Sunday, June 11, 2023

Books: "Nine Black Robes" On The Recent Changes To The Supreme Court


Nine Black Robes: Inside the Supreme Court's Drive to the Right and its Historic Consequences

By Joan Biskupic

William Morrow; hardcover; $32.99

Joan Biskupic is CNN's senior Supreme Court analyst. Previously, she served as editor in charge for legal affairs at Reuters and as the Supreme Court correspondent for the Washington Post and USA Today. She holds a law degree from Georgetown University and she is a Pulitzer Price finalist who has authored books on Supreme Court Chief Justice John Roberts, and Justices Sandra Day O'Connor, Antonin Scalia,and Sonia Sotomayor. 

In the new, deeply-researched inside look at the Supreme Court, Nine Black Robes, Biskupic writes about the unprecented rightward turn of the Court in recent years. She demystifies a government institutionn that is the least transparent, but profoundly affects American life more than ever. The Court has been increasingly drawn into the public eye for its recent, controversial rulings, and Biskupic reveals there is an atmosphere of distrust and paranoia. 

Biskupic gives unique insights into the justices, and chronicles how the era of President Donald Trump stoked the ambitions and political inclinations of each justice. She reveals the closed-door maneuverings among the justices as they produced decisions that rolled back reproductive rights, obliterated voting rights, and scaled back environmental protections.

Even though the Court was already split among political and ideological lines before Trump took office, his many provocations and the forceful influence of his three appointees propelled the judiciary into a new era of polarization.

Some of the things Biskupic reveals in great detail is the surprising give-and-take among justices, including how they sometimes they engaged in pacts or switched votes as they worked toward majority decisions; the evolution of Chief Justice Roberts's role, as he seized more control in the early Trump years but then found himself relegated to dissent as the Court went off the rails; the conflicted double-signaling of Brett Kavanaugh; the tensions between Neil Gorsuch and the other justices; and the outside forces that shaped today's Court by planning and calculation, driven by the triumvirate of Don McGahn, who was the White House Counsel under President Trump, Senate Minority Leader Mitch McConnell (he was Majority Leader from 2015 to 2021), and Leonard Leo, the Co-Chairman of the Federalist Society.


How did the Trump era define the Court? The Trump presidency and the influence of his three appointees ended constitutional protection for abortion, obliterated voting rights, curtailed government regulatory power, and further blurred the separation of church and state. The Trump era also propelled the judiciary into a new period of polarization. The era stoked the individual justices' ambitions, their political inclinations and defenses, their strengths and flaws. Chief Justice Roberts initially was able to seize more control, based on the ideological composition of the nine, in the early Trump years, but then found himself suddenly in dissent as Amy Coney Barrett joined in late 2020.

Neil Gorsuch, Trump's first appointee, resisted Court protocols and freely derided Roberts's reasoning in opinions. Gorsuch accelerated the anti-regulatory emphasis that echoed the patterns of his mother (Anne Gorsuch Buford) who was an EPA administration in the Reagan era and worked to roll back federal environmental protections. Brett Kavanaugh, Trump's second appointee, has been torn between his allegiance to conservative backers and his desire for acceptance among the legal elites who shunned him after his scandalous 2018 Senate hearings. Thomas and Alito, holdovers from the first and second George Bush presidencies, have been emboldened by the Trump appointees, and their opinions reflect the former president's sense of aggrievement on culture war issues, from abortion rights to vaccine mandates.

What of John Roberts's new role? Roberts has long operated strategically with his colleagues. But now he is on the defensive, fighting dissension in his own right wing. His weaker hand was clear as he struggled to change the majority's view in the Dobbs abortion case (to hold off on full reversal of Roe). But it is important to emphasize that Roberts still maintains control over many issues, such as racial remedies and religious rights. That's because his views in these areas already were on the far right. Separate from the cases, Roberts is most concerned of the nine about the Court's reputation. He has been trying, but failing, to craft a formal ethics code that would cover the justices.

What insights can you share about the deal-making that goes on among justices? The justices abhor suggestions that they engage in deals of horse-trading. But I have uncovered several deals and pacts through the years, including Roberts's double-switch in the 2012 Affordable Care Act case and, in 2013, how Sonia Sotomayor's threatened dissenting opinion altered the course of a University of Texas at Austin affordable action dispute. Nine Black Robes further details how Roberts and Anthony Kennedy worked out a deal on two 2017 gay rights disputes in tandem (Masterpiece Cakeshop v. Colorado Civil Rights Commission and Pavan v. Smith) and then how Roberts switched positions at the Eleventh Hour to vote against the Trump administration's plan to add a citizenship question to the 2020 census. More broadly, the book explores a paradox: that some internal deals were made precisely to avoid a look of politics. Justices turned away cases, delayed cases, or made compromises to avoid 5-4 conservative-liberal, Republican-Democratic splits. To some justices, that breached the integrity of the bench. To others, it was the only way to avoid the partisan abyss.

How did Ruth Bader Ginsburg's death in September 2020 affect the Court? Virtually every major legal issue was affected by Ginsburg's death and the succession of Barrett. This was no mere conservartive-for-a-conservative swap, as happened in 2017 with Gorsuch for Antonin Scalia or 2018 with Kavanaugh for Kennedy, The new power of six conservatives, rather than five, goes beyond a single digit. The super-majority has given the right wing a new confidence, to reconsider and overturn a half-century of rights and regulations.In a more personal glimpse of the inside activities, I reveal the lingering bitterness after exhausted aides to Ginsburg were forced to clear out the chambers, immediately after her memorial service, to make room for Barrett, who was on a Senate fast-track as a successor.

How much of a surprise was the May 2022 leak of Samuel Alito's first draft of the Dobbs decision that overturned Roe v. Wade? The news was shocking in every way, in the sheer substance of what the justices apparently were about to declare and the matter in which it was disclosed. Never before had such an extensive first-draft opinion been leaked and published at such an early stage of negotiations. The draft was stridently written, an audacious dismissal of a fundamental right to abortion granted nearly a half century earlier. Alito's historical sources reached back to English law that treated a woman who undertook abortion as a "murderess." The Alito majority was also taking an exceedingly limited approach to constitutional history, declaring that until the latter part of the 20th century, there was absolutely no support in American law for a Constitutional right to abortion.

President Biden's appointment of Ketanji Brown Jackson, the first Black woman justice, is certainly a notable and historic event. How is her presence likely to change the dynamics of the Court, or not? In terms of sheer votes, she is largely in line with her predecessor liberal Justice Stephen Breyer and will not significantly change bottom-line votes. But she has already made a difference in his questions from the bench and her decision to write a book about her life. The public is fascinated by this groundbreaking justice. Inside the Court, her colleagues are still shifting around her and all nine are getting their new bearings. It's a truism that with each new justice, it's a new Court.

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