PROLOGUE

DEATH AT THE RANCH

If you’re going to die, the Cíbolo Creek Ranch in West Texas is a bucolic place to do it. So it was on Saturday, February 13, 2016, for 79-year-old Antonin Scalia, the 103rd justice of the U.S. Supreme Court.

Silhouetted by the Chinati Range of the high Chihuahuan Desert, far from the din of Dallas, the 30,000-acre luxury resort is an oasis of tranquility. In this strange land of the Big Bend, the skies are vast, the people are few, and the rush of tumbleweed is ever-present. Native American legend has it that this is where the Great Spirit deposited any leftover rocks after He created Earth. The sun-baked Big Bend is “where the rainbows wait for the rain,” according to Mexican cowboy poetry.

Cíbolo Creek Ranch itself has room for only 36 guests at a time. They stay in a compound of restored adobe forts that date to the pioneer days of 1857. For roughly $400 a night, guests can hike, bike, stargaze, and enjoy such signature Texas cuisine as Squab Jalisco Style in the antique-filled dining hall. Mick Jagger and Julia Roberts have visited. Parts of “No Country for Old Men” and “There Will Be Blood” were filmed there. Vogue did a photo spread. But many guests really come to hunt on remote areas of the property. There are elk, deer, pheasant, chukar, and white-winged doves. Scalia came to hunt blue quail, bringing along his new double-barreled shotgun.

He was a serious gun aficionado. Not only had he written the majority opinion in District of Columbia v. Heller—the Supreme Court’s watershed 2008 ruling declaring for the first time that the Second Amendment protected an individual’s right to bear arms, which he regarded as among his finest decisions. Scalia, the doctrinaire Reagan-appointed conservative, had also taught Justice Elena Kagan, the Obama-appointed liberal, how to shoot. When Kagan made the usual informal courtesy calls to senators after she was nominated, she was asked her views on the Second Amendment more than on any other topic. She declined to answer, as any nominee would have. Senators then asked if she’d ever gone hunting or even held a gun. She replied she had not; after all, she grew up on Manhattan’s Upper West Side, where, as she put it, “that’s not really what you do.” Finally, after the umpteenth time she was asked the question, she responded in one meeting, “You know, Senator, if you were to invite me hunting, I would really love to go.” Describing the episode three years later, Kagan said a “look of abject horror passed over his face.” She beat a graceful retreat. “But I’ll tell you what,” she said. “If I am lucky enough to be confirmed, I will ask Justice Scalia to take me hunting.”

Once on the Court, Kagan quickly sought Scalia out and told him, “This is the only promise I made during my entire confirmation proceedings, so you have to help me fulfill it.” She said Scalia found the whole thing “hilarious—a total crackup.” And he did take her hunting several times—usually for birds, but on a three-day summer trip to Wyoming, Kagan proudly recalled, “I shot myself a deer!” (Still, becoming an occasional hunter did not make her interpret the Second Amendment sympathetically—although she wasn’t on the Court when Heller was decided. On one of her first trips with Scalia, to rural Virginia, another hunter asked her—after she had bagged two pheasants—if she was having a good time. “Oh, yes!” she said. The hunter wanted to know if she thought the experience would change her views on the Second Amendment. “Oh, no!” she said.)

Though Scalia grew up in the wilds of Elmhurst, Queens, he traced his love of hunting to his childhood there. “My uncle Frank had a large vegetable garden,” he reminisced in 2013, “and my grandfather would sit on the back porch of this bungalow…and would wait for the rabbits to come to him. Boom! He would shoot them there.” On his subway ride to private high school in Manhattan, Scalia carried a rifle for drill practice. At the Supreme Court, the centerpiece of his personal office was the mounted head of a Rocky Mountain buck he shot in 2003 from 460 yards away. “Meet Leroy!” he would tell visitors (though he never explained the origin of the name).

Scalia’s visit to Cíbolo Creek was set up by his longtime friend C. Allen Foster, a trial lawyer in Washington, D.C. The two had been hunting buddies for 30 years. The ranch was owned by John Poindexter, a Houston-born multimillionaire, conservationist, and decorated Vietnam veteran. Scalia, Foster and 34 others arrived at the ranch at noon on Friday—all as Poindexter’s personal guests for the weekend. Scalia’s only expense was airfare—a Southwest flight from Washington to Houston and his share of a small chartered prop plane to Cíbolo’s private airstrip. On the way, he was in fine spirits, reading Court briefs and listening to Mozart on headphones. On the 737 to Texas, Scalia—seated on the aisle with a 6-feet-8, 300-pound traveler between him and Foster—reached over to Foster and cracked, “Look, it’s King Kong!”

