99% Invisible – Constitution Breakdown #6: Adam Liptak
Release Date: January 30, 2026
Host: Roman Mars
Guest: Adam Liptak (Supreme Court reporter, New York Times)
Co-host: Elizabeth Joe

Episode Overview

This episode dives into Article III of the U.S. Constitution—the section that establishes the federal judiciary. Host Roman Mars, co-host Elizabeth Joe, and guest Adam Liptak (esteemed Supreme Court reporter for The New York Times) discuss how Article III is designed, what it includes and omits, Congress’ power over the courts, the rise of judicial review, the challenges and potential reforms facing the Supreme Court, and what it’s like to cover the Court as a journalist. The conversation balances historical context, modern practice, and Liptak's own experiences, providing fresh insights into the least-defined, yet highly influential, branch of government.

Key Discussion Points and Insights

1. Article III – What It Says (and What It Doesn’t)

• Article III is remarkably short compared to Articles I (Congress) and II (Presidency). It simply creates a Supreme Court but offers few specifics about its design or powers.

  • Adam Liptak: “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 to Congress a lot of the detail work.” [02:32]

• The framers assumed Congress would take the leading constitutional role, with the judiciary originally viewed as “the least dangerous branch.”

  • Supreme Court Justices were not prestigious at first; the position was almost an afterthought. [02:58]

2. Congress’s Power Over the Court

• Congress can set or change the size of the Supreme Court (it has fluctuated from 5 to 10 justices historically) through simple legislation without constitutional amendment.

  • “It has been as small as 5, as large as 10. And some of that court packing, call it, and court shrinking has been done for political reasons.” [04:12]

• Jurisdiction Stripping: Congress can (at least theoretically) limit what kinds of cases federal courts hear. While this is a rarely used tool, its extent is still “untested territory.”

  • “We talk about the separation of powers, but the three branches also have intersecting powers. …Congress’s power in shaping the Supreme Court and the federal court system is pretty substantial.” [05:18]
  • Congress’s reluctance to exercise this power is partially due to political norms and fears of public backlash (e.g., FDR's failure at court-packing despite popularity). [08:08]

• Congress also controls court structure and funding and has the power (though used rarely) to impeach judges for misconduct, not for legal opinions. [09:14]

3. Key Features of Article III

• The federal courts have limited jurisdiction; most legal disputes are handled by state courts. Federal courts only hear cases involving federal laws, treaties, or the Constitution. [10:07]

• Good Behavior Tenure: Federal judges have life tenure, the only such system without mandatory retirement or term limits in developed nations.

  • “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.” [11:28]
  • Life tenure introduces both independence and unwanted political dynamics in retirement timing. [11:30]
  • Term limits would require a constitutional amendment, considered nearly impossible to enact. [13:12]

• Court Expansion vs. Reform: While expanding the Court is legally easy, it's seen as a dangerous, escalating path. [13:39]

4. Cultural and Political Status of the Court

• Supreme Court Justices have become “celebrities” due to long tenure and prominent public roles, which contrasts with their intended anonymous, impartial role.
  • “They wear black robes to signify a kind of anonymity and disinterestedness …this idea that they go on book tours and go on TV …I don't think the framers envisioned that.” [14:51]

5. The Roberts Court: Shifting Eras and Impact

• Kennedy Era: A 5-4 right-leaning court with swing-vote moderation (Justice Kennedy joining liberals in key cases).

• Current Era: After Kennedy’s retirement and Trump's three appointments, the Court is “more lopsided and predictable.”

  • The “democracy docket” includes redistricting, campaign finance, and voting rights, with recent decisions (Rucho, Citizens United, Shelby County) favoring entrenched power. [15:37]

• Roberts Court and Executive Power:

  • The Trump v. United States immunity decision is described as perhaps the most consequential, shifting toward “unbridled executive power.” [17:27]
    • “That decision is in tension with...the kind of balls and strikes version of judging...” [17:27]
  • The emergence and controversy of the “shadow docket”—emergency rulings made quickly, often without full argument or detailed reasoning—frequently favoring the Trump administration. [19:43]

Memorable Quotes on Shadow Docket

“It has many flavors, but the basic idea is this... a presidential program is frozen, and that’s a big deal... it races up to the Supreme Court, and the Supreme Court says, yay or nay. And all of this happens very fast... My best understanding is the justices never meet to discuss the case...”
—Adam Liptak [19:43-22:51]

“I don’t think anybody’s crazy about this shadow docket… these shadow docket rulings do not [provide reasoned explanations].”
—Adam Liptak [22:22]

6. Why Exercise Shadow Docket Powers at All?

• Single district judges should perhaps not be able to freeze major national initiatives. However, the shadow docket is problematic due to speed and lack of engagement. [23:49-25:27]
• The Trump administration’s strategy of flooding the courts is enabled by the unprecedented volume of executive orders (and savvy case selection by the Solicitor General). [26:00]

7. Judicial Review: The Unwritten Centerpiece

• Judicial Review—the Court's power to declare laws unconstitutional—is not actually in Article III; it arose in Marbury v. Madison (1803) and was later solidified in Cooper v. Aaron.
  • “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...” [30:15-31:06]
• Stare decisis (precedent): The Roberts Court is not statistically more prone to overturning precedent, but high-profile reversals like Dobbs suggest a more unstable constitutional environment. The reasoning for overturning precedents is “malleable.” [33:34-34:55]

8. Court’s Self-Restraint: Is It Real?

• Roman Mars wonders whether the Court’s cautiousness is a kind of self-protective lack of confidence, fearing the executive might ignore its rulings. Liptak responds that this is a new concern in the Trump era—such open defiance by a president was previously unthinkable. [34:55-35:34]

9. Standing: Who Gets to Sue?

• The Court’s doctrine of “standing” (who has the right to bring a case) is highly flexible and sometimes seems result-driven rather than principled.
  • “As with stare decisis, this is malleable and opportunistic.” [37:04]
  • “It's 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 be.” [40:17]
• Recent cases (e.g., student loan forgiveness, website designer case) show the Court can be inconsistent about who has standing.

