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Constitution Breakdown #6: Adam Liptak

January 30, 2026 • 1h 0m

Summary

⏱️ 10 min read

Overview

This episode of 99% Invisible's Breakdown of the Constitution examines Article 3, which establishes the judicial branch. Hosts Roman Mars and Elizabeth Cho speak with New York Times Supreme Court reporter Adam Liptak about what's in—and notably missing from—this surprisingly brief article, the evolution of judicial power, the Roberts Court's legacy, and the challenges facing the modern judiciary.

The Brevity and Gaps of Article 3

Article 3 is remarkably short compared to the first two articles, creating only the Supreme Court without specifying its size and leaving Congress to establish the rest of the federal judiciary. What surprises most people is how little detail the Constitution provides about our sprawling judicial system. The framers envisioned the judiciary as the 'least dangerous branch,' bringing up the rear behind a muscular legislature and an energetic executive, with the role of judges initially being uncertain and unappealing.

  • Article 3 creates only a Supreme Court without specifying its size, leaving Congress to handle the details
  • The framers envisioned Congress as the lead actor in constitutional structure, with the judiciary as the 'least dangerous branch'
  • Initially, being a Supreme Court justice was not a very appealing job
" I guess they think that it's an elaborate description of our sprawling federal judicial system, when in fact all it does is create a Supreme Court. It doesn't even specify its size. "

Congress's Power Over the Supreme Court

Congress has significant but largely unused power over the Supreme Court, including the ability to set its size and limit its jurisdiction. The Court's size has ranged from five to ten justices, with some changes made for political reasons, though it's been stable at nine for a long time. While there's uncertainty about how far Congress can go with jurisdiction stripping, American norms have prevented Congress from testing these limits, even when proposals arise around controversial issues like school desegregation or abortion.

  • Congress can set the size of the Supreme Court by legislation without a constitutional amendment
  • The Court's size has been as small as five and as large as ten, sometimes for political reasons
  • Congress has some power to tell the Court what cases it can hear through jurisdiction stripping
  • There's a deep American norm that makes extensive jurisdiction stripping seem untoward and unseemly
" It would be problematic probably for Congress to say that in pending cases the court has to do X or Y. "

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