In the beginning, there was the King’s Court: the Curia Regis, which moved from palace to palace with him—hearing pleas from his people and issuing judgments in response. The Norman Conquest imposed on England this roving mass of royal attendants, out of which all its major governing bodies grew. It shared certain similarities with the Witan, which had been the country’s previous ruling council, in that both mainly functioned as courts in the judicial sense (though Witenagemot elected their monarch, i.e. appointed him for life). For example, instead of writing general laws they would mostly just approve or veto specific writs and grants, which only applied to particular cases or persons.
Over the next few centuries, the tenants-in-chief—those whose land tenure came directly from the king—gradually became the “High Court of Parliament,” and took an active role against the king by demanding the redress of certain juridical grievances, in exchange for accepting certain taxes. Of course, this fracturing of sovereign authority could only happen messily, amidst much domestic strife. At first it involved purely symbolic gestures, like the Charter of Liberties, which Henry I proclaimed in 1100, upon acceding to the throne, to assuage some nobles who’d been disgruntled by the prior king’s arbitrary claims against them. But following a period of civil war known as “the anarchy,” and several unpopular attempts at restoring order (especially under Henry II), the crown began to offer real concessions.
For instance, in 1215, King John tried to quell some rebellious barons by issuing a “Great Charter,” which we call the Magna Carta, and which mainly granted them certain trial rights against the crown. Both sides immediately broke this bargain, leading to the First Barons’ War. In 1216, the next king—Henry III—reissued a slightly weaker version of it, and then in 1217 agreed to a slightly stronger version of it, in order to briefly resolve the conflict. But you can tell this didn’t stick, because it was reissued again in 1225 and then yet again in 1297, in exchange for grants of new taxes. In the meantime, there was a Second Barons’ War, and the Provisions of Oxford, and the Provisions of Westminster, and the Statute of Marlborough, and the Statute of Westminster, and the Model Parliament, which intermittently carved out vague aristocratic checks against royal prerogatives under similarly contentious circumstances. And so, by 1300, parliament became a somewhat regularly constituted body, with powers to pass general laws. And because this was the body through which the king raised general revenue, it expanded, in fits and starts, to represent the gentry and merchant classes.
But several other courts also developed out of the curia regis during that century, and, until the Glorious Revolution, they arguably mattered more than parliament: there was the Court of Common Pleas, which heard civil disputes; the King’s Bench, which heard criminal disputes; the Exchequer of Pleas, which heard tax disputes; and the Court of Chancery, which heard matters of equity. Except, of course, for all the countless exceptions, which allowed them to relentlessly fight each other for jurisdiction.
By the mid-14th Century, all of these high courts had settled down in Westminster, instead of continuing to move with the king. However, low-level courts remained mobile: the assizes, the eyres, the piepowders, and the quarter-sessions moved on regular circuits through the land, and these continued hearing most normal cases (on top of administering most local government duties, like those pertaining to the building of roads, the fixing of prices, and the granting of licenses). Many of the aforementioned disputes between lords and monarch—like the Assize of Clarendon and Magna Carta—involved formalizing these bodies, for instance by establishing jury trials and placing checks on the behavior of sheriffs. But then these lower courts remained mostly the same through the 18th Century, while the high courts metastasized into unrecognizable shapes in their quest for power.
It’s worth dwelling on these low-level courts for a moment, as a demonstration of how thoroughly the judiciary monopolized government authority. For example, there weren’t really police or prosecutors until after 1800: a town might have a night watch, and a sheriff, and a constable, and “thief-takers” (a mix between bounty hunters and private detectives); but all of these operated almost entirely by some hazy mix of draft-lottery and fee-for-service, and were basically nonexistent compared with contemporaneous law enforcement regimes in continental Europe. You’d have to hire a constable or thief-taker to bring in a suspect for you, and then you’d have to hire a prosecutor. The courts would pay rewards for convictions—to be split among the lawyers, victims, and witnesses—and then merchants would pay sheriffs for indentured convict labor. Or the court would just empanel a grand jury and ask them to testify about every crime they’d witnessed in the past few months. And “crime” basically meant “what the courts decide counts as criminal,” rather than referring to specific statutes. Hell, prison didn’t even really exist as a punishment until, in 1776, transportation to the US became unviable.
