Soni Kassam (3:39)

The courtroom is hushed. Nine robed justices sit behind the bench. One tilts toward his microphone.

Courtroom Announcer (3:48)

We'll hear arguments in number 18, Roe against Wade. Mrs. Whitington, you may proceed whenever you're ready.

Soni Kassam (4:00)

Lawyers clutch their papers, waiting. Any second now, a centuries old ritual will unfold. One that will ripple across all 50 states, ignite protests, and reshape how Americans think about privacy, life and the Constitution. But this isn't a law passed by Congress or an executive order. It's a judgment from nine unelected justices in black robes. How did we get here? How did a branch of government with no army, no budget authority and no voters end up with this kind of power? To understand any of that, I need to go back to the document that created all three branches of Congress, the presidency and the courts. That is the U.S. constitution. The Constitution does all this in the first three articles of the text. Here's Professor Amar again.

Akhil Reed Amar (4:53)

In general. Article 1 says, here's the legislature. It's in a Congress that has a house and a Senate. Article two says, oh, we're going to create a President. And here's how the President is selected. And here are the powers of the President. Article 3 is all about the judiciary. So the judiciary is actually third out of three. What this means is Congress has the money. It gets to decide issues of taxing and spending. That's called the power of the purse. The President holds the sword. He is commander in chief of the army and the Navy and directs war efforts. And courts have neither purse nor sword.

Soni Kassam (5:35)

And if that wasn't bad enough, here's the very helpful text the Constitution reserves for the Supreme Court. Wait for it. It says, quote, the judicial power of the United States shall be vested in one Supreme Court. That's it. It doesn't say how many justices, it doesn't say how long they serve. It doesn't even promise them a building, which they only got in the 1930s. The Constitution left a sketch, so Congress had to supply the details. And across two centuries, through legislation and a bit of improvising, America did indeed build an entire federal court system which, with the Supreme Court sitting on top. Imagine it as a pyramid with thousands of cases at the bottom and just a handful making it to the top. At the bottom you've got the federal district courts. These are the trial courts where most cases start. One judge Sometimes a jury, witnesses, evidence. This is the courtroom you've seen on tv. If you lose there, you can appeal. That bumps your case up to a federal court of appeals, also known as a circuit court. And then way up top sits the Supreme Court of the United States. So that's the structure. District courts at the bottom, circuit courts in the middle, and at the very top, the US Supreme Court. But here's the twist. When the founders built this pyramid, they never really explained what the top was supposed to do. So how did the court become the final word on what the Constitution means? How did it gain the power to tell us what's constitutional and what's not? Well, let's just say the court decided for itself. It all started in 1803 with a case called Marbury vs Madison. It was a political showdown between outgoing President John Adams and incoming President Thomas Jefferson that landed on Chief Justice John Marshall's desk. And Marshall used it to make legal history. He declared that when a law passed by Congress conflicts with the Constitution, the Constitution wins, he wrote. It is the province and duty of the judicial department to say what the law is. With that Marshall, the court gave itself the final say over what's constitutional, a role it's kept ever since. But how does that power get used today? What kinds of cases actually make it all the way to the Supreme Court? It turns out most cases fit into three kinds of situations. The first type, Sometimes the court steps in because the stakes are, well, just too huge. These are the cases that shake the foundations of government. Think of cases like Bush versus Gore, where the 2000 presidential election was down to just a few hundred votes. In Florida.

News Reporter (8:45)

Drawing on very rarely used legal powers, the Supreme Court has, for the first time in American history, decided to step into a legal dispute in the midst of a presidential election.

Soni Kassam (8:57)

The second kind of case is all about Congress. Let's say Congress passes a law, maybe about medical marijuana or health care or gun control, you name it. Then someone challenges it, say, by smoking marijuana for medical reasons and saying they have a right to. If a lower court agrees with the recreational marijuana user, saying, this law is unconstitutional, it can't stand, this person should be allowed to smoke for medical reasons. Well, then that's a big deal, because a lower court judge has essentially invalidated a law passed by Congress. When that happens, the Supreme Court very often steps in. That's because the court sees itself as the final referee on what Congress can and can't do under the Constitution. It doesn't like leaving questions like that hanging. It's not Especially when a lower court has just blocked something passed by elected lawmakers. And finally, the third type of case, the most common reason the court steps in, and that is when lower courts are divided.

