Attorney and political commentator Sarah Isgur, author of “Last Branch Standing,” says the Supreme Court has become our “culture war referee” due to congressional inaction.
As the court gets dragged into these political fights, it shoulders the blame when the justices strike down policies. That partisan anger has gone as far as an assassination plot against Justice Brett Kavanaugh.
On this episode of “Deseret Voices,” Isgur talks about the threats facing our nation’s highest court.
Subscribe to “Deseret Voices” on YouTube, Apple Podcasts or Spotify.
Note: Transcript edited by Steven Watkins.
McKay Coppins: Sarah Isgur, thank you for coming on “Deseret Voices.”
Sarah Isgur: Thank you for having me, McKay.
MC: You have a new book out. It’s called “Last Branch Standing.” There is a very distinct Sarah tone in this book, and I want to explain what I mean by that. So, the book is about the Supreme Court, what we get wrong about the court, what we as a country should understand about the court and why it’s important, and we’re going to talk about all of that stuff.
But when you and I first got to know each other, I was a young reporter and you were working at the Republican National Committee and you were one of my first D.C. sources. And one of the things that brought us together was that I don’t drink coffee, which is the typical go-to beverage for source-reporter meetings. And so you agreed to meet me for milkshakes, which became a running tradition for us.
SI: Well, to be clear, I don’t drink coffee either, just not for religious reasons. So both of us found ourselves out of water, you know, a stranger in a strange land in D.C.
MC: Just slurping down 2,500 calories of ice cream as we talked about the Republican Party circa 2013.
SI: They were delicious.
MC: But here’s the thing: You were always very fair to me, you were a good source, we became friends. But you also were always very clear when you had a problem with something that I wrote or one of my colleagues wrote. And I could tell because there was this certain Sarah tone that would come through, whether we were talking in person or you were texting me, where you were always, you know, friendly and respectful, but there was like a sharpness to it where I could tell, like, there is something that is really bothering you and you’re not going to drop it until you feel like I’ve heard you. And I feel like parts of this book, while very funny and, you know, enjoyable and entertaining and insightful, are written in that tone. Like, it feels like there are certain popular narratives about the Supreme Court in America right now that drive you crazy and you wanted to dispel them with this book. So, tell me why you wrote this book and why the average person should care about this.
SI: So this is why you don’t do podcasts with friends, because he, like, knows the psychology behind doing this. It’s basically a book-length diatribe, but you know, a joyful and fun one. I’d say there’s, like, two sort of separate buckets of reasons. Bucket No. 1 is that, you know, I have this legal podcast “Advisory Opinions,” and we get all these emails of like, “Hey, I’m an undergrad,” or “I’m in high school,” or “I’m just a legal hobbyist. What’s a book that sort of, you know, explains everything? Like what’s the theory of everything?” And like, there’s some great history books, there’s some great, you know, specific books, whatever, but there really wasn’t a book to recommend. And I went to law school knowing nothing. I’m not sure I could have named more than one or two Supreme Court justices, maybe none. I don’t know. I went to law school because I got fired from my first job out of college. The movie “Legally Blonde” came out and I thought, “Yeah, if I graduated from Harvard Law School, they wouldn’t fire me from a job,” which is funny because I’ve been fired from plenty of jobs since then as well.
MC: You know what’s weird? I learned that little biographical detail about you from this book. I don’t know how that never came up. But what is the girl’s name in “Legally Blonde”? The character’s name —
SI: Elle Woods.
MC: Elle Woods. We have Elle Woods to thank for your ascent. But anyway, OK.
SI: Yeah, that’s a terrible reason to go to law school, by the way, but it was mine and maybe if I’d read this book, I would have known, you know, what I was doing. So that’s like No. 1. Like, I sort of wrote this for 1L Sarah or pre-law school Sarah. And then bucket No. 2 is that this is sort of like an intelligent person’s guide to the Supreme Court because so much of the common wisdom, the media narrative about the court, is just wrong. It’s just incorrect. And we can get into like why some of that’s incorrect, but basically, the media treats the court like it’s Congress-lite with only nine people instead of 535 and they try to squeeze the court into those different, you know, storylines. If you think of, you know, the federal government as a reality TV show, and the court doesn’t work that way. The data doesn’t support any of these narratives, the history doesn’t support these narratives, and I think if we had started covering the court first — like, I’d be really intrigued to see how those reporters would cover Congress. But we have a bunch of, like, people who start at Congress trying to cover the court and it’s not working.
MC: Well, OK, let’s talk about the court though for a second. Because, you know, you write in the introduction of this book that the Supreme Court in recent years — at one point I think in 2020 — had an approval rating of like 70 percent. It was very high. It had somehow managed to kind of evade the crisis of credibility and authority that every other major institution in American life had suffered. But in the years since, its approval rating has cratered. It’s kind of fallen victim to that same, you know, lack of trust, the conspiracy theories, the partisan anger, all of that. And now I think it’s in the low 40s for its approval rating, which I should say, is still higher than the press and Congress, but not great. So why do you think that it has kind of suffered this crisis of authority? Why do so many Americans now view the Supreme Court unfavorably, in a distrustful way?
