The Most Dangerous Branch

Inside the Supreme Court in the Age of Trump
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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.

Never before has the Court been more central in American life. It is now the nine justices who too often decide the biggest 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 newest justice, Brett Kavanaugh—replacing Anthony Kennedy—is even more important, holding the swing vote over so much social policy. With the 2020 campaign underway, and with two justices in their ’80s, the Court looms even larger. Is that really how democracy is supposed to work?

Based on exclusive interviews with the justices, Kaplan provides fresh details about life behind the scenes at the Court: the reaction to Kavanaugh’s controversial arrival, the new role for Chief Justice John Roberts, Clarence Thomas's simmering rage, Antonin Scalia's death, Ruth Bader Ginsburg's celebrity, Breyer Bingo, and the petty feuding between Gorsuch and the chief justice.

Kaplan offers a sweeping narrative of the justices’ aggrandizement of power over the decades—from Roe v. Wade to Bush v. Gore to Citizens United. (He also faults the Court for not getting involved when it should—for example, to limit partisan gerrymandering.) 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, as well as presenting an intimate inside look at the Court, The Most Dangerous Branch is sure to rile both sides of the political aisle.

Praise

“If Brett Kavanaugh’s Supreme Court confirmation hearings have inspired you to dig deeper into the intricacies of the nation’s highest court, look no further than a new book devoted to the subject… Kaplan writes in an engaging fashion throughout this detailed book…The Most Dangerous Branch couldn’t be better.”
–Associated Press

“Show[s] how the justices take and rule on cases that they have, in Kaplan’s view, no legitimate role in deciding, and on the basis of legal reasoning that only barely masks partisan goals.  The high-profile 5-to-4 opinions Kaplan highlights are deserving targets.”
—The Washington Post

“Persuasively argu(es) that the court has lost its bearings. . . engaging, gossipy and often highly critical. . . [Kaplan] takes readers through a scathing tour of recent Supreme Court decisions. . .  A passionately argued and credible indictment of the court.”
–Publisher's Weekly

“Describe(s) the behind the scenes dealing that led to the appointment of the sitting Supreme Court . . . Presented at a level of granularity with which you may not be familiar.  It makes for engaging, if not reassuring, reading.” 
–NPR.org

“Kaplan’s critique of judicial power will resonate with the court’s critics on both right and left.”’
The Wall Street Journal

"Reminiscent of The Brethren…"
The National Law Journal

“An informed discussion of a serious issue.”
—Kirkus Reviews

“An amazing amount of reporting about conversations and politics inside the Court”
—Washington Free Beacon

“Incredible.”
First Mondays podcast (in partnership with ScotusBlog)

"A fascinating book."
–CBS Morning News

“A fascinating look at the Court during one of its most important, and divisive, eras... a perfect primer for helping Americans understand how members of the court came to justify their excessive involvement in various controversial issues"
The Christian Science Monitor 

“David Kaplan has an inquiring mind and a lively style. He also has some incredible sources inside the Court who have helped him open a window on the inner workings of the most opaque branch of our government. At a moment when the Court’s future hangs in the balance because of the retirement of Justice Kennedy, this book is important, even urgent (and it has plenty of dish, too).”
–DANIEL OKRENT
author of Last Call: The Rise and Fall of Prohibition
 
“This is a book for our times. As the Supreme Court has become a focus of elections, confirmation battles and partisan decisions, The Most Dangerous Branch tells the story, in a compelling way, of the “triumphalism” of the justices, both liberal and conservative. It warns against the increasing power of what was supposed to be the least dangerous branch—nine unelected judges who allocate to themselves decision-making authority over issues that should be left to the elected branches. Read it and start worrying. Then demand change.”
–ALAN DERSHOWITZ
Professor Emeritus at Harvard Law School and Author of The Case Against Impeaching Trump
 
 
“David Kaplan mixes the gifts of a colorful storyteller with the incisiveness of a first-class legal brief. Read this book for an original argument on a judicial power grab and to find out why Neil Gorsuch is ‘like an eight-year-old in a counter-revolutionary candy store.’”
–JONATHAN ALTER
author of The Center Holds: Obama and His Enemies
 
 
“Unafraid of the controversy he will certainly create, David Kaplan has written an important and provocative book about our nation’s least understood, and yet enormously powerful, branch of government. It’s a book that every citizen should read.”
–DAVID BOIES
Chairman, Boies Schiller Flexner and Author of Courting Justice
 
