Is the Supreme Court the Most Dangerous Government Branch?

CHRISTIANE AMANPOUR: Today, Stephen Breyer formally announced that he would be retiring from the U.S. Supreme Court. And President Biden confirmed that he will keep a campaign promise to select a black woman to replace him. In his latest book, “The Most Dangerous Branch,” David A. Kaplan warns against the growing polarization of America’s highest court. And he joins Michel Martin to discuss where it goes from here.

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MICHEL MARTIN: Thanks, Christiane. David A. Kaplan, thank you so much for joining us.

KAPLAN: Glad to be with you.

MARTIN: So, you have known Justice Breyer, you have followed his career for some 30 years now. What has been his strength on the court?

KAPLAN: Breyer, I think, is an icon of collegiality on the court, sometimes to his detriment. I think, sometimes, for example, he’s regarded as a bit of a Pollyanna, so that, last year, when he talked about the risks of politicizing the court, many on both sides of the aisle noted that that ship had passed. But I think his strengths are positivity, object — a sunnier view of things than perhaps some of the more skeptical or cynical members of the court have. I also think that what — however one chooses to define him in terms of partisan politics, he’s the true institutionalist on the court. Chief Justice Roberts, I think, likes to assume that mantle, but it is Breyer who in the best senses of judicial tradition respects the modesty of the court and respects other branches and respects experts And that will be lost no matter who succeeds him.

MARTIN: You consider him, in some ways, would it be an exaggeration to say kind of the ideal jurist?

KAPLAN: I think, among the current mine, though I love my children equally, he would be the one I most respect. But I think he’s also the true conservative on the court. We think of conservative and liberal as whether your thumbs up or thumbs down on abortion or gun control or vaccines or immigration or affirmative action, but when we’re thinking about the court’s role, what is its place in the constitutional system? It may be the most powerful court in the history of the world. But, sometimes, the court does best when it does not act. The court hasn’t much done that over the last 50 years, I argue, to its detriment. But it is Breyer more than the others who has deferred to other branches and deferred to experts. And I think he gets a bad rap for simply being identified as a leader of the left.

MARTIN: So, why now? To the degree to which justices are susceptible to any kind of pressure, I mean, this is a lifetime appointment, if they so choose. There were a number of progressives who had been agitating for him to step aside to give the current president an opportunity to make a nomination. But do you have a sense of why now?

KAPLAN: Sure, because the Senate may switch to — switch over to the Republican side come November. And Breyer is a student of the Senate. He is not stupid. He knows that the ability of Biden to name a successor come past November may be impossible. Breyer is also 82. He has said, I don’t want to die on the bench. He has grandchildren. And he also knows what happened to Ruth Bader Ginsburg, she stayed too long, and he would not say that, but they were friends, they were close, and he knows that and I think he recognizes better to leave a little bit too soon than a little too late.

MARTIN: And why though, because of one’s sort of ability to function in the role is compromised? What — why better would it be better to — is it because that’s the way to protect the things that he cares about intellectually or ideologically or why would you say?

KAPLAN: Much as he would — much as I think he would say otherwise, it’s a way to make sure that your successor is picked by a president you are morally aligned with, and as moderate and as modest as Breyer is. He comes from a democratic tradition. He was appointed by a Democrat, and he knows that whomever his successor is, a person appointed by Joe Biden rather than a 2024 Republican is going to be more to his liking. He is politically astute. He would say, I think, wrongly that the court is not about politics. When he said last year in a book that justices perhaps should not time their departures based on who is president, I think he was being both a combination of naive and winking at you. I don’t think anybody is surprised by him leaving now. I did not understand the left’s brief nine months ago when they wanted him to leave last June, because the Democrats were going to have control of the Senate through 2022. And unless you thought that an older Democratic senator was going to die, there was no great harm in Breyer to staying around and they will benefit from Breyer being on the court when the abortion and gun control and affirmative action cases come down in June.

MARTIN: So, let’s talk about potential successors, and is there a front- runner your view?

