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A reporter’s life is rarely boring — especially if you’re Joan Biskupic. In recent years, from her seat at the Supreme Court, Biskupic has borne witness to some of the most disruptive, unprecedented changes of the legal guard and resulting shifts in democracy the United States has ever witnessed. On CNN and in her books, she shares whatever she digs up about how our country’s laws are created and dismantled, how every decision is made, how and why each justice votes the way they do, who dissents and why, and so much more when it comes to the inner workings of our country’s legal system.
The Chicago native and 2015 Pulitzer Prize finalist holds a résumé that speaks for itself: She came to CNN in 2017 as a senior Supreme Court analyst after working as editor in charge for legal affairs at Reuters. Prior to that, she was the Supreme Court correspondent for The Washington Post (while earning her law degree at Georgetown) and for USA Today. Biskupic’s numerous biographies about Supreme Court justices — like John Roberts, Sandra Day O’Connor, Antonin Scalia, and Sonia Sotomayor — place you into their experiences with the law. She also wrote Congressional Quarterly’s Guide to the U.S. Supreme Court and The Supreme Court Yearbook.
Biskupic’s latest book, Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences, invites us to sit alongside her perch in the Supreme Court during the past six years and all its tumult: the hasty confirmations of Neil Gorsuch and Brett Kavanaugh; the passing of Ruth Bader Ginsburg and the subsequent confirmation of Amy Coney Barrett; the mechanics of the reversal of Roe v. Wade; and more. Biskupic recently spoke with Shondaland to get into her impressive career trajectory, how she packs such prolific book writing and reporting into her days, and answered some of our most pressing questions about the Supreme Court’s power and how it affects our lives every day.
VIVIAN MANNING-SCHAFFEL: You’ve written books about Justices Scalia, O’Connor, Sotomayor, and Roberts. What inspired Nine Black Robes?
JOAN BISKUPIC: I’d sort of run out of justices who could capture my full attention and had been far enough into their own records to really step back and assess them. I thought this was a good time for a group portrait, especially since I was noticing the Trump effect on the Supreme Court. When I first sold this book proposal in late 2019/early 2020, it was pre-Covid, pre-Dobbs, pre-death of RBG and ascension of Amy Coney Barrett, so I had pitched it as “Let’s look at the Trump effect on the Supreme Court.” I had no idea that we would have [the Dobbs v. Jackson Women’s Health Organization case]. In fact, the manuscript was due about six months earlier. Once the justices accepted the Dobbs case — the Mississippi abortion ban case in spring of 2021 — I contacted my publisher and said I’m just going to have to wait until that ruling comes in; I need to see what the justices do with that because that will be the story.
VMS: As a woman, that was so painful to watch. Clearly, years down the road, your book will do wonders in explaining how the U.S. justice system kind of turned on its axis. What you started to explain leads to my next question: You began the book by explaining the Texas ban that eventually led to the reversal of Roe v. Wade. Is that why you started there?
JB: Yes! First of all, that’s a great question. You’re a writer — you understand the idea of drama and setting the scene. The original first prologue was going to be the funeral services for RBG. I thought that was a really important moment, and I thought that it would show the transition to the final Trump effect of these three justices in just four short years. When I sat in the courtroom for the Texas SB 8 heartbeat law, we had just been allowed back into the courtroom. Hardly anyone was there, everybody was in those masks, and to hear that give-and-take and then to know, through my reporting, some of the justices had been misled by the questioning from Brett Kavanaugh and Amy Coney Barrett, I thought that moment probably is going to better capture the substance of the Supreme Court on reproductive rights but also some of the lingering tensions and distrust that played out in recent months.
VMS: It absolutely did — it set the stage rather perfectly. To circle back to craft: Every writing project has its challenges. What were the biggest challenges in writing this book, and how did you overcome them? What was your approach?
JB: There were two big challenges; first, Covid-19. I spent my life going to the court, talking to the people there, and getting into chambers. In fact, I had an interview with Justice Ginsburg in January 2020, which was my last in-person interview with her just because of what happened after that. I was unable to see justices; I could talk to them by phone, which was obviously helpful because I was able to get information, but it made it harder to gather the kind of detailed intelligence that I try to bring to my books.
The second thing was a by-product of the leak of the Supreme Court’s intent to reverse Roe in May of 2022, right before the actual publication of the Dobbs ruling in June. That had the effect of making some of my best sources a little bit gun-shy. I had nothing to do with that leak; I obviously had nothing to do with publishing it. Wouldn’t I have loved it to come into my hands, but it didn’t. I mentioned earlier how that created distrust among the justices of each other at the court, which also made them shy of reporters. It was especially consequential for someone like me, who really tries to win their trust. It took a while to then be able to recapture that, but there was a general suspicion everywhere of what people knew and how they knew it because of that leak.
VMS: Our job is to get people to trust us, and I can imagine the roadblocks you faced. How long does a book like this typically take you to write?
JB: I would say most of them have taken me four or five years, but I’m always reporting: I gather string, and I take very detailed notes from my conversations. I save everything, and I have a good memory. There are elements in this book that, for example, Justice Scalia told me about when I knew him before he passed away in 2016. My biography of Justice Scalia came out in 2009, but he kept inviting me to his chambers afterward, so we would talk about different things. He gave me insights that helped inform what I was doing in this book, and then this happened for all of them. For example, for my book on Chief Justice Roberts, there was so much I learned about the chief for that 2019 book that informed this one.
My daily job here at CNN gives me a real scaffolding for these books because I’m up at the Supreme Court for my daily job, watching the oral arguments and talking to people. Then, when I have to break away and spend my nights, weekends, and early mornings actually on the book, writing down additional facts, doing more research, and going to archives, that process is very time-consuming, but at least I have the scaffolding from my regular journalism, if that makes sense.
VMS: Where are you from, and how do you feel it shaped you?
JB: I’m from the South Side of Chicago. There are a couple of things I find defining: One is being from Chicago and being from the city. The other thing is I am the oldest of nine; I’m from a very large Croatian/Irish family on the South Side of Chicago. My roots were there, and I find I react to the world in terms of this kind of oldest-child sensibility of being a little more disciplined and organized for these types of projects.
The other thing is probably going to night law school. I went to Georgetown when I was working full time, and I have had many sources and people connected to the Supreme Court draw back to the idea of night classes. A lot of times, people will have more regard for someone who went full time and was on the law review and did all these things. But I actually think it was quite an achievement, plus a baby was born in the middle of that — my daughter was born while I was in law school. I consider those things defining also, but definitely Chicago — I am from the heart of the Midwest.
VMS: In the writing of the book, you not only give us a glimpse inside the Supreme Court but also inside many facets of Trump’s presidency, including the Covid epidemic. The book was full of surprises, but what was the most surprising thing you learned in your reporting?
JB: That’s a good question. As I went along, I sometimes wanted to turn over scoops to CNN as I found out things, because I work for them. For example, in the summer of 2020 when they were right in the throes of Covid, I had been tracking the justices during that time to try to figure out where they were going to go on certain cases, whether anybody was switching boats behind the scenes. So, those were the things I was finding out in real time. The broadest theme was just how much pressure Donald Trump was putting on the justices, controlling them even though they tried desperately not to be controlled. I mention there was sort of a paradox in some of the pacts between justices. They wanted to avoid a look of politics, but that drove them to avoid 5-to-4 votes — even if it meant someone trading a bit at the margins — or they would try to get rid of a case just because they thought it was too hot to handle at a particular time. Also, how quickly RBG’s staff, while grieving, had to quickly get out of chambers and make way for the new justice, even though we were in Covid, and most justices weren’t even in their chambers during this time at the Supreme Court.
