The Supreme Court Is Functioning Better Than You Think

By Sean Woods

Sean Woods

Podcast host and reformed GOP political operative Sarah Isgur wants us all to stop worrying so much about the Supreme Court — both liberals enraged over seismic rulings and “stolen seats,” and MAGA types furious about supposedly disloyal judges and executive orders being struck down. The Court isn’t doing its job, she argues in her illuminating and entertaining new book, Last Branch Standing, unless it’s pushing back on powerful presidents and questionable legal principles. Instead, she points to the failures of our other two branches of government:  the White House of the last two decades thinking that executive orders are a way to govern and, more damningly, Congress, for completely abdicating all its duties.

Isgur’s resume might make liberal eyebrows rise sky high. After Harvard Law School and a judicial clerkship, she worked for Ted Cruz during his campaign for Texas State Attorney General, ran communications for Carly Fiorina’s 2016 presidential campaign, then went to the first Trump White House to work at the Department of Justice for Jeff Sessions. But then, like almost any person with principles, she ended up on Trump’s enemies list, for what sin, it remains mysterious — probably just putting her own moral compass over blind loyalty. For the last few years, Isgur has been hosting one of the best legal podcasts, Advisory Opinions, with New York Times columnist David French, running SCOTUSblog, and working at the Dispatch, an independent media group. 

(All this activity can make one feel a bit lazy, but when asked about her daily routine, she reminds me she works from home, reading up on cases, and most days, “I don’t put on pants.”)

Last Branch Standing, like Advisory Opinions, is a breezy but sharp and thorough look at the Supreme Court from the center-right perspective. Isgur takes readers inside the inner sanctum and the intense work (and drinking habits) of the clerks who make the place run; throws in humanizing mini-profiles of the nine current judges (Amy Coney Barrett binge-watched Slow Horses, Samuel Alito’s favorite movie is Being There — who knew?); offers a lively and pointed history of the Court and the major cases that shaped American jurisprudence; outlines potential reforms; and most importantly, shows readers why the Court is not usually deciding cases 6-3 along partisan lines but is much more often split 3-3-3. Her analysis of each justice’s alignment will surprise casual and perhaps even more fervent Court watchers.

Editor’s picks

The 250 Greatest Albums of the 21st Century So Far

The 100 Best TV Episodes of All Time

The 500 Greatest Albums of All Time

100 Best Movies of the 21st Century

Rolling Stone caught up with Isgur over Zoom as she prepared for a whirlwind book tour.

The subtitle of your book says this is “a potentially surprising, occasionally witty journey inside today’s Supreme Court.” So what surprised you as you were writing? You’re learning stuff every day. If you’re writing that part about the Anatomy Riot [Ed Note: 1788 New York, graverobbing, medical experiments, gruesome stuff!], where John Jay gets a brick to the head, that’s why he doesn’t write more of the Federalist Papers and why Hamilton gets a musical and John Jay gets nothing. I love that stuff. Or finding some case that perfectly proves your point or some quote that the chief justice gave in an end-of-year report a while ago.

I heard on your podcast that you had to cut some 80,000 words in the original draft. Was most of that from the history section?  The chapter that I had to rewrite just over and over and over again, it just wasn’t working and was way too long, was where I explain the Warren Court. 

That’s interesting, because in some ways, isn’t the Warren Court the origin of the conservative legal movement? Not in some ways, in every way. The Federalist Society is created in 1982 because of the Warren Court. But I guess what I also wanted to make sure people understood is that the Warren Court was an answer to what came before it as well. This is how the Supreme Court works. It’s a lagging indicator of our politics. And so I call it the last branch standing, but at the same time, it will be a lagging indicator of these politics as well, and that should scare us a little bit.