KAPLAN: I think that the frontrunner is Ketanji Brown Jackson who is now an appeals court judge in Washington. She recently was confirmed to that post by the Senate after being a federal trial court judge in Washington. She’s 51 years old. She’s the right age. She was teed up for this recent promotion to be in reserve for the Supreme Court. I think everybody likes her. The Senate didn’t lay a glove on her. She got some Republican votes. It’s hard to argue against her. I think the second choice would be Leondra Kruger who is on the California Supreme Court. She also like Jackson as a former Supreme Court. Kruger is 44 years old. She is younger. So, in that sense, she is attractive. But she has not withstood a Senate confirmation hearing. So, that makes her more of a liability. If you look at her rulings, she probably has more of a moderate modest instinct than Jackson. Now, that might make her appealing to Breyer, might make her more appealing to me, but I am not sure that the current political climate that would make her more appealing than Jackson. So, I think Jackson would be my odds-on favorite.

MARTIN: And would be — say, anybody sort of sails through this. But you are not tipping the ideological balance of the court, and neither would this nominee. But even having said that, is there any vehicle by which they, Republicans, could stall this one if they decided to?

KAPLAN: Other than taking a Democratic senator and shipping him or her off to the desert island, no. I have no doubt that Mitch McConnell would like to stall such a nomination and postpone the vacancy until after the 2022 midterms. But there is no legal or constitutional or political — or parliamentary move to make here. And I think you are right that the Republicans will be less invested in the sense that they are subbing out a “liberal” for another one. But the court does lose something. It gains something, it loses something. It gets younger. This will be one of the more younger courts in modern memory. There will no longer be octogenarians on the court. There will barely be justices in their 70s, one or two. But the court is going to lose, I think a voice of institutionalism, of moderation. Breyer doesn’t get enough credit for that, but I think that was important and that will disappear. But in terms of the overall ideological tilt of the court, it will still be the most radical — radically conservative court in 90 years, and the 6-3 tilt of the court will change.

MARTIN: We’ve ask you — so far, we have been asking you what you know. But now, I’m going to ask you what you think. And what is your critique of the role of the court in American lives and politics right now?

KAPLAN: We certainly have seen the dangers of a presidency in recent years, and we read about daily the dysfunction of Congress. Those are important branches of the federal regime. But I’ve argued that the Supreme Court is really the most insidiously dangerous branch of government. It runs country for many, sometimes most social and political issues. Think abortion, gun control, affirmative action, immigration, vaccines, gerrymandering, which the court sort of uniquely stayed out of. We are turn to the court to solve our toughest issues and we shouldn’t. Why should nine unelected, unaccountable judges determine so much of where we go as a country. Yes, you need a Supreme Court to resolve minority rights. I don’t mean African-American or Hispanic. I mean, the rights of those that majorities will not protect, like African-Americans and voting regimes. The court should have stepped in on gerrymandering. The rights of criminal defendants. The rights of free speech. Those are not going to be protected by majorities. They are unpopular. But all these other issues, why does the court get involved? It gets involved because it can. But that is a bad reason. And Breyer would tell you more than any of the others, sometimes we do best when we don’t act. We shouldn’t have act in in Bush v. Gore when we picked a president. We probably shouldn’t have acted as quickly and dramatically as we did in the case of abortion, though Breyer has never said so in writing, and never would. RBG certainly did, and was criticized for it. But there is almost nobody on the court now who — at all, let alone consistency says, what are we doing here? What our role? The chief has done it on occasion, in the gay marriage case. He wrote famously, who do we think we are? And that is great. But he also was the deciding vote in Shelby County which gutted the Voting Rights Act, passed overwhelmingly by Congress. So, the chief justice who likes to think of himself as an institutionalist might ask himself, who does the court think it is consistently overriding the decisions of representative of government? And I don’t think it is going to change. I think that we have all come to accept that the court is going to decide stuff. Think about vaccines of late. Wouldn’t you rather trust a federal system, whoever is president, and the federal, and federal agencies like OSHA to be deciding what is best rather than nine justices?

MARTIN: You’d say — and you take this position not because you disagree ideologically with their positions in the current regime, with the current membership, but because of an institution, the Supreme Court is looming too large as a decider of American life?