In other words, true judicial supremacy has worked in the past, in the one context that actually birthed an industrial revolution that’s likely comparable in world-historical impact to AI (and in one of the only contexts where rapid modernization didn’t radically misalign the government). Judicial supremacy is also how the medieval church held power over Europe, consistently enforcing its view of the sacred against far-flung and resourceful power-seeking agents: its ecclesiastical courts claimed exclusive jurisdiction over huge swathes of each sovereign’s subjects; it was thus able to practically control continental politics for centuries, and fend off militant campaigns by various crowns to reclaim authority over their own country’s clergy. For example, during the investiture controversy, the Vatican’s “deep state” simultaneously rebuffed vigorous attempts by Henry I of England and the Holy Roman Emperor to appoint their own bishops. Likewise, under Henry II, about a fifth of English people could basically just be tried by the church, and his modest claim to share some jurisdiction over them provoked an internal revolt and an international crisis.
Other English kings gradually limited the pope’s claims on estates, trusts, knights, and lawyers, until, centuries later, Henry VIII could liquidate the monasteries. However, his main strategy for liquidating this rival quasi-judiciary was to set up royal courts to dispose of all their property: the Courts of General Surveyors, of Augmentations, of First Fruits and Tenths, and of Wards and Liveries. And he turned the Court of Star Chamber from a vestigial council into an inquisitorial body, which served as his main political weapon. Because, in many contexts, the courts are all you need.
The story of how the high courts actually worked—how they fought each other for power—will cure you of any remaining temptation to think about judicial cases as nonfiction. Essentially, they focused on the “forms of action” rather than the “causes of action”: so long as your paperwork was in order, the real-world facts of your case didn’t have to be. For example, during the 1300s, to claim jurisdiction, the courts often had to allege some breach of the king’s peace. Thus, the most common form of action became the writ of trespass “by force and arms.” In many of these cases, nobody even pretended to believe that there had been any force, but they nonetheless recited the words. A fairly typical example is Rattlesdene v Grunestone, in which a shipping accident spoiled some wine. The writ stated that the defendants “with force and arms, namely with swords and bows and arrows, drew off a great part of the wine from the aforesaid tun and instead of the wine so drawn off they filled the tun with salt water so that all the aforesaid wine was destroyed.”
In these cases, the plaintiffs didn’t actually argue that any violence occurred, nor was the defendant actually at risk of being found guilty for it. But in order to bring their claim before a high court, they needed a writ from the king, and parliament had limited the king’s ability to issue new kinds of writs, so everyone made do with legal fictions. Eventually, the chancery—which issued these writs on the king’s behalf—used this power over judicial proceedings to become a court itself. And so the court of chancery was born, as a “court of equity,” which mostly just meant that it had vastly more discretion than its rivals (which made it generally more efficient and fair). And so it spent the 1400s gobbling up a rapidly growing share of their cases.
Each of the major courts fought back against its sudden loss of relevance in interesting, creative ways. For instance, normally, property disputes had been heard in the court of common pleas. However, the court of king’s bench then claimed that every debt case could be reclassified as a breach of contract (i.e. a deception), which allowed the king’s bench to hear it, and which also favored plaintiffs more: for example, instead of debtors just having to find twelve “oath-helpers” to swear to their innocence, they would face impartial jurors; thus, plaintiffs quickly began to file substantially more property disputes there. Eventually, this led to so many dubious cases that parliament required “contracts” to be written down, or else to be considered at common pleas. The king’s bench also retained special jurisdiction over the county of Middlesex, which allowed it to try cases arising there without seeking different writs from the chancery for every trial action. And so the bench officially classified much of its caseload as having arisen there, without any pretense of honesty.
The exchequer of pleas played similar games with tax cases. Using the writ of quominus, it claimed that any debt case could be reclassified as a case about the debtor’s interference with a creditor’s ability to pay the crown its due. Similarly, the exchequer absorbed several other revenue-related courts whole, including the courts of augmentations and of general surveyors. But it remained the smallest player, largely because it failed to differentiate itself from its competitors (for example, the chancery could also hear these “ability-to-pay” cases).
