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Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court
NAMED ONE OF THE BEST BOOKS OF 2021: POLITICS BY THE WALL STREET JOURNAL "A must-read for anyone interested in the Supreme Court."—MIKE LEE, Republican senator from Utah Politics have always intruded on Supreme Court appointments. But although the Framers would recognize the way justices are nominated and confirmed today, something is different. Why have appointments to the high court become one of the most explosive features of our system of government? As Ilya Shapiro makes clear in Supreme Disorder, this problem is part of a larger phenomenon. As government has grown, its laws reaching even further into our lives, the courts that interpret those laws have become enormously powerful. If we fight over each new appointment as though everything were at stake, it’s because it is. When decades of constitutional corruption have left us subject to an all-powerful tribunal, passions are sure to flare on the infrequent occasions when the political system has an opportunity to shape it. And so we find the process of judicial appointments verging on dysfunction. Shapiro weighs the many proposals for reform, from the modest (term limits) to the radical (court-packing), but shows that there can be no quick fix for a judicial system suffering a crisis of legitimacy. And in the end, the only measure of the Court’s legitimacy that matters is the extent to which it maintains, or rebalances, our constitutional order.
418 pages, Kindle Edition
Published September 22, 2020
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Displaying 1 - 25 of 25 reviews
October 19, 2020
I devoured this book. Ilya does a wonderful job outlining a fascinating history of SCOTUS nominations. His writing is crisp, interesting, and incredibly readable. The stories are entertaining. The data is great. And the latter section of conclusions is terrific as well. Highly recommended.
September 27, 2020
A must read to understand the history of the Supreme Court and where we are today.
Shapiro's writing is clear, concise, and factual.
A very good history lesson.
Shapiro's writing is clear, concise, and factual.
A very good history lesson.
February 28, 2022
This book is inaptly named but excellent nonetheless. The bulk of the work is a recap of nearly every Supreme Court nomination made since the days of Washington. Lots of riveting history here, if you're in to that sort of thing! The pace slows down significantly when we get to the "controversial" nominations of Bork, Thomas, Garland, etc., but uncomfortably so. The last section of the book asks where we might go from here. Shapiro is too high on term limits--he never mentions the fact that resignations will be just as manipulated as they are now, for instance. He also has no real answer for taking the heat out of the confirmation process. The reality is, since most Americans want the justices to act like politicians, we shouldn't be surprised that their confirmations are politicized. And in fact, we might even want them to be so, Shapiro argues.
Excellent primer on the history of Supreme Court nominations. Well recommended.
Excellent primer on the history of Supreme Court nominations. Well recommended.
January 26, 2021
An excellent history of Supreme Court nominations and the surrounding issues. Grounded in fact a clear understanding of the role of the Supreme Court and the cornerstone importance in the Republic, in a democracy, of the separation of powers and what that means.
November 3, 2020
Certainly a timely release as the issues it discusses reach fever pitch in the election of 2020. Shapiro writes from a conservative judicial and political perspective but is largely evenhanded in his estimation of the history of Supreme Court appointments and their political realities. A fascinating read and one that earnestly wrestles with the problems facing our highest court and the proposed constitutional reform measures being considered. I recommend it. Makes my next read by David French on our secession threat all the more interesting.
November 8, 2020
Very helpful historical survey of the process of judicial nomination, and why we have reached such a polarized time with recent nominations.
January 31, 2021
Clear, concise, and accessible take on a very important topic.
November 23, 2020
Read this in a weekend - Ilya does a fine job in keeping a dry subject digestible - similar to other works on the subject ( most noticeably Mark R Levin a good 2 decades ago ) does not take enough of a bite at Senators who mistreated Judge K in my opinion - fairer minded than I can manage to be in the here & now.
November 25, 2020
Our confirmation battles are ugly and filled with half-truths and distortions. Those half-truths and distortions particularly get wrong the actual history of our judicial battles since ratification. I’m indebted to Ilya for putting together this consummate corrective and reference material for the real story of that history.
January 12, 2023
Excellent read. A useful historical explainer of the “processes” of the Supreme Court and the evolution of its wounded “legitimacy”. I thought Shapiro’s various pondering on how to fix it were really well-thought out and worth considering. Georgetown really missed out on a talented scholar.
