'The Most Dangerous Branch' Asks Whether The Supreme Court Has Become Too Powerful

In an epigraph to The Most Dangerous Branch: Inside the Supreme Court's Assault on the Constitution, Justice William J. Brennan is quoted as saying of the nation's highest court: "If you have five votes here, you can do anything."

Justice Brennan, who died in 1997, was celebrated for path-breaking opinions but also for his effectiveness as a behind-the-scenes, judicial deal-maker. In this possible majority of one that Brennan describes, author David A. Kaplan, a former legal affairs editor of Newsweek, reads danger.

"Today, liberals and conservatives alike blithely rely on the Court's members to settle society's toughest issues — at the expense of the two branches of government that are designed to be democratic....The corrosive result is twofold: an arrogant Court and an enfeebled Congress that rarely is willing to tackle the toughest issues."

Reasonable minds can differ, especially with an executive branch run by Donald Trump. So, too, with Mitch McConnell's Senate. With unprecedented obstructionism, the Senate majority leader refused a hearing for Judge Merrick Garland, President Barack Obama's nominee to the Supreme Court following the death of Justice Antonin Scalia; President Obama had nearly 11 months left in his term.

Kaplan, however, makes his case. His book is based on dozens of interviews with former judges and clerks, as well as with other knowledgeable court watchers. In addition, Kaplan cites Supreme Court scholarship across the political spectrum.

Kaplan begins with the drama surrounding Justice Scalia's death on a west Texas ranch. He goes on to describe the behind the scenes dealings that led to the appointments of the sitting Supreme Court, and the even more "inside baseball" of how these nine people vote. If you aren't a regular on the Washington cocktail circuit or a subscriber to SCOTUSblog, this material is presented at a level of granularity with which you may not be familiar. It makes for engaging, if not reassuring, reading.

Chapters entitled "Left Flank" and "Right Flank" are meant to persuade readers of just how ideological the current court has become. The arrogance of the individual justices is a theme that threads from left to right. As one Kennedy clerk put it, "Why would you leave when you're running the country?"

And, yet, Justice Anthony Kennedy, considered the court's swing vote, stepped down at the end of the court's 2018 term. Brett Kavanaugh, a judge whose record leans far right, has been nominated to fill Kennedy's seat. Kaplan devotes considerable space to Kavanaugh, having flagged his conspicuous absence on the short list for Scalia's seat. In a stroke of impeccable timing, The Most Dangerous Branch arrives just as the Senate begins Judge Kavanaugh's confirmation hearings.

"For much of American history, the Supreme Court was relatively quiescent," Kaplan states at the outset of the book's second half. This section provides a history of seminal cases, starting in 1803 with Marbury v. Madison, establishing the court's authority to declare acts of Congress unconstitutional. From infamous cases that sanctioned institutional racism such as Dred Scott and Plessy v. Ferguson to Brown v. Board of Education, which struck down Plessy's "separate but equal doctrine," the court, in Kaplan's view, has taken an increasing role in policymaking. The court has issued critical decisions on abortion, voting rights, gun control, health care, election spending and the selection of the president himself in 2000. Kaplan's discussion of Bush v. Gore is particularly elucidating in explaining the competing postures of state and federal courts that resulted in George W. Bush's first inauguration.

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Chapters such as "Runaway Court," "Revenge of the Right" and "For the Love of Money" leave no doubt about Kaplan's views on the wisdom of judicial restraint; he's for it. He does us a favor by pointing out the hypocrisy of originalism, for which Justice Scalia is best known:

"Justice Brennan had it right when he wrote about originalist theory in its infancy, back in the 1980s—"arrogance cloaked as humility"...."

"Under Chief Justice Roberts," Kaplan writes, "we have a Supreme Court of blue chambers and red chambers." And yet it is Justice Roberts whom Kaplan considers the court's "best hope." If Kaplan is arguing that the court overstepped in declaring same-sex marriage a constitutional right in Obergefell v. Hodges, he's not arguing against the outcome. But he seems to agree with the chief justice:

"Many Americans, the chief wrote, 'will rejoice at this decision, and I begrudge none of their celebration....' He had no animus toward gay rights—he just didn't believe courts should be the chief source of them."

In the final chapter of The Most Dangerous Branch, Kaplan asserts that "if the Court is to become a less dangerous branch," Justice Roberts "has the opportunity, the temperament and maybe the skill to make it so." This may be Kaplan's closing argument, but to capitalize on this opportunity, Justice Roberts would have to adopt a leadership style that goes beyond the partisan.

Martha Anne Toll is the executive director of the Butler Family Fund; her writing is at www.marthaannetoll.com, and she tweets at @marthaannetoll.