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Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court Hardcover – November 9, 2021

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The gripping story of the Supreme Court’s transformation from a measured institution of law and justice into a highly politicized body dominated by a right-wing supermajority, told through the dramatic lens of its most transformative year, by the Pulitzer Prize–winning law columnist for The New York Times

“A dazzling feat . . . meaty, often scintillating and sometimes scary . . . Greenhouse is a virtuoso of SCOTUS analysis.”—The Washington Post

In Justice on the Brink, legendary journalist Linda Greenhouse gives us unique insight into a court under stress, providing the context and brilliant analysis readers of her work in The New York Times have come to expect. In a page-turning narrative, she recounts the twelve months when the court turned its back on its legacy and traditions, abandoning any effort to stay above and separate from politics. With remarkable clarity and deep institutional knowledge, Greenhouse shows the seeds being planted for the court’s eventual overturning of Roe v. Wade, expansion of access to guns, and unprecedented elevation of religious rights in American society. Both a chronicle and a requiem, Justice on the Brink depicts the struggle for the soul of the Supreme Court, and points to the future that awaits all of us.

Print length

336 pages
Language

English
Publisher

Random House
Publication date

November 9, 2021
Dimensions

6.2 x 1.1 x 9.52 inches
ISBN-10

059344793X
ISBN-13

978-0593447932
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From the Publisher

The story of the year that transformed SCOTUS — and how three new justices have reshaped America

Editorial Reviews

Review

“[Linda Greenhouse is] the dean of Supreme Court journalists.”—The New York Times Book Review

“Linda Greenhouse is a kind of Gibbon of the Supreme Court, a chronicler of such perception and such depth that it is difficult to imagine how we could understand this vital and opaque institution without her. As Americans, we are nearly overwhelmed by coverage of the presidency and of the Congress, but the court remains stubbornly elusive—except to Greenhouse. This landmark new book gives us an invaluable perspective on the Supreme Court in democracy’s hour of maximum danger.”—Jon Meacham, winner of the Pulitzer Prize

“Linda Greenhouse has written what is, hands down, the best book about the Supreme Court, its inner dynamics, and its place in the nation’s political and social life at least since Alexander Bickel’s classic, The Least Dangerous Branch, written in 1962. Choosing this pivotal moment in the flow of America’s history to open a revealing window into the history and workings of our highest court and a peek into its future and our own was a stroke of genius. Her account of the court from the death of Ruth Ginsburg to the rise of Amy Barrett moves at the pace of a thriller and teaches more about the court as an institution and the law as a discipline than any book of its length has any right to do.”—Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus, Harvard Law School

“Linda Greenhouse’s surpassing ability to decode the Supreme Court and consummate storytelling illuminate a truly watershed year. This is the book to read and reread for anyone wanting to understand what lies behind this pivotal time for American law and the legitimacy of American institutions.”—Martha Minow, 300th Anniversary University Professor, Harvard University, and former dean, Harvard Law School

“Linda Greenhouse, one of America’s most astute writers about the Supreme Court, has written a remarkable book: a month-by-month narrative of Amy Coney Barrett’s first year on the court that combines a riveting account of the legal arguments in pathbreaking cases―including cases involving religion, abortion, voting rights, and affirmative action―with compelling insights about how each of the nine justices resolved them. Justice on the Brink is invaluable for all citizens who want to understand the future of the court and the Constitution.”—Jeffrey Rosen, president and chief executive officer, National Constitution Center

“A revelatory study of the Supreme Court in flux.”—Publishers Weekly

About the Author

Linda Greenhouse has reported on and written about the Supreme Court for The New York Times for more than four decades, earning numerous accolades, including a Pulitzer Prize. She currently writes an opinion column on the court and teaches at Yale Law School. She lives in New Haven, Connecticut, and Stockbridge, Massachusetts.

Excerpt. © Reprinted by permission. All rights reserved.

Chapter one

July • The Triumph of John Roberts

Just as baseball fans relish statistics, so do Supreme Court watchers: how often a justice votes with the majority, how often in dissent, how often allied with this colleague or that one. With the numbers, a portrait takes shape to reveal a justice’s power and role on the court. For Chief Justice Roberts, the portrait that emerged from the term that ended on July 9, 2020, was one of triumph.

Of the term’s fifty-three cases decided with signed opinions—an unusually low number, due to the postponement of cases scheduled for argument early in the shutdown—he was in dissent in only two, fewer than any of his colleagues and his own record low for his fifteen years on the court. The easiest way to keep track of the court during the term’s nine months was simply to look for John Roberts, finding him in the majority in decisions on presidential immunity, immigration policy, religion, abortion, protections for LGBT employees, and nearly everything else.