KAPLAN: It try to do that. It’s — you know, it’s a hard argument. The right has cited my book on the court, because it criticized Roe v. Wade, and of course, the right forgets that I criticize Shelby County and the gun control ruling and the campaign finance ruling. And the left will embrace my book but ignore what I have to say about Roe v. Wade. I think I’m an equal opportunity offender. The problem is, people confuse the structural argument, the legitimacy argument with the particular outcome of this (INAUDIBLE) case. I support extremely liberal abortion rights. I just don’t think it’s up to the courts to make that decision. Fight it out in the state legislatures and in Congress. That’s the way the system was set up. And all things equal, I would rather trust legislative majorities than trust unelected judges. It was great to love the justices of the Supreme Court during the Warren court era when Thurgood Marshall and William Brennan roamed the earth. But right now, you are seeing the perils of an aggressive judiciary. And conservatives like to talk about the judicial restraint for decades, they don’t talk about the judicial restraint anymore, because they have got the votes. And William Brennan famously said, he would hold up five fingers and he would say, with five votes, you can do anything here on the court. He would say it with a wink, but he — that’s how it worked with Brennan at the court. Now, that the conservatives have 5 1/2 or 6 votes, they’re going to take the ball and run with it. And in coming years, it is not abortion or gun control or affirmative action that I think the country a lot of worrying most about, I think it’s going to be the gutting of the federal agencies that has long been the project of conservative intellectuals. And I think what they did with OSHA in the case of the vaccines is sort of the camel under the tent. The powers of the EPA, of OSHA, or perhaps the SCC, I think you’re going to see the court take aim at those powers. The irony of those decisions is that in the vacuum where the agencies have less power, the power is not going to go to the states. You know where it is going to go? It’s going to go to the justices of the Supreme Court, and I think that is bad result.

MARTIN: Is there really any appetite for restructuring the court? I mean, people — you know, obviously, people who criticize it call it court packing, people who support it call it reform. I guess what I’m wondering is, do others see what you see and see that there is a need for the court to change the way it operates or to make the footprint smaller or the rein the court in? Because as you pointed out, the justices are not going to rein themselves in, at least they don’t seem willing to do that on any consistent basis.

KAPLAN: There’s certainly not a critical mass to do so. And. you know, my brief about the court, my complaint is held by some when it suits them. When I interviewed on background a majority of the justices for my book, I would ask them, what do you think about my critique? And they would say, I half agree with you. They would smile. Yes, they agree that the court is too triumphalist, too aggressive in the cases they don’t agree with. And those on the other side of the ideological ledger would argue that the other cases are (INAUDIBLE). It’s very few who I think have an even-handed approach. I think that Breyer, more than any of them. But, if you’ll recall, President Biden appointed a commission soon after he became president to look into reform, and they came out last year with the set of pretty namby-pamby wishy-washy observations. There does not seem to be an appetite, either there or in Congress or term limits, which Congress might not be able to adopt itself, you might need a constitutional amendment. That’s not going to happen. And court packing, adding seats to the court, which the Congress could accomplish is if you only held by the left. I argued in my book that finally that court packing would be a good idea, and not in the short-term. I think it would be highly destructive to the court. But I think in the long-term, the only way to reverse what the conservatives did with Merrick Garland or the rush job on Amy Coney Barrett is to fight fire with fire. You don’t bring a spatula to a knife fight. And the only way that Democrats can respond is in kind. And the only way to do that is to add seats to the court. Now, will Republicans add seats to the court? The answer is, sure. Maybe the bench becomes so big they’ll have to have Southwest Airline seating on the bench. But my hope would be that in time, five years or 50, both sides would agree to disarm. And you might return to a time when the court was more modest and more willing to be skeptical of the need to invoke its own powers. But is that is going to happen to the near term? Absolutely not. There’s no support for it or very little support for it.

MARTIN: David A. Kaplan, thanks so much for talking to us. You have given us a lot to talk about.

KAPLAN: Thank you. Good to be with you.