“These are the times that try men’s souls,” Thomas Paine wrote in “The American Crisis” about the political troubles of the mid-1770s. The phrase could also be used 2½ centuries later in describing the current struggles.
But Americans in the 21st century have remedies at their disposal Paine and his fellow Colonists could only dream of: a Constitution that outlines the supreme laws of the land, an elected Congress that passes legislation to address contemporary issues, and a Supreme Court that interprets such legislation to see if it’s compatible with the Constitution.
A triumph of checks and balances, right? Hardly, argues David A. Kaplan.
In “The Most Dangerous Branch,” the former Newsweek legal affairs editor pens a comprehensive and, sadly, convincing argument that arrogance, identity politics, incivility, partisanship and a winner-takes-all ethos has perverted the mission and effectiveness of the nation’s highest court.
This isn’t some hollow rant about “activist judges” or a pointless dissection of the originalism-vs.-living Constitution debate. Kaplan, an Ivy League law graduate who’s covered the Court for a decade, revisits the path the judiciary has followed for the past half-century. He’s clearly worried the court’s triumphalism is scarring the legal fabric that holds the nation together; if citizens seek government by judiciary, he states, they no longer have a democracy.
Kaplan examines each justice sitting on the John G. Roberts court. He also probes how rancor-filled confirmation hearings eroded confidence not only in the Court, but also the Senate.
The author also probes the rulings on difficult-to-decide issues that drove Americans into their ideological camps: abortion, gun control, campaign contributions, voting rights, gay marriage and the Affordable Care Act.
Are there simple answers to these perplexing issues? Most likely not, Kaplan argues, but they are disputes best reserved for legislators, who must answer to the electorate. That’s not a concern inside the marble temple at the corner of East Capitol and First Street in D.C.; the justices who are supposed to employ cool judgment, prudence and timing can resort to pettiness, radicalism and arrogations of power.
Kaplan is indirectly asking Americans to ask themselves if they truly believe in democracy. Hard choices require hard decisions; isn’t that best left to the masses than a group of nine?