Related Content

That scared me. One of the things that is so hard about this moment is if Congress is not going to do its job, and you have an increasingly powerful and unhinged Executive Branch, what do you do?  I think the Court is trying to do its damned best to try some self-help here. But the decisions that they are making, whether it’s Joe Biden’s student-loan debt forgiveness or Donald Trump’s tariff decision, the point is to say, presidents cannot make these changes by themself — they must have Congress. And at some point, I hope, the American people will realize that presidents just cannot fix these problems, and that if you actually care about immigration or climate change or anything in between, you’re going to have to hold Congress accountable. And when the headline says “Supreme Court strikes down Biden’s student loans” or Trump’s tariffs, I’m hoping that we’ll get to a place where we say, “Supreme Court says only Congress can implement student loan debt forgiveness.” “The Supreme Court says only Congress can implement worldwide tariffs.” But honestly, it’s incentives. We as the voters have to give Congress incentives to do its job again, but the Court is helping by not letting presidents keep filling the role of Congress.

But how do we get Congress to do that? Throw the bums out, sure, but that doesn’t seem to be doing the job. Well, it’s how we got into this mess in the first place, with changing the incentives for members of Congress. We punished them for compromising with the other side by voting them out in primaries. We wanted them to never compromise on my principles. Well, you can’t make legislation if there’s not compromise. And so legislation ground to a halt. And so the same thing can happen again, I think.

Do you think it’s fair when critics of the Court call them politicians in robes? No. The Court’s job is to decide who gets to decide. Is it a supermajority of Americans who can overturn a Supreme Court decision through the amendment process? Is it Congress? I mean, one of our biggest problems right now is all they’re doing is statutory interpretation. They’re trying to determine what Congress said. If they get it wrong, Congress could change that tomorrow. We should hold Congress accountable when we don’t like these Supreme Court decisions. I think there’s a real misunderstanding that they’re somehow weighing in on what is good policy or bad policy. That’s never what they’re doing, and it’s not how they view their own jobs.

But, just as a counterfactual, let’s take the tariff example. It’s hard for me to imagine a world where, if Obama for some reason had gone tariff crazy, [Clarence] Thomas and Alito would have voted for Obama’s tariff the way they did for Trump.  The Biden student-loan debt forgiveness case is the same case as the Trump tariff case. But the tariff case is so much more important because it’s the second one. The first time you do something, it’s a one-off. It’s like Lindsay Chervinsky’s book on the John Adams presidency. Her whole point of that book is when George Washington does it, it’s just George Washington doing something. Until John Adams repeats it, it’s not part of the American fabric. When the Supreme Court repeats the decision in the Trump tariff case against a Republican president, that’s when you know they mean it, Mr. President.

You ascribe various monikers for the justices — institutionalist, honey badgers, chaos monkeys, etc. Which one are you? I think I’m a pretty high institutionalist. I compare Gorsuch and Kavanaugh. My point being they’re both super conservative guys. They have very similar mothers who are very powerful women in D.C. They go to the same high school. They’re in the same history class. They clerk in the Supreme Court for the same justice the same term. They come up through the Federalist Society. They work in the W administration. They go on the Circuit Court. They go on the Supreme Court. Kavanaugh was more likely to agree with Kagan, Sotomayor, every other justice other than Jackson than with Gorsuch. And it’s not because they’re somehow differently conservative. It’s because they’re differently placed on what I refer to as this vertical institutionalist axis. So in that sense, I think I’m way more Kavanaugh. I think of the Court as a middle school group project. It’s not about you. You’re trying to speak with one voice. So yeah, I think I’m more of an institutionalist. I sit at that lunch table during high school.

“I think of the Court as a middle school group project. It’s not about you. You’re trying to speak with one voice.”

Who’s your favorite writer on the Court right now? Elena Kagan, and it’s not even close.

In the book, when you cite her early graduate school writing, I was blown away. Yes! She was 24, and it’s one of the most humbling things that I’ve ever read because I’m like, “Oh, I’m not that good of a writer now,” and she wrote that before she went to law school. I also obviously use this in the book, but her dissent in the Andy Warhol case, if you just want to learn how to be a great writer, just read that, commit it to memory. You know, like we used to do in elementary school where you’d have to trace over someone else’s letters? Do that with the Andy Warhol descent.

