The Most Dangerous Branch: Inside the Supreme Court in the Age of Trump

by David A. Kaplan

In the bestselling tradition of The Nine and The Brethren, The 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. Brett Kavanaugh—replacing 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 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.

Genres: Politics, Nonfiction, History, Law, American History, Government, Legal

443 pages, Kindle Edition

Published September 4, 2018

About the author

David A. Kaplan is the former legal affairs of Newsweek, where he covered the Court for a decade. His other books include The Silicon Boys (a New York Times bestseller that was translated into six languages), The Accidental President (an account of the 2000 election on which HBO’s Recount was partially based), and Mine’s Bigger (a biography of the largest sailboat in the world that won the Loeb Award for Best Business Book of 2008). A graduate of Cornell and the New York University School of Law, he teaches courses in journalism and ethics at NYU. He and his family live in Irvington-on-Hudson, New York.

Reviews

[Petra X · Rating 3 out of 5]

After reading the marvellous Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World, I was very interested in reading this book. I had hoped it would be on the Supreme Court rather than another book attacking Trump. I am not an American, I am an observer of US politics. When the author inserts many little barbs against Trump they all pile up until, "Trump, whose attention span seemed no longer than the time it took to tap out a tweet," became the straw that broke the camel's back. I don't want to read a book about Trump/the Republican Party's involvement in the "assault on the Constitution", I want to read a book that is even-handed.

Each president appoints Supreme Court Justices in line with their party's philosophy, I'm obviously in sympathy with liberal feminist thought (given how much I liked Sisters-in-Law and Notorious RBG) however I am not either a Democratic or Republican supporter, I'm an outsider, I'm not just not an American, I'm a post-left, libertarian free-market anarchist. Would you have expected anything else from me :-D ?

So DNF. But I'd still like to find another book like Sisters-in-Law dealing with cases more than politics and judges more than presidents.

3 stars, because partisan as it was, it was interesting and well-written, but it's not going to lead me down a path where I learn what I came to the book for.

[Matt · Rating 5 out of 5]

I have decided to embark on a mission to read a number of books on subjects that will be of great importance to the upcoming 2020 US Presidential Election. Many of these will focus on actors intricately involved in the process, in hopes that I can understand them better and, perhaps, educate others with the power to cast a ballot. I am, as always, open to serious recommendations from anyone who has a book I might like to include in the process.

This is Book #6 in my 2020 US Election Preparation Challenge.

The recent death of US Supreme Court Associate Justice Ruth Bader Ginsburg highlights the importance of the Judicial Branch as a place for advocacy, offering up many perspectives. The asinine attempts to fill the void (and mention it not two hours after her passing) by Senate Republicans and a president who is fixated on his own image is both disgusting and abhorrent. However, as David A. Kaplan effectively argues in his book, the Supreme Court of the United States (SCOTUS) is by no means solely an arbiter of the laws, but also a highly political machine keen to churn out decisions that will shape the country for decades to come. Kaplan’s thesis, that the Court has gone troublingly conservative, is not lost on the reader, with mention of the confirmation of Neil Gorsuch and early hinting of the Brett Kavanaugh debacle. With the (as of this review) yet-to-be named replacement nominee, the Court is sure only to become more troubling and could harm the country, as well as its citizens for decades to come. If this is not a wake-up call to the electorate that simply four years of Trump will have a lasting and destructive effect, I am not sure what could be deemed a better example.

Kaplan uses the first part of his book to lay out some background on the actors involved in the Court, particularly those who have shaped the right-leaning move over the last number of years. Interestingly enough, the opening chapter explores the Merrick Garland foible, where President Obama sought to nominate him for the vacancy left on the Court with the death of Antonin Scalia. The Senate, held by the Republicans and trying to be stoic (pardon me as I vomit), said that the people ought to have a say in the presidential election, refusing to have hearings on Garland until after the election. (Funny, these are the same men who are now adamant that there is a need and a duty to fill the seat, even 41 days before the next election). This brought about the nomination of Neil Gorsuch once Trump won the election and created the first in a long list of scandalous confirmation processes that the Court has had to face over the years. Kaplan not only goes through the Gorsuch circus, but also looks back on how the other eight members of the Court fared as they sought to secure a spot in the most elite legal club anywhere in the world. Some received easy passes, while others were grilled and humiliated to the point of almost withdrawing their name from contention. What Kaplan makes clear throughout is that these ‘impartial’ arbiters bring out some of the most vehement political sentiments in order to secure their positions, leaving little wonder that they are key political players, even as Justices deny it. That recent appointments have (and will) reflect a significant move to the right of the political spectrum is clear, but how that will shape America is anyone’s guess. If it’s anything like the president who nominated them, the country is in for some dire legal decades.

Kaplan uses the second half of his book to explore key themes and cases that have come before the Court, showing how the nine Justices have made their mark and used political sentiment to shape major policies. While there is no doubt that a number of cases heard by SCOTUS are mind-numbing, there are always those whose results offer key direction in the way the laws of the land are to be interpreted. The themes may change over time, but they are sometimes revisited, especially when the Court has had a significant ideological shift and some feel it is best to get a new (better?) take on the results. Kaplan explores some key areas like abortion, voting rights, and gun control, taking a broad historical look at how the issues arose and the legal arguments that brought about a trip to the Court. He is then keen to explore some of the arguments made by the Justices in their decisions, including how the Court split, and the ramifications of these decisions on American law and its interpretation. There are some decisions that, years after the fact, end up being the albatross that some Justices feel they would have chosen differently, while others scorn the ‘incorrect outcome’ their colleagues came to and how that will keep America from being a bastion of legal greatness. Kaplan digs deeper to look at some cases the Court took on with no real necessity other than to flex its political muscle, contradicting the neutrality that is said to be part of this third branch. While Kaplan pulls no punches, he is quite clear that the move to the right is grounded in some, albeit shaky, legal standing and close-minded interpretation of the law. In an era of 5-4 decisions, there were times when one could not tell which direction the Court would land. The push for a super-majority to the right will surely leave the minority of the population happy and the smaller group on the Court grasping to hold their ground.

This is not a glitzy piece that seeks to gloss over the fundamental arguments and skewer those who hold conservative views. This is not a book that wants only to show to bumps and bruises of Trump, his nominees, and those on the Court whose ideology is rooted in staying the course. Rather, it is a highly informative piece that seeks to explore the Court and the impact it has and will have on an America that is already highly divided. Kaplan seeks to show that the Court is not neutral, cannot be divorced from the political process, and seeks not to simply interpret laws as they come. As Kaplan relates, Chief Justice John Roberts often refers to the role of SCOTUS as ‘calling balls and strikes’, but this is not the case. There is much nuance and a great deal of politicisation on the Court, more than the general public likely understands. The law is political, there is no doubt. The US Constitution is political in its interpretation, of that we cannot deny either. However, it is how those who are tasked with controlling the interpretation choose to use their power that will have the greatest impact on the country as a whole. Kaplan uses not only key cases to strengthen his arguments, but offers the reader a thorough analysis to better understand what’s going on and how these Justices wield a pen that has so much momentum behind it, shaping how the country will move for decades. Kaplan uses detailed chapters to make these points, offering the reader insight and a quasi-academic analysis of how things have progressed/regressed. His attention to detail is second to none and there is a great deal to learn from soaking up the arguments made herein. While likely not for everyone, it is written in an easy to decipher manner and leaves the reader hungering for more.

Be it a woman’s right to choose, integration of the races in schools, or even the right to marry, the Court has done some remarkable things in its decisions. However, it is the electorate that must stand up and say how they want the country to move forward and, for the time being, the selection of a president and senators seems to be the only way to do that. Whatever duty the elected officials say that they have and however they choose to bastardise decisions to fit their own political stage play, it is the electorate whose vote has the strongest impact, as diluted as it may seem. It would seem that the Court is headed in a troubling direction, at least in my eyes. Marked with the stamp of, perhaps, the worst president America has ever seen. However, we must soldier on, for Ruth Bader Ginsburg if no other, and protect what rights we have left. The national nightmare can end, if we want it to... but its lasting effects will remain with the Court as it currently stands!

Kudos, Mr. Kaplan, for a stunning piece that kept my mind racing throughout. I can only hope to read some more of your work soon and discover even more on this topic.

Love/hate the review? An ever-growing collection of others appears at:
http://pecheyponderings.wordpress.com/

A Book for All Seasons, a different sort of Book Challenge: https://www.goodreads.com/group/show/...

[Jean · Rating 5 out of 5]

The Republicans have controlled the Supreme Court for the past fifty years. Abraham Lincoln was the first Republican president. There have been twenty-nine presidents since then but only nine have been Democrats. Of course, the Republican Party has changed a lot since the days of Lincoln. In recent years it has gone way to the right.

The book is well written and researched. Kaplan had many interviews with the Justices and their law clerks as well as reviewed the archives. Kaplan provides an overview of the Court and the role between executive, legislative and judicial. Most of the book covers Justices and the Court of the past few years. He describes how Gorsuch has changed the Court and the retirement of Kennedy. The book is not unbiased even though Kaplan points out the failures of the liberal wing. Kaplan attempts to build a case that the Court has exceeded its role and the legislature has failed to do its job. I was surprised to discover that Kaplan discussed Kavanaugh as a potential to replace Kennedy and how that would affect the make-up of the Court. Kaplan is a journalist and the book is written in that style. It is very easy to read for a lay person. I thoroughly enjoyed reading the book and learning about the current Court.

I had this book on preorder from Amazon and it was released and arrived on my iPad Kindle app on the first day of the Kavanaugh hearings. My, what timing! The book is 464 pages and I read it as an e-book.

[Ms.pegasus · Rating 5 out of 5]

It began with Bush v. Gore.... No—it began with Roe v. Wade.... No, author David A Kaplan argues that the Supreme Court has always been politically partisan. That partisanship was held in check for most of its history. The few exceptions were telling. In Dred Scott v. Sandford (1857) the Court declared the Missouri Compromise unconstitutional. Judicial interference emerged again in the 20th century with the Court's invalidation of New York's statute limiting the maximum hours bakers could be made to work. It was a precedent that invited invalidation of 200 federal and state labor statutes protecting employees. (The Lochlan era).