I was also surprised about Brett Kavanaugh writing to District Judge [Jesse] Furman up in New York after the census-questionnaire case [about whether to add citizenship questions to the census] to say, essentially, “I didn’t really mean what we all said in that dissent about you. We criticized you for ruling against Wilbur Ross and the Department of Commerce.” I tracked down Chief Justice Roberts’ double switch during the Obamacare case for my earlier book — you should’ve seen me when I found out about the second switch. When he was switching votes at different times in most recent years, I tracked down his switch vote in the census case I just referred to, and then I really wanted to see if had he switched in the DACA dreamers case — that’s in the chapter of “The Chief at the Height of His Power.” I thought, did he go with the liberals from the start, or did he switch? That one was interesting because during oral arguments, I sensed the chief was looking for a way to vote with the left against the Trump administration, but most people who watched that argument thought his vote was a lost one. I found out, through talking to justices in 2020, that the chief had cast his vote, initially, to go ahead and reject the Trump rollback the way he had done it.
VMS: In a chapter called “A Deathbed Wish,” you detail Ruth Bader Ginsburg’s final months, especially how her granddaughter Clara wrote about her final wish, that she wouldn’t be replaced until a new president was installed. Trump basically bucked that with the placement of Barrett.
JB: Talk about surprises, I was dealing with many of the justices in 2020 when she was so sick and going to the hospital weekly, almost. We were aware of some of it, but we weren’t aware of the extent, and it was only after the fact that I found out so much more about her condition. Frankly, I was, in some ways, prepared for her death; I’d written up this long piece about 20 years of conversations with RBG that we ran immediately upon her death. But you’re always thinking they’ll keep going. As an aside, Justice O’Connor is still alive — she’s just turned 93, and she was my first subject. I have written about that woman’s passing so much because she’s made such a contribution to American law, but she’s still here. She’s quite ill — she has Alzheimer’s and is in a home in Arizona — but you just never know what’s going to happen. She’s still here, and Ruth Bader Ginsburg dies on September 18th, just weeks short of the November presidential election.
VMS: I think we were all just praying she’d outlive it. I keep thinking back to how Obama had the chance to push Merrick Garland past Mitch McConnell through to the Supreme Court, but McConnell just pushed back. Would that have made a difference if he had muscled him in?
JB: This is in the book, but President Obama invited Justice Ginsburg to lunch. I had a tip about that. What happens is, he was fishing for information on retirement. It was 2013, and it was before the Senate had flipped, so he had a window [to replace her]. She was 80, had served a long time, and had done a lot for American law, but she was not quite the Notorious RBG yet — that was just sort of taking off at the time. Anyway, I find out President Obama asked her to lunch, so I ask her about it, and she says to me, “I don’t think he was fishing for retirement news. I think he invited me because he likes me and I like him.” But what I found out was that he just couldn’t outright say, “What’re you thinking? What’re you going to do?” because he obviously respected her. She was not going to go there on her own to talk about what plans she had, and she had no plans. She said at the time she was taking it year by year, and she kept going. I think she just really felt like she was going to be able to hang in there, and she came close but not close enough. I’ll be the first to say that has changed everything in American law. Many of her supporters and fans have mixed feelings about her. I hear from them all the time how this last act of hers affected so much, leading with the Dobbs ruling and reproductive rights around the country.
VMS: Should there be a term limit for Supreme Court justices?
JB: Here’s the thing about that: When you step back and think the court that we have now is the court we’re probably going to have, effectively, for about 50 years simply because of the age of some of these younger conservative justices, I think that’s given some momentum to term limits and court expansion, but I don’t think it’s going to happen, and I’ll tell you why. First of all, the current president, Joe Biden, a Democrat, doesn’t want either of those measures. To actually have term limits, arguably, would require an amendment to the Constitution because right now, Article III judges, whether they be on lower courts or the Supreme Court, are appointed for life. Some scholars have argued that there could be some practice of putting someone on the Supreme Court for 18 years, then that individual goes down to a lower court so they aren’t stripped of their black robe, but I don’t know how that’s going to work. I think the whole court expansion/court packing argument seems to just not have much momentum.