 
“With the voice of a gifted narrator and the insight of a relentless journalist, Kaplan lifts the veil on the Supreme Court. Through intimate portraits of the nine justices, explorations of their most consequential decisions, and a cinematic portrayal of the Court's central role in our politics, Kaplan makes a compelling case that the other branches have acquiesced to the Court’s power – and that the Court is indeed The Most Dangerous Branch.”
–DANNY STRONG
Co-creator of Empire; Screenwriter for Recount, Game Change, The Butler
 
 
“Kaplan spares the feelings of neither liberals nor conservatives in this provocative and timely account of how the Supreme Court evolved into something the founders wouldn’t recognize.”
–H.W. BRANDS
Jack S. Blanton Chair in History at the University of Texas at Austin, and author of Traitor to His Class and Reagan: The Life

Excerpt

EXCERPT FROM THE MOST DANGEROUS BRANCH:
WE’RE ALL JUDICIAL ACTIVISTS NOW
 
In our constitutional system, the justices of the Supreme Court are deities, announcing the law of the land from on high. And while liberals and conservatives disagree about desired results, they are indistinguishable in their view about that primacy. Asked about the premise of my book, The Most Dangerous Branch—that the Court, in case after big case, too often acts when it should not—a liberal justice and a conservative each gave the same answer: “I half-agree with you!”*
 
Distrustful of popular will when it’s inconvenient, litigants from both sides of the ideological aisle rush to the Court to prosecute grievances or to claim perceived rights that eluded them in Congress (and in state legislatures). Abortion, gun control, campaign finance, gay marriage—these are among the difficult issues that the Court chooses to resolve. So we don’t bother to fight them in elections —the results of which can be overturned the following November—when a victory in the Supreme Court can cement an outcome for a lifetime? Why attempt to persuade millions of citizens to endorse a position when all you need is five of nine unaccountable justices? Each time demonstrators convene outside the Court, they surely miss the irony that they’re marching right past the Capitol across the street.
 
When the Court anoints itself as arbiter, the winning side exalts the courage of the justices. The losers holler about “an imperial judiciary.” What exactly is the difference between “making the law” and “interpreting the law”? It’s merely about whether you like the way the justices voted in today’s case. We all favor “judicial restraint” and oppose “judicial activism”—except, naturally, when we don’t, in which case we just call them by the opposite label. “Judicial restraint”—and its cousin, “strict construction” of the Constitution— are the chameleons of American law, instantly able to change philosophical color when expediency requires. “Judicial activism” is what the other guy does. But in truth, everybody’s an activist now.
 
The corrosive result is twofold: an arrogant Court and an enfeebled Congress that rarely is willing to tackle the toughest issues. Each feeds on the other. The justices frequently step in because they believe the members of Congress—elected by the people though they may be—act like fools or, like cowards, fail to act. Happy to stay off the battlefield, Congress seldom raises a peep, other than to crowd the cameras during occasional Senate confirmation hearings on a new justice. The result is dwindling public faith in both institutions.
 
The triumphalism of the Court—its eagerness to be in the vortex of social and political disputes, its wholesale lack of deference to the other branches of government—explains in part the cynical uses to which it has been subjected by presidents and senators. That cynicism, masquerading as “fidelity to the rule of law,” is understandable. But the Court’s drop in standing among the public in recent decades—the reason opinion surveys and mainstream commentary have so often reflected an attitude that the justices are partisans-in-robes—is a mostly self-inflicted wound. Forget the robes—maybe the job should come with tights and a cape.
 
That reflects not a liberal or conservative sentiment, but a growing conviction that the Court has squandered its institutional capital. It is altogether possible to be politically liberal and to oppose an aggressive Court. It is entirely consistent to be politically conservative and to oppose an aggressive Court. Political ends do not justify judicial means.
 
Under Chief Justice John G. Roberts Jr., there is a now-ascendant conservative “bloc” of justices, appointed by Republicans, and there is a liberal “bloc,” appointed by Democrats. The tendency toward viewing judges as political proxies has only accelerated during the Trump presidency.  When journalists write about a justice, they routinely include the party of the president who appointed the justice—as if members of the Court were little different than stand-ins at the Department of Agriculture. When the votes of justices in controversial cases can be predicted at the outset, constitutional law simply becomes partisan politics by another name. If you usually know beforehand how justices will come out—and if it’s a function of the political party of the president who appointed them—why have a Court at all?
 
