From a Wall Street Journal column by Kyle Peterson headlined “‘Nine Black Robes’ Review: A Curious Court Chronicle”:
Joan Biskupic’s “Nine Black Robes,” an account of the Supreme Court’s “drive to the right,” is the product of “more than a hundred interviews,” the author writes. Ms. Biskupic spoke with “a majority of the justices,” meaning at least some of the court’s conservatives politely sat for her questions. After using the book to opine that the court is “off the rails,” “going backward,” “laying waste to precedents” and so on, you wonder if she’ll be allowed back into their chambers.
Ms. Biskupic—a CNN analyst whose previous books include works on Justices Sandra Day O’Connor, Antonin Scalia, Sonia Sotomayor, and Chief Justice John Roberts—knows how to make news and illuminate the personalities atop the judicial org chart. When Justice Brett Kavanaugh joined a dissent chastising a district-court judge, for example, he sent the judge “a private note saying he did not intend to personally disrespect him.” The book reveals unseen sausage-making, with the meat grinder usually cranked by Chief Justice Roberts.
Take Masterpiece Cakeshop v. Colorado Civil Rights Commission, the 2018 case of Jack Phillips, who declined to create a cake for a same-sex wedding. Citing people “with knowledge of the negotiations,” Ms. Biskupic reports that then-Justice Anthony Kennedy “was reluctant to take up the baker’s case” until he and the chief justice “reached a mutual understanding.” The chief voted to reverse another pending appeal, so “lesbian parents in Arkansas could be jointly named on their children’s birth certificates, and Kennedy dropped his resistance to the Masterpiece Cakeshop petition.” The two announcements came simultaneously.
The chief justice’s entreaties haven’t always worked. After the leak of Justice Samuel Alito’s draft in Dobbs, the case that would overturn Roe v. Wade, the chief “continued for weeks to privately lobby fellow conservatives to save some element of a constitutional right to abortion.” His colleagues “never wavered.”
Unfortunately, Ms. Biskupic too often airs her own dissenting opinions. Terms like “right wing” proliferate. She refers to the court’s “five-member far-right bloc,” as if every conservative except the chief justice went and joined a citizen militia. Then comes “the right wing, including Roberts.” Flattening differences between the conservatives is a disservice to understanding reality. The chief and Justice Neil Gorsuch agreed on only 73% of judgments last term, whereas the chief agreed 63% with Justice Elena Kagan. Some bloc! To Ms. Biskupic, Justice Alito wears “a heavy cloak of grievance.” His tone can be “sour and even uncivil.” Yet Justice Sotomayor has a “go-it-alone style” and writes in “intensely personal terms about the cost to America of the Court’s direction.”
Foreshadowing Roe’s fall, Ms. Biskupic says it “would reveal whether the Court had lost its place in the life of the nation,” a phrase so meaningless it’s not even wrong. Amid the Dobbs arguments: “The idea of constitutional rights—at least to the conservative majority—was changing.” The case “had the potential to change everything for women.” Many people agree, which has aided Democrats at the polls. But would it surprise Ms. Biskupic that 51% of women told Gallup in 2022 that abortion should be illegal in the second three months of pregnancy, a policy Roe put off limits?
Worse, because it’s harder to detect, the book is often an unreliable guide to legal cases. As an appeals judge, Justice Amy Coney Barrett had “bolstered her conservative bona fides” on Second Amendment rights by arguing in a dissent that a blanket ban on gun ownership by felons was unconstitutional. Sound crazy? Not explained is that this particular felon was nonviolent and had been convicted (quoting Judge Barrett) for “falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and billing Medicare accordingly.”
During Covid, the feds banned evictions nationwide, under a public-health law that speaks of fumigation and pest control. When the ban expired, President Biden extended it. Then the court’s conservatives finally blocked the policy in Alabama Association of Realtors v. HHS. To Ms. Biskupic, this showed “just how much the justices wanted the federal government out of American life,” plus a “lack of deference to the new president.” But Mr. Biden extended thepolicy after five justices signaled it was illegal. He admitted on TV that “it’s not likely to pass constitutional muster.”
More puzzling is commentary on New York State Rifle and Pistol v. Bruen. The opinion by Justice Clarence Thomas, Ms. Biskupic says, “acknowledged that the Court was lifting up the Second Amendment over other constitutional rights by discarding the usual deference to legislative interests.” Maybe it sounds that way from the snippet she presents. But Justice Thomas’s explicit claim, as she might have quoted but doesn’t, is that he’s putting the Second Amendment on the same plane as the rest: “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works. . . . It is not how the Sixth Amendment works.”
The book says the Dobbs petitioners called Roe “egregiously wrong,” language “Alito later echoed in his opinion.” But both Justice Alito and the petitioners cite a 2020 rumination by Justice Kavanaugh on when to ditch precedent. Ms. Biskupic writes that Dobbs “favored fetal life over a woman’s right to choose.” That describes a ban on abortion, but it’s a strange framing for a ruling taking no position other than that it isn’t in the Constitution.
Casual readers might acquire a worse understanding of some cases than before, which is too bad, since the raw materials are free to read and hardly inaccessible. Alabama Association of Realtors is 16 pages, dissent included. Bruen is 135. Dobbs, minus appendices, is 178. Also, the Supreme Court uses the kind of 2.25-inch margins that would get a term paper docked, and the Justices are better writers than the average AP stylist. Want to know what the court is doing, and why? Read the court.
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