The author gives you a look at the branch really before it has taken on so much of the partisan look that it has now. He gives you interviews and other information, but really it is a sad state of what this branch has turned into from what is was supposed to be.

This book is well written and researched. Touching on interviews with various personnel and researching, this book is outstanding. Gives information on cases, etc. Lots of material, but good material. Thanks to NetGalley, the author and the publisher for the arc of this book. Receiving the book in this manner had no bearing on this review.

A thorough examination of the personality of the Supreme Court with special focus on how this branch of government has become partisan while still feeling it must exert influence over other branches. Kaplan gives readers profiles of each sitting justice--how they arrived on the bench & what they've accomplished there--and then shows how these personalities determine the law of the land.

If you’re anything like me, you’ve been obsessed with the current struggle in the Senate over the confirmation of Brett Kavanaugh to replace the retiring Justice Anthony Kennedy on the US Supreme Court. (In fact, things are moving so swiftly that his nomination may be resolved, one way or another, by the time you read this!)

Kavanaugh represents an opportunity for conservatives to solidify a hold on the Court, with the ultimate goal of overturning the much-hated Roe v Wade, which has kept abortion legal nationwide since 1973. Indeed, it is widely believed that the endgame for American conservatives consists solely in opposition to Roe, and that the Republican Party has been willing to accept any moral compromise and excuse any outrage in the service of achieving the goal of eliminating abortion from the American landscape.

Republican duplicity in this goal includes Senate Majority Leader Mitch McConnell’s nefarious refusal to consider Merrick Garland (Barack Obama’s nominee to replace the late Justice Antonin Scalia on the Court), holding the seat open for an unprecedented 422 days, enough time for the election of Donald Trump, a fool and a dupe willing to nominate whatever name extreme conservatives whisper in his ear. And they’ve been whispering–nay, shouting–for Brett Kavanaugh.

But how the hell did we get to this place? The Supreme Court has always had political implications, but until 30 years ago, the replacement of a retiring or deceased Justice was largely an uncontroversial affair. Now, Senate hearings are witness to weeping and gnashing of teeth, shouting and bitter tirades. Perhaps even more unsettling is the Court’s increasing tendency in recent years to step into the political arena and try to resolve issues that would have been better left to other processes.

To help understand the personalities on the current Court, and the historical backdrop that led to the Court’s current roster, I highly recommend David Kaplan’s new book The Most Dangerous Branch: Inside the Supreme Court’s Assault on the Constitution. In it, Kaplan traces the confirmation processes of all nine current Justices, and looks at the most influential rulings in recent years (including Bush v Gore, Citizens United and Obergefell v Hodges).

While Kaplan devotes time to the increasing insistence by both the Left and the Right for presidents to nominate ideologues (people say they want Justices who will correctly interpret the Constitution, but let’s face it, what they really want is Justices who will rule based on political desires).

But what really keeps Kaplan up at night is the more-and-more frequent inclination of the Court to step in and decide things before, in his view, the regular legislative or electoral processes have had a chance to resolve them. Kaplan argues that Court rulings can be seen as activist, elitist, and overbearing; whereas outcomes arrived at (albeit belatedly) due to legislative processes have more democratic and societal legitimacy. It’s a compelling idea. Had the Court, for example, stayed out of Bush v Gore and allowed the election to go to the House of Representatives (as prescribed by the Constitution), perhaps fewer people who complain that Bush was “selected” by five robed judges. Perhaps a delayed recount would have found enough votes to put Al Gore over the top. Who knows? On the flip side, it’s hard to imagine that religious conservatives would be less rabid about abortion if the Court had demurred in Roe v Wade and allowed the status of state-by-state abortion to become a patchwork of experimentation, with some states outlawing it outright, and others even providing taxpayer dollars to provide abortion on demand to lower income women.

In any event, the danger we face in 2018 is that the Court is becoming more politicized, both internally and externally, with every open seat viewed as an existential crisis by all sides, and with the Court becoming increasingly willing to tinker where previously it feared to tread. What used to be a brake on the republic’s worst tendencies might become a chamber of elites who rule by fiat, with less and less concern about the “technicalities” of the Constitution. Indeed, the Court might well become our government’s “most dangerous branch.”

