Here & Now‘s Jane Clayson speaks with CNN senior Supreme Court analyst Joan Biskupic about her new book, “Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences.”
Book excerpt: ‘Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences’
By Joan Biskupic
This book explores how the Court and the country, prepared or not, reached this point. The conservative transformation of America’s highest court has long been building, accelerated by the efforts in the 1980s of President Ronald Reagan. Roberts, as a young lawyer, participated in that era, and on the contemporary Court has led the right-wing drive to erase voting rights protections and remedies for racial injustices, to forbid federal judges from reviewing extreme gerrymanders, and to lift campaign finance regulations. Relevant to the Texas case, Roberts had also tried to diminish reproductive rights.
But he was now witnessing a Court in overdrive, barreling ahead without him in deciding significant social issues.
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 the Trump presidency and the forceful influence of his three Supreme Court appointees propelled the judiciary into a new period of polarization. It is worth noting, for comparison, that Trump appointed three justices in four years, while the three prior Democratic presidents (Jimmy Carter, Bill Clinton, and Barack Obama) appointed only a combined total of four justices in their total twenty years in office.18
The Trump era stoked the justices’ ambitions, their political inclinations and defenses, strengths and flaws. Roberts initially was able to seize more control (based on the ideological composition of the nine) in the early Trump years but then found himself dissenting more frequently as the Court began to go off the rails. Gorsuch, Trump’s first appointee, stubbornly resisted Court protocols and derided Roberts’s reasoning in opinions. Gorsuch was the only justice who refused to wear a mask when the prevalence of COVID was high. Kavanaugh, Trump’s second appointee, seemed to struggle with his allegiance to conservative backers and his desire for acceptance among the legal elites who shunned him after his scandalous 2018 Senate hearings.
Justices Kagan and Breyer looked for any avenues for compromise with the conservatives to shield precedents that dated to the 1970s. The first Latina justice, Sotomayor, refused to compromise and regularly called out the destruction of constitutional norms. Conversely, Justices Thomas and Alito, holdovers from the first and second George Bush presidencies, were emboldened by the ascendant conservatism. Joined by the Trump appointees, they echoed the former president’s sense of aggrievement on culture war issues, from abortion rights to vaccine mandates. Their time had come.
For nearly all of the Trump presidency Justice Ginsburg was there, clinging to twentieth-century liberalism and trying to ward off the ravages of cancer and outlast the president. The effect of her death within weeks of the 2020 election was felt most deeply on the abortion rights cases.
Supreme Court eras are often identified by their chief justices, as is true of the current period that began with Roberts nearly two decades ago. But the Court can be measured also by presidential influence. Certain presidents, such as Franklin D. Roosevelt, who appointed eight justices in his twelve years in office, had a disproportionate effect on the Court. Ronald Reagan and Richard Nixon also stood out for their imprint. The Trump effect, especially in terms of the individuals chosen and the resulting shift in the balance of power, has been incomparable.19
He is gone from office and they are here for life.
This article was originally published on WBUR.org.
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