Chapter 14 Key Takeaways

Institutional Structure

  • The number of Supreme Court justices is set by federal statute, not the Constitution. It has been nine since 1869, but it has varied earlier (six → seven → six → seven → nine → ten → seven → nine).
  • The Chief Justice is "first among equals" with specific institutional powers: presiding at oral argument and conference, opinion-assignment power when in the majority, leadership of the Judicial Conference, and ceremonial duties including administering the presidential oath and presiding over presidential impeachment trials.
  • John Roberts has been Chief Justice since 2005. The current Court (early 2026) consists of nine justices: Thomas (1991), Roberts (2005), Alito (2006), Sotomayor (2009), Kagan (2010), Gorsuch (2017), Kavanaugh (2018), Barrett (2020), and Jackson (2022). Six were appointed by Republican presidents; three by Democratic presidents.
  • Federal judges, including Supreme Court justices, hold their offices "during good Behaviour" — interpreted as life tenure, removable only by impeachment.

How the Court Works

  • The Court receives roughly 7,000-8,000 cert petitions per year and grants merits review in about 60-80. The merits docket has shrunk substantially since the 1980s.
  • Granting cert requires four votes — the "Rule of Four," an internal Court tradition.
  • The cert pool — used by eight of the nine current justices — divides petition screening among participating justices' clerks.
  • Oral argument is allotted thirty minutes per side. The justices' questioning styles vary substantially.
  • Post-argument conference is restricted to the nine justices. Initial votes are taken; opinion drafting can shift votes (as in NFIB v. Sebelius, 2012).
  • The "swing justice" frame, central under O'Connor and Kennedy, is harder to apply to the 6-3 Court, but Roberts and Kavanaugh have most often crossed over on specific kinds of cases.

The Shadow Docket

  • The shadow docket — the Court's emergency docket of stays, injunctions, and orders issued outside the merits process — has grown substantially in volume and consequence since 2017.
  • High-profile shadow-docket rulings have addressed COVID religious exercise, Texas SB8, vaccine mandates, mifepristone, and immigration enforcement.
  • Stephen Vladeck's The Shadow Docket (2023) presents the institutional critique. The defense, articulated by Will Baude and others, holds that the emergency docket is a legitimate institutional function and that the alternative — single-judge district-court rulings setting national policy — is worse.

The Modern Nomination Wars

  • The confirmation process has transformed from one of broad bipartisan deference (most pre-1968 confirmations were unanimous or by voice vote) to one of near-total party-line voting.
  • Inflection points include: the Bork hearings (1987), the Thomas-Hill hearings (1991), the Garland blockade (2016), the 2017 nuclear option for Supreme Court nominees, the Kavanaugh confirmation (2018), the accelerated Barrett confirmation (2020), and the Jackson confirmation (2022).
  • Both parties have contributed to the escalation across decades. The institutional norms that supported cross-aisle confirmation have substantially eroded.
  • Confirmation margins have narrowed: Kavanaugh 50-48, Barrett 52-48, Jackson 53-47. Compare to Scalia 98-0 (1986), Kennedy 97-0 (1988), Ginsburg 96-3 (1993).

The 6-3 Court's Doctrinal Record

  • Major decisions of the 2020-2024 terms include Dobbs v. Jackson Women's Health (2022, overruling Roe and Casey), New York State Rifle & Pistol Association v. Bruen (2022, history-and-tradition test for gun regulation), West Virginia v. EPA (2022, formalizing the major-questions doctrine), Students for Fair Admissions v. Harvard (2023, ending race-conscious admissions), Loper Bright v. Raimondo (2024, overruling Chevron deference), and Trump v. United States (2024, presidential criminal immunity).
  • Cross-cutting majorities have appeared in Allen v. Milligan (2023, Roberts and Kavanaugh joined the liberals), Moore v. Harper (2023, rejecting independent state legislature theory), and Bostock v. Clayton County (2020, Gorsuch joined the liberals).
  • Methodological commitments matter. Originalism, textualism, history-and-tradition, common-law constitutionalism, and pragmatism are distinct approaches. Justices within each ideological bloc reason their way to outcomes through different methodologies.

Public Opinion and Legitimacy

  • Court approval has fallen from typical 50-65% range to 40-43% since 2022, per Gallup.
  • The partisan gap in Court approval is at historic levels: approximately 47 points between Republicans and Democrats in recent surveys.
  • The legitimacy debate is genuine. The case that the Court faces a legitimacy crisis (Tribe, Segall, Tushnet, others) and the case that the Court is functioning normally (Amar, Vermeule, Adam White, others) both have serious adherents.

Court Reform

  • Court packing (adding justices) is the most aggressive proposal. FDR's 1937 plan failed politically. Current proposals divide the Democratic Party.
  • Term limits — typically 18 years staggered — have unusual cross-spectrum support (Cramton, Carrington, Whitehouse, Fix the Court). Whether they require constitutional amendment or could be implemented by statute is contested.
  • Jurisdiction stripping is constitutionally available under Article III, Section 2, but rarely used.
  • The 2023 Code of Conduct adopted by the Court is non-binding. The debate over whether to make it binding continues.

The Throughline

The Supreme Court is an institution. Like every institution, it is shaped by its rules, its membership, its surrounding political environment, and the choices made by the actors within it. The Court of 2026 is the product of constitutional design (Article III), statutory choices (the 1869 size), institutional norms (life tenure, Rule of Four, stare decisis), nomination choices (the Bork-through-Jackson sequence), and substantive doctrinal commitments. Understanding it requires holding all of these in mind at once. The chapter does not adjudicate which doctrinal directions are correct, which reform proposals are wise, or which side of the legitimacy debate is right. It asks you to understand the institution clearly enough to make those judgments yourself.