October 21, 2020
Thorough but readable
An excellent insight into the history and issues behind the structure of the Supreme Court. Well documented in footnotes for the detail oriented.
An excellent insight into the history and issues behind the structure of the Supreme Court. Well documented in footnotes for the detail oriented.
November 8, 2020
An excellent history of judicial nominations and a good analysis of the state of play today.
March 3, 2021
Wow. What a fascinating book about the history of SCOTUS nominations, every single one since George Washington!
“(Earl) Warren...believed that vindicating the Constitution’s moral principles as he saw them was more important than doctrinal clarity or textual faithfulness.” -p. 78
“Justice Marshall once described his legal philosophy as: ‘You do what you think is right and let the law catch up.’” -p. 89
Clarence Thomas after being falsely accused: “This is a circus. It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.” -pp. 169-70
Obama was “one of the most polarizing presidents in American history who, especially in his second term, thought that when Congress didn’t act, he got to enact his agenda regardless’ -p. 228
“We also had the flip side of the expansion of powers: the warping of rights. In 1938, the infamous Footnote Four in the Carolene Products case bifurcated our rights such that certain rights are more equal than others in a kind of Animal Farm approach to the Constitution. So it’s the New Deal Court that politicized the Constitution, and thus also the confirmation process, by laying the foundation for judicial mischief of every stripe-- but particularly letting laws sail through that should be invalidated. The Warren Court picked up that baton by rewriting laws in areas that are best left to the political branches, micro-managing cultural disputes in a way that made the justices into philosopher kings, elevating and sharpening society’s ideological tensions.” -pp. 280-1
“The only way judicial nominations will be detoxified...is for the Supreme Court to restore our constitutional order by returning improperly amassed federal power to the states; securing all of our rights, enumerated and unenumerated alike; and forcing Congress to legislate on the remaining truly national issues rather than delegating that legislative power to executive-branch agencies.” -p. 309
“In the end, the only measure of the Court’s legitimacy that matters is the extent wot which it gets the law right and applies it correctly...sometimes justices seem to make decisions not based on their legal principles but for strategic purposes. The public can see through that; it’s when justices think about ‘legitimacy’ and try to avoid political controversy that they act most illegitimately.” -pp. 326-7
“Congress and the presidency have gradually taken more power for themselves, and the Supreme Court has allowed them to get away with it, aggrandizing itself in the process. As the Court has let both the legislative and executive branches swell beyond their constitutionally authorized powers, so have the laws and regulations that it now interprets.” -pp. 329-30
“But the judicial debates we’ve seen the last few decades were never really about the nominees themselves-- just like the proposals for court-packing and the like aren’t about ‘good government.’ They’re about the direction of the Court. The left in particular needs its social and regulatory agendas, as promulgated by the executive branch, to get through the judiciary, because they would never pass as legislation at the national level. That’s why progressive forces pull out all the stops against originalist nominees who would enforce limits on federal power.” -p. 332
“The only lasting solution to what ails our body juridic is to return to the Founders’ Constitution by rebalancing and devolving power, so Washington isn’t making so many big decisions for the whole country. Depoliticizing the judiciary and toning down our confirmation process is a laudable goal, but that’ll happen only when judges go back to judging rather than bending over backwards to ratify the constitutional abuses of the other branches.” -p. 333
“Let federal legislators make the hard calls about truly national issues like defense or (actually) interstate (actual) commerce, but let states and localities make most of the decisions that affect our daily lives...That’s the only way we’re going to defuse tensions in Washington.” -p. 334
“(Earl) Warren...believed that vindicating the Constitution’s moral principles as he saw them was more important than doctrinal clarity or textual faithfulness.” -p. 78
“Justice Marshall once described his legal philosophy as: ‘You do what you think is right and let the law catch up.’” -p. 89
Clarence Thomas after being falsely accused: “This is a circus. It’s a national disgrace. And from my standpoint, as a black American, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate rather than hung from a tree.” -pp. 169-70
Obama was “one of the most polarizing presidents in American history who, especially in his second term, thought that when Congress didn’t act, he got to enact his agenda regardless’ -p. 228
“We also had the flip side of the expansion of powers: the warping of rights. In 1938, the infamous Footnote Four in the Carolene Products case bifurcated our rights such that certain rights are more equal than others in a kind of Animal Farm approach to the Constitution. So it’s the New Deal Court that politicized the Constitution, and thus also the confirmation process, by laying the foundation for judicial mischief of every stripe-- but particularly letting laws sail through that should be invalidated. The Warren Court picked up that baton by rewriting laws in areas that are best left to the political branches, micro-managing cultural disputes in a way that made the justices into philosopher kings, elevating and sharpening society’s ideological tensions.” -pp. 280-1
“The only way judicial nominations will be detoxified...is for the Supreme Court to restore our constitutional order by returning improperly amassed federal power to the states; securing all of our rights, enumerated and unenumerated alike; and forcing Congress to legislate on the remaining truly national issues rather than delegating that legislative power to executive-branch agencies.” -p. 309
“In the end, the only measure of the Court’s legitimacy that matters is the extent wot which it gets the law right and applies it correctly...sometimes justices seem to make decisions not based on their legal principles but for strategic purposes. The public can see through that; it’s when justices think about ‘legitimacy’ and try to avoid political controversy that they act most illegitimately.” -pp. 326-7
“Congress and the presidency have gradually taken more power for themselves, and the Supreme Court has allowed them to get away with it, aggrandizing itself in the process. As the Court has let both the legislative and executive branches swell beyond their constitutionally authorized powers, so have the laws and regulations that it now interprets.” -pp. 329-30
“But the judicial debates we’ve seen the last few decades were never really about the nominees themselves-- just like the proposals for court-packing and the like aren’t about ‘good government.’ They’re about the direction of the Court. The left in particular needs its social and regulatory agendas, as promulgated by the executive branch, to get through the judiciary, because they would never pass as legislation at the national level. That’s why progressive forces pull out all the stops against originalist nominees who would enforce limits on federal power.” -p. 332
“The only lasting solution to what ails our body juridic is to return to the Founders’ Constitution by rebalancing and devolving power, so Washington isn’t making so many big decisions for the whole country. Depoliticizing the judiciary and toning down our confirmation process is a laudable goal, but that’ll happen only when judges go back to judging rather than bending over backwards to ratify the constitutional abuses of the other branches.” -p. 333
“Let federal legislators make the hard calls about truly national issues like defense or (actually) interstate (actual) commerce, but let states and localities make most of the decisions that affect our daily lives...That’s the only way we’re going to defuse tensions in Washington.” -p. 334
April 17, 2021
Just a marvelous work of history and analysis - legal and political. Shapiro relates the history of Supreme Court nominations from Washington on, examining the legal ramifications of appointments, the political impetuses of appointments, and the evolution of the process culminating in the current travesties. He is incisive, often humorous and a sophisticated and well versed analyst of legal and political events. Basically, we are where we are because Congress has shirked its legislative responsibility to manage and supervise the mechanics of governance, devolving power to administrative agencies and the executive and thus necessitating courts to interpret and administer laws to an extent unforeseen by our founders. Shapiro looks at, and analyzes, nominations, judges, legal effects and political concerns from the Founding, through the Civil War, the onset of progressivism (requiring judicial deferment to central government) initially with Teddy Roosevelt and then with a vengeance under Wilson then FDR and the New Deal years and the later excesses of the Warren Court.
The modern era essentially began in 1968 with the Bork nomination. Shapiro dissects the Bork nomination fairly and objectively - there were mistakes, fault and blame of varying degrees and differing magnitude on both sides, but the character assassination of Judge Bork was unprecedented, at least in 1968. It was a harbinger of worse to come (Thomas, Kavanaugh) and Shapiro examines each in some detail. Shapiro is a deft and perceptive observer with a gift for clear, compelling writing. Ultimately, he examines and discusses the various solutions that have been increasingly bandied about, such as term limits, court packing, etc with an excellent and objective presentation of their assorted strengths and weaknesses. The only real solution, as he makes abundantly clear, is the revitalization of Congress, of course, and a judicial system intent upon preserving individual liberty against the increasing encroachment of government. Let's hope that happens. Meanwhile, this is a worthwhile, indeed necessary, book - enjoyable, educational and compelling.
