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The Most Dangerous Branch

Inside the Supreme Court's Assault on the Constitution

by David A. Kaplan

Hardcover, 446 pages, Random House Inc, List Price: $30 |


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The Most Dangerous Branch
Inside the Supreme Court's Assault on the Constitution
David A. Kaplan

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Book Summary

The veteran journalist and author of the best-selling The Silicon Boys presents a cautionary behind-the-scenes portrait of the Supreme Court and the secret world of its Justices, arguing that their decisions in landmark cases are subverting democracy.

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Note: Book excerpts are provided by the publisher and may contain language some find offensive.

Excerpt: The Most Dangerous Branch

Chapter 1

The Marble Temple

Nine mornings after Antonin Scalia died at Cíbolo Creek, the justices resumed work without their beloved, blustery colleague. The rich traditions of the Court continued unabated. After the justices all shook hands in the small robing room across the hallway from the back of the courtroom, they lined up to await the gavel of the marshal. The assembled throng grew silent, then arose. "Oyez! Oyez! Oyez!" the marshal chanted at the stroke of 10, as always. The eight justices emerged from behind the tall crimson velvet drapes and somberly took their upholstered swivel chairs on the bench. "All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting," the marshal continued. "God save the United States and this Honorable Court!"

It's an opening worthy of "Hail to the Chief," the introductory anthem for the leader of another branch of the federal government. It's all carefully choreographed. The justices don't merely walk in, and they're not already seated when Court begins. From different curtains, they materialize in unison, in three groups based on where they sit. As institutional stagecraft goes, the Court puts on quite a show.

At the corner of East Capitol and First in Washington, D.C., across the street and a world away from the workaday Congress, resides the Court. Its proximity to Congress serves as a reminder of the looming power of the third branch of government. Built on the site of a prison for captured Confederates—the prison held Mary Surratt, Samuel Mudd and others arrested after Abraham Lincoln's assassination—the Court is the closest thing we have to a secular shrine. When its cornerstone was laid in 1932, amid the Great Depression, Charles Evans Hughes, the chief justice, proclaimed, "The Republic endures and this is the symbol of its faith." The Court is the most powerful in the history of the world.

In the old days (before heightened security screening), you entered by first walking up 44 broad majestic steps and then passing through two 61/2-ton sliding bronze doors centered behind columns of the front portico. High above the entrance, engraved across the facade, are the words equal justice under law. Inside, at the end of the Great Hall on the main floor, the courtroom is as magnificent a setting as exists in American government, a testament to the splendor of Italian and Spanish marble. The Oval Office at the White House is relatively small, decorated with furniture arranged on a human scale. By contrast, the gold-trimmed Supreme Chamber is a tableau of grandiosity—82 feet long by 91 feet wide, flanked by massive windows and 24 columns, with richly colored coffers in the four-story-high ceiling. It's no wonder that for decades they had a problem with echoes during oral arguments.

Above the columns are friezes depicting such historic lawgivers as Moses, Confucius and the Prophet Muhammad. On the elevated Honduran mahogany bench, the chief sits in the middle, with the eight associate justices alternating by seniority on both sides. (The most senior justice sits to the chief's immediate right, the next most senior justice sits to the chief's immediate left, and so forth.) Since 1972, the bench has formed a crescent so that justices could better see each other. Overlooking the bench is a stately clock with Roman numerals. The gates to side corridors are in sparkling bronze latticework. Each justice gets a pewter mug of water and a porcelain spittoon that now serves as a wastebasket.

The lawyers sit at tables in front of the bench. When it's their turn to argue, they stand at a lectern in the center, barely nine feet from the bench, closer than at other courts. A red light on the lectern signals when time runs out. Ordinarily each side gets 30 minutes to make its case beyond the extensive briefs it has already submitted. Most presentations consist not of speeches but of the interruptions by justices and a lawyer's responses to their questions. Counsel tables have white-goose-quill pens at the ready. They're "gifts to you," advises the Court's Guide for Counsel, "a souvenir of your having argued before the highest Court in the land."

