I was at a roundtable discussion back in the 1990s with a Supreme Court justice when the question of abortion came up. The full implications of the 1992 Planned Parenthood v. Casey decision had finally been internalized by the pro-life thinkers in the room, and Bill Clinton’s determination to defend even partial-birth abortion had made clear that the White House would nominate only determined supporters of abortion to the Supreme Court. A gloom seemed to seep in among us, darkening the room there in New York’s old Union League Club, creeping from the corners and climbing up the walls between the portraits of Grant, Sherman, and all the other Northern heroes of the Civil War.
But the justice urged us not to despair. He laid out a brief vision of public-intellectual arguments, referencing Aristotle’s Politics, and he insisted that losing isn’t the same as being defeated. One fails in an intellectual or jurisprudential battle on a topic of great concern—and one gets up the next day prepared to reargue that topic, when the great wheel of public life brings it around again. “For us, there is only the trying,” as T.S. Eliot observed in Four Quartets. “The rest is not our business.”
The vision was charming, inspiring, and accurate—for exactly nine people in America. Among all the other damage done by Roe v. Wade, one of the deepest harms to the republic came with the constitutionalizing of abortion. What Roe did in 1973 was lift abortion out of normal public debate and declare it a fundamental right—an entity of enormous gravitational weight that, like all constitutional rights, warps the fabric of law around it. And thereby, only members of the Supreme Court were able to engage in meaningful debate about the topic.
And so the justice was free to lose, say, the 2000 Stenberg v. Carhart case and come back in 2007 to win Gonzales v. Carhart. He was eloquent when he affirmed what he declared were Aristotelian elements of political interaction. But those elements were available only to Supreme Court justices. The rest of us seemed doomed to live instead in the world of politics described by Plato, awaiting only the gnomic pronouncements of the Guardians who rule us.
Interestingly, someone who sees this is David A. Kaplan, the former legal-affairs editor for Newsweek, whose recent book, The Most Dangerous Branch, arrived just in time to help frame the debate over Brett Kavanaugh’s nomination to the Supreme Court. Or, at least, the debate as it began, before it spiraled down into charges and counter-charges about adolescent memories and high-school yearbooks.
Still, Kaplan may have given us a way to understand even this swerve in the Kavanaugh saga. The book’s title is an inversion and denial of Alexander Hamilton’s claim in the Federalist papers that the courts promise to be the branch of government “least dangerous to the political rights of the Constitution.” Alexander Bickel had already walked some of this ground back in 1962, when he gave the somewhat ironic title The Least Dangerous Branch to his worries about judicial activism.
Kaplan is a determined liberal, profoundly unhappy with what he sees as a conservative majority on the Supreme Court. But he recognizes the kabuki dance of contemporary Court politics and Court reporting. As he notes, “Judicial activism” is always simply “what the other guy does,” regardless of one’s side in political debates—even though, “in truth, everybody’s an activist now.” He sees that, these days, “liberals and conservatives alike blithely rely on the Court’s members to settle society’s toughest issues—at the expense of the two branches of government that are designed to be democratic.” And as a consequence, we’re left with “an arrogant Court and an enfeebled Congress.”
The Most Dangerous Branch closes its historical analysis of judicial activism with furious critiques of such conservative decisions as the 2008 gun-rights case, District of Columbia v. Heller, and the 2013 voting-rights case, Shelby County v. Holder. But it opens with a full-throated denunciation of the activism of the abortion decisions. Kaplan realizes that, as a matter of constitutional law, Roe v. Wade was preposterous. The decision was an “inflection point” that revealed “the modern triumphalism of the Court—making it the most dangerous branch and, in so doing, undermining its legitimacy.”
