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09/08/2018

New Book: "The Most Dangerous Branch" by David Kaplan
Michael Ramsey

Recently published, by David A. Kaplan: The Most Dangerous Branch: Inside the Supreme Court's Assault on the Constitution (Crown 2018).  Here is the book description from Amazon: 

In the bestselling tradition of The Nine and The BrethrenThe Most Dangerous Branch takes us inside the secret world of the Supreme Court. David A. Kaplan, the former legal affairs editor of Newsweek, shows how the justices subvert 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 would name to the Court. Donald Trump picked Neil Gorsuch—the key decision of his new administration. The next justice—replacing Anthony Kennedy—will be even more important, holding the swing vote over so much social policy. Is that really how democracy is supposed to work?
 
Based on exclusive interviews with the justices and dozens of their law clerks, Kaplan provides fresh details about life behind the scenes at the Court – Clarence Thomas’s simmering rage, Antonin Scalia’s death, Ruth Bader Ginsburg’s celebrity, Breyer Bingo, the petty feuding between Gorsuch and the chief justice, and what John Roberts thinks of his critics.
 
Kaplan presents a sweeping narrative of the justices’ aggrandizement of power over the decades – from Roe v. Wade to Bush v. Gore to Citizens United, 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. Challenging conventional wisdom about the Court’s transcendent power, The Most Dangerous Branch is sure to rile both sides of the political aisle.

(I know authors aren't responsible for book descriptions, but I have severe reservations about Justice Thomas' supposed "simmering rage".  Based on limited interactions I would say "thoughtful" and "jovial" are more accurate descriptions.)

The author also has this New York Times op-ed that seems to capture the book's basic perspective: What’s the Point of the Supreme Court?  If you know beforehand how justices will vote based on which president appointed them, then what’s the point of having a court that, in theory, operates above politics?  Here is a core paragraph:

We may pride ourselves that we have self-government, but for decades we’ve turned to the court to settle our most difficult social and political issues: abortion and gay marriage, campaign finance and gun control, even a disputed presidential election. When the justices rule the way we like, we laud them for “interpreting” the Constitution. When they don’t, we complain they’re “making the law” based on their own predilections. A good justice is an umpire; a bad justice is a player. No real principle seems to be involved in our assessments of the court, only whether we endorse the outcome of this case or that one. The court has become just another political prize to be won by the party in power, not the neutral arbiter this country’s founders envisioned.

As Justice Scalia predicted.  (For example, pp. 230-231 of Scalia Speaks).

I haven't read Kaplan's book, and the essay does not give much indication of his solution.  One solution is very strong judicial deference.  But that does not seem to be where Kaplan is going, per this paragraph: 

Of course, the court sometimes must act decisively to protect rights. By design, the unelected, largely unaccountable Supreme Court serves as a bulwark against tyrannical majorities. The First Amendment’s guarantee of free expression envisions the protection of repugnant views. And few legislators are apt to defend the rights of criminal suspects. That’s why there are constitutional prohibitions against unreasonable searches and against self-incrimination. The court’s role is to vindicate these unpopular protections. In one of its finest moments, in Brown v. Board of Education, the court gave force to the 14th Amendment’s guarantee of equal protection for all.

How then, does he propose to make the Court the "neutral arbiter this country’s founders envisioned"?