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New Book Warns Of The Supreme Court's Power

MICHEL MARTIN, HOST:

The Senate Judiciary Committee opens hearings Tuesday into the nomination of Brett Kavanaugh to the U.S. Supreme Court. Democrats have tried unsuccessfully to slow this down. They've asked to review more documents relating to Kavanaugh's past work. They've also questioned the propriety of confirming another Trump nominee when the court may have to rule on sensitive legal matters involving the president.

With all this in the air, we're going to begin our program today with a conversation about a new book out Tuesday. It's called "The Most Dangerous Branch: Inside The Supreme Court's Assault On The Constitution." The title is a play on Alexander Hamilton's assertion in the Federalist Papers that the judiciary would be and indeed should be the least dangerous branch of government. The author of the new book, David A. Kaplan, argues that's not the case now and that Americans have come to accept a court that repeatedly oversteps its role.

DAVID A. KAPLAN: Obviously, the president can initiate war and send troops to faraway lands, and Congress can pass foolish laws or pass no laws at all. But I think, in the long run, what the Supreme Court has done in recent decades poses a more insidious risk to self-government. I think the court, by inserting itself so often into controversial political, social and political issues and largely overruling what legislatures, what other branches have done, hurts its own legitimacy. It wounds the other branches. It distorts presidential elections, like we saw most dramatically in 2016. And it helps lead to the kind of circus we're going to see this week on Brett Kavanaugh.

MARTIN: When did this start? I mean, was it ever thus? I mean, you make the case that these justices are actually really driven more by their political views to reach a certain conclusion. Was it always that way, or did it start somewhere?

KAPLAN: You can see strands of it at different points of the 20th century, but I think the important marker is Roe v. Wade in 1973, where the court issued a ruling declaring a constitutional right that, at best, was controversial. I think it got worse. For example - I can't - you can't discuss every case - is Bush v. Gore in 2000. Completely different context - disputed presidential election - but I argue in the book they're kind of symbolic bookends - that Bush v. Gore was the right's revenge for Roe v. Wade. Let the court decide.

And Bush v. Gore was the classic instance where Congress was designated in the constitution to resolve disputed presidential elections. Congress had no role, and they didn't raise a peep when the nine unelected, unaccountable justices across the street at the marble temple decided the election. The Roberts court in the last ten years has only accelerated the trend.

So whether it's on gun control, campaign finance and Citizens United, voting rights under the Voting Rights Act of 1965, the court has taken unto itself the role of resolving those policy disputes. And I argue in the book no. In those cases, what they should have said is not our job.

MARTIN: You have a lot of reporting in the book about the personality dynamics on the court. Is there anyone on the court who takes the position that you do - that the court is consistently overstepping its authority? Has anyone attempted to intervene in this?

KAPLAN: They all preach restraint, but I think the justice on the court who most closely behaves in the way that I would argue was appropriate actually is Justice Breyer on the liberal wing of the court. Justice Breyer has voted to uphold more acts of Congress than any other justice on the court.

MARTIN: So you argue that this kind of activism may have started with Roe, but then the conservative wing has - I don't know what you want to say - taken the ball and run with it. I mean, I'm asking you in part to speculate, but do you think if, say, for example, President Obama had succeeded in having his nominee confirmed that perhaps it would not continue as it does?

KAPLAN: Merrick Garland, I think, would have been quite close to Justice Breyer. Obama picked Garland not because he was his ideal kind of justice but because - for political reasons. In the 2016 presidential election, after Justice Scalia suddenly died, you heard liberals and conservatives, Trump supporters and Clinton supporters both saying the next justice could well determine American social policy for a generation or more. All they were disagreeing about is who that justice would be. Nobody questioned whether we ought to be giving that kind of power to one judge.

MARTIN: Honestly, Mr. Kaplan, it's almost like you've expressed publicly and deeply reported and researched what many people have been saying privately, which is that this branch has become another political entity and that it exists to further the political agenda of a particular group of people. So if citizens share your concern - that this is not what the founders intended - what should they do?

KAPLAN: Well, I think citizens will say that when it suits them, so that when the court constitutionalizes same-sex marriage, you don't hear many supporters of same-sex marriage criticizing the court taking the issue on. I do. Same thing with Roe v. Wade. And, on the other side of the coin, if you support gun rights, if you think an individual has a right to have a handgun in the house, then you're altogether thrilled when the Supreme Court says you do instead of saying, I would have preferred to achieve that victory legislatively.

MARTIN: One tidbit from the book that's stood out for me - there were a number - but that Sandra Day O'Connor, the former justice, the retired justice, unusually chose to retire for personal reasons, expressed regret about her vote in Bush v. Gore.

KAPLAN: Well, she - in the later years, she expressed regret. Maybe it was better for the Florida Supreme Court to have handled the matter. But what I report in the book, her husband, John O'Connor, shortly after Bush v. Gore, told a dinner table of guests at a charity function that his wife knew that the decision was wrong when she made it in 2001. But she did so because she wanted Bush to win. She didn't feel she could - that she wanted to retire under a Democratic administration, and that meant siding with Bush. She wanted to leave the court because her husband was increasingly ill with Alzheimer's.

MARTIN: That is very disturbing that such a consequential decision is made for really very narrow personal reasons. And what should we conclude from that?

KAPLAN: I think what you conclude from that is that, to the extent that these are human beings, it's all the more reason for members of the court to be humble, to be restrained, to be minimalists, to be gradualists. And I think the democratic branches - state legislatures, Congress and the elected presidency, whatever you think about this president - I think they suffer from that kind of court.

MARTIN: That is former Newsweek legal affairs editor David A. Kaplan. His latest book is called "The Most Dangerous Branch: Inside The Supreme Court's Assault On The Constitution." David A. Kaplan, thanks so much for talking with us.

KAPLAN: Thank you for having me. Transcript provided by NPR, Copyright NPR.