The king’s bench also essentially created judicial review. In the Case of Proclamations, for instance, it declared that only parliaments can declare new laws, and thus that it would sabotage attempts to enforce “unlawful” declarations by the king. Likewise, consider the Earl of Oxford’s case: Queen Elizabeth purchased some land from Cambridge, despite a law forbidding sales of college land; she then sold it to someone who sold it to Edward de Vere, whose estate leased it out to someone who sued the college for simultaneously leasing it out to someone else. The bench, under chief justice Edward Coke, repeatedly ruled the sale void, while the chancery, under Francis Bacon, repeatedly ruled it valid. Their endless and acrimonious tug of war eventually led, indirectly, to both of them being unceremoniously removed from office, and finding even higher acclaim in other pastures. Naturally, King James I then sided with the chancery, and parliament sided with the bench, and, eventually, after a civil war and revolution the parliamentarians won. (By the way, this case—which featured Queen Elizabeth, Edward Coke, Francis Bacon, and the author of the plays attributed to Shakespeare—should clearly demonstrate that courtly politics really do bring the best people to the table).
And, finally, the court of common pleas began to claim that unwritten common law rights controlled acts of both parliament and crown. For example, in Dr Bonham’s case, it ruled that some of its own authorities could not be lawfully granted to licensing boards; and in the Case of Prohibitions it ruled that some of its own authorities could not be royally granted to judges whom it didn’t license. These two decisions may seem to be in tension with the two aforementioned claims by the king’s bench that only parliament can declare new laws—especially given that Edward Coke authored all four of them—but it was all part of the general struggle against royal prerogatives and courts of equity. (Hence, for instance, Coke’s obsession with pretending that all of the rights he championed had reigned supreme among Anglo-Saxons until the Norman Conquest, which became an incredibly influential idea during the run-up to the civil war).
And so, by the century’s end, after the Revolution of 1688, courts of equity were mostly abolished, and judicial independence from the crown mostly ensured. Gradually, the common law courts were unified, and regularized, and granted equity jurisdiction as well. And yet the chancery had benefited from every conceivable advantage: it used the common tongue while common law courts were still using Latin; it had the king on its side, and the right to be arbitrary. Hell, it even had control over the writs that gave the common law force. That’s why, in plenty of continental nations, the chancellor beat out the prime minister to become the head of government. And it’s why, in those civil law systems, the courts have no power to create their own precedents and rules. But when you’re not facing meaningful risks of invasion—for instance, when you’re a dreary backwards island on the outskirts of preindustrial civilization, or perhaps when you’re a global hegemon protected by nukes and two oceans—the crown hangs heavy, and the king becomes decadent, and proper judges can arise.
A similar story played out on our shores, which England’s revolutionary waves had not quite reached, except ideologically. During the colonial period, judges weren’t independent of royal governors—they could be fired by the executive branch at will—and, in fact, were often still considered part of the executive branch (indeed, judges and governors were both typically called magistrates). For example, as John Adams put it, “the first grand division of constitutional powers” was between “those of legislation and those of execution,” with “the administration of justice” resting in “the executive part of the constitution.” Or, as Thomas Paine said, there were “no more than two powers in any government, viz. the power to make laws, and the power to executive them; for the judicial power is only a branch of the executive, the chief of every country being the first magistrate.”
This view didn’t come down to us from high theory, but rather from lived experience: colonial courts oversaw everything from tax assessment and road repair to poor relief and licensing. Further, they inhabited a legal gray area which gave them ample discretion: in general, the English judiciary had remained quite hazy about when exactly it would apply the written statutes of parliament or the unwritten “common law” of precedent; but colonial judges could also generally pick between applying the laws and traditions of England or America. Thus, during the revolutionary period, state constitutions generally moved the courts under the legislative branch, to try out something new.
It’s worth noting that in the decade between our independence and the national constitution, basically every state was run by its house of representatives: they often had the unilateral power to hire and fire judges, and interfere in judicial decisions; likewise, almost no governors could veto laws or issue pardons. In fact, this is why so many legislatures still call their lower house “representative”: at the founding, that one body was thought enough to represent our interests. And one of their most animating projects was to ban judicial discretion—to formally codify what mattered from the common law, and eliminate the rest—because there’s an intuitively appealing argument against allowing elites in robes to issue arbitrary dictates.
