The Best of What's Around: Linda Greenhouse and "Justice on the Brink."

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Linda Greenhouse’s Justice on the Brink—The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court is short (242 pages) and highly illuminating. The book should be read by anyone who cares about the role of the Supreme Court in American life and the trajectory of the court’s decisions on numerous important issues.

Greenhouse, a winner of the Pulitzer Prize for her coverage of the court for The New York Times for more than 30 years, is a lucid, succinct and compelling writer. Her book shows an unparalleled command of the facts and issues in the 58 cases the court heard in the 2020-21 term and the decisions that preceded those cases. Justice on the Brink shows how cases are positioned for decision by the court by litigation advocacy organizations on the left and right of the political spectrum.

The book shows how the justices signal their views, sometimes in a few cryptic words in an order or concurrence, on issues of racial equality, voting rights, religious expression, the death penalty and, of course, the right to abortion.

Justice on the Brink deftly sketches the personalities of the justices, the evolution of their thinking on issues before the court and the dynamics of the increasingly bitter confirmation process for nominees to the court, notably the contentious nomination of Justice Brett Kavanaugh and rushed confirmation of Justice Amy Coney Barrett.

The book contains fascinating descriptions of the efforts of Chief Justice John Roberts to maintain the public perception of the Court as an independent institution above politics by forming unusual alliances with other justices to reach a 5-vote majority and by deciding cases on the narrowest possible grounds.

Greenhouse details how the conservative justices have increasingly focused on the First Amendment’s Free Expression clause to affect the debate about the role of religion in American life.

Justice on the Brink’s description of the challenge to the 2020 presidential election filed by Texas Attorney General Ken Paxton in State of Texas v. Commonwealth of Georgia, State of Michigan, and State of Wisconsin is especially interesting. Texas argued that election irregularities in other states disenfranchised its citizens. Greenhouse provides a masterful and objective account of what may be one of the strangest cases ever filed in the Supreme Court. Here is a portion:

While the Texas filing was odd, the case would soon get odder. Two days later, a lawyer representing Donald Trump filed a motion to intervene in support of Texas. The motion strung together a set of indisputable facts, drawing from them a completely unsupported inference. For example: “Republican candidates for the U.S. Senate and U.S. House, down to the Republican candidates and [sic] the state and local level, all out-performed expectations and won in much larger numbers than predicted, yet the candidate for President at the top of the ticket who provided those coattails did not himself get over his finish line in first place.” Except for the assumption that these down-ballot Republican victories came on Trump’s coattails, this was an accurate statement of what had occurred on November 3. But then came the inference: “These things just don’t normally happen, and a large percentage of the American people know that something is deeply amiss.”

Could a lawyer admitted to practice in the Supreme Court actually offer such an argument as a reason to permit the president of the United States to come before the court and claim that somewhere, somehow, in some unspecified manner, victory had been stolen from him? (pp. 102-103)

Greenhouse is not optimistic about the future of Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, the decision that affirmed the constitutional right to abortion access established in Roe. Anyone who wants to understand where the Court is likely to go in this area, and in other controversial issues, should read this book.