Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences by Joan Biskupic

Morrow, 416 pp.

By Paul Markowitz

One doesn’t have to be an expert on the judicial branch of government to know that there has been a dynamic change within today’s Supreme Court. When a long settled legal precedent of a woman’s right to choose is summarily upended after fifty years, despite the concerted efforts of Chief Justice John Roberts to somehow moderate the blanket rejection of Roe v. Wade, a seismic shift is occurring. It is being fueled in part by a startling demographic statistic: while about 23% of the United States is Catholic, a full 67% of the Supreme Court is – plus an additional member who was born Catholic but is now a Protestant with conservative religious leanings.

In this fascinating and informative book, Joan Biskupic, the CNN’s Supreme Court authority and former high court correspondent for the Washington Post, has given us a unique look the justices as they made their way toward overturning Roe v. Wade. Her long experience covering the court – she is also the author of biographies of Roberts, Antonin Scalia, and Sonia Sotomayor -- has put her her in an incomparable position to comment on its make-up, historical positions and direction. It has also made her privy to many significant, little-known secrets about Supreme Court personalities and their historical behaviors.

There is a great deal to chew over, from big topics, like Trump’s campaign to remake the law through judicial appointments and Roberts’ single-handedly saving the Affordable Care Act, to smaller but no less fascinating ones, such as Gorsuch refusing to wear a mask during the pandemic even though Sotomayer suffers from underlying conditions.

The story Biskupic tells is of a court veering rightward. In the 2019-2020 Term the Court could still be classified as a center-right court with 97% of cases resting in Robert’s hands. That allowed the Chief Justice to keep the court on a moderate course when he wanted to, such as in the compromise he led it to on the DREAMers case, which handed the Trump administration a major defeat on immigration policy. That changed, however, when Amy Comey Barrett was confirmed without a single vote from the opposition party – the first time that has happened since 1869. Her arrival entrenched a far-right majority, with conservatives outnumbering liberals 6-3. That has led to a more aggressive conservative stance in the court’s public rulings and, as Biscupic relates, a fair amount of interpersonal conflicts behind the scenes.

The upshot is a court that even its Chief Justice cannot keep on a moderate path. Liberals should be prepared, Biskupic suggests, for more of the same: an inexorable movement to the right, decisions that please the conservative Federalist Society, and further erosion of stare decisis, or respect for precedent.

The conservatives who have made taking over the court a high priority, including Republican Senate leader Mitch McConnell, have played the “long game” with notable success. McConnell’s refusal to give Merrick Garland a hearing, much less a Senate vote, Trump’s insistence on vetting his nominees with far-right gatekeepers, and Trump’s prodigious rate of appointments – filling fully one-third of the seats in a single four-year term – are all paying off with depressing success.

The past is prelude. We should all be prepared, Biskupic suggests, for more rightward shift in such areas as gun rights under the Second Amendment, church-state separation and school funding, federal protection of voting rights, and affirmative action.

Biskupic paints a stark picture of a court with “no middle, no center to hold.” The same Donald Trump who is now facing criminal charges in a New York court was allowed to change the balance of the nation’s highest court on the most important issues of our time for a generation. If Biskupic’s predictions are on target, and that is certainly the way to bet, the next twenty years should bring us more of the same: the dwindling of fundamental rights that Americans have rightly come to rely on.

Paul Markowitz is a book reviewer in Southern California.