A more important suggestion: "If you are in doubt about the name of a justice who is addressing you, it is better to use 'Your Honor' rather than mistakenly address the justice by another justice's name." A luckless lawyer who does get a justice's name wrong might get needled by a justice—or rebuked by the chief. Once, when William H. Rehnquist, John Roberts's predecessor as chief justice from 1986 to 2005, was addressed as the mere "Justice Rehnquist," he leaned forward from the bench, wagged his finger, and snarled, "I am the chief justice!" Rehnquist, who had been an associate justice, even went so far as to ask the clerk of the Court to formally instruct lawyers about his proper title. The clerk also has cough drops at the ready, as well as sewing kits, hearing aids, and a spare necktie for the hapless counsel who spills his coffee right before going on stage.

Everything about the place signifies that "something different is going on here than what goes on in the Capitol Building or in the White House," Roberts has said. Visitors to the Supreme Court instinctively whisper. Among the other rules during arguments: No arms extending out to other seats. No visible tattoos. And if you're wearing a headdress, beware the chief justice noticing, then sending a guard over. That's what happened in 2002 when Rehnquist saw a 24-year-old Indian-American woman with an orange scarf covering part of her head. He sent over a security guard, who asked, "Is that for religious purposes?"

"No, bad-hair day," she replied, quite humiliated. She was told to remove the scarf. The case the justices were hearing at the time concerned the First Amendment, not that they were aware of the irony.

The solemnity of the courtroom is broken only by an occasional protester in the audience, or perhaps by the bounce of a basketball in the gym that's right above the courtroom—the real "highest court in the land," as everybody calls it. (A sign in the gym warns against playing when they're hearing cases below. The sign supposedly dates to when Justice Byron R. White, recused from a case in the early 1980s, went upstairs to shoot hoops. The noise so irritated Justice Sandra Day O'Connor that she had a note delivered to the ballplayer: "You're fired." Amused, White wrote back, "Please inform Sandy that she cannot fire me. I have life tenure." O'Connor has said she has no memory of the episode, but "it's such a good story—you should keep telling it.")

Someone once remarked that if the gods had an office, it would look like the Supreme Chamber. By any other name in our constitutional system, the justices are a priesthood, with all the trappings. They certainly dress the part—that's why they wear the black robes, a practice dating to the estimable John Marshall, chief justice in the early 19th century. "I'm sure we could do our work without the robes," Scalia acknowledged in an interview, but they "impart the significance of what goes on here." The justices wear them even at such nonjudicial events as the State of the Union by the president in the Capitol. For Rehnquist, austere black was not enough. He started wearing his robes with four personally designed gold stripes festooned on each sleeve, inspired by the Lord Chancellor in Gilbert and Sullivan's "Iolanthe." (Roberts abandoned the self-congratulatory practice.)

The justices also like their extravagant travel. After the Court adjourns for its long summer recess, they visit the old cities of Europe and other exotic destinations—including Shanghai, the Austrian Alps, the Riviera, the North Island of New Zealand, and the Bay of Naples—where they lecture and participate in "educational" programs. To get to such locales, the justices sometimes board a private jet helpfully provided by foundations or wealthy individuals—"friends of the Court" indeed. Such munificence doesn't customarily show up on the justices' federal disclosure forms, which raises questions about compliance, as well as hauteur on the part of jurists who are supposed to be purer than Caesar's wife. It can be hard to live in D.C. on a roughly $250,000 annual salary (a bit more for the chief justice)—and most of the justices chafe at the limitations, even those who built up a nest egg before taking the bench. They are abundantly aware they could be making plenty more in the private practice of law—and some of those who became judges relatively young especially feel the pinch.

When they do fly commercial, airports have been a recurring gripe. In 1972, Justice William O. Douglas wrote memo after internal memo about the hassles of parking in the "Congressmen and Diplomats" lot at Washington National, since bureaucrats strictly construed "Congressmen and Diplomats" not to include "Supreme Court justices." And woe to the airport officials who didn't appreciate who was passing through. On the way to a hunting trip in Montana, Scalia threw a fit at the check-in counter about whether his rifles were properly packaged. Once officials realized who Scalia was, they relented. To his credit, Scalia apologized to them for "losing it."