SI: So it’s funny because when you actually, like, pull into the cross tabs of those approval numbers, Democrats cratered first, not surprisingly, with the confirmation of Amy Coney Barrett to replace Ruth Bader Ginsburg, with the Dobbs decision overturning Roe v. Wade, and Republicans cratered later, especially when Donald Trump came back into office and started attacking the Supreme Court as being disloyal to him. So no matter which side you ask, they, you know, politically, hate the court and attack the court. What I think you have to back up from that is, but why now? Like, why are partisans of both sides trying to tear down the court now? And I think the answer to that is really obvious but hard to fix. Congress isn’t doing anything anymore, and so all of these political fights are ending up in the court in a way that, that really wasn’t its role in the past. The court is now our, like, culture war referee, and so each side is trying to work the refs. Before, you would have lobbied Congress, you would have talked about the midterm elections, it all would have been focused on Congress. But when Congress stops doing its job, the presidency got turned up on steroids. You know, you think of Obama’s pen and phone comment, you know, Joe Biden’s student loan debt forgiveness, Donald Trump’s tariffs. All of those things you have to actually go through Congress to do, which is what the Supreme Court ended up holding in all of those cases. But people then get mad at the court because the headline is “Supreme Court strikes down Biden student loan debt forgiveness,” “Supreme Court strikes down Trump’s tariffs,” instead of “Supreme Court says only Congress can do student loan debt forgiveness,” or, you know, even better, “Supreme Court says president acting alone can’t pass major pieces of legislation that he had previously said he couldn’t do without Congress, and the Supreme Court now agrees.”
MC: That’s a classic headline that a flack wants you to write, and you’re like, that just doesn’t fit in, you know, in —
SI: You’re right. McKay, this whole book is like I wrote it to you in 2013.
MC: No, but you know what though? Like, I feel like — I want to dwell for a second on the Congress aspect of it. Because I — the whole time I was reading your book, I was thinking about another book that I read years ago, “The Broken Branch” by Norm Ornstein and Thomas Mann, which is all about how Congress became so dysfunctional, right? I mean, in the 21st century, Congress has essentially been paralyzed by partisanship, right? Like, and there are a bunch of reasons for it and, you know, even the different partisans have their own reasons, you know, it’s gerrymandering, it’s, you know, too much money in politics, it’s whatever. But like, the truth is, Congress — and you highlight this again in the intro of your book — like, Congress hasn’t operated in a normal way since the 1990s at least, right? Like, it doesn’t pass budgets, it doesn’t pass major bipartisan legislation, Congress, which is supposed to be the most powerful branch of government, has become by far the weakest.
SI: Yeah, it’s pathetic. We have 535 Instagram influencers now who have the title congressman but do not even know how to legislate, let alone do that. I mean, when you think about it, you’ve got two candidates for office. One spent the last three months trying to write a piece of legislation, but because they’re not in leadership, that is never going to see the floor. So that guy’s running for reelection with his, you know, 10-point plan to solve America, and he’s running against a guy who has spent the last three months on social media raising small dollar, you know, money from people in like $5 and $20 increments about how bad the other team is and how evil they are, and he’s gotten all this attention. And really, the consolidation of leadership in the House in particular has, you know, if you have no chance of having your legislation come to the floor and your main motivation in life is to get reelected, you’re going to make legislating a bad word. And that’s basically where we are.
My historical thesis, though, is that the court and Congress start on these paths in the Progressive Era, both, you know, Roosevelt and Wilson — this isn’t a partisanship thing — but the idea of the Progressives 100 years ago was that we didn’t need Congress, they’re a bunch of idiots — sound familiar? — you know, a bunch of rubes who don’t actually know much of anything, they’re gentleman farmers. So instead, why don’t we fill the executive branch with experts because there are right and wrong answers to our social public policy problems if only we have smart enough people there. These guys also of course loved eugenics, this idea that we could perfect society by, for instance, sterilizing people who we didn’t think would benefit the larger group. The Supreme Court upholds that in a famous case called Buck v. Bell with Oliver Wendell Holmes writing, “three generations of imbeciles are enough.” Well, when you move to this expertise model away from the compromise and stability and logrolling and frustrations of Congress and representative government, 100 years later, you don’t have any of Congress left, but you have a whole lot of the court left.
MC: Mmhmm. And again, like, you know, you look at the contemporary manifestation of that dynamic and it’s just so — it’s impossible to ignore, right? Every time a major controversial question comes before American society, it should be the place of our elected legislators to, you know, come together and figure out legislation to address it. Now, not in every case, there are some cases that clearly just belong before the courts to decide constitutional issues. But I would argue that the vast majority of big controversial culture war issues could be worked out in Congress. And because they basically have ceded the ability to legislate, they end up before the court and it really does change our understanding of what the Supreme Court is.
