Sarah Isgur’s "Last Branch Standing" Reimagines the Supreme Court’s Role in American Governance
Podcast host and former Republican political operative Sarah Isgur challenges prevailing anxieties about the U.S. Supreme Court in her new book, Last Branch Standing. Isgur contends that both liberals, frustrated by significant rulings and past judicial appointments, and conservatives, angered by perceived judicial disloyalty or executive orders being overturned, misplace their focus. Her central argument posits that the Court effectively fulfills its mandate only when it acts as a check against overreaching presidents and questionable legal precedents. Instead of scrutinizing the Court, Isgur directs attention to what she identifies as the failures of the other two branches of government: the Executive Branch’s reliance on executive orders as a primary governing tool over the past two decades, and more critically, Congress’s extensive abdication of its legislative responsibilities.
A Career Forged in Conservative Legal Circles
Isgur’s professional background offers a unique vantage point on American politics and law, one that might initially raise skepticism among liberal observers. A graduate of Harvard Law School, she began her career with a judicial clerkship, a common path for aspiring legal minds. Her early political work included serving Ted Cruz during his campaign for Texas State Attorney General. She later managed communications for Carly Fiorina’s 2016 presidential campaign before joining the first Trump administration, where she worked at the Department of Justice under Attorney General Jeff Sessions. However, her tenure in the Trump administration was marked by an eventual departure, leading to her inclusion on what was informally known as Trump’s "enemies list." The precise reason for this remains somewhat unclear, though it is widely inferred to be a consequence of prioritizing her own ethical compass over an expectation of absolute loyalty.
Following her departure from government, Isgur transitioned into a prominent role in legal commentary and media. For several years, she has co-hosted Advisory Opinions, a highly regarded legal podcast, alongside New York Times columnist David French. She also contributes to the independent media group, The Dispatch, and serves as managing editor of SCOTUSblog, a widely respected non-profit website dedicated to comprehensive coverage of the Supreme Court. This extensive engagement positions her as a knowledgeable and influential voice within the legal and political discourse, particularly regarding the judiciary. Her prolific activity, she notes, is often conducted from her home office, allowing her the flexibility to delve deeply into case law, sometimes without the formality of traditional office attire.
"Last Branch Standing": An Inside Look at the Court
Isgur’s book, Last Branch Standing, mirrors the style of her podcast – accessible yet incisive, offering a center-right perspective on the Supreme Court. The narrative takes readers into the Court’s inner workings, detailing the intense labor, and at times, the social habits of the law clerks who are indispensable to its operations. It humanizes the nine current justices through brief, personal profiles, revealing unexpected details such as Justice Amy Coney Barrett’s preference for binge-watching Slow Horses or Justice Samuel Alito’s fondness for the film Being There.
Beyond these personal anecdotes, the book provides a vibrant and critical history of the Court, examining landmark cases that have profoundly shaped American jurisprudence. Isgur also explores various proposals for potential reforms to the judicial system. Crucially, she challenges the common perception that the Court consistently decides cases along strict 6-3 partisan lines. Instead, she argues that a more nuanced 3-3-3 split is often observed, with justices aligning in surprising ways that defy simple ideological categorization. Her analysis of each justice’s individual alignment and jurisprudential approach is designed to offