The Most Dangerous Branch: Inside the Supreme Court’s Assault on the Constitution by David A. Kaplan, Crown, US $30.00, Pp 464, September 2018, ISBN 978-1524759902
The Supreme Court has never before in history played such a pivotal role in the political and social life of America. Both liberals and conservatives alike look towards the Supreme Court to settle society’s toughest issues at the expense of the other two branches of government that are designed to be democratic. The nine justices decide most of the controversial issues of our time from abortion to same-sex marriage to gun control to campaign finance. Many voters in 2016 made their choice based on whom they thought their presidential candidate would name to the Supreme Court. It was assumed that the replacing Justice Anthony Kennedy with Judge Brett Kavanaugh would be as easy and smooth as replacing Justice Antonin Scalia with Justice Neil Gorsuch. The nomination of Judge Brett Kavanaugh or whoever replaces Justice Anthony Kennedy is utmost important because he will have so much with his/her swing vote over so much social policy.
In The Most Dangerous Branch, former legal affairs editor of Newsweek David A. Kaplan wonders as to why fight out politically charged questions in an election — the results of which can be overturned in the next one — when a victory in the Supreme Court can cement an outcome for a lifetime. Why try persuading millions of citizens to endorse a position when all you need is five of nine “appointed” justices? Kaplan writes, “When demonstrators convene outside the Court, they surely miss the irony that they’re marching right past the Capitol across the street.” For much of its history, the Court stayed almost entirely out of the affairs of Congress. Kaplan tells us, before the 20th century, the justices declared federal laws unconstitutional only five times. By mid-century, they were doing so at a rate of about once a term. And by the 1990s, the Court was throwing out three or four federal laws each term. The numbers didn’t suddenly go up because the legislation had been written with less care — or because the justices had become wiser.
Kaplan argues that the corrosive result is that we have an arrogant Supreme Court and an enfeebled Congress that rarely is willing to tackle the toughest issues. Each feeds on the other. The justices often step in because they believe the popularly elected members of Congress act like fools or, like cowards, fail to act. Congress is happy to stay off the battlefield and rarely asserts, other than to crowd the cameras during occasional Senate confirmation hearings on a new justice. The result is dwindling public faith in both institutions. Kaplan says that this charade produces a Court that’s short on humility – convinced of its own superiority in settling what the law is, seemingly oblivious to the possibility that its legitimacy takes a hit.
Kaplan says that the Court’s eagerness to be in the vortex of political disputes and its wholesale lack of deference to other constitutional actors explains in part the cynical uses to which it has been subjected by presidents and senators. The Court’s drop in standing among the public in recent opinion surveys and mainstream commentary has so often reflected an attitude that the justices are partisans-in-robes — is a mostly self-inflicted wound. This reflects not a liberal or conservative sentiment, but a growing conviction that the Court has squandered its institutional capital. It is altogether possible to be politically liberal and to oppose an aggressive Court. It is entirely consistent to be politically conservative and to oppose an aggressive Court. Political ends do not justify judicial measures.
The Most Dangerous Branch is a very well-researched book, based on exclusive interviews with the justices and some of their law clerks. This persuasive and informed work has assumed additional importance because of the happenings around the nomination of Brett Kavanaugh. Kaplan takes the reader behind the smokescreen of law and into the shady world of the Supreme Court justices and shows how the nine justices subvert the role of other two branches of the government with the support of Democrats and Republicans alike. His critique of the Supreme Court Justices’ judicial powers will change the way you think of the Supreme Court. The need for judicial reform was never greater before. The Most Dangerous Branch will generate a lot of controversy and debate. It is a must-read for the students and practitioners of history, law, and journalism as Kaplan teaches us how to do investigative journalism and write a book.