How the Supreme Court Claimed Powers the Constitution Never Granted

BLUF (Bottom Line Up Front)

The United States Supreme Court wields extraordinary power over American life—power to overturn laws passed by Congress, authority recognized as final in constitutional disputes, and influence extending into every corner of federal regulation. Yet remarkably little of this authority appears in the Constitution itself. Through two centuries of institutional evolution, political maneuvering, and landmark decisions, the Court transformed itself from a deliberately vague constitutional provision into what many now call an imperial judiciary. Recent developments—including the 2024 overturning of Chevron deference, unprecedented use of the emergency "shadow docket," and intensifying debates over Court reform—suggest this evolution continues, raising fundamental questions about democratic accountability and the separation of powers.

The marble temple housing the Supreme Court in Washington, D.C., projects an image of permanence and authority befitting the nation's highest judicial body. Yet the institution's current form bears little resemblance to what the Constitution's framers envisioned in 1787. The Constitution established the Supreme Court but left crucial details unspecified, including the number of justices, qualifications for appointment, and specific procedures—Congress filled in these details through legislation.

From Modest Beginnings to Judicial Supremacy

The first Congress enacted the Judiciary Act of 1789, establishing a Supreme Court consisting of one Chief Justice and five Associate Justices. These early justices faced grueling "circuit riding" duties, traveling thousands of miles annually to preside over regional courts. The Court's role in the constitutional system remained ambiguous and its prestige low enough that several nominees declined the position.

Everything changed in 1803 with Marbury v. Madison. Chief Justice John Marshall's opinion articulated and defended the theory of judicial review, holding that courts have the power to strike down legislation that violates the Constitution, though the Constitution did not explicitly mention judicial review. Marshall seized the occasion to uphold judicial review while reaching a judgment his political opponents could neither defy nor protest, establishing a role for federal courts that survives to this day.

The brilliance of Marshall's strategy lay in its political deftness. Marshall drew a careful distinction between political acts in which courts had no business interfering and simple administrative execution that the judiciary could review. In Marshall's view, declaring a law "void" simply meant it did not operate in a federal court; he did not declare the Court supreme over the other branches in constitutional interpretation.

Yet the implications proved profound. Since Marbury, the Supreme Court has exercised its power of judicial review to examine the constitutionality of state statutes and federal and state executive actions. What began as a narrow assertion of judicial independence evolved into the Court's role as ultimate arbiter of constitutional meaning.

Political Manipulation of Court Size

The Constitution's silence on Court size created opportunities for political manipulation throughout the 19th century. Congress changed the Court's size multiple times: in 1801 reducing it to five justices, then restoring it to six in 1802, expanding to seven in 1807, nine in 1837, and ten in 1863.

During the Civil War, Republicans in 1863 created a new tenth circuit and added a tenth seat enabling President Lincoln to appoint a pro-Union, anti-slavery justice; Congress then reduced the court's size to seven in 1867, fearing Lincoln's successor Andrew Johnson would change the court's makeup. The Judiciary Act of 1869 provided that the Supreme Court would consist of the chief justice and eight associate justices—the most recent legislation altering the Court's size.

The 1937 court-packing episode proved even more dramatic. President Franklin Roosevelt's administration proposed court expansion legislation after the Supreme Court struck down New Deal legislation; the Senate Judiciary Committee condemned the measure, and it languished after Justice Roberts voted to uphold a minimum wage law in what became known as "the switch in time that saved nine".

The Administrative State and Chevron's Rise and Fall

For four decades beginning in 1984, the relationship between courts and federal agencies was governed by Chevron deference. The Chevron doctrine directed courts to defer to an agency's reasonable interpretation of an ambiguous statute that it administers, shaping how courts review agency decisions and regulations as a cornerstone of modern administrative law.

On June 28, 2024, this foundation crumbled. In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron deference, assigning determination of congressional ambiguity to the judicial branch rather than deferring to executive agency expertise. Chief Justice Roberts held that Chevron violated Section 706 of the Administrative Procedure Act, which requires courts to exercise independent judgment on the meaning of federal statutes.

The implications extend far beyond fishing regulations. Scholars argue that the major questions doctrine, which emerged alongside the end of Chevron deference, is likely to exacerbate policy drift by limiting agencies' capacity to actively adapt policy implementation to changing circumstances. The decision withdrew Chevron deference while leaving other more traditional deference principles intact, though it only affects rules based on statutory ambiguity or silence.

The Shadow Docket Revolution

Perhaps no recent development better illustrates the Court's expanding power than the exponential growth of its "shadow docket"—emergency orders issued without full briefing, oral argument, or detailed explanation. The term "shadow docket" was coined in 2015 by William Baude, though use of the shadow docket for important rulings increased precipitously since 2017, coinciding with the first Trump presidency.

The numbers tell a stark story. The Department of Justice filed 41 emergency applications during Trump's first four years in office, compared to only eight emergency applications filed by the Obama and Bush administrations together over the prior 16 years. From October 7, 2024, to August 9, 2025, the Court received over 110 emergency applications, with approximately 43 cases raising substantive issues warranting immediate relief.

