Over the summer, I finished three books I only read when I treat myself to breakfast at a favorite local pancake house on the weekends. Needless to say, I don’t read as much as I should.
- Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences (Biskupic, J., 2023)
- The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (Vladeck, S., 2023)
- Worse Than Nothing: The Dangerous Fallacy of Originalism (Chemerinsky, E., 2023)
I just so happened to have read these books in increasing order of interest and significance. The first book by Biskupic was interesting, but I didn’t learn much new. Oh, sure, some of the backgrounds of the justices and the intrigue among the nine that she examines was elucidating, but all in all, it was mostly information with which I was already familiar — or lived through. The author is a legal journalist for CNN, so she wrote a book in the journalist mode, not offering much of an opinion or having much of a perspective on the justices and the issues. Moreover, it was more biographical than I would have liked, not diving into the legal intricacies of the high-profile cases she discusses. The book was written for the layman. If you are interested in the law and don’t know much about SCOTUS, then this would be an appropriate primer. But if you can name all nine justices, identify the chief justice, recognize the most consequential case names, and could only choose one of the three to read, then it would not be this one.
Vladeck’s book was far more fascinating and enlightening because it covered a subject I had some knowledge about beforehand but not much. Plus, he goes into the history of the shadow docket, and anyone who knows me understands that I prefer to read about economics, the law, and history, so a book about the law and history is always a winner for me. This author definitely had a point of view coinciding with my own, namely that RepubliKKKlans have abused and distorted the shadow docket by using it to significantly alter society without judging the merits of cases. Instead, they have relied on the shadow docket to set law through technicalities or, worse still, through orders that provide no reasoning or rationale. Often, some of the most important questions of law are allowed to take effect with little more than a paragraph of “explanation.” Think of Texas’ S.B. 8, whereby the Court allowed the law to take effect through the shadow docket before hearing the merits of the case when common practice would be to enjoin the law while contemplating the merits. See Chapter 7, which is ironically titled “‘Read the Opinion.'” Ultimately, the Court did rule on the merits of Whole Woman’s Health v. Jackson a few months later, but the fact that they allowed the law to take effect is the entire point for demonstrating SCOTUS’ abuse of the shadow docket.
Last, I come to Chemerinsky’s work, which is a must-read. For those interested in judicial theory, this is a great starter, and the subject matter could not be more germane to the state of SCOTUS today. As the title suggests, the author warns of the dangers of originalism being used by the conservative justices on SCOTUS. One point in particular — among others — is that conservative judges and justices abuse originalism to meet their desired ends, using it when necessary and abandoning the theory when it leads to unwanted outcomes. I have long suspected that this collection of six theocratic justices begins with the end in mind when adjudicating a case; indeed, they have the end in mind by virtue of the cases (issues) they select for certiorari. Once the case has been taken up, then they twist the facts, laws, and legal theories to achieve their judicial ends. This book is proof.