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Rund Abdelfattah
Hey, it's rund as the clock ticks down to the close of the Supreme Court's 2025, 2026 term, and we await the justices to hand down nearly two dozen more rulings by early July, the most anticipated of which involve birthright citizenship, the counting of mail in ballots, the President's power to remove any official, and state bans on female transgender athletes, we thought it would be helpful to share a through line episode from our archives that tells the story of the Supreme Court, how it evolved from the weakest branch of government to the powerhouse arbiter it is today.
Ramtin Arablouei
There is with a 20 pitch and
Larry Kramer
this ball smashed high and deep to center field.
Ellie / Various Callers
It is. Whoa. This ball, that ball driven to right. Is it fair? It is a home run.
Rund Abdelfattah
When I was growing up, I remember my dad having this strange love of baseball. He was new to this country. Everything about it was foreign to him.
Ellie / Various Callers
Hot dogs. Hot dogs here.
Rund Abdelfattah
Different food, different languages, different politics. But baseball, that made sense.
Ellie / Various Callers
There's a drive to right center field
Larry Kramer
by Piazza, his first major league hit.
Lucas Poe Jr.
He'll go into second.
Rund Abdelfattah
He didn't know all the rules necessarily, but he got the basic gist of it. One person throws the ball, the other tries to hit it. And the person behind the plate, behind the catcher, the person calling the strikes
Ramtin Arablouei
or balls, two balls and a strike.
Rund Abdelfattah
That's the umpire, the arbiter of justice. What he says goes, no questions asked.
Lucas Poe Jr.
Well, bullshit.
Ellie / Various Callers
Bullshit yourself.
Rund Abdelfattah
Most of the time
Ellie / Various Callers
barking at the home.
Rund Abdelfattah
But even when people don't like the ump's call, they have to live with it or get thrown out.
Ellie / Various Callers
And he gets ejected as well.
Lucas Poe Jr.
And Cece's joining in the fray.
Rund Abdelfattah
That's just the way the game was set up. This isn't an episode about baseball.
Ellie / Various Callers
Justice Ginsburg, will you raise your right hand and repeat after me?
Rund Abdelfattah
This is an episode about the Supreme Court. I, Ruth Bader Ginsburg, do solemnly swear
Ellie / Various Callers
that I will support and defend the Constitution of the United States, which some
Rund Abdelfattah
people like to think of as America's umpire.
Lucas Poe Jr.
Judges are like umpires,
Rund Abdelfattah
Calling the shots for the country. No Questions asked. Right.
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The death of Supreme Court Justice Ruth
Rund Abdelfattah
Bader Ginsburg has forced abortion rights advocates to face their biggest fear. And this is just one of several hot button issues like health care and
Lucas Poe Jr.
voting rights that could now be transformed
Rund Abdelfattah
for decades to come.
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The President vowed to go to the Supreme Court to dispute the election count.
Larry Kramer
The Court has the power of life and death.
Rund Abdelfattah
The more the Court expands into every area of American society, society, the bigger ticket item it becomes.
Larry Kramer
Because of this kind of power, the leanings of a new and ninth justice are so crucial.
Rund Abdelfattah
You're listening to Throughline from npr, where we go back in time to understand the present. The Supreme Court as America's umpire may not be a perfect metaphor, but it gets at a really important point. Nowadays, the Supreme Court has the final say over so much of our lives, which hasn't always been the case. For most of our history, people thought of the Supreme Court as like the coach, with some say over the flow of the game, but definitely not the final say. Okay, we're gonna stop with the baseball metaphors now.
Ramtin Arablouei
There's no such thing as too many baseball metaphors anyway. In the beginning, back in 1787, when the framers of the Constitution were designing how this federal government would work, you know, three branches, checks and balances, the way they saw things. The president controlled the army, Congress controlled the money, and the courts, the judiciary, well, as Alexander Hamilton put it, the
Lucas Poe Jr.
judiciary, on the contrary, has no influence over either the sword or, or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever.
Ramtin Arablouei
In other words, without the sword or purse, the Supreme Court didn't have much power to enforce its decisions, making it the least dangerous and least powerful branch.
Larry Kramer
There was just no notion that it would be powerful. It wasn't yet in really anybody's imagination that they had to worry about. That's Larry Kramer, formerly the dean of Stanford Law School, and I wrote a book called the People Popular Constitutionalism and Judicial Review.
Ramtin Arablouei
So the framers came up with Article 3.
Rachel Sheldon
The Constitution in Article 3 gives Congress the power to shape what the federal judiciary is.
Ramtin Arablouei
The judicial power of the United States
Rund Abdelfattah
shall be vested in one Supreme Court.
Rachel Sheldon
There's a Supreme Court and any other courts that the Congress at the time wanted to create.
Ramtin Arablouei
Being a Supreme Court justice in these early days wasn't glamorous. I mean, the original Supreme Court didn't even get its own building.
Rachel Sheldon
The Supreme Court is going to be situated in the basement of the Capitol. And that gives you a sense actually of the hierarchy of what people at the time thought about the Supreme Court.
Ramtin Arablouei
By the way, this is Rachel Sheldon.
Rachel Sheldon
I'm a historian of politics, law and the constitution in the 19th century, and
Rund Abdelfattah
her book, the Political Supreme Court, will be published later this year.
