The Most Dangerous Branch: Inside the Supreme Court's Assault on the Constitution

by David A. Kaplan Narrated by Dan Woren

Overview

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.

With the retirement of Justice Anthony Kennedy, the Court has never before been more central in American life. It is the nine justices who too often now decide the controversial 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 next justice—replacing Anthony Kennedy—will be even more important, holding the swing vote over so much social policy. Is that really how democracy is supposed to work?

Based on exclusive interviews with the justices and dozens of their law clerks, Kaplan provides fresh details about life behind the scenes at the Court—Clarence Thomas's simmering rage, Antonin Scalia's death, Ruth Bader Ginsburg's celebrity, Breyer Bingo, the petty feuding between Gorsuch and the chief justice, and what John Roberts thinks of his critics.

Kaplan presents a sweeping narrative of the justices' aggrandizement of power over the decades—from Roe v. Wade to Bush v. Gore to Citizens United, to rulings during the 2017-18 term. 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, The Most Dangerous Branch is sure to rile both sides of the political aisle.

Editorial Reviews

Publishers Weekly

09/10/2018
Kaplan, the former legal affairs editor of Newsweek and a commentator who has appeared on both MSNBC and Fox News, turns constitutional scholar Alex Bickel’s classic 1962 book on the Supreme Court, The Least Dangerous Branch, on its head, persuasively arguing that the court has lost its bearings. Kaplan provides context for his argument with engaging, gossipy, and often highly critical sketches of each of the current justices and their judicial philosophies. His main focus is what he sees as the erosion of the court’s legitimacy, which he traces to Roe v. Wade, the abortion rights case vilified by conservatives and viewed with reverence by liberals. To Kaplan, Roe signified the Court’s willingness to abandon coherent constitutional theory in favor of ideological views in matters “best left for the democratically accountable branches.” He then takes readers through a scathing tour of recent Supreme Court decisions that he believes share Roe’s deficiencies—among them cases on the Second Amendment, the 2000 presidential election, the Voting Rights Act, and campaign finance—whose reasoning he variously describes as “laughable,” “fanciful,” “absurd,” and, most damningly, at odds with democracy. Kaplan’s thesis doesn’t favor either liberal or conservative views, and though readers may not agree with all of Kaplan’s conclusions, they will find this a passionately argued and credible indictment of the court. (Oct.)

From the Publisher

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

Kirkus Reviews

2018-07-16
An appeal for greater judicial restraint from the Supreme Court.Former Newsweek legal affairs editor Kaplan (Mine's Bigger: Tom Perkins and the Making of the Greatest Sailing Machine Ever Built, 2007, etc.) devotes much of the first half of the book to chatty sketches of the biographies and jurisprudence of various Supreme Court justices. These contribute little beyond establishing the author's sympathies with the liberal members of the court and snarky disapproval of the conservatives. He reserves special contempt for Justice Anthony Kennedy, "the Court's metaphysicist-in-residence," whom he sees as embodying a judicial triumphalism that has "made the Supreme Court the most dangerous branch." Kaplan then settles into a tendentious review of several recent landmark cases, starting with Roe v. Wade; though approving the result, he lambasts the decision as not an example of constitutional law at all. This sets the table for a tour of standard liberal bugbears like Bush v. Gore, Citizens United, and Shelby County v. Holder; Kaplan trashes the majority opinions and approvingly quotes at length from the dissents. Still, the author is in pursuit of a serious point. He argues persuasively that, through these decisions, the court has seized control of debates and policies best left to the legislative process, thus damaging its own integrity and our system of democratic government. Worse, it has done so by resurrecting the legal doctrine of substantive due process, thought to have been discredited in the 1930s, which tends to position the court illegitimately as a superlegislature. These developments have unnecessarily politicized the court and poisoned the confirmation process for justices. Ironically, it is often the acerbic Justice Antonin Scalia who makes Kaplan's point best in his dissents in cases like Obergefell v. Hodges which, like Roe, the author disapproves of for consistency's sake.An informed discussion of a serious issue that may be too easily dismissed for its intrusive partisan bias.

Product Details

BN ID:	2940169471649
Publisher:	Penguin Random House
Publication date:	09/04/2018
Edition description:	Unabridged

Read an 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.

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