Is The Supreme Court The 'Most Dangerous Branch' Of Government? Author David A. Kaplan warns that the court is becoming increasingly polarized — and influential: "Why should nine unelected, unaccountable judges dictate so much policy in the country?"
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Is The Supreme Court The 'Most Dangerous Branch' Of Government?

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Is The Supreme Court The 'Most Dangerous Branch' Of Government?

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Is The Supreme Court The 'Most Dangerous Branch' Of Government?

Is The Supreme Court The 'Most Dangerous Branch' Of Government?

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Author David A. Kaplan warns that the court is becoming increasingly polarized — and influential: "Why should nine unelected, unaccountable judges dictate so much policy in the country?"

TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. The Supreme Court has changed during the Trump administration. The court now has two Trump appointees - Neil Gorsuch, who replaced the late Antonin Scalia after Mitch McConnell blocked President Obama from choosing Scalia's successor, and Brett Kavanaugh, who replaced Anthony Kennedy after Kennedy retired. Now the chief justice, John Roberts, is also considered the most likely swing vote in a court that has 5 conservative justices. My guest, David A. Kaplan, says the court has reached the point where justices are often seen as political proxies of the Republican or Democratic Party. His new book is about how the court became so politicized and so powerful. It also includes profiles of several of the justices.

The book is based in part on Kaplan's interviews with several of the current justices, as well as past justices, 65 law clerks who worked at the Supreme Court and congressional and White House officials dating back to the Reagan administration. A lot of the interviews were done on the condition that he not name the source. Kaplan is also a former legal affairs editor at Newsweek, where he covered the Supreme Court for a decade. His new book is called "The Most Dangerous Branch: Inside The Supreme Court's Assault On The Constitution."

David A. Kaplan, welcome to FRESH AIR. So one of the main themes of your book is that the court has become so politicized, you can predict how each justice will vote. It's become politics by another name. Elaborate on that idea for us.

DAVID A. KAPLAN: Well, on those hot-button issues like abortion and same-sex marriage and voting rights and gun control and campaign finance, you pretty much know ahead of time where they're going to come out. So the larger question I'm trying to ask in the book is whether the court ought to be as interventionist and as involved in American life as it is. And during, for example, the recent Kavanaugh confirmation hearings, you heard questions about specific issues like abortion or presidential power, but nobody asked whether the court is properly involved in so many of these political and social issues because everyone pretty much assumes that it ought to be.

GROSS: In what sense do you think that the court is overstepping?

KAPLAN: The court's docket is almost entirely discretionary. The justices decide which cases they want to hear. And too often, they choose to hear cases involving issues that I argue would better be left to the political branches. That chiefly means Congress or state legislatures. And they do so for a variety of reasons. But I think the thread that runs through the views of most justices most of the time - and I interviewed a majority of them for this book, I interviewed them on background. I can't indicate which ones I interviewed. That was the terms of the deal. The attitude you get is, if not us, who will do so? Some will look out the window and point to the Capitol and say, look at the dysfunctional Congress. They'll make references, veiled and otherwise, to the presidency these days. And that is a kind of arrogance that is remarkable to me.

I don't recall any part of the Constitution stating that it should be up to the court to decide issues when the other branches don't behave responsibly. You know, I have lots of problems with democracy these days. I don't like all sorts of decisions that are made. I don't like the absence of responsible decision-making. But I guess my book throws in its lot with trusting democracy rather than nine judges so much of the time. And I think we're going to see in coming years, now that the Conservatives have resolute control of the court, you're going to see court power exercised in all kinds of ways.

GROSS: So now that we have a new court, in the sense that we have two Trump appointees on the court, do you think that this court has a certain agenda to it?

KAPLAN: I think this court, like past courts, will have an activist agenda. That doesn't mean conservative or liberal. As such, it means interventionists. But yes, I think this court, with five conservatives and three of them quite resolute, will start looking to overturn federal regulation and federal power generally. If you're a liberal, or if you're someone who's by and large liked what the court has done over the last 50 years, you've got far more important issues to worry about than abortion alone.

GROSS: What are the issues?

KAPLAN: Federal power. I think there is a vast federal administrative state that passes all kinds of regulations, whether it's on securities law, safety in the workplace, clean air, clean water. And the power of those agencies is by and large left alone by Congress. That's a choice by Congress. They could rein in those agencies if they wanted to. And there is a view that that administrative state is one of the reasons the federal government has run amok. And the movement conservatives in this White House - not the social and religious conservatives - their grail is to rein in federal power. They don't care about Roe v. Wade as such. They're perfectly happy to talk about Roe v. Wade to get the support of religious conservatives. But I think in Justice Kavanaugh and Justice Gorsuch, for example, they have a friend in trying to rein in federal power and to use federal courts to say, enough is enough.

GROSS: So when Steve Bannon was in the Trump administration, he talked about the goal of deconstructing the administrative state. And you're saying the Trump administration still has that goal. And in the book, you said that that was a decisive factor in choosing Neil Gorsuch for the bench. What's his record on deconstructing the administrative state?

KAPLAN: He has written extensively as a lower court judge and in speeches and law review articles about doing precisely that. And it is one of his opinions when he was on the lower federal appeals court that most got the attention of the Trump White House. That's what got their attention, not his views on abortion, same-sex marriage or other social issues. And Brett Kavanaugh is not far behind.

I think in those two justices, as well as Justices Thomas and Alito and probably the chief justice, John Roberts, I think you arguably have five votes to overturn what's called Chevron deference, which refers to a decision in the mid-1980s where the Supreme Court said that agencies like the EPA or the Securities and Exchange Commission or OSHA ought to be given a very wide berth in their decision-making. We at the court should defer to those regulations and rulings. I think you will see Chevron deference in great jeopardy.

GROSS: Are there other priorities you think this new court will have?

KAPLAN: I think it is possible that you'll see this court hearken back to the days of the 1930s and 1920s, when the court would strike down what we now regard as garden variety uncontroversial regulation of the workplace and strike it down on First Amendment grounds, on grounds of so-called economic liberty. People forget, but once upon a time, at the turn of the century, and for the next 30 years, the Supreme Court struck down minimum wage laws and maximum hour laws, regulations concerning workplace safety. They did so in the name of economic liberty.

Now, eventually, FDR proposed court packing and was loudly critical of the court. And the court changed gears in 1937, the famous switch in time that saved nine. And for the last 80 years, the court's interest in liberty has largely focused on individual liberty. And you got decisions, for example, like Roe v. Wade on abortion. But I think it is possible that you may see that pendulum swing back.

GROSS: If you're just joining us, my guest is David A. Kaplan. He's the author of the new book "The Most Dangerous Branch: Inside The Supreme Court's Assault On The Constitution." We'll be right back after a short break. This is FRESH AIR.

(SOUNDBITE OF ALEXANDRE DESPLAT'S "SPY MEETING")

GROSS: This is FRESH AIR and if you're just joining us my guest is David Kaplan. He's the author of the new book "The Most Dangerous Branch: Inside The Supreme Court's Assault On The Constitution." He's also former legal affairs editor at Newsweek.

So I have a question, and I suspect you won't be able to answer, but I'd love to know the answer to this. I ***

GROSS: the former legal affairs editor at Newsweek. So I have a question, and I suspect you won't be able to answer, but I'd love to know the answer to this. I really want to know what the justices think of how Brett Kavanaugh handled himself at his confirmation hearings when he was questioned about Christine Blasey Ford's allegations of sexual assault and whether those justices who were already seated on the court thought he had a judicial temperament. Do you have anything that you can tell us about that?

KAPLAN: I've stayed in touch with some of the justices I've interviewed. I've stayed in touch with them since the book has come out. I guess I can offer two thoughts. One, leaving aside the specifics of Dr. Ford's testimony and Kavanaugh's response, the justices can't stand seeing the court placed in the maelstrom. They think it's bad for the court. They think it's embarrassing. And while they'll watch the hearing on TV, you know, they have cable at the court, they live in a marble temple, but they can still watch TV and they hate it.

Having said that, I think part of the reaction this time was Kavanaugh-specific. Most of the justices know Kavanaugh. Chief Justice Roberts served briefly, I think, with Kavanaugh on the D.C. Circuit. If not, they live near each other in suburban Washington. They belong to the same clubs, eat at the same restaurants. They're of a piece. And Elena Kagan - Justice Kagan when she was dean at Harvard Law School, hired Kavanaugh to come teach there.

So they all know Kavanaugh. They know him far more than they knew Neil Gorsuch when he joined the court. And they like Kavanaugh and they respect him. There is a reason that Kavanaugh was the leading so-called feeder judge in the country. That is, the judges who send their own law clerks up to the Supreme Court to then clerk for justices, Kavanaugh was the leader in the country. Incidentally, I think second place was Merrick Garland, still on the federal appeals court in Washington and who, of course, was Obama's pick to succeed Scalia in 2016.

GROSS: So I think there are a lot of concerns now that we have two justices in the Supreme Court who have been accused of sexual misconduct, Clarence Thomas of sexual harassment and Brett Kavanaugh of sexual assault. And these men might have decisive votes in matters pertaining to gender equality, sexual assault or sexual harassment issues. And it questions the credibility of the court because they might be very biased in their opinions.

KAPLAN: Whether they're biased or, as you know, have the appearance of bias is a real problem for the court. And there is no real solution. I don't, for example, think you will see recusals in such areas of the law. I don't think you'll see Kavanaugh recuse himself any more than Clarence Thomas did. Part of that is it's hard for a justice to recuse himself or herself. At a lower court, you can always substitute in a new judge. You can't do that on the Supreme Court. There are nine justices, if one doesn't sit in the case then you're down to eight. They don't like even numbers of justices.

But will Kavanaugh bend over backwards in such cases to try to undo the concern people have? That's - such dime-store psychology is beyond my pay grade. There certainly isn't any indication in his opinions to date of a bias. But, you know, his performance after Dr. Ford testified, talking about how this was a vast left-wing conspiracy, the Clintons and all that, even if he apologized for it or tried to in a Wall Street Journal op-ed piece, I think that in some respects leaves him in an even tougher position than he might in a sexual harassment case. There are a lot of cases, they don't involve the Clintons specifically, obviously, they involve politics. And Kavanaugh, you could argue, showed his true partisan self in that 20 minutes of testimony. I would be just as concerned in that area.

GROSS: What kind of cases do you think that might influence?

KAPLAN: Well, you could imagine campaign finance appeal coming up. They're going to be more of those, depending on who brings it. Now, are there Republican interests or they're democratic interests. I think even if he's not in fact biased, the appearance of bias is a real one. Having said all that, there are all kinds of reasons, of course, to criticize Justice Thomas's performance on the court for the last 30 years and I do so in my book, but I'm not sure you can point to a lot of cases in the area of sexual harassment or regulation of the workplace and say that Thomas ruled the way he did out of soreness or bitterness from his hearings back then.

GROSS: I don't know if this was after last February or not, but last February, there was a New York magazine cover story headlined, "The Case for Impeaching Clarence Thomas" with stories of other women besides Anita Hill who had stories of sexual harassment regarding Clarence Thomas. So it's a story that keeps, you know, coming back to life.

KAPLAN: It does. And some folks could argue that maybe it was sui generis, it was unique and it was dated. But the Kavanaugh's stuff brought that all back to light. And as you point out, now we've got two justices under a cloud separated by 30 years. That is really bad for the court. It's bad for the court's prestige, I think it helps to enfeeble Congress. We have a lousy Congress for any number of reasons but one of the reasons as various congressmen and senators would tell me they don't act is because they know that the justices across the street will act. And I also think it distorts presidential elections in the way that we saw in 2016, 20-25 percent of Trump voters said they didn't like Trump's temperament, they didn't agree with a lot of what he said, but they voted for him simply because of the Supreme Court.

GROSS: So in terms of how politicized the court has become, President Trump supported Brett Kavanaugh through the hearings and Trump insulted Christine Blasey Ford, who made the allegations of sexual assault. Are you concerned, are there concerns out there that Kavanaugh will feel beholden to Trump and therefore come to conclusions in ways that support the Trump administration when the Trump administration is involved in a case?

KAPLAN: I think they're all kinds of legitimate bases for criticizing Kavanaugh. I thought his testimony after Dr. Ford's was appalling. I thought Kavanaugh's performance at the press conference at the White House was not befitting of a justice. But I think the notion that now that he's on the Supreme Court he's going to feel beholden to the president who appointed him is misguided. One of the ***

KAPLAN: **** the great aspects of the system, which has lots of flaws, is that once you're on the bench and have life tenure, you really don't have to look down Pennsylvania Avenue with any degree of loyalty because the president can't do anything at that point other than tweet.

So I think, by and large, most justices throughout history have successfully proclaimed and demonstrated their independence from the presidents who appointed them. Look at the Nixon tapes case in 1974, where a unanimous court ruled against Richard Nixon. That doesn't mean you can't have a friendship with the president. Various FDR-appointed justices remained friends with FDR. But on my list of criticisms of and concerns about Brett Kavanaugh, the fact that he's grateful to this president I don't think will affect his decision-making. I think most justices - most of the time - once they're up there, they're free and clear.

GROSS: I hadn't known of Brett Kavanaugh before he was nominated to be a Supreme Court justice. But you write that some people, some insiders, were surprised that he wasn't on Trump's first list of potential nominees, the one that ended with the Gorsuch nomination. And you say some movement conservatives called Kavanaugh a prevaricating milquetoast who lacked guts. And again, this was before his nomination. This was during the Gorsuch nomination. Why was he called a prevaricating milquetoast who lacked guts?

KAPLAN: Oh, they would say he was such because of an opinion he wrote in one of the Obamacare cases, where he didn't reach out and strike down the statute, which is what the movement conservatives wanted. Instead, he said that his court, the federal appellate court in Washington, should not be hearing the case, deciding the case at that moment on procedural grounds. There was a technical issue that I won't go into details on. But he wrote what I thought was a measured, scholarly, legal opinion, saying the case isn't quite right for us. It's a timing issue. I thought it was a good, solid opinion. Do I agree with it? Doesn't matter. But I think he was taken out to the woodshed by a lot of movement conservatives who said - why didn't you do the right thing here? And that was the chief strike against him.

Now, I happen to think that Kavanaugh on the court will wind up being less of the arch-conservative that Thomas and Alito have been or that Gorsuch will be. I would predict that Kavanaugh will veer closer to what passes for the center of the court, that Chief Justice Roberts is now the swing vote. And I think his institutionalism, his affection for the court and for its own reputation may lead him in - on some occasions, to rein in the court's power in the way the chief justice did decisively so in the Obamacare ruling upholding the statute back in 2012. I think Kavanaugh will veer, on occasion, closer in that direction than, for example, Neil Gorsuch.

GROSS: My guest is David A. Kaplan, former legal affairs editor at Newsweek and author of the new book about the Supreme Court called "The Most Dangerous Branch: Inside The Supreme Court's Assault On The Constitution." We'll talk more after a break. And Ken Tucker will review singer-songwriter Kurt Vile's new album. I'm Terry Gross, and this is FRESH AIR.

(SOUNDBITE OF WYNTON MARSALIS' "JUMP START-THE MASTERY OF MELANCHOLY/BOOGIE WOOGIE STOMP")

GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to my interview with David A. Kaplan, a former legal affairs editor at Newsweek who covered the Supreme Court for a decade. He's the author of the new book "The Most Dangerous Branch: Inside The Supreme Court's Assault On The Constitution." We're talking about how the Supreme Court became so politicized, how it became so powerful and how it's changed during the Trump administration with the additions of Neil Gorsuch and Brett Kavanaugh.

Some people who follow the court have suggested that Kavanaugh might have been selected to be the nominee because, after having worked on the Clinton impeachment, he subsequently said that he thinks a sitting president shouldn't be subjected to criminal charges because it takes up too much time and takes time away from other crises that the president has to help handle and...

KAPLAN: I've read that brief.

GROSS: Yeah.

KAPLAN: I don't buy it.

GROSS: Why not?

KAPLAN: I believe in simple explanations. The simple explanation is that Kavanaugh, leaving aside ideology and political credentials, is as respected a federal judge in the country as almost anybody. If you ask liberals and conservatives - apart from ideology, who are the most respected appeals court judges in the country? - Kavanaugh would be on anybody's list of 20. He's enough of an intellect, a technocrat, a scholar to make that list. And I think when you take that basic credential and then factor in McGahn's close relationship with him, that made him odds-on favorite.

KAPLAN: to make that list. And I think when you take that basic credential and then factor in McGahn's close relationship with him, that would - made him the odds-on favorite.

GROSS: Here's another question that you also might not be able to answer. I would love to know how the justices - what they think of what President Trump has said about judges. He's insulted judges. He used the term so-called judge to describe one judge. During the campaign, he called Chief Justice Roberts an absolute disaster. He said, Roberts gave us Obamacare. It might as well be called Robertscare (ph). He did not say that in a positive way. Another time, he claimed that Roberts voted to uphold Obamacare, the Affordable Care Act, because he wanted to be popular inside the Beltway.

You write that Neil Gorsuch nearly withdrew his nomination after Trump insulted him. And this was after Senator Richard Blumenthal had had his meeting with nominee Neil Gorsuch, then said that Gorsuch had called Trump's attacks on the federal judiciary disheartening and demoralizing. What, if anything, can you tell us about how the justices feel about what the president has said about judges?

KAPLAN: Well, every single one of them that I talk to, to the extent I could get them talking a little or use some body language, are all appalled by him. How can one not be appalled by him generally? In terms of his attacks on the federal judiciary, I think they are especially annoyed, perturbed and even to some extent aggrieved because they think it wounds the integrity of the judiciary, which has a limited capacity to fight back.

I was struck by something I reported in the book that Roberts - Chief Justice Roberts during the 2016 presidential campaign confided to a friend that he was outraged by candidate Trump's attacks on Roberts. Roberts, in effect, saying, I've been a loyal Republican my whole life. I worked in the Reagan administration. I helped the Bush campaign in Bush v. Gore. How can anybody seriously question my credentials?

I was struck by that, that the chief justice of the United States would particularly care what a presidential candidate thought because long after that candidate's gone, whether he's elected president or not, Chief Justice Roberts will still be occupying the center seat of the marble temple and will be there for decades.

GROSS: So this is the era of the John Roberts court in two ways. One is that he's the chief justice, but also he's now considered to be the swing vote. So he is really the most decisive factor in the court now, right?

KAPLAN: Correct. He will be the first chief justice in 80-plus years who is in the middle, such as it is, of the court. It will truly be his court. And he will have the potential for, quote, unquote, "greatness" - and he's demonstrated it at his greatest moment on the court in the Obamacare ruling.

GROSS: Has he demonstrated it in any other moment?

KAPLAN: No, (laughter) not really. It may be on the margins of some rulings. But the two important projects for this chief justice have been deregulating, campaign finance, Citizens United and all that, and removing racial preferences from American life, whether it's in college admissions or how the Voting Rights Act in 1965 is applied. And he firmly believes in the conservative agenda on those two issues. If you look at what he's done in those areas, don't confuse him for a moderate. He's not.

But I think he holds the potential to apply the brakes. And I think to the extent we see the court further placed into the maelstrom in coming years, now that it's got five votes on a lot of issues, I think you may see this chief justice take his views about the court's integrity and place them ahead of his own particular views on this or that issue.

GROSS: John Roberts wrote the majority decision that gutted the Voting Rights Act, and that kind of decided in favor of voting restrictions as opposed to voting rights. So future voting restrictions versus voting rights decisions come to the Supreme Court, do you think the court will continue to vote on the side of restrictions?

KAPLAN: Well, yeah. I - they gutted much of the Voting Rights Act of 1965. But I think that's, as I argue in the book, that's one area where the court's adventurism or arrogance is pronounced. The Voting Rights Act of 1965, you can like or dislike on the merits as a way to eliminate vestiges of slavery in Southern states and other states with discriminatory practices in voting laws and practices. But Congress passed the law and re-upped the law - uncontroversially - periodically. Why is it the court's role to override that Democratic preference? Why is it that those who brought the challenge against the Voting Rights Act somehow need to have their alleged rights vindicated by the Supreme Court instead of just relying on legislators? I'm mystified by the decision, but, you know, it's a conservative decision - not John Roberts' high mark.

