The former legal affairs editor of Newsweek offers an inside look at the nation's top court and what he sees as its subversion of the separation of powers, with the justices taking on the role of the other branches of government.
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.
