UCLA law professor Stuart Banner’s new book, The Most Powerful Court in the World: A History of the Supreme Court of the United States, is impressively erudite, deeply researched, and admirably written. This book stands out for its reconstruction of the day-to-day working of the Court, especially its thick description. Banner provides all kinds of details on the work of early court reporters, how reporting evolved, the burdens of nineteenth-century circuit riding, the architecture and décor of the old Senate chamber (the reader inevitably comes to the tour-guide story of the attic basketball court as “the highest court in the land”), and the evolution of Court clerking.

Despite these commendable features, The Most Powerful Court in the World falls short due to its author’s flawed approach to making historical judgments. Banner states at the outset that his goal is “understanding the Court rather than praising or criticizing it,” and even insists that his “book has no heroes or villains.” He adheres to this standard assiduously—that is, until he gets to the Roberts Court. But this nonjudgmentalism makes the reader wonder why anyone should care about the subject. A historian should be as objective as possible, but ultimately needs to make critical judgments. As I was taught, the historian should say all that the evidence permits him to say and all that it compels him to say. Banner fails to consider what should be the paramount question of any history of the Supreme Court: what is this institution’s proper role in our constitutional republic, and how well did it fulfill it?

For example, Banner does not offer any conclusions on the much-debated question of the “Lochner Era”—whether the Court actively took sides in the socioeconomic conflict of the 1890–1937 era on the side of capital and against labor. For a generation or more, progressive historians and law professors insisted that it had, in more recent years a revisionist school arose claiming that it hadn’t. Banner says that the progressive and revisionist interpretations are each “true in its own way.” Nor does he offer any evaluation of the Court’s role in the post-Reconstruction erection of Jim Crow, nor try to account for its dramatic volte-face in the aftermath of FDR’s 1937 proposal to “pack” the Court. (He notes that Hoover’s appointments explain it—but everyone can see that. The issue is not who flipped but why they flipped.)

Banner’s refusal to make a judgment drains much life out of the book. It reminded me of Thomas Hobbes, who observed, “A man who has no great passion for any of these things, but is, as men term it, indifferent, though he may be so far a good man as to be free from giving offense, yet he cannot possibly have either a great fancy or much judgment.” Or, in the more recent and concise idiom of Louis Jordan: “Jack, you dead!”

Banner’s approach reminds one of the story of the two men who take a financial dispute to their rabbi. The rabbi heard the first man’s case and said, “You’re right.” He then heard the second man’s and said, “You’re also right.” The rabbi’s attendant then said, “Rebbe, they can’t both be right.” He thought for a moment and concluded, “You’re right, too!” Banner opens himself to the charge made against Louis D. Brandeis when he was appointed to the Court in 1916. When Woodrow Wilson nominated the progressive icon to the Court, conservatives launched an unprecedented campaign to defeat him. Opponents focused on Brandeis’ conduct as a lawyer, particularly, that he did not abide by the professional standard of putting his clients’ interests above his sociological or political views of what the outcome of a case should be. As Brandeis put it, he considered himself “counsel to the situation” rather than to a particular client. Ironically, Brandeis had too much of a judicial temperament.

Banner fails to recognize the significance of the changes in constitutional interpretation that he chronicles. The pre-1937 Court, he says, remained committed to the idea that legislatures had to limit themselves to a genuinely public interest, while after 1937 the Court accepted interest-group or “class legislation.” That is a moral and political shift of the most profound order, yet he passes over it matter-of-factly. He offers almost nothing with regard to constitutional theory—without reference to schools of interpretation ranging from historicism, sociological jurisprudence, Legal Realism, and the like.

Insofar as Banner offers a thesis, it seems to be that today’s extreme politicization of the Court is nothing new. There were no “good old days” when the Court stuck to law and avoided politics. But it is hard to look at the history of the Court and deny that pre- and post-Warren politicization is so different in degree as to be a difference in kind. Before Warren, there were occasional clashes and crises—between Chief Justice Marshall and Presidents Jefferson and Jackson, in Dred Scott and Reconstruction, in the Populist revolt of the 1890s—but they blew over rather quickly and the Court resumed its role with no significant impairment of legitimacy. Supreme Court vacancies were rarely contested before the 1960s; now every one gives rise to a political battle involving character assassination and even real assassination plots. The justices (apart from the peculiar case of Stephen Field) did not need bodyguards and could dine out unmolested.