This might be the most timely book of 2018. While I don’t always agree with author David Kaplan’s views about the Court, it should be noted that he not only predicted the retirement of Justice Anthony Kennedy, but also the nomination of Brett Kavanaugh as his replacement. Does this mean Kaplan is prophetic? Probably not. But it does give some heft to his understanding of politics and the Court. That this book’s release date coincided with the first day of Kavanaugh’s confirmation hearing really put a bow on the whole thing.

The text is broken into two sections. The first details the justices themselves along with some of the intricacies (and eccentricities) of the Court. The next half focuses in on specific cases and their broader impacts. Both are routinely tied back to Kaplan’s assertion that the Justices have gradually shifted into the political arena by taking on cases that should have been remedied legislatively rather than utilizing restraint. Much of the time, his arguments are compelling, especially when highlighting controversial decisions like Bush v. Gore.

Remarkably, Kaplan keeps the text from ever getting too dry, even when getting deep into the texts of judicial opinions. He’s quick to drop an anecdote or gossip, which usually play double-duty by showing just how human the justices truly are. Yes, there are sections that are heavy on analysis and theory, but Kaplan always keeps it accessible and interesting.

The Most Dangerous Branch gives life to the Supreme Court of the United States (SCOTUS). It’s the third branch of government, one without the clout of legislation or executive orders, and no army or treasury to enforce anything, as Alexander Hamilton described and promoted it. Nonetheless, the thrust of David Kaplan’s highly readable book is that the SCOTUS is in the process of usurping the other branches, particularly Congress, and carving out roles that were never meant for it – like prescribing law and deciding presidential elections.

Normally, such books drag on for a hundred pages of required history, but Kaplan jumps quickly to Neil Gorsuch, his nomination, and the backroom opinions and little-known actions to get him confirmed. It seems no one outside of Justice Clarence Thomas can stand him. He is an arrogant know-it-all, lecturing the other justices in their legal errors of judgment and on how to write an opinion. His own clerks have difficulty working for him. He has opened a wide crack in the usually respectful and collegial court. The conservatives Republicans love it.

What jumps off the pages is how tight the circle is. The justices know the candidates. So do the politicians. The same names keep coming up for nomination. Despite the book being written before Anthony Kennedy announced his retirement, Kaplan singled out Bret Kavanaugh (who was not on President Trump’s shortlist) to replace him. Some, like Gorsuch, have modeled their entire careers for it. Others decline, but their names come up again anyway. Their old university professors intervene with positive or negative recommendations, unsolicited. They also promote them to clerk for a SCOTUS justice, thus ensuring their orbit among the stars. This is the swamp of the judicial system.

For reasons I don’t understand, the next chapter, which begins by profiling Chief Justice Roberts (“If the people don’t like what we’re doing, it’s more or less just too bad,”) is written in the past tense, as if Roberts were no longer there. It makes reading a little difficult, because you never know if Roberts has resolved some issue, or if it continues. It then transpires that Kaplan profiles all the current justices in the past tense, as if they were closed chapters in history. For example, “Kagan was more doctrinal.” Is she still, or has she changed with age and experience? “She had a sense of humor as well.” Did she lose it?

It’s all very colorful and gossipy, giving life to the black robes. It is filled with wonderful sidelights, from backstage meetings, to luncheons with clerks, to courtroom moments. For example, during a trial regarding gay rights, Justice Breyer demanded of the Texas prosecutor “a straight answer“ - for which Justice Thomas had to whisper to Breyer why everyone was laughing.