Foster and Poindexter were prominent names in the world of hunting, part of the leadership of the International Order of St. Hubertus, a hunting fraternity founded in the 17th century by the Hapsburg count Franz Anton von Sporck. With nearly 900 members worldwide, the fraternity’s motto, without any apparent irony, was Deum Diligite Animalia Diligentes (“Honoring God by Honoring His Creatures”). Scalia had turned down the chance to be a knight of the order, perhaps due to cost. It wasn’t expensive to join, but members were expected to participate in several annual activities that could cost thousands of dollars apiece. As Scalia liked to say, it’s tough to raise nine children on a government worker’s salary. Despite not being a member, Scalia’s connection to the Order of St. Hubertus generated media interest. An investigative piece by the Washington Post 11 days after his death detailed that “Scalia spent his last hours with members of this secretive society of elite hunters.” The article was in keeping with other breathless coverage of his demise—the kind more readily expected on the death of a head of state.

At the ranch, Scalia and Foster and a few other guests took in a full afternoon in the field. “Don’t call me Justice Scalia,” he told the others. “I’m ‘Nino.’ ” Although he’d never hunted blue quail, he held court on the best way to bag one as they drove along in a Humvee. His companions seemed to know the routine: He talked, they listened, everybody laughed. Scalia loved to be the center of attention, but he also understood himself. He’d been raised an only child—and that, he sometimes explained to friends, was “why I am the way I am.” It was a marvelous day, and Scalia did bag a bird.

At dinner, the group enjoyed medallions of beef, as well as conversation that stretched into the night. For most of the evening, Scalia chatted with Poindexter’s 37-year-old girlfriend, Veronika Liskova, about families, religion, the history of the Hagia Sophia in Istanbul, and the quietude of St. Peter’s Basilica at sunrise. At 9, Scalia got up—he was first to leave—saying he was exhausted after a long week. “I don’t want to offend anyone, but I want to go to bed so I’m fresh for activities tomorrow,” he told Foster, as he headed off to the EL PRESIDENTE suite by the lake. “I’ll see you in the morning.”

When Scalia didn’t show for breakfast, they figured he was sleeping in. In time, Foster knocked on his door. When nobody answered, he assumed Scalia was in the shower. By midday, though, Foster and Poindexter grew worried and decided to enter the suite through an unlocked patio entrance. They found Scalia lying on his back in bed, wearing pajamas, his head on three pillows, his arms at his sides, with the sheets up to his chin—in ghostly “perfect repose,” as Poindexter described the scene. Foster said he dreaded approaching the bed. “It was obvious he was dead,” he recalled. To be sure, he checked Scalia’s pulse. There wasn’t one.

Poindexter called the physician on duty at the local hospital to ask if there might be some medical condition under which a person with no pulse and no body temperature could still be alive. “No” was the answer.

For a moment, Foster, a dedicated conservative who appreciated Scalia’s pugnacious, abiding influence on constitutional law, thought about what his death would mean. “God save our country,” he said to himself. But he and Poindexter had more immediate issues to deal with. “What the fuck do we do now?” Foster asked. They decided Poindexter would handle law enforcement, and Foster would call Scalia’s family back in Virginia. Then began a sequence of screw-ups that would have been funny under other circumstances. The U.S. Marshals Service in Washington was responsible for security when the justices traveled. Scalia had opted to have no bodyguards with him, and the marshal whose number Foster had been given when the trip began didn’t answer. So Poindexter called the marshals’ outposts in San Antonio, Fort Stockton, and El Paso. He got only answering services. When he tried the main office in Washington, without mentioning a justice had just died, the duty officer said he’d pass along the message to his superiors.

Next, Poindexter contacted the county sheriff, Danny Dominguez, and decided to disclose the identity of the deceased, hoping—wrongly—that the information wouldn’t leak out before Scalia’s family was notified. The sheriff, who had been in office 19 years, insisted jurisdiction resided with him, no matter who had died, and said he was coming to the ranch. Meanwhile, the White House—which had already learned Scalia had died and that Foster was with him—texted Foster to ask how President Barack Obama might best reach John Scalia, one of the justice’s sons.

An hour and a half later, Dominguez arrived and was escorted to the suite. Foster again informed the sheriff who had died: “Antonin Scalia of the Supreme Court.”

“Now—what’s his name again?” the sheriff asked.

“Antonin Scalia,” Foster replied.

“Who is he?”

“He’s a justice of the United States Supreme Court.”

“Is that in Texas?”

“No, no, no—it’s in Washington, D.C.”

“How do you spell his name?”

“S-C-A-L-I-A.”

The sheriff wrote the name on the palm of his hand.