This is a highly readable book enlivened by quotes from prominent jurists, past and present. Kaplan counters a number of widely held myths. “One of the tall tales about Court seats is that candidates don't run for them.” (p.51) His Exhibit A is Neil Gorsuch. The narrative tracks the career of an ambitious, politically savvy man, willing even to disavow an inconvenient opinion that ruled against an autistic student when the decision was overturned by the Supreme Court (Endrew F. v. Douglas County School Board, 2017).

Another myth: “originalism” is a tool for objective legal interpretation. “...[B]ecause they [originalism and textualism] favor a status quo forever fixed in the 18th century, they tend to favor the 'haves' of that time – and to disfavor all others, including minorities and unpopular litigants....No method of interpretation miraculously removes human judgment from the equation”. [emphasis mine] (p.13)

The accumulated degrees and prestigious job resumes of the candidates, the lifetime tenure for a Court appointment, and the elaborate theatrics off the Court's protocols bestow an aura of Solomonic wisdom. Kaplan counters that impression with a long record of unapologetic sophistry on the part of the justices.

The second part of Kaplan's book examines legal principles obscure to the layperson's eye. The Chevron Deference was established in the case of Chevron USA Inc. v. Natural Resources Defense Council (1984). There, the Court established a precedent of deference to “reasonable” federal agency authority. Kaplan notes: “hostility [to Chevron Deference] was an unspoken litmus test” for conservatives, who were bent on dismantling the rules of agencies like the EPA, OSHA, the FCC and the SEC. (p.42-43)

A second principle was substantive due process, the rationale behind the Dred Scott case. It is an extrapolation from the guarantees articulated in the Fifth and later the Fourteenth Amendments. Whereas life, liberty and property are explicitly protected by due process, additional liberties are inferred under substantive due process. Just which “liberties” could be added to the list was problematic. In the Dred Scott case, the justices claimed slaveholders' economic rights were being denied.

Harlan Fisk Stone attempted to provide some clarity in the so-called Footnote Four of US v. Carolene Products Co. (1938). In a three part formula he singled out laws that prejudiced minorities for particular scrutiny of possible due process violations. Unfortunately, Footnote Four of Carolene became another invitation for Court intervention: “Whereas Carolene Products aspired to protect 'discrete and insular minorities,' Roberts was suggesting [in a 1983 memo] that it was the resentments of majorities that deserved judicial solicitude.” (p.303)

Kaplan traces the tortured re-interpretations of these principles in the service of expanding Supreme Court power. Although his focus is on the actions of the Roberts Court, his objections are not about outcome but about uncalled for intervention when a legislative solution was more appropriate, and overly broad rulings. He claims that Bush v. Gore (2000) was simply a matter of unconstitutional interference. District of Columbia v. Heller (2008) invoked substantive due process on behalf of gun owners as well as a novel interpretation of the Second Amendment. Citizens United v. Federal Election Commission (2010)? Shelby County v. Holder (2013)? Obergefell v. Hodges (2015)? Substantive due process on behalf of corporations' free speech, state sovereignty rights, and gay marriage rights respectively were invoked in these cases. (In Obergefell it was the conservative wing that objected to the expansion of substantive due process).

Kaplan argues that in each case the Court exceeded its Constitutional scope by interfering with legislative prerogatives, and that the result was a loss of institutional credibility.

This book shines a spotlight on the blatant hypocrisy that justices have displayed in rationalizing their decisions. “...[T]he 2017-18 term was a pageant of hypocrisy, driven less by an honest reckoning of hard cases than by conforming to a conservative political agenda.” (p.362)

The book is a wake-up call to the public. Democracy will not be saved by a mere change in Presidential administrations. “It is a sign of weakness that we countenance an almighty Court to resolve so many of our hardest choices. We do not need, nor should we want, the Court to save us from ourselves.” (p.370)

[Randal White · Rating 4 out of 5]

Talk about a timely book! I received an advance reading copy of this book, just as Supreme Court Justice Kennedy announced his retirement. Even though the author wrote the book long before this happened, he predicted it. And who President Trump was going to nominate. He hit the nail on the head! Wow!
I enjoyed reading this book, especially the first half. In that part, Kaplan discusses all of the current justices, how they got to where they are, and what issues they are very passionate about. He even reveals each justices little quirks and habits. It was very enlightening, and presented in a very readable manner.
The second half of the book discusses cases. While I enjoyed it, at times I felt like it was way over my head. I might go back and reread it. Maybe on the second round it will be clearer.
I recommend this book to anyone who has an interest in the law. The direction the country will head in the future will be, to a large extent, depend on how these nine people rule.

[Martha Anne Toll]

Here’s my review of this book for NPR. https://www.npr.org/2018/09/05/644824...

[Dave · Rating 5 out of 5]

One of the best books I've read this year. Kaplan has a strong nonpartisan point to make about the U.S. Supreme Court: he believes that it is broken, and has been for a long time.

The first few chapters provide a profile of each of the current Justices (the book was published immediately before Kavanaugh's confirmation) as well as a few of the recently departed. These profiles show a lot of research and provide interesting glimpses into personalities, foibles, vulnerabilities, etc. of each Justice. This information is useful later in the book, when Kaplan wants to make the case that each one of these Justices has failed the institution and the nation at some point in recent history.

Kaplan argues that the USSC has been reaching far beyond its grasp for nearly fifty years, and he warns that the Court is primed to continue abusing its power now that it is stocked with radical right-wingers who are ready to reverse Roe.

And it all starts with Roe, but it doesn't end there. Kaplan does an excellent job of maintaining a politically neutral perspective, which is quite rare when it comes to USSC analysis for popular consumption. Kaplan cites many famous decisions that are either anathema or anthemic for both the left and the right, and he cites them all as terrible overreaches by a Court with little humility and less restraint.

Roe, Citizens United, Heller, Obergefell--Kaplan devotes a chapter to each and spares no Justice for their blatant hypocrisy. It boils down to this: each Justice of the last 40 years is guilty of overreaching when it suits them. They have found rights wherever and whenever they have needed to, and in the process they have made consistently poor constitutional law. It is only when the Justices have been on the losing end of countless 5-4 decisions that they have written about the need for judicial restraint, and the need for the legislative branch to serve as a laboratory for policy ideas that can then gain traction with the people.

I have always been grateful to my progressive heroes on the USSC for the decisions that they have made to protect the rights of various minorities (women who need abortions, LGBT folk, people of color, etc.). But Kaplan argues persuasively that we should not have used litigation as a means of establishing these long-sought-after rights, because this approach gives far too much power to the least democratically accountable branch of government. Easy for him to say, sure--but as we look at the current Court and await its rollbacks of all of these rights and more, I think we should heed his argument and rededicate our efforts to other avenues for social progress.

This book changed the way I think about the Supreme Court, the law, the Constitution and public policy. It gives me hope that progressives will be able to move forward by asserting policy initiatives through the legislative branch, the way it was done before the 1950s and the way the system is supposed to work. Here's hoping that the 2018 midterms are a sign of the beginning of this revolution.

[Keen Reader · Rating 2 out of 5]

2.5 Stars!

“If you usually know beforehand how justices will come out- and it it’s a function of the political party of the president who appointed them-what’s the point of having a Court? Did we really establish a system of self-government in which those life-tenured judges decide so much social policy?”

This is a subject of which I knew very little about, but I suppose that’s what books are for isn’t it?...We start off hearing about the Reagan appointed Antonin Scalia and learn that “He was a serious gun aficionado” among many other highly distasteful characteristics. Strangely, Kaplan insists that Scalia “Died unexpectedly” and yet we learn that this was a 79 year old smoker who suffered from obesity, coronary heart disease, hypertension and diabetes?...

This book is split up into two sections, the first is Characters and the second one is Cases. There is a fair bit of dull trivia and unremarkable details which make up the first part, as we hear about one awful person after another. This gets a little more interesting when we get to the second section and get into some of the more notable and controversial cases in US history like Roe v. Wade, Bush v. Gore and even going back to Dred Scott in the 1800s. If you don’t know of the latter case, look it up - it is a shocker.

They say that in gambling the house always wins, well in politics, especially in America, the right always wins, even when it doesn’t seem that way (think Obama bailing out the banks or the many triangulations of Clinton), and this is reflected in this book. There are some dark and disturbing facts in here, but I can’t say that I am shocked or surprised. It is just another facet of a badly broken nation pretending to itself and the world that it is a great one.

So this is a patchy and uneven insight into a mob of bloated caricatures, puffed up on privilege and entitlement, prancing around their domain like camp pantomime dames in a ridiculous display of self-important stagecraft.

[David Wineberg · Rating 4 out of 5]

The Most Dangerous Branch gives life to the Supreme Court of the United States (SCOTUS). It’s the third branch of government, one without the clout of legislation or executive orders, and no army or treasury to enforce anything, as Alexander Hamilton described and promoted it. Nonetheless, the thrust of David Kaplan’s highly readable book is that the SCOTUS is in the process of usurping the other branches, particularly Congress, and carving out roles that were never meant for it – like prescribing law and deciding presidential elections.

Normally, such books drag on for a hundred pages of required history, but Kaplan jumps quickly to Neil Gorsuch, his nomination, and the backroom opinions and little-known actions to get him confirmed. It seems no one outside of Justice Clarence Thomas can stand him. He is an arrogant know-it-all, lecturing the other justices in their legal errors of judgment and on how to write an opinion. His own clerks have difficulty working for him. He has opened a wide crack in the usually respectful and collegial court. The conservatives Republicans love it.

What jumps off the pages is how tight the circle is. The justices know the candidates. So do the politicians. The same names keep coming up for nomination. Despite the book being written before Anthony Kennedy announced his retirement, Kaplan singled out Bret Kavanaugh (who was not on President Trump’s shortlist) to replace him. Some, like Gorsuch, have modeled their entire careers for it. Others decline, but their names come up again anyway. Their old university professors intervene with positive or negative recommendations, unsolicited. They also promote them to clerk for a SCOTUS justice, thus ensuring their orbit among the stars. This is the swamp of the judicial system.

For reasons I don’t understand, the next chapter, which begins by profiling Chief Justice Roberts (“If the people don’t like what we’re doing, it’s more or less just too bad,”) is written in the past tense, as if Roberts were no longer there. It makes reading a little difficult, because you never know if Roberts has resolved some issue, or if it continues. It then transpires that Kaplan profiles all the current justices in the past tense, as if they were closed chapters in history. For example, “Kagan was more doctrinal.” Is she still, or has she changed with age and experience? “She had a sense of humor as well.” Did she lose it?

It’s all very colorful and gossipy, giving life to the black robes. It is filled with wonderful sidelights, from backstage meetings, to luncheons with clerks, to courtroom moments. For example, during a trial regarding gay rights, Justice Breyer demanded of the Texas prosecutor “a straight answer“ - for which Justice Thomas had to whisper to Breyer why everyone was laughing.

Kaplan says the turning point for the SCOTUS power grab was 1954’s Brown v. Board of Education. The court ventured into prescribing life, and has never looked back. It got progressively worse, with every decade seeming to top the previous in outlandish court interference. In 1973 it was Roe v. Wade, in which the Court actually prescribed solutions according to the trimester of the pregnant woman. In the 2000s, it was Bush v. Gore, in which the SCOTUS decided the federal election by itself. It was in fact Justice Anthony Kennedy, whose vote made it 5-4, who elected George Bush. The election was decided by one voter (who probably voted for him twice). In this decade it is (so far) the extraordinarily unpopular Citizens United, which allows unlimited spending by corporations in elections. Kaplan calls it “Injudicious intrusions on democracy” and proves his case repeatedly.

In all these cases, Kaplan says, the SCOTUS would have done better to decline to hear the cases, forcing Congress to do the job it was mandated to do. By declining, the justices would seem to put themselves above the fray, instead of opening themselves to the justified criticism they receive for their decisions. In 1893, Harvard’s James Thayer said a strong Supreme Court would “deaden its sense of moral responsibility.” We have yet to learn from that.

Throughout the book, in the background, there floats Alexander Bickel, a constitutional expert whose sagacity and reasonableness are on display like an Obi Wan Kenobi, popping up in the background all over the book. He guides Kaplan, who likes to boil down cases to simple issues with appropriate solutions. Why couldn’t the justices see it that way?

Arrogance and hypocrisy are clearly on display, such as when Chief Justice Roberts claimed the Supreme Court “had no choice” in its decision – even though four of the nine dissented. Or when Justice Scalia would claim “the people” should decide – but he would decide himself if they didn’t act when and how he desired. He would abandon his “originalism” philosophy in a heartbeat to get what he wanted personally, for example ignoring the origins of the second amendment in Heller v. Washington DC.

The biggest fault described in The Most Dangerous Branch is the Court’s usurpation of Congress. In Bush v. Gore, for example, there are clear directions on the books for Congress to decide the matter, but the Court ignored its own voices to follow those existing laws, and decide by their own vote instead. The more powers Congress gives up, of course, the less it can accomplish. Between the Court and the President, the submissive Congress is on a treadmill to oblivion. We see it all the time, as senators and representatives sue in order for the SCOTUS to decide instead of doing it themselves. Same for the President – let the Supreme Court rule.

When power grabs are unattractive or unavailable, the Roberts Court descends to inventing rights, like the constitutional right of contract and the principal of equal sovereignty – pure fantasies. The same goes for legal precedents. Justices will demand precedents be respected – unless they want the underlying principle overturned, in which case they will ignore anyone who brings them up.

In other words, the Supreme Court is made up of nine fallible humans, who bring their own politics and prejudices to bear on the whole nation. And with scope creep, they are bringing those prejudices to more and more of the government, undermining and overruling what the Framers determined to be the operating system of the country. As long as presidents insist on nominating justices for their ideologies, it will always be a simple matter of assembling five votes. The rest don’t count. And neither does “justice”.

David Wineberg

[Avid · Rating 4 out of 5]

3 stars for the first part, which was too long. About the justices. 5 stars for the second part, which reviewed specific cases (the big ones, that we’ve all heard of and been affected by), and illustrated where the court may have overstepped, and how politics plays in this supposedly nonpolitical branch of our government. This was very intelligent and deeply researched, but unfortunately is not geared towards the casual reader (typical voter).

[Wyatt · Rating 2 out of 5]

The Supreme Court is constituted of partisan ideologues who hypocritically view their role in our government broadly or narrowly based on whether doing so in a particular case will serve their preferred political ends. So in cases involving abortion and gay marriage, liberal justices want the Court to act and conservatives argue restraint; in cases limiting voting rights or expanding corporate rights, the reverse. Both liberals and conservatives on the Court have thereby contributed to making it a super-legislature. But we should not want the most important decisions in our society to come down to the personal views of 9 (and often just 1) mostly-elderly, mostly-white, mostly-male, and mostly-rich people, some of whom (Kennedy) are not even that bright and others (Thomas) have “quirky” world views.

This unoriginal argument is not just the central thesis of this book. It is almost the only topic discussed. Most of the book is a long march through decades of caselaw — in this case the liberals were the hypocrites; in this case it was the conservatives. It’s tiring and repetitive. Where two examples would do, we get 200 pages of them.

Scattered throughout are tidbits of gossip about the Court. Most of the morsels have been reported in the press and thus are not themselves worth the read. But the author seems to enjoy this material more, and I’d probably have found a Vanity Fair-style expose of life at the Court underneath the robes a lot more fun than a depressing parade of opinions from the last few decades illustrating and reillustrating the same point.

What is missing, other than a brief passage at the end, are any solutions to the problem we have been sledgehammered with throughout the book. Are the justices supposed to read this and unilaterally disarm themselves?

The book could be justified as bringing a topic that has long been discussed in legal academia to a popular audience, thus building broader consensus that the Court has accreted too much power to itself. And it is accessible. If these issues are important to you, the book isn’t a total waste. But you can feel free to skip to the afterword after about 150 pages.

[Zack Timmons · Rating 5 out of 5]

Shortly after the Kavanaugh controversy, I decided to purchase this book and give it a read to better educate myself on the function, the process and the failings of the United States Supreme Court. Few people know the Court better from the outside than Kaplan.

This book is an incredible primer on the modern state of the court and how we've reached the point where we're at. While many will blame Trump for turning the Court into another partisan arm of government, the truth is that it's been that way for a while - or at the very least steadily trending toward the situation we're in now.

Kaplan breaks down each of the eight justices pre-Kavanaugh, provides relevant history of the Court, the tendencies of past judges and goes through some of the most important decisions in the history of the Court, explaining how each is relevant to the state of affairs in America today.

Most often, the public only really hears of or obsesses over the most elite of Supreme Court cases, but some of the most dangerous cases have flown under the radar. This book does a masterful job weaving together the history of the court with its current standing and explaining what the future holds based on past precedent and current makeup of the court.

Highly recommend.

[Chris Lund · Rating 5 out of 5]

This really felt more like two mini books. The first half focuses primarily on each of the individual justices, including commentary and analysis on confirmation processes and lots of behind the scenes details. The second half gets into a more in-depth analysis of the book's underlying argument that the court has slowly but steadily shifted from more of a neutral arbiter to a partial policy maker, increasing its own powers at the expense of the other branches of government. The line of cases discussed traces back to the substantive due process argument of Dred Scott, followed by the Locher era fights between the court and FDR, then hits Brown, Roe, Bush v. Gore, Heller, Citizens United, Shelby County and Obergerfell, along with the respective lines leading up, and arising from, those cases. While not all of these arguments are original, much of the value comes from the inside information generated by interviews with 165 justices, clerks, and court insiders.

[Burney Huff · Rating 5 out of 5]

Excellent book! I now better understand why SCOTUS no longer has the respect it once had and I better understand its political nature. Very sad! Should be required reading for every voter and recommended for every citizen of the US.

[David · Rating 5 out of 5]

With deep reporting and thorough research, Kaplan makes a compelling argument: That our highest court has overstepped its Constitutional role to become a partisan instrument. Case by case he builds the evidence, critiquing both sides of the ideological spectrum and highlighting hypocrisy. Along the way he captures the characters and culture of the Court. I found it an engaging, insightful read, though it left me discouraged by the injustice of it all. (Where have you gone, Merrick Garland?)

[Rachael · Rating 4 out of 5]

This book will do it for anyone interested in a fascinating look into the history of the Supreme Court. Overall, I enjoyed the look into the personal lives of the justices and the non-partisan critique that was raised. Kaplan should add an addendum or publish a second edition because two new justices have been added to the court since this book came out. Otherwise, it's a great read that discusses the most important Supreme Court decisions from the last 100ish years and the context in which they were decided.

[Silvia · Rating 4 out of 5]

Fascinating insight into the modern Supreme Court. Kaplan makes a compelling case that the Supremes are now playing the democratic arena, solving problems that should be taken care of by the elected branches of government, and/or lower courts in the individual states. He actually convinced me that Roe v. Wade was overstepping and since then we've looked to the highest court to solve political problems. A great read.

[Sean Tenaglia · Rating 4 out of 5]

In summary, putting powers— intended to belong to “the people” of a representative democracy— into the hands of 9 individuals is very dangerous. Particularly when those 9 are political appointees in an increasingly polarized system and can hold their power for upwards of 3 decades. So yes, the Garland-Gorsuch swap and Kavanaugh’s confirmation fiasco are distressing signals for the futures of the Court and the nation.

[Madlyn · Rating 4 out of 5]

A very good read.

[David · Rating 4 out of 5]

The idea of this book resonated with me because, since becoming American in recent years, I have started to get suspicious about the Supreme Court. It's been a truism for generations that Americans have a high regard for the Court, as compared with the other two branches of government. But listening to an account of oral arguments on NPR in 2015, I thought to myself "hey... wait a minute". (This wasn't treated in Kaplan's book; I had to look it up for these details). The case was about affirmative action, and Antonin Scalia was quoted as saying "There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well... (see CNN article: https://www.cnn.com/2015/12/11/politics/supreme-court-antonin-scalia-african-americans-audio/index.html

So I thought "hey, wait a minute - this guy sounds like a bigoted moron who is just unconsciously accepting as lived truth the idea that black people are intellectually inferior. And he gets to decide stuff"? (Apologies to those who have been thinking about the issue of Court overreach for decades).

Having read the book, my impression is that Kaplan himself really started thinking about this as an issue in the aftermath of the Bush v. Gore decision in 2000. I say this because, from a readability stance, I found this chapter (Chapter 11, Revenge of the Right) to be a bit difficult. Maybe I was distracted, but I found there was a bit too much intricacy about the interplay between SCOTUS and the lower courts, to the point where I struggled to understand the legal points that were in play. For this reason I suspect Kaplan found in this episode the genesis of the book.

