The Most Dangerous Branch

August 1, 2018
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.

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August 1, 2018

Kaplan, former Newsweek legal affairs editor, chronicles the modern Supreme Court and challenges its reputation as "the least dangerous branch." He argues that the Court has too much power and is too political. In the first half of the book, Kaplan examines the modern Court and its conflicts, including the long fight over a replacement for Associate Justice Antonin Scalia (1936-2016). He further asserts that the nomination and confirmation process skirts debate over important legal issues, thereby undermining an effective democracy. The second half focuses on cases that have negatively affected the Court, such as Bush v. Gore and Roe v. Wade. Kaplan contends that these and other high-profile cases should have been decided by Congress or by lower courts. By appropriating this power for itself, the Court has overstepped its role and weakened the other branches of government. VERDICT Aimed toward general readers, especially those interested in the judiciary, this book is well researched and raises valid questions. Recommended for public and academic libraries and.--Becky Kennedy, Atlanta-Fulton P.L.

Copyright 2018 Library Journal, LLC Used with permission.

September 10, 2018
Kaplan, the former legal affairs editor of Newsweek and a commentator who has appeared on both MSNBC and Fox News, turns constitutional scholar Alex Bickel’s classic 1962 book on the Supreme Court, The Least Dangerous Branch, on its head, persuasively arguing that the court has lost its bearings. Kaplan provides context for his argument with engaging, gossipy, and often highly critical sketches of each of the current justices and their judicial philosophies. His main focus is what he sees as the erosion of the court’s legitimacy, which he traces to Roe v. Wade, the abortion rights case vilified by conservatives and viewed with reverence by liberals. To Kaplan, Roe signified the Court’s willingness to abandon coherent constitutional theory in favor of ideological views in matters “best left for the democratically accountable branches.” He then takes readers through a scathing tour of recent Supreme Court decisions that he believes share Roe’s deficiencies—among them cases on the Second Amendment, the 2000 presidential election, the Voting Rights Act, and campaign finance—whose reasoning he variously describes as “laughable,” “fanciful,” “absurd,” and, most damningly, at odds with democracy. Kaplan’s thesis doesn’t favor either liberal or conservative views, and though readers may not agree with all of Kaplan’s conclusions, they will find this a passionately argued and credible indictment of the court.