Rachel Sheldon
They sat at individual desks as opposed to sort of what we assume today of that sort of long bench. They did not have separate offices the way that we think of today.
Rund Abdelfattah
And that was only when they were in Washington, D.C. where they spent just some of the year. The rest of the time they were doing this thing called riding circuit, meaning they would basically travel around the country.
Rachel Sheldon
A judge would, in fact, yes, ride around horseback or really in a carriage and go from town to town where
Rund Abdelfattah
the circuits were held, and they would preside over trials. Keep in mind, there wasn't a vast web of federal judges around the country that could filter some of these cases for the court like there is today. So the Supreme Court justices rode around and handled things themselves.
Rachel Sheldon
At the end of the day, the justices would, you know, take off their judge hat. They would go and stay in their boarding houses.
Rund Abdelfattah
These boarding houses were typically shared with the lawyers who were trying the cases,
Rachel Sheldon
getting to know the town, spending time with the political folks who are around. Lots of the lawyers who tried cases in front of the circuit court tended to be state legislators.
Larry Kramer
Everything's a lot looser, you know, than it subsequently becomes
Ramtin Arablouei
at this time. Politics and the Supreme Court were very intertwined. The justices saw no separation between the two.
Larry Kramer
They viewed themselves as perfectly capable of participating in political debate as judges.
Ramtin Arablouei
In fact, the court was so political that many of the justices just saw their job as a stepping stone in their quest for political power. They didn't hang around that basement for very long, if you know what I mean.
Rund Abdelfattah
But some people even then had a different vision for the court. They wanted the court to be taken seriously, to reign supreme. And over the next 200 years, that vision would slowly be realized.
Ramtin Arablouei
Ramtin I'm Ramtin arablouei.
Rund Abdelfattah
I'm Randa Abdelfatah.
Ramtin Arablouei
And on this episode, we're diving into the long, complicated political history of the highest court in the land, the Supreme Court of the United States. How did it become America's umpire? And when did it get the final say on human rights, health care, and even who we choose as president?
Ellie / Various Callers
Hi, this is Ellie, and I'm calling
Rund Abdelfattah
from Washington, D.C. and you're listening to Throughline from NPR.
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Rund Abdelfattah
Part 1 whose say is It Anyway? We start our story with a contested presidential election, the election of 1800, one of the most partisan showdowns in our country's history.
Larry Kramer
It's the most divisive period in American history. Except for the Civil War and possibly
Rund Abdelfattah
today, the country was still pretty new and everybody was trying to figure out how this democracy thing was going to work. Things like trade, taxation, foreign relations, state versus federal power.
Larry Kramer
It's a period of a lot of turmoil and there's essentially one huge division, you know, around which the political parties form.
Ramtin Arablouei
The United States didn't start out with any political parties, no teams, but competing visions of government were pulling people apart, which led to the creation of these two parties.
Rund Abdelfattah
The Federalists, the party of incumbent President John Adams, and the Democratic Republicans.
Rachel Sheldon
Always confusing because it has both Democrat
Rund Abdelfattah
and Republican in it, the party of candidate Thomas Jefferson.
Ramtin Arablouei
These parties had radically different outlooks on government.
Larry Kramer
Almost all of the debates are around what is it that we mean by, you know, they would have said Republicanism. We would say democracy. That is to say, how popular is it supposed to be?
Ramtin Arablouei
The Democratic Republicans were fans of popular politics.
Larry Kramer
This is our law.
Rachel Sheldon
Allow more power to grow up from the people themselves.
Larry Kramer
The final interpretation rests with us in the community.
Ramtin Arablouei
Jefferson famously said, I hold it that a little rebellion now and then is a good thing and as necessary in the political world as storms in the physical.
Larry Kramer
The much more conservative Federalists push back in all sorts of ways, interpreting the Constitution in ways that would limit the capacity for popular politics to grow.
Rund Abdelfattah
The Federalists wanted more stability, more, and they thought in order to get that,
Rachel Sheldon
the federal government ought to have more power.
Rund Abdelfattah
They believed their still very young country needed a strong centralized Government with lasting institutions that would be around much longer than elected officials. Institutions like the courts.
Ramtin Arablouei
The Federalists were the party of power throughout the 1790s. But in the election of 1800, they faced defeat. Adams lost the race, and Jefferson became president.
Rachel Sheldon
So Congress becomes Democratic Republican, and you have Jefferson in the White House.
Ramtin Arablouei
But as outgoing president John Adams term was coming to an end, he and his party made one final power grab.
Rund Abdelfattah
Adams nominated a bunch of federalist judges at the very end of his term, so called midnight judges, as well as a new Chief justice of the Supreme Court, John Marshall.
Rachel Sheldon
He becomes sort of the foundational Chief justice in terms of thinking about development of the court as an institution.
Larry Kramer
Marshall's a straight up federalist. He was Secretary of State for John Adams, and then he made him the Chief justice.
Rachel Sheldon
He's now in control of only one branch. With the Federalists in charge as Chief justice.
Ramtin Arablouei
John Marshall made a lot of symbolic changes to the Supreme Court.
Rachel Sheldon
So the story goes that Marshall wore a black robe at his swearing in, and that after that, this became common practice. There was a degree to which some people did not like to see Supreme Court justices in robes at all, Thinking of it as a royal court as opposed to sort of a democratic body. He wants all the justices to board together and to work together. He is a big proponent of having unanimous opinions. He thought that that had the tendency to make the Court seem more important.