10. On Covering the Court: Liptak’s Perspective

• Supreme Court reporters immerse themselves for months to be ready for rapid coverage on decision days.
  • “You spend many months getting ready for a few days in June...” [42:09]
  • The biggest stories are published within minutes and get the most readership, even if later stories are far richer in analysis. [43:41]
• Occasionally, the Court responds to coverage, usually to correct perceived errors rather than to praise. [44:48-44:59]

11. Dissents and Tone of the Court

• Recent dissents are particularly sharp, a tone Liptak attributes to the liberal minority’s sense of “hopelessness…just being on a never ending losing streak.” [45:22]

12. Can the Court Be Changed or Reversed?

• A simple personnel change (new justices, different majority) could rapidly shift jurisprudence, with even stare decisis easily overcome.
  • “A change in personnel would in short order move the court in a different direction.” [46:25]
• Yet, Court legitimacy—public and official willingness to obey the Court’s rulings—remains higher than many other institutions. [47:13]

13. Transparency and Reform

• Liptak advocates for transparency (disclosure of vote counts, more open proceedings), but acknowledges the Court’s culture of opacity is unlikely to change.
  • “Reporters always want transparency… I would love to know, for instance, the vote counts on these emergency applications we were talking about earlier.” [52:02]
• On live video: Liptak supports televising oral arguments, but sees live audio as an acceptable substitute. [52:44-53:54]
• Forcing quick decisions would likely reduce quality; timing of arguments (e.g., late-term, high-stakes cases) affects the quality of decisions. [54:35-55:45]

14. The Role of Law Clerks

• Law clerks (elite young lawyers) take on significant responsibilities—drafting opinions, screening cases, and acting as a “little law firm” inside the Supreme Court—despite this system having no constitutional basis.
  • “These clerkships are one year long… they are given extraordinary responsibilities, including evaluating the petitions seeking review…” [57:04]

15. Backgrounds and “Aristocracy” of the Court

• The modern Court is dominated by Harvard/Yale graduates and, strikingly, multiple justices have succeeded their own former law clerks—an “inherited aristocracy” at odds with the Constitution’s anti-nobility values. [58:50]

16. Oddities in Article III: Treason and Original Jurisdiction

• The Constitution’s very limited and specific definition of treason appears as the final section of Article III—a historical anomaly designed to restrict abuse.
  • “You wonder if the drafters were going, well, we got to talk about treason somewhere. Where shall we stick it?” [61:21]
• Supreme Court original jurisdiction (trial-style cases, e.g., state-vs-state disputes over boundaries or water rights), now quite rare, was conceived as a possibly major function of the Court. [62:07]

Notable Quotes & Moments (with Timestamps)

• "All [Article III] does is create a Supreme Court. It doesn’t even specify its size, and it leaves to Congress a lot of the detail work."
  — Adam Liptak [02:32]

• "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."
  — Adam Liptak [11:28]

• "That decision [Trump v. United States, immunity] is in tension with... the kind of balls and strikes version of judging..."
  — Adam Liptak [17:27]

• "My best understanding is the justices never meet to discuss the case… The actual opinion can have no reasoning or very slight reasoning. …It’s hard to see how the branch is legitimate at all."
  — Adam Liptak [19:43-22:51]

• "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."
  — Adam Liptak [31:06]

• "The justices each have four brainiac law clerks...the associates write the first draft of ...an opinion and the justices direct it…But the clerk has a substantial hand in what happens."
  — Adam Liptak [57:04]

• "Eight of the nine [justices] went to Harvard or Yale Law School... Three of them clerked for the very justice whom they succeeded."
  — Adam Liptak [59:00]

Structural Outline with Timestamps

• Introduction & Article III Explained [01:05–02:58]
• Congress’s Powers over the Court / Size / Jurisdiction [04:00–08:50]
• Impeachment & Structure / Norms [09:14–10:07]
• Limited Jurisdiction & Life Tenure [10:07–13:39]
• Supreme Court ‘Celebrity’ / Politics [14:10–15:16]
• Roberts Court: Shifts & Key Decisions [15:16–19:18]
• Shadow Docket / Emergency Procedures [19:43–26:00]
• Judicial Review / Marbury / Stare Decisis [29:55–34:55]
• Standing Doctrine [36:01–41:03]
• Reporting on the Supreme Court [41:46–44:59]
• Dissents / Minority Experience [45:07–45:58]
• Court Reform & Legitimacy [46:25–47:13]
• Transparency / Televising the Court [52:02–53:54]
• Law Clerks & Court’s ‘Aristocracy’ [56:47–59:26]
• Treason and Original Jurisdiction [61:00–63:26]
• Conclusion [63:57–64:07]

Overall Tone & Takeaways

The episode is thoughtful, measured, and lucid—blending legal and historical expertise with journalistic observation. Liptak’s commentary captures the peculiarities, strengths, and deep-rooted challenges of America’s judicial system, especially its Supreme Court. He underscores the persistent tension between original constitutional design, evolving norms, growing political polarization, and the lived reality of 21st-century judicial power. The overarching theme: the Supreme Court’s architecture and role are both underdefined and enormously powerful, making its design and operation a perpetual (and often invisible) part of America’s constitutional experiment.

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