Overall it was an easy and informative read. We learn about the justices themselves, starting with their confirmation process. And we learn a lot about important legal cases such as Roe v. Wade and many others. Pretty much all of the writing refers to justices and cases that are contemporary or within the past 50 years.

The case is effectively made: the Court has indeed become less of a body dedicated to impartial judgement of constitutional principles and precedent as they apply to specific cases, and more a chamber in which political will is effected by alternate means. One need only to look at the numerous pivotal decisions that have split 5-4 along the party lines of which party nominated them. Brown v. Board of Education, by contrast, was decided 9-0. For generations, wise jurists counseled that "the best doing, is in not doing": meaning that it is up to the citizen-accountable legislatures to make law, not the Court. Even Ginsberg has criticized Roe as being "too far, too fast".

Especially galling is the hypocrisy, especially on the conservative/Republican wing of the Court, in decrying this SC application of political will on the one hand (Romer v. Evans, for instance - a landmark gay rights case) but pretending not to have done exactly the same thing on the other hand: Citizens United, or Shelby County, for example.

Kaplan concludes on a hopeful note: it is possible that Chief Justice Roberts, mindful of his legacy, and with ambition to be seen by history as possibly in league with the legendary John Marshall, may over time reclaim the stature of the Court from within. We see a glimmer of this possibility in his pivotal vote not to overturn the ACA. But at the same time, in the same ruling, he may have laid a foundation for future court curtailment of Federal regulatory power under the Constitution's Commerce clause. Time will tell.

The main take-away: whether you are coming from the Left or Right, please stop thinking about SC justices as saviors. The Constitutional way of effecting change is through the legislature: we need more politics, and not less. And the lasting legacy of the age of Trump (to veer wildly from topic) may turn out to be a resurgence of civic engagement, resulting in more effective legislatures and better politics.

[Steve Hill · Rating 5 out of 5]

Dead on. I recently visited Oxford, where a professor of American history there described the US Supreme Court as a policymaking body with inadequate staff. This book supports that conclusion in historical detail, explaining how the court has made decisions that changed American, not based on law but personal political bias. The author is particularly tough in calling out Justice Scalia, the so-called originalist who is relied on originalism when it suited him. At the top of the list of the Court’s unconscionable decisions is Bush v. Gore, where Kennedy and O’Conner handed a callow George W Bush the presidency, who brought us 17 years of war and counting along with collapse of the nation’s financial system (though he had a lot of help with the latter). This raises serious issues about the court’s role in American life and whether it can be dialed back to a more appropriate balance with the other branches of government.

[Ella · Rating 4 out of 5]

3.5 Not as persuasive as I would have liked. Loads of details about personal intrigue instead of hard-hitting factual information about how their beliefs or their quirks inform their votes and our laws. Interesting mostly when discussing the way law has zig-zagged because the justices as well as their "methods" have followed suit according to politics above all. That's when the book is excellent, but I could have done without the gossipy sections where we learn about personality quirks. I wanted the book to stay with important legal issues, not whether a justice wears a suit to grill. Overall, I wanted more.

[John Mccandlish · Rating 5 out of 5]

Found this book to be very objective. The book calls out the hypocrisy on both sides; liberals and conservatives. If someone finds themselves always agreeing with their side of the partisan divide in SCOTUS decisions they are not being consistent in their interpretation.

[Dean Passe · Rating 4 out of 5]

Should be required reading, presents a strong case that the Supreme Court is usurping power from both of the other branches of government. A very good read.

[Jerry Edward Stephens · Rating 5 out of 5]

Alexander Bickel, a Yale law professor who died in 1974, was one of the nation's foremost authoritoes on the U.S. Supreme Court. He authored the now classic study of that court in the early 1960s. It carried the title that wads once descriptive of the Court: The Least Dangerous Branch. Even as the political and social progressive that Bickel actually was, that book title reflected his strongly held belief in the doctrine of judicial restraint. Bickel was skeptical that the Supreme Court had acted properly in its decisions such as Brown v. Board of Education. He was truly concerned about the nation's judiciary overreaching in public policy decisions in a manner that many deride as social engineering. Now, David Kaplan fears that the Supreme Court is strongly acting in the entirely opposite manner with its real willingness to challenge and even overturn long held judicial precedent. The recent reversal of Roe v. Wade is only one concerning example. The Court, in recent years, appears all too willing to examine and challenge long established judicial decisions. Kaplan see this court willingness as a true on the nation's Constitution. This is a book that anyone concerned with the state and vitality of our personal rights and should carefully read. Kaplan is a professor of journalism and ethics at New York University. He is a longtime student of the Supreme Court and our nation's judiciary. He certainly has reached a point where he fears that Bickel's support for judicial restraint may be a dead issue. This book may profitably be read with Stephen Vladeck's study on court operations in The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Both books are strong warnings to the extent and direction that some members of the current court are willing to go to undermine our personal rights, our sense of the democracy we enjoy, and even the fundamentals upon which our very republic is founded.

[Zhang-He · Rating 4 out of 5]

In The Most Dangerous Branch: Inside the Supreme Court's Assault on the Constitution, David A. Kaplan delves into the growing risk that the Supreme Court of the United States (SCOTUS) oversteps the boundaries of its judicial power in the United States government.