Ramtin Arablouei
Marshall dreamt of a Supreme Court with national authority, a Supreme Court that gets to interpret the Constitution, basically be the umpire for the the entire country.
Larry Kramer
He believes in judicial supremacy, which is
Rachel Sheldon
much more what we accept today, the idea that the Supreme Court is the final arbiter of constitutionality.
Rund Abdelfattah
This idea, judicial supremacy, gives the Supreme Court final say over what's constitutional and what's not. And then everybody has to do what they decide, the law of the land.
Ramtin Arablouei
But again, this was a dream.
Rund Abdelfattah
It's just not how things worked then. But there was this other thing, a much more restricted power that was on the judicial review.
Larry Kramer
So judicial review is the notion that in a case before it, the court can say whether a statute that is raised in the case is in fact constitutional and therefore enforceable.
Rund Abdelfattah
The court gets to decide what's constitutional in a case, but the ruling doesn't extend beyond that specific case. So it's the law of the case, but not the law of the land.
Larry Kramer
The whole idea of judicial review without judicial supremacy is that you have three co. Equal branches, each with equal authority to interpret the Constitution.
Ramtin Arablouei
Remember, that was how the federal government was designed to work. No one branch was supreme over the others, so they could all keep each other in check.
Rachel Sheldon
Marshall himself was interested in having more of that supreme power for the court, but he also understood it was not possible. He operates in this world in which he knows he's a minority, especially when the Democratic Republicans, led by Thomas Jefferson and James Madison are in power.
Ramtin Arablouei
Plus, there was some personal beef.
Rachel Sheldon
Marshall and Jefferson were cousins. They famously did not like each other.
Rund Abdelfattah
In 1803, the cousins, Chief Justice John Marshall and President Thomas Jefferson, met in court, going head to head in a case called Marbury v. Madison.
Rachel Sheldon
Probably the most famous decision and sort of the beginning of most constitutional law experiences is Marbury versus Madison.
Rund Abdelfattah
We won't get into all the details of the case, but in short, the Jefferson administration was being sued for refusing to acknowledge some of those midnight judges that John Adams had appointed right before leaving office. William Marbury was one of them. He and the other appointees were able to take the case directly to the supreme court thanks to a provision in a federal law that Congress had passed more than a decade earlier. And Marshall saw this as an opportunity.
Rachel Sheldon
He sees this as a situation in which he needs to preserve the power of the court that had existed and try to grow it in opposition to the other branches of government.
Rund Abdelfattah
Marshall wanted to flex his authority as the head of the judicial branch, but
Larry Kramer
he knows if he actually tries to order Jefferson, Jefferson's going to ignore him. So that will make the court look weak.
Ramtin Arablouei
Remember, the court didn't have the power to enforce its decisions. No money, no army. It all depended on how much the other branches chose to respect its decisions.
Rund Abdelfattah
But there was one tool that Marshall could use. The power of judicial review. Up to this point, judicial review had only been applied sporadically. But in Marbury v. Madison, John Marshall formally established it.
Ramtin Arablouei
It was a calculated trade off. Marshall was like, fine, we know we can't force these appointments through. But you know, that provision in the federal law Congress passed, the one that allowed Marbury to bring the case directly to the Supreme Court? Well, we've decided that provision is unconstitutional. We, the supreme Court, have the power to interpret the Constitution in any case, state or federal, even if that means overriding an act of Congress. We have the power of judicial review. It is emphatically the duty of the judicial department to say what the law is.
Larry Kramer
It's one of those instances of playing politics. So he finds a way to say, you know, we don't have jurisdiction. I can't tell Jefferson what to do, but I'm going to tell you. He violated the Constitution. This was wrong.
Ramtin Arablouei
The government of the United States has been emphatically termed a government of laws and not of men.
Larry Kramer
It becomes the first case in which the Supreme Court strikes down a federal law for violating the Constitution.
Rund Abdelfattah
In other words, this is the first time the Supreme Court flexed its power to say that what another branch of the federal government wanted to do was not constitutional.
Ramtin Arablouei
It was the moment when judicial review, which had been around but heavily debated, solidified as part of the Court's power. This case would reverberate for centuries to come.
Larry Kramer
For somebody reading it at the time, it's screamingly clear that he is not pushing the judicial supremacy position and is backing away from it, which, of course, he had to do because it would not have been acceptable at the time.
Ramtin Arablouei
So while this was an important win for the Court, it was a long way from Marshall's ultimate goal. Judicial supremacy. The Court as umpire, with final say. He was a visionary, though, and he knew he had to play the long game. During his three decades on the bench, he helped plant the seed of what the Court could be and the amount of power the Supreme Court could have in the future.
Rachel Sheldon
In the next iteration of the Court, where Roger Taney becomes Supreme Court Justice, Chief justice of the Supreme Court tends to be a little bit less involved in striking down laws. I mean, they don't strike down a federal law again. Until Dred Scott v. Sanford In 1857,
Rund Abdelfattah
Dred Scott was an enslaved man who was suing for his freedom.
Larry Kramer
As the controversy over slavery in the territories heats up, there are people who start to say, why don't we have the Supreme Court settle this? Like, wouldn't that be great if the Supreme Court settled it?