Dominguez called a mortician in nearby Presidio, which was why a hearse showed up so swiftly. When it departed before dusk, TV crews already camped out near the ranch entrance incorrectly assumed it was carrying Scalia. But because Foster had talked with Scalia’s family and made other arrangements with the Sunset Funeral Home in El Paso, the hearse was empty. Another guest at the ranch got a local priest to administer last rites for Scalia, a devout Roman Catholic. When the diocese of El Paso found out Scalia had died, it offered to find the bishop and send him, but the family said a priest would be fine. At midnight, in a convoy of law enforcement vehicles, Scalia’s body finally was taken away. The next day, the body was flown home to Virginia.

In their written report, county officials quickly concluded that there was nothing suspicious about the death of “Antonio” Scalia. The physician for the Court informed officials that Scalia, a smoker, had suffered from a range of medical conditions—including coronary heart disease, obesity, hypertension, and diabetes—that put him at risk for sudden death. (Recent presidents have routinely disclosed their medical records, though there’s no legal requirement they do so. Justices do not, but some have announced surgeries and hospitalizations.) Scalia had just seen the physician in Washington for a shoulder injury. The Marshals Service had the view that even a trip like the one Scalia took to Cíbolo presented peril, but he had chosen to go. Shortly before leaving—first to Singapore and Hong Kong, then to Texas—Scalia had run into Justice Anthony Kennedy at the Court. “Nino, you have to take care of yourself,” Kennedy urged him.

“Tony,” Scalia replied, “this is my last big trip.”

The FBI declined to investigate the death, and at the request of the Scalia family, no autopsy was conducted. Even so, the conspiracy industry quickly went to work. In addition to speculation about the involvement of the Order of St. Hubertus—“shrouded in mystery” and “founded by the Bohemian Grove as a feeder group for the real Illuminati,” as two widely trafficked websites argued—one theory had it that President Obama was behind the death and that a pillow found covering Scalia’s eyes was evidence of the plot. “My friends, it’s Saturday night, and this is an emergency transmission,” began paranoiac troll Alex Jones, the purveyor of infowars.com. “The question is, was Anthony [sic] Scalia murdered?…This is the season of treason. This is the time of betrayal.” Donald Trump, who would become the Republican presidential nominee in a few months, joined in. “It’s a horrible topic,” he told radio host Michael Savage, “but they say they found a pillow on his face, which is a pretty unusual place to find a pillow. I can’t give you an answer.”

By the end of the week, Scalia’s body lay in repose in the Great Hall of the Supreme Court—the cavernous, marble-columned main corridor, with doors at its east end opening into the actual Court chamber. His chair on the bench where he served for 30 years was draped in black wool crepe—a custom for honoring the death of a sitting justice dating to Chief Justice Salmon P. Chase in 1873. Scalia’s death in office was only the third at the Court in 62 years. The flags on the front plaza of the Court flew at half staff for a month. President Obama and his wife Michelle came to pay their respects; Vice President Joe Biden attended the memorial service.

The president’s decision not to go to that service created the kind of partisan frenzy for which Washington had become notorious. “I wonder if President Obama would have attended the funeral of Justice Scalia if it were held in a Mosque?” tweeted Trump—who didn’t attend the funeral either. Few D.C. pundits bothered to point out that presidents since World War II haven’t normally attended the funerals of justices. But such was the tempest over Scalia’s death.

His death set off a political brawl that would last 14 months—coloring the campaigns of both presidential candidates; emboldening already obstructionist Republican senators who refused even to meet with President Obama’s eventual nominee, thus exposing Democrats as inferior at the game of blocking Court nominees; and unnerving a sitting justice, Ruth Bader Ginsburg, who openly condemned a possible Trump presidency, which in turn infuriated the chief justice, who at least in public was a model of discretion. When the brawl ended, an unabashed conservative named Neil Gorsuch was on the Court—leaving its liberal wing thoroughly dejected. Scalia had died a full 11 months before Obama’s presidency was to end. The four liberal justices believed they would soon be joined by a decisive fifth appointed by Obama (or a Democratic successor), giving them control of the Court for the first time in 50 years. That assumption blew up when Senate Republicans denied Obama’s nominee, federal appellate judge Merrick Garland, a hearing—and Trump then won the presidency in November 2016.

That election made clear how central the Supreme Court has become in American politics. Exit polls showed that 70 percent of voters believed that Court appointments were either “the most important factor” or “an important factor” in determining their vote. That percentage had jumped by more than a third since Obama’s first win in 2008. Among Trump voters alone, 27 percent said the Court was “the most important factor”; 19 percent of Clinton supporters said the same.

But the stakes were higher than a single seat on the Court. They were greater than what would happen on any single issue like abortion or gay rights or campaign finance. The reaction to Scalia’s death exposed a little-acknowledged orthodoxy about the Court’s role. The justices have become supremely triumphalist: They do because they can. Such dominion is now so assumed that scarcely anyone in civic life challenges it. Not Democrats or liberals, not Republicans or conservatives.

As much as any occupant of the White House or any paralyzed session of Congress, it is that orthodoxy that imperils self-governance. Democracy is legitimate not just because of some vague Athenian ideal, but because the ideas that come out of its competitive rough-and-tumble best represent the will of the people. That is better than so often leaving it up to nine unaccountable judges.

Less than an hour after the news from Cíbolo Creek hit the wires, the majority leader of the Senate, Republican Mitch McConnell, announced he would preempt consideration of any Obama nominee to replace Scalia. Franklin Roosevelt in 1937 had tried to pack the Court by adding to it more seats that he would then get to fill. McConnell was now trying to unpack it, by leaving unfilled a vacancy during the remaining term of a Democratic president. Because the Senate needed to confirm any nomination, the nine-member Court would have to function at less than full strength for at least a year. McConnell’s stance was totally consistent with the pledge he made early on in Obama’s tenure to subvert him at all costs.

In spite of strained efforts to create a convincing historical analogy, there was no precedent for leaving a Court seat open that long. In February 1988, Anthony Kennedy was confirmed by a Democratic Senate during the last year of Ronald Reagan’s presidency. And if Mitt Romney, instead of Barack Obama, had won the White House in 2012, it was unthinkable that McConnell would now be holding up a Court nomination in the twilight of a Republican administration. But Republicans had won control of the Senate in 2014, and most other GOP senators closed ranks behind McConnell, saying they wouldn’t meet with an Obama nominee. Conservative advocacy groups, especially those focused on constitutional litigation, also inveighed against filling the Scalia seat. A month later, when Obama nominated Garland—a widely lauded centrist whom Obama picked specifically to overcome the objections of conservatives—Republicans held their ground.

Twelve years earlier, it was Scalia himself who had advised of the dangers of a Court that wasn’t at full strength. He had been spelling out why he refused to recuse himself in a case involving his now-and-then duck-hunting partner Vice President Dick Cheney. The fact of only “eight justices,” Scalia wrote at the time, raised “the possibility that, by reason of a tie vote, [the Court] will find itself unable to resolve the significant legal issue presented.” (If the justices are tied, the ruling of the lower court stands.) Even one vacancy, he said, “impairs the functioning of the Court.” Unintentionally, Scalia had presaged why leaving his own seat vacant was unwise.

More important, though, than the GOP’s conduct was the bipartisan, if inadvertent, consensus on what the vacancy meant. The Court—rather than Congress or the president—would be the branch of government that resolved a range of political issues. From same-sex marriage to voting rights, from immigration to the environment, the website for Hillary Clinton’s campaign stated the 2016 election “really will decide the future of the Court—and, as a result, the future of the country.” (She later amended that belief, predicting Trump appointments to the Court would “threaten the future of our planet.”) Trump warned that if Clinton won and nominated justices, “our country is going to be Venezuela” and would adopt “socialism.” The usually less excitable front page of the New York Times joined the chorus: “Court Nominee Could Reshape American Life.”

A Trump administration or a Clinton administration would of course produce different policies. The outcomes—whether on border security, climate change, entitlements or the tax code—were consequential. But Trump and Clinton themselves, as well as academics and editorialists, agreed the next president’s choices for the Court could reverberate for a generation. The candidates’ thinking reflected the Court’s place in American society. And with Scalia’s seat now opening up, no single vacancy in modern times had been more freighted.

Without Scalia, the Court was evenly divided between justices appointed by Democratic presidents and justices appointed by Republican presidents. All four of the “Republican” justices—John G. Roberts Jr. (the chief justice) and Samuel A. Alito Jr., both appointed by George W. Bush; Clarence Thomas, appointed by George H.W. Bush; and Anthony Kennedy, appointed by Ronald Reagan—were ideologically to the right of their “Democratic” counterparts. All the “Democratic” justices—Ruth Bader Ginsburg and Stephen G. Breyer, both appointed by Bill Clinton; and Sonia Sotomayor and Elena Kagan, both appointed by Barack Obama—were to the left.

In the prior decade, the Court had been split 5–4 or 4–5 (depending on one’s perspective) on an array of high-profile issues: gun control (the Heller case in 2008), campaign spending limits (Citizens United in 2010), voting rights (Shelby County in 2013), and same-sex marriage (Obergefell in 2015). On abortion, all the way back to Roe v. Wade (in 1973), the justices have clashed for 45 years. In each case, the Court had decided, first, to use its broad discretion to get involved at all in the constitutional issues, and second, to countermand what elected legislative majorities had enacted. By interjecting themselves into issues that the two elected branches of government were confronting—and rendering those branches largely impotent—the justices had been upping the ante for each future seat on the Court.