However, you don’t need a good handle on Godel’s incompleteness theorems to guess that this creates all kinds of decisional issues. How do you interpret and apply these laws? How do you even keep track of them, given that, until the late 19th Century, they were mostly just published chronologically, as lists of generally unrelated statutes? Even if you track some relevant legislation down, how do you know it wasn’t subsequently revised by subsequent legislatures? As one judge at the time famously put it, in protest against this naive fetishization of mass democracy: “The acts of the legislature form but a small part of that code from which the citizen is to learn his duties, or the magistrate his power and rule of action. These temporary emanations of a body, the component members of which are subject to perpetual change, apply principally to the political exigencies of the day. [The common law] has ascertained and defined, with a critical precision, and with a consistency that no fluctuating political body could or can attain… most of our concerns in civil and social life.”
And so the courts gradually regained their ability to set out a hazy but coherent and explicable vision of the law. But because they have neither the sword nor the purse, they could only gain ground through compromise: they would generally restrain their use of the common law to procedural and interpretive questions, instead of continuing to invent specific new crimes and regulations; and they’d harmonize the common law in each federal court case with whatever the relevant state’s courts counted as precedent. This strategy—whereby the courts focused on strengthening and unifying their internal rules, rather than issuing strongly-worded challenges to the other branches of government—served them incredibly well in countless other disputes during the following decades.
For example, the constitution doesn’t really say much about the judiciary besides that there should be one supreme court, and that congress should decide the rest. Because state courts could hear pretty much all federal cases, but federal courts could only hear certain kinds of state cases, we could have easily wound up without any meaningful third branch of government. So the story of how it claimed ultimate veto power over the other two branches—even though, as Madison said, this authority to strike down laws “makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper”—is, first and foremost, a story of institutional finesse.
From the start, the supreme court wasn’t shy about striking down state laws and state court decisions, especially where those claimed to overturn the decisions or limit the jurisdiction of the federal courts (for example, see US v Peters, Martin v Hunter’s Lessee, and Cohens v Virginia). It even granted each citizen the right to sue any state government in federal court—in Chisholm v Georgia—but the popular backlash against this led to the eleventh amendment, which simply overturned it. However, when federal laws were on the line, the supreme court paid absurd amounts of deference: for instance, in Hylton v US, the justices upheld a federal tax as constitutional, and wrote that even if its constitutionality had been “doubtful” then they would have still been bound “to receive the construction” of congress; likewise, in Ware v Hylton, they had no problem striking down a state law in the name of a national treaty.
Hayburn’s Case, from 1792, stands out as a particularly clear example. Congress had given federal judges certain administrative duties—recommending pensions for individual disabled veterans to the secretary of war—which presented them with a tremendous opportunity. But instead of seizing this new authority, the judiciary sent remonstrances to the other two branches, protesting against the constitutionality of granting them this additional power, because (in their view) their decisions should never be subject to review by the other branches. However, despite clearly opposing this particular law, the supreme court then patiently refrained from ruling on the case, preferring to let congress repeal it. Further, just listen to how they worded their complaint: “To be obliged to act contrary, either to the obvious directions of Congress, or to a constitutional principle, in our judgment equally obvious, excited feelings in us, which we hope never to experience again.”
In other words, their first attempt at overturning a federal law involved refusing powers that had been widely considered within the ambit of judges, in order to claim that their decisions should be considered final. Likewise, in Marbury v Madison—the first time they actually overturned a federal law—they merely claimed that congress had violated the constitution by giving them the right to hear a case about whether the president could interfere in judicial appointments; in fact, the constitutional violation had been so trivial that it could have been avoided if the case had first been heard by a lower court, which could have issued orders protecting the relevant appointed judges (but the courts refrained from acting on this, because they worried that they’d lose any such outright confrontations with the president). And then they refrained from overturning any other federal laws until the Dred Scott decision fifty years later. Yet meanwhile, for instance, they decided that the constitution somehow implicitly granted congress the right to charter a bank, and that this implicit right somehow forbade any state from taxing it!
