Legal Fiction

REVIEW: 'Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court'

Supreme Court
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March 6, 2022

In the fall of 2020, Linda Greenhouse's agent came to her with a pitch: Chronicle the life of the Supreme Court from July 2020 through June 2021. The longtime New York Times legal correspondent could hardly believe it. Ruth Bader Ginsburg had just died, Amy Coney Barrett had just been confirmed days before a presidential election, and a new Supreme Court term had just begun. "I'm waiting out the pandemic in the Berkshires of western Massachusetts," she remembers thinking. "I can't watch the court in action." Her head was still spinning. And yet, she said yes. The result is Justice on the Brink.

Readers interested in dramatic, Supreme Court-adjacent historical fiction will be pleased. Those looking for honest and incisive legal analysis, less so.

Greenhouse's 12-month compendium is well researched and often quite entertaining. She knows the Court—its members, its docket of cases, and seminal moments from its history. Each month of Justice on the Brink presents a highlight reel, filling in informational gaps where needed.

Yet in order to live up to the promise of suspense set forth in the book's title—and in its cover photo, featuring the Court under a bed of ominous clouds—Greenhouse has to construct villains where there are none.

Amy Coney Barrett is one such. To Greenhouse, there are a handful of unseemly things about her appointment. First, the unusual "public dimensions of Barrett's Catholicism." Greenhouse reminds us that Barrett was raised in an "unusual religious group" known as the People of Praise, wherein members are "expected to accept traditional gender roles within traditionally structured families." (Readers are told that "married women were originally known as 'handmaids' until the Margaret Atwood novel gave the term an undesirable resonance.")

Other details are shared, most of which continue to spotlight Barrett's profession of basic Catholic orthodoxy—that she's pro-life, that she conceives of her legal career as a means to an end (namely, building the kingdom of God), and so on. The subtext of this particular chronicling seems to be that she could not perform the job of a judge in applying the law.

What, then, might be the consequences of a Justice Barrett on the bench?

First, Greenhouse tells us, a shredded Affordable Care Act. A week after Election Day, the Supreme Court was set to hear arguments in the latest challenge to the health care law—a lawsuit that was born out of a previous one that the Court had considered in 2012. Barrett was hostile to the statute, we're told, and sympathetic to challenge. Why? Because she had written critically of Chief Justice John Roberts's decision in 2012, on Congress's taxing power vis-à-vis the individual mandate. Never mind that the present constitutional issues—on severability, and on the plaintiffs' standing to sue—were different from those 10 years ago. Millions of Americans with preexisting conditions might lose coverage were Barrett to be seated on the Court.

The second consequence is an election contest decided by the Supreme Court, in favor of Donald Trump. Greenhouse recalls the former president's insistence that the nation is "going to need nine justices," because the election was shaping up to be a "hoax." It's assumed throughout that, if on the Court, Barrett—along with a sufficient number of her conservative colleagues—would fulfill her end of the bargain in a sinister quid pro quo, regardless of the merits.

As one reads on with Greenhouse as his guide, the suspense builds. Our republic seems evermore precarious. And yet, as the months go on and decisions are rendered, nothing that was forewarned happens. The president's baseless conspiracies and demands to overturn millions of votes nationwide were rebuked. So, too, was the challenge to the ACA. Both of those, in fact, were done resoundingly by the Court with Justice Barrett's approval.

One may be tempted to read this as the Court—and the nation—just barely evading crisis and destruction. Perhaps a more accurate reading is that we were never close to that fate in the first place.

Of course the past year was not limited to just health care and the election. Greenhouse covers a handful of the other cases and controversies, from voting rights to capital punishment to statewide pandemic restrictions on religious gatherings. To see each of those through Greenhouse's eyes, though, is to misunderstand them.

In her telling, each justice has a nefarious pet project by which they're seeking to substitute their individual judgment for that of the nation. Justices Alito and Thomas, for example, have "unfinished religion project[s] for which their appetite of completion remains undimmed." Alarmingly, she says, the Court's conservative bloc is trying to elevate religion to a privileged status in American public life. Justice Roberts is keen to scrap affirmative action. And so on. One could be forgiven for reading them as serving functionally legislative roles.

Except they're not. In nearly each case, these "projects" are principled efforts to fix prior judicial errors—to interpret and apply constitutional provisions in accordance with the meaning they had when they were ratified. Indeed, most of these errors are a consequence not of originalism but of judicial legislating. The free exercise of religion did have a privileged status in the United States, until it was misinterpreted by judges. Discriminating on the basis of race is antithetical to our nation's founding principles, and yet was still enshrined by judges. The issue of abortion was long subjected to popular democratic will, until it was extracted by judges. Pace Greenhouse, originalists are not obstructing democratic processes and outcomes—non-originalists are. 

The final page of Greenhouse's book concerns Stephen Breyer. The country had been "holding its breath" over whether he would step down while the Democrats controlled the Senate—and yet, until that point, he'd resisted the calls to do so.

As we now know, Breyer is retiring at the end of this term and D.C. Circuit judge Ketanji Brown Jackson has been nominated to replace him. Yet after reading Greenhouse's book, one gets the sense that this still won't be enough. Justice's dance on the brink will persist. That is, of course, until there are at least five justices to Greenhouse's liking.

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., $28

Nick Tomaino is an associate editor at National Review.