SI: Well, just look at some of the cases from this term, I’ll just pick a few. The court said that Trump couldn’t federalize the National Guard; Congress could. That wasn’t a fight about constitutional issues. The Supreme Court of course in the tariffs case said Congress is welcome to pass these tariffs any time. The mail-in ballot case: We’re having all these arguments over whether states can accept mail-in ballots after the date of the election. That is only a question of what the statute that Congress passed said. Same with the Remain in Mexico immigration case that’s this term. That is only a question of what Congress wants. Congress could, you know, whichever way the Supreme Court goes, say, “Oh, actually, that’s not what we meant, we meant the other thing.” And everyone would be like, “OK, thanks.” But nobody believes Congress will do that. And so it raises the temperature on the court, whereas, as you said, as recently as 2008, Congress was still passing laws to — you know, overturn’s technically the wrong legal term — but like overturning Supreme Court decisions. We used to pass amendments when we didn’t like a Supreme Court decision; the income tax amendment was directly in response to a Supreme Court case. So the Supreme Court was part of this give and take with the democratic and representative process.
But again, when we don’t have a functioning amendment process because we don’t have a functioning Congress and then we don’t have legislation from a functioning Congress, the Supreme Court becomes the last place, all the temperature gets turned up, all the confirmation fights, all the, you know, filibustering stuff. And it’s to me, it’s just when you dig into the history, it’s so obvious where this train was headed and here we are at the station and everyone’s looking around going, “We don’t like this.” It’s so easy to fix theoretically, like I know it’s hard in terms of how we get Congress to do its job again, but honestly, lots of people have lots of good ideas of how to do that, just no one’s doing them because the members of Congress who are there right now don’t want to do that, that’s not how they got to be in office in the first place.
MC: And, to your point, I do think like as somebody who’s spent some time covering Congress, it is really remarkable how many members of Congress really just want to be podcasters, you know? Like, they see their seats as platforms to share their opinions as opposed to, you know, places to legislate. Anyway, what gets lost in all this, and you make this point very clearly throughout the book, is that the Supreme Court really is not supposed to be especially popular, right? Like, that is not the role of the Supreme Court. Talk a little about that.
SI: Yeah, so when you think about the Congress is supposed to be the most representative and most responsive to our democratic process. The presidency’s supposed to be a little bit more removed, you know, we not only only elect them every four years, but there’s an Electoral College that was supposed to kind of be this, you know, buffer zone from direct democracy. The Supreme Court was supposed to be counter-majoritarian to bare and fleeting majorities. It’s the reason that really the Supreme Court doesn’t exist so much during George Washington’s eight years in office because nobody needs to be counter to George Washington, he’s perfect. And so the Supreme Court doesn’t do anything. But wait until Jefferson comes into office, wait until Jackson comes into office, and really the Supreme Court is there to stand athwart and say stop.
And so when you think about the Supreme Court’s worst decisions — Dred Scott, Korematsu, Plessy v. Ferguson — those were all majoritarian decisions. That was the court going along with majority sentiment and the sort of popular moment, if you will, I don’t want to call it populism but like populism adjacent. When the court has historically done the things that we’re proudest of, they are counter-majoritarian. It is Brown v. Board of Education, it is West Virginia v. Barnette, some of these, you know, Miranda criminal justice cases. Like think about the First Amendment. If you have a Supreme Court that is, like, looking at approval numbers, then you’re never going to have protections under the First Amendment. The whole point of the First Amendment is that if it were popular speech, you wouldn’t need a First Amendment. The majority would be like, “Yay, I like it.” Majorities like to stay majorities, they like to shut down minority opinions whenever they can.
Same in the criminal justice context. If we know a guy has committed a heinous crime, guess what? The majority of Americans don’t want to let that guy go, no matter what the police did, no matter what the process was. And that’s the sort of mob mentality that the founders were most afraid of. This was the very purpose of the Supreme Court to them. So it’s this weird tension.
The Supreme Court doesn’t have, you know, has neither purse nor sword, as the Federalist Papers tell us, so they rely on legitimacy and credibility for people to actually enforce their decisions. And at the same time, if they did what we wanted, then they wouldn’t have much purpose at all because Congress and the presidency would do that too. And so over time, I argue that actually it’s this tension between powerful presidents like Jefferson, Jackson, Lincoln, FDR, Nixon — obviously Trump — that has built the Supreme Court’s independence and legitimacy so that we accept decisions even when we’re against them. And there’s this like beautiful point of intellectual humility when it comes to thinking about the Supreme Court because you go back to Plessy v. Ferguson. This upheld Louisiana’s Separate Railroad Car Act, segregation, right? It’s really going to kick off the peak violence, lynching, Jim Crow laws throughout the South. The decision was 7-1. There was only one dissenting justice on the court, John Marshall Harlan. And Frederick Douglass wrote him a letter afterward that said, “one man with God is a majority.”
And every current justice takes their oath of office on John Marshall Harlan’s Bible, and it is supposed to be this reminder that even when you’re standing alone, even when the society, the culture that you were raised in, every one of your friends says like, “This is the outcome I want,” that actually your job is something much longer, much bigger, much more counter-majoritarian. You are supposed to say what the Constitution says and shut that all out because at the end of the day, those seven justices were wrong and John Marshall Harlan was right. So every justice wants to be John Marshall Harlan. And, you know, part of the book is trying to explain that they really do see themselves that way, they really do all, like, act in good faith and want to reach those decisions in every case the right way. We can criticize them all day long and believe me, I’ve got mine. But if you see the Supreme Court as more of a “Ted Lasso” model than a “Game of Thrones” model, you will be better at predicting the Supreme Court and understanding the Supreme Court.
MC: Well, I want to, like, pause on that, that idea of this, the court is kind of a deliberately apolitical institution, right? Like, there is this image that the, the modern court at least has really tried to cultivate, that they are kind of enlightened black-robed figures dispensing wisdom from on high, guided by, you know, constitutional principle and nothing else. And, you know, people can disagree on how true that is, I actually want to get into that when we talk about the specific justices because that’s one of my favorite parts of your book. But before we get there, it has not always been the case that the Supreme Court has presented itself as entirely apolitical. And you have a whole section of your book where you go through the political history of the Supreme Court. Talk a little about how it has evolved as an institution.
SI: Well, of course right off the bat Samuel Chase is campaigning for John Adams and in fact delays the Supreme Court’s term because he’s on the campaign trail, like he doesn’t have time to actually hear and decide cases. Jefferson then tries to get him impeached and removed from the Supreme Court for that in 1805. I really pick that as sort of this pivotal moment that creates the Supreme Court that we know today as an independent branch that’s not just going to reflect whatever party wins the presidency, which is what Jefferson wanted. He wanted to impeach Chase, then impeach John Marshall and, you know, the court should all be Jefferson people. And then when it’s Jackson, they’ll be Jackson people. You just remove them or pressure them into resigning. So there’s always been that part. You know, to turn it on its head a little bit, I also talk about how we have so narrowed who can be a Supreme Court justice, in part because of what you’re saying. We want this idea of black-robed, you know, referees, Platonic guardians.
And so it really changes who can become a Supreme Court justice. The current court all have such similar résumés, it’s sort of breathtaking for its lack of experiential diversity. You look at the Brown v. Board of Education court, one of them didn’t go to law school, five of them had been in elected office before, eight of the nine had served in the military, not surprisingly. Like, they’re doing all sorts of stuff. Even Justice Kennedy, who recently left the court, he’d been a solo practitioner in Sacramento. It’s hard to imagine anyone who had had that kind of legal experience even being considered for a Supreme Court justice position these days.
MC: Well, wasn’t it William Howard Taft, the former president and then turned chief justice of the Supreme Court, was the one who was kind of instrumental in getting the Supreme
SI: In a closet, yeah. They kept putting the brooms in there every time they opened the door. Yeah. And you know, Warren, one of the most famous chief justices, not only had he been governor of California — a lot of people know that — he had almost won the Republican nomination. And in fact, the Supreme Court has a pretty good history of that, of shelving political rivals into the Supreme Court so that they can’t run against you again. And I’m not saying that’s all good. I think that caused some problems for the court as well because those people saw themselves as like, “Oh good, now I can fix policy problems like I wanted to as an elected official.”
But nevertheless, it also gave them a much broader view of American democratic life and of the role of the court, very different than this, like, you know, almost bureaucratic notion of what it means to be a Supreme Court justice these days. And John Roberts, our current chief justice, mirrors himself on John Marshall — even the black robe thing, right, is John Marshall started the black robes, before that justices wore very brightly colored robes, like Easter egg robes. And John Marshall was like, “No, we wear black robes for, you know, the simplicity of sort of a Puritan notion on that side, and we are not individuals when we put on our robes, we are simply here to say what the law is, not what the law should be.” But, you know, the politics of the court have always been front and center reason to criticize the court. You know, after FDR leaves, the court is nine justices appointed by Democrats. As recently as 1992, the court was eight Republican appointees on the court.
MC: I want to distinguish between the idea that the court can be nonpartisan while also being political. And what I mean by that, you know, a few years ago I wrote a story about the kind of Trump-era Supreme Court and got a little bit of a window into the kind of inside the court, you know, jockeying that happens.
SI: I’m laughing by the way, because we forced McKay to come on our legal podcast and just, yeah, like —
MC: You were so mad about it.