Rund Abdelfattah
Before we get into the case, let's set the scene. This is more than 50 years after Marbury vs Madison, and by now, the country had more than doubled in size. Louisiana, Indiana, Mississippi, adding a dozen states to the union. Alabama, Maine, Missouri. It's the decade leading up to the Civil War. Abolition is the defining debate of this time. And with the Dred Scott case, the Court was about to wade deep into that debate.
Ramtin Arablouei
Dred Scott was born into slavery in Virginia, and he was moved around a lot. First to Alabama, then to Missouri, both slave states, and then onto Illinois, a free state, and then the Wisconsin Territory, where slavery was forbidden by the Missouri Compromise of 1820. After returning to Missouri, Scott filed suit in court for his freedom, claiming that because he'd lived in a free territory and state, he was now a free man, a US Citizen. The case eventually made its way to the Supreme Court.
Rachel Sheldon
Taney is going to give the ultimate determination, but it takes a while. They evaluate what they ought to do over the course of not just, you know, a few months, but over a year. And while the case is being determined, members of the court are in discussion with politicians in the area.
Ramtin Arablouei
Finally, the court came to a decision. The long trumpeted decision of the Supreme Court in the Dred Scott case was pronounced by Judge Taney yesterday, having been held over from last year.
Larry Kramer
And the court holds that Scott cannot be a citizen because he's black and Africans can never be citizens.
Ramtin Arablouei
They had no rights which the white man was bound to respect and that the negro might justly and lawfully be reduced to slavery for his benefit.
Rund Abdelfattah
The court's opinion was an outright racist endorsement of slavery throughout the country. It denied all black people enslaved as well as freedom, any chance at citizenship.
Ramtin Arablouei
It is too clear for dispute that the enslaved African race were not intended to be included and formed no part of the people who framed and adopted this declaration.
Larry Kramer
It seems to like give the south everything it wanted. There was a huge explosion in the
Rachel Sheldon
north and this sets off all kinds of anger among quite a few people. Republicans at this point, A new party that want to eliminate slavery from the territories with the idea that eventually it would die out.
Ramtin Arablouei
The Supreme Court of the United States has polluted its garments in the filth of pro slavery politics. From this day forth it must stand as a self disgraced tribunal. And from this day forth it will be one of the great and leading aims of the people of the free states to obliterate this shameful record and undo what has been done.
Rund Abdelfattah
This is from an article in the New York Tribune, one of the largest newspapers aligned with that new political party, the Republicans. And one of the most vocal critics of the decision, A rising star in the Republican party was a former congressman from Illinois named Abraham Lincoln.
Rachel Sheldon
Lincoln is very unhappy and he says that this is a conspiracy to extend slavery across the United States. He believes Dred Scott was wrongly decided. He also believes that it does not have to be permanent law.
Ramtin Arablouei
After becoming president. Lincoln, as the executive basically just ignores the Supreme Court and its rulings during the Civil War. As his power grows, their power wanes. And by the end of the war, abolition has become the law of the land. And the court's decision in Dred Scott puts them on the wrong side of history.
Larry Kramer
Dred Scott certainly hurts the court's credibility for a good generation. Takes them a while to rebuild credibility after that.
Rund Abdelfattah
When we come back, the Supreme Court fights to restore its legitimacy as a president, challenges its power at every turn.
Ellie / Various Callers
This is Jose Santana from Novatuck, Connecticut, and you're listening to Throughline from mpr. I really love you guys. Thank you for bringing so much information to us.
Ramtin Arablouei
Bye.
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Ramtin Arablouei
apply Part 2 the Switch in Time saves nine.
Ellie / Various Callers
I am prepared under my constitutional duty to recommend the measures that a stricken nation in the midst of a stricken world may require.
Ramtin Arablouei
On March 4, 1933, President Franklin D. Roosevelt took office and he was up against the worst economic disaster in American history.
Lucas Poe Jr.
In his inaugural address, the biggest applause line was not we have nothing to fear, but fear itself was instead that I may have to to take on the powers of a wartime president.
Ellie / Various Callers
Broad executive power to wage a war against the emergency as great as the power that would be given to me if we were in fact invaded by a farm fall.
Larry Kramer
He has a mandate, which is to do so. Something about the Great Depression.
Ellie / Various Callers
Prosperity is just around the corner, say the hopeful headlines. But around the corners wind the lengthening bread lines and a whole new class of citizens appears in American society. The new poor.
Lucas Poe Jr.
You've got unemployment running at 25%.
Ellie / Various Callers
Not since the Civil War has such pressure, political, economic, social, centered on the White House.
Larry Kramer
And so Roosevelt, you know, pushes through the first New Deal and the court strikes it all down.
Rund Abdelfattah
By this time, the Supreme Court was beginning to Find its voice again to come out of the shadows.
Ramtin Arablouei
But you can't expect to be taken more seriously and expand your power to if you're stuck in a basement. Construction on a new Supreme Court building was underway when Roosevelt took office.
Rund Abdelfattah
And not long after Roosevelt tried to pass the first New Deal, the court moved into its fancy new building.
Ellie / Various Callers
Amid the architectural glories that grace our nation's capital, the United States Supreme Court building is one of the most imposing. A worthy meeting place for the highest tribunal of the land.