A couple of years ago, Rolling Stone got access to some secret recordings of Alito and Alito’s wife saying some pretty wild things about revenge and enemies and a little bit of Roberts batting some questions aside in, I thought, a very measured way. It made a lot of news. I saw that you criticized us for publishing undercover work. That’s all fair play. I would defend that story by saying that we don’t hear from these people enough and what they really think. Which is one of the things I enjoyed about your book — you let us into the justices’ worlds and heads a little. But how should reporters go about getting details from these people if they’re not willing to talk? OK. Let me explain my criticism and the reason for the criticism. One, secretly recording someone I think is just not a good practice. I’m against it.

Fair. But not only because I think it’s just gross and unethical. And I also thought pretending to be someone you’re not… I didn’t love that either, but maybe that’s a side issue. The reason, though, is because it also has really detrimental effects. When everyone fears that they might be being secretly recorded, it drives these people into even more isolation. It makes them have even less normal conversations with this random person that they haven’t met before. When some total weirdo comes up to you — and especially if you’re someone who’s in the public eye, this happens relatively frequently, people sort of are like, “Don’t you think blah, blah, blah?” Oftentimes, you’ll be like, “Yeah. Look, I don’t know if I agree with that.” And you’re sort of looking around wondering who’s going to save you. 

That’s true… You’re driving them into isolation, people who, as you say, we don’t want to be more isolated, not just so that we understand them better, but because we actually want them to be normal people. And between the secret recordings, mobbing restaurants that they go to, assassination attempts, you are discouraging… Forget these justices. You’re discouraging normal people from throwing their hat in the ring for the next opening. And when I’ve talked to [Supreme Court] shortlisters, they’ll say, “I don’t know if I can do that to my family.”

That’s the case for anyone running for public office. Totally.

Who wants to put themselves through this? Sociopaths. We’ve attracted sociopaths to the presidency, and that’s why I’m against the secret recording. You are making sure that the people who do these jobs become sociopaths.

Could you see Trump nominating somebody completely unqualified, like a Jeanine Pirro? And could that person get through the Senate? This is the million-dollar question. Looking at Trump’s Circuit Court picks so far, they are all super normies, and I think it would shock people to find out that half of them have clerked for Justice Kavanaugh, the justice he rails against, the justice who is most likely to be the swing vote, more so than any time in modern Supreme Court history. And I think there’s a few reasons for that. One, they don’t actually have as many choices as you think. By the time you become, resume-wise, eligible to be a circuit judge, it’s been a long time. And so you’ve been coming up through the Federalist Society. There’s a farm-team-building aspect to this whole thing. It’s why the judiciary is a lagging indicator of our politics in a lot of ways. And so they don’t have a lot of choices that aren’t from that normie pool, let’s call it. But the second thing you raise is the confirmation part. I think he’d be more likely to pick, for instance, Solicitor General John Sauer. Here’s someone with the resume, Harvard Law School, clerked for Justice Scalia, et cetera, but who has shown loyalty to Trump, certainly. But it’s the same problem every president has. You don’t really know what these guys are going to be like until they have life tenure. And isn’t that a great part of the system?

If a president doesn’t have the Senate behind him, are they going to be able to get Supreme Court justices through? Is that the new normal? Could that lead to an eight-person Court or less? Justice Barrett is the first justice in the United States history not to get any votes from the other side. So it’s funny how quickly we get used to that. We’re like, “Well, if the Senate wasn’t in that party’s control, God knows no one from the other side’s going to vote for them.” I certainly hope that we’re seeing the ship turn in our politics generally. I think people are tired of reality TV. Literally, reality-TV viewership is tanking. And so I think that people’s interest in reality-TV politics will diminish at the same time. That being said, certainly today, it is very hard to imagine a Democratic Senate confirming a Trump Supreme Court nominee at this point.

