There are two primary approaches to Supreme Court books. The first category is told from an outsider's perspective: how do scholars and other observers view the Court, the Justices, and their decisions. (I've written two such books.) The second category purports to bring an insider's perspective: the author cites unnamed sources who provide behind-the-scenes details about why the Court did what it did. The virtue of the former approach is that sources can be verified. The risk of the latter approach is that many of the sources cannot be verified. Still, an entire genre of behind-the-scenes stories have become quite popular: The Brethren, The Nine, Supreme Conflict, among others. We can now add to that list Joan Biskupic's latest book, Nine Black Robes.
I've read Biskupic's columns very closely over the years. There was some new content in Nine Black Robes, but not much. Indeed, much of the book is based on her reporting for CNN. And as I've noted on this blog many times, her ability to find leaks largely trickled to a halt after Justice Ginsburg's death in September 2020. Indeed, Biskupic cites interviews with "multiple Justices" after the 2019-2020 term. But she does not cite interviews with "multiple justices" in subsequent terms. That's not to say that RBG was Biskupic's source. But a potential fountain of leaks was sealed. It may be that one Justice provided some information, and then other Justices responded to provide their perspective. It is a common journalistic tactic: here's what I heard, what is your response? But in the absence of that first mover, there were no follow-ups. Or, maybe my blog posts worked, and the Chief Justice was able to get everyone to stop talking to her! I'm glad he didn't resign. In any event, Biskupic's ability to break news has weakened. Let's not forget that Politico scooped her, and everyone else, on the Dobbs leak.
My biggest frustration of the book was the attempt to force a narrative. Even the subtitle reveals the aim: "Inside the Supreme Court's Drive to the Right and Its Historic Consequence." At every juncture, Biskupic described the Court's "right wing" and "far-right bloc" in very negative terms. At the same time, the Court's liberal justices were described as principled defenders of the rule of law. And Biskupic's reporting on the abortion cases was in no sense neutral. She obviously favored the Court keeping Roe and Casey, and conveyed disappointment with Dobbs. Her choice of adjectives gives the game away. I had similar reactions when I've watched her CNN appearances over the years–especially during the S.B. 8 litigation.
