Joan Biskupic is senior supreme court analyst at CNN, a Pulitzer finalist and an established biographer. In her latest book, she seeks to make sense of the court during and after the presidency of Donald J Trump, culminating last June when five conservative justices overturned Roe v Wade, the ruling which guaranteed access to abortion. In one swoop, the court gutted the rights revolution of the 1960s and 1970s.
It was more important for the favourites of the Federalist Society to be “right” than smart. As we saw this week, Wisconsin Democrats say thank you.
On the US supreme court, the majority in Dobbs v Jackson, the abortion ruling, said personal autonomy lacked constitutional safeguards unless explicitly enumerated in the text of the document. Precedents protecting the right to contraception, interracial marriage, same-sex relations and marriage now stand on shaky ground.
“In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence and Obergefell,” Clarence Thomas wrote in his concurring opinion in Dobbs, referring to the rulings on contraception, same-sex relations and marriage.
Thomas did not mention Loving v Virginia, which guaranteed the right to interracial marriage. He is Black. His wife, the far-right activist Ginni Thomas, is white.
Biskupic knows the history of the court. In earlier biographies, she studied the chief justice, John Roberts, the liberal justice Sonia Sotomayor, the retired Sandra Day O’Connor and the late Antonin Scalia.
As expected, Nine Black Robes is well researched. Biskupic plumbs the papers of the late William Brennan, a liberal appointed by Dwight D Eisenhower in 1956. But her book also contains more than its fair share of chambers chatter.
Biskupic captures the unease of some court members at being used as props by Trump. They felt “tricked”. Trump assured them a party for Brett Kavanaugh, his second nominee, would not turn overtly political. It did.
“Some justices told me later that they were sorry they had gone,” Biskupic writes.
Among the “stone faced” justices at the White House, Thomas was “conspicuously enthusiastic, alone applaud[ing] heartily after Kavanaugh spoke”. Later, Thomas’s wife would seek to help Trump overturn an election.
Biskupic also recounts tensions between Roberts and Neil Gorsuch, Trump’s first conservative pick for the court. Gorsuch did not attend his first scheduled justices-only meeting. Roberts’s entreaties meant little.
According to Biskupic, Gorsuch penned dissents and chivvied other justices. For example, in Torres v Madrid, a police abuse case, he “suggested his colleagues were kowtowing to policing concerns and the Black Lives Matter movement”.
In his dissent, Gorsuch asked: “If efficiency cannot explain today’s decision, what’s left? Maybe it is an impulse that individuals like Ms Torres should be able to sue for damages. Sometimes police shootings are justified, but other times they cry out for a remedy.”
Gorsuch also accused the majority of a “schizophrenic reading of the word ‘seizure’”. The chief justice was not amused.
“The dissent speculates that the real reason for today’s decision is an ‘impulse’ to provide relief to Torres,” Roberts noted. “There is no call for such surmise.”
Comity and appearances do not weigh heavily on Gorsuch. As Biskupic notes, his mother, Ann Gorsuch Burford, was administrator of the Environmental Protection Agency under Ronald Reagan but was found in contempt of Congress, a first for an agency head. She resigned, feeling used.
After less than a year on the court, Gorsuch spoke at the Trump International hotel in Washington, addressing a “Defending Freedom Luncheon” sponsored by the Fund for American Studies, a conservative group. As Biskupic notes, the hotel then stood “embroiled in litigation about unconstitutional financial benefit for the president who appointed him”.
Gorsuch’s appearance may have been an act of contrition, designed to placate Trump’s wrath. Months earlier, Gorsuch reportedly conveyed criticism of the president to Richard Blumenthal, the Democratic senator from Connecticut, during a courtesy call. Trump’s attacks on the judiciary were too much even for Gorsuch.
But he is not the only justice with limited bandwidth for playing nice. Biskupic “learned” that Sotomayor circulated “a blistering draft dissent” which caused colleagues to back off from barring racially conscious preferences in college admissions. Now, Sotomayor’s luck may be running out. In challenges to affirmative action at Harvard and the University of North Carolina, the court is expected to strike down race-based admissions.
Two years ago, Sotomayor attacked Kavanaugh’s legal reasoning in a case that involved a juvenile life sentence without parole.
“The court is fooling no one,” she thundered, in Jones v Mississippi. “The court’s misreading is egregious enough on its own … The court twists precedent even further.”
Biskupic also considers Trump’s legal woes, reporting on deliberations surrounding a ruling in favor of Cy Vance Jr, then Manhattan district attorney, in June 2020. The court upheld a subpoena demanding eight years of Trump’s tax returns. Voting 7-2, the court rejected Trump’s contention that he was immune from investigation simply because he was president. A little more than two years later, Trump stands indicted in the same jurisdiction.
“We cannot conclude that absolute immunity is necessary or appropriate under article II or the supremacy clause,” Roberts wrote in 2020. “No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding.”
But the margin of the decision was not preordained.
Biskupic writes: “In their private telephonic conference, the Trump v Vance case produced a 5-4 split, I later learned, to affirm the lower-court judgment against Trump.”
Roberts’s cajoling made a difference.
“Over the course of two months he coaxed and compromised,” Biskupic writes. “Only Thomas and Alito declined to sign on.”
Nowadays, Biskupic laments, “the court has no middle, no center to hold.
“… Donald Trump, who had demonstrated so little respect for the law, truth and democracy, changed the balance for at least a generation.”
Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences is published in the US by HarperCollins