A month before the Constitution was ratified in 1788, Alexander Hamilton explained the source of the new Court’s authority. The other branches—and the people—would obey the Court because of its prestige. Rulings would be based “neither on force nor will, but merely judgment,” he wrote in Federalist No. 78. The Court lacked infantry and warships. It had no source of revenue except what Congress gave it. By Hamilton’s reckoning, whereas the president “holds the sword” and Congress “commands the purse,” the U.S. Supreme Court would be “the least dangerous branch.”
 
That’s no longer so. We know that Congress can pass unwise laws. We’ve come to realize that a president can initiate foolish wars, abuse his executive authority, and spread lies. But the Supreme Court’s power grab in recent decades is more insidious, more destructive of American values in the long term. Impatiently, myopically, with deep distrust in our elected representatives, we have come to believe democracy is broken. And too often we’ve come to see the justices as our saviors. With so much dysfunction in government, the justices see themselves that way, too. But we need more politics, not less politics. We do not need, nor should we want, the court to save us from ourselves.
 
Adapted from THE MOST DANGEROUS BRANCH: INSIDE THE SUPREME COURT’S ASSAULT ON THE CONSTITUTION Copyright © 2018 by David A. Kaplan. Published by Crown Publishers, an imprint of Penguin Random House LLC.

Q & A

A Conversation with David A. Kaplan
Author of
THE MOST DANGEROUS BRANCH
Inside the Supreme Court’s Assault on the Constitution
(Crown; September 4, 2018)

Q) You were the legal affairs editor at Newsweek for a decade. Why did you want to write this book?
A) After Antonin Scalia died in 2016, I kept hearing liberals and conservatives both hollering that “the next justice” could shape social policy “for a generation.” And nobody questioned that power. I aimed to challenge the orthodoxy. Anthony Kennedy’s retirement—just as I finished —made the timing particularly auspicious.

Q) There have been many books about the Court, including some by justices. What sets THE MOST DANGEROUS BRANCH apart?
A) I like to think it challenges the conventional wisdom held by justices, presidents, senators and observers. Plus, I hope the stories in the book offer an intimate look behind the scenes of this most secretive institution.
 
Q) You argue the Court repeatedly overreaches. Can you explain?
A)
The Court often issues rulings that run against popular opinion. That’s part of the job. But too often the justices intervene when they shouldn’t—whether on guns or campaign finance or abortion or same-sex marriage. Though it claims otherwise, the Court lacks institutional humility. It wasn’t always like that.

Q) You interviewed a majority of the current justices and dozens of former law clerks—as well as presidents, White House aides and administration officials. What surprised you?
A) A lot surprised me, which is one of the joys of writing a book. Some items: the chief justice’s indignation in 2016 at attacks on him by Republican candidates; how strongly many justices feel about Gorsuch; how little Trump understands about the Court; who Obama preferred to nominate instead of Merrick Garland; why Sandra Day O’Connor voted as she did in Bush v. Gore; and Clarence Thomas still being really mad.

Q) How do you think Gorsuch compares to Scalia?
A)
He’s mostly as advertised—rock-ribbed conservative and 30 years younger. Trump hopes his newest nominee, Brett Kavanaugh, is like Gorsuch—giving resolute control of the Court to the conservative bloc.
 

Q) You point out how the Court vacancy was a big factor in the 2016 election. What’s the significance?
A) Polls show many voters made their decision based on it. That made total sense—and is precisely the problem I’m trying to describe. It is surely not ideal that voters choose not on a presidential candidate’s character or policy positions, but chiefly on who they think will be nominated to the Court.
 
Q) What do you hope readers take away from the book?
A)
I hope readers will think differently about the Court’s role—and also that they’ll come away knowing more about these important nine individuals. The Court isn’t Olympus and the justices aren’t omniscient rulers.
 
Q) What is the solution for the problem you describe in THE MOST DANGEROUS BRANCH?
A) Ideally, there would be term limits for justices—say, a single 18-year term, staggered so every president gets to nominate. For starters, that would reduce pressure on presidents to name ever-younger justices. But such a change would require a constitutional amendment—which won’t happen. Better to hope a president and Senate someday recognize it is time to begin appointing more deferential, less triumphal justices.
 
Q) Your online bio mentions that several years ago you finished in 5th place out of 13,000 in the tryouts to be the new voice of the Aflac Duck.
A) Initially, I was to write an article on the tryouts. Then it was as much about winning. Alas, I did not. During reporting for this book, I was asked to do the voice in one justice’s chambers. I did. Very undignified!

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