SI: I didn’t love it. Not my favorite piece.
MC: Well, so you didn’t love it in part because you know it was about Justice Kavanaugh. We’ll get into it, I actually want to talk about Justice Kavanaugh in a second.
SI: I mean McKay Coppins is what caused Donald Trump to run for president and McKay Coppins might be what caused me to write a book about the Supreme Court.
MC: Keira’s cutting that out. We’re cutting that part out of the podcast. But no, no, no, but, like, it is true that, like, you know, even if you will grant that these nine justices genuinely are trying to interpret the Constitution to the best of their ability, not trying to affect partisan aims, there is still a lot of room for maneuvering and negotiation and dealmaking inside the chambers. And that’s what I think is so fascinating about the Supreme Court as an institution. Because it’s so opaque and secretive and we don’t — they don’t give interviews all the time and we don’t get like inside the court reporting the way that we do from the White House and Congress, we’re kind of left to use our imaginations about how it actually works. And you in a really interesting way kind of show how it works in this book. But, like, talk a little about the maneuvering that happens within the Supreme Court on any given case or decision.
SI: So I sort of put this in a graph, like, think of your high school algebra class. Like, the bottom axis, that X-axis, is ideology. It’s your judicial philosophy, it’s whether you’re conservative or liberal — those are different than our partisan labels, but for our purposes, all of that is on this bottom axis. The vertical axis, that Y-axis, is all the things you’re talking about, McKay.
And so I like to compare Justice Kavanaugh and Justice Gorsuch because they are twins on paper. They are the sons of powerful D.C. mothers before there was even a women’s restroom in the Senate. They go to the same high school, they have the same history teacher, Mr. Oaks, who by the way is still teaching. This guy has two justices on the Supreme Court and he’s like, “I don’t know, I could go for a third, let’s see.” Those kids must feel a lot of pressure in his class. They both clerk on the Supreme Court for the same justice in the same term, they’re like in-chambers together. They both work in the W. administration in very senior roles. They both go onto the circuit court in close proximity to each other in time. They both go onto the Supreme Court appointed by the same president within 18 months of each other. These guys are both conservatives who came up through conservative Federalist Society world, they should be ruling the same way all the time, why do we need two of them? Right? Like, they’re the same person. Last term, they only ruled together 50 percent of the time. Kavanaugh was more likely to be with every other justice on the court, Kagan, Sotomayor, except Jackson. That was the only one that beat out Gorsuch for being less likely to agree with Brett Kavanaugh. And the reason why is what you just said.
For Neil Gorsuch, the only thing you need to think about when you’re looking at a case is what the right answer is. Not really what a previous court decided — precedent, if the precedent’s wrong you overturn it — not really what those other justices think about the case, that’s not your problem, your job is only to say what Neil Gorsuch thinks the right answer is. And I sort of call him my, like, YOLO libertarian justice because he’s, like, out there on his own, probably the best friend to tribal law, Native American rights of any justice to ever serve in the Supreme Court, almost always rules for the criminal defendant, even more so than Justice Scalia did. He’s a really unique conservative justice. Brett Kavanaugh is thinking the way that you’re talking about. You know, “Could we get more votes on this case if we narrow the aperture of our decision, you know, we don’t have to decide everything today, let’s just decide this one thing because all of us can agree on that question.” He thinks of it as an institution. It’s not his voice, it’s one voice, the court.
And so justices would never make a deal — any of these justices — would make a deal of like, “You vote this way on this case and then I’ll vote with you on this other case,” that’s sort of a more Congress way to think about the court. But they absolutely think about, “If you’ll join, I’ll take out this paragraph from my majority opinion that you don’t agree with. I’ll, you know, soften this or I’ll add a paragraph in my majority opinion.” And so sometimes you’ll see opinions that you’re like, “Where’d that paragraph come from? That sentence is really vague and I don’t know what it means.” That’s the institutionalist axis, the sort of middle school group project part of being a Supreme Court justice where, you know, I think they are oftentimes trying to get as many justices as possible, as close to unanimity as possible.
And in 42% of the cases last term, and that’s about an average over the last 20 years. Even though they get to decide what cases they take in the first place, and they take these cases that have divided the lower courts, the smartest judges from around the country, they take about 60 a year. Even in the hardest cases, they’re unanimous about 42% of the time. Kind of amazing.
