Under the leadership of Chief Justice John Roberts, the Supreme Court has exerted unprecedented influence over our country’s modern political landscape. Through a relatively recent surge of contentious rulings on politicized issues such as Abortion Rights, Voting Laws, and Affirmative Action, the Court has effectively shaped the agenda of political campaigns nationwide, and steered overall legislation far right of center.
This ongoing behavior has raised concerns that the Supreme Court has made resolving politically charged litigation its primary focus. Case after case, it appears to selectively address largely political matters, preordained to affirm conservative arguments.
Yet, this has not always been the reality. Throughout much of its existence, the Court lacked the authority to even choose its own cases, let alone select them to deliberately bolster its own influence. In fact, at its advent, Alexander Hamilton characterized the Court as the weakest of the three branches, writing: “the Judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them” (emphasis mine). However, in recent decades—exemplified by numerous decisions like in Hodges, Dobbs, Bruen, and Bremerton—the Supreme Court has grown to dominate over the state of our civil and political rights. Thus, this raises the question: what mechanisms have allowed the Court to undergo such a dramatic evolution over the past 200 years?
The answer largely lies in the development of certiorari, or the ability of the court to selectively choose cases for hearing and decision. This jurisprudential power has allowed the Supreme Court to construct its docket in any way it wants with any issue it desires. However, importantly, this authority was neither intended for nor delegated to the court at its inception. Instead, over several decades, the court has furtively worked to expand its autonomy and independence to acquire this ability. But it’s only now, after a noticeable shift in the Court’s ideological composition following Justice Kennedy’s retirement and the passing of Justices Souter, Scalia, and Ginsburg, that the public has begun to take notice of the power the court now wields.
As I hinted at before, at its very dawn, the Supreme Court was relatively powerless, and thus, largely idle. During its first three years of existence, the court had almost no cases on its docket at all. Although it wasn’t entirely moribund, as it still had a few momentous rulings such as in McCulloch v. Maryland in 1819, and infamously in Dred Scott v. Sandford in 1857, these rulings were very few and far between.
The court’s limited authority at that time could largely be ascribed to its original lackluster jurisdiction. Unlike contemporary court procedure, the court not only had insufficient dominion over a diverse range of cases but also lacked discretion over which cases it would hear—a modern mechanism called “granting a writ of certiorari.” Instead, it was mandated to hear every appeal over which Congress had given it jurisdiction. Though, the number of such cases was very limited, with the court only resolving thirty-five to fifty disputes each year into the 1840s—compared to the more than seven thousand it has jurisdiction over today. “Basically, throughout the antebellum era, the Court lived up to Hamilton’s promise that the federal judiciary would remain the least dangerous branch,” explains Stephen Vladeck, Professor at the University of Texas Law School. Yet, between 1865 and 1869, with the conclusion of the Civil War, a significant change to the constitution would precipitate the court’s divergence from Hamilton’s promise.
Per a Congressional proposal and the states’ ratification, the Thirteenth, Fourteenth, and Fifteenth Amendments to the US Constitution were adopted. Congress quickly followed up with subsequent statutes to assist in the enforcement of the rights that would be found in these new amendments, and as a result, they would each become a prolific source for new federal litigation. In essence, Congress had breathed new life into the court, and significantly increased its caseload.
However, despite this jurisdictional expansion, the Court still faced an issue: its lack of discretion. While one of the Court’s wishes was fulfilled, the other was not. The court had gained access to a broader number of cases but not the ability to selectively hear them. Congress wasn’t inclined to grant the court this power, but their reluctance quickly backfired, becoming a thorn in their own side.
The increased number of cases before the court had grown so significantly, that the court could no longer sustain the caseload. “By 1890, the Supreme Court’s docket had three times as many cases on it as it did in 1870, and it still wasn’t able to hear all the cases that it was, by law, obliged to eventually decide. With 1,800 pending appeals, some estimates projected that the Court was running more than three years behind.” Stephen Vladeck, explained in his book The Shadow Docket. “[The Supreme Court was] simply overwhelmed by the explosion in federal litigation.”
As a result, in 1891, succumbing to both external and internal pressures, Congress would enact the Judiciary Act of 1891. The act granted, for the first time ever, discretion to the Supreme Court over which cases it could hear through the issuing of “writs of certiorari.” Although the court was limited to specific categories of cases and still had to hear every appeal mandated by Congress, its newfound ability to selectively grant these writs was a significant development to its autonomy. It could now pick and choose—with exceptions—which cases it would issue decisions on, largely free from external influence.
However, the expansion of the court’s autonomy, independence, and most notably certiorari, would not stop there. In 1921, William Howard Taft, who had long harbored aspirations for a particular position, finally attained it—not the presidency, but rather the role of Chief Justice of the United States. Taft had strategically manipulated the court’s composition during his presidency to pave the way for his ascent to the Chief Justiceship after leaving office. He elevated Associate Justice Edward White to replace Chief Justice Fuller (after he had passed), under an agreement that White would eventually resign to allow Taft to assume the position. Although Taft had to wait longer than initially anticipated for a favorable administration to grant him the title, he eventually succeeded.