If a Democratic president were to name Scalia’s successor—shifting the balance of power on the Court to frustrated liberals—that new justice could help to overturn rulings that had expanded gun owners’ rights and limited the reach of voting rights laws. Conversely, a Republican president’s nominee would likely maintain the status quo in favor of conservatives. And if a liberal justice retired during a Republican president’s term, the conservatives would be in position to strike down major decisions on such social policy as abortion and same-sex marriage, thereby returning those issues to the states.

Such calculus by conservatives was more than morbid conjecture. Justice Ginsburg, a liberal, was then 83. Justice Breyer, another liberal, was 77. Based on life-expectancy data, there was a good chance a justice would die during the next presidential term and an even better chance that two would die over the course of two terms extending into early 2025. Justice Kennedy, the relative centrist—and the swing vote on so many key cases—was 80 and also in play. And of course that didn’t even take into account that most justices choose to retire rather than depart the Court in a pine box. (The age of the justices is a peculiar by-product of life tenure. At the time of the 2016 election, five of the eight justices were 65 or over. In Congress, less than a third of the 535 members were in that age group. In the White House, only a quarter of the presidents in history had left office when they were 65 or over.)

If a Republican president like Donald Trump were nominating politically conservative justices, the Court could become a five- or six-justice conservative juggernaut. But in a more far-reaching sense, the new Court could become such a president’s greatest legacy, rippling far beyond his administration—the instrument for accomplishing the long-standing conservative dream of curtailing the powers of the federal government. Except, of course, the reach of the Supreme Court itself.

In our constitutional system, the justices are regarded as deities, announcing from on high the supreme law of the land. And while they disagree about desired results, liberals and conservatives are indistinguishable in their view about that primacy. Asked about the premise of this book—that the Court, in case after big case, acts when it should not—a liberal justice and a conservative each gave the same answer: “I half-agree with you!”*

Distrustful of popular will when it’s inconvenient, liberal and conservative litigants rush to the Court to prosecute constitutional grievances or to claim perceived rights that eluded them in Congress (or in state legislatures). When the Court anoints itself as arbiter, the winning side exalts the justices’ courage. The losers holler about “an imperial judiciary” who are just politicians in fine robes. What exactly is the difference between “making the law” and “interpreting the law”? It’s merely about whether you like the way the justices voted in today’s case. We all favor “judicial restraint” and oppose “judicial activism”—except, naturally, when we don’t, in which case we just call them by the opposite label. “Judicial restraint”—and its cousin, “strict construction” of the Constitution—are the chameleons of American law, instantly able to change philosophical color when expediency requires. “Judicial activism” is what the other guy does. But in truth, everybody’s an activist now.

Scalia made a career out of preaching “originalism” and “textualism,” kindred creeds that he helped make respectable among conservative judges. Originalism piously maintains that the words of the Constitution can and must be interpreted as its Framers understood the words. Textualism means an exclusive focus on the words themselves—their “plain meaning,” as they were understood at the time—to the exclusion of the words’ context and purpose, history and tradition, as well as of the consequences of competing interpretations. Textualism trivializes the possibility of fair inferences; it sees trees but no forest.

Originalism and textualism sound reasonable enough, until one realizes the Framers deliberately chose extraordinarily elastic terms in numerous clauses of the Constitution. Think about the vagueness of such terms as “due process of law” and “equal protection,” as opposed to the specific directive that the president must have “attained to the age of 35 years.” In a 1918 case, long before literalism became fashionable, Justice Oliver Wendell Holmes Jr. noted: “A word is not a crystal, transparent and unchanged. It is the skin of a living thought, and may vary greatly in color and content according to the circumstances and the time in which it is used.” Alexander Bickel, the great constitutional scholar at Yale, later pointed out that while the Constitution (and statutes) dealt only in “abstract and dimly foreseen problems,” courts had to reckon with “the flesh and blood of an actual case.” One could even argue that an originalist mindset requires that the meaning of those intentionally abstract, skeletal phrases be worked out by succeeding generations.

Nowhere in the Constitution’s seven articles and 27 amendments does it state, “Thou shall interpret me based on what judges think the Framers believed.” How, for instance, can one reconcile Brown v. Board of Education with originalism? Brown has been a touchstone of constitutional law since it was decided in 1954. Nobody seriously contends that its invalidation of segregated schools was illegitimate, but on the other hand, nobody seriously believes the drafters of the Fourteenth Amendment contemplated such a constitutional result. The justification for any theory of how to interpret the Constitution necessarily must come from outside the text. The words will not apply themselves.

