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NINE BLACK ROBES: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences
Author: Joan Biskupic
Publisher: William Morrow/HarperCollins
Pages: 401
Price: $32.99
Though his troubles with the judicial system are legion, Donald Trump has shown a surprising reverence for judges. “Apart from matters of war and peace, the nomination of a Supreme Court justice is the most important decision an American president can make,” he said in September 2020, when he released “a specific list of the individuals” he was considering for the Supreme Court and dared his opponent Joe Biden to do the same.
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Little more than a week later Justice Ruth Bader Ginsburg died, and Trump nominated one of his pre-selected candidates, Amy Coney Barrett, to fill the vacant seat. With that Trump’s court was complete — a total of three justices, who turned a conservative bare majority into an aggressive “supermajority,” Joan Biskupic writes in Nine Black Robes, her chronicle of the court that may prove to be Trump’s most enduring legacy.
Biskupic, an accomplished and well-sourced journalist, knows the court as well as anyone now covering it. She has been a reporter at The Washington Post (and elsewhere), is currently a CNN analyst, and is the author of four solidly researched and well-written books about individual justices — two active ones, Chief Justice John Roberts and Sonia Sotomayor, and two departed giants, Antonin Scalia and Sandra Day O’Connor.
In her new book Biskupic has written a group narrative that combines close accounts of the court’s public business in the Trump years with a history of its private dramas and conflicts. The cast includes not only all the justices but also other figures who helped Trump find and select the nominees and then manoeuvred each through the maze of vetting and Senate hearings.
Not even Trump’s staunchest admirers make strong claims for him as a CEO, but in this instance he shrewdly delegated the winnowing of candidates to a skilled “triumvirate” of advisers: The White House counsel Don McGahn; Leonard Leo, maestro of the Federalist Society; and Senator Mitch McConnell, the majority leader still glowing with satisfaction after he kept President Obama’s third and last court pick, Merrick Garland, from even getting a confirmation hearing in 2016.
Within four years Trump and his fixers had overhauled much of the federal judiciary. In addition to restocking the Supreme Court, they had filled “54 of the 179 appeals court judgeships, or 30 per cent, and 177 of 682 district court judgeships (26 per cent).” Among this last group is the judge in Texas who just ruled against the FDA’s longstanding approval of mifepristone, the drug used in more than half the country’s abortions, rounding out the Dobbs decision that overturned Roe v. Wade and is for now the crowning evidence that “the Trump effect, especially in terms of the individuals chosen and the resulting shift in the balance of power, has been incomparable,” as Biskupic maintains.
The judgment feels premature but may well be right, at least if “effect” is measured by obedience to presidential whim. Collectively, however, the entire judiciary passed the crucial test of the 2020 election. Trump’s boast that “my judges” would support his “Big Lie” was wrong. One judge after another in courts across the land threw out the specious claims of voter fraud, and when they reached the Supreme Court, Biskupic reminds us, they “drew not a single vote.”
The deeper message of “Nine Black Robes” is that even with a new president in office we remain captive to the Age of Trump. His influence lives on, Biskupic suggests, in the court itself — not only in its jurisprudence but also in the new justices’ Trump-inflected disdain for protocol and ceremony. The first to join the court, Neil Gorsuch, did not bother to attend “the justices’ first private session after his Senate confirmation” and then pushed to make remarks at his own investiture, with Trump present.
Next came Brett Kavanaugh’s bitter outburst during his confirmation hearing, when, in what sounded like mimicry of right-wing conspiracy theorists, he lashed out at what he called “a calculated and orchestrated political hit, fuelled with apparent pent-up anger about President Trump and the 2016 election” as well as “revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.”
Biskupic also measures the effect of the Covid pandemic, which began to fray relations among the justices and embroiled them in the same battles over health and safety that degraded and polarised the nation. Much was made at the time of Gorsuch’s refusal to wear a mask during the resurgence of the Delta variant, despite the concerns of Sotomayor, a diabetic.
A quiet urgency ripples through this informative, briskly paced and gracefully written book. Biskupic the notebook-out reporter comes home anguished after interviewing Justice Stephen Breyer during his vacation in New Hampshire in the summer of 2021 amid growing pleas for him to retire, lest he repeat the dying Justice Ginsburg’s miscalculation of her staying power.
Meanwhile, public confidence and trust in the court has “dropped precipitously,” Biskupic laments. But in truth the decline began long ago. In what some now recall as a golden age, a retired justice sent a worried note to a former colleague: “Some of the intemperate language in dissents reached the level of personal criticism” and if it continued might “lessen public respect for the court as an institution.”
The reviewer is a former editor of the Book Review
©2023 The New York Times News Service