So the general pattern during this early period is that the federal courts retreated from political life in order to erect a defensible perimeter. They bowed and scraped before their funders and enforcers, so that they could lord over lower governments. Likewise, they would not issue advisory opinions or accept administrative responsibilities, because their decisions would be final. Similarly, they set up certain procedures which favored moving cases to federal courts, so the sorts of state-level decisions that they overturned wouldn’t even arise in the first place. And they established law schools and developed special jargon and utterly depoliticized themselves, in order to claim that their constitutional interpretations were above mere politics… no longer would judges campaign for politicians, or accept simultaneous political appointments, or harangue the jurors in a case, though these behaviors had previously been their norm. The courts also upheld vast amounts of general regulation, while also expanding individual rights: for example, they allowed increasingly aggressive industry-level economic interventions, and yet also radically strengthened corporate rights against specifically-targeted dispossession; because, after all, courts are designed for dealing with specific issues, not broad policies. Etc.
If the judiciary’s power is fundamentally institutional—rather than persuasive or practical—then, of course, the object of analysis should be the court, not the cases before it. And yet the supreme court was nothing special before Chief Justice John Marshall: from 1790 to 1800, it decided fewer than one hundred cases total, and met for just four weeks per year, in the capitol building’s vacant rooms or taverns across the street; further, the founding fathers often refused appointments to it, or else quickly resigned in favor of state-level posts. For example, John Jay had been offered the spot that became John Marshall’s, but he declined it in order to pursue mundane private work.
Then Marshall brought the court to life. He made the justices room and drink together during their brief terms. He made them wear plain black instead of ornate robes. Though the court had previously issued its opinions seriatim—i.e., with each judge writing his own decision—he decided that they’d keep their disagreements private now, and speak with one voice (his): during his first four years on the court, for example, it issued 46 decisions, all of them unanimous; he wrote 42 of them, and recused himself from the other four, due to conflicts of interest. He even disagreed with some of his own opinions, but swallowed his pride instead of dissenting, and even instead of letting another justice author the decision, because the point was not “authentic self-expression” or careful policy-making, so much as building an impressive and imposing edifice through which to make his mark.
But still, the judiciary was hardly a force to be reckoned with. For example, in 1830, in response to disorderly encroachments against what had been recognized as indigenous land, Georgia passed a law prohibiting whites from residing on it without a license. Ironically, twelve missionaries decided to protest this law as itself an encroachment on tribal sovereignty, and spent years provoking test cases by lawlessly settling there: the supreme court ruled in favor of their cause in Georgia v Tassel—though Georgia ignored the ruling—and then, likely daunted by this disregard, the court refused to hear a related case (Cherokee Nation v Georgia). Finally, when Georgia imprisoned those missionaries, the supreme court ruled that the state lacked jurisdiction, and ordered their release. But, as an aloof Andrew Jackson said, either famously or apocryphally, “John Marshall has made his decision; now let him enforce it.”
However, immediately afterwards, the nullification crisis—between the federal government and South Carolina—changed Jackson’s mind. He promised to negotiate an Indian removal treaty on behalf of Georgia (which resulted in the “trail of tears”) if it would stop flouting the dictates of this third branch of the national power. Still, the missionaries refused to apologize, and the governor refused to issue them a pardon until they did; it almost became another supreme court case, until Georgia repealed the law in question, and the missionaries reluctantly issued a lackluster statement thanking the state for its “magnanimity.” Strangely, this post-hoc bailout of the court’s authority by the president came to be seen as a great victory on Marshall’s part, and led to significantly greater recognition of the nation’s judicial power.
Over the next century, though, the judiciary really did build itself up into a force able to shape national politics: the Lochner Court and the Warren Court were perhaps the most powerful policymakers of their respective eras—the gilded age and the sixties, respectively—and the opposition they faced was tremendous (but tremendously ineffective). And the main way that the judiciary accomplished this was by reforming its appeals process.
For its first century, the supreme court didn’t really control its own docket. There were certain appeals it had to hear, and others that it couldn’t. For example, if a circuit court’s judges issued a split decision, then the case could usually be appealed as of right (whereas otherwise the decision was basically final). Of course, back then, each justice would spend most of his time “riding circuit” and hearing appellate cases with various district judges—because courts of appeals didn’t really exist until the late 19th Century—and so, sometimes, the two would feign disagreement precisely in order to grant some dispute a “certificate of division” to the supreme court. But the burden on each justice of all this travel and all these trivial cases obviously kept the court weak.