Akhil Reed Amar (10:06)

Lawyers call this a split among the circuit courts or among the state courts. If there's a split, the Supreme Court is going to want to eventually resolve that to create uniform rules.

Soni Kassam (10:19)

It's called a circuit split because the US is divided into 13 federal circuits. These are regional appeals courts. And sometimes those circuits disagree.

Akhil Reed Amar (10:30)

It doesn't work long term. If a federal law means X in California and Y in Missouri, that just doesn't work so well.

Soni Kassam (10:41)

The Supreme Court's job is to fix that, to make sure the Constitution and federal law mean the same thing everywhere, even if state laws differ. That's what happened in 2015 in Obergefell v. Hodges. Some circuits allowed same sex marriage, others didn't. So the court stepped in and settled the question for the whole country.

Akhil Reed Amar (11:04)

Now to that historic Supreme Court decision

Courtroom Announcer (11:06)

legalizing same sex marriage across the land. And it's profound.

News Reporter (11:10)

The historic ruling struck down the bans on same sex marriage still in effect in 14 states, all of them in the south and the Midwest.

Soni Kassam (11:19)

So to recap, the Supreme Court usually steps in if there are big national stakes. Think Bush versus Gore clashes over federal law. Think recreational marijuana user. Or when courts can't agree, think some circuits allowing gay marriage while some prohibit it. Those are the golden tickets that get you inside one First street in Washington, D.C. okay, so that's the landscape. That's the system we've built. Layered courts, tight filters, only the biggest and thorniest cases reaching the top. But keep in mind, the odds of you ending up at the Supreme Court are still not great.

Akhil Reed Amar (12:05)

Supreme Court hears very few cases. There are tens of thousands of requests for the Supreme Court to review and the Supreme Court grant to review in less than 100 cases a year, closer to 70.

Soni Kassam (12:19)

So who are the lucky souls who managed to get their case heard by the highest court in the land? That's coming up after the break.

Nahla Ayed (12:32)

Hi there. I'm Nahla Ayed, host of Ideas. Ideas is a podcast where we dig deep into the why to understand the what. Here you can find out how an enslaved man mailed himself to freedom or why the yellow traffic light was designed to be ambiguous. The Ideas podcast has something for everyone. With episodes every weekday and a vast archive, the choices are endless. Listen now to Ideas wherever you get your podcasts and tell a friend there is something here for them too.

Soni Kassam (13:06)

As we said before the break, thousands petition the court, but only about 70 or so get in. Professor Amar says it's useful to think about two main paths for how cases reach the court. The first is the ordinary route involving regular parties. Think people like you and me or companies.

Akhil Reed Amar (13:28)

Ordinary litigants have lawsuits. They are decided in the first instance by lower courts, state or federal. The losing party goes up to a federal appellate court. The losing litigant has to ask the Supreme Court if it's willing to hear the case.

Soni Kassam (13:45)

I sue, I lose, I appeal, I lose again. Until at the very end, I ask the Supreme Court to take it up. So that's the ordinary path. But there's a second way cases get there, which is much more direct.

Akhil Reed Amar (14:02)

Another factor is if the government of the United States asks the Supreme Court to hear a case today, that would be Donald Trump. If Donald Trump, through an office called the Solicitor General's office, seeks Supreme Court review, he's going to have a much better track record of getting the Supreme Court at least to hear the case. And that's not unique to Donald Trump. That's true of every president. So those are two pretty big factors. Definitely something that's advocated by the current Solicitor General would rise to the top of the heap.

Soni Kassam (14:35)

When the solicitor General shows up, it's like getting bumped to the front of the line. The justices may not always agree with the government's position, but they tend to agree it's worth hearing out. One final note before we leave this stage, you might be wondering, how do nine justices actually manage to sort through over several thousand petitions a year? How do they make sense of cases from 50 states, dozens of circuits, and from the Solicitor General? The answer? A not so secret secret in Washington. The clerks,

Akhil Reed Amar (15:17)

they're apprentices, they're helpers. They help the judges in every part of the judicial role. They are typically young lawyers. They help the judge in every way, draft opinions, research the law. Most Supreme Court justices today started their careers as law clerks. And in fact, more than half of the justices today clerked.