A great deal of The Most Dangerous Branch is devoted to the current justices, relating an amazing amount of reporting about conversations and politics inside the Court. (These stories are admittedly from a large number of unnamed sources, which is understandable, given that they were certainly clerks whose careers would be damaged if they were known to have talked about their bosses. Still, the relentless parade of nameless sources weakens a little the reader’s ability to trust the gossip related—particularly as it tends to paint the conservative justices as jackals and the liberal justices as lions.) All in all, though, it’s unfortunate that discussion of Kaplan’s book has mostly focused on personalities, for his historical analysis is, within its liberal bias, generally helpful.
That’s not to say the gossip isn’t interesting. Precisely because the Supreme Court has taken on such a large role in our public life, who wouldn’t be fascinated by, say, Chief Justice Roberts’s dislike of being photographed in a way that reveals his growing bald spot? Or that Justice Kagan routinely yells at those who work for her? Or that Justice Gorsuch’s behavior on the Court has left his colleagues unable to “stand him most of the time”?
The particularities of our current impasse begin, for Kaplan, with the death of Justice Scalia in 2017, and The Most Dangerous Branch opens with a sketch of Scalia’s passing at the Cibolo Creek hunting ranch in Texas. From there, Kaplan thinks, we get the Republican Senate’s refusal to take up Obama’s nomination of Merrick Garland, the breaking of the filibuster of Gorsuch, and now Trump’s nomination of Kavanaugh, which Kaplan clearly expected to break along the lines of Gorsuch: nasty (in a way that has been systematically forgotten, as Noah Rothman recently noted in Commentary), but still intelligible down the line of polarized nominations guaranteed by the intrusion of the Supreme Court into what Kaplan sees as essentially political questions.
Unfortunately, Kavanaugh’s nomination broke off on a different path, nasty in whole new ways and promising an even greater nastiness in future hearings. As the Free Beacon’s Matthew Continetti observed on Friday, the past two Republican presidents, Bush and Trump, have replaced only justices put on the Court by other Republican presidents. If the nomination process has become this envenomed over Republicans, imagine what it will be if, say, Trump tries to replace Justice Ginsberg or some other Democratic nominee?
And yet, if we trace the history further than Antonin Scalia’s death, reaching past even the 1987 travesty of Robert Bork’s hearings and all the way back to Roe v. Wade, Kaplan’s The Most Dangerous Branch contains resources for understanding exactly why the nomination of a generally milk-toast, mainstream conservative like Brett Kavanaugh has produced screaming agitators, protesters in Handmaid’s Tale costumes (which, one recollects, came before the charges of high-school sexual assault), accusations that the nominee ran a gang-rape ring while a teenager, and claims that he perjured himself by misidentifying “farting” as the meaning of a slang term in a high-school yearbook.
None of this makes sense—unless nominations to the Supreme Court are the only truly meaningful occasions on which those who feel strongly about abortion can try to influence the real center of the political debate. If we have allowed Plato’s Guardians to take difficult political decisions away from us, then the choosing of those Guardians becomes an obvious occasion for a political fight. We shouldn’t be surprised if it proves just as nasty, unfair, partisan, and shameful as every other political fight.
For that matter, we shouldn’t be surprised if it proves even more nasty than other political fights. After the Senate votes on a nominee, the Supreme Court goes back to its high Aristotelian political debates. But the rest of us are locked out again—relegated to the sidelines until the next nomination.
Bad as the Kavanaugh spectacle has been for the health of the republic and the reputation of the Supreme Court, the next nomination will be even worse. The leftist protesters know that it’s all finally about Roe v. Wade. So do those pro-life writers who sat in New York’s Union League Club 20 years ago, listening to a Supreme Court justice tell them never to despair. And so do those who are rallying to Brett Kavanaugh’s support. It shouldn’t be so. But the Supreme Court made it so in 1973, and we all live downriver of that decision.
By: Joseph Bottum
(Washington Free Beacon)
Joseph Bottum is a professor of cyber-ethics and director of the Classics Institute at Dakota State University. His most recent book is An Anxious Age: The Post-Protestant Ethic and the Spirit of America.