And so, gradually, courts of appeals replaced circuit riding, and writs of certiorari—which let the supreme court decide which cases to hear—replaced the tangle of technicalities that had previously controlled its docket. Thus, by the 1920s, the court could focus on interesting questions, and thus it began regularly overturning acts of congress (as well as its own precedents). This is also when dissents began to matter: previously, when there had been dissenters, they had often declined to write opinions; why bother, unless you can signal to a future court which cases it should reconsider? And yet now, of course, the court’s pantheon of contending voices holds pride of place in our national debate.
After all, since we have an elected sovereign, and ubiquitous political commentary, the only contribution that a parliament can make—aside from attempting rule-by-committee and performing empty preening—is to pick out for us what should count as elevated speech: its original purpose was to parley with a chief executive (so that he would be aware of relevant issues), and remove him if necessary; but both of those duties have quite clearly been rendered utterly anachronistic. However, unlike the legislature, the supreme court actually does something valuable, by calling forth solid arguments, and cultivating decent minds. No wonder its approval rating is double that of congress!
Each year, the justices consider about ten thousand petitions for certiorari, and issue about 100 decisions. This means that lawyers matter again: in the days of John Marshall, the supreme court could easily be swayed by decent oral arguments, or theatrical flair, because they had no real support staff or external information about each case, and were often drunk; now, of course, they’re beset by far too many professionals offering far too much guidance on which cases to accept, and so they must defer to those lawyers who present their cert petitions with panache. However, this over-abundance of sleek propaganda—with countless pristine amicus briefs detailing all the best points each side could make, well before they show up in court—has rendered the justices immune to whatever each party’s high-priced counsel might actually say. So now they’re gradually skipping in-person hearings, and simply ruling on the petitions. I hope this “shadow docket” eventually allows them to issue thousands of decisions per year, and become unabashed leaders—lithe and muscular, in ways that congress and the president are not—on every matter of national concern.
Likewise, the justices don’t actually write their opinions anymore, and so—like a Renaissance master whose mentees produce paintings that he signs—each one must seek out young clerks each year who are worthy of using his name, and must hone them in his image. And what is the art of each age but that medium from which authors disappear? A grocery list isn’t literature because it only matters in relation to its actual writer, and the same holds true for woke “identity novelists” (whereas words like Joycean and Kafkaesque have transcended their original husks, and have thus become proper brands). May the justices thus become the curators of our national culture, like Homer and Hesiod before them. And may their clerks fan out and infiltrate key positions on their behalf: may they occupy everything from propaganda stations to intelligence agencies, like the plotters of any effective coup, or the members of any secret society that actually seeks to rule.
And may they give us more worthy gods to worship: worthier than sad props like Hardwick, Lawrence, Floyd, and Lacks. These empty bags of aggrieved meat only occupy our people’s mythopoetic jurisprudence because—as the court gained more control over its docket—it began to impose new kinds of requirements on its cases. In short, it switched from only hearing technical disputes to just hearing ethical ones; and because the court exerts tremendous amounts of selection pressure, it thus began selecting for fake grievances rather than fake debates.
In our early history, it had been quite normal to manufacture a literally false case. For example, in Hylton v US—a case about federal taxes on personal carriages—the named Hylton agreed to pretend that he owned 125 carriages, all for non-commercial private use, so that his tax liability would reach the threshold for supreme court jurisdiction over civil suits; the government knew he was lying about 124 of these, and had agreed to cover his expenses if it prevailed against him. Similarly, here’s how Justice Story described the normal court process for appointing orphans to new guardians: “The bill always states, however untruly, that the infant has property within the jurisdiction, and the bill is brought against the person in whose supposed custody or power the property is.” Our tradition is littered with other such examples. In English property disputes, in order to prevent either side from appealing to the ancient right of duels, landowners would often claim that they were merely appearing in court on behalf of their fictitious bickering tenants (usually named “John Doe” and “Richard Roe,” which is where their use as placeholder names began).
Nowadays, of course, the courts won’t let you forthrightly lie like that, so, instead, you actually stage some fake dispute, or find some actual victim to wear like a shell. The basic reason for this change was that—since the court could pick which cases to hear—the justices had to be on guard against manipulative petitioners. And so, in short, beginning in the late 1800s (as the court’s discretion over its own docket grew) the court began to read the constitution’s case-or-controversy clause to just grant it jurisdiction over cases that are controversies. This flew in the face of clear constitutional text and long-standing historical practice: for example, the courts had always heard certain kinds of non-adversarial cases, from naturalization ceremonies and government benefit grants to ex parte warrant applications and in rem proceedings; but, because the courts just ignored all those obvious issues with their reasoning, and kept hearing all those kinds of cases, it made some sense as a check against collusion between “plaintiffs” and “defendants.”