MC: Yeah, I mean because those are not the decisions that get the most press attention and often, as you point out, when they are, you know, 9-0 decisions, the press decides that they’re not as important as they thought they were. But because of that —
SI: I get so mad about this. Like, the last term, there’s one day in June where three decisions come down. All of which were considered big cases at the beginning of the term. One was on gun manufacturer liability, one was on religious liberty and tax exemption for Catholic Charities in Wisconsin — Wisconsin said you only have to give tax exemption to religions that proselytize. Say what now? And then one was on reverse discrimination, what happens when a straight person believes they were fired by their gay manager because they were straight. All three of those cases were like conservative coded, everyone thought they were going to be 6-3, they were all geared up to write these, you know, think pieces on them. They all came out the same day, they were all unanimous, each one was written by one of the liberal justices, Kagan, Sotomayor and Jackson. And we never heard about them again. They disappeared off the media landscape. I think that’s true, by the way — it’ll be — I’ll be curious if you disagree. The National Guard case where the Supreme Court 6-3 holds that Trump cannot federalize the National Guard. Well, but it was 6-3 with three liberals and three conservatives. So we never talked about it again. It didn’t fit the narrative.
MC: I’ll do a little bit of media criticism here. Because so much of the press corps that covers the Supreme Court — and there are obviously exceptions — but because so many of them came from political journalism, right? Because they had covered campaigns and Congress, they are kind of conditioned to treat the institution as a venue for partisan politics and that’s their best way of understanding and interpreting these stories. And by the way, I think there’s an audience component to it too. Like, whether you’re writing for a conservative or a liberal publication, like, that’s also how most people understand it. And so they naturally end up covering it that way and the ones that are more ideologically confused or that are, you know, are kind of less likely to work people up and get them, you know, angry, frankly, that are less likely to slip into the algorithm and really juice the traffic numbers. You’re less likely to write about them. So I think there is an element of that for sure.
SI: Last term, the same number of cases of the closely divided, the 6-3s and 5-4s, the same number of cases were decided with all liberals in dissent as you would expect in the narrative, right? The same number of cases were decided with all liberals in the majority and only conservatives in dissent. But we just don’t talk about those cases, so no one knows they exist, so everyone thinks that all the big cases are decided with the liberals in dissent and it’s just, literally, the opposite couldn’t be more true. It literally was the same number of cases last term. I’m, like, screaming into the void.
MC: Let’s talk about the specific justices on the court because you have a whole section of this book where you basically group the nine justices into three distinct camps.
SI: Think of it like their high school lunch table, like who they sit with at lunch.
MC: Well, let’s do the, like, early 2000s teen comedy where we pan from table to table. We’ll start with “The Deciders,” who are Chief Justice John Roberts, Brett Kavanaugh and Amy Coney Barrett. Who are they, what motivates them, what’s going on at that lunch table?
SI: These are the jocks and cheerleaders. They’re the cool kids, they’re going to be in the majority more than any other justices on the court, which means they are the deciding votes on over 90% of any case that comes before the Supreme Court. They are also the most institutionalist of the judges, the ones that want to bring other people on, they’ll narrow their own decisions, they’ll lower their own voice in order to speak with one voice as a court. And yeah, I mean that’s where, famously a former justice said, it just takes five votes, you can do anything around here. And like, this is your fifth vote, you’ve got to get one or more of these guys. So they’re very cool, very popular, they’re walking through the hallways like nothing has bothered them. They’ve never been given a wedgie, there’s no swirlies.
MC: OK. “Conservative Honey Badgers,” which I just like the invocation of the honey badger meme, like 20 years later. It’s a foundational text for our generation. Clarence Thomas, Samuel Alito and Neil Gorsuch. What’s the deal with them?
SI: OK, so this is sort of the freaks and geeks table, they’re all sitting together, but they’re reading their own stuff. They’re not actually talking to each other. It’s just that they have nowhere else to sit in the cafeteria and they would rather sit next to that guy than the other guys. These are the three justices that have their most — their own idiosyncratic judicial philosophies. Sometimes they’re going to end up together because of that, but they are also the justices, even though they’re in this clump of three together statistically speaking, the least likely to agree of the three clumps of three. Your deciders are more likely to be together, the liberal justices that we’ll talk about in a second are more likely to stay together. Not so these three. So we have Gorsuch, my YOLO libertarian, Clarence Thomas — which we could do a whole podcast on the evolution of Clarence Thomas from, like, radical race liberal, you know, in the 1970s when he’s coming up through Yale Law School to the conservative that he becomes before he joins the court. And then Samuel Alito — Samuel Alito describes himself as a faint-hearted originalist, he describes Clarence Thomas as a bloodthirsty originalist.
I dive into Sam Alito’s First Amendment cases because I — he is like the misanthrope, he’s maybe not that into people, but he loves animals. So while these other guys are golfing for their vacations or hunting with Justice Scalia, he’s banding migratory birds, he’s feeding stray cats. His dog Noel — he, literally, the car in front of him, as he was getting on the freeway, threw a puppy out the window, so he races across a freeway in D.C. to save this puppy’s life and, like, obviously, adopts the puppy and, like, he’s starting a road trip with a 1-year-old baby and is like, “Well, now we have a road trip with a baby and a puppy.” And like, that’s Sam Alito. So yeah, those are my honey badgers.
MC: Final group is the “Lonely Liberals,” Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson. Talk about them.