Soni Kassam (15:43)

These clerks, usually in their late 20s, fresh out of the most elite law schools, comb through thousands of petitions. They condense them, flag the most urgent, and give the justices a roadmap of what matters. And once a case is accepted, they dive even deeper, pulling research, testing arguments, even drafting the first version of opinions that may one day rewrite American law. Which means when you hear about the next landmark decision on TV, there's a strong chance it all started with a 26 year old hunched over her laptop in downtown D.C. Once the case clears, all Those hurdles and. And the clerks. It steps into the light. Let's now see what actually happens inside the court when nine justices take the bench.

Akhil Reed Amar (16:40)

Once the Supreme Court has agreed to take a case, it reads briefs, short legal memos from the parties on each side. One party saying, we deserve to win. We lost below, we deserve to win. The other party said, no, the court below got it right.

Soni Kassam (16:55)

Think of the briefs as legal mixtapes. Each side compiles their best arguments, all squeezed into about 50 pages. For the Justices, these aren't just persuasive essays. They're battle plans, carefully structured, meticulously cited, and laser focused on winning over at least five Justices. Outside groups can weigh in, too. Ever heard of an amicus brief? That's Latin for friend of the court, and it's how law professors act. Advocacy groups, even entire states, can chime in with their two cents. Some of these briefs offer fresh data or historical context. Others deliver the emotional or moral arguments that main parties can't. And while the Justices aren't supposed to be swayed by them, the truth is, they often are. Major decisions, from Brown vs Board of Education to Dobbs, which overturned Roe v. Wade, have cited amicus briefs directly. And Professor Amar has written many himself arguments that have made their way into Supreme Court opinions word for word. Once the briefs have been duly studied by the Justices, it's showtime, also known as oral argument, a ritual that can be best thought of as part theater, part cross examination.

Akhil Reed Amar (18:16)

There are nine justices, and they're on the bench, and the lawyers are within the 15ft of them, and they're talking back and forth. And now for about an hour, maybe an hour and a half, they let the lawyers come and argue the case, just giving the lawyers a chance in person, face to face, to basically summarize their arguments and respond to the questions and the criticism critiques that the Justices might have.

Soni Kassam (18:50)

This is where dry legal theory turns into very real courtroom drama. You can hear the stakes not just in what's said, but how it's said, like the short tone of a skeptical justice. And if you listen closely, you might even catch something else, a hint, a nudge, a direction in the questioning that that reveals how a Justice may be leaning before any vote is ever cast.

Akhil Reed Amar (19:19)

I'm just going to ask you to put yourself in a different frame of mind. Let's just assume you're dead wrong.

Soni Kassam (19:26)

I guess the question is, why does the law require that? I guess I don't really understand it. Still, up to this point, nothing is binding, nothing is final. The real decision happens next.

Akhil Reed Amar (19:40)

The Justices go back to their offices and try to write up an opinion.

Soni Kassam (19:45)

Once the arguments are done, the public phase ends. The lights dim, and the Justices retreat into what is perhaps the most mysterious room yet. It's called the private conference. No staff, no transcripts, not even the beloved law clerks are allowed. Not a single note leaves the room. Just nine Justices seated around a single table, a tradition that dates back more than two centuries. This is where the real decision gets made, but we don't know much about it.

Akhil Reed Amar (20:24)

They tend to be very secretive and closed mouthed about exactly how that private meeting unfolds. It is reported that the Justices go around the table and discuss their preliminary assessment of who deserves to win and why. And then at the end of that initial conversation, the justice who's the senior most, there's a kind of a tentative vote taken.

Soni Kassam (20:51)

The Chief justice goes first. Then each justice speaks in order of seniority. And in that conversation, not on the bench, not in public. The rules of American life are sometimes reshaped. Once a majority emerges, the Chief justice assigns the opinion. If the Chief is in the majority, he decides who writes. If not, that job goes to the most senior justice in the winning group. That opinion will explain the why or the logic behind the outcome. And it's not just for lawyers or historians. These words ripple out to schools, hospitals, police departments, state houses. They become the new standard. And unlike other Washington power brokers, the

Akhil Reed Amar (21:43)

Justices do a lot of their own work. Unlike many other people in Washington, D.C. they do a lot of reading and writing and thinking.

