In his new book, The Most Dangerous Branch, former Newsweek legal affairs editor David A. Kaplan makes a strong and compelling case that, whatever the outcome, one thing is guaranteed: The Supreme Court is all but certain to remain over-involved in setting and amending policy and laws. His book is a perfect primer for helping Americans understand how members of the court came to justify their excessive involvement in various controversial issues ... He finds ample hypocrisy on the left and right alike, ripping what he describes as the squishy arguments of Harry Blackmun, who wrote the majority opinion in Roe determining access to abortion as a right, and Antonin Scalia ... Both accessible and thorough, The Most Dangerous Branch is an important and fascinating look at the Court during one of its most important, and divisive, eras.
If you aren't a regular on the Washington cocktail circuit or a subscriber to SCOTUSblog, this material is presented at a level of granularity with which you may not be familiar. It makes for engaging, if not reassuring, reading ... Kaplan's discussion of Bush v. Gore is particularly elucidating in explaining the competing postures of state and federal courts that resulted in George W. Bush's first inauguration. Chapters such as 'Runaway Court,' 'Revenge of the Right,' and 'For the Love of Money,' leave no doubt about Kaplan's views on the wisdom of judicial restraint; he's for it. He does us a favor by pointing out the hypocrisy of originalism ... In the final chapter of The Most Dangerous Branch Kaplan asserts that 'if the Court is to become a less dangerous branch,' Justice Roberts 'has the opportunity, the temperament and maybe the skill to make it so.'
In key respects, Kaplan’s portrayal of the court’s role conflicts with the view of many scholars of the court and the Constitution ... He provides minor anecdotes intended to reveal the healthy egos of the men and women on the current court. Many of the stories of lunchtime chats among the justices and their clerks are too slight to convey meaningful insights ... the story Kaplan presents here—that a 'runaway court' has wrongly seized power from elected legislatures and thereby 'squandered its institutional capital'—is easier to argue than to prove ... It is certainly possible to criticize the outcomes in [certain] cases and the logic of the opinions the justices produced. But those complaints are different from Kaplan’s claim that the court acted in a constitutionally illegitimate way in engaging the cases at all. Equally problematic, it is far from clear that public perception of the court has suffered over time because of its decisions, as Kaplan contends.
Mr. Kaplan’s critique of judicial power will resonate with the court’s critics on both right and left, though they will disagree about which precedents should be abandoned ... Mr. Kaplan’s bipartisan approach ends abruptly. He is routinely negative about the court’s conservatives ... By contrast, the liberal justices generally shine in Mr. Kaplan’s account ... The political lens through which Mr. Kaplan surveys the scene not only undermines his account of the court; it undermines his treatment of court opinions, too ... Like today’s Supreme Court, The Most Dangerous Branch too often shows a lack of self-restraint that undermines its credibility.
Kaplan, former Newsweek legal affairs editor, chronicles the modern Supreme Court and challenges its reputation as 'the least dangerous branch' ... Aimed toward general readers, especially those interested in the judiciary, this book is well researched and raises valid questions. Recommended for public and academic libraries
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 ... Other highlights include some gossipy, behind-the-scenes tidbits on the justices.
In his penetrating if anxious analysis of Supreme Court jurisprudence, Kaplan laments recent decisions lacking 'judicial restraint' and pleads for narrow exercise of the court’s power despite public pressure and ample temptation to rule broadly on controversial matters ... The result is assertive judicial decision-making that aspires to, in Chief Justice John Roberts’ words, 'protect the people from the consequences of their political choices.' And if this isn’t an entirely new argument, it is certainly a timely one.
Kaplan, unfortunately, takes many pages to get to his main point, because his stellar credentials... are something of a dual-edged sword. He just knows so much about the court, and he is eager to impart every bit of information to us ... The actual first part of the book, 'Characters,' is exasperatingly padded and should have been trimmed down to the details ... Instead, Kaplan crams in such gratuitous trivia as the bobbleheads on Chief Justice John Roberts’ desk and Elena Kagan’s moniker, 'the Fro Yo Justice' (a story that is not even funny) ... the reader can feel that a far more apt title of this book would be Supreme Court Confidential ... The reader who sticks with Kaplan to (almost) the end, however, is rewarded with the finest chapter in the book ... From here, however, it’s mostly downhill.
Former Newsweek legal affairs editor Kaplan ... 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 ... Kaplan then settles into a tendentious review of several recent landmark cases ... An informed discussion of a serious issue that may be too easily dismissed for its intrusive partisan bias.
