This book argues that, for almost fifty years, the Supreme Court has been overreaching its Constitutional role, increasing its power at the expense of elected officials in Congress and state legislatures. The author believes this trend began with Roe v. Wade in 1973. The Court's ruling in Roe was based on an inferred right to privacy that does not explicitly appear in the Constitution. Since the, the author argues, the Court has carried the scope of its decisions further and further, and has been more and more willing to strike down laws enacted by legislative bodies. The fact that the author cites Roe as the beginning of this process might suggest a conservative bias. On the contrary, most of the cases cited as examples of overreach had a conservative majority. The author's quarrel with the Court goes beyond right and left, though he is profoundly troubled by the politicization of the court. What he's really concerned about is the appropriate balance of power among our three branches of government.

The first part of the book discusses the current justices of the Court, with something of a focus on their confirmation hearings. This illustrates very clearly the politicization of the Court, and contains a lot of interesting (and even entertaining) information. The second part is more substantive. In it, the author focusses on a series of key cases, discussing the issues involved and the overreach involved.

A lot of what the author has to say makes sense. The Court has surely become more politicized, and has surely stepped in to several issues that might have been better left to Congress, or to the states. But is this the "fault" of the Court, or is it an inevitable result of political polarization, which has compromised the legislative process? I'm not a lawyer, and may not fully appreciate the author's arguments, but I was not entirely convinced.

The book is an interesting read, though not an easy one. Some legal terms and issues are less than fully clarified, and it can be difficult to keep track of specific arguments when a number of case are cited. Still, I learned a lot from this book, and would recommend it to those who want to know more about the Supreme Court. ( )

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 ( )

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. ( )