David A. Kaplan

This book argues that, for almost fifty years, the Supreme Court has been overreaching its Constitutional role, increasing its power at the expense of elected officials in Congress and state legislatures. The author believes this trend began with Roe v. Wade in 1973. The Court's ruling in Roe was based on an inferred right to privacy that does not explicitly appear in the Constitution. Since the, the author argues, the Court has carried the scope of its decisions further and further, and has been more and more willing to strike down laws enacted by legislative bodies. The fact that the author cites Roe as the beginning of this process might suggest a conservative bias. On the contrary, most of the cases cited as examples of overreach had a conservative majority. The author's quarrel with the Court goes beyond right and left, though he is profoundly troubled by the politicization of the court. What he's really concerned about is the appropriate balance of power among our three branches of government.

The first part of the book discusses the current justices of the Court, with something of a focus on their confirmation hearings. This illustrates very clearly the politicization of the Court, and contains a lot of interesting (and even entertaining) information. The second part is more substantive. In it, the author focusses on a series of key cases, discussing the issues involved and the overreach involved.

A lot of what the author has to say makes sense. The Court has surely become more politicized, and has surely stepped in to several issues that might have been better left to Congress, or to the states. But is this the "fault" of the Court, or is it an inevitable result of political polarization, which has compromised the legislative process? I'm not a lawyer, and may not fully appreciate the author's arguments, but I was not entirely convinced.

The book is an interesting read, though not an easy one. Some legal terms and issues are less than fully clarified, and it can be difficult to keep track of specific arguments when a number of case are cited. Still, I learned a lot from this book, and would recommend it to those who want to know more about the Supreme Court.… (meer)

The Most Dangerous Branch gives life to the Supreme Court of the United States (SCOTUS). It’s the third branch of government, one without the clout of legislation or executive orders, and no army or treasury to enforce anything, as Alexander Hamilton described and promoted it. Nonetheless, the thrust of David Kaplan’s highly readable book is that the SCOTUS is in the process of usurping the other branches, particularly Congress, and carving out roles that were never meant for it – like prescribing law and deciding presidential elections.

Normally, such books drag on for a hundred pages of required history, but Kaplan jumps quickly to Neil Gorsuch, his nomination, and the backroom opinions and little-known actions to get him confirmed. It seems no one outside of Justice Clarence Thomas can stand him. He is an arrogant know-it-all, lecturing the other justices in their legal errors of judgment and on how to write an opinion. His own clerks have difficulty working for him. He has opened a wide crack in the usually respectful and collegial court. The conservatives Republicans love it.

What jumps off the pages is how tight the circle is. The justices know the candidates. So do the politicians. The same names keep coming up for nomination. Despite the book being written before Anthony Kennedy announced his retirement, Kaplan singled out Bret Kavanaugh (who was not on President Trump’s shortlist) to replace him. Some, like Gorsuch, have modeled their entire careers for it. Others decline, but their names come up again anyway. Their old university professors intervene with positive or negative recommendations, unsolicited. They also promote them to clerk for a SCOTUS justice, thus ensuring their orbit among the stars. This is the swamp of the judicial system.

For reasons I don’t understand, the next chapter, which begins by profiling Chief Justice Roberts (“If the people don’t like what we’re doing, it’s more or less just too bad,”) is written in the past tense, as if Roberts were no longer there. It makes reading a little difficult, because you never know if Roberts has resolved some issue, or if it continues. It then transpires that Kaplan profiles all the current justices in the past tense, as if they were closed chapters in history. For example, “Kagan was more doctrinal.” Is she still, or has she changed with age and experience? “She had a sense of humor as well.” Did she lose it?

It’s all very colorful and gossipy, giving life to the black robes. It is filled with wonderful sidelights, from backstage meetings, to luncheons with clerks, to courtroom moments. For example, during a trial regarding gay rights, Justice Breyer demanded of the Texas prosecutor “a straight answer“ - for which Justice Thomas had to whisper to Breyer why everyone was laughing.

Kaplan says the turning point for the SCOTUS power grab was 1954’s Brown v. Board of Education. The court ventured into prescribing life, and has never looked back. It got progressively worse, with every decade seeming to top the previous in outlandish court interference. In 1973 it was Roe v. Wade, in which the Court actually prescribed solutions according to the trimester of the pregnant woman. In the 2000s, it was Bush v. Gore, in which the SCOTUS decided the federal election by itself. It was in fact Justice Anthony Kennedy, whose vote made it 5-4, who elected George Bush. The election was decided by one voter (who probably voted for him twice). In this decade it is (so far) the extraordinarily unpopular Citizens United, which allows unlimited spending by corporations in elections. Kaplan calls it “Injudicious intrusions on democracy” and proves his case repeatedly.

In all these cases, Kaplan says, the SCOTUS would have done better to decline to hear the cases, forcing Congress to do the job it was mandated to do. By declining, the justices would seem to put themselves above the fray, instead of opening themselves to the justified criticism they receive for their decisions. In 1893, Harvard’s James Thayer said a strong Supreme Court would “deaden its sense of moral responsibility.” We have yet to learn from that.

Throughout the book, in the background, there floats Alexander Bickel, a constitutional expert whose sagacity and reasonableness are on display like an Obi Wan Kenobi, popping up in the background all over the book. He guides Kaplan, who likes to boil down cases to simple issues with appropriate solutions. Why couldn’t the justices see it that way?

Arrogance and hypocrisy are clearly on display, such as when Chief Justice Roberts claimed the Supreme Court “had no choice” in its decision – even though four of the nine dissented. Or when Justice Scalia would claim “the people” should decide – but he would decide himself if they didn’t act when and how he desired. He would abandon his “originalism” philosophy in a heartbeat to get what he wanted personally, for example ignoring the origins of the second amendment in Heller v. Washington DC.

The biggest fault described in The Most Dangerous Branch is the Court’s usurpation of Congress. In Bush v. Gore, for example, there are clear directions on the books for Congress to decide the matter, but the Court ignored its own voices to follow those existing laws, and decide by their own vote instead. The more powers Congress gives up, of course, the less it can accomplish. Between the Court and the President, the submissive Congress is on a treadmill to oblivion. We see it all the time, as senators and representatives sue in order for the SCOTUS to decide instead of doing it themselves. Same for the President – let the Supreme Court rule.

When power grabs are unattractive or unavailable, the Roberts Court descends to inventing rights, like the constitutional right of contract and the principal of equal sovereignty – pure fantasies. The same goes for legal precedents. Justices will demand precedents be respected – unless they want the underlying principle overturned, in which case they will ignore anyone who brings them up.

In other words, the Supreme Court is made up of nine fallible humans, who bring their own politics and prejudices to bear on the whole nation. And with scope creep, they are bringing those prejudices to more and more of the government, undermining and overruling what the Framers determined to be the operating system of the country. As long as presidents insist on nominating justices for their ideologies, it will always be a simple matter of assembling five votes. The rest don’t count. And neither does “justice”.

David Wineberg… (meer)

Talk about a timely book! I received an advance reading copy of this book, just as Supreme Court Justice Kennedy announced his retirement. Even though the author wrote the book long before this happened, he predicted it. And who President Trump was going to nominate. He hit the nail on the head! Wow!
I enjoyed reading this book, especially the first half. In that part, Kaplan discusses all of the current justices, how they got to where they are, and what issues they are very passionate about. He even reveals each justices little quirks and habits. It was very enlightening, and presented in a very readable manner.
The second half of the book discusses cases. While I enjoyed it, at times I felt like it was way over my head. I might go back and reread it. Maybe on the second round it will be clearer.
I recommend this book to anyone who has an interest in the law. The direction the country will head in the future will be, to a large extent, depend on how these nine people rule.… (meer)

Tom Perkins, member of the notorious HP board during the now infamous board battles (see https://www.goodreads.com/review/show/146770902), was no land-lubber. He could name all of the lines on a clipper ship. He wanted something even bigger and better. But as someone of immense wealth, the push for ever bigger and better became an obsession. “size mattered—as it always had. When it quickly became insufficient to be merely big, then yours had to be bigger. For how shall it profit a man to have a big yacht if somebody else has a bigger one?”

Personally, I don’t like boats that tip sideways, i.e., heel. My idea of a boat is that it has to have a swimming pool although, “I always say that if you encounter a really rough sea in a sailing yacht, you regret having left port. But if you encounter a really rough sea in a motor yacht, you regret having been born.” …

Perkins had lots of experience sailing, and the author details not only how he accumulated that knowledge but also how he amassed his huge personal fortune at HP and as a venture capitalist. Yet the boat Perkins proposed building would cost 20% of his net worth. He loved doing things in a big way and his goal in the development of the new yacht/ship was nothing short of revolutionizing the way sailing is done and ships designed.

One interesting anecdote: Patrick O’Brian, whose stories Perkins had all read and loved was invited once to tour the Mediterranean on one of Perkins’ huge yachts. After all, O’Brian had written well-paced seafaring sagas that always got the details right about sailing—he knew a scupper from a schooner, a jib from a jibe. Unfortunately, as an incredulous Perkins recounted it, O’Brian was clueless how a sailboat actually worked. When he wasn’t steering recklessly or causing more than 10,000 square feet of sail to flail about, he was either drunk or seasick (or both).