In fact, originalism and textualism are just another means of interpretation. And because they favor a status quo forever fixed in the 18th century, they tend to favor the “haves” of that time—and to disfavor all others, including minorities and unpopular litigants. Conservatives, usually committed to preserving that fossilized status quo, conveniently gravitate toward originalism. Justices, like most of us, tend to find what they’re looking for, which is why most justices appointed to the Court in recent years have cast predictable votes—in line with what their presidential patrons hoped for. That’s not because justices are political sycophants—they’re merely human. The task of any jurist is to put aside personal and political predilections, and base decisions on neutral legal principles. While most jurists at least try to do so, they don’t always succeed. No method of interpretation miraculously removes human judgment from the equation. “The Constitution is merely words—deathless words, but words,” Bickel wrote. “And the future will not be ruled; it can only possibly be persuaded.”

It didn’t aid the originalist-textualist cause that the Ninth Amendment provides that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The plain words of the Ninth Amendment thus can be read as an invitation to future generations to identify “certain rights” not enumerated in the Constitution but still “retained by the people”—things like terminating a pregnancy or marrying someone of the same sex. Scalia and his apostles loved to claim that originalism and textualism rein in judges who might otherwise be tempted to insert their own partisan preferences into rulings. But the notion that determining the right outcome to a case before the Supreme Court—and cases frequently reach the Court precisely because of disagreement among lower courts—can be reduced to searching a dictionary or mechanically implementing a command belies the very concept of judging. Constitutional clauses aren’t lines of computer code. Judges aren’t bots; they don’t have it that easy. The quest for rigid rules of interpretation is a fool’s errand, rendered hopeless by the Constitution itself. As the legal scholar Andrew Koppelman observed, echoing Sartre, “Constitutional interpreters are condemned to be free.”

Originalism and textualism themselves cannot avoid subjectivity. Different Framers had different views on the same issues. Different clauses pull in conflicting directions. The words of the Fourteenth Amendment protect both equality and liberty. If one always favored the latter, the former vanished—and vice versa. Even the canons of stare decisis—respect for prior rulings (called “precedent” by lawyers)—may suggest different outcomes based on changed factual circumstances since an initial ruling. A justice is invariably presented with choices. For example, few thought the First Amendment’s “Congress shall make no law abridging” freedom of expression meant that obscenity statutes or the entirety of libel law were hence unconstitutional.

The best jurists, as Breyer has described them, chose neither the “willful” nor the “wooden” approach, but rather “an attitude that hesitates to rely upon any single theory or grand view of law, of interpretation, or of the Constitution.” It is a style and an ethos that has been embraced along the way, in differing degrees, by many legendary justices, including Holmes and Louis D. Brandeis in the early 20th century, and Felix Frankfurter and John Marshall Harlan II in the mid-20th century. More recently, Lewis F. Powell Jr., Sandra Day O’Connor and David Souter espoused no overarching method, yet they generally displayed deference to other branches, as well as a lot of common sense. There is a reason Breyer has a photo of Holmes in his chambers. The Holmes approach was incremental, pragmatic, distinctly undogmatic. It favored prosaic “on the one hand, on the other hand” analysis over loud policy pronouncements. In this view, constitutional law should develop gradually—building on earlier rulings, watching how lower courts responded, respecting legislative enactments.

Scalia’s ideological opponents pointed out his methodological flaws. They talked instead of a “living” Constitution that needed to reflect changing times—a country of 325 million rather than 4 million people, with a global rather than a rural economy, dominated by technologies and industries unknown in the 18th century. That dynamic approach means asking a different set of questions: What is the broader goal of a constitutional clause? How should text be evaluated within the context of the overall document? What’s happened in society since a particular clause was written? Should amending the Constitution—a nearly impossible task—be the only way to clarify its meaning?

Justice William J. Brennan Jr., the Court’s liberal lion from 1956 to 1990, was the paragon of the living Constitution. But the problem with such adaptive thinking is it can amount to nothing more than what five justices say it is, seemingly unconstrained by anything that can be tethered to the Constitution. “If you have five votes here, you can do anything,” Brennan so often liked to say, with a wide smile and holding up all the fingers on his left hand. Scalia recognized as much about Brennan’s Rule of Five, which is why he claimed to depersonalize the act of judging. His counter: “The only good Constitution is a dead Constitution….It’s not a living document—it’s dead, dead, dead.”

Today, liberals and conservatives alike blithely rely on the Court to settle society’s toughest issues—at the expense of the two branches of government that are designed to be democratic. Why fight out politically charged questions in an election—the results of which can be overturned in the next one—when a victory in the Supreme Court can cement an outcome for a lifetime? Why try persuading millions of citizens to endorse a position when all you need is five of nine appointed justices? When demonstrators convene outside the Court, they surely miss the irony that they’re marching right past the Capitol across the street.