One of the things you write about is the nomination of Robert Bork in 1987. His name became a verb. In the long run, was blocking his nomination a bad move by the Democrats? Did it just set up this Supreme Court forever war? That’s the argument that I make in the book, that it becomes this great irony that Borking Robert Bork is the first brick on the road to overturning Roe v. Wade. There really wasn’t this “Remember the Alamo” type call among Republicans until Bork. And there was this idea that you need a war room and spin and surrogate calls for Supreme Court nominees. Plenty of presidents had had their Supreme Court nominees rejected. Bork was the first one [rejected] for ideological reasons, but still, Bork is followed by Thomas. It’s the one-two punch that then really radicalizes the right to say, “Never again.” 

And that’s what led to this. Now we go balls to the wall, now we play for keeps. And of course, Roe v. Wade as a decision had the most profound influence on our politics of any Supreme Court decision in American history other than Dred Scott, which led to a civil war. It defines the two political parties. It defines who’s going on the Supreme Court.

But isn’t the conservative legal movement in a little bit of disarray now, even after all the winning? Well, this is part of the pendulum swing. So if the Federalist Society is created to respond to the Warren Court, remember, they’re still in the minority at that point. Everyone who’s been a member of the Federalist Society for a long time will tell you, “We used to meet in a phone booth. There were so few of us. We were this isolated minority on campus.” And that was part of the pride in it. I think the left misunderstands the Federalist Society as this ideological cohort. That’s not what makes the Federalist Society so successful. It’s that it is a social network. It’s where people found their best friends. It’s how you get an internship. It’s where you meet your spouse. And that’s what the left hasn’t been able to replicate. It’s one-stop shopping, if you will.

But when Republicans become a majority, when that process becomes adopted by everyone, but then they’re not getting the outcomes that they want, you now see this splinter cell within the right that wants to ditch the process and just get the outcomes that they want now that they are in the majority. You saw this reach its peak right after Bostock, the case about whether employment discrimination laws apply to gender, identity, and sexual orientation.

Justice Gorsuch writes the majority opinion saying, “Yes, it does apply to those categories.” And Josh Hawley, a former clerk for the Chief Justice, takes to the floor of the Senate and says, “If this is what we have been fighting for with originalism and textualism, we haven’t been fighting for very much or we’ve been fighting for the wrong things.”

So where does that leave the movement? Just in splinters? Is it easier to be the underdog, I guess, right? Absolutely. This is how Scalia becomes famous. It’s his dissents, not his majority opinions. That’s the question for the Federalist Society and these splinter groups. Are you willing to stick by the process when you could just get the outcomes you wanted? LBJ once said, “Why amend the Constitution when Justice Douglas can do it in an afternoon?” That’s what conservatives were fighting against, this idea that judges were just deciding the outcomes that they liked because they were these platonic guardians who were deciding policy instead of Congress. And conservatives were like, “That is wrong.” And now they’re like, “That sounds pretty good now.” Are they going to stick to it when it’s hard?

What do you think? Yes. I think it’s interesting that at the Harvard Federalist Society last year, the splinter group won a lot of elections and took over the Harvard Federalist Society. And this year, they lost all of the elections. I think actually people like to be the good guy in their own story. I think people like to feel consistent. I don’t think they want to see themselves as hacks. And that’s what I think made the Federalist Society, again, so successful was this idea that, nope, this is about process. Scalia was so proud of the fact that his originalism would lead him to outcomes he himself didn’t like, like in the flag burning case. He’s like, “I hate flag burning. I would vote for a constitutional amendment against flag burning. But if you’re asking me if the First Amendment protects it, the answer is yes.”

