Maria Glover (Georgetown University Law Center) has posted Reconstituting a Constitution, and a Republic: The Architecture of Authoritarian Rule on SSRN. Here is the abstract:
A constitution can be remade without tearing it down, or even changing a single word. It is done by law.
“The judicial power is vested in one Supreme Court and in such inferior courts as Congress may establish,” whose “province and duty” it is to “say what the law is.” U.S. Const. Art. III §1; Marbury v. Madison, 5 U.S. 1 (Cranch) 137 (1803). It is not the power to remake the Constitution that grants it.
The Supreme Court is turning the inherited powers that hold power to law into instruments of its own aggrandizement. It is taking authority from the courts below, from Congress, from the agencies, from the states, and from the voters. Those divided powers are the architecture of the constitutional order, in which no one rules alone, and no one stands beyond the reach of the law. The architecture has always been most vulnerable to its chief steward.
“The judicial Power shall extend . . . to Cases . . . and Controversies.” U.S. Const. Art. III §2. In each case the Court decides, real people win, real people lose, real people suffer. Across the run of cases before it, the Court is reconstituting the constitutional order itself—for itself.
Authoritarian rule is what follows from the concentration of public power in a single actor, and the disabling of the institutions through which that power could be challenged. The reconstitution is doing both. And increasingly, it proceeds this way: decisions issued without reasons, rules that bind everyone but the Court, and its own choices announced as the law’s commands.
Much of it is fixed in constitutional holdings, beyond the reach of any election or act of Congress. A structure remade can be met only by reform of the same kind.
This Article was written for a symposium held in March 2026 on procedure and remedies in the face of authoritarianism. The Term that closed thereafter bore out its theory of reconstitution. Procedure and remedies are constitutive of the judicial power itself; and particularly in a moment of authoritarian threat, they are the guardrails—the means by which a constitutional order holds public power to law, and by which the lower courts are holding it now. They are also the powers the Supreme Court is taking, from every hand but its own—and the instruments by which it is reconstituting the republic. By stripping lower courts of their centuries-old equity powers and fact-finding roles while manipulating standing and selectively applying rules to all others but itself, the Court is building an architecture of Supreme Court supremacy within its own branch and across others that subverts the separation of powers, and the states and voters as well. This consolidation and reconstitution carries implications for contemporary interpretive theory and the design of necessary structural reforms.
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