LEZAH RICHARDSON—Once the weakest branch of government, the Supreme Court has now become the most powerful and least accountable. But this transition did not happen overnight. Stephen I. Vladeck, Professor of Law at the Georgetown University Law Center, explained the Court’s transformation during his guest lecture for the Constitutional Crisis Seminar, hosted by Professor A. Michael Froomkin at the University of Miami School of Law. By examining the Court’s history, the shifts in its discretionary docket, and the decline of public confidence, Professor Vladeck argued that we are living through a remarkable and alarming moment in the Court’s history.
The Supreme Court’s History
The Supreme Court originated as an unusually weak institution. For its first century, the Court depended heavily on the other branches, popular support, and political buy-in. The Justices did not have a building—just a small room in the basement of the U.S. Capitol—and Congress required them to participate in “circuit riding,” traveling across the country for six months each year to hear cases and bring the law to the people.
After the Civil War, the federal government expanded and so did the Court’s docket. The docket became so large that the Justices fell three and a half years behind. In response, Congress restructured the federal judiciary in 1891 by creating the modern circuit court systems, ending circuit riding, and introducing certiorari to give the Court discretion over its docket. By the early twentieth century, former President and Chief Justice William Howard Taft sought to strengthen the Court’s power and independence, believing it was too reliant on the other branches. Taft identified three major reforms: giving the Court its own building, establishing an administrative system for the judiciary, and expanding certiorari. These reforms marked the beginning of the modern, independent Court.
By the late twentieth century, the Court began to exercise more control over its docket through the expansion of certiorari. Under the “rule of four,” only four Justices––less than half of the bench––are needed to grant certiorari. With just four votes, the Court can pick and choose which cases to hear. In the 1970s and 1980s, the Court’s docket increased to between 150 and 175 cases per term, largely driven by shifts in civil rights and criminal procedure litigation. However, in 1988, Congress eliminated most of the Court’s mandatory jurisdiction, allowing the Court to choose practically all its own cases.
Today, the Court’s docket consists of about fifty-five cases per term. Even though the Court decides fewer cases, its ability to pick and choose which ones to hear gives it increased power to define national priorities and shape legal precedent.
The Modern Supreme Court
In the modern era, the Court has near-total control over its own docket without circuit riding, regular interaction with the public, and mandatory jurisdiction. Much of the Court’s work happens behind closed doors through the surge of emergency applications often referred to as the “emergency docket.” These applications ask the Court to intervene quickly, often through unsigned and unexplained orders that nonetheless carry precedent-like effects. This has enabled the Court to make law without explaining law, raising constitutional concerns about transparency and Article III limitations.
Just to highlight the level of change in the emergency docket, emergency applications have skyrocketed from once every two years to about once every nine days. During the Bush and Obama administrations, the Solicitor General filed for emergency relief eight times over sixteen years. During the first Trump administration, that number jumped to forty-one times in four years, mostly related to the travel ban. The Biden administration went to court for emergency relief nineteen times. In just the past nine months, the Trump administration filed thirty emergency applications. This represents a dramatic shift in how the Supreme Court operates daily.
Since January, the Court engaged in an unprecedented amount of regulatory and executive-power decision-making without the transparency or reasoning that accompanies regular opinions. For example, in McMahon v. New York,the Trump administration sought a stay of a district judge’s injunction that was blocking the downsizing of the Department of Education. The administration offered three different reasons for why it thought it was likely to win on the merits. These arguments would have three different sets of consequences, depending upon which one the Court embraced. However, the Court issued a boilerplate order staying the district court’s injunction without explaining its reasoning or leaving guidance for the lower courts.
The Current Crisis
Professor Vladeck identifies two key problems driving today’s judicial crisis as it relates to the emergency docket: (1) the Court is not writing, and (2) its decisions carry major separation-of-powers implications. The Court’s emergency decisions have huge real-world impacts yet are made without written explanation or guidance for lower courts. While district judges issue long, detailed opinions, they are being slapped down by a one sentence order from the Court. The impact is clear: public confidence in the Court is at a historic low. The Court’s legitimacy not only depends on legal reasoning, but also on the public’s perception of its fairness and transparency.
The deteriorating relationship between the Court and the lower courts reflects a broader crisis: the erosion of the Court’s accountability to other branches. The Court has rewritten the balance of power between the branches so dramatically that it often acts as if it alone represents the government. Congress does not regulate the Court anymore—as Professor Vladeck argues, we are closer to a tyranny of the majority now more than ever before.
This crisis is not an accident; it is the result of structural drift. Professor Vladek suggested that restoring accountability to the Court will require structural changes, such as adding an Inspector General to the Court, mandating congressional hearings for the Justices, or limiting the discretionary docket. We must rebuild the interbranch relationships that once kept the Court in check. The Court’s long-term success depends on broad public confidence, not just one-sided public support.
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