Nine Black Robes

 

Joan Biskuic, “Nine Black Robes: Inside The Supreme Court’s Drive To The Right and its Historic ,” Harper Collins, 2023, 329 pp.

In “Nine Black Robes,” Joan Biskupic traces the rise of the Supreme Court’s triumphant and aggressive supermajority.

Though Trump’s troubles with the judicial system are legion, Trump has shown a surprising reverence for getting selected judges nominated and seated.     “Apart from matters of war and peace, the nomination of a Supreme Court justice is the most important decision an American president can make,” he said in September 2020, when he released “a specific list of the individuals,” provided by the Federalist Society, that he was considering for the Supreme Court and dared his opponent Joe Biden to do the same.

Little more than a week later Justice Ruth Bader Ginsburg died, and Trump nominated one of his pre-selected candidates, Amy Coney Barrett, to fill the vacant seat. With that Trump’s court was complete — a total of three justices, who turned a conservative bare majority into an aggressive “supermajority,” this may prove to be his most enduring legacy and the countries’ greatest threat.

Author Joan Biskupic, an accomplished and well-sourced journalist, knows the court as well as anyone now covering it. She has been a reporter at The Washington Post and is currently a CNN analyst, as well as the author of four well-researched and well-written books about individual justices — two active ones, Chief Justice John Roberts and Sonia Sotomayor, and two departed giants, Antonin Scalia and Sandra Day O’Connor.

In her new book Biskupic has done something different and a good deal harder. She has written a group narrative that combines close accounts of the court’s public business in the Trump years with a history of its private dramas and conflicts. The cast includes not only all the justices but also other figures who helped Trump find and select the nominees and then maneuvered each through the maze of vetting and Senate hearings.

Not even Trump’s staunchest admirers make strong claims for him as a C.E.O., but in this instance he shrewdly delegated the winnowing of candidates to a skilled “triumvirate” of advisers: the White House counsel Don McGahn; Leonard Leo, maestro of the Federalist Society; and Senator Mitch McConnell, the majority leader still glowing with satisfaction after he kept President Obama’s third and last court pick, Merrick Garland, from even getting a confirmation hearing in 2016.

Within four years Trump and his fixers had overhauled much of the federal judiciary. In addition to restocking the Supreme Court, they had filled “54 of the 179 appeals court judgeships, or 30 percent, and 177 of 682 district court judgeships (26 percent).” Among this last group is the judge in Texas who just ruled againstvthe F.D.A.’s longstanding approval of mifepristone, the drug used in more than half the country’s abortions. 

From the outset Trump easily “pulled the justices down in the dirt with him at various points,” Biskupic notes, especially on anti-immigration matters like “the Muslim-country travel ban” and Trump’s brazen decision to siphon $2.5 billion allotted to the Defense Department into his promised wall along the Mexican border. And with the arrival of the three new justices, all “textualists” and acolytes of Scalia — Barrett clerked for him — the negotiator Roberts, stripped of effective authority, ceded it to the more ideological and belligerent Clarence Thomas and Samuel Alito.

Collectively, however, the entire judiciary passed the crucial test of the 2020 election. Trump’s boast that “my judges” would support his “Big Lie” was wrong. One judge after another in courts across the land threw out the specious claims of voter fraud, and when they reached the Supreme Court, Biskupic reminds us, they “drew not a single vote.”

The court could swing back in his favor when it rules on a new major case, a North Carolina proposal that would make individual state legislators “kingmakers of a sort, able to name the electors who would then decide which presidential candidate received the state’s electoral votes,” overriding the will of voters and freezing out state courts. As many as four justices seem open to the idea and its premise, the “independent state legislature theory,” which is shallowly rooted in a single line of the Constitution and resembles arguments that surfaced when Vice President Pence was being pressured to decertify the 2020 election results. If a fifth justice agrees, the result could be the most radical restructuring of elections in modern history, with direct consequences in 2024.

The deeper message of “Nine Black Robes” is that even with a new president in office we remain captive to the Age of Trump. His influence lives on, Biskupic suggests, in the court itself — not only in its jurisprudence but also in the new justices’ Trump-inflected disdain for protocol and ceremony. The first to join the court, Neil Gorsuch, did not bother to attend “the justices’ first private session after his Senate confirmation” and then pushed to make remarks at his own investiture, with Trump present.