He managed at crucial moments to navigate across the court’s ideological divide. He maintained the court’s focus when the pandemic drove the justices from their chambers and their courtroom, leaving them to hear cases not on a fancy Internet platform but over their home telephones. And as important as anything else was this: Under a hot election-year spotlight, he kept the Supreme Court out of trouble. After the court handed down its last decisions on July 9, two weeks later than usual, he was entitled to feel both relief and pride.

It might so easily have been otherwise, as he surely knew. Had the 2016 presidential election turned out as most people expected, a President Hillary Clinton would have filled the Scalia vacancy, and Roberts would have found himself facing the prospect of near irrelevance. Ruth Bader Ginsburg, as the senior justice among five liberals on the court, would have been able to shape the course of events, leaving the chief justice a bystander.

Of course, not every Supreme Court case turns on ideology. Most do not; during the term that included the 2016 election, the court decided more than half its cases unanimously. But when ideology matters, it matters greatly. The loss of a reliable conservative majority would have doomed two projects on which Roberts, with Scalia as a reliable ally, was making steady progress. Those two projects lay at the center of the national conversation, indeed at the heart of the country’s struggle to define itself during the opening decades of the twenty-first century. One involved race, the other religion. Roberts’s long-term plan was to change how the Constitution understood both, and now, with Donald Trump having filled the Scalia and Kennedy vacancies, he was in a position to achieve his goal.

There had not been a case concerning racial equality on the docket for the 2019–20 term, but that was an anomaly—a fortunate one for any chief justice interested in his court’s keeping a low profile, given the urgent racial reckoning that shook the country following the police killing of George Floyd, an unarmed Black man, in Minneapolis on May 25. Race would certainly be back, and Roberts was ready, even though he might not have been aware that an important new Voting Rights Act case had arrived at the court in April, filed by Arizona Republicans seeking to limit the use of the Voting Rights Act of 1965 to attack measures that result in suppressing the vote. It would be early fall before the petition made its way to the justices for action.

The debate over public policy concerning race—voting rights and affirmative action, to which he referred, dismissively, as “racial balancing”—had drawn Roberts’s interest since his earliest days as a lawyer. In 1981, direct from a Supreme Court clerkship, he had joined the Reagan administration, where he was an eager participant in the administration’s program to dismantle or at least curtail race-conscious policies across the government and in the private sector as well. Serving first as a special assistant to Attorney General William French Smith and later as a lawyer in the White House counsel’s office, he wrote strongly worded memos marshaling opposition to efforts under way in Congress to renew an expiring section of the 1965 Voting Rights Act and to restore another section that a 1980 Supreme Court decision had undercut. These internal memos came to light in 2005 when President George W. Bush nominated Roberts to be chief justice, and they provided what little substance there was to the Democrats’ tepid opposition to his confirmation.

On becoming chief justice, John Roberts had moved quickly to convert his long-held views into law. A case known by the shorthand Parents Involved reached the court during his first term and presented just such an opportunity. Formerly segregated public school systems in Louisville and Seattle had emerged from years of federal court supervision after achieving what the courts deemed an acceptable level of racial integration. Each city was determined to protect that hard-won accomplishment from the demographic pressures of resegregation driven largely by housing patterns. Each had adopted student assignment plans that took a child’s race into account in considering a request to attend or transfer to a particular school; if an application threatened to upset a school’s racial mix, it would be denied. In each city, white parents whose requests had been denied brought a lawsuit claiming that their children were victims of racial discrimination.

These were not the first such lawsuits. All had failed, the lower courts accepting the argument that plans like these were justified as a way to prevent backsliding into racial isolation. Ordinarily, the Supreme Court agrees to hear only those cases that reflect disagreement among the lower courts, on the premise that only the Supreme Court can resolve a “conflict in the circuits” and provide a binding national rule. Despite the conspicuous absence of a conflict, the justices agreed to hear the appeals from the Louisville and Seattle parents, consolidating them for a single argument during the 2006–07 term on whether, even for the purpose of preserving integration, the overt consideration of race violated the Constitution’s guarantee of equal protection. The court’s answer, overturning two federal appeals courts, was that it did. The vote was 5 to 4.

Roberts assigned himself the majority opinion. Explaining why the student assignment plans were unconstitutional, he wrote that the school systems’ interest in avoiding resegregation was not sufficiently “compelling” to justify a racially conscious remedy. The court’s equal protection precedents provided that only a “compelling interest” could excuse a government policy that took race into account. To proclaim that a formerly segregated school system had no compelling interest in avoiding a return to racial isolation was a bold move, further than Roberts needed to go to justify his position. The court’s precedents require that in addition to serving a compelling interest, a race-conscious policy must also be “narrowly tailored,” that is, it can be no broader than necessary to accomplish the purpose. A government body that fails the narrow tailoring test can go back to the drawing board to achieve its goal by other means. But a finding of “no compelling interest” means that the goal itself is illegitimate.