Rund Abdelfattah
This was a real step up from their old basement quarters. It's big, regal, like something out of ancient Greece, with a wide oval plaza, tall imposing columns lining the front, marble statues on either side, and a staircase perfect for a rocky style training montage welcoming you to the entrance, which is inscribed with the words equal justice under law.
Lucas Poe Jr.
There's a statement in the New Yorker in 1935, as the new Supreme Court building, the current marble palace is open for the justices. And the quip was the new building has wonderful large windows to throw the new deal out of. My name is Lucas Poe, Jr. I'm a professor of law and government at the University of Texas. My specialty is the United States Supreme Court.
Ramtin Arablouei
Okay, so why were the newly enthroned Supreme Court justices so staunchly against Roosevelt's plans? Well, first of all, this was still a conservative court, and they didn't like his populist agenda. And second, Roosevelt was dramatically expanding the power of the presidency. And as they were trying to expand their power, but Roosevelt was like, okay, you want to fight, I'll give you a fight.
Larry Kramer
He begins using all the old themes that have been there all along, pushing back that the court doesn't have this authority, shouldn't have this authority, that it shouldn't be able to strike these laws down in this way.
Rund Abdelfattah
Roosevelt was determined to push through a second New Deal, which he saw as the only way to rescue the country from the ongoing depression. Congress was on board. The only thing that stood in his way was the Supreme Court, which was threatening to strike down that deal, too.
Larry Kramer
And he's putting more and more pressure on the court, and they're still holding out to do it.
Rund Abdelfattah
It was like a game of chicken. Who would blink first? Eventually, Roosevelt reached his breaking point and decided to reset the rules of the game.
Ellie / Various Callers
I want, as all Americans want, an independent judiciary as proposed by the framers of the Constitution.
Lucas Poe Jr.
He proposes a plan to add new justices to the court.
Ellie / Various Callers
What is my proposal? It is simply this.
Lucas Poe Jr.
Whenever a judge or it would allow a new justice for every justice over the age of 70, not retiring. And at that time, the court was the oldest in American history. And that would have given Roosevelt six new appointees for a 15 member court.
Ellie / Various Callers
I seek to make American democracy succeed you and I will do our part.
Larry Kramer
It's disingenuous. You know, everybody understands why he's really doing it.
Lucas Poe Jr.
He was going to point yes men to the court. And there's a cartoon of that era that shows you a jury box with everyone is filled with an image of FDR voting I and that's what people feared would happen, Republicans especially.
Larry Kramer
It's not particularly popular, but it is still a huge amount of pressure on the court because he's Roosevelt and he's got a lot of political capitol to use.
Lucas Poe Jr.
You know, it's a warning shot that you've gone too far and it's working
Larry Kramer
its way through Congress and it's not clear what's going to happen.
Ramtin Arablouei
Roosevelt's court packing plan set off a heated debate in Congress. But this wasn't the first time a president had proposed changing the number of justices on the court.
Larry Kramer
Turns out right now to be the last time, but it wasn't the first time at all.
Ramtin Arablouei
Right back in 1801, John Adams did it right before leaving office.
Larry Kramer
They shrunk the court from 6 to 5 so that Jefferson wouldn't get to make any appointments.
Ramtin Arablouei
But Congress increased the number to seven. Then Andrew Jackson added a couple and Abraham Lincoln added one more.
Larry Kramer
Congress increases its size from 7 to 10.
Ramtin Arablouei
Under Andrew Johnson, it shrunk to 7
Larry Kramer
so that he won't get any appointments.
Ramtin Arablouei
In 1868, Ulysses Grant was elected.
Larry Kramer
They increase it again to 9, and
Ramtin Arablouei
it stayed there till Roosevelt came along.
Larry Kramer
Roosevelt was the last serious effort. No one had ever doubted its constitutionality.
Ramtin Arablouei
And the way Roosevelt saw it, the
Larry Kramer
court had this outmoded, outdated interpretation that did not fit the modern world at all and that there was no way that theirs should be the final and binding interpretation. So how do you push back at them to get them to stop striking down laws? You use the tools the Constitution provides, which include that the political branches get to decide how the court is made up. So I'm going to add some justices. It's a way to turn it around. They're all just ways of pushing these controversies back out to the people who are the ultimate deciders. People themselves are actually the interpreters of their own Constitution.
Ramtin Arablouei
With the court packing plan on the table, the future of the court was uncertain. And after months in limbo, the court retreats.
Lucas Poe Jr.
The court Packing plan just scared the hell out of the justices and caused what the best crime law professor at the time, Thomas Reed Powell, said the switch in time that saves nine as the court changes.
Rund Abdelfattah
In 1937, Roosevelt's second New Deal was upheld. Case after case came before the court and they basically just greenlit everything. A minimum wage, Social Security, the right of workers to unionize. And not long after, one of the
Larry Kramer
five justices who were the conservative majority holding this all back, Van Devanter, retires in the middle of all this and Roosevelt is able quickly to replace him. So now he's got the law that he wants, the court has retreated, he's got the court that he wants, so he lets the court packing plan go. He doesn't need it. He's gotten what he needed. And in the next couple years, the rest of them retire and he's able to appoint other justices.
Rund Abdelfattah
So Roosevelt did get the court he wanted, just not in the way he expected.