Just think about it from the court’s perspective: Alice and Bob ask you to adjudicate an argument between them, over who really owns some widget; however, unbeknownst to you, it actually belongs to Charlie, and this case is proceeding unbeknownst to him. In other words, once the court elevated its own role from settling particular disputes to setting out the nation’s laws, it gave special interests a huge incentive to trick its barebones staff. Thus, during the 1930s, a number of issues like this arose—from Aetna v Haworth to Ashwander v TVA—and so the court now requires disputants to substantively disagree, and imposes penalties on them if they fail to inform other interested parties about their case. After all, actually adversarial parties are often incentivized to (in combination) present the judiciary with every relevant argument, which saves the justices from relying on some other fact-finding bureaucracy. As a result, the supreme court began to much more aggressively dismiss cases based on standing: if a plaintiff hadn’t been specifically aggrieved in substance by some unlawful act, the justices would refuse his complaint; hence the rise of test cases manufactured by front groups.
This shift from technical to substantive disputes intuitively expanded the judiciary’s remit. Previously, the parties to a case would have to find and bind themselves to some specific point of abstract contention before proceedings could begin; this gave way to “notice pleading,” which allowed parties with actual real-world adverse interests to “discover” the technical root of their disagreement during the course of a trial. In short, “causes of action” finally replaced “forms of action.” Gone were the days when it mattered which particular claim you filed, so long as the material case made sense. In fact, gone were the days when you even needed to wait for an actual case: “declaratory judgments” swelled to allow legitimately conflicting parties to seek judicial resolutions of their conflicting interests before these actually developed into cases.
Around this time, congress also created new bodies which granted the supreme court bureaucratic powers over the judiciary: the Judicial Conference gave it authority over its judges, and the Administrative Office gave it authority over its courts. And the Rules Enabling Act gave it authority over its internal practices (like rules of evidence and rules of procedure). Previously, the circuits had each governed their own judges—on issues ranging from discipline to case assignments—and the executive branch had governed the courts; and state-level practices had governed its internal rules. And in 1935 the supreme court finally got its own building, lush with symbols, which mean far more than do the characters in any given case. For example, the giant bronze doors contain eight panels, charting how the court understands its lineage.
The first panel depicts a portion of the shield of Achilles, as described by Homer: a peaceful city, protected by law, and full of life, in which two young men have brought a case before their elders; each puts down a coin, and both coins go to whichever elder delivers a verdict that the rest of them can accept. The next panel depicts the origins of Roman law, when the Republic was ruled by judges called praetors; and the next shows the origins of legal scholarship and professional advocacy, to flesh out their doctrines and precedents. Then we see the codification of law under Justinian, and then the binding of English Kings by Magna Carta. Next comes the rise of parliament, through the Statute of Westminster, and the rise of judicial review, through Edward Coke. Finally, this tradition reaches our shores with an eighth panel, in which justices Marshall and Story use Marbury v Madison to declare their court supreme over the other two branches (even though Story had not yet been appointed when that case was heard).
Then, however, the court lost its way. Instead of making proud statements of principle, to forthrightly shape our national soul, it issued autistic opinions which sound like statutes; and it refashioned administrative bodies into self-governing cargo cults of courts; and it hid its weaselly vision for our country behind these boring excuses.
For example, until the New Deal, the judiciary had generally seen itself as limited from inventing political rights, and limited to protecting established claims against fickle majorities. Thus, for instance, during the Lochner era, the courts aggressively protected the property rights of corporations from regulation, but refused to grant them any other liberties (like the freedoms of association or speech). But then they underhandedly announced an epochal change in the fourth footnote of US v Carolene Products, which briefly mentioned that, by the way, their views on property rights would now generally defer to whatever majorities might legislate, while questions of new political rights now belonged strictly in court. And then they just repeatedly cited this footnote instead of making a clear and confident argument for us to accept this radical change.