Next came Brett Kavanaugh’s bitter outburst during his confirmation hearing, when, in what sounded like mimicry of right-wing conspiracy theorists, he lashed out at what he called “a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election” as well as “revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.”

And there was Barrett, who, stung by criticism after she helped overturn Roe v. Wade, crassly protested in simon-pure Trumpese, “This court is not comprised of a bunch of partisan hacks.”

Biskupic also measures the effect of the Covid pandemic, which began to fray relations among the justices and embroiled them in the same battles over health and safety that degraded and polarized the nation. Much was made at the time of Gorsuch’s refusal to wear a mask during the resurgence of the Delta variant, despite the concerns of Sotomayor, a diabetic. Biskupic records further instances of “deterioration” when the justices — no longer able to meet face to face in private session, where they customarily shed their priestly vestments and talked over cases — were forced into isolation and began acting out, taunting one another like internet trolls, their animosities “laid bare in public opinions” that included the “impugning of motives” and ad hominem remarks.

The low point, in Biskupic’s estimation, came in Alito’s majority opinion in Dobbs, notoriously leaked to Politico, in which he triumphantly declared that until the second half of the 20th century “there was no support in American law for a constitutional right to obtain an abortion. Zero. None.” The last two words were excised from the final draft, but echoed on thereafter, as did Alito’s heckling tone.

Meanwhile, public confidence and trust in the court has “dropped precipitously,” Biskupic laments. But in truth the decline began long ago. In what some now recall as a golden age, a retired justice sent a worried note to a former colleague: “Some of the intemperate language in dissents reached the level of personal criticism” and if it continued might “lessen public respect for the court as an institution.” 

Of course we now have Justice Thomas’s bought and paid for receipts, Justice Robert’s wife and her unreported 10 plus million dollar “salary,” Gorsuch’s problem with his unreported monies.

My Notes:

Pg. xi:  This book describes the Supreme Court during a historic period in American law influenced by the presidency of Donald Trump and its aftermath.  The Court overturned nearly a half century of abortion rights, obliterated protections of the 1965 Voting Rights Act, curtailed government regulatory power, and blurred the separation of church and state.  The transformed Court was decades in the making, but its character was solidified by the three appointees of Trump.  From his campaign of 2016 into the early years of the Biden administration, tensions within the Court spiraled.  The justices maneuvered uneasily around each other.  Two deaths marked this period—Scalia’s in 2016 and Ginsburg’s in 2020—as did the COVID-19 pandemic.

Pg. 9:  The Court was already split along political and ideological lines before Trump.  And its makeup already had been heavily influenced by the conservative agenda led by the Federalist Society, founded in the early 1980s.  But Trump and his three appointees propelled the judiciary into a new period of polarization.

Pg. 22f:  Scalia’s contribution to two methods of judicial interpretation could not be overstated: originalism, centered on an understanding of the Constitution at its eighteenth-century adoption; and textualism, focused on the exact words of a statute, without regard to floor statements, committee reports, and other congressional legislative history.  Scalia’s most notable majority opinion was the 2008 decision declaring that the Second Amendment covers an individual right to bear arms for self-defense in the home, in the case of District of Columbia v. Heller.  (note: I actually agree with this.)

Pg. 42:  The number of Supreme Court seats is set by Congress and has varied over the centuries, from a low of five to a high of ten. Since 1869, the number has remained set at nine. 

Pg. 47f:  Perhaps Robert’s most difficult period before the Trump era arose over the Affordable Care Act in 2012, when he switched votes to uphold the health care legislation.  Fellow conservatives felt betrayed when Robert’s reasoned that the Act could be upheld under Congress’s power to tax.  However, Roberts then produced a 5-4 opinion in a voting rights case, Shelby County v. Holder, striking down a section of the Voting Rights Act that required states with a history of discrimination to obtain advance approval for any electoral change.  The provision of the 1965 law covered mainly southern jurisdictions.  Roberts wrote that things had changed in the South and all of America and that the preclearance requirement was no longer needed.

Pg. 50:  Obergefell v. Hodges (2015) made same-sex marriage a constitutional right.  Kennedy, writing for the majority, wrote that attitudes toward gay rights had changed, and that ‘under the Due Process and Equal protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of the right to marry.”  “The nature of injustice,’ he said, ‘is that we do not always see it in our own times.