Now, at seventy-four, Perkins was setting out to transform the art of sailing. His $130-million yacht, anchored a few hundred yards out in front of the palace, was the Maltese Falcon, a twenty-first century clipper ship that was bigger, faster, higher-tech, more expensive and riskier than any private sailing craft in the world. The Falcon was as long as a football field, forty-two feet wide, twenty feet deep, with three masts, each soaring nearly twenty stories toward the heavens. On each mast were six horizontal yards—ranging from forty feet to seventy-four feet in width—to support the sails. The size of the Falcon was utterly out of scale with anything nearby—the ramshackle fishing boats, the tourist ferries traversing the Bosphorus, even the palace. The design was unusual. "the masts were entirely freestanding and, unlike masts on any other boat, they were not stationary, but rotated. The sails were deployed at the push of a button, rolling out from inside each twenty-five-ton mast. Dozens of computers and microprocessors—connected by 131,000 feet of cable and wires—integrated the system, allowing helmsman and crew to control the boat nearly effortlessly. And unlike the clippers of yore, with their vast, white expanses of billowing canvas, the Falcon’s sails in effect formed a nearly flat vertical wing.

The competition between billionaires to have the biggest and fastest and most luxurious sailing yacht reached preposterous proportions. Joe Vittoria’s Mirabella V, the largest single masted sloop ever built had a mast of 292 feet (as high as a football field is long) with sails that cost $250,000 and was so heavy it had to be lifted on the boat in pieces with a crane and then assembled on board. The mast was so high the boat could not transit the Panama Canal since it couldn’t go under the bridge, nor could it pass under the Golden Gate Bridge. Usually easy to handle, this monstrosity takes 11-14 minutes to tack, and is forbidden by the insurers to jib; it was too risky. The mast is so high that wind velocities may differ from top to bottom creating its own wind shear. Sailing in a moderate breeze, with the boat heeled slightly (it had a thirty-three foot keel) the downward pressure on the mast was 400 tons creating enormous strain on the stays and shrouds. Insurers forbad any heel greater than fifteen degrees as the passengers would have slid over the side or smashed into something. (Thirty degree heels on a traditional sixty-foot sailboat are no big deal.)

What Perkins (and the boat’s designer Perini) managed to do was nothing short of revolutionary. The masts and sails functioned in almost the opposite way they did in a traditional sailing ship. In the Maltese Falcon, the *masts* rotated while the *yards* were fixed. This meant the forces working on the hull were very different. But it also had numerous advantages since there were no stays to get in the way of the sails as they were turned into the wind. It also meant the masts resided on huge bearings that had to take enormous forces not to mention a complicated system of motors (29 per mast) to operate the sails that moved them in and out of the yards. Sails were fixed on both the top and bottom. “Separated only by the yards supporting them, the five tightly stretched sails on each mast effectively formed a single vertical wing of 8,600 square feet of sail area. Properly trimmed, each set of sails—with their aerodynamically shaped masts and yards—became a tall airfoil. Even though there were five sails supported on each mast, the wind acted as though it was blowing over only one large single sail.” He was building “a twenty-first century clipper ship that was bigger, faster, higher-tech, more expensive and riskier than any private sailing craft in the world. The Falcon was as long as a football field, forty-two feet wide, twenty feet deep, with three masts, each soaring nearly twenty stories toward the heavens. On each mast were six horizontal yards—ranging from forty feet to seventy-four feet in width—to support the sails.”

And no one knew if it would work. A marvelous digest of biography, economics, risk, and technology all in a nautical setting. Excellent.
*

Mirabella V: https://www.youtube.com/watch?v=i7dGFxyM_Aw

Maltese Falcon: http://www.symaltesefalcon.com/

For the technically minded, I found this discussion of the relationship of hull length to speed to be quite revealing. Froude’s Law states that maximum hull speed is the square root of a boat’s length at the waterline multiplied by 1.34.* A heavy hull, or one with an inefficient shape, obviously couldn’t approach that full hull speed. And the benefits of length were diminishing, since the relationship between speed and length is not linear, but based on a square root. But even so, Froude’s Law was clear: the longer a boat, the faster it can go. Thus, a 100-foot sailboat in theory could go no faster than 13.4 knots; a 200-foot sailboat, no faster than 19 knots; and a 300-foot sailboat, 23.2 knots. (The Perini hull at the waterline was 257 feet, so its maximum theoretical speed was 21.5 knots—three knots faster than its two diesel engines could make it go.) For skippers who wanted speed—while also having a hull with creature comforts and that could be used for cruising—going long was the only way. For length also produces stability—a boat’s ability to stay upright. In fact, stability goes up exponentially—to the fourth power—as the waterline length increases. Assuming all other measurements equal, if you double the length, then stability goes up sixteen times (2 × 2 × 2 × 2). Stability and length are among the few relationships in physics subject to the fourth power. The tendency to heel increases with length as well, but only by the third power: if you double waterline length, the heeling force goes up only eight times (2 × 2 × 2). So the benefits of length still predominate, as the increase in stability is greater than the tendency to heel. God must be a sailor.… (meer)