THE MOST DANGEROUS BRANCH

An appeal for greater judicial restraint from the Supreme Court.

Former Newsweek legal affairs editor Kaplan (Mine's Bigger: Tom Perkins and the Making of the Greatest Sailing Machine Ever Built, 2007, etc.) 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. He reserves special contempt for Justice Anthony Kennedy, "the Court's metaphysicist-in-residence," whom he sees as embodying a judicial triumphalism that has "made the Supreme Court the most dangerous branch." Kaplan then settles into a tendentious review of several recent landmark cases, starting with Roe v. Wade; though approving the result, he lambasts the decision as not an example of constitutional law at all. This sets the table for a tour of standard liberal bugbears like Bush v. Gore, Citizens United, and Shelby County v. Holder; Kaplan trashes the majority opinions and approvingly quotes at length from the dissents. Still, the author is in pursuit of a serious point. He argues persuasively that, through these decisions, the court has seized control of debates and policies best left to the legislative process, thus damaging its own integrity and our system of democratic government. Worse, it has done so by resurrecting the legal doctrine of substantive due process, thought to have been discredited in the 1930s, which tends to position the court illegitimately as a superlegislature. These developments have unnecessarily politicized the court and poisoned the confirmation process for justices. Ironically, it is often the acerbic Justice Antonin Scalia who makes Kaplan’s point best in his dissents in cases like Obergefell v. Hodges which, like Roe, the author disapproves of for consistency's sake.

An informed discussion of a serious issue that may be too easily dismissed for its intrusive partisan bias.