But even when the justices travel in style, there can be squabbles. Some years back, Stephen Breyer flew privately to Paris for a speaking engagement. Like other justices, he sometimes stayed at the U.S. Embassy. For the first night, he and his wife got the best suite, because he was the highest-ranking American dignitary in town. But Anthony Kennedy, more senior on the Court, arrived the next day—and nobody had told the Breyers. They were forced to move to lesser quarters and were less than thrilled. For some reason, it was Kennedy who was more annoyed at the whole thing, even though he and Breyer were close. At the event for which they were both in town, Kennedy gave his remarks first. Breyer was next, speaking in fluent French, at which point Kennedy murmured to another guest, "He thinks he knows French, but I don't think anybody understands a single word he's saying!" (These days, Breyer is learning Spanish.)

The justices prefer to appear above it all. 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. To Roberts, Ginsburg's comments were exactly the kind of entanglement in politics he implored his colleagues to avoid. Trump's election made eluding the tar pits that much harder. The president's repeated attacks on the integrity of federal judges, starting with those who issued immigration rulings overturning his executive orders, just dragged the judges further in—making them seem to some no different than any other governmental officials.

When justices keep their distance, it's easier for them to make the case they are different. That is why none ever tweet. That's also why they've never permitted TV cameras in the courtroom—visitors aren't even allowed to take still photos, even when the Court's not in session. Congress likely could force the Court to televise oral arguments, but it has never taken on the justices on that issue. We're well into the 21st century, but the only visual representations of what happens in the courtroom remain the quaint color sketches that publications and TV have used for decades. Courtroom sketches go back to the Salem Witch Trials in the 1690s, but one might have thought their utility had waned.

Most of the justices believe TV would diminish public understanding of their work more than enhance it. They like to say that sound bites offered up by Rachel Maddow and Sean Hannity could distort the meaning of a case. That might be true, but no more so than would an article on Page 1 of the Washington Post. A few justices cited a 2016 survey that showed 13 percent of Americans believed Judge Judy was on the Supreme Court, though that would seem to cut in favor of, not against, televised proceedings. Roberts has been candid enough to admit his view that "our job is not to educate the public" but only to decide cases. He insisted that cameras would inhibit justices in their questioning of lawyers during argument. "We might end up talking like they do in Congress—'with all due deference to my good friend from wherever,'?" he told a college audience in 2017, taking a shot at the branch of government that many justices particularly scorn. But hubris better explains why the Court doesn't allow TV. Appearing before the House Appropriations Committee in 2007, Kennedy justified the exclusion of cameras this way: "We teach, by having no cameras, that we are different."

The justices do make one technological exception—for audio recordings of oral arguments. Before 2010, and back to 1955, the audio was normally available only at the beginning of the following term. Since 2010, the Court agreed to release audio at the end of each week, as opposed to live-streaming them as many courts do. But that wasn't a major concession. Audio from a case argued a few days ago isn't likely ever to make it onto the evening news. In 2012, the justices did agree to same-day release of audio in the first Obamacare case. The Republican National Committee promptly released an ad that doctored the audio to exaggerate the halting performance by the government lawyer defending Obamacare. Several justices cited the RNC ad as Exhibit A why recordings of Court proceedings were best kept under wraps for a while. (Still, the Court has continued to allow same-day release of audio in certain high-profile appeals, most recently in a Trump travel ban case.)

The law clerks who serve the justices—usually four per chambers—might in theory be a weak link in the Court's tight control over information. But the clerks treat their bosses as demigods. For one year, those top 36 recent law school graduates do research, draft opinions, act as sounding boards—and in return get a lifelong ticket to blue-chip law firm partnerships, corporate titles, teaching posts, and judgeships. Apart from having to work long nights and weekends, the first stipulation, spelled out in an internal code of conduct, is that clerks keep their mouths shut. Clerks who breach the vow of omertà, even years later, are forever ostracized within the cult of the Court. The bond between clerk and justice, and among clerks, is close and lasting—about the only way to break it is to be a talker.

Early on in each term of the Court—which runs from the first Monday in October to late June—the chief justice holds a rare all-hands meeting with clerks to educate them about the ways of the media. "They're always trying to get something," Roberts told them one year. And just as the mere "flutter of a butterfly's wing" can cause a typhoon on the other side of the world, even a "seemingly inconsequential" comment from a clerk to a family member can have "unintended consequences."