In his new book, The Supermajority: How the Supreme Court Divided America, Michael Waldman identifies three times that the U.S. Supreme Court caused a public backlash against itself—and warns that the court may be well along the path to a fourth massive public backlash. I had a great conversation with Michael Waldman about his book The Supermajority in June 2023 when it debuted. It was timely, well-written and thought-provoking for my audience.

A blistering and unforgiving repudiation of the judicial authority of the highest Court of the land, this book goes to great lengths to make a compelling case for civil and public action to reclaim what’s rightfully ours, The People’s.

Tracing the long arc of the establishment of the SCOTUS, beginning with the philosophy and principles of the Founding Fathers, through multiple tumultuous periods of the High Court finding its footing, all the way to a screaming three-day tear-down of modern civil society principles, Mr Waldman provides copious evidence of the origins and sources of today’s Court composition, and its rather presumptuous idea of Judicial Supremacy. While the overall writing leans hard left and quite unabashedly liberal, the author doesn’t waiver in pointing out shortcomings on both sides of the political divide. While obviously, according to him, a clear and overwhelming portion of the blame lies on the conservative establishment, he does mention (if fleetingly!) the times when the liberals had their way, in flagrant disregard of the principles of fairness and democratic values.

The relentless tirade makes spectacular attacks on the Justices, and how they’ve managed to repeatedly and blatantly subvert and undermine the constitutional rights of Americans. Taking his words at face value, it is clear that this Court and more specifically its six conservative Justices have begun to display their authority in a very public and political way, while cherry picking the basis for their various arguments, sometimes taking a diametrically opposite approach from one day to the next. To make his point, Mr Waldman spends a considerable amount of time on providing historical judicial precedent and context from some landmark cases, showing that while differences between the Legislatures and the Judiciary are nothing new or uncommon, they used to be handled differently - read civilly - and the arguments on either side were at least not overtly divisive. Precedent, or state decisis, as the Court calls it, is an important and crucial basis for legal debate and decisions, as demonstrated repeatedly over decades and in fact centuries of legal history. How our current Court has chosen to throw all that aside, not just once or twice but repeatedly, across a wide variety of issues, beggars belief.

When defending the right of gun owners, they cite freedoms enumerated in the Second amendment - whose mere existence as an amendment shows that the Founders could and did change their mind. However, when attacking the rights of a pregnant person, they refuse to allow the same standards, instead hiding behind laws from 1235 A.D. (not a typo, really - statements from nearly a thousand years ago were cited by the majority when labeling abortion as illegal, and being against the founding principles of this Nation). It’s as if societal progress stopped nearly 160 years ago, when the Fourteenth Amendment was written.

At another place, there’s a quip of how if Great Britain would think of implementing a gun control law, or really any law, they wouldn’t first ask “Hmm, now what would King George III have to say about this”!

In the end, he does offer some suggestions and solutions to what can help - largely more public participation, some Federal Government authorities, but above all, legislative reforms. Term limits seem to be an appealing and effective approach, and there’s a very simple model proposed for how this can be taken on, and while no plan is without its pitfalls, it certainly has the potential to at least address some of the more egregious shortcomings of the present Court system.

All in all, an urgent and fairly comprehensive book.

There isn't an American institution more consequential to our everyday lives than the United States Supreme Court & yet it's the one institution that is probably understood the least by Americans. The overturning of Roe v. Wade by the Supreme Court in June 2022 has forever changed this country. The Dobbs decision of June 2022 has sparked a newfound interest in the SCOTUS. In The Supermajority, author Michael Waldman used recent Supreme Court decisions while also giving a historical perspective of the court. In addition, he covered the shift of balance on the court & its new conservative majority. I found this book fascinating. While I knew quite a bit about the court, I still learned a great deal. This book was an excellent read & would be perfect for a government or civics class. Having read this one, I'm intrigued to read other books by Michael Waldman.

