The Most Dangerous Branch: Inside the Supreme Court in the Age of Trump

by David A. Kaplan

vote. Sometimes he was with the four liberal justices; often he was with the four most conservative justices.

The sky may actually be falling this time. But part of the reason is that we’ve come to accept the enrobed justices as our own Jedi High Council: Help us, Obi-Wan, you’re our only hope. They are not.

That’s where the tale of today’s Supreme Court—the Trump Court—begins.

When the Court anoints itself as arbiter, the winning side exalts the justices’ courage. The losers holler about “an imperial judiciary” who are just politicians in fine robes. 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.

literalism became fashionable, Justice Oliver Wendell Holmes Jr. noted: “A word is not a crystal, transparent and unchanged. It is the skin of a living thought, and may vary greatly in color and content according to the circumstances and the time in which it is used.”

Justices, like most of us, tend to find what they’re looking for, which is why most justices appointed to the Court in recent years have cast predictable votes—in line with what their presidential patrons hoped for. That’s not because justices are political sycophants—they’re merely human.

Constitutional clauses aren’t lines of computer code.

The best jurists, as Breyer has described them, chose neither the “willful” nor the “wooden” approach, but rather “an attitude that hesitates to rely upon any single theory or grand view of law, of interpretation, or of the Constitution.” It is a style and an ethos that has been embraced along the way, in differing degrees, by many legendary justices, including Holmes and Louis D. Brandeis in the early 20th century, and Felix Frankfurter and John Marshall Harlan II in the mid-20th century. More recently, Lewis F. Powell Jr., Sandra Day O’Connor and David Souter espoused no overarching method, yet they generally displayed deference to other branches, as well as a lot of common sense.

“If you have five votes here, you can do anything,” Brennan so often liked to say, with a wide smile and holding up all the fingers on his left hand.

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.

“If [the people] don’t like what we’re doing,” he said during the same C-SPAN program, “it’s more or less just too bad.” Alito went so far as to say the Court’s work was “objective.”

The triumphalism of the Court—its eagerness to be in the vortex of political disputes, its wholesale lack of deference to other constitutional actors—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.

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

“immutable principles protecting our liberties,”

course it is the president who can initiate nuclear war and commit troops in faraway lands. Congress can pass laws that cater to donors and other special interests. But the steady institutional self-aggrandizement by the justices in recent decades is more insidious, more potentially destructive of American values in the long term.

Visitors to the Supreme Court instinctively whisper. Among the other rules during arguments: No arms extending out to other seats.

That’s why Ruth Bader Ginsburg was upbraided in the summer of 2016 for giving interviews that questioned the temperament of presidential candidate Donald Trump. Two justices, astounded, privately suggested she knock it off.

“the marble palace”—which

Louis Brandeis, according to his law clerk Dean Acheson, concluded that the new building would only increase the pomposity of its occupants.

For all his ideological fury, he was everybody’s favorite conversationalist. As long as it wasn’t at oral argument, which he often hogged, it was Scalia you wanted in the room for fun.

disagreed. The prior year, for example, Roberts had voted to uphold Obamacare for a second time; Scalia, in dissent, deemed Roberts’s reasoning to be “interpretive jiggery-pokery,” “quite absurd,” and best of all, “pure applesauce.”

“Our man for all seasons” was a reference to Sir Thomas More. Scalia’s desk at the Court included a portrait of More, the British martyr (and a patron saint of lawyers) executed in 1535 for refusing to recognize Henry VIII as head of the brand-new Church of England. Often alone in acerbic dissent on social issues that came before the Court, Scalia fancied himself a martyr of sorts, too.

Chevron deference meant that courts had to follow an agency’s interpretation of an ambiguously worded statute, as long as the interpretation was reasonable.

Trump’s team in the White House, especially chief strategist Stephen Bannon while he was there, had made “deconstructing the administrative state” a priority, even if the phrase didn’t make the president’s Twitter feed.

If Chevron could be undercut, the structure of American government dating to the New Deal might be undone with it. That was the great dream for Bannon, as well as for Don McGahn, the chief lawyer for Trump’s presidential bid (and then White House counsel). More than Roe v. Wade, it was Chevron that sophisticates in the conservative legal movement most wanted the Court to overrule.

test. (The critique of Chevron didn’t necessarily hold together. In a Chevron-less world, power would merely shift from federal agencies to federal courts.)

“Executive bureaucracies” could “swallow huge amounts of core judicial and legislative power, and concentrate federal power in a way that seems more than a little difficult to square with the Constitution,” he said. “Maybe the time has come to face the behemoth.”

