In a famous Supreme Court one-liner, reminding the legal community of the finality of the court’s rulings, the late Justice William J. Brennan Jr. is reputed to have said that the Constitution means whatever any five of us say it means. This reflects the basic math that five is a majority of nine. It also reflects the theory of realism in constitutional jurisprudence.
Realism, in this context, is the view that the Constitution is stagnant and unenforceable of its own existence. Realism teaches that the Constitution is only enforceable when the government voluntarily complies with it or the justices contemporarily interpret it.
Realism is confronted by its archnemesis, Originalism.
Originalism — and its sister Textualism — teaches that the Constitution means today what the ratifiers understood it to mean in the era of ratification, roughly 1787 to 1789. This theory posits that since the Constitution is the supreme law of the land, it cannot change over time. If it does, it is not supreme, but rather subordinate to any five members of the Supreme Court.
Both theories recognize that except for a few narrow constitutionally mandated areas, the Supreme Court does not have original jurisdiction. It can only hear appeals of cases that originated in lower federal or state courts.
The modern-day champion of Originalism was the late Justice Antonin Scalia. He argued strenuously that the court must be subordinate to the understanding of the folks who ratified the Constitution. Since they ratified words, they must be presumed to have understood and willed the plain meaning of those words.
When he began to articulate Originalism, Justice Scalia was a lone voice. Forty years later, and after more than a quarter century on the nation’s highest court, his many acolytes can be found in legal academia and in lower federal courts. Two of those acolytes currently sit on the Supreme Court; Justices Neil Gorsuch and Amy Coney Barrett.
Yet, we learned just last week that the final vote Justice Scalia cast on the court, the day before he died, might very well have undermined Originalism in a way he could never have imagined and would not knowingly have done.
Here is the back story.
Reporters for The New York Times recently acquired a treasure trove of documents in which the justices communicated with each other in February 2016. The documents are notes and letters they sent to each other from various vacation locations; all at the prompting of Chief Justice John Roberts. The chief wanted the court to do something it had never done before — to rule on a case not before it, and to do so without full briefing by the lawyers for the litigants, without oral argument, without a conference by the justices, and to do so in a hurry.
In 2015, the Obama administration released through the Environmental Protection Agency its Clean Power Plan. The plan, which would have radically altered the landscape of commercial sources of energy in America from coal to natural gas and solar, had not directly been approved by Congress.
This was not out of the ordinary, since the Woodrow Wilson-era creation of the administrative state. Wilson believed that big-picture constitutional decisions — taxes, war and peace, criminal laws — should be made by Congress. But the nitty gritty of government — how fast vehicles should travel on roadways, how many pollutants can be permitted in the atmosphere, what interest rates banks can charge — should be made by experts.
The administrative state — which has grown radically since Wilson offered it — is nowhere countenanced in the Constitution. On the contrary, the Constitution reposes in the Congress ALL legislative power. And legislation — writing laws that compel and restrain — is the core function of the Congress. Under the plain meaning of the Constitution, Congress can no more give that function away to unelected, non-transparent, unaccountable experts than it could give it to the courts.
Nevertheless, federal law provides that administrative regulations are to be challenged in the US Court of Appeals — the intermediate appellate court — not in a federal district court where judges and juries make findings of facts. This was part of Wilson’s plan, so as to give the administrative agency an aura of aloof authority. It would not be required to defend its expert-written regulations before a jury, just a panel of three appellate judges.
The heretofore unseen drama of February 2016 emerged when the Obama plan was challenged in the Court of Appeals and the challengers asked the Supreme Court to rule on the case before the appeals court; and to do so quickly. Their argument appealed to the chief justice who quickly and quietly reached his eight vacationing colleagues and asked for a vote. A vote on what? There was no case before them as there was no lower court ruling yet on appeal.
The chief justice persuaded four of his colleagues to join his pronouncement that the court effectively had original jurisdiction whenever it wanted it — contrary to the wording of the Constitution and the seminal case of Marbury v. Madison — and rule on the Obama plan before the appeals court did. By so doing, the court erased 200 years of precedent and began what is so deeply frustrating today, the concept of the Shadow Docket.
The Shadow Docket — which Justice Scalia would have condemned — is now a regular feature of the court’s regimen. It consists of fast and uninformed decisions — stop/go, yes/no — uttered without reasons, given without precedent, crafted without rigorous judicial debate, and even in defiance of the court’s own rules.
It also is a variant of judicial tyranny as it consists of the Supreme Court intruding itself into policy decisions — based on the politics of the justices — made by the other two branches of government whenever any five justices disagree with that policy.
The court’s influence is based on its credibility. The more the justices are motivated by their politics, the less influence the court will enjoy.
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
COPYRIGHT 2026 ANDREW P. NAPOLITANO
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