The Agenda

How a Republican Supreme Court Is Reshaping America

By: Ian Millhiser

Narrated by: David H. Lawrence

Length: 3 hrs and 42 mins

Publisher's summary

From 2011, when Republicans gained control of the House of Representatives, until the present, Congress enacted hardly any major legislation outside of the tax law President Trump signed in 2017. In the same period, the Supreme Court dismantled much of America's campaign finance law, severely weakened the Voting Rights Act, permitted states to opt-out of the Affordable Care Act's Medicaid expansion, weakened laws protecting against age discrimination and sexual and racial harassment, and held that every state must permit same-sex couples to marry. This powerful unelected body, now controlled by six very conservative Republicans, has and will become the locus of policymaking in the United States.

Ian Millhiser, Vox's Supreme Court correspondent, tells the story of what those six justices are likely to do with their power. It is true that the right to abortion is in its final days, as is affirmative action. But Millhiser shows that it is in the most arcane decisions that the Court will fundamentally reshape America, transforming it into something far less democratic, by attacking voting rights, dismantling and vetoing the federal administrative state, ignoring the separation of church and state, and putting corporations above the law. The Agenda exposes a radically altered Supreme Court whose powers extend far beyond transforming any individual right - its agenda is to shape the very nature of America's government, redefining who gets to have legal rights, who is beyond the reach of the law, and who chooses the people who make our laws.

©2021 Ian Millhiser (P)2021 Random House Audio

Clear, Succinct, Insightful

I selected this book primarily because I enjoy Mr. Millhiser’s writings and for the section on voting rights. Each section provides context for rulings on the docket, that might someday be on the docket, and that have been decided. Readers will come away more knowledgeable about the issues of the day.

Essential book

This book clearly lays out how the conservative court is going to unravel LGBTQ protections, voting rights, regs, and allow the Republican Party to govern, and nobody else. Scary but critical book. Ian is an excellent writer and this book is a must read.

short but informative

lot to untangle in this book but timely and a food start to a Constitutional Law novice like myself!!!

It isn't about the politics.

Most importantly, this book explains how the Supreme Court seems to be reversing precedent in a way that favors one political party. This is not strictly about politics. I disagree with the author on some points where he discusses the merit or vileness of specific decisions that align with or contradict specific values of the major parties, but overall I am persuaded by the fact that these decisions are not even-handed. Recent decisions are inconsistent with past decisions, and even internally inconsistent in some cases, and there is a pattern that clearly favors one party. What is most worrying about this favor is not just what values are espoused, but in where power is concentrated. This makes the information in this book extremely valuable, in pointing to what types of cases to watch, even if they aren't the highest profile.

A concise look at the supermajority's plans

Millhiser has written a very good, concise book on what the Roberts court likely intends to get up to with their new supermajority. Although everyone's eyes are on Roe v. Wade, Millhiser is quite correct to put little emphasis on that precedent; although overturning the federal right to an abortion would rightly be considered a catastrophe, it really is merely the tip of the iceberg for what the conservative majority have planned (and let's face it, Roe—which was already in some respects a mediocre opinion to begin with—has kind of been a moribund precedent for some time now thanks to Casey's "undue burden" standard).

Millhiser instead lays out how Gorsuch, who seems to be the ideological leader, longs to lead the court back to the freedom of contract doctrine of the Lochner court, which would comprehensively strip the American worker of power and tip the scales even further in favour of the wealthy. I was struck by the anecdotes of the shocking conditions bakery workers experienced in the Lochner era, working mercilessly long hours in revolting environments. When one thinks of what Amazon et al. are already able to get away with, the prospect of handing them even more power to dominate their workforces fills one with dread. Gorsuch's other big project, to dismantle the administrative state and agency regulations (because blah blah chevron deference and non-delegation doctrine), seems potentially so vast in its consequences I can scarcely even imagine the damage that could be caused if he's successful.

Millhiser engages in a bit of lawyerly gotcha rhetoric of the sort that I often see in Supreme Court journalism where the hypocrisy of conservative self-proclaimed textualists/originalists is pointed out (Millhiser points out that they used two different definitions of "commerce" in Circuit City v. Adams, depending on which suited their preferred outcome). I often feel authors can get a bit too wrapped up in criticism of this sort, taking elaborate routes to their gotcha moments that conservatives don't pay one iota of attention to, as they're too busy thinking "haha, majority opinion go brrrrr." I always think about the peyote case on this point: one might think that a conservative would consider the case to have raised perplexing issues about how to consistently apply the principle of free exercise of religion and respect the rights of religious minorities, or something to that effect; an actual conservative seems just to think, "Are the plaintiffs Christians? No? And they're doing drugs? They can fuck off, then." Conservatives have no problem discarding their professed principles as soon as it suits them, and liberals arguably waste their energy when they tie themselves up in knots trying to wield conservative jurisprudential philosophies that they probably shouldn't really care much about in the first place.

The other topics Millhiser addresses are just as alarming—voter suppression, exemptions from anti-discrimination laws for religious conservatives, allowing class action lawsuits to be quashed before they occur. I think my biggest takeaway lesson might be on the decidedly more law school 101 matter of the Carolene Products footnote, the source of strict scrutiny, which I must have heard of before, but now I'll actually remember it (it has already popped up in the next book I've started reading, so it truly is the most famous footnote in constitutional law).

Like a Journal Article, but Good

The author does an excellent job reviewing conservative and reactionary jurisprudence from the Lochner era to the modern day; highlighting the shift from judicial restraint to judicial activism in service of reaching certain outcomes.
Partly by implication, the persistent myth of a non-partisan Supreme Court takes a major hit.

Extraordinarily important, educational & insightful foray into the greatest existential threat to our democracy

This book should be read by every US citizen who cares about democracy in this country. The Supreme Court has become the fulcrum of the deliberate destruction of the United States’ “experiment in democracy” by authoritarian, religious, and corporate activists. That citizenry understand the dynamics of this power play is critical to any prayer of saving our 250 year experiment.

Pretty alarmist, but well thought, a worthy listen

There is useful information here, and it is intelligently told. It is, however, skewed WAY progressive, and from a viewpoint that the sky is falling. Maybe; we'll see, eh? Regardless, I think it is a worthwhile listen for any concerned observer of the condition and trends of the USA's most important institutions. It will sharpen your awareness and legal thinking tools. It is very well composed and put together, sorting the issues very clearly.

Post-script (Spring 2022): Now that Roe vs. Wade is apparently to be undone, the author's points do have an added relevance. I would like, however, more of an exploration of the arguments and exponents of the other side of these debates. I prefer that sort of more rounded and complete explanation, from either side. I don't mind that an author has a point of view (and bias), but I think it most respectful to the reader when the viewpoints are fleshed out. To this author's credit, some effort on that is apparent here.