Three of the conservative justices who had cast their votes with Roberts at the justices’ private conference signed his opinion, but the fourth, Anthony Kennedy, refused. Of course “a compelling interest exists in avoiding racial isolation,” Kennedy declared in his separate opinion. His view was that the case presented simply a narrow tailoring problem: The school systems should be required to try alternatives, such as redrawing school attendance zones, that did not require taking an individual student’s race into account.

Roberts’s refusal to concede the legitimacy of the school systems’ goal had driven away a natural ally, a justice who in two decades on the court had never upheld a government policy that counted people by race. In losing Kennedy, he gave up the chance to speak for a majority; he “lost the court,” as the expression goes when a justice starts out writing a majority opinion but ends up falling short. True, the court had invalidated the challenged assignment plans, but it did so in a way that failed to clarify, much less change, the law.

The mystery was why Roberts behaved as he had. Was he simply determined, no matter the cost, to lay down a marker for what he had long believed, that the government should basically get out of the race business? Or did he misjudge the dynamic of a court that he had known well as an advocate but where he was still a newcomer as a justice?

Product details

Publisher ‏ : ‎ Random House (November 9, 2021)
Language ‏ : ‎ English
Hardcover ‏ : ‎ 336 pages
ISBN-10 ‏ : ‎ 059344793X
ISBN-13 ‏ : ‎ 978-0593447932
Item Weight ‏ : ‎ 1.27 pounds
Dimensions ‏ : ‎ 6.2 x 1.1 x 9.52 inches

Best Sellers Rank: #447,158 in Books (See Top 100 in Books)
- #25 in Judicial System
- #103 in Courts & Law
- #129 in United States Judicial Branch

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Linda Greenhouse

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Linda Greenhouse was the New York Times Supreme Court correspondent for nearly 30 years, and was awarded a Pulitzer Prize in 1998 for her coverage of the Court. She now teaches at Yale Law School and writes a bi-weekly op-ed column on law for the New York Times as a contributing opinion writer.

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Eric Hobart

Outstanding read - well written & very telling

Reviewed in the United States on February 21, 2022

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Linda Greenhouse is a Yale law school professor who also writes a regular column about the Supreme Court. In her latest work, Justice on the Brink, she explains to us why the 2020-2021 term was so monumental and why we need to think seriously about the Supreme Court whenever we are electing our governmental officials.

Greenhouse sets the stage with the unexpected passing of Justice Ginsburg, and the woman who took her seat on the court - Amy Barrett. As the junior associate justice, Barrett is not yet versed in the etiquette or traditions of the court, but she has the all important vote that counts the same as the most senior justice (Clarence Thomas).

Greenhouse provides us with a number of critical cases throughout the term that shows how the court is steadily marching to the right - and with it, out of step with the Chief Justice, John Roberts. Although Roberts is still the First among equals, he is no longer the swing vote in a relatively evenly divided chamber. As Greenhouse explains for roughly the last 45 years, we've had an ideological balance - 4 liberals, 4 conservatives, and 1 "swing vote". Prior to Ginsburg's death, Roberts was that swing vote, which kept the court from becoming too political or too reactive.

With Barrett on the court, we now have a 6-3 conservative bent, and there is no "swing vote" to be had. The 3 liberals (Kagan, Breyer, and Sotomayor) are consistently outnumbered, therefore fighting a "losing battle" for their viewpoints. This is the most significant change coming from the 2020-21 term, as I saw it.

Greenhouse does a very nice job of analyzing the court, it's various members, including their personalities and how they mesh with each other. She recognizes that a term is like a "snapshot in time" of the court, but it does help us to understand the inner workings - especially when the Court goes through such a tumultuous shift in such a short time frame.

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Gary

Supreme does not mean fair or good

Reviewed in the United States on March 11, 2022

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I got a lot out of this book. While I knew of the headlines (Hobby Lobby, Wedding cakes, etc.), I did not understand the details that got us to this point. Linda explains those details nicely. It helps to just make a quick note on what each case is about when it first appears in the book. This way, you don't have to go back to refresh your memory about the specifics of the several (many?) cases.

Like many, I am really disappointed in how religious freedoms are protected by the state, but the state is not protected from religious bigotry. Alas.

9 people found this helpful

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Donna Mills

So far, so good.

Reviewed in the United States on July 22, 2023

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I haven’t finished this yet, but so far I love it. I would recommend it to anyone.

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John Woznick

An Excellent Book on the Current Court.

Reviewed in the United States on November 29, 2021

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Linda Greenhouse's book is an excellent analysis of the recent changes in the Supreme Court and where they might lead. She reviews the last year in court cases and examines the direction the court has moved taking into account incremental changes in rulings over time. She is an excellent writer. The story is fascinating and easy to read with the background she provides.