Lucas Poe Jr.
From the time of the court packing plan onward, the court simply rubber stamps the federal government. Whatever the federal government does, the court is going to approve.
Rund Abdelfattah
But the court's bid for judicial supremacy wasn't over just yet. Tucked away in one of the cases decided by this court was a footnote
Larry Kramer
that said we are reserving heightened judicial entanglement in a certain number of areas. They refer to discrete and insular minorities and the protection of individual rights.
Ellie / Various Callers
Rights?
Rund Abdelfattah
Individual rights, life, liberty, the pursuit of happiness.
Larry Kramer
Nobody paid much attention to that Footnote because in 150 years before then, none of those issues had actually been major issues in constitutional law. So it'd be like me saying, I'm going to let you control the whole house, but I'm going to keep this corner over here, like, fine, keep that corner. What do I care?
Rund Abdelfattah
To be clear, that corner was the civil rights corner.
Larry Kramer
And then what the Warren Court does is pick that up in ways that actually nobody had really thought would happen and runs with it, takes those doctrines and turns them into major issues of constitutional law for the first time.
Ramtin Arablouei
When we come back, we enter the Warren Court era and the battle for judicial supremacy reaches a tipping point.
Ellie / Various Callers
This is Dano from Phoenix, Arizona, and you're listening to Throughline from NPR.
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Ramtin Arablouei
part three the ceiling and the
Lucas Poe Jr.
floor
Ellie / Various Callers
Little Rock, Arkansas and the first phase of the Trouble the white population are determined to prevent colored students from going to the school their own children attend, picketing the school.
Rund Abdelfattah
Little Rock, Arkansas September 25, 1957. An angry mob stands outside Central High School, a formerly all white school, waiting to see if nine black students will show up. Minnie Jean Brown Trickey was one of those students.
Ellie / Various Callers
The world came to Little Rock to see what would happen.
Rund Abdelfattah
Years of rising tensions had led to this moment.
Ellie / Various Callers
Here is the sequence of events in the development of the Little Rock school case.
Ramtin Arablouei
In 1952, the issue of school segregation went to the Supreme Court. In the case Brown v. Board of Education, a lawyer named Thurgood Marshall, then the chief attorney for the naacp, argued for the plaintiffs. He argued that segregation in schools was a violation of the 14th Amendment of the Constitution, and the court unanimously agreed. They ruled that segregation in public schools was unconstitutional.
Rund Abdelfattah
Now states across the country had to figure out a way to integrate their schools, which made a lot of people, especially in the south, really angry. They resented the idea that the federal government could just come into their state and tell them what to do.
Ellie / Various Callers
Glory, glory
Larry Kramer
hallelujah.
Ellie / Various Callers
We are going to maintain segregated schools down in Dixie.
Ramtin Arablouei
And that included Little Rock. In 1955, the Little Rock School board
Ellie / Various Callers
approved a moderate plan for the gradual desegregation of the public schools in that city.
Ramtin Arablouei
But white community members refused to carry out that plan. So the courts pushed back. The Supreme Court issued a follow up decision known as Brown 2, ordering school districts to integrate. And in Arkansas, a federal district court judge followed up with another order. Still, the community resisted vocally and sometimes violently.
Lucas Poe Jr.
It's just chaos in the Little Rock schools and it's impossible for the students to attend.
Ramtin Arablouei
And the protesters got backup from the Governor of Arkansas.
Larry Kramer
The governor calls out the National Guard. They're not going to allow the integration to take place.
Ellie / Various Callers
If it interferes for a time with certain other liberties, then that has always been the case. Which reminds me of a statement of Abe Lincoln one time when he said, if I tried to answer all the charges that come to this office, that I might as well close up shop for any other business. That if I am right, then all the things they say won't matter. In the end,
Rund Abdelfattah
As pressure mounted to carry out the court's order, a mob formed outside the high school. Little Rock became a tinderbox ready to ignite at any moment. And by September 1957, President Eisenhower decided he had to step in.
Ellie / Various Callers
Our personal opinions about the decision have no bearing on the matter of enforcement. The responsibility and authority of the Supreme Court to interpret the Constitution are very clear. Mob rule can not be allowed to override the decisions of our courts. Phase two. President Eisenhower sends troops of the 101st Airborne Division of the United States army to Little Rock by night. They are to keep order and to see that the law of the land is obeyed.
Rund Abdelfattah
Nine black students escorted by federal troops prepared to enter Central High School. They would come to be known as the Little Rock Nine.
Ellie / Various Callers
It's early morning in Little Rock and a new school day is dawning. What about you, sir? Do you think the colored students will show up? If I got anything to do with, they won't show up. They meet here and are conducted to school by the army to make sure of their safety.
Rund Abdelfattah
This was an important moment for the Supreme Court. The president had had sent in federal troops to defend their decision to back up their authority. But the drama wasn't over.
Ramtin Arablouei
A few months later, the Little Rock school board petitioned to postpone their integration plan. That case, Cooper v. Aaron, eventually made its way to the Supreme Court. And the Supreme Court, feeling bold, decided that the state of Arkansas wasn't allowed to undermine their ruling in Brown v. Board.
Lucas Poe Jr.
And then they go way beyond that.
Larry Kramer
The court for the first time explicitly asserts that it is supreme in the interpretation of the Constitution.
