Steve Vladeck delivers a crucial intervention at a moment when the very legitimacy of the Supreme Court is being debated by its own allies. While some on the left argue the Court is beyond repair and should be dismantled, Vladeck makes a provocative case that preserving the institution's independence is the only way to prevent democratic collapse. This is not a defense of the current justices, but a stark warning that throwing the judiciary overboard could leave the republic defenseless against executive overreach.
The Attack from the Left
Vladeck opens by addressing a sharp critique from Harvard professor Ryan Doerfler and Yale professor Sam Moyn, who recently argued in The Guardian that the Court has become illegitimate and must be replaced. Vladeck notes that their essay specifically targets "liberal lawyers" like himself and Kate Shaw for worrying about the Court's reputation rather than just its bad outcomes. He pushes back hard on the idea that he is protecting the Court out of naivety. "I have not exactly been shy about criticizing the Court—even on terms of illegitimacy," Vladeck writes, pointing out that his own book accuses the Court of "undermining the Republic." He argues that while he agrees the current Court is deeply flawed, the solution isn't to destroy the institution but to fix its lack of accountability.
The core of Vladeck's argument is that the problem isn't the power of the judiciary itself, but how the current Court has insulated itself from checks and balances. He contrasts the modern Court with a historical era when Congress controlled the Court's schedule, budget, and jurisdiction. "Today's Court can do just about whatever it wants, whenever it wants, and all without realistically having to look over its shoulder," he observes. This framing is effective because it shifts the debate from "bad judges" to "broken structures." Critics might note that structural reforms are politically impossible in the current climate, making Vladeck's institutionalist approach feel like rearranging deck chairs on a sinking ship. Yet, Vladeck insists that without a functioning judiciary, the alternative is far worse.
The point is not to trade tyrannies of the majority for a tyranny of unelected judges; it's that the best medicine for misbehaving branches is to strengthen the checks and balances in both directions—not to just cut one branch out of the equation.
The Bulwark Against Tyranny
Vladeck's most compelling evidence comes from the last year of executive action, where federal courts have repeatedly stopped the administration from implementing controversial policies. He challenges the notion that the courts have been powerless, citing specific examples where judicial intervention was decisive. "President Trump's odious attempt to limit birthright citizenship by executive order has never actually gone into effect—entirely because of interventions by federal courts," Vladeck writes. He also highlights the administration's failure to use the Alien Enemies Act for mass removals, noting that without the courts, these initiatives could have been deployed nationwide.
This section grounds the abstract debate about legitimacy in concrete human stakes. Vladeck argues that the Founders understood the need for an independent judiciary as a "bulwark against abuses by even democratically elected branches." He warns that Doerfler and Moyn's desire to "empower the people at the expense of the judiciary" ignores the reality that the people, through their elected representatives, are often the source of the tyranny. "Imagine a world in which this administration was wholly unchecked by federal courts, and could therefore do whatever it wanted," Vladeck asks. The answer, he suggests, is a scenario where constitutional rights are stripped away without recourse.
He also touches on the Court's recent emergency docket behavior, noting a rare loss for the administration in a Fourth Circuit immigration case. While Vladeck remains skeptical that this signals a major shift, he acknowledges that the Court's refusal to grant a stay suggests the justices are not entirely immune to the pressure of public scrutiny. "The real story would've been if even that was sufficient to provide a basis for emergency relief," he notes, implying that the Court is still navigating a precarious balance between its ideological leanings and institutional norms.
The Cost of Nihilism
Vladeck concludes by addressing the philosophical divide between his view and that of the Court's critics. He argues that while the Constitution is imperfect, discarding it in favor of a new system is a dangerous gamble. "They may view my attitude as rearranging deck chairs on the Titanic; I prefer to think of it as trying to avoid hitting the iceberg in the first place," he writes. His goal is not a Court that always agrees with progressives, but one that exercises power in a way that is "constitutionally and institutionally responsible."
He invokes the late Harvard law professor Paul Freund to illustrate the necessary relationship between the Court and the public: justices should be influenced by the "climate of the age" rather than the "weather of the day." Vladeck argues that the current Court has eroded its public capital through "shady behavior on emergency applications" and predictable 6-3 ideological splits. "The justices have to build capital before they can spend it," he warns. Without that capital, the Court risks losing the public support it needs to enforce its rulings, leaving the constitutional order vulnerable.
Pulling the Supreme Court back from the cliff is something progressives should view as far preferable to the alternative—where it may not just be the Court that gets pushed over the edge and into oblivion, but our entire constitutional (and democratic) order.
Bottom Line
Vladeck's strongest argument is his refusal to let the Court's failures justify its abolition, grounding his defense in the tangible protection the judiciary has offered against executive overreach. His biggest vulnerability is the assumption that structural reforms can ever be achieved in a polarized political environment where the Court itself holds the power to block them. The reader should watch to see if the Court's recent hesitation on emergency stays signals a genuine recalibration or merely a temporary pause before the next ideological push.