The bench was never meant to be the last line — but here we are

The Hill reports that the Supreme Court enters its final sprint of the term with twenty argued cases unresolved and a self-imposed deadline of the end of June. The Court is described as racing to hand down decisions while, in the paper's words, 'President Trump's agenda is on the line.' That single phrase deserves to be held up to the light.

The genius of the Constitution — if I may say so with the candor of a principal draftsman — is that no single branch was supposed to have enough concentrated power to place its "agenda" so comprehensively before one institution at one moment. Article III grants the judicial power to courts of law; it does not ask those courts to serve as the clearing-house for a presidency's program. That so much now rests on nine individuals deciding by the end of June is less a tribute to judicial power than it is a symptom of the other branches having failed to police their own boundaries.

The structural question is not whether the justices are wise or partisan — though both matter — but whether the mechanism still functions. Federalist No. 51 argued that the branches must be given the constitutional means and the personal motives to resist encroachments. A court pressed to resolve twenty cases touching executive authority in a single sprint is a court being asked to substitute for the friction that should have occurred earlier: in committee markups, in floor debate, in the executive's own restraint. When those earlier checkpoints collapse, the burden falls entirely on the bench, and the bench was not designed to carry it alone.

I confess — and I mark this plainly as inference, since I cannot have observed the current docket — that the concentration of high-stakes executive-power questions before a single court, on a single calendar, bears the marks of factional strategy rather than constitutional order. Factions, as I argued in Federalist No. 10, are not evil in themselves; they are the natural product of liberty. But when a faction learns to pipeline its contested acts through a sympathetic branch rather than through the deliberative process, the extended republic's built-in friction is being deliberately bypassed rather than honestly engaged.

The written compact provides a remedy: Congress may legislate, the executive may be checked by appropriations, and the amendment process stands open for any change the people genuinely will. What the compact does not sanction is treating a court's final-week decisions as the principal instrument of governance. That is not what Article III's 'cases and controversies' language contemplated, and it places an illegitimate weight on a branch whose democratic accountability is, by deliberate design, the most attenuated of the three.

So as the decisions come down — inference, not recollection — I would urge readers to ask not merely who won each case, but what mechanism produced the question. Did Congress act and the executive comply, leaving only a genuine legal dispute? Or did the executive act first and dare the courts to catch it? The answer tells you more about the health of the republic than any single ruling will.