Lucas Poe Jr.
It was a claim of judicial supremacy the likes of which had never occurred at the Supreme Court and cites Marbury. Marbury versus Madison says it's the function and duty of the Supreme Court court to interpret the Constitution. But it didn't say everybody's bound by it, right?
Larry Kramer
But the court takes a sentence out of context. So there's the famous line in it where Marshall says it is emphatically the
Ramtin Arablouei
duty of the judicial department to say what the law is. As we learned earlier in the episode, what that meant in 1803 was that the court could decide what the law is only in the case of at hand but in 1958, the court was asserting that it had carte blanche power. A decision in one case applied to everyone everywhere in the country. In other words, judicial supremacy.
Lucas Poe Jr.
We set the floor and we set the ceiling.
Rund Abdelfattah
Thing is, not everyone was bought into the idea of judicial supremacy.
Larry Kramer
Yet it's greeted with widespread skepticism because remember, most of the people on the left had fought the earlier court battles. They were Roosevelt people and the idea of judicial supremacy was anathema to their understanding.
Rund Abdelfattah
How could they give final say power to a court that had stood in the way of so much legislation they believed in?
Larry Kramer
But there is a new generation of rising liberals who, seeing an activist liberal court like love this. So they embrace the idea of judicial supremacy because they're looking at a court that's enabling them to do all sorts of things that they think are good and right and important.
Ellie / Various Callers
I believe that we can and that we must restore integrity in government and the confidence of people in the integrity of their government.
Rund Abdelfattah
This is the voice of Earl Warren. He was chief justice of the court during both Brown v. Board and Cooper v. Aaron, which marked the beginning of what would come to be known as the Warren Court era. And over the next decade, the 1960s, under his leadership, the court will expand its power like never before.
Ellie / Various Callers
I think on this day, many of us didn't realize just how important our movement, the real invader, is integration. Unless we integrate, we shall very quickly disintegrate. Where the people will get to the promised land. Mine eyes have seen the glory of the coming of.
Lucas Poe Jr.
The 60s are a time of incredible ferment because African Americans in the south are starting to demand the rights of the Constitution gave them a century earlier. You've got Martin Luther King, you have demonstrations, you have sit ins, you go
Ellie / Various Callers
to a counter and sit down beside him. You cause no violence, you're friendly. It sort of helps to project the idea that here sits beside me another
Lucas Poe Jr.
human being and the south is fighting to maintain white supremacy.
Ellie / Various Callers
Well, it's just not things we're used to down here. I mean, I wasn't raised with them, I never have lived with them, and I'm not going to start now.
Lucas Poe Jr.
And the court is at the forefront of the national government in trying to bring civil rights to the fore.
Rund Abdelfattah
Remember that footnote in the case back in the Roosevelt era, the one about the civil rights corner being reserved for the Supreme Court to look at cases in which civil rights might have been denied? Well, during the 1960s, the Supreme Court started getting case after case relating to civil rights issues. And in case after case, the Court ruled in favor of expanding civil rights nationwide. It was slowly setting the precedent on the most important issue of of the day.
Ramtin Arablouei
And the real tipping point came in 1963.
Ellie / Various Callers
President Kennedy is reported to be fighting for his life in a Dallas hospital, but reports conflict. CBS says he is dead.
Ramtin Arablouei
After John F. Kennedy was assassinated, Lyndon B. Johnson replaced him as President.
Lucas Poe Jr.
When Lyndon Johnson takes the presidency, he tells the country that the legacy of John Kennedy is civil rights. And to cement it, we need the Civil Rights Act.
Ellie / Various Callers
This Civil Rights act is a challenge to all of us.
Lucas Poe Jr.
Something that Kennedy might not have been able to get past, but Johnson is able to get past to go to
Ellie / Various Callers
work in our communities and our states, in our homes and in our hearts, to eliminate the last vestiges of injustice in our beloved country.
Lucas Poe Jr.
And the Court can look at the Civil Rights act and say we were right. And now Congress agrees that we were right.
Rund Abdelfattah
A decade after Brown v. Board, Congress and the President were agreeing with the vision first proposed by the Court. A desegregated nation with equal rights for all.
Lucas Poe Jr.
The Court is identified quite properly as the vanguard in civil rights among branches of government. So it's a tremendous validation by Congress of what the Court had been doing. And Lyndon Johnson at one time, a couple of years later stated, never in American history have the three branches of government work so well together. You have each of the branches of government doing what it can do to further the national interest.
Rund Abdelfattah
In other words, there was no pushback. All three branches had the same shared goals, which meant they weren't going to stand in each other's way.
Ramtin Arablouei
And just as fast as the federal government's power was growing, state's power was shrinking.
Lucas Poe Jr.
There's no doubt that the Court has very little respect for states rights. So when you we have is a nationalization of criminal procedure forcing a number of states, all the southern states, but a number of northern states, to change the way that they do business. Furthermore, the Court for the first time gets involved in elections.
Ellie / Various Callers
This is a voting rights case
Lucas Poe Jr.
says that no, it's not a problem for the federal judiciary to evaluate state and federal elections.
Ellie / Various Callers
They are the intended and actual victims of a statutory scheme which reduces their right to vote to about one twentieth of the value of the vote given to certain
Lucas Poe Jr.
and then that turns out to be one person, one vote.