9 people found this helpful

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Golf Reader

Summary of conservative trend

Reviewed in the United States on December 13, 2021

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An excellent summary of the dircrtion of the Supreme Court including references to key cases some if which have had little publicity

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PJS

Well Written and Interesting, But Completely Biased

Reviewed in the United States on March 14, 2022

First and foremost, this book is, cover to cover, a completely partisan treatment of the subject matter. Conservative justices (Roberts, Thomas, Alito, Gorsuch, Kavanagh, and Barrett) are variously and alternately portrayed as scheming, intellectually dishonest, hypocritical, cowardly, and biased. Liberal justices (Ginsburg, Breyer, Sotomayor and Kagan) are frequently characterized, albeit subtly, as patriots, heroes and truth-tellers. They receive virtually no criticism whatsoever, except for being perhaps too honest, too restrained, and too fair at times. In this respect, the book fails to offer anything approaching an even-handed treatment of the transition from the Court's having Ruth Bader Ginsburg as a member, and then Amy Coney Barrett as her replacement.

Putting that major issue aside, the book was informative and well-written, indeed almost a page-turner in the way that it held my interest. In that respect, the author is, by any standard, talented.

I would say that its level of sophistication might be difficult for non-attorneys to appreciate. Perhaps an up-front discussion of majority opinions, dissenting opinions, concurring opinions, plurality opinions, stare decisis and writs of certiorari, etc., and how they all fit together, would be useful for almost all non-attorney readers. Also, as some readers correctly noted, the author's chronological approach (dealing with what the Court did month-by-month, and as the author says at the end, writing in essentially real-time, without "cheating" by going back afterward to edit an earlier chapter in light of subsequent events), gave rise to some confusion. This is because a given case was occasionally discussed at several points throughout the book, i.e., when it was accepted by the Court and its background was explained, when it was argued, and when it was decided. Given the way the author chose to organize the book, and there was a value in doing it as she did, this was inevitable. However, another organizational approach, dealing with issues and cases in one discussion from beginning to end, might have yielded a more coherent and informative output.

All in all, a worthwhile and relatively quick read, so long as you can avoid becoming overwhelmed by the author's extreme bias.

13 people found this helpful

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Nainey301

Great read

Reviewed in the United States on September 10, 2022

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Helps you understand today's supreme court

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LuAnn J. Beamer

Really interesting book!

Reviewed in the United States on December 5, 2021

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Although I haven't read it in it's entirety, I love the cover and the ocntents.

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W. Van Haperen

Very disappointing

Reviewed in the Netherlands on October 7, 2022

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I came across this title last summer and i read that an updated edition would come out in october, so i decided to wait. This is a disappointment. First of all, the number of pages is much lower than stated by amazon. Second, the letters are rediculously small; and third, with a new preface i expected an in-depth analysis of the overturning of roe v. wade, but no such luck.
All in all, this new edition is a joke.

Graham James

A fascinating read if, for a lay person, hard to follow in parts.

Reviewed in the United Kingdom on April 23, 2022

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I bought this book after reading an article headlining it in the London Review of Books. A sole positive resulting from the advent of Trump, is that I, and I suspect many others on this side of the pond, had become more keen to learn about US politics. The shenanigans at the Supreme Court was a particular "highlight" of Trump's extraordinary behaviour and I was keen to know more.

Perhaps I was expecting a bit more background, more about the respective Justices and their history and a bit less in depth analysis of cases; nonetheless, there was some biographical information, albeit mostly limited to the Justices referred to in the subtitle, and the coverage of key cases was both interesting and necessary to explain the political evolution of the Court.

I did find some of the narrative extremely hard to follow. I am not sure whether this was because of lazy writing by the author or the fact that, as I freely admit, I do not have the most logical of minds. I am not dumb; I am educated to degree level and work in a profession, but I am not blessed with that quick-witted, analytical mind that lawyers, and particularly advocates in a Court room, must have. Some sentences, often including words only used in legal speak, had so many negatives that it was extremely tough going to work out the positive - that is to say the principle that was at stake and therefore why this mattered or why the decision was surprising or expected given the composition of the Court. There were some sections I had to read over and over again; also I sometimes had to look words up without which a section made no sense. "Enjoin" was one such I can recall which, once its legal meaning was understood, rendered the section in question with quite the opposite meaning to that which I had gleaned (and which had thereby confused me entirely). I encountered difficulties like that throughout the book and you really have to work hard to understand it unless you already have a strong legal understanding .

For myself, this book needs a second reading, but I need to gather my strength first. I must not sound too negative; I enjoyed reading it and I did learn things. I also thought it surprisingly balanced, even too balanced for my liking, and not outspoken enough about the fundamental injustice of having Court rooms driven by political ideology and outcomes dependent on the political balance of the members.

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