Soni Kassam (21:53)

Once the private conference is over, each justice returns to their chambers, and the one tasked with drafting goes to do that writing and thinking in private. They revise, revise, revise, often line by line. Eventually, a final decision is ready. But here's what's remarkable. As we said at the top of the show, the Court doesn't have an army. It doesn't have police or patrols to enforce what it says. The judiciary doesn't have an enforcement wing. And yet, when the Court speaks, the country listens. So what happens the morning after a major ruling?

Akhil Reed Amar (22:33)

Hopefully next to nothing. Business as usual. No blood in the streets. The opinion is obeyed. The markets don't crash.

Soni Kassam (22:46)

We obey. And that's the power of the Court. Its decisions become the law of the land, not because it can enforce them, but because we, the people, agree to follow them. As we're wrapping up, Professor Amar tells me about one perfect case to see the power of the court. It's 1974. Sitting President Richard Nixon is trying to withhold tapes of private Oval Office conversations from a federal investigation. Then the Supreme Court in United States v. Nixon rules unanimously that the President has to hand the tapes over. No special privilege, no immunity from the law.

Akhil Reed Amar (23:36)

President Richard Nixon didn't want to hand over certain tapes of conversations in the Oval Office. The Supreme Court said, yes, you must do that. The Court was unanimous, and Richard Nixon handed over the tapes, even though the tapes, when released, actually were pretty incriminating. They made clear that he was in on a conspiracy to cover up the Watergate burglary, that he released them and two weeks later.

Courtroom Announcer (24:07)

Good evening, Mr. President. I must put the interests of America first. Therefore, I shall resign the presidency effective at noon tomorrow.

Soni Kassam (24:22)

That moment, a president surrendering to a ruling that kills his presidency is the clearest proof we have that the Court's authority rests not on force, but on faith. That's the magic of the Court. Not in its infallibility, but in the fact that we collectively let it be final. Of course, some might push back. These are just people, political people appointed by presidents with agendas and confirmed in an atmosphere that now feels more like combat than anything else. And Professor Amar would agree with it, is nine lawyers flawed and shaped by their own politics like everyone else in Washington. And yet in this one institution, something rare still happens, he says. Injustice crosses ideological lines. A deeper principle wins out over party. A ruling surprises even the experts. It doesn't always happen, but it happens more here than almost anywhere else in Washington. And that's worth paying attention to.

Akhil Reed Amar (25:37)

I think they've gotten it wrong in some cases. A few cases, they've gotten it egregiously wrong. But nowhere else in Washington, D.C. do you see routinely Republicans citing the Democrats. And you will see that among the Supreme Court justices, not all the time, maybe not even most of the time, but way more from the Supreme Court, one First street, than anywhere else in

Soni Kassam (26:02)

Washington, D.C. so there you have it. The Supreme Court. No cameras, no elections, no real power to enforce its rulings. And yet every major fight in our democracy seems to end up here. It's not perfect. It's not always right. But in a system built on words and principles, this is the institution we've trusted to interpret them. An institution that's lasted more than 200 years and counting.

Courtroom Announcer (26:36)

Oye, oye. Oh, yay.

Soni Kassam (26:55)

Many thanks to Professor Akhil Rita Mar for being our guide in this episode. And thank you for listening to 1440 Explorers. I'm Sony Kassam. Make sure to follow the show and leave a review on Spotify, Apple, or wherever you listen to your podcasts and let us know what you think@podcastoin140.com while you're at it, start your learning journey with us at join140.com subscribe to our free daily and weekly newsletters on world affairs, business and finance, society and culture, and much more. 1440 Explorers is a production of Rhyme Media for 1440 Media. This episode was produced by Nicolo Magnoni and edited by Dan Bobkoff. Our fact checker is Meher Ghazlovash and our sound designer is Jay Khawit. The executive producer at Rime is Dan Bobkoff, and the executive producers at 1440 are me and Drew Steigerwald. See you next time.