Bold Type Books
Review by Brian Tanguay
Most Americans don’t spend much time thinking about the Supreme Court or how its rulings impact their lives, until the court strips away a long-standing right, as happened with the Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization, which precipitated the overturning of Roe v. Wade. Although conservatives had steadily chipped away at Roe, the precedent stood for nearly half a century. In the wake of Dobbs, women across the country face abortion prohibitions that vary from state to state, with many women forced to navigate a gauntlet that limits their options and imperils their reproductive health.
In her new book, Without Precedent, Lisa Graves draws back the curtain to give readers a look at how the current court was engineered into being. It’s a story about ideology, politics, ambition, and money. Graves has been involved in every major national domestic policy issue of the past twenty years, which happens to coincide with the tenure of Chief Justice John Roberts. The founder and Executive Director of True North Research, a corporate investigative watchdog, Graves has served in senior advisory roles in all three branches of the federal government, including a stint as the chief counsel for nominations for Senator Patrick Leahy and the Senate Judiciary Committee.
Roberts would likely take umbrage at being described as a political operative in a judicial robe, but examining the totality of his tenure leads to no other conclusion. Graves follows Roberts’ rise from Reagan administration apparatchik to clerking for William Rehnquist, who served as chief justice from 1986 until his death in 2005. An opponent of Roe v. Wade from its outset, Rehnquist’s more enduring legacy occurred in 2000, when the Supreme Court ordered the state of Florida to cease recounting ballots in the disputed presidential election between George W. Bush and Al Gore. The 5-4 decision, which justice Sandra Day O’Conner later said she regretted joining, handed the presidency to Bush. Bush went on to nominate Roberts and Samuel Alito to the court, where they joined Clarence Thomas — nominated by George H. W. Bush — forming an enduring partisan trio. When they were joined by Donald Trump’s nominees — Niel Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — they became a supermajority.
Among the many poorly understood and underreported realities about the Supreme Court is that its docket is almost entirely discretionary. It takes particular cases and passes on others. This is a powerful tool in the hands of a partisan chief justice.
It’s the power to shape the court’s agenda and priorities and overall bent.
As Graves documents, John Roberts has devotedly followed a radical right-wing political agenda, but she also shows how Roberts has hardly acted alone. The Roberts court, Graves writes, getting to the core of the problem, “sits at the apex of a complex infrastructure of nonprofit groups and for-profit firms seeking to use the Court and protect it from critics.” It’s unfortunate that more Americans don’t know the name Leonard Leo. As head of the Federalist Society, Leo recruited, trained and recommended hundreds of conservative attorneys for judgeships, including all three of Donald Trump’s nominees. In addition to stocking the federal courts with partisans, Leo raised staggering amounts of money for influence operations from some of the richest Americans, including Richard Mellon Scaife and Charles Koch. Graves notes that in 1986, the Federalist Society’s annual budget was in the realm of $400,000; that number increased by an average of $1 million a year during George W. Bush’s two terms. Today, most of the Federalist’s operating budget is provided by secret sources, a fact which doesn’t cause Leo any shame.
The infrastructure behind conservative capture of the federal judiciary is lavishly funded, interconnected, and extremely influential. Its fingerprints are all over most of the reactionary and unpopular rulings handed down by the Roberts court. On abortion, guns, freedom of speech, separation of church and state, the environment, and money in politics, Roberts and his faction have consistently ruled in favor of the wealthy and powerful, and against the general will of the citizenry. In his 2020 book, Supreme Inequality, Adam Cohen examined significant court decisions from the Nixon administration forward, and concluded that over the last fifty years the court has done little to protect the poor and disadvantaged, and a great deal that has contributed to our staggering levels of wealth inequality. Wealth inequality invariably leads to political inequality.
Lisa Needham is another veteran court watcher who wrote an article for Public Notice in which she asserts that John Roberts is the worst chief justice in American history. Given the history of horrible Supreme Court decisions, this is saying something. Needham writes that Roberts “has overseen the wholesale corruption and capture of the Supreme Court, and history should look back on his tenure with revulsion.”
Of all the outrages in recent court history, Trump v. United States may be the case where Roberts showed his partisan colors. The decision handed down by Roberts and his majority is unprecedented and sure to be detrimental to our republic. Not only did the ruling pave the way for Trump’s reelection in 2024, it essentially places him above and beyond the reach of law. Graves describes what Roberts engineered as a judicial coup. The partisan ruling was, Graves writes, “a shocking and atrocious political intervention by political judges to protect a political candidate from their political party from facing the consequences for major crimes that substantial evidence indicated Trump had committed.”
Without Precedent is an important and plainly written book that deserves to be widely read and discussed among citizens, political figures and policy makers. No longer can we afford to be oblivious to the court’s make-up and operation. It has been captured and citizens must take up the struggle to reform it. Graves offers a number of ideas in the Epilogue for restoring constitutional provisions, enhancing and securing voting rights, and cleansing the political system of unaccountable money. Reform begins with an educated electorate. Let the work begin.