The modern era essentially began in 1968 with the Bork nomination. Shapiro dissects the Bork nomination fairly and objectively - there were mistakes, fault and blame of varying degrees and differing magnitude on both sides, but the character assassination of Judge Bork was unprecedented, at least in 1968. It was a harbinger of worse to come (Thomas, Kavanaugh) and Shapiro examines each in some detail. Shapiro is a deft and perceptive observer with a gift for clear, compelling writing. Ultimately, he examines and discusses the various solutions that have been increasingly bandied about, such as term limits, court packing, etc with an excellent and objective presentation of their assorted strengths and weaknesses. The only real solution, as he makes abundantly clear, is the revitalization of Congress, of course, and a judicial system intent upon preserving individual liberty against the increasing encroachment of government. Let's hope that happens. Meanwhile, this is a worthwhile, indeed necessary, book - enjoyable, educational and compelling.
April 5, 2021
This starts as a history of US Supreme Court nominations, and ends with the author's recommendations in light of that history. The author's a libertarian-leaning-conservative law professor from the Volokh Conspiracy law blog, and his political leanings show in both sections. I didn't mind it as such - though I thought his recounting of the Gorsuch and Kavanaugh nominations (the book was published before the Barrett nomination) would've benefited from more interaction with the opposing perspective. I generally agree with his recommendations, including (sadly) his observation that nominations won't become uncontroversial until the Supreme Court becomes less powerful in modern politics - which probably means a less powerful federal government.
But, how are we to dismantle the modern administrative state and return power to the states? Or, how are we to get both political factions to agree on one general interpretation of the Constitution? And, until we accomplish these goals, what shall we do about the Supreme Court we have now? These questions would probably take another book - but Shapiro's book leaves me wanting that book.
But, how are we to dismantle the modern administrative state and return power to the states? Or, how are we to get both political factions to agree on one general interpretation of the Constitution? And, until we accomplish these goals, what shall we do about the Supreme Court we have now? These questions would probably take another book - but Shapiro's book leaves me wanting that book.
March 23, 2023
Enjoyed this book as it is not a topic that I know a lot about. Interesting history and analysis of key Supreme Court cases over U.S. history. Kinda sad, but predictable, that the appointment of justices has become such a politicized witch hunt with total polarization on party lines. I feel well informed now to watch these topics in the news going forward. p.s. While it did take 1.5 years to read this book that's because I thought I lost it and then found it in luggage when I pulled it out to pack for Spring Break!
April 21, 2024
I thought this had really concise writing, but I would have rather heard the history of certain courts more. Most mentions of court cases only got a paragraph. I would have liked to hear about Andrew Johnson and John Tyler's failures getting nominations, the Four Horsemen/Three Musketeers cases and LBJ's corrupt nominees more.
June 16, 2022
A thorough review of the roll of advice and consent
This book and its audio companion do a great job of reviewing the legitimacy of the Supreme Court through the appointment of judges. The only unfortunate part of this book is that it only covers through 2018.
This book and its audio companion do a great job of reviewing the legitimacy of the Supreme Court through the appointment of judges. The only unfortunate part of this book is that it only covers through 2018.
July 4, 2022
Beginning with a look back at the history of Supreme Court judicial nominations and confirmations, it becomes clear that the process has always been very political. However, for a number of reasons, the situation is much different than in the past. Very informative and readable. 4 stars
April 15, 2024
Interesting and timely survey of our court system. History of courts: how configured? Issues that challenged the court’s reputation, how courts try to achieve legitimacy, both sides of the arguments on significant issues
February 20, 2025
Engaging summary of the history of Supreme Court confirmation battles that helps to contextualize current debates. The section at the end discussing proposals was a little light/underdeveloped though.
October 23, 2021
Insightful of our judicious system politics. Very well researched. Captivating book on otherwise dry subject.
April 6, 2025
Excellent survey of the history of the Supreme Court, analysis of where we are today and ideas (not his) on how to fix it. Will probably reread someday.
March 20, 2024
5 ⭐️ What a good read!!
January 13, 2024
This is the rare instance where I wish I could give a book 3.5 stars. The content was very informative, & I appreciated that he offered solutions at the end. However, I took issue with his sentence structure. At times, I had trouble reading because he used so many unnecessary clauses sprinkled throughout his sentences. I understood what he was trying to say, but without good sentence flow, his individual ideas lack clarity.
Displaying 1 - 25 of 25 reviews