When John Roberts was appointed chief justice of the Supreme Court, he said he would act as an umpire. Instead, his Court is reshaping legal precedent through decisions unmistakably—though not always predictably—determined by politics as much as by law, on a Court almost perfectly politically divided.
Harvard Law School professor and constitutional law expert Mark Tushnet clarifies the lines of conflict and what is at stake on the Supreme Court as it hangs “in the balance” between its conservatives and its liberals.
Clear and deeply knowledgeable on both points of law and the Court’s key players, Tushnet offers a nuanced and surprising examination of the initial years of the Roberts Court. Covering the legal philosophies that have informed decisions on major cases such as the Affordable Care Act, the political structures behind Court appointments, and the face-off between John Roberts and Elena Kagan for intellectual dominance of the Court, In the Balance is a must-read for anyone looking for fresh insight into the Court’s impact on the everyday lives of Americans.
During his confirmation hearing, Chief Justice John Roberts described his role as a neutral umpire, applying the law without bias. Associate Justice Elena Kagan, however, stated that judges have the leeway to judge. Barack Obama, in discussing his criteria for judicial selections, spoke of the 5 percent of cases where the law is vague and judges must show the necessary “heart.” Of course, within that 5 percent are the politically and emotionally charged cases that have divided both the Supreme Court and the nation. Tushnet, a law professor at Harvard, examines how the Roberts court copes with some of these cases, ranging over issues of abortion, civil rights, gay rights, and Obamacare. Although noting the occasional unpredictability of justices, he makes clear that this is a politically and ideologically divided court that operates within, rather than above, national political debate and controversy. Tushnet effectively demolishes the concept that these cases are divided “on the legal merits,” which makes clear why appointments to the court are now such a vital power of the executive branch. --Jay Freeman