The Supreme Court’s Crisis of Authority: Law, Politics, and the Judiciary Act of 1925

Robert Post*

Before the Judiciary Act of 1925, the Supreme Court functioned as an apex tribunal whose docket was dominated by trivial cases it was required to decide due to its expansive mandatory appellate jurisdiction. The Judiciary Act of 1925 substituted discretionary writs of certiorari for a large proportion of these mandatory appeals, thus allowing the Court to determine the nature of its own docket. The point of the Act was to allow the Court to select cases that would clarify important questions of law and establish national priorities in constitutional and legal matters.

Over time, these criteria for case selection have led both the public and the Court to imagine its proper role as supervising the development of federal law. The difficulty is that we lack any account of judicial authority that might justify the Court’s assumption of this essentially policymaking role.

The most basic source of judicial legitimacy derives from the dispute settlement function of courts. American courts may make law and policy, but they are justified in doing so only when necessary to decide concrete cases. This can be seen in how our legal system conceives the relationship between dicta and holding in a judicial opinion, and in how it differently treats judicial opinions and judicial judgments. The need to settle disputes was also the basis of Marbury’s claim that federal courts were entitled to engage in judicial review. If the forward-looking lawmaking of a legislature is justified by its representative nature, the forward-looking lawmaking of a court is justified by the need to resolve disputes.

The structure created by the Judiciary Act of 1925 eventually encouraged the Court to imagine that it could exercise a lawmaking authority that was virtually free-standing and independent of the retrospective need to settle disputes. The Court now exercises this authority not only in self-consciously using certiorari to set the nation’s constitutional agenda, but in using its cases primarily as vehicles for the declaration of forward-looking law. This shift has produced a profound crisis of the Court’s legitimacy. A court that nakedly exercises its lawmaking authority is vulnerable to the charge that it can no longer settle disputes in a fair and impartial manner. The Court has undermined its most basic claim to legitimacy.

It was during the era of the Warren Court when the Court first fully inhabited the policymaking role made possible by the Judiciary Act of 1925. At that time the Court imagined itself as the leader of American constitutional culture. Modern American constitutional theory developed as an effort to explain and justify the independent lawmaking authority of the Warren Court. But because judicial lawmaking, like any lawmaking, must ultimately be vindicated by popular acceptance, professional legal theory cannot insulate a court from popular opposition. The irony of the present situation is that although the Roberts Court has rejected the substantive doctrine of the Warren Court, it has nevertheless fully embraced the judicial role pioneered by the Warren Court.

Like its predecessor, the Roberts Court seeks to lead the constitutional culture of the country. This has put its legitimacy profoundly at risk, a danger that cannot be averted merely by the proliferation of constitutional theories. Instead the Court must find some way to make its constitutional views acceptable to the nation.

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© 2025 Robert Post. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Sterling Professor of Law, Yale Law School. I am grateful for the astute comments of Clifford Ando, Ashutosh A. Bhagwat, Stephen Burbank, Justin Driver, Richard Fallon, Linda Greenhouse, Daniel Harris, Edward Hartnett, Arthur Hellman, Anthony Kronman, Frank Michelman, Sam Moyn, Tom Schmidt, Reva Siegel, Karen Tani, Yoav Sivan, John Witt, and Gerson Zweifach, and for the outstanding research assistance of Helena Funari, Romina Lilollari, and especially Amad Ross.