a month later? And the reason I raise this is because, you know, as you say, Trump versus the United States, the presidential immunity opinion is maybe the most significant decision of the court so far. And they waited. They waited until the very, very end, and that timing made it impossible for anything really to go on in the case at all. And, you know, that was presumably deliberate, or they couldn't come to an agreement on things. I'd love to hear your thoughts on that.

• 57:03Speaker 02

  So I think the idea of making them work fast as a general proposition is a bad idea. They don't do good work working fast, and I actually give them some credit, and not every court is like this, disposing of every merits case, almost without exception, within the October to June term. What they might have done in Trump against the United States is, you remember, Jack Smith went to the court twice, once in a procedure called cert before judgment, seeking to leapfrog the D.C. Circuit, I think back in October.

• 57:46Speaker 01

  Very early.

• 57:47Speaker 02

  And they turned that down. And if they had taken the case then, rather than later, they might have had some running room to issue a decision, and maybe a more considered decision. April arguments almost always yield pretty poor decisions. There's just not enough time for them, and they already backed up on everything else. So April arguments and June decisions don't tend to be the court's best work. Interesting.

• 58:15Roman Mars?

  Is there anything else sort of that, you know, from your vantage point, the way the court works that is interesting or surprising to you as you've been covering this for so long?

• 58:26Speaker 02

  You know, I'm so close to it, I probably don't realize what I should, what should be interesting or surprising. I guess I should say that I kind of stepped back from daily beat reporting at the end of this last term. So I have, I'm still writing about the court, but not on this kind of daily ruling basis. My colleagues, Anne Meremo and Abby Van Sickle have taken over the hardest part of the job. And I'm more of an analytical observer. So I'm kind of decompressing from 17 years of Supreme Court coverage.

• 59:07Roman Mars?

  Like, would people be surprised by how much, like, clerks do versus justices? And things like this?

• 59:13Speaker 02

  Oh, yeah. The justices each have four brainiac law clerks.

• 59:20Speaker 01

  Who work around the clock?

• 59:22Speaker 02

  Yeah. And

• 59:24Speaker 01

  Well, maybe we could pause for a moment, Adam. Like, maybe we could just explain, what do you mean by a clerk? Maybe readers will think, oh, someone who writes down appointments for the justices? What do you mean by a clerk?

• 59:32Speaker 02

  So these clerkships are one year long. They are given to young people who are law school graduates and who have typically clerked for one, now sometimes two, lower court judges. They will have the most distinguished resumes imaginable and excellent grades and great skills, but maybe not yet great maturity. And they are given extraordinary responsibilities, including in evaluating the petitions seeking review, which are sent out to the so-called cert pool, where a single 26-year-old

• 1:00:14Speaker 02

  Makes a preliminary judgment for the Supreme Court of the United States about whether to grant review or not. And, you know, the, these clerks make up a little law firm with the justice at its head. And as in a real law firm, the associates write the first draft of a brief or an opinion. And the justices direct it and, you know, are responsible for it. And most of them write through it fairly carefully. But the clerk has a substantial hand in what happens.

• 1:00:54Roman Mars?

  Yeah.

• 1:00:55Speaker 01

  Not at all contemplated by Article Three.

• 1:00:57Speaker 02

  It will search in vain for law clerk in the Constitution.

• 1:01:02Speaker 01

  Yes, it is a remarkable aspect of the judiciary that, you know, it's not, it's in what you're mentioning is, of course, that the most important clerks at the top of the heap on the Supreme Court, but every federal judge has one or more clerks who serve in the same role.

• 1:01:18Speaker 02

  Well, you know, one thing we haven't talked about is the background of the justices, which is increasingly turning into a kind of inherited aristocracy.

• 1:01:26Speaker 01

  Say more about that, please.

• 1:01:28Speaker 02

  I mean, the justices themselves have sterling resumes. Eight of the nine went to Harvard or Yale Law School. And several of them not only clerked on the Supreme Court, I mean, that, the odds of that are sort of vanishingly small. There's not that many clerkships to go around. But two of them, three of them, three of them clerked for the very justice whom they exceeded.

• 1:01:55Speaker 01

  Right.

• 1:01:56Speaker 02

  That's, that's curious, but, but Roberts for Rehnquist and Jackson for Breyer and Kavanaugh for Kennedy, I mean, what are the odds of that? And that, that ties back a little bit to the point I was making earlier about timing of retirements. I don't have evidence for this, but I think it may be possible that as a justice is deciding whether to retire or not. That justice might have consultations with the White House and say, you know, I might like to retire and it'd sure be nice if you would appoint my favorite clerk to succeed me.