GROSS: So John Roberts was the swing vote on upholding the Affordable Care Act. And you write that he had two drafts of his decision. What are the differences between those two drafts, and why did he have two of them?

KAPLAN: We knew that Roberts, from prior reporting, had switched votes in the Obamacare ruling in 2012 and had infuriated the other conservatives on the court. But I learned and reported in the book that even though he voted initially in the private conference of the justices right after the oral argument in the courtroom, even though he initially voted to strike down the law, he immediately went back to his chambers and instructed his law clerks to draft two different. One that resulted in the law being struck down, but a second opinion that resulted in the ACA - the Affordable Care Act - being upheld because Roberts was betwixt and between.

And because there were four justices on each side, he knew he was the swing vote. He knew he was the decisive vote. He would control the writing of the ruling. And he wanted to see what both opinions looked like. And sometimes, as justices will say, Roberts and otherwise, the opinion just doesn't write. And he quickly came to the conclusion that the law ought to be upheld. I think Roberts in the best sense of the word, in a close case, decided - I'm going to give the benefit of the doubt to the legislature. And he decided as an institutional ****

KAPLAN: *** matter, to strike down the Affordable Care Act in the middle of a presidential election year would put the Supreme Court smack in the vortex of that presidential election and that would be bad for the court.

GROSS: If you're just joining us my guest is David A. Kaplan. He's the author of the new book "The Most Dangerous Branch: Inside The Supreme Court's Assault On The Constitution." He's also the former legal affairs editor of Newsweek. We're going to take a short break, then we'll be right back. This is FRESH AIR.

(SOUNDBITE OF DANILO PEREZ AND CLAUS OGERMAN'S "RAYS AND SHADOWS")

GROSS: This is FRESH AIR. And if you're just joining us, my guest is David A. Kaplan, author of the new book "The Most Dangerous Branch: Inside The Supreme Court's Assault On The Constitution." He's also former legal affairs editor at Newsweek.

So we have two Trump appointees on the Supreme Court now, Neil Gorsuch and Brett Kavanaugh. Justice Scalia, who was replaced by Gorsuch, was an originalist, which means interpreting the Constitution as it was intended to be interpreted by the founders when it was written, not considering it a document that has to be updated for the times that we live in. And Thomas considers himself an originalist or a textualist. I say that not really understanding the difference between those two terms. But is Gorsuch or Kavanaugh an originalist or a textualist? Or do they not subscribe to that point of view?

KAPLAN: I think they would both call themselves card-carrying originalists and, to some extent, textualists. Having said that, in my book, originalism is bunk because even originalists only use originalism when it suits them. When it doesn't suit them, they ignore it. I think it's a lot of nonsense. And of course, the most important thing about the whole originalist trope is that if you look at the Constitution - and I've read mine a lot - there's no clause in the Constitution that says, thou shall interpret me based on what you thought those who wrote me 250 years ago thought. It's nonsense.

GROSS: Well, something you say about originalism is that because you're trying to literally follow what the Founding Fathers meant when they wrote the Constitution at a time when there was slavery, at a time when women did not have equal rights - you say that originalism favors a status quo fixed in the 18th century. And it tends to favor the haves of that time and to disfavor all others, such as minorities and other unpopular litigants - and maybe we can add women to that?

KAPLAN: All true, but of course, the Constitution is not written as a set of regulations. Some constitutions in the world are written that way. When you use phrases like equal protection of the laws or due process of law or no unreasonable searches and seizures - when you write things in such general terms, you necessarily are inviting those who interpret you, whether they are judges or presidents or senators, to use their own judgments as to what it means. That's why you write a constitution.

GROSS: Do you think that justices, in general, have become more politicized in recent years than they've been in the past?

KAPLAN: Yes.

GROSS: OK. Why do you think that is?

KAPLAN: I think, in part, because the selection process that we use now and the better - if more cynical - process that White Houses use to pick nominees results in such candidates. You know, Brett Kavanaugh is a competent judge. So is Neil Gorsuch. But they weren't chosen because of their stellar credentials. Those were a necessary requirement for getting chosen. They were chosen because they thought they'd vote the right way. In the same way, I think that Ruth Bader Ginsburg was chosen by Bill Clinton and then - Sonia Sotomayor, for example, was chosen by Barack Obama. And you know, you can blame presidents for that or blame the Senate. But I - I think in the first instance, you need to blame the court. Because it gets involved so often, it raises the stakes of who sits on the court.

