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

As a symbol of the court’s strained relationship with the public, the barriers were remarkably telling. They signaled an institution under increasing scrutiny, with the freshly minted conservative supermajority eager to upend Roe and shift the court, and the country, radically to the right. And yet, as CNN senior Supreme Court analyst Joan Biskupic writes in her new book, “Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences,” the court remained “walled off from the people” whose lives its decisions had the power to so dramatically reshape.

Biskupic opens a window onto the opaque, insular world of the justices to show an institution sinking gradually into crisis. The book covers the whirlwind six years from the death of Justice Antonin Scalia in 2016 through President Biden’s 2022 nomination of Justice Ketanji Brown Jackson, the first Black woman to sit on the Supreme Court. It’s a period that saw President Donald Trump reshape the judiciary and secure a 6-3 majority for the right on the high court, through three appointments each dogged by a crisis of legitimacy: the first, of Justice Neil Gorsuch, to a seat held open by a Republican Senate majority determined to block President Barack Obama from nominating a successor to Scalia; the second, of Justice Brett Kavanaugh, tarred by a credible accusation of sexual violence against the nominee; and the third, of Justice Amy Coney Barrett, forced through in record time before an election that Trump went on to lose.

The court is, by design, an institution at a remove from democratic accountability. With each Trump appointment, though, it became more difficult to distinguish clearly between the supposedly august, intellectual work of the justices and the wheeling and dealing of raw politics. And in the years after Trump appointed Barrett to the seat left vacant by the death of liberal Justice Ruth Bader Ginsburg, the new supermajority has shown no hesitation in aggressively refashioning American law, with little care for the fact that the public largely does not share the six conservatives’ ideological commitments. In the months after Dobbs, Americans’ trust in the courts sank to an all-time low.

Biskupic is a longtime chronicler of the court, and “Nine Black Robes” puts on display her connections within its chambers. The book is packed with references to insights shared with her by unnamed justices. She reveals the deliberations and negotiations that took place behind the scenes in a number of high-profile cases, including Dobbs. In that case, Biskupic writes, Chief Justice John Roberts — a conservative jurist but one anxious to preserve the legitimacy of the court in the eyes of the public — labored for weeks in a doomed effort to “privately lobby fellow conservatives” against overturning Roe outright. (Despite Biskupic’s ear to the ground, however, the question of who leaked the draft opinion remains stubbornly unresolved.)

Roberts, the subject of a previous biography by Biskupic, emerges as a somewhat tortured figure — the embodiment of the conservative legal movement’s difficult relationship with its own success under Trump. The recent story of the court is in some ways the story of Roberts’s efforts to navigate increasingly choppy political waters. In Biskupic’s telling, he moves from the decisive swing vote after Kavanaugh’s appointment to a conflicted onlooker, as the strengthened conservative bloc barrels ahead with little regard for the court’s institutional standing.

For the court’s liberals, the picture is even bleaker. Before Ginsburg’s death, Biskupic depicts the four Democratic appointees performing a careful dance to eke out a compromise every now and then. On the 6-3 court, she writes, the minority “expected to win nothing.”

Central to the conservative ascent, of course, is Trump. Scalia’s death in February 2016 allowed Trump to rope himself to the Supreme Court as a presidential candidate, appealing to nervous Republican voters by promising to appoint a sufficiently right-leaning — and anti-Roe — successor. While Trump’s time in office was shaped by clashes with the courts over the limits of presidential power, it was also defined by a Faustian bargain that the conservative legal movement struck with him: allying itself with a lawless, unprincipled boor in exchange for an opportunity to stuff the judiciary with as many ideologically aligned judges as possible. Opposition to Roe was the movement’s founding principle, and Dobbs was, in this sense, its triumph.

But as the three liberal justices wrote in their Dobbs dissent, “No one should be confident that this majority is done with its work.” In one sense, the conservative legal movement’s alliance with Trump was purely cynical. Trump learned this the hard way when right-leaning judges and justices, having secured what they needed from him, proved unwilling to endorse his last-ditch efforts to hold onto power in 2020. In another sense, though, Trump’s brashness is difficult to disentangle from the sneering, aggressive approach adopted by some judges on the right — which the abrasive Dobbs majority opinion, written by Justice Samuel Alito, exemplified. This, in Biskupic’s telling, is what troubles Roberts: not the direction the courts are headed, but the breakneck speed and disregard for institutional niceties with which they’re getting there.

If the conservative alliance with Trump was indeed a deal with the devil, is this crisis of public legitimacy much of a price? Raw power alone is, after all, still power. Biden has been nominating judges at a rapid clip, but conservative control of the high court remains secure, and Trump’s appointees compose almost a third of the influential appellate bench. Calls on the left to “pack the court” with additional justices seem to have sputtered out, and a committee assembled by Biden to study Supreme Court reform has come and gone without its recommendations making much of an impact. Meanwhile, the conservative supermajority and its allies in the lower courts show no sign of slowing down, even as their judicial project appears increasingly at odds with the needs and beliefs of the country as a whole. The situation seems untenable, and yet it’s not clear what, if anything, can or will change. Perhaps the devil has not yet come calling for his due.

Quinta Jurecic is a senior editor at Lawfare and a fellow at the Brookings Institution.

Inside the Supreme Court’s Drive to the Right and Its Historic Consequences

William Morrow. 401 pp. $32.99