I’m glad you brought up amendments. We haven’t had many amendments in the modern era. many years. Why do you think that is? Why aren’t we even trying? The Constitution was made to be amended. And isn’t it surprising that as we get further from the ratification of the Constitution, as society and technology have evolved more, you’d expect the amendment process to pick up, that we would need more and more amendments to take into account all of the ways in which our society has changed. And instead, we’re stagnating with the amendment process. So the easy answer to that is blame the Warren Court. And this is the LBJ quote again. It’s like, who needs an amendment process when you can just ask the Supreme Court to amend the Constitution? And for a number of years, that’s basically what they were doing. That was the living Constitution idea. The amendment process takes a long time. It takes a super majority. What if we just do evolving standards of decency for the Constitution? And humans like instant gratification, and appointing justices to the Supreme Court felt a lot easier and a lot more satisfying than amending the Constitution.

But Justice Scalia and Justice Breyer both said we needed to make amending the Constitution easier. Not easy, but easier. And I have my proposed amendments in the back of the book. Number one is very specific about how we would amend the amendment provision. And frankly, I think if we actually thought about it, we could get a lot of bipartisan support around this, because it doesn’t favor one side or the other. Part of the reason we talk about the Supreme Court so much right now is because we all feel like the Supreme Court is the last word, but that’s not the way it was ever intended to be.

Not at all. If the Supreme Court makes a decision you don’t like, you can amend the Constitution like they did with the 16th Amendment on income tax. That was a response to a Supreme Court case. If they say that Congress decided this statute means X and we all think it should mean Y, Congress the next day would usually just pass an amendment to that statute or pass a new statute like they did with the Voting Rights Act in the 1980s after the Supreme Court said it really was only about disparate intent on race. And Congress was like, “No, no, disparate impact too.”

Nobody believes that Congress will do that. Congress is supposed to be our pressure valve of compromise and stability. And when it’s not doing its job, the Supreme Court is the last word instead of part of that ongoing conversation. The Supreme Court’s supposed to be counter-majoritarian, and then you’re supposed to go to all these other avenues, the amendment process and Congress.

“Congress is supposed to be our pressure valve of compromise and stability.”

What did you think of Trump going to sit at the court? I mean, that seems like intimidation. Oh, you know what I loved about it? You know when you try to intimidate someone? Like in all the movies, the guy talks some shit to someone and then that dude stands up and he’s a 6’5″, 300-pound linebacker. When it doesn’t work, you look so much weaker.

So Donald Trump shows up to the court, insults the justices for being idiots and taking foreign influence and all this stuff, and they totally ignore him, and it makes no difference in the oral argument. And he walks out halfway through, again, without anyone noticing or caring. You can’t even hear it on the audio of the oral argument. How pathetic and weak. It’s like, “You came to my branch now, son.”

So if you’re Chief Justice Roberts, how are you considering your legacy?  Chief Justice John Roberts, when he first was confirmed, gave an interview in which he said his north star was Chief Justice John Marshall. And John Marshall got the court through its hardest time. We think now is bad and that the court’s under threat. It’s nothing compared to what John Marshall was navigating. If you want to understand the chief, you have to understand John Marshall. And absolutely, I think that this chief justice sees his legacy as maneuvering the Supreme Court through the treacherous waters of a president who is trying to undermine the institution and to restore the separation of powers between the presidency and Congress, which is the greatest constitutional threat that we face right now.

What do you think Robert’s legacy is going to be? He said he wanted more unanimous opinions and he wanted to speak more with one voice. By that measure, he has failed. The Court is having about the same number of unanimous opinions, but with a whole lot more concurrences. So everyone feels like they need to get their two cents in about why they see the law this way and, “Oh, I see the law slightly differently this way, and let’s have a big fight about it on paper.” So in that sense, a totally failed endeavor.

On the other hand, the Court has grown in legitimacy and credibility as an institution when it has gone up against presidents who have challenged it because of the fact that we’ve only had 17 chief justices, but nearly 50 presidents, right? It’s like, as chief justice, your job is to look at that dude and be like, “I will outlast you. You’re here for four years. How cute.” And so I think the chief justice’s legacy is to be able to say, “Mr. President, those are some nice insults on Truth Social, but all you proved is that we are an independent branch of government who does not rule for you or against you. Our job is to decide who decides.” And the answer more often than not is Congress, not the president.

Trending Stories