Ramtin Arablouei
One person, one vote. In a series of Supreme Court cases that came to be known as the apportionment cases, the Court decided that electoral districts had to be divided up according to population size.
Ellie / Various Callers
We're not arguing for absolute mathematical equality here, we're asking for the reasonable equality
Lucas Poe Jr.
required for the 14th amendment, therefore making
Ramtin Arablouei
each district roughly equal in population, which meant black voters would be more fairly represented in their districts.
Rund Abdelfattah
In the eyes of liberals, the Court was behind a lot of the success of the civil rights era. And by the late 1960s, any doubts they'd had about judicial supremacy were pretty much gone.
Lucas Poe Jr.
Liberals have been skeptical of the Court from the New Deal period are changing. Hey, this is working.
Rund Abdelfattah
Plus, there was now a black Supreme Court justice, the first ever.
Ellie / Various Callers
Historians will note this hour at the White House. In a Rose garden ceremony, a 58 year old great grandson of a slave is nominated by President Johnson to be a Supreme Court Justice. He is Solicitor General Thurgood Marshall, acknowledged the best known Negro lawyer of the
Rund Abdelfattah
as for conservatives who hated the decisions of the Warren Court, they were still totally fine with the principle of judicial supremacy. They were just biding their time till the Court flipped. Conservative again.
Ramtin Arablouei
So for the first time in American history, there was consensus across the board that the Supreme Court should have the final say over the Constitution.
Larry Kramer
So that settles that who has final authority debate. And the debate shifts from who has final interpretive authority. Now everybody says it's the Court to how the Constitution should be interpreted.
Ellie / Various Callers
At almost midday Eastern Time, NBC News projected Richard Nixon, the 37th president of the United States. It was so close, it took forever, but he won it. It was again one of the closest elections in American history.
Ramtin Arablouei
After Richard Nixon, a Republican, was elected president in 1968, the tables began to turn on the Court. Over the next few years, Earl Warren and several other liberal justices would leave the Court and Nixon would replace them with more conservative justices.
Rund Abdelfattah
As the Warren Court era wound down, the Court tried to advance individual rights. Its swan song was Roe v. Wade, in which the Court ruled that restricting access to safe and legal abortion was unconstitutional.
Lucas Poe Jr.
Roe vs. Wade is the last gasp of that reforming liberalism.
Rund Abdelfattah
And from that point on, it's been
Larry Kramer
a steady march to the right in terms of the Court's ideology. The irony is the subsequent courts have been using the Warren Court's credibility, the Court's credibility from the Warren Court, to undo everything the Warren Court accomplished over the last 50 years. So most of what the Court has done has been trying to reverse decisions and trends and bodies of doctrine that the Warren Court set into motion.
Lucas Poe Jr.
Functionally, they're saying, you guys showed us how to do it, now we're going to do it our way. You had your warrant court, we want our warrant court. And that may be what the three Trump appointees to the Supreme Court will provide that. Now the Republicans may have their warrant court.
Larry Kramer
And it doesn't matter whether it's a liberal court like the Warren court, a moderate court like the Berger court, or a conservative court like the Rehnquist and Roberts courts. All of them have been the same in this, which is they just keep expanding their power, not because there's nobody pushing back.
Rund Abdelfattah
That's it for this week's show. I'm Rund Abdelfattah, and you've been listening to Throughline from npr. This episode was produced by me, Ramtin, Ada Bluei and Jamie York.
Rachel Sheldon
Lawrence Wu, Laine Kaplan Levinson, Julie Kane,
Rund Abdelfattah
Victoria Whitley Berry, Parth Shah. Thank you to Austin Horn, Travis Lux, Pranjali Shah and Jess Berry for their voiceover work. Thanks also to Irene Noguchi, Julia Redpath, Yolanda Sangweni, Beth Donovan, Liana Simstrom and Anya Grundmann. Our music was composed by Ramtin and his band Drop Electric, which includes Naveed Marvi, Sho Fujiwara, Anya Mizani. If you have an idea or like something on the show, please write us@throughlinepr.org or leave us a review on Apple or Spotify. Thanks for listening.
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Podcast: Throughline (NPR)
Host: Rund Abdelfattah
Date: June 18, 2026
This episode explores the transformation of the United States Supreme Court from a relatively powerless institution into the "umpire" of American life, wielding immense power as the final arbiter on critical national issues. Through engaging historical storytelling, archival audio, and expert interviews, hosts Rund Abdelfattah and Ramtin Arablouei dissect the key moments and cases that shifted the Court’s role, illuminating the political battles, landmark decisions, and evolving ideas about judicial supremacy and constitutional authority.
The Baseball Umpire Metaphor:
On the Supreme Court's Origins:
On Marbury and Judicial Review:
Dred Scott Decision:
On Roosevelt’s Court Packing:
Civil Rights Era Assertion of Supremacy:
Summing Up the Modern Court:
This Throughline episode offers a compelling, chronologically structured journey through the Supreme Court’s evolution from an obscure, politically entangled institution to its present status as the nation’s ultimate legal authority. Drawing on vivid stories, expert voices, and pivotal cases, the podcast makes clear that the Court’s "supremacy" is not a fixed feature—it was earned and contested at each step, shaped by political will, historic crises, and the ongoing tug-of-war over America’s fundamental values.