Statistical analysis reveals the court's rate of granting substantive emergency applications reached 67 percent in Trump's second term compared to 31 percent during Biden's presidency. Since January 20, 2025, the Supreme Court has issued 23 decisions on the shadow docket concerning administration actions, with 20 ruling for the administration at least partially.

Justice Sotomayor has emerged as the shadow docket's most vocal critic. In a recent dissent, Justice Sotomayor noted that "other litigants must follow the rules, but the administration has the Supreme Court on speed dial". Court observers contend the shadow docket gives the Supreme Court an unreasonable amount of power, with decisions that are "just acts of will, of power" rather than defended legal decisions.

Current Term: Redefining Federal Power

The 2024-2025 Supreme Court term has reshaped administrative law, civil rights, and federal authority. The Court concluded its term with decisions that reshaped aspects of administrative law, civil rights, and federal authority, marking significant victories for the Trump Administration. Unanimous decisions comprised 42 percent of the Court's output, slightly below last term's 44 percent rate, while 6-3 ideological splits occurred in 9 percent of cases.

Analysis of the Court's interpretive methods shows textualism scoring highest at 15.47, followed by judicial precedent at 13.92 and structuralism at 10.16, while originalism scored only 1.94 despite its rhetorical prominence. This suggests a gap between the Court's public rhetoric about constitutional interpretation and its actual decision-making methodology.

The Court's emergency docket has reduced a key judicial check on executive power, significantly impacting Americans' rights by allowing preliminary rulings to remain in place for months or years, with shadow docket rulings often becoming the practical final word.

Reform Proposals and Political Realities

Public confidence in the Supreme Court has declined precipitously. While confidence remains low, 81 percent of U.S. adults believe that if a federal court rules an administration action illegal, the administration must follow that ruling, and two-thirds of Americans fear a constitutional crisis between the Trump administration and courts.

Reform proposals have proliferated in response. President Biden called for 18-year term limits with presidents appointing a justice every two years, arguing this would ensure court membership changes with regularity and add predictability to nominations. Polls found 67 percent of Americans, including 82 percent of Democrats and 57 percent of Republicans, support term limits instead of life terms.

Senators Manchin and Welch introduced a constitutional amendment in December 2024 establishing 18-year term limits for Supreme Court justices, with about two-thirds of Americans supporting term limits according to the Annenberg Constitution Day Civics Survey. However, most commentators agree Congress could not impose term limits without amending the Constitution, because Article III guarantees justices hold office "during good Behaviour".

The political reality remains daunting. A constitutional amendment requires two-thirds of each house and three-quarters of the states, making passage highly unlikely in a deeply divided nation. Significant Supreme Court reforms typically do not happen absent a crisis, though the proposal has broad support from the public, former federal judges, and legal scholars.

The Trajectory of Judicial Power

The Supreme Court's evolution reveals a consistent pattern: institutional aggrandizement through strategic decision-making, political timing, and exploitation of constitutional ambiguity. From Marshall's assertion of judicial review to the modern Court's shadow docket dominance, the judiciary has accumulated powers the framers never explicitly granted.

The Supreme Court is poised to continue transforming American law by expanding presidential power and limiting constitutional rights, with the Trump administration having won 84 percent of shadow docket cases. Legal scholars and activists describe a Court increasingly seen as an enabler of executive transformation, with rulings reflecting a judiciary imposing conservative values rather than following the law.

This raises profound questions about democratic legitimacy. Nine unelected justices serving for life now wield power over environmental protection, healthcare access, voting rights, and the basic structure of administrative government. The Constitution's silence created this vacuum; political actors across two centuries filled it.

Whether current reform proposals represent a necessary recalibration or dangerous interference with judicial independence depends largely on one's perspective on the Court's recent trajectory. What remains clear is that the conversation about Supreme Court power—its sources, its limits, and its democratic accountability—has moved from academic journals to the center of American political debate.

The marble temple stands unchanged, but the institution within continues its evolution, shaped by forces the framers could scarcely have imagined.

SIDEBAR: Original Constitutional Authority

What the Constitution Actually Says

The Constitution grants the Supreme Court surprisingly limited explicit authority:

Article III Provisions:

Judicial power over cases involving the Constitution, federal laws, treaties, ambassadors, maritime law, controversies where the U.S. is a party, disputes between states, and cases between citizens of different states
Original jurisdiction over cases involving ambassadors and cases where a state is a party
Appellate jurisdiction for most other federal cases (though Congress can regulate this)

Selection Procedures: Article II, Section 2 provides only that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court."

What's Absent:

No explicit power of judicial review
No specified number of justices
No qualifications for age, citizenship, or legal training
No Senate procedures for confirmation
No mention of the Court as final arbiter of constitutional meaning

Tenure: Article III guarantees justices hold office "during good Behaviour"—interpreted as lifetime tenure barring impeachment—with salary protections to ensure judicial independence.

The brevity of these provisions created space for the Court's institutional evolution, allowing practices and powers to develop far beyond the constitutional text.

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Wednesday, November 19, 2025

The Evolving Judiciary