Pg. 112:  McConnel’s tactics on delaying appointments of judges during Obama’s presidency were effective.  When Trump came into office there were one hundred lower-court seats waiting to be filled. 

Pg. 156:  On June 27, 2019, the Rucho v. Common Cause decision forbidding federal judges from reviewing extreme partisan gerrymandering was handed down.  It would affect all states and reverberate as the country headed into the 2020 census and a new round of redistricting.  Roberts said that concerns about fairness in state legislative redistricting should be addressed by elected officials, not judges. 

Pg. 186:  The national momentum beyond the judicial sphere favored the acceptance and legalization of gay rights:  By 2022 some eighteen million adults in the U.S. identified as LGBTQ.

Pg. 206:  On March 12, 2020, all government facilities, including the Supreme Court, began to shut down and, when possible, work remotely due to the pandemic.  President Trump, after downplaying the virus for weeks, announced that the nation was suddenly at a critical moment in fighting the virus. 

Pg. 213:  Legislation first introduced in 2001 and known as the Development, Relief and Education for Alien Minors (DREAM) Act had stalled.  So, in 2012 Obama set up a temporary program to protect these so-called Dreamers from deportation and allow them work permits.  Among other requirements, they had to have arrived before age sixteen and been in the US for at least five years, and have no criminal record.  The program, Deferred Action for Childhood Arrivals (DACA), was intended to be a temporary and offered no path to citizenship.  By 2019 when the Supreme Court reviewed the program, some 700 thousand people were involved.  The controversy arose because President Trump wand to rescind DACA as part of his broader effort to keep immigrants, especially Hispanics coming across the border, out of the country.

Pg. 215:  Presidents and agency official have wide latitude to rescind the practices of past administrations and to institute new ones, but they must abide by Administrative Procedure Act (APA) requirements.  An administration cannot rescind a policy in a way that would be considered ‘arbitrary and capricious.”  The strictures of the APA had foiled Commerce Secretary Wilbur Ross in the controversy over whether a citizenship question could be added to the 2020 census form.  Now states along with immigrant rights advocates, contended that the Trump administration had bypassed procedural requirements as it tried to roll back DACA.

Pg. 257:  Barrett’s 52-48 vote in the senate marked the first time since 1869 that a president had nominated someone who was confirmed without any support from the opposition party.

Pg. 258:  On election day 2000 in Florida the presidential candidates were only separated by 537 votes out of six-million cast.  A recount was mandated, but after thirty-six days of uncertainty regarding Bush or Gore could claim Florida’s twenty-five electoral votes, the Supreme Court by a 5-4 vote stopped the recounts and ensured that Bush was declared president.

Pg. 269:  Even with the cloud of COVID and additional controversy over state electoral rules, voter participation reached record levels in November 2020.  The American electorate cast nearly 158.4 million ballots, for a turnout 7 percentage points higher than in 2016.

Pg. 305:  In 1992, the Court affirmed the central holding of Roe by a 5-4 vote in the case of Planned Parenthood of Southeastern Pennsylvania v. Casey.  With five Republican appointees in the majority, the Court endorsed the viability line, estimated at about twenty-three weeks.  (Obviously this was before the Federalist Society influence on Republican appointees.)

Pg. 309:  Texas in the summer of 2021 passed a law that banned abortions at the first sign of cardiac activity, roughly six weeks.  Officials added a cunning twist to their ‘heartbeat law,’ delegating the enforcement of the ban to private citizens.  It was a way to insulate state officials from lawsuits and try to ensure that judges would not block enforcement.

Pg. 316:  The case, New York Rifle & Pistol Association v. Bruen (June 2022) marked the first time the justices declared a right to carry a weapon outside the home; another 6-3 vote with the Conservative new super-majority.

Pg. 325:  In late 2022 the Court announced that in upcoming months they would reexamine voting rights and possibly accord state legislatures greater power over elections, consider an end to university affirmative action; and weigh another challenge to a state civil rights law forbidding businesses that provide wedding-related eservices from discriminating against same-sex couples.  The Court had no middle, no center to hold.  Trump, who had demonstrated so little respect for the law, truth, and democracy, had changed the balance for at least a generation.