The corrosive result is twofold: an arrogant Court and an enfeebled Congress that rarely is willing to tackle the toughest issues. Each feeds on the other. The justices often step in because they believe the members of Congress—elected by the people though they may be—act like fools or, like cowards, fail to act. Happy to stay off the battlefield, Congress seldom raises a peep, other than to crowd the cameras during occasional Senate confirmation hearings on a new justice. The result is dwindling public faith in both institutions.

It’s all a bit of a charade, producing a Court that’s short on humility—convinced of its own superiority in settling what the law is, seemingly oblivious to the possibility that its legitimacy takes a hit. “A gift to America,” Sotomayor in 2010 called the Court’s role. Her claim was at once ordinary and remarkable. Roberts was even more direct, uncharacteristically so in an extrajudicial setting. “If [the people] don’t like what we’re doing,” he said during the same C-SPAN program, “it’s more or less just too bad.” Alito went so far as to say the Court’s work was “objective.”

For much of its history, the Court stayed almost entirely out of the affairs of Congress. Before the 20th century, the justices declared federal laws unconstitutional only five times. By midcentury, they were doing so at a rate of about one a term. And by the 1990s, the Court was throwing out three or four federal laws each term. The numbers didn’t suddenly go up because legislation had been written with less care—or because the justices had become wiser.

The triumphalism of the Court—its eagerness to be in the vortex of political disputes, its wholesale lack of deference to other constitutional actors—explains in part the cynical uses to which it has been subjected by presidents and senators. That cynicism, masquerading as “fidelity to the rule of law,” is understandable. But the Court’s drop in standing among the public in recent decades—the reason opinion surveys and mainstream commentary have so often reflected an attitude that the justices are partisans-in-robes—is a mostly self-inflicted wound. Forget the robes—maybe the job should come with tights and a cape. That reflects not a liberal or conservative sentiment, but a growing conviction that the Court has squandered its institutional capital. It is altogether possible to be politically liberal and to oppose an aggressive Court. It is entirely consistent to be politically conservative and to oppose an aggressive Court. Political ends do not justify judicial means.

Of course, the Court must issue unwelcome rulings. By its very nature, it’s a countermajoritarian institution, a bulwark against the momentary passions of the political majority. A central “paradox” of American constitutionalism, as one scholar put it, is that “to preserve democracy, we must limit democracy.” Majorities, by definition, aren’t disposed to look out for the interests of the unpopular. The First Amendment’s guarantee of free expression envisions the need to protect repugnant views—there’s no need to safeguard favored ones. Few stepped up to defend the speech of, say, anarchists after World War I, Communists during McCarthyism, or white nationalists in the current age. Thus it falls to the Supreme Court to vindicate those individual freedoms. Apart from a presidential tweet here or a demagogic governor there, the Court doesn’t raise much lasting political fuss when it forbids Congress to criminalize flag-burning or to outlaw animations of child pornography.

In the same vein, the constitutional rights of criminal suspects—set out, for example, in the Fourth Amendment’s bar of “unreasonable searches and seizures,” the Fifth Amendment’s prohibition of self-incrimination, and the Sixth Amendment’s guarantee of a right to a fair trial—require vigilance by the Court. Indeed, legislative incursions or prosecutorial excesses in matters of criminal procedure could fairly be seen as direct attacks on the role of the judiciary. And in the time of Trump, the justices have sometimes become justifiably watchful of the limits of presidential power in affairs of national security. In short, in the name of root constitutional principles, the Court at times must act in counterpoise to Congress, the president, and the states. As Justice Hugo Black wrote in 1940: “Courts stand against any winds that blow, as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement.”

But these are identifiable areas in which other government actors may be inclined to overstep their bounds and in which specific commands of the Constitution—or its very structure in creating a separation of powers in the national government—apply a brake. They are not normal, they are not routine. Breyer liked to say in various talks, “The job is to decide. We decide.” But “Should we decide?” must precede “We decide.” Or as Brandeis wrote decades ago, “The most important thing we do is not doing.” Thwarting abuses by the other branches isn’t the same as acting as a political referee or counterforce to them. As a general proposition, respect for the will of the people and their representatives—misguided as that will can be—confers great legitimacy. Alongside the courage to act must come the courage not to do so.

Many of the justices, much of the time, will tell you they’re not about usurping power. After all, they say, more than half of their opinions over the years have been unanimous. But that begs the question of when it’s correct to intervene—unanimity doesn’t prove legitimacy. More significant, it ignores that it’s the divisive cases that typically matter most. Though the Court would have us believe it’s a mere bystander awaiting appeals that magically appear on its docket, the justices have virtually total control over which cases they hear. Too many times the Court intervenes purely because it can. Worse, it does so along a polarized divide. The interference may be well intentioned, but it is no less pernicious.

