Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months that Transformed the Supreme Court by Linda Greenhouse

Random House, 336 pp.

By Geoffrey R. Stone

In Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months that Transformed the Supreme Court, Linda Greenhouse offers a detailed, insightful and powerful analysis of the current state of the Supreme Court and of the potential impact of Donald Trump’s appointment of Amy Coney Barrett to succeed Justice Ruth Bader Ginsburg. A Pulitzer Prize-winning journalist, Greenhouse for more than three decades has established herself as perhaps the most influential commentator on the Supreme Court. As suggested by her title, in this work she focuses on what may well be a truly pivotal shift in the mission and role of the Court in our American democracy.

At the core of Greenhouse’s analysis is the Court’s performance during the 2020-2021 Term. On September 18, 2020, Ginsburg died of metastatic pancreatic cancer. She was the best known member of the Court, and Greenhouse notes that the nation was “stunned by her death and by its implications, with Election Day only six weeks ahead.” For Senator Mitch McConnell, “this was not a time for mourning, but for business, and he was ready.” Although McConnell had blocked President Obama’s nomination of Merrick Garland allegedly because it occurred in the final year of Obama’s term, he raced to confirm Trump’s nomination of Barrett to replace Ginsburg in the days before the 2020 election.

As Greenhouse observes, at this critical moment in the Court’s history Barrett “was the perfect choice.” What the Republicans wanted most was a justice who would advance religious freedom and vote to overrule Roe v. Wade. Indeed, this goal had been central to the Republican mission for decades, and as Barrett declared in a commencement speech in 2006 to law students at Notre Dame, her own alma mater, “keep in mind that your legal career is but a means to an end,” and that end “is building the kingdom of God.” With Barrett’s confirmation on an almost perfect party-line vote only eight days before the election, the Court, as Greenhouse notes, now had six Republican-appointed justices, all of whom had been raised Catholic. This was no accident.

In the years before the 2020 Term and Barrett’s appointment, the Court had already had a majority of five Republican-appointed justices. With that makeup, on sharply divisive issues, Chief Justice John Roberts was often the deciding vote. With a desire to protect the Court’s reputation as a body consisting of politically neutral justices rather than political actors, Roberts had worked to maintain that vision of the Court by sometimes moderating his own positions. But now, with six Republican-appointed justices, Roberts’s vote was no longer essential to form a conservative majority.

Several years earlier, Roberts had rebuked Trump for lashing out against what he called “Obama judges.” Defending the judiciary, Roberts responded that “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.” But with Trump’s appointment of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, Greenhouse wondered whether “the future would judge” the 2020-2021 year to be “the dawn of the Trump Court.” Indeed, with the confirmation of Barrett, Greenhouse suggested that Roberts will no longer be central to the Court’s decisions. In the preceding year, for example, he had voted with the majority in ninety-six percent of the cases. Going forward, Greenhouse predicts that, with Barrett in Ginsburg’s seat, Roberts’ role will be much less essential to the conservatives as the Court moves even farther to the right.

Through the chapters in this book – one for each month during the Court’s 2020-21 Term — Greenhouse explores in stunning detail a broad range of issues that confronted the Court, including questions arising out of the 2020 presidential election, the death penalty, COVID and its impact on worship services, the demands of individuals sentenced to death for the presence of religious representatives of their choice, the Affordable Care Act, the constitutionality of various voting accommodations related to COVID, search and seizure, the Second Amendment issues, and fundamental issues involving the meaning of the free exercise of religion.

In at least some of these cases, the presence of Barrett made all the difference. In one case involving religious accommodations during COVID, for example, Barrett joined Thomas, Alito, Gorsuch and Kavanaugh, whereas Roberts, Breyer, Sotomayor and Kagan did not agree. As Greenhouse notes, “thanks to Amy Coney Barrett,” the four more conservative justices “finally had the votes . . . to shape the law of religion to their liking.”

As Greenhouse documents, “the fissure between Roberts and the justices to his right only seemed to grow” as the Term progressed. Moreover, the reactions of the more conservative justices to Roberts’ relative moderation, particularly those of Gorsuch, were often “scathing.” Indeed, according to Greenhouse, Gorsuch, whom she described as an “unrestrained firebrand,” was “developing a specialty in taunting the chief justice.”

Roberts, though, in Greenhouse’s view, “had his own reasons for incrementalism – or for what looked like incrementalism.” Indeed, “unlike Gorsuch, Roberts was patient.” Although he might want to get to the same place as his more conservative brethren, “he saw the utility in planting seeds that could germinate and grow” over time. His strategy, in at least some cases, unlike his more impatient colleagues, was often to gradually “move the law so far down the road that the slightest touch could push it over the finish line.” The end result “would appear to the public as all but inevitable.”

In concluding, Greenhouse maintains that “2020-21 was the term the fourth wall disappeared.” That is a reference to the notion that an actor breaks the fourth wall “by acknowledging the audience and thus dispensing with the fiction that the action on stage is anything other than a play.” As Greenhouse notes, when Barrett, “only weeks after her confirmation, abruptly shifted the balance the Court had previously struck between religion and public health in the context of the COVID pandemic, the country saw what it meant to have a Court ‘differently composed than it was’” before.

Over the past half-century, the Court had had an “ideological center” usually consisting of a single justice, shifting over time from Lewis Powell to Sandra Day O’Connor to Anthony Kennedy and then only briefly to John Roberts. “Each of these median justices, Greenhouse observes, “was appointed by a Republican president, and each . . . was more conservative than the one before.” In 2020-21, however, “a swing justice was missing.” In short, the conservative majority was now so well entrenched that there was no need for a swing justice. This in effect “left the Court . . . vulnerable to being written off as just another political branch of government.” And there, she concludes, things now stand. . . .

Geoffrey R. Stone is the Edward H. Levi Distinguished Service Professor at the University of Chicago. During the Supreme Court’s 1972 Term, he served as a law clerk to Justice William J. Brennan, Jr. He is the author or co-author of many books on constitutional law, including Leaks, National Security and Freedom of the Press (2021); Democracy and Equality: The Enduring Constitutional Vision of the Warren Court (2020); The Free Speech Century (2018); Sex and the Constitution (2017); War and Liberty: An American Dilemma (2007); Top Secret: When Government Keeps Us in the Dark (2007); and Perilous Times: Free Speech in Wartime (2004). Mr. Stone’s books have received many national awards, including the Robert F. Kennedy Award for the Best Book of the Year, Harvard University’s Award for the Best Book of the Year in Public Affairs, and American Political Science Association’s Award for the Best Book of the Year in Political Science.