That’s the title of my magazine-length article for the Phi Kappa Phi Forum. It begins:
Every first-year law student learns that the United States Supreme Court only presides over real “cases” and “controversies,” according to the Constitution in Article III, Section 2. No matter how pressing the concern, the Supreme Court must wait for a properly litigated case involving adverse parties disputing a live issue to wind its way through the lower courts up to what is the highest court in the land. Because Supreme Court decisions are binding throughout the nation, it’s important that the cases involve competing camps with a bona fide stake in winning, a scenario that helps ensure all points are properly argued. Also, given the extraordinary powers granted to this unelected branch of government, it’s important that the Supreme Court adheres to protocol by not proactively inserting itself into the legislative or executive processes. But sometimes funny business happens. This article explores two historical cases: Barbier v. Connolly, which rigged the proceedings, and Lochner v. New York, which launched a notorious preemptive strike against a law.
The article is written for non-lawyers and non-historians, so if legal history appeals to you but you find the stuff written for scholarly articles too jargony, you might want to check this one out.