• 1:02:36Speaker 01

  And it's remarkable because, of course, in other aspects of the Constitution, we have, for instance, prohibitions on granting titles of nobility. Because that very value is something the founders said, we don't want that system. And yet it's crept into the Supreme Court, as you mentioned.

• 1:02:52Roman Mars?

  It is remarkable to me, too, in the sense that, like, even in the sort of the text itself, the idea of lifetime appointments in a Constitution that is full of things that are basically guards against any type of thing that smacks as monarchy. Like, in terms of even the age of the president can be, it's kind of a backdoor way of, you know, like George Washington not giving it to a six-year-old kid presidency. And this is an odd thing that we've set up this side channel where these titles of nobility are lifetime and can be, you know, functionally passed on. It's an oddity.

• 1:03:28Speaker 02

  Right.

• 1:03:29Speaker 01

  Well, one last thing maybe we should address is, you know, this Article III is very, very short. And strangely enough, in this very short part of the Constitution, there's an entire section voted to treason, which seems to totally be a non sequitur. It has nothing to do with the preceding part of Article III. Maybe we can talk about that for a moment, if you have thoughts on it.

• 1:03:49Speaker 02

  You wonder if the drafters were going, well, we got to talk about treason somewhere. Where shall we stick it?

• 1:03:57Speaker 02

  I mean, I suppose it's a crime. It will be adjudicated in court. It's a federal crime. But, yes, I mean, Article III has three sections. Section three is about treason.

• 1:04:08Roman Mars?

  Yeah.

• 1:04:09Speaker 01

  And also, very important to the founders to make sure that whatever the punishment was, it was only for the lifetime of the person convicted of treason. There shall not be corruption of the blood, which was an English common law term, you know, referring to, we can't punish people for generations for having a treasonous member of their family. Just a very strange place to put this strict definition of treason in the Constitution.

• 1:04:35Speaker 02

  Well, one thing we haven't talked about is the article does talk about the court's original jurisdiction. So the court is basically, and these days, almost entirely, an appeals court. And here's cases that have been decided below, and it just deals with whether the legal issues were correctly decided. Let me digress on that a bit. The court is also, and this is a fairly modern development, decided that it will only decide discrete questions of the law. It doesn't take an appeal of a case. It takes appeals of discrete questions presented. But in any event, whatever it's deciding is generally legal. But the Constitution also contemplates that in at least some cases,

• 1:05:19Speaker 02

  it will act as a trial court and adjudicate facts and hear witnesses. And these days, that almost always involves disputes between states, often about boundaries or water rights or so on. And the court doesn't, in fact, sit and hear witnesses and bang the gavel and hear objections and so on, but appoints a special master who does some version of that. But I think the framers probably contemplated a court that would act as a trial court some substantial amount of the time.

• 1:05:54Roman Mars?

  Yeah, it's wild to think about that.

• 1:05:58Roman Mars?

  That would be carried to this day, that you'd see these high-profile cases that would be like, witnesses would be called and justices would do something.

• 1:06:06Speaker 01

  And part of it is just, I guess, you know, as so many other things, it's just a matter of historical practice. The idea that the court would take on a lot of original jurisdiction cases or trial-type cases, kind of as ebbed away through the court just not wanting to do that over many generations.

• 1:06:23Speaker 02

  Right.

• 1:06:25Roman Mars?

  Adam Liptak, it's been such fun talking with you. I really appreciate the time and your insight, and I love reading your work, so thank you so much for being here.

• 1:06:33Speaker 02

  I got a real kick out of talking with you guys. Thank you.

• 1:06:35Speaker 01

  Yeah, that was a lot of fun. Thank you so much.

• 1:06:39Roman Mars?

  Join us next month. We're moving on to Article Four, all about the relationship between the states and the relationship between states and the federal government.

• 1:06:49Roman Mars?

  The 99% Visible Breakdown of the Constitution was produced by Isabel Angel, edited by Kometi, music by Swan Real, mix by Martin Gonzalez. Kathy Tu is our executive producer, Kirk Colstead is the digital director, Delaney Hall is our senior editor. The rest of the team includes Chris Berube, Jason DeLeon, Emmett Fitzgerald, Christopher Johnson, Vivian Le, Lauchma Dawn, Joe Rosenberg, Kelly Prime, Jacob Medina Gleason, Talon and Rain Stradler, and me, Roman Mars. The 99% Visible logo was created by Stefan Lawrence. The art for this series was created by Aaron Nester. We are part of the SiriusXM Podcast family, now headquartered six blocks north in the Pandora Building in beautiful Uptown Oakland, California. You can find the show on all the usual social media sites, as well as our own Discord server,

• 1:07:34Roman Mars?

  where we have fun discussions about constitutional law, about architecture, about movies and music, and all kinds of good stuff. You can find a link to the Discord server, as well as every past episode of 99PI, at 99pi.org.

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