The Most Dangerous Branch: Inside The Supreme Court’s Assault On The Constitution
By David A. Kaplan
Crown; hardcover, 464 pages; $30.00
As the country is embroiled over the nomination of Judge Brett Kavanaugh to the Supreme Court, it is time to take a step back and see what brought us to this point, why this is such a consequential moment.
In the tradition of The Nine and The Brethren, David A. Kaplan, the former legal affairs editor of Newsweek takes us inside the secret world of the Supreme Court in his new book, The Most Dangerous Branch: Inside The Supreme Court’s Assault On The Constitution.
Kaplan shows how the justices have subverted the role of the other branches of government, and how we’ve come to accept it at our peril.
With the retirement of Justice Anthony Kennedy, the Court has never before been more central in American life. It is the nine justices who too often now decide the controversial issues of our time, from abortion and same-sex marriage, to gun control, campaign finance and voting rights.
The Court is so crucial that many voters in 2016 made their choice based on whom they thought their presidential candidate, Republican Donald Trump or Democrat Hillary Clinton, would name to the Court to replace Justice Antonin Scalia, who died suddenly in February 2016.
The Republicans who controlled the Senate held up confirming President Barack Obama’s nominee Merrick Garland, preventing a Democrat from taking staunch conservative Scalia’s seat, in the hopes Trump would win, which he did.
Soon after President Trump took office in early 2017, he picked Neil Gorsuch, arguably the biggest decision in his first year of his new administration.
The next justice, who will replace Anthony Kennedy, possibly Kavanaugh if he is confirmed by the Senate, will be even more important. This justice would hold the swing vote over so much social policy, holding sway for a generation over much of our lives.
Is that really how democracy is supposed to work? Is such power really what we want to invest in a single unelected, unaccountable individual?
This was a motivation for Kaplan to write the book, as he says, “After Antonin Scalia died in 2016, I kept hearing liberals and conservatives both hollering that ‘the next justice could shape social policy ‘for a generation.’ And nobody questioned that power. I aimed to challenge the orthodoxy. Anthony Kennedy’s retirement – just as I finished – made the timing particularly auspicious.”
Based on exclusive interviews with the justices and dozens of their law clerks, and he said of his findings, “A lot surprised me, which is one of the joys of writing a book. Some items: the chief justice’s (John Roberts) indignation in 2016 at attacks on him by Republican candidates; how strongly many justices feel about Gorsuch; how little Trump understands about the Court; who Obama preferred to nominate instead of Merrick Garland; why Sandra Day O’Connor voted as she did in Bush v. Gore; and Clarence Thomas still being really mad.”
There are also fresh details about life behind the scenes at the Court, such as what happened that night at the Texas ranch where Antonin Scalia died, Ruth Bader Ginsburg’s celebrity, Breyer Bingo, the petty feuding between Neil Gorsuch and Chief Justice John Roberts, and what Roberts thinks of his critics.
Kaplan presents a sweeping narrative of the justices’ aggrandizement of power over the decades, starting with Roe v. Wade in 1973 to Bush v. Gore in 2000 to the Citizens United case on campaign financing in 2010, to rulings during the 2017-18 term. But the arrogance of the Court isn’t partisan: Conservative and liberal justices alike are guilty of overreach.
At a key moment for the nation, Kaplan challenges conventional wisdom about the Court’s transcendent power. The problem is not that the justices sometimes act as rank partisans, but that we have come to accept it. Liberals and conservatives both make that mistake.
The Most Dangerous Branch is sure to rile up both sides of the political aisle, making it a very successful work.
Kaplan writes of Kennedy’s retirement this past June, “On June 27, 2018, the bedrock of the national government trembled. Soon before noon, after the Supreme Court in Washington issued its last two rulings of the 2017-18 term, Justice Anthony M. Kennedy arose from the bench, turned away from the audience, and left as always through the private exit in the back of the great courtroom. After three decades, it would be the last time he did so. He walked down the hallway to his resplendent chambers, reviewed the one-page letter he had considered drafting all year, and then proceeded with his bodyguards to a waiting SUV that would take him two miles down Constitution Avenue to the Oval Office. Kennedy apprised the other justices of what he was doing only minutes before he headed out the door. Almost nobody at the White House knew he was coming.
“There, Kennedy was hurriedly escorted through a side entrance, down a little-used corridor, and brought to the upstairs residence, the better not to be seen by the press elsewhere in the building. The president, Donald Trump, had just been informed that a justice was on his way to see him. Kennedy’s name wasn’t on the morning schedule and Trump had only surmised it was him, given the rumors about Kennedy’s remaining time on the Court. No student of the Court, let alone American history, Trump could not have known how unusual it was for a justice to show up unannounced – and to do what Kennedy was about to do. Yet such a stunt was altogether Kennedyesque. Other justices declared they were retiring by having a law clerk deliver a letter to the White House. The matter-of-fact David H. Souter sent in his retirement by fax. With Kennedy, there was little wonder that he didn’t arrive in an ermine-trimmed cloak.
“Kennedy, 81, brought with him the letter, which he handed to Trump. ‘My dear President,’ Kennedy wrote. ‘Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises.’ He modestly left out that in a lot of those cases he was the key vote. Sometimes he was with the four liberal justices; often he was with the four most conservative justices…
“The president recognized he was getting the opportunity to remake the Court – and to push it decisively to the right. His nomination of Neil M. Gorsuch the year before, to succeed Justice Antonin Scalia, netted nothing: It was mostly a one-for-one ideological swap of conservatives. Kennedy’s departure represented something else entirely. Replacing him with a diehard conservative meant 5-to-4 decisions that occasionally tilted left – like preserving abortion rights, creating gay rights, allowing affirmative action, restricting capital punishment, and maintaining the authority of federal agencies like the EPA and SEC – could go in the opposite direction. For movement conservatives, mostly Republicans, reversing Roe had been the great grail. For nearly half a century, one justice after another – Sandra Day O’Connor, David Souter, Anthony Kennedy – had foiled the Republican presidents who appointed them, by failing to abandon Roe. That now seemed within reach. For liberals, it was the end of the world as they knew it at the Supreme Court.”