SI: Yeah, what makes them interesting to me is when they don’t stick together, which is more often than people on the right think. They think, based on what Donald Trump says, like, these guys always vote together, they’re always loyal quote-unquote to the left. Last term we saw the highest number of 7-2 cases that we’d seen in any previous term, Kagan breaking from Sotomayor and Jackson. Why? Because she’s the most institutionalist of the three of them. And when you see Justice Jackson write her most seething lines, especially on the emergency docket, the interim docket, the shadow docket, whatever you want to call it, notice that Justice Kagan hasn’t joined a single one of those. Justice Kagan may be in dissent, but she won’t join that opinion. So they have very different strategies of what it means to be in the ideological minority and how to win the cases anyway, if you will. Justice Jackson sees herself more I think in the John Marshall Harlan, like, “I’ll just be the sole dissenter and I’ll write for posterity.” Justice Kagan is like, “No, I want to win now. And so if I can get that case narrowed, if we can not take that case in the first place,” like, she’s working that behind the scenes strategic process.
MC: Reading about Kagan is really interesting. And this matches some of the things I heard about her. Is that she was really like an operator. She threw a dinner party for Justice Kavanaugh when he arrived on the court after that brutal confirmation hearing. Whereas like a lot of liberals were like, “He is public enemy No. 1,” she’s like, “I’m going to throw a party for him and become his friend and, you know, his ally,” right?
SI: She now plays golf where he plays golf, she used to hunt with Justice Scalia. She was my dean in law school and she and I are alone walking back from lunch one day back to campus. And I’m trying to make conversation with this, like, most impressive woman that I’ve ever met, probably the highest IQ person that I’ve ever had a conversation with. And I’m like, “So, would you rather be a justice on the Supreme Court or attorney general?” And she’s like, “What do you think?” And I said, “Attorney general.” And she’s like, “Yeah, definitely.”
MC: It’s so interesting. What I got from reading these sections, is like the court really is, as much as it’s shaped by grand constitutional theories and ideologies, it’s really shaped by the personalities on the bench at any given time.
SI: And the personalities are reactions to the court before them. Like, who gets that nomination? Now of course it’s a reaction of our politics. They’re picked by a political party that picked a president. So in that sense they are almost these “Encino Men” frozen in time on the date of their confirmation in terms of the politics that they reflect. But they also, you know, the president picked them because he wants to send a message about reversing the Warren Court. Or he wants to send a message that he’s in line with Justice Scalia. So they’re always a reaction to what came before them. Either the pendulum swinging against it or swinging with it. And that’s really the history of the court over the last 200 years. It keeps being a reaction to what came before.
MC: Before we move on to my last question for you, which is about the threats posed to the court, I want to just, while we’re still talking about the personalities, I want to do a quick Supreme Court lightning round. I’m just going to ask you some questions, no wrong answers, just based on your knowledge, speculation. OK, first: Which justice is most likely to be weirdly good at parallel parking?
SI: I think Amy Coney Barrett is the first one that comes to mind for that.
MC: Interesting.
SI: She’s a mom with an SUV and I think she’s just going to be nailing that.
MC: That makes sense. Sotomayor and Kagan both grew up in New York City, which is the parallel parking capital of the world. But they’re not driving. They probably didn’t have cars. Amy Coney Barrett makes sense to me. I don’t know why, but I feel like Gorsuch gives strong parallel parker vibes. OK, No. 2: Which justice is most likely to use ChatGPT to respond to low stakes emails?
SI: The Chief.
MC: Which justice is most likely to send “per my last email” energy in chambers?
SI: Neil Gorsuch.
MC: OK. That was mine too, that was my guess. Which justice is most likely to be a good sport about a brutal “SNL” impression about themselves?
SI: Clarence Thomas. Oh, he has the best laugh.
MC: Which justice would dominate in a Supreme Court-themed game of “Jeopardy!”?
SI: Elena Kagan. Especially if you go broad, you know, she’s the polymath.
MC: Which justice is most likely to mutter “That’s not what the rule says” while assembling Ikea furniture?
SI: Alito, Sam Alito. 100%.
MC: All right, last one. Which justice is most likely to be discovered lurking on SCOTUSblog comments at 1:14 a.m.?
SI: Brett Kavanaugh.
MC: That’s what I had too. I wrote that down. That was my guess. Last question, let’s talk about the threats to the court. This is kind of how you end the book. Because the court really is under threat from partisans on both sides, right? So talk about what the biggest risks are for the court over the next, you know, decade or two, what does it need to do to kind of safeguard its independence and credibility, and where are the threats coming from?