Under Chief Justice Roberts, we have a Supreme Court of blue chambers and red chambers. It wasn’t always that way. In the past, justices sometimes disappointed the presidents who appointed them—think of Dwight D. Eisenhower lamenting his pick of Earl Warren to be chief justice in 1953, or George H.W. Bush regretting selecting David Souter in 1990. Now, thanks to better vetting, nominees turn out to act on the bench about the way their presidential appointers expect. Obama got what he wanted with Kagan and Sotomayor. So, too, in the great majority of votes, did George W. Bush with Roberts and Alito, and Bill Clinton with Ginsburg and Breyer.

When the votes of justices in controversial cases can be predicted at the outset, constitutional law simply becomes partisan politics by another name. If you usually know beforehand how justices will come out—and if it’s a function of the political party of the president who appointed them—what’s the point of having a Court? Did we really establish a system of self-government in which those life-tenured judges decide so much social policy?

Acrid confirmation hearings have demonstrated that awareness. They’re just the scorched-earth preliminaries over how a newly composed Court will interpret the Constitution. Not so long ago, nominees to the Court were confirmed easily. In the 1980s, Scalia and Kennedy received no negative votes in the Senate; in the 1990s, Ginsburg and Breyer received only three and nine, respectively. By contrast, the last five nominees—Roberts, Alito, Sotomayor, Kagan and Gorsuch—averaged 35 nays; in those four roll calls combined, only one Republican and three Democrats broke ranks. If the Court is now seen as just another electoral prize rather than a locus of principle, the confirmation votes made complete sense. “We need more Republicans in 2018 and must ALWAYS hold the Supreme Court!” Trump tweeted as the midterm elections approached.

There is a conservative “bloc” of justices, appointed by Republicans, and there is a liberal “bloc,” appointed by Democrats. When journalists write about a justice, they routinely include the party of the president who appointed the justice—as if members of the Court were little different than stand-ins at the Department of Agriculture. The tendency toward viewing judges as political proxies only accelerated during the early months of the Trump presidency. When part of Trump’s travel ban on certain foreigners was temporarily halted by one federal judge, then another, Trump and his supporters bellowed that the judges were simply card-carrying members of the anti-Trump “resistance.” Those critics weren’t random lightweights from the blogosphere, but respectable members of the legal academy. Trump himself dismissed judges as “so-called.”

For most of U.S. history, constitutional law aspired to be based on “immutable principles protecting our liberties,” as a prominent commentator described it. The Court was the only branch of the national government expected to explain its actions, not merely decree. The Court didn’t always succeed, but the public fairly believed that the justices—unlike legislators and the president—at least aimed to apply principle, above the commotion of politics. But principle, as the commentator wrote, has now “morphed into rule by whichever faction happens to have a one-vote majority on the Supreme Court.” Not surprisingly, public confidence in the Court, according to national opinion polls, has steadily declined in the age of the Roberts Court.

The chief justice recognized the problem, even if he seemed blind to the possibility the Court was complicit. “When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms,” Roberts told a law school audience just 10 days before Scalia died. “If Democrats and Republicans have been fighting so fiercely about whether you’re going to be confirmed, it’s natural for some members of the public to think, well, you must be identified in a particular way as a result of that process.” Did he truly expect otherwise, when the Court’s own rulings increasingly made it appear to be just another political forum, dressing up the politics with legalese? It sounds nice to say, as Roberts did in 2006 after his first term on the Court, that “it’s a high priority to keep any kind of partisan divide out of the judiciary.” But that only works if the justices themselves resist the urge to interfere in the political domain. Too often, they have not—and even less so on his watch.

A month before the Constitution was ratified in 1788, Alexander Hamilton explained the source of the new Court’s authority. The other branches—and the people—would obey the Court because of its prestige. Rulings would be based “neither on force nor will, but merely judgment,” he wrote in Federalist No. 78. The Court lacked infantry and warships. It had no source of revenue except what Congress gave it. By Hamilton’s reckoning, whereas the president “holds the sword” and Congress “commands the purse,” the U.S. Supreme Court would be “the least dangerous branch.”

That’s no longer so. Of course it is the president who can initiate nuclear war and commit troops in faraway lands. Congress can pass laws that cater to donors and other special interests. But the steady institutional self-aggrandizement by the justices in recent decades is more insidious, more potentially destructive of American values in the long term. How is it that the third branch of government—consisting of nine unelected principals, a small staff, and a budget of $97 million (.000024 of the federal budget)—has become the most dangerous branch, all the more in the age of Trump? This book is the story of how that happened—and what it means for America.