In bringing readers through the history of SCOTUS, Mr. Kaplan highlights landmark cases in which he believes that SCOTUS exhibited judicial restraint; as well as cases in which--Mr. Kaplan argues--the justices on SCOTUS overstepped their judicial powers in deciding cases that are best left to the other government branches.

Throughout his book, Mr. Kaplan drives his point home: the decisions on most social issues of our time should be played out gradually in Congress. He emphasises that these decisions should not be left to SCOTUS to decide.

All in all, an enjoyable read, but some pages inevitably involved some legal jargon and knowledge of the Constitution of the United States, for which I had to pause reading to look them up. Technicalities aside, The Most Dangerous Branch: Inside the Supreme Court's Assault on the Constitution is suitable for a layreader with minimal or no knowledge in US legal and political matters.

[Christopher · Rating 5 out of 5]

This might be the most timely book of 2018. While I don’t always agree with author David Kaplan’s views about the Court, it should be noted that he not only predicted the retirement of Justice Anthony Kennedy, but also the nomination of Brett Kavanaugh as his replacement. Does this mean Kaplan is prophetic? Probably not. But it does give some heft to his understanding of politics and the Court. That this book’s release date coincided with the first day of Kavanaugh’s confirmation hearing really put a bow on the whole thing.

The text is broken into two sections. The first details the justices themselves along with some of the intricacies (and eccentricities) of the Court. The next half focuses in on specific cases and their broader impacts. Both are routinely tied back to Kaplan’s assertion that the Justices have gradually shifted into the political arena by taking on cases that should have been remedied legislatively rather than utilizing restraint. Much of the time, his arguments are compelling, especially when highlighting controversial decisions like Bush v. Gore.

Remarkably, Kaplan keeps the text from ever getting too dry, even when getting deep into the texts of judicial opinions. He’s quick to drop an anecdote or gossip, which usually play double-duty by showing just how human the justices truly are. Yes, there are sections that are heavy on analysis and theory, but Kaplan always keeps it accessible and interesting.

Note: I received a free ARC of this book through NetGalley.

[Rdlindsey · Rating 5 out of 5]

I'm a college Government instructor and first received this one a couple of years ago to consider using for the classes I teach... I finally dug back into it and finished it after getting on a bit of a "books about the Supreme Court" kick last summer, and I'm glad I did. Reading it alongside Jackie Calmes's _Dissent_ and Toobin's _The Oath_, there *was* a bit of an overlap in subject matter, of course, but Kaplan's is probably the best of the bunch. Not only do you learn a good deal about the personalities and beliefs of the current justices, but Kaplan makes a solid case for his thesis regarding how the Supreme Court has become far more powerful-- and dangerous-- than it was ever intended to be. I'd imagine Kaplan's concerns along these lines have only increased with the elevations of Brett "I Like Beer" Kavanagh and Amy Coney Barrett to the Court since its publication. Due to the swing to the right these changes have wrought, I also imagine that concerns along these lines are expressed much more often by liberals than conservatives-- but Kaplan effectively lays out a case here for why it does a disservice to what has happened to the Court to view things solely through such ideological lenses. For an interesting and very informative dive into what's going on with the not-quite-current lineup of the Court alongside an eye-opening legal analysis and historical overview of some of the major events and issues that have driven what's occurred on the Court over the last several decades, I'd highly recommend this one.

[Priscilla · Rating 4 out of 5]

I've always believed that the Supreme Court is one of the more amazing things about our democracy--a branch of government consisting of nine old people with no purse-stings or army, who tell us how to behave, and three hundred million people comply. The Justices are the wise, dispassionate branch of our government. The other two branches are political, not dispassionate and wise. However, Kaplan argues that the Court has become political, as well, and that they are now nine unelected, life-tenured prima donnas telling us what to do from on high when our elected officials fail in their responsibility. The Justices get involved in whatever they please, without making credible arguments as to why it is their job to be involved. Kaplan is particularly critical of the social issues the court has decided, like abortion and same-sex marriage, but his hardest criticism is for Bush v. Gore. He argues that the Court should have never gotten involved in that case (both Florida and the Fed have laws that dictate how election disputes should be decided; none involve the Supreme Court). He pegs the Court's decline in respect and confidence to that decision. For a branch that depends on the people's respect and confidence, the fact that the Court is now seen as just another political branch of the government is a grave problem for the Court.

[Tory · Rating 4 out of 5]

A timely publication on the increasing politicalization of the Supreme Court. The first part of the book is a description of the more recent appointments, with some historical background, and the second part of the book is a description of a some of the major cases decided by the Supreme Court over the last hundred years or so. In these sections, Kaplan describes how the appointment of Supreme Court justices (who are given lifetime appointments) has become more and more partisan over the years, as well as how the Court increasingly has gone beyond resolving Constitutional issues by creating law where the legislatures and Congress have failed to act --- thus making it "the most dangerous branch." He criticizes both the liberal and the conservative justices for overstepping the intended authority of the Supreme Court. Kaplan argues (citing former Justice William Brennan) that with these 9 men and women, "if you have five votes here, you can do anything" and cites some cases in which only one vote (the swing vote between the liberals and the conservatives) made the decision. Thought-provoking, and opened my eyes to some of the machinations of this branch of the government. The first part of the book was easy to read and follow, the second half (on the court cases) could have used some editing.