SI: So as I’ve said, historically, the threats have come from the biggest executive power popular presidents, Jefferson, Jackson, Lincoln, FDR. But it’s also what has secured the court in its legitimacy and credibility and built it as an institution separate from the presidency because as presidents attack them, people see it as its own thing and sort of come to appreciate the counter-majoritarian nature of it if you’re in the minority and not, you know, in line with what the president wants to do. You definitely see that at play right now as Donald Trump attacks the court, he’s actually making it clear that the court is independent of him, which is one of the criticisms, the main criticism, of this court from the left.
The threats, the specific threats: One, we have to talk about the violence, right, the assassination attempt against Brett Kavanaugh. The justices now for the first time in history have round-the-clock security, that was not the case even just a few years ago. And one of the arguments I make in the book is, you know, if you’re protesting at their house, if you’re secretly recording these people, you know, obviously the violence goes without saying, the result hasn’t been to change their decisions. It makes people, like, human nature will make you recoil against that. What it does, it makes them more isolated, more reclusive, less likely to interact with normal people, and maybe most importantly, less likely for normal people to ever take the job in the first place. So I went and talked to some of the short-lister folks who are on circuit courts right now. And the refrain that I kept hearing was, “I don’t know if I can do that to my family.” So if the normies won’t take the job, you’re going to be left with something more like Congress, that, like, only sociopaths — someone will agree to take the job, we won’t lack for people raising their hand to be Supreme Court justices, but they’ll be the types of people who don’t care about their family, don’t mind being secretly recorded, because they’re sociopaths.
MC: I don’t think there are that many sociopath lawyers, though, are there?
SI: Ha ha ha.
MC: I had to get in one lawyer joke. But that point is well taken. I mean, this goes back to what you were saying about, like, the era of the court when you would draw from a bunch of different segments of American life. Now look, it’s not like back then the court was this, like, beacon of diversity, necessarily. But you still had people from military backgrounds, political backgrounds, from different parts of the country, went to different schools. That is not the case right now and you’re saying it could get even worse if the justices continue to feel like they are putting themselves and their families at risk by even joining the bench.
SI: Yeah, or making new friends or talking to a neighbor. Like, all of that stuff can be incredibly isolating. These are human beings, they’re going to have friends. You want them to have a broad group of friends, not only the people who they’ve known since they were 10 years old who they don’t think will release their text messages publicly. Another obvious threat are the threats to pack the court, you know, whether that’s through literally adding seats to the court — maybe that’s still a real threat, kind of depends on what day of the week it is.
Term limits I think are a similar threat actually that will partisanize the court. You will have justices run on a ticket basically with a president if every president knows that they get two picks. Those people also will leave the court at a specific time; they may want to be in the Cabinet, they may want a fancy general counsel job or their peers may say, “Well, I know so-and-so’s leaving in a month, so we’re going to wait them out because we want the other justice to come in to decide this case.” It will all make it seem far more partisan.
Another one in that bucket is jurisdiction stripping. Congress at any point can say, “The Supreme Court can’t rule on this type of question anymore,” people don’t really know that. And you won’t be surprised to hear congresses have considered this many, many times over America’s history and just haven’t really done it yet. Those are all threats from the left right now, though increasingly you hear some of it from the right as well. The threats from the right right now are just ignoring the court. You know, “He’s made his decision, let him enforce it.” Brown v. Board of Education wasn’t enforced for 10 years, not even a little bit, after the court decided that case unanimously in the beginning of the Warren Court. That’s a threat in the sense that it’s a threat to the court’s legitimacy and credibility if it can just make these rulings and no one cares. I’m less concerned about that because we’re in the year 2026. Like, in 1805, I think that was far greater threat when Jackson did it in 1835, for instance. That led to the Trail of Tears and people were like, “Well, I don’t know, maybe presidents ignoring the Supreme Court wasn’t great.” Brown v. Board of Education, “Oh, maybe that decision was right.” So historically, when presidents have tried to ignore Supreme Court decisions, the presidents have been on the losing end.
But, you know, there’s also the, like, micro threats. I think forum shopping is a huge threat to the judiciary, the idea that these people get to pick which judge they are in front of, even if that’s the most fair judge in America, they don’t look fair if one side wanted that specific judge. The end of the filibuster changes the types of people who become judges in the first place. We basically went from a general election model where you needed votes from the other side to get confirmed to a primary model where you only need votes from your own side and so it moves further and further to the extreme. Biden’s picks were more liberal than Obama’s, Trump’s picks were more conservative than George W. Bush’s. That is a threat to the judiciary. It’s just not an external one per se. I mean it is because the filibuster is a different branch of government, but the threat kind of comes within because it changes law student behavior, it changes who wants to be a judge, it changes who gets confirmed as a judge. That’s a real threat to me.
MC: Well, I feel like we could talk for another three hours about this book.
SI: But we will, over milkshakes, we just won’t record it.
MC: That’s exactly right. Or maybe we will, maybe it’s a bonus episode. We’ll see how it goes. In the meantime, the book is “Last Branch Standing.” Thank you for coming on “Deseret Voices.”
SI: Thank you.