THE SUPERMAJORITY by Michael Waldman is subtitled "The Year the Supreme Court Divided America." Yet, Waldman who is president and CEO of the Brennan Center for Justice at NYU School of Law, begins by outlining the court's history and traces a pattern of overreach and backlash, specifically noting three periods in American history: just prior to the Civil War (1857's Plessy v. Ferguson as the chief example); early in the twentieth century contributing to reform efforts by Progressives and later vigorous defense of FDR's New Deal; and the Warren Court (especially 1954's Brown v Board of Education) and its impact on segregation, civil rights, and voting rights. Reviewing recent events, Waldman also devotes a chapter each to "The Insurrectionists" and the leak of the draft Dobbs decision before ultimately focusing on "Three Days in June," referring to cases decided last year: Bruen (2nd Amendment rights); Dobbs (reproductive rights); and West Virginia v EPA (climate change). He summarizes, "Dobbs and Bruen were for the Republican Party voters; West Virginia v EPA was for the paying customers. Together these three cases reflected the coalition of religious conservatives, white rural voters, and business interests that have made-up the Republican Party since the 1970s." His final section looks at future cases dealing with affirmative action, race, and discrimination. He concludes in part by saying, "When norms are broken, reform often follows. The Supreme Court is now ripe for such a response."

Interested readers may also wish to look for these recently published titles:
The Shadow Docket by Stephen Vladeck and
Nine Black Robes by Joan Biskupic

The Supermajority is a timely and vital analysis of the Supreme Court's 2022 term and the dangers created by the six member conservative majority. The book is accessible to lawyers and lay people alike and by the end makes a strong case for why the current court is a product of decades of political organizing meant to destroy democracy and promote business and conservative interests. The Supermajority of six justices is in control and they are just beginning to reshape the country to conform to their views.

The book begins with a broad history of the Supreme Court. Waldman draws many parallels between controversies of the past and modern debates, like the leak of the Dred Scott opinion, the controversy over FDR advocating for court packing to protect the New Deal, and the politicization of hearings on appointments. Then Waldman walks through the modern Supreme Court, giving background on the nine justices sitting on the Court and how they ended up there. This all works as helpful background to the focus of the book on the 2022 term and the wide-ranging cases that the Court heard.

Waldman does a great job criticizing the current Supreme Court and pointing out the sources of its most dangerous ideas and the problems its decisions will have on America in the coming years. The central cases Waldman analyzes are Bruen (preventing states from passing firearms regulation), Dobbs (overturning the constitutional right to an abortion and returning the issue to the states), and West Virginia v. EPA (in general limiting the authority of the regulatory state, and in particular the ability to combat climate change). But Waldman also discusses many of the other problematic decisions issued by the court that did not get a much coverage, like the Court's various cases on religious liberties.

The book ends looking towards the future, including the major cases of the 2022 term that are going to be released in the coming weeks, and suggestions for change that can help preserve democracy and the legitimacy of the Supreme Court. As a law school student, a lot of this book was very familiar to me from my classes (I took my constitutional law final the day the Dobbs decision leaked), but Waldman still engaged me with his perspective on the history of the Court and some reporting from the last few years that I had missed related to the Court. The Court continues to release poorly argued, ahistorical, and disastrous decisions, but Waldman does give some reasons for hope and methods to change in the end, so now it is on "We the People" to stand up for our rights and make sure the Court can become legitimate once again.

As a teacher of AP Government at the high school level, this book is very important to me and my classroom. The book gave me more insight and the ability to speculate about the future of court with more authority.

Informative, easy to read and understand. It definitely gave me new information I wasn’t expecting and was a little shocked to learn. I think everyone should read this book!

This book is replete with interesting and important information about the history and functioning of the US Supreme Court. It all leads up to Waldman’s contention that “Over three days in June 2022, the Supreme Court changed America.” It did so by overturning Roe v. Wade, putting all privacy rights at risk; by radically loosening curbs on guns; and by hobbling the ability of government agencies to act to protect public health and safety and the environment.

The Court, Waldman points out, was able to do this because of a “supermajority” of six very conservative justices, all appointed by Republican presidents, and of whom five were picked by a president who took office after losing the popular vote (but winning in the Electoral College). Furthermore, he argues, as have others, https://lawliberty.org/forum/understanding-clarence-thomas-the-jurisprudence-of-constitutional-restoration/ that while John Roberts is nominally the Chief Justice, the Court is dominated by Clarence Thomas.