As soon as Taft assumed the role, it became clear that he was there to restructure the Supreme Court’s functions. During the intermission between his Presidency and Chief Justiceship, Taft would go on to join the faculty at Yale Law School and lobby Congress to do entirely away with the requirement to hear mandated appeals. He wanted complete autonomy for the court and insisted that the Court only hear cases based on certiorari. He wanted the court to become the ultimate arbiter of what rights would be extended to the public and which would be reserved. He immediately embarked on that mission as soon as he donned the judicial robe.
Congress was initially alarmed by the prospect of such an expansion of power, fearing that the justices might exploit the expanded discretion. Congress worried that the justices could decline to hear not only frivolous appeals but valid ones as well. If a lower court arrived at a legal outcome that aligned with the justices’ preferences, denying certiorari would enable them to sidestep the clash between their legal principles and political inclinations. As Stephen Vladeck further explains, “numerous members of Congress openly worried that the justices could use certiorari as an excuse to pay less attention to entire classes of cases than they deserved, including appeals in criminal cases and suits by unpopular plaintiffs.”
Despite these reservations, after a concerted lobbying effort by Taft and his fellow associate justices to reassure the American Bar Association, Congress, and even President Coolidge himself, Congress would capitulate. On February 13th. 1925 President Coolidge signed the Judiciary Act of 1925, or the so-called Judge’s Bill, authored by Chief Justice Taft himself, which rendered the majority of the Supreme Court’s workload discretionary. According to Supreme Court scholar Ed Hartnett, this day marked “the birth of the modern Supreme Court.”
With this newly developed discretion, the Justices could now choose whether to leave a lower court ruling in place—with which they ultimately agreed—without the publicity of deciding a case. This allowed them to influence the law of the land without the necessity of writing lengthy opinions and dissents. Instead, they could simply publish, “writ of certiorari is denied,” with the same effect.
Although the Judge’s Bill never specifically relieved the court of obligatory cases, Taft quickly instituted internal rule changes within the court that gave it the authority to decline hearing mandated cases altogether. Taft’s changes were characterized by one legal scholar as “lawless,” constituting “a judge-made expansion of the court’s discretion that had never been sanctioned by Congress.”
As decisions came and went, Congress’s fears would eventually realize. In the landmark case Loving v. Virginia (1967), the Supreme Court unanimously recognized the right to interracial marriage in the United States. However, in line with Congress’s original concerns, the court had overlooked a largely identical case and delayed issuing a similar ruling for a full twelve years prior. It ignored this case, Naim v. Naim, and denied certiorari.
The court’s reasoning? The year before Naim v. Naim was due to arrive on the docket, the court had issued a landmark decision in the case Brown v. Board of Education, ruling that racially segregated schools were unconstitutional. A radical development, it thought. There was no way it could afford to issue another “heretical” ruling so soon afterward. So it elected not to hear Naim v. Naim to save face. As one of the Associate Justices put it, “One bombshell at a time is enough.”
For twelve more years, countless Americans went without the right to legally marry their partners, all due to the court’s misuse of its newfound discretion. Unfortunately, the court did not stop there, and instead chose to persist in this fashion up to date.
As we enter the second quarter of the twenty-first century, the court continues to punt 0ff cases, permitting dangerous lower court rulings to stand—re gay rights, voting rights, and a myriad of other civil liberties. Instead of safeguarding the rights it was created to preserve, the Supreme Court has elected to employ certiorari to prioritize its own political standing.
For 99 years, this unchecked power has persisted. Initially, Congress actively participated in the expansion of the court’s authority; and later, as the court observably expanded its influence beyond Congress’s mandate, Congress failed to enact any legislation, whether reining in the court’s authority or otherwise. Now, with its conservative majority and the might of certiorari, the court goes on to overturn decades of precedents, eroding the rights of millions of Americans throughout. It periodically issues one-sentence long orders, indiscriminately shaping the law of the land.
Congress, empowered to halt this unbridled trend, has essentially abdicated its responsibility. By ceding authority to the court, it casually sanctions the erosion of our rights and then exploits the decisions to further its own political agenda. One side of the political aisle benefits from these rulings as they would never have been able to achieve these changes legislatively, and the other leverages these rulings for their own political gain, all while our rights are steadily eroded year after year.
At the end of the day, it seems like everyone in this process benefits, except ordinary Americans. Congress and the Court have engineered a new iron triangle of the 21st century, leeching off our individual rights. But it doesn’t have to be this way. “The contemporary Supreme Court would be unrecognizable without certiorari; that doesn’t mean it was meant to be or must always be so.” Congress has the power to fix this, it only takes us to make it an issue for them to do so.