Nothing in the pre-Warren Court era can compare to what the Court said about itself in Cooper v. Aaron (1958)—that the Court’s interpretation of the Constitution was the Constitution, and every bit as much the supreme law of the land; or in Casey (1992)—that American constitutionalism depended on popular deference to the Court’s interpretation, however erroneous it might be. Banner makes no reference to either of the Court’s astonishing claims in this era. This is disappointing especially because undoing these power grabs has been the object of the originalist movement, and perhaps one of the most important developments in recent Supreme Court history.

Thus in his final chapters he berates the Roberts Court (really, the Trump Court) for an activism that is actually an attempt to undo the activism of the Warren and Burger Court years. Instead, he makes unsubstantiated aspersions that the Roberts Court transformed free speech into a tool of the powerful, the equal protection clause into an aid to whites, and “reinterpreted the Voting Rights Act to make it easier to suppress the minority vote.”

Banner’s nonjudgmentalism had to break down at some point. “Value judgments” are baked into the language we use. Near the end of his story, Banner asserts that before the Warren Court “the Court always blocked social change instead of encouraging it,” and “the Court has been a conservative institution for most of its history.” But was the Marshall Court, in its protection of property rights and encouragement of economic development, “conservative”? Shouldn’t we consider the Jeffersonians, who disliked the coming of modern capitalism, the more conservative faction? And at the end of the century, the Bryanite Populists frustrated by the “laissez-faire” Court were the conservatives. These complications reveal how Banner is using the term “conservative” in a post-progressive (really a post-Taft Court) sense. Similarly, his claim that the post-New Deal Court was “concerned to defend the weak against the strong” is open to doubt. Are criminal defendants, or their victims, the weak? Are abortionists weaker than the unborn? Media giants or the “public figures” they defame? Pornographers?

The Most Powerful Court is rather lopsided, giving a disproportionate amount of treatment to recent constitutional developments and scanting the early years. (And yet, the book contains virtually no treatment of the Court’s role in the rise of the administrative state, perhaps the most significant constitutional feature of the modern era.) Banner must have made a deliberate choice to eschew terms like “substantive due process” or the “incorporation” of the Bill of Rights for being too specialized or technical. But this attempt to make the book more accessible makes it impossible to understand such things as the incoherence of the Court’s First Amendment religious-freedom decisions. “It is easy to say, in the abstract, that the Court requires the government to remain neutral with respect to religion,” he avers. The First Amendment says nothing like that. The general reader will have no idea how we got from “Congress shall make no law” to the prohibition of prayer in state schools.

Though Banner does not make this connection, one of the most ironic points in the Court’s history has been the inverse relationship between the political background of the justices and their political activity once on the Court. Banner does a good job of chronicling the rise of the university-law school-clerk-Court complex. Today, the justices are almost always the product of elite institutions of higher education with law school and lower-court judicial experience. This was not the case in the nineteenth century. Many lawyers and judges did not attend college or law school (as late as the 1940s). The justices had no clerks until Horace Gray hired one—on his own dime—in 1882. Many justices had often been elected officials, chosen mostly for party and geographic qualifications. But they were modest in their attempts to legislate from the bench. The sense of themselves as a Brahmin elite, prophetic products of the postwar meritocracy, the “conscience of the nation” since Brown, went to the heads of this branch of the Establishment. It provided ample material for the mordant wit of Antonin Scalia when dissenting from inane opinions written by fatuous windbags like Anthony Kennedy. It is this late twentieth-century judicial supremacist pretense that the Roberts Court is trying to deflate. Ultimately, only a greater judicial humility will depoliticize the Court—and though that may take time, it remains possible.