Confirmation hearings for Brett Kavanaugh have begun this week in the US Senate. Kavanaugh is expected to be appointed to the Supreme Court on the basis of a Republican majority supporting a conservative-minded judge. His résumé includes the requisite Ivy League education (Yale) and a track record on the bench as part of the US Court of Appeals for the D.C. Circuit.
Kavanaugh is unlikely to say much of substance, following a playbook established by both liberal and conservative nominees in the 31 years since US Sen. Ted Kennedy of Massachusetts and his fellow Democrats in the majority rejected Reagan nominee Robert Bork. In his new book, The Most Dangerous Branch, former Newsweek legal affairs editor David A. Kaplan makes a strong and compelling case that, whatever the outcome, one thing is guaranteed: The Supreme Court is all but certain to remain over-involved in setting and amending policy and laws.
His book is a perfect primer for helping Americans understand how members of the court came to justify their excessive involvement in various controversial issues. Think abortion, voting rights, same-sex marriage, gun control and campaign finance, among others.
Kaplan never hesitates to call out what he sees as hypocrisy or foolishness, but those assertions never lack the appropriate context and explanation. His amicus briefs on the current justices and important cases such as Roe v. Wade, Bush v. Gore, and Citizens United v. FEC explore not just origins and outcomes, but also the dramatic shift toward a more activist court.
The biggest problem Kaplan has with the judiciary branch is its propensity to insert itself into policy debates that would be better served through the back and forth of legislative adjustments and voter sentiment (not only looking to Congress, but also state and local laws and ordinances). In doing so, the court demoralizes Congress in particular from deciding, or attempting to re-shape, issues and laws. How does that happen? Conventional wisdom holds that the court will decide the hottest-button issues, as it has ever since Roe v. Wade in 1973.
Even before the opening page, Kaplan’s message is clear from the title. “The Most Dangerous Branch” resonates even more with Court and legal aficionados. Alexander Bickel, the late Yale Law professor and renowned Supreme Court follower and commentator, wrote a seminal history called “The Least Dangerous Branch,” published in 1962. Bickel, who died in 1974, was known for his belief in judicial restraint, a philosophy based on hewing as closely to possible to the specific determination of a case without broadening a ruling or judgment beyond that narrow scope. Following that formula, the courts leave it to the legislative and executives branches – and, in doing so, the broader populace who vote for and against lawmakers – to establish policy.
During the 2016 presidential election, 70% of voters in exit polls said appointments to the Supreme Court were the most important factor, or one of the most important, when deciding whether to support a candidate. Such figures demonstrate the court-as-policy-setter motif has not just infected governing bodies, but the populace as a whole.
Or, as Kaplan writes, “‘Judicial activism’ is what the other guy does. But in truth, everybody’s an activist now.” The point hammered home by the author is that democracy ceases to exist in a society governed by the judiciary.
He finds ample hypocrisy on the left and right alike, ripping what he describes as the squishy arguments of Harry Blackmun, who wrote the majority opinion in Roe determining access to abortion as a right, and Antonin Scalia, a frequent dissenter on gay rights and author of the 2008 Heller decision determining an individual right to own guns is part of the Second Amendment.
Scalia, who died in 2016, frequently railed in his dissents about decisions subjugating further political debate and maneuvers, except, as Kaplan notes, when he didn’t. Known for his emphatic endorsements of textualist and originalist interpretation of the Constitution – reading it as written and in the context of the framers’ time – Scalia, to cite the most obvious example, ignored those principles when he capped a successful decades-long campaign by the right to re-cast the Second Amendment as a literal call to arms beyond militias.
Kaplan points out that the NRA, up until the late-1970s, supported laws restricting access to guns. The author’s criticism of the Court’s decisions in Heller and Roe boil down to what Kaplan persuasively argues are instances of overreach and finding non-existent rights in the Constitution. In each instance, he says that not accepting the cases and leaving the matters to lower courts and the political realm would have been more beneficial and, eventually, would have forged a more palatable consensus born of conflict and compromise.
Of Scalia, Kaplan writes, “Why was the democratic process sacrosanct when it curtailed gay rights, but wholly unworthy when it came to gun control, campaign spending and the Voting Rights Act?”
Roe v. Wade, “as a matter of constitutional law … was preposterous,” Kaplan writes, citing not only his own conclusions but those of scholars and a pre-court Ruth Bader Ginsburg, who once wrote of the possible benefits of a narrower ruling in the case, much to the chagrin of pro-choice advocates. The author also points to Justice Blackmun’s personal, contemporary notes — notes acknowledging that using trimesters as a determinant was arbitrary.
Kaplan calls the nakedly partisan Bush v. Gore decision to settle the 2000 presidential election “a disgrace” and, pairing it with Roe, says the two decisions “are ignoble bookends in jurisprudence.”
Based, in part, on 165 unattributed interviews with past and present justices, law clerks and representatives from the White House, Congress and the Justice Department, Kaplan also sifts through glimpses of the justices as people: Sonia Sotomayor’s dating woes, Clarence Thomas’s lingering bitterness over allegations of sexual harassment, John Roberts’s sensitivity over being photographed with his bald spot showing. Both accessible and thorough, “The Most Dangerous Branch” is an important and fascinating look at the Court during one of its most important, and divisive, eras.