Washington Lawyer - July/August 2019 - 40

WORTH READING

A CRITICAL LOOK
AT A 'POLITICIZED' COURT
Review by Ronald Goldfarb

he Most Dangerous Branch: Inside the Supreme Court's Assault on the Constitution (2018)
is an engaging book by David Kaplan, a former legal affairs editor at Newsweek who
now teaches at New York University. The book's promo promises behind-the-scenes
stories from the Supreme Court. Readers will expect everything from loner Clarence
Thomas's simmering rage to the implications of Antonin Scalia's death, to Ruth Bader
Ginsburg's celebrity and Sonia Sotomayor's extrovert sociability. And there's Elena
Kagan's "more head than heart" reputation, Stephen "Bingo" Breyer's absentmindedness,
the petty feuding and rocky relationship between Neil Gorsuch and Chief Justice John
Roberts, and the bland Anthony Kennedy as "the radical prototype of triumphalism."

I opened the book presuming that it would challenge the late Alexander Bickel's thesis in Least
Dangerous Branch - that judicial restraint requires
the Supreme Court to follow the will of the people
and Congress, not to impose its views on the
country when it has only the power of moral
suasion to enforce its wisdom. Kaplan complains
that "when the votes of justices in controversial
cases can be predicated at the outset, constitutional
law simply becomes partisan politics by another
name." For his part, Bickel posited that - in contrast
to Justice Scalia and his disciples of originalism and
textualism - "our problems have grown radically
different from those known to the Framers."
Kaplan's book is really two books. The first half is
a juicy read of anecdotal stories about recent
justices. It includes tidbits like Justice Thomas's
pillow embroidered with "Don't emanate in my
penumbra," and the post-Bork Senate confirmation
process.
The second half of the book is a fine analysis of
recent cases where, in Kaplan's opinion, judicial
activism by conservative justices produced questionable results. Ironically, these rulings were based
on earlier jurisprudence that liberal justices used
to rationalize their opinions. This latter section of
Kaplan's book would make a good source for undergraduate and law school constitutional law courses.
Kaplan's distillation of famous cases is scholarly and
very readable.
Kaplan deals with hot-button social issue cases, their
history, and politics. He carefully summarizes complicated, controversial cases - D.C. v. Heller, Roe v.
Wade, Brown v. Board of Education, Citizens United v.
Federal Election Commission, Bush v. Gore, and others

Book cover, courtesy of Crown Publishing

40 WASHINGTON LAWYER

JULY/AUGUST 2019

that address critical questions on civil and political
rights. In so doing, Kaplan combines solid scholarship with accessible, skillful storytelling. He explores
institutional needs, such as Earl Warren's push for
unanimity in Brown and John Roberts's unexpected
reluctance to permit the Court to overturn
Obamacare. He also explains why Bush v. Gore is
a "judicial disgrace," and Roe v. Wade, in his words,
a classic example of "judicial overreach."
* * *
I argued an appeal before the Supreme Court years
ago in a case that asked the Warren Court to reverse
its seven-year-old ruling in a contempt case. The
only difference in the intervening years was two
changes in the Court's membership. My father
came to watch the argument and took offense that
Justice Douglas walked out of the Court in the
middle of my argument. Months later, Douglas
wrote the majority opinion adopting my position,
with the Court reversing 5-4 its earlier 5-4 ruling.
I think of this experience as an explanation for the
conundrum described in Kaplan's book: how the
Supreme Court has, through the ages, gone back
and forth from its positions based on "judicial
activism" and "judicial restraint." According to Kaplan,
it is now politicized, with the justices "supremely
triumphalist ... involving themselves too often and
with too much certitude." His book is a necessary
reminder that the Constitution is, as one scholar
noted, "what the Justices say it is," and not some
omnipresent, immutable, principled truth of
jurisprudence.
Ronald Goldfarb is an attorney, author, and literary
agent in Washington, D.C. Read more of his work at
www.ronaldgoldfarb.com.

http://www.ronaldgoldfarb.com https://www.dcbar.org/

Washington Lawyer - July/August 2019

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