The Court We Need

A brilliant and bracing account of the Supreme Court’s rise, its unraveling, and what it will take to save it, from the New York Times bestselling author of The Shadow Docket

Richard Nixon turned over the Watergate tapes and Dwight Eisenhower sent the Army into Little Rock for the same reason: in each moment, the Supreme Court was far more popular than the president who had to carry out its ruling. The Court’s authority has never rested on force. It rests on a reservoir of public trust, accumulated across two centuries of give-and-take with Congress and the White House.

That reservoir is nearly drained. Over the past decade, a Court reining in the administrative state, scaling back reproductive and voting rights, and radically expanding protections for religious liberty and gun ownership has shifted the constitutional center of gravity as dramatically as any Court in American history—while deciding more and more of the nation’s most consequential disputes through unsigned, unexplained orders on the “shadow docket.”

In The Court We Need, CNN Supreme Court analyst and Georgetown law professor Stephen Vladeck argues that the real disease is one both the Court’s fiercest critics and its loudest defenders have missed. The problem is not the justices’ politics or the Republicans’ 6-3 supermajority; it is that the Court answers to no one. Congress has abandoned nearly every lever it regularly used to use to keep the justices in line, and the Court has lost the institutionally minded bloc that moderated its more extreme impulses.

This is not an argument for tearing the Court down. Packing it or stripping its jurisdiction would either fail or succeed catastrophically—and in an era of executive lawlessness and a supine Congress, the courts have been the only check left standing. The Court we need is a stronger one, whose power and independence flow from being sensitive to the climate of the age even as it’s immune to the weather of the day. Urgent and pointedly nonpartisan, this is a book for readers of any politics who want to understand how the Court gained its power, how the current Court is squandering it, and why we will all miss it when its gone.