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The Most Dangerous Branch: Inside the Supreme Court's Assault on the Constitution
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Audible Audiobook
Listening Length: 16 hours and 35 minutes
Program Type: Audiobook
Version: Unabridged
Publisher: Random House Audio
Audible.com Release Date: September 4, 2018
Language: English, English
ASIN: B07FTLPXR3
Amazon Best Sellers Rank:
The Republicans have controlled the Supreme Court for the past fifty years. Abraham Lincoln was the first Republican president. There have been twenty-nine presidents since then but only nine have been Democrats. Of course, the Republican Party has changed a lot since the days of Lincoln. In recent years it has gone way to the right.The book is well written and researched. Kaplan had many interviews with the Justices and their law clerks as well as reviewed the archives. Kaplan provides an overview of the Court and the role between executive, legislative and judicial. Most of the book covers Justices and the Court of the past few years. He describes how Gorsuch has changed the Court and the retirement of Kennedy. The book is not unbiased even though Kaplan points out the failures of the liberal wing. Kaplan attempts to build a case that the Court has exceeded its role and the legislature has failed to do its job. I was surprised to discover that Kaplan discussed Kavanaugh as a potential to replace Kennedy and how that would affect the make-up of the Court. Kaplan is a journalist and the book is written in that style. It is very easy to read for a lay person. I thoroughly enjoyed reading the book and learning about the current Court. I had this book on preorder from Amazon and it was released and arrived on my iPad Kindle app on the first day of the Kavanaugh hearings. My, what timing! The book is 464 pages and I read it as an e-book.
This is a substantial analysis of essentially the Roberts Court (2005 to the present), although the author sometimes dips back into earlier history to discuss a point. It is divided into two parts: Characters and Cases. The author's primary thesis is that the Court has been too active in too many different areas and usurped the prerogatives of the other two branches, especially Congress, thereby imperiling American democracy. The heroes of the book are not any of the current justices particularly, but essentially the great scholars and judges of the past who argued for a more restrained Court. These individuals include Justices Holmes, Frankfurter and Brandeis, Learned Hand, as well as especially the late scholar Alexander Bickel (especially his "The Least Dangerous Branch").The individual portraits of the Justices enable the reader to appreciate their individual personalities and how they interact together. The author is critical of several of the Justices: Gorsuch, Roberts, and especially Kennedy who gets a lot of critical attention. This is because for many key years, Kennedy was the swing vote shifting back and forth between the conservative and liberal "flanks" of Justices. The author is unsparing in criticizing Kennedy for lustfully embracing opportunities to plunge into new areas such as the 1965 Voting Rights Act and gay marriage. I was surprised to see that the author has not jumped onto the Justice Ginsberg bandwagon, despite her positive reviews from the press and in other books. Scalia as well does not play a prominent role in the author's assessment. His evaluations of Breyer and Kagan are positive, seeing Breyer as focusing on the functioning of democratic government while Kagan is interested in doctrinaire arguments.Things get really interesting when the author discusses individual cases in the second part of the book. His chapter on the "Sleeping Giant" is a useful compact history of the major trends in the Court's history. The author's primary yardstick for evaluating cases if whether he believes the Court should even have taken them on for decision. For example, he is almost livid in attacking Roe v. Wade, which "snubbed" state legislatures and ever after has generated intense hostility toward the Court. The greatest self-inflicted wound is Bush v. Gore, where the Court ignored a controlling Congressional statute in order to rule the day. Next in line are the Heller second amendment decision, the 1965 Voting Rights Act case, Citizens United's take on the campaign finance laws, and the gay marriage decision. All these decisions, in the author's opinion, involved the Court rushing into areas where it really had no business or need to intervene. The Court has invaded these areas because it could, and there is no indication that the Court will not continue this undermining of democracy in the future. Obviously, some readers will surely disagree that some of these cases were ill-advised and unnecessary for decision.The epilogue is interesting for the author's observations about Roberts' role in the Obamacare decision and the revival of the Commerce Clause as a restraint on federal power. The narrative is supported by 42 pages of notes, a table of cases, and an index. Whether or not you agree with the author's overwhelming thesis, a reader will learn a good deal about the Court from this volume. It is especially gratifying for me to see Alex Bickel resume the spotlight (he died far too young in 1974), and perhaps he can once again sharpen our judgments about the Court.
The best part of this book is the intimate gossip that the author has accumulated over the years covering the Supreme Court. There are cute stories about justices and clerks, mostly emphasizing their human sides rather than their legal perspectives. The author sketches the details gracefully, although to my taste he goes too far in telling the reader what to think about the accounts; he rarely lets his subjects speak for themselves without his personal clarifications and comments.Unfortunately for the author, Justice Kennedy announced his retirement after my review copy was completed. There is a rushed discussion in the final chapter about what might happen if Kennedy retires, this may well be corrected and expanded by publication time. But unless there is substantial rewriting, the book will be out of date upon delivery.The title and subtitle of the book are misleading. Only in a partisan introduction does the author address the danger posed by the Supreme Court or accuse anyone of assaulting the Constitution. The section is not convincing as the author does not summarize competing views fairly, nor offer a coherent one of his own. Many of the decisions he likes were clearly activist, and many of the ones he opposes were deferential.He fails to distinguish between key civil liberties and cases that generate tweet storms in the culture wars, but aren't of high practical importance. His summary of history is superficial and romanticized, his current account colored by his political preferences. He dismisses major schools of Constitutional legal thought with brusque denials, and presents only the vaguest alternatives.Fortunately, this overheated op-ed rant is limited to the first dozen pages or so, and even that has a few good stories in it. Once the author switches from argument to illustration, the tone and style improve.Overall I recommend this book to readers interested in the day-to-day life of the Supreme Court justices, mainly in the Obama years. It's mildly entertaining to read. It won't give much insight into historical importance or legal theory, just the people who are making the history and theory.
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