VMS: If you watched Barrett’s questioning, Vice President Harris asked her point blank about her position on abortion, and she denied having a bias, which clearly isn’t true. Barrett, like Kavanaugh, is a member of the Federalist Society. Could you explain what their agenda is?
JB: That’s why I devoted a whole chapter to something called “the triumvirate,” which is Leonard Leo, the Federalist Society leader; Mitch McConnell; and Don McGahn, who was the White House counsel during Trump. I’m glad you asked about the power of these outsiders — even Don McGahn said they’re not really outsiders; they’re insiders. They’re inside the castle. He is part of the Federalist Society. This was a group that started in the early 1980s as sort of a debating society, a reaction among some conservative law students who felt that liberalism was so dominating college and law school campuses that they wanted to have their own force. What happened over the years, not only did they sponsor debates and get people energized by some of their ideas, they became a real money-making networking machine and had such a strong hand in judicial selection. Every single Republican justice on this court was in some way vetted by members of the Federalist Society. John Roberts would’ve been appointed in 2005 without any kind of seal of approval from the Federalist Society, no doubt, but he did meet with those people. They have such a strong influence on Republican presidents. When Donald Trump came in, he essentially handed it over to Don McGahn and Leonard Leo because they were people he trusted and who he thought would pick people who would carry out his agenda, which they certainly did.
VMS: They’re pushing the agenda of their version of the church and state.
JB: Let me tell you one other part of it — it’s not just the culture-wars agenda. It’s also what they call the administrative state they want to diminish. They want to diminish regulations across the board. This was something really important for Don McGahn; he doesn’t like any kind of regulation of campaign finance money. He doesn’t like the regulation of environment. This is where big business and big money enter the picture. The individuals who are now dominating the U.S. Supreme Court, and are certainly stacked in the lower courts, do think that regulatory agencies have gone too far and are working hard to roll those regulations back.
VMS: We’ve already seen the reversal of Roe, plus numerous other anti-abortion and anti-LGBTQ laws have passed in various states because of this new precedent. From your perspective, what could come next?
JB: I do want to make clear from where I sit as a journalist, I don’t usually say worse or better, but if you think the path they’re on right now is one you just don’t want the country on, there can be lots more to come. I hate to be the bearer of bad news, but just think about how much more they can do about lowering the separation of church and state, how much more they can do in terms of rolling back some of the protections from Obergefell v. Hodges, the right to same-sex marriage, and allowing exemptions for businesses that don’t want to serve gay couples. That’s a case right now that’s pending; you’ll be interested in a piece I have up about consequences for religion and LGBTQ rights. That’s another area they could retrench on. They could also, in terms of voting rights, continue to roll back the protections of the 1965 Voting Rights Act. They’re probably about to duck a dispute over the independent state legislature doctrine that could make it easier for Republican legislatures to decide the results over elections — even a presidential election. They could roll back more regulatory protections for public health and safety. … Do you want me to go on?
VMS: Is there anything the American public can do to stop the rolling back of rights?
JB: People should be like you and pay attention. I’m surprised how many very educated people aren’t quite sure what the Supreme Court is doing, and what the role of John Roberts is. I will often have people ask, “Well, isn’t John Roberts a moderate?” and I will say, “On some things, arguably he is but not when it comes to race and religion.” He definitely would like the court to do more in terms of the elimination of racial remedy, for example, the Harvard and University of North Carolina [use of affirmative action] cases that are coming down. But you are completely engaged, and the more you do your work to enlighten people about the Supreme Court’s concentrated power and its intense role in American life is helpful. People see what the president is doing, and people see what the loud members of Congress are doing, but the Supreme Court is affecting our lives in such deep ways that can elude people, except when it comes to something like abortion.
This interview has been edited for length and clarity.
Vivian Manning-Schaffel is a multifaceted storyteller whose work has been featured in The Cut, NBC News Better, Time Out New York, Medium, and The Week. Follow her on Instagram @vivtheemanningschaffel.
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