The author explains the concept of “originalism,” the judicial philosophy that the conservatives claim to be guided by. They see their job, he avers, as going back in time to ask what the Founders meant to determine what Americans in 2022 should do. This means, however, that the Court “would only recognize rights … recognized by the white men of the 1700s and 1800s.” [And Court Justices elide over the fact that Jefferson himself wrote, in 1816, that it was “absurd” to believe that “preceding generations held the earth more freely than we do; had a right to impose laws on us, unalterable by ourselves; and that we, in like manner, can make laws, and impose burthens on future generations, which they will have no right to alter: in fine that the earth belongs to the dead, & not the living . . .” (Letter to William Plumer, then Governor of New Hampshire, July 21, 1816.)]

The strict originalism adhered to by the current Court, Waldman observes, is patently absurd:

“The framers were from a different time - thank heavens! Many owned slaves, or abhorred democracy. Nearly all disdained women’s equality. Most Americans lived isolated in villages and farms. Why should their views govern in 2022?”

In fact, he suggests, “today’s justices are not conservative because they are originalists; they are originalists because it is conservative. They fly a flag of convenience.”

Waldman writes that the Dred Scott decision, now widely regarded as the worst decision in the Court’s history, “was in fact the first major originalist opinion.” The Founders only granted rights to white people in the country (and at that, only to white, property-owning men). The current Court seems intent on honoring that sordid history. (Waldman points out that Lincoln was a *counter*-originalist, believing that the country should look to the words of the Declaration of Independence, rather than to those of the Constitution, for guidance for what the governing principles of the country *should* be. The Constitution, Waldman clarifies, was “a careful compromise” and one that avoided the issue of slavery as much as possible in order to form a union out of disparate states sharply divided on the issue. Lincoln, by contrast, claimed the country was founded in 1776, the date of the Declaration, not 1787, the date of the Constitution.)

Alas, the Court for much of its history hewed to the words of the Constitution, not the Declaration, and by the 19th Century was “fully entrenched as a tribune for privilege and the status quo.” It wasn’t until 1938 that the Court, in a footnote to a case, “United States v. Carolene Products Company” involving adulterated milk, directed scrutiny to laws that had a deleterious effect on “particular religious, or national, or racial minorities” disadvantaged in a majoritarian system. Justice Harlan Stone pointed out that “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” That is, because these groups are not only subject to prejudices, but usually lack efficacy in challenging the political process, they require extra protection in a democracy.

One claim often made supporting originalism is that law is supposedly *neutral*, applying to everyone in an equal manner. However, when prejudices have been enshrined structurally and systemically, “neutrality” is a fatuous excuse to maintain the status quo and power structures as is. This philosophy totally ignores the dicta of the Carolene Products case, maintaining that whatever protections for minorities were established subsequent to the time of the Constitution should not apply. Thus, for example, Justice Kavanaugh, concurring in the 2022 Dobbs case that overturned Roe v. Wade, wrote that the Supreme Court must be “neutral” on the subject of abortion. But as the minority dissent maintained: “Because laws in 1868 deprived women of any control over their bodies, the majority approves States doing so today.” Any evolution in concepts of liberty and equality are ignored by the stringent originalism of the current Court, which decided to eliminate federal protections and send the issue back to the states. In the states, however, as Waldman observes, gerrymandering has produced unrepresentative legislative maps and a skewed Congress; the vitiation of the Voting Rights Act which has interfered with the ability of minorities to vote; and the Citizens United decision allowing boatloads of dark money to influence the political process, tipping the scales in favor of a despotic group of white Christian Nationalists intent on abrogating the rights of the kinds of minorities referenced by Carolene Products. Thus, as Waldman holds, “At times we need strong national standards because states are abusing the rights of their people.”

Waldman concludes, “That a small group of people has seized so much power and wields it so abruptly, energetically, and unwisely, poses a crisis for American democracy.” What can be done? Waldman reviews a number of steps that *could* be taken, although the odds are stacked against success. But the US Supreme Court has shown itself to be a *threat* to American democracy. This concern, Waldman says, should be at the center of our politics.

Evaluation: Michael A. Waldman is an American attorney and presidential speechwriter and political advisor, who is currently serving as the president of the Brennan Center for Justice at NYU School of Law, a nonprofit law and policy institute. He is articulate and informed, and more passionately committed to justice for all than - apparently - is the majority of the current U.S. Supreme Court. I think this book should be required reading