Kaplan says the turning point for the SCOTUS power grab was 1954’s Brown v. Board of Education. The court ventured into prescribing life, and has never looked back. It got progressively worse, with every decade seeming to top the previous in outlandish court interference. In 1973 it was Roe v. Wade, in which the Court actually prescribed solutions according to the trimester of the pregnant woman. In the 2000s, it was Bush v. Gore, in which the SCOTUS decided the federal election by itself. It was in fact Justice Anthony Kennedy, whose vote made it 5-4, who elected George Bush. The election was decided by one voter (who probably voted for him twice). In this decade it is (so far) the extraordinarily unpopular Citizens United, which allows unlimited spending by corporations in elections. Kaplan calls it “Injudicious intrusions on democracy” and proves his case repeatedly.

In all these cases, Kaplan says, the SCOTUS would have done better to decline to hear the cases, forcing Congress to do the job it was mandated to do. By declining, the justices would seem to put themselves above the fray, instead of opening themselves to the justified criticism they receive for their decisions. In 1893, Harvard’s James Thayer said a strong Supreme Court would “deaden its sense of moral responsibility.” We have yet to learn from that.

Throughout the book, in the background, there floats Alexander Bickel, a constitutional expert whose sagacity and reasonableness are on display like an Obi Wan Kenobi, popping up in the background all over the book. He guides Kaplan, who likes to boil down cases to simple issues with appropriate solutions. Why couldn’t the justices see it that way?

Arrogance and hypocrisy are clearly on display, such as when Chief Justice Roberts claimed the Supreme Court “had no choice” in its decision – even though four of the nine dissented. Or when Justice Scalia would claim “the people” should decide – but he would decide himself if they didn’t act when and how he desired. He would abandon his “originalism” philosophy in a heartbeat to get what he wanted personally, for example ignoring the origins of the second amendment in Heller v. Washington DC.

The biggest fault described in The Most Dangerous Branch is the Court’s usurpation of Congress. In Bush v. Gore, for example, there are clear directions on the books for Congress to decide the matter, but the Court ignored its own voices to follow those existing laws, and decide by their own vote instead. The more powers Congress gives up, of course, the less it can accomplish. Between the Court and the President, the submissive Congress is on a treadmill to oblivion. We see it all the time, as senators and representatives sue in order for the SCOTUS to decide instead of doing it themselves. Same for the President – let the Supreme Court rule.

When power grabs are unattractive or unavailable, the Roberts Court descends to inventing rights, like the constitutional right of contract and the principal of equal sovereignty – pure fantasies. The same goes for legal precedents. Justices will demand precedents be respected – unless they want the underlying principle overturned, in which case they will ignore anyone who brings them up.

In other words, the Supreme Court is made up of nine fallible humans, who bring their own politics and prejudices to bear on the whole nation. And with scope creep, they are bringing those prejudices to more and more of the government, undermining and overruling what the Framers determined to be the operating system of the country. As long as presidents insist on nominating justices for their ideologies, it will always be a simple matter of assembling five votes. The rest don’t count. And neither does “justice”.

David Wineberg

There are two caveats you need to know before you read this book. One, it is a bit dry, as one might expect a book about the Supreme Court might be. Two, the author's political slant does come across a bit in this book. I will not discuss the author's political leanings because I do not want to persuade or dissuade you from reading the book because of this, but you should be aware that at time, the book will show a small political bias. Overall, the bias does not detract from the book and the thorough history about the Supreme Court. anyone with even a fleeting interest in the Supreme Court should read this book.

Talk about a timely book! I received an advance reading copy of this book, just as Supreme Court Justice Kennedy announced his retirement. Even though the author wrote the book long before this happened, he predicted it. And who President Trump was going to nominate. He hit the nail on the head! Wow!
I enjoyed reading this book, especially the first half. In that part, Kaplan discusses all of the current justices, how they got to where they are, and what issues they are very passionate about. He even reveals each justices little quirks and habits. It was very enlightening, and presented in a very readable manner.
The second half of the book discusses cases. While I enjoyed it, at times I felt like it was way over my head. I might go back and reread it. Maybe on the second round it will be clearer.
I recommend this book to anyone who has an interest in the law. The direction the country will head in the future will be, to a large extent, depend on how these nine people rule.

Does give a critique of the most powerful court in the country. But i wouldn't say it is politically unbiased.
I received an ARC from NetGalley in exchange for an honest review .