Constitution Breakdown #6: Adam Liptak - 99% Invisible Recap

Podcast: 99% Invisible

Published: 2026-01-30

Duration: 1 hr 1 min

Summary

In this episode, Roman Mars and Elizabeth Joe delve into Article 3 of the U.S. Constitution, exploring the structure and powers of the judicial branch with Supreme Court expert Adam Liptak. The discussion highlights the surprising simplicity of Article 3 and the significant yet often untested power Congress holds over the judiciary.

What Happened

The episode begins with Roman Mars and Elizabeth Joe introducing Article 3 of the Constitution, which establishes the judicial branch of the federal government. They note that, unlike the previous articles, Article 3 is notably concise, stating that the judicial power resides in one Supreme Court and any inferior courts Congress may create. Adam Liptak, a legal expert from the New York Times, joins the conversation to shed light on the implications of this article, particularly what it does not detail, such as the specific size of the Supreme Court.

Liptak emphasizes that the framers of the Constitution intended for Congress to take a leading role in shaping the judicial system, which contrasts with the modern perception of the Supreme Court's power. He explains how Congress can influence the Supreme Court’s size and jurisdiction, pointing out that historically, the court's size has fluctuated for political reasons. The episode also touches on the concept of jurisdiction stripping, where Congress can determine which cases the Supreme Court is allowed to hear, highlighting the complexities of the separation of powers and the intertwined nature of the branches of government.

Key Insights

• Article 3 of the Constitution is surprisingly brief and leaves much of the judicial structure to Congress.
• The framers envisioned Congress as the primary actor in the constitutional framework, which is often overlooked today.
• Congress has significant power over the Supreme Court, including setting its size and determining its jurisdiction.
• The reluctance of Congress to fully exercise its power over the judiciary reflects deep-seated American norms and concerns about public acceptance.

Key Questions Answered

What does Article 3 of the Constitution entail?

Article 3 establishes the judicial branch of the federal government, stating that the judicial power shall be vested in one Supreme Court and in inferior courts as Congress may establish. It is notably shorter than the first two articles, focusing primarily on the creation of the Supreme Court and its authority to hear specific types of cases, such as those involving treaties, federal laws, and the Constitution.

How does Congress influence the Supreme Court?

Congress has substantial power over the Supreme Court, including the ability to set its size and determine the types of cases it can hear. This means Congress can legislate the number of justices, which has historically varied from five to ten, and can also impose limits on the court's jurisdiction through legislation, a process known as jurisdiction stripping.

What is jurisdiction stripping?

Jurisdiction stripping refers to Congress's ability to limit the types of cases that the Supreme Court can hear. While the Supreme Court primarily hears cases arising from federal law or the Constitution, Congress can dictate which cases are admissible, although the extent of this power remains largely untested in practice. This adds a layer of complexity to the separation of powers between the legislative and judicial branches.

Why has Congress been reluctant to exercise its power over the judiciary?

Liptak suggests that the reluctance stems from a deep American norm that views such actions as potentially unseemly or untoward. Historically, there has been a hesitance to push the boundaries of congressional power over the courts, as seen in past attempts at court packing that faced significant public backlash. This timidity reflects a broader concern about maintaining public trust and the integrity of the judicial system.

What was the initial perception of the Supreme Court by the framers of the Constitution?

In the early days of the Republic, the Supreme Court was not viewed as a powerful institution; rather, it was almost an afterthought, created to resolve a limited scope of disputes. The framers intended for Congress to be the lead actor in governance, making the court's eventual rise to significance a historical development that evolved over time.