Later, when Gorsuch became a finalist for the Court, his opinion on Chevron deference proved decisive in clinching the nomination. Trump didn’t read the opinion, but his advisers did—and they told the president it was the reason to choose Gorsuch.

Conservatives had the habit of claiming that bureaucracies “robbed Americans of their democratic prerogatives.” But it was the democratically elected legislature that had established the bureaucracies. Did congressional irresponsibility—if that’s what it was—constitute a violation of the Constitution that demanded the Supreme Court to intervene?

In Gorsuch’s mind, second-guessing the other, coequal branches of government was an entirely legitimate role for the judiciary.

part. He understood exquisitely well that, should he ever be considered for the Supreme Court, the book would be noticed. In a nuanced disquisition on assisted suicide and euthanasia—issues that had receded from vehement public debate—he had provided a proxy for a novel, extreme way to think about abortion.

“American liberals have become addicted to the courtroom, relying on judges and lawyers rather than elected leaders and the ballot box, as the primary means of effecting their social agenda,” he wrote in the conservative National Review. “This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In the legislative arena, especially when the country is closely divided, compromises tend to be the rule [of] the day. But when judges rule this or that policy unconstitutional, there’s little room for compromise: One side must win, the other must lose.”

All smart, sturdy points. But why did Gorsuch see this as a liberal phenomenon? His piece mentioned “liberals” eight times and “conservatives” not once. Weren’t conservatives likewise “addicted to the courtroom,” “relying on judges and lawyers” to try to overturn legislative “compromises” that had been reached by “elected leaders” on such tempestuous matters as voting rights and gun control?

Founded in 1982 during the Reagan administration, “FedSoc” at first sought to counter the perceived liberal hegemony at American law schools. When he was a law professor at the University of Chicago, before becoming a lower-court judge, Scalia was the faculty adviser for the local FedSoc chapter; Robert Bork, subsequently an unsuccessful Reagan nominee to the Court, was the adviser at Yale. The organization provided a platform for debate and eventually advocacy about state sovereignty, property rights, the Second Amendment, and campaign finance regulation.

Trump at McGahn’s law firm in downtown D.C. “Be ready with some names of nominees,” he told Leo.

Obamacare). “I think he just made it up!” Trump said of Roberts’s determining vote in the 5-to-4 ruling that found Obamacare to be constitutional.

“Nobody knows me in this area and people want to know what I’d do,” Trump replied. “I want judges who will interpret the law, not make it up. I want judges who are respected. And I want them to be strong—not weak.”

Though he came to see vividly in his presidency how maddening democracy could be, Obama believed it—rather than litigation—offered the best hope for justice. “We are confident in the fundamental soundness of the Founders’ blueprints and the democratic house that resulted,” he wrote in The Audacity of Hope. “Conservative or liberal, we are all constitutionalists.”

It was true, as Republicans were quick to bleat, that a generation earlier Joe Biden, then the Democratic head of the Senate Judiciary Committee, had intimated doing the same thing. If a Court vacancy occurred in the last five months of George H.W. Bush’s term, Biden declared in 1992, the Senate “should seriously consider not scheduling confirmation hearings” until “after the political campaign season is over.”

McConnell’s decision to block Obama’s selection of

Garland was a gambit, given the disarray in the 2016 Republican presidential contest. McConnell also had to worry the public would see it as obstinacy that went too far. But the judgment panned out.

The GOP’s defense gave even sophistry a bad name. McConnell’s rationalization, deplorably though predictably unchallenged by his GOP colleagues, that “the American people should have a voice in the selection of their next Supreme Court justice” was fatuous.

Then Trump won the White House and the GOP retained control of the Senate. McConnell’s realpolitik had paid off.

Bork argued that American judges were captives of “a liberal elite” that had seized unto itself the authority to determine national policy on social issues. Whether on abortion or a larger right to privacy—or, most jarringly, racial equality—he said the judicial “intelligentsia” was imposing its own morals on the country in a way the Constitution never imagined.

It used to be that credentials were more the point. In 1932, when Oliver Wendell Holmes Jr. retired, President Herbert Hoover nominated Benjamin Cardozo, widely thought to be the finest judge in the country. Hoover was a Republican; Cardozo, a Democrat. “Seldom, if ever, in the history of the Court has an appointment been so universally commended,” the New York Times reported on its front page.

Until Bork, contentious confirmation hearings were rare. Before 1925, nominees didn’t even appear before a Senate committee.

In the constant tit-for-tat of Washington, Republicans and Democrats have certainly contributed to the pathology. The principle of retaliation isn’t a particularly sustainable way to govern, but in the short term the combatants seemed to have little choice.

In the post-Bork era, mainly because of him, confirmation hearings became a farce.