Similarly, in Brown v Board, the court pointedly refused to rule on segregation in general, or even to overrule Plessy v Ferguson; instead, it simply decided that, in practice, educational authorities did not maintain separate facilities to equivalent standards, and that schools should thus get integrated. The court then spent decades refusing to clarify precisely what standards these integration efforts would be held to, and steadily demanded ever more aggressive “racial balancing” programs (like forced busing). At the same time, they issued countless brief decisions opaquely expanding this desegregation campaign to new frontiers, like swimming pools, and movie theaters, and restaurants: for example, they overturned Plessy in Gayle v Browder, in a two-sentence opinion which—without any stated justification—proclaimed that the transportation sector was now also specifically banned from engaging in racial classifications. This chaotic uncertainty fed on itself, creating ever more particular test cases, and eventually called forth federal troops to restore order on the court’s behalf, at which point, in Cooper v Aaron, the court declared itself the supreme interpreter of the constitution… above even its ostensibly coequal branches of national rule.
This is how the Warren Court seized power, and remade the country’s government. They wrote decisions filled with three-part tests and cost-benefit analyses and technical implementation details, instead of committing to any particular visions of tradition and virtue; and so—instead of issuing clear categorical judgments about whether policies written by other branches produced acceptable results, or steered us in proper directions—the justices gave us just another layer of spineless technocracy, in an institutional framework that’s even less equipped than its rival branches are for managing the faddish pseudoscientific bullshit of wonky administrative details. For example, the Roe v Wade majority wrote (with baffling stupidity) about what it presumed the practical effects of expanded abortion access would be… precisely so that it wouldn’t have to make any claims about how our society should judge the procedure.
The court likewise repeatedly feigned at falling down slippery slopes, in order to avoid asking us to take any leaps of faith. For instance, consider the history of selective incorporation: until the 20th century, the bill of rights was generally understood as just applying against the federal government, rather than also binding state governments; hence, e.g., the fact that every state imposed religious requirements on its own officials at the founding. But when the Warren Court decided that the 14th amendment “incorporated” all of these rights against state governments, they pretended to decide this for each right independently… thus local regulations on pornography were stripped away with increasingly ludicrous vigor in a process that was ostensibly independent from the bizarrely aggressive war against allowing any whiff of religion in schools which receive public funds (and thus the justices could call forth endless new test cases, while pretending like their hands—aw, shucks—were tied).
And now this shifty cowardice has all but undone these courts. Our judiciary spent the last half century helping administrative agencies metastasize into an unaccountable deep state: it invented crazy new precedents (from Humphrey’s Executor v US through Morrison v Olson) to protect their personnel from removal by elected politicians; and it similarly invented the doctrine of Chevron deference to protect their policies from electoral oversight. But instead of then binding agency decisions towards any of the court’s own positive goals, it just ordered administrators to parrot its courtly procedures. In other words—in cases like Goldberg v Kelly, Perry v Sindermann, Mathews v Eldridge, and Overton Park v Volpe—the justices told civil servants to play-act as judges over their own internal practices, and yet also bizarrely assumed that this would keep them in line, and so promised ample deference to whatever they might decide, in exchange for their agreement to wear knock-off robes. And so instead of building out a network of loyal enforcers, by protecting them from the other two branches, the courts just created their own replacements, and set them loose.
And whereas real judges must in some sense demonstrate nobility to earn their lifetime appointments, and must in some sense learn the noblesse oblige by which real courts can steer whole countries, the “administrative law judges” who have begun to replace them are only selected by life-tenured bureaucrats at the Office of Personnel Management, and are only selected for spreading this bureaucratic rot ever more thoroughly into more and more of the once-vital organs of our every governing body. Whereas true judges must lead and see directly, in their own distinct and personal ways, administrative judges just push uniformity and busywork wherever they can, like malignant simple tumors.
Robin Hanson wants to bring back the era of thief takers & bounty hunters sans police:
https://www.overcomingbias.com/p/who-vouches-for-youhtml
I don't think dropping the claim of Oxfordian authorship in the middle of your essay helps it.
I'm a big fan of your portrayal of the Civil Service (I am a 20 year civil servant, incidentally). If the Supreme court has been undermining themselves in the way you describe for the past five decades, how does it make sense from the perspective of the citizenry for them to exercise greater power? How would they do so?