So if the court is, in effect, going to govern the country on so many key issues, then you really need to look at how you think individual members of the court are going to vote. When you do that, politics - the role of politics necessarily becomes heightened. It wasn't always that way. When John Paul Stevens was picked by Gerald Ford in the mid-1970s, it wasn't for that reason. And I could give you half a dozen other examples. Those days are long gone. I would like to see the return of those days.

GROSS: Do you think the politicization of Supreme Court nominees includes how Mitch McConnell blocked Merrick Garland from even coming to the Judiciary Committee after he was nominated?

KAPLAN: Absolutely. And listen. If the Democrats get control of Congress this time around or in two years, in 2020, I think you'll - if they can get their act together - 'cause they're not really good at playing dirty - you may see them raise the stakes. You know, they talk about getting rid of life tenure at the Supreme Court. That would require a constitutional amendment. But if you want to increase the size of the court - pack the court, as it were - all you need is an act of Congress.

If the Democrats control the House and the Senate and the White House in 2021, I don't think court-packing is off the table at all. And if you want to get back the Merrick Garland seat and if you want to take back control of the court, just add two more seats, appoint two liberals, then an 11-member court - you have a 6-5 majority. Do I think that's possible? Yes.

GROSS: Being a Supreme Court justice is a lifetime appointment. You leave when you say you want to leave. And how old is Ruth Bader Ginsburg now?

KAPLAN: Eighty-five.

GROSS: And how old was John Paul Stevens when he left?

KAPLAN: Ninety.

GROSS: Yeah. So it's - you can stay for a really long time. **

GROSS: **** And how old was John Paul Stevens when he left?

KAPLAN: 90.

GROSS: Yeah, so I - you can say for a really long time. So a lot of people are...

KAPLAN: Pretty good - it's a pretty good gig.

GROSS: It's a good gig (laughter) yeah. So the lifetime-appointment issue has been challenged by many people because now that people are living to such older ages than they used to when the Supreme Court was first created, you know, and when the Constitution was first written. The president's power to appoint a Supreme Court justice - that's become a much bigger power than it ever was because in part of the extension of the lifespan of Americans. So, you know, some people, including you, have proposed changing the lifetime nature of the appointment. Why do you think we should consider changing it? And what are some of the suggestions you have?

KAPLAN: Well, it would lower the stakes of any particular nomination. If, for example, there was a single term of 18 years, as many others have suggested and which I endorse, I think that would lower the temperature. It would allow - once you kicked in the system over time because you couldn't make current justices leave - it would allow every president to get two nominations. You'd have a new justice every two years. I think that would be a great idea. It will never happen. I mean, I think the most creative idea that I came across was not so much a single term but by staffing the Supreme Court randomly with a rotating series of nine judges picked among the chief judges of the 12 lower federal appeals courts in the country. If it was just any bunch of judges picked, and maybe it wouldn't be 9 of 12, maybe it will be 5 of 12, then you might actually give force to the idea that the court is a neutral body. It rules based on law, not personality, not based on the political views of this or that justice but that these more anonymous, lower court judges and the chief judges, of course, are rotated based on seniority. The system might look more like we have long imagined it to be. The idea that the court is politicized is not a new issue. It's just far more dramatic than it used to be. And it cuts against what we all learned in civics class, which is that the law is supposed to be neutral. We're a government of laws, not men and women and so forth. Having said all that, any of these changes are incredibly unrealistic.

GROSS: Well, David Kaplan, thank you so much for talking with us.

KAPLAN: It's a pleasure. Thanks for having me.

GROSS: David A. Kaplan is the author of the new book "The Most Dangerous Branch: Inside The Supreme Courts Assault On The Constitution." After we take a short break, Ken Tucker will review a new album by singer-songwriter Kurt Vile. This is FRESH AIR.

(SOUNDBITE OF MUSIC)

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