Deborah Pearlstein is a professor of law and co-director of the Floersheimer Center for Constitutional Democracy at Yeshiva University’s Cardozo School of Law.
If the confirmation of Brett Kavanaugh to the Supreme Court — and the brutal Senate fight preceding it — raised fears that the court may be sliding toward alarming partisanship, David Kaplan has some news for us all. The court, in his view, lost its legitimacy as an apolitical arbiter of the nation’s most important constitutional disputes long ago.
In his book “The Most Dangerous Branch,” Kaplan describes the American system of government as providing a distinctly limited role for the unelected members of the Supreme Court. The justices could properly weigh in to interpret only rights made explicit in the text of the Constitution, such as Fourth Amendment protections from unreasonable searches and seizures. The court could also step in to protect the rights of minorities, for the Constitution’s framers recognized that the popular will could not always be trusted to safeguard the basic rights of a disfavored group. And the court could intervene to make sure that the crucial processes of democracy, such as voting and elections, were running smoothly. Beyond that, Kaplan maintains, all other questions of public debate were to be left to the rough and tumble of electoral politics. In key respects, Kaplan’s portrayal of the court’s role conflicts with the view of many scholars of the court and the Constitution.
Kaplan argues that the Supreme Court remained within the limits he outlines, with few exceptions, for much of its history, until its 1973 ruling in Roe v. Wade. In that case, Kaplan contends, the justices got fully into the business of recognizing individual rights that are not explicitly listed in the Constitution, without logically or persuasively explaining why the Constitution should be read to protect a right to abortion. “Roe v. Wade . . . was an inflection point for the Court,” Kaplan writes, “when the justices needlessly placed themselves in the middle of a matter best left to the democratically accountable branches.”
In Kaplan’s telling, Roe radicalized Republicans who began to view the court as a political institution and the justices’ seats as political prizes. After Roe, the court became a forum for partisan battles in the guise of constitutional law questions. The justices — selected through an increasingly partisan confirmation process — were only too happy to take on the cases. Kaplan explains that the result is the kind of court we have today, where justices decide politically fraught disputes along partisan lines on the basis of legal reasoning that amounts to little more than political preference.
To build his case, Kaplan devotes the first half of the book to illustrating the political theater of recent confirmation hearings. He provides minor anecdotes intended to reveal the healthy egos of the men and women on the current court. Many of the stories of lunchtime chats among the justices and their clerks are too slight to convey meaningful insights. Still, for a court where a figure like Justice Hugo “Ego” Black served for more than three decades, it is not hard to believe that modesty is an elusive trait.
The book’s latter half provides the bulk of Kaplan’s argument, focusing on a handful of the Supreme Court’s most controversial decisions since Roe — from Bush v. Gore to Citizens United — to show 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 small set of high-profile 5-to-4 opinions Kaplan highlights are deserving targets. The ill-defined constitutional basis for the right to abortion set forth in Roe has earned criticism even from Justice Ruth Bader Ginsburg, who is otherwise a great defender of abortion rights. Likewise, Justice Anthony Kennedy’s more recent opinion recognizing a constitutional right to same-sex marriage was faulted by scholars of both parties, who argued that he failed to make clear where in the Constitution or case law he found the constitutional right to “equal dignity” on which the marriage right was based. Just as damning are Kaplan’s legal critiques of recent decisions gutting Voting Rights Act protections for minority voters (notwithstanding Congress’s overwhelmingly bipartisan endorsement of the law) and anti-corruption laws regulating campaign finance (regulations that had also won bipartisan support). In all of these cases, the justices struck down popular, democratically enacted laws not because the Constitution or the court’s prior cases required it but because, as Kaplan argues, the five justices in the majority didn’t like what those laws did.
Yet the story Kaplan presents here — that a “runaway court” has wrongly seized power from elected legislatures and thereby “squandered its institutional capital” — is easier to argue than to prove. Even setting aside his contested view of the court’s proper role, his attack on the Supreme Court’s recent behavior is hard to credit on his own terms. Accepting, as Kaplan does, that the court has some role to play in policing laws that harm minority or disadvantaged populations, cases involving gay rights and even reproductive freedoms seem quite plausibly within the proper realm of judicial concern. Likewise, cases on campaign finance and voting rights squarely address questions related to preserving democratic processes, an area that Kaplan also believes falls within the court’s purview. It is certainly possible to criticize the outcomes in these cases and the logic of the opinions the justices produced. But those complaints are different from Kaplan’s claim that the court acted in a constitutionally illegitimate way in engaging the cases at all.
Equally problematic, it is far from clear that public perception of the court has suffered over time because of its decisions, as Kaplan contends. On the contrary, Gallup polling showed that public confidence in the Supreme Court generally rose in the 15 years after Roe v. Wade. And while more recent polling shows that confidence in the court on average fell somewhat in the past decade from the previous decade (though it has ticked up again since 2016), there is no indication that such movements in overall confidence correlate with Bush v. Gore, Citizens United or any particular case. It is especially tough to show that Roe marked a significant turning point in the nature of Senate confirmation hearings; President Gerald Ford’s 1975 nominee, John Paul Stevens, wasn’t asked a single question about Roe .
The greater puzzle for all of us is why, given its long history of politically divisive action, the court has maintained its public approval. A partial answer may lie in one of the book’s early anecdotes, recounting the death of Justice Antonin Scalia at a vacation ranch in Texas. When the sheriff arrived at the ranch, he asked: “What’s his name again?” On hearing the name, he asked again, “Who is he?” Scalia’s friends explained for the third time that he was a justice on the Supreme Court of the United States. “Is that in Texas?” the sheriff asked.
That sheriff is far from alone. The public has long demonstrated a profound inattention to the court, which, in a perverse way, may have helped to protect us all from the consequences of what a real loss of public faith would mean. That’s part of why the Kavanaugh hearings were so momentous. That they attracted a huge television audience may suggest a small step toward judicial literacy in America. But, if so, it comes with a warning. We still live in a country where people — and presidents — regularly comply with Supreme Court rulings. The court has no army of its own; people comply because it’s the normal thing to do. But norms can change. In the past, the Senate Judiciary Committee made Supreme Court nominees’ professional papers available to its members for review, and nominees refrained from partisan attack. Those Senate norms proved surprisingly fragile. We can only hope that the norms that sustain the court are more enduring.
By David A. Kaplan
Crown. 464 pp. $30