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The Supreme Court Has More Powers Than Ever, Here's Why"Operation Shadow"Coherent decisions that affect all Americans can be made even without written decisions.
That's the conclusion I draw from a fascinating and educational new book by Stephen Vladeck, a University of Texas law professor and CNN contributor.
I spoke with Vladeck about "Shadow Case Files: How the Supreme Court Used Stealth Descent to Accumulate Power and Undermine the Republic," which will be published on May 16. Below are excerpts from our phone conversation.
What is the Book of Shadows?
Wilke:ableExplain to people what you mean by "shadow witnesses"?
Wardeck:The word is not mine. It was invented by a law professor at the University of Chicago.Will Baude en 2015.
Will really mean it as a generic term. Not in a pejorative way, but to show that the vast majority of judgments handed down by the Supreme Court do not focus on us.
These are not outlandish decisions made on the merits of the case. These are not cases where the court hears oral arguments. And write these long sentences with convergences and dissents.
A typical shadow ruling is an unsigned and unexplained order. And most of them are trivial. But not all of them.
Will's insight, which I have shamelessly adopted, is that a lot of very important things happen inUnsigned and unexplained orders. Just because they have no signature or interpretation doesn't mean we shouldn't care about them, talk about them, study them and try to infer larger patterns from them.
Shadow law helps Republicans in midterm elections
Wilke:You write about how, without explanation, a court invalidated the last election or affected the map of Congress in three states: Georgia, Alabama, and Louisiana. Republicans currently hold a four-seat majority in the House of Representatives. Do you think these decisions determine who will control the House?
Wardeck:I think it's close. We're talking about two court decisions in the Alabama and Louisiana cases that were then followed up directly in Georgia.
There is no doubt that without the intervention of the courts, at least three seats in the current House of Representatives are likely to be controlled by Democrats, not Republicans.
I think it's really hard to say what other effects might be happening.new york times advice The decisions affect control of seven to 10 seats in the House of Representatives. I think it's a bit indirect.
There is no doubt that the decisions in Alabama and Louisiana helped the Republican Party secure its current majority in the House of Representatives. Whether or not they directly affect the controls, I think it's close.
Does the problem behavior still exist?
Wilke:Judge Samuel Alito made no apology for using the indictment.president of the supreme court john robertsAnd other conservatives don't like it. How has the situation changed in recent months? Did you use it when you stopped writing the book?
Wardeck:In terms of shadow behavior that I think is problematic, I think we've seen less this quarter. In fact, I think we could see a pattern like this until October 2021 when Judge (Amy Coney) Barrettwrote about this very, very mysterious coincidenceAbout the covid vaccination mandate for health care workers in Maine.
What he said was nuanced, but he pointed out that Barrett and (Brett) Kavanaugh (joining this opinion) and Justices (Clarence) Thomas, Alito and (Neil) Gorsuch were between them How long will be. They want to vote on shadow issues and what they are going to speak on.
Last week's death sentence remains in Oklahoma,Richard Grospe, and no one objected to this intervention. evenMifepristone April ruling, with only two public objections.
A really interesting story is that the court actually seemed to moderate at least some of his behavior. I think part of the reason is that, at least in part, the median justice has become convinced that some of the court's past behavior was problematic.
How the extraordinary becomes ordinary
Wilke:Do you know the motivation behind the shadow formation associated with the Judge Barrett session and this new conservative majority? Do you think the more conservative justices made a concerted effort to take advantage of this?
Wardeck:I think the short answer is no. But I know there will be people who disagree with this.
This book tries to break down some of these stories chronologically, because I think a story makes sense when told in sequence.
Beginning in 2017, the court faced an unprecedented flood of emergency filings from the Trump administration. He repeatedly responded to these demands one at a time, without taking a step back to look at the entire waterfront, so the court was effectively digging deeper and deeper.
If judges took a step back and asked them if they would tolerate the practice, they probably wouldn't say yes. And I believe that with each new intervention, with each successive case, what was once unusual becomes mundane.
Conservatives mostly just routine type of interventions, which until 2017 were completely unconventional.
It's only now that we're dealing with Covid cases in 2020 and 2021 that it's starting to look like some of this is deliberate because it's only in those cases that we see courts adjudicating shadow legal issues with emergency motions that are already in Judge. in the substantive list.
There is nothing preventing courts from using substantive cases to address these religious liberty concerns, and courts do so through secret prosecutions.
I truly believe that it started out as an unstructured spontaneous response to the Trump administration's extremely aggressive behavior and then evolved into something more over time.
American Rights Mosaic
Wilke:you point toObergefell decision(National Legalization of Same-Sex Marriage) argues that courts have ruled against same-sex marriage after years of inaction. The courts tolerated marriage laws for many years. Reading this makes me think we are back on abortion rights. And definitely with a gun. Despite the same-sex marriage decision, the patchwork of laws in this country is increasing, not decreasing.
Wardeck:I think it's growing in some ways and declining in others. The more the Supreme Court constitutionalizes things, the less mosaic we have.
If you look at the background of the Second Amendment, I don't think it's actually a patchwork because there are more and more differences How local gun laws were thrown out of court for violating the federal constitution. Argue against courts deviating from constitutional applicability, such as abortion. It is more contextual than categorical.
The Supreme Court has evolved to take power from Congress. congress issued it
Wilke: I've written a lot about the so-calledprivateerIt is this custom that has evolved into an essential part of the U.S. government and has delayed or stalled legislation in Congress. Your description of the court's evolution reminds me of that. You argue that over the past 100 years, judges have essentially taken power away from Congress in order to better control their behavior.
Wardeck:When we look at the courts of today, what we see is a court that controls nearly all records, a court that decides not just what cases to hear, but which issues in cases to hear.
For most of us, we never know anything else. So we're assuming that's how the courts work.
The reality is quite different. Until 1891, and indeed until 1925, almost all judicial action was compulsory: a court had to decide all cases it had jurisdiction over.
That makes it harder for judges to set the agenda. This makes it harder for judges to focus on specific disputes and search cases. to grow The proof, about the secrecy of the record, is actually a completely self-evident but undeniable part of the story why the Supreme Court is so powerful today, despite what the founders saw as the less dangerous offshoot.
Today's imperial court is really powerful. Part of the story is about power grabs.
But most of the story is about the acquiescence and abdication of Congress, which in the first instance granted the court the power to shuffle books; that he never subdued him, even as the court seemed to use him to gain more and more power; and He removed all restrictions on certiorari in 1988 and said yes, almost all judicial action is discretionary, and he has done absolutely nothing since then to exercise any control over judicial action.
So the story this book tries to tell is not just a tentative story. It's a story about power sharing, and how shadow problems are in part just a symptom of a broader disease of dysfunctional power separation that we're seeing now.
How to clean up the courts? do something
Wilke:come back1988 lawMany times in the book. I was wondering what you think Congress should do now to change the courts? haveProposal to change the number of judgesReschedule the judges. it will your recipe?
Wardeck:My tip, which is even dumber, is to start by doing something. The problem for me is that Congress has given up lobbying the courts so much that when Chief Justice RobertsSubpoena to testifyBefore the Senate Judiciary Committee, he replied that he would present They refer to the separation of powers.
no no! The judge has been testifying. Or historically, it was never considered unconstitutional.
There are some concrete things Congress can do, but what Congress really needs to do is more important than anything else. Better control over court records. Use your budget as a walking stick if necessary.
If the nationwide injunction was the issue that caused the court to act in this way, parties could easily appeal the national injunction directly to the court without going through the expedited filing process.
Congress can do too much. The problem is we've gotten into a post-1988 mentality that it's not about Congress. When we look at today's verdict, we look atethical issues, registration issues, debates about legality -- a lot of what's going on here is a court that doesn't even review remotely and doesn't care about being reviewed.
That's why I'm more cautious about adding court seats or term limits. I don't think that changing the composition of the Court would change the underlying issue of power dynamics, which is Madison's point in The Federalist 51, that ambition should be opposed to ambition.
It doesn't change just because you have a different body in those seats. The way Congress is changing is by asserting its clear constitutional prerogative over the courts. That's part of the story this book tries to tell.
Judges must be mindful of their legality
Wilke:You also make numerous references to the idea that much of the court's power derives from its legitimacy in society. what shouldA do recoveryyeslegality?
Wardeck:"Recovery" is a bit strong. I did not resign from court. But I think judges can do a lot to at least make people feel like they really care about public perception and should care about public perception.
First, I think it's a good thing that judges stop attacking critics who try to legitimize the court. If you feel the criticism is unfair, respond objectively rather than attacking the critic.
In terms of prosecution specifically, I think judges can internally commit to the letter rule as long as the court intends to provide emergency assistance, in effect breaking the status quo.
I think the court can do its best to explain in each case how the relevant criteria for emergency assistance are met, explain why it disagrees with the lower court's opinion, and in many cases the lower court writes a lengthy opinion and gives it in its judgment abolition.
More generally, judges could emulate better behavior regarding emergency requests, and the role of courts in responding to them.
FAQs
Does Congress have power over Supreme Court? ›
As a legal matter, Congress possesses substantial authority to change the size of the Supreme Court, though legislation that would eliminate an occupied seat on the Court might violate the constitutional requirement that Justices hold their offices “during good Behaviour.”43 Historical practice generally reflects that ...
Can the legislative branch override the Supreme Court? ›Congress Has the Power to Override Supreme Court Rulings.
What does Congress do if they disagree with the Supreme Court? ›1) Overturn Court decisions by constitutional amendment
If a majority of Congress disagrees with the Court's interpretation of the Constitution, one option is to override that decision with an amendment to the Constitution.
Congress and the Courts balance each other. Congress makes laws, but the Courts interpret them. The Supreme Court decides if a law fits the meaning of the Constitution.
When can Congress overrule the Supreme Court? ›When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.
How does Congress limit the Supreme Court? ›In addition, Congress possesses extensive authority to regulate the jurisdiction of the lower federal courts, and may limit the cases the Supreme Court can hear on appeal by generally stripping the federal courts of jurisdiction over certain cases. Barry v. Mercein, 46 U.S. (5 How.)
Can Congress remove Supreme Court jurisdiction? ›Congress may not strip the U.S. Supreme Court of jurisdiction over those cases that fall under the Court's original jurisdiction defined in the U.S. Constitution. Congress can limit only the appellate jurisdiction of the Court.
Which branch of government can remove Supreme Court justices? ›Federal judges can only be removed through impeachment by the House of Representatives and conviction in the Senate. Judges and Justices serve no fixed term — they serve until their death, retirement, or conviction by the Senate.
How can the president check the power of the Supreme Court? ›The Executive branch has the ability to appoint Federal judges and issue pardons, which gives it influence over the actions of the Judicial branch.
Who controls the Supreme Court? ›Section 1 establishes the Supreme Court of the United States. It gives Congress the power to organize the Supreme Court and to establish lower courts. It also states that justices can serve on the court for as long as they maintain "good Behaviour," and that the justices should be compensated for their service.
What powers does the president have over Congress and the Supreme Court? ›
For example, Congress has the power to create laws, the President has the power to veto them, and the Supreme Court may declare laws unconstitutional. Congress consists of two houses: the Senate and the House of Representatives, and can override a Presidential veto with a 2/3 vote in both houses.
What powers does the Senate have over the Supreme Court justices? ›Congress and the Judicial Branch: Composition
The president nominates Supreme Court justices, but the Senate has the sole power to confirm those appointments.
Article III, Section 1 of the Constitution gives Congress the authority to change the size of the Supreme Court. Congress has used that authority seven times before. To restore balance and integrity to a broken institution, Congress must expand the Supreme Court by four or more seats.
Can Congress impeach a Supreme Court justice? ›Only Congress has the authority to remove an Article III judge. This is done through a vote of impeachment by the House and a trial and conviction by the Senate. As of September 2017, only 15 federal judges have been impeached, and only eight have been convicted.
Does the president have more power than the Congress or Supreme Court? ›no one part of government dominates the other. The Constitution of the United States provides checks and balances among the three branches of the federal government. The authors of the Constitution expected the greater power to lie with Congress as described in Article One.
Can a federal judge overrule the Supreme Court? ›Federal courts may overrule a state supreme court decision only when there is a federal question which springs up a federal jurisdiction.
What can Congress and the president do in response to an unpopular Supreme Court ruling? ›Congress can pass legislation to attempt to limit the Court's power: by changing the Court's jurisdiction; by modifying the impact of a Court decision after it has been made; or by amending the Constitution in relation to the Court.
How are Supreme Court decisions enforced? ›The Supreme Court has no power to enforce its decisions. It cannot call out the troops or compel Congress or the president to obey. The Court relies on the executive and legislative branches to carry out its rulings.
Can Congress reduce the number of Supreme Court justices? ›1141, H.R. 2584 (117th Cong. 2021). While no provision of the Constitution expressly prohibits legislative changes to the size of the Supreme Court, and Congress has changed the size of the Court multiple times in the past, some commentators debated whether the proposals were inconsistent with constitutional norms.
How many times has the Supreme Court overruled itself? ›It's extremely rare for the U.S. Supreme Court to overturn one of its own decisions. Of the more than 25,500 decisions handed down by the Supreme Court since its creation in 1789, it has only reversed course 146 times, less than one-half of one percent.
Can Supreme Court justices be removed? ›
The Constitution allows for the impeachment and removal of justices in much the same manner as a president: The House can vote for impeachment, and then a Senate trial is held, with a two-thirds vote needed to convict. Only one justice has ever been impeached, and it was more than 200 years ago.
What limits the jurisdiction of the Supreme Court? ›The Constitution limits original jurisdiction cases to those involving disputes between the states or disputes arising among ambassadors and other high-ranking ministers. Appellate jurisdiction means that the Court has the authority to review the decisions of lower courts.
What can be done about the Supreme Court? ›Congress can change the number of justices on the Court at any time with a simple piece of legislation, and it has done so many times throughout American history. Now, top Democrats have introduced a bill to add seats and restore balance, and 60 members of Congress have signed on in support.
What is the 11th Amendment? ›The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
How many votes does it take to impeach a Supreme Court justice? ›If a majority of the members of the United States House of Representatives vote to impeach, the impeachment is referred to the United States Senate for an impeachment trial. A conviction requires a two-thirds vote in the Senate.
Can the Supreme Court be dissolved? ›it would be anomalous for the Constitution to provide that, once a court was established, Congress could never eliminate it. Historical practice suggests that Congress may abolish lower federal courts, though the Constitution may limit its ability to unseat current federal judges in doing so.
What court system is directly below the Supreme Court? ›There are 13 appellate courts that sit below the U.S. Supreme Court, and they are called the U.S. Courts of Appeals. The 94 federal judicial districts are organized into 12 regional circuits, each of which has a court of appeals.
Who keeps Supreme Court in check? ›Congress's main checks on the judiciary include the power to amend the Constitution, pass new laws, approve the president's appointment of judges, control the number of justices on the Supreme Court, and impeach judges guilty of treason, bribery, or high crimes and misdemeanors.
Who can overturn an executive order? ›Congress has the power to overturn an executive order by passing legislation that invalidates it, and can also refuse to provide funding necessary to carry out certain policy measures contained with the order or legitimize policy mechanisms.
Who rules the Supreme Court right now? ›The Honorable John G. Roberts, Jr., is the 17th Chief Justice of the United States, and there have been 104 Associate Justices in the Court's history.
What party is in control of the Supreme Court? ›
In every term since 1970, the Court majority (consisting of at least 5 of the justices) has been appointed by Republican presidents. Every chief justice since 1953 has also been appointed by Republican presidents.
How many Supreme Court justices are conservative? ›It was the first full term with the six-justice conservative majority made possible by Senate Republicans confirming Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
What is one power the President has over the Supreme Court? ›The President will typically nominate cabinet officials and secretaries at the beginning of their presidency and will fill vacancies as necessary. In addition, the President is responsible for nominating Federal Circuit Court judges and Supreme Court justices and choosing the chief justice.
How can the President and Congress limit the independence of the Supreme Court? ›“Both the Congress and president limit the independence of the supreme court by deciding who serves as a justice.
How does the Constitution limit the power of the President Congress and Supreme Court? ›For instance, Congress makes the laws, but the President can veto them and the Supreme Court can declare them unconstitutional. The President enforces the law, but Congress must approve executive appointments and the Supreme Court rules whether executive action is constitutional.
What level of government has the most power under the Constitution? ›The Legislative branch has a larger influence than the other branches even in the subject of money, taxes, and the social contract within the people. A social contract is an agreement the people have with the government to ensure order in society.
Who can override a veto? ›Congress can override a veto by passing the act by a two-thirds vote in both the House and the Senate. (Usually an act is passed with a simple majority.) This check prevents the President from blocking an act when significant support for it exists.
Can Congress change the power of the Supreme Court? ›Along with jurisdiction stripping, Congress may also seek to change the Supreme Court's composition, and thus its rulings, by increasing or decreasing the number of justices. There is no text in the Constitution that limits the Court's size; in fact, its membership has fluctuated throughout history.
Can Democrats expand the Supreme Court? ›Yes. The Constitution leaves this decision to Congress. It says, “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.” And from time to time, Congress has indeed changed the number of justices.
Who protects the Supreme Court Justices? ›The Supreme Court Marshal and the Supreme Court police are responsible for the security of the Court, with the U.S. Marshals Service providing assistance as needed.
Who can overturn a Supreme Court decision? ›
Article V of the Constitution allows Congress to amend the constitution by a two-thirds vote of both houses of Congress or if two-thirds of the states request one. The amendment must be ratified by three-fourths of the state legislatures. This has been used to override Supreme Court decisions in the past.
Can a Supreme Court justice be charged with a crime? ›Judicial Council of Tenth Circuit of U.S., 398 U.S. 74, 140 (1970) (Douglas, J., dissenting) ( Federal judges are entitled, like other people, to the full freedom of the First Amendment. If they break a law, they can be prosecuted.
Can Congress subpoena a Supreme Court justice? ›The only congressional subpoena for a sitting Supreme Court justice was in the 1950s, Chafetz said. Back then, the House Un-American Activities Committee subpoenaed Justice Thomas Clark, who refused, and lawmakers didn't pursue the matter.
How can Congress check the Supreme Court? ›The judicial branch interprets laws, but the Senate in the legislative branch confirms the President's nominations for judicial positions, and Congress can impeach any of those judges and remove them from office.
Can the Supreme Court overturn a law passed by Congress? ›The Courts can invalidate an act of Congress or the president. And the executive and legislative branches enjoy checks against the judiciary. The Constitution called for the establishment of a Supreme Court and lower federal courts.
Is the US Supreme Court now the most powerful branch of government? ›By its own maneuvering, the modern Supreme Court has made itself the most powerful branch of government. Superior to Congress.
Who has power over Supreme Court justices? ›The Supreme Court consists of the chief justice of the United States and eight associate justices. The president has the power to nominate the justices and appointments are made with the advice and consent of the Senate.
Which branch has power over the Supreme Court? ›The judicial branch includes the Supreme Court and other federal courts.
Who is higher than the Supreme Court? ›The federal court system has three main levels: district courts (the trial court), circuit courts which are the first level of appeal, and the Supreme Court of the United States, the final level of appeal in the federal system.
Who has the power to replace a Supreme Court justice Constitution? ›The President nominates someone for a vacancy on the Court and the Senate votes to confirm the nominee, which requires a simple majority. In this way, both the Executive and Legislative Branches of the federal government have a voice in the composition of the Supreme Court.
What is one way the president can check the power of the Supreme Court? ›
The president checks the power of the courts by appointing new judges. The power of the Supreme Court can swing greatly on a single appointment. The Congress has a part in this check as well because they must approve the president's appointment.
What control does Congress have over the judicial branch? ›The judicial branch interprets laws, but the Senate in the legislative branch confirms the President's nominations for judicial positions, and Congress can impeach any of those judges and remove them from office.
Who has higher power than the President? ›The Senate has exceptionally high authority, sometimes higher than the President or the House of Representatives. The Senate can try cases of impeachment, which can dismiss a President for misconduct.
Does Congress have the highest power? ›All legislative power in the government is vested in Congress, meaning that it is the only part of the government that can make new laws or change existing laws. Executive Branch agencies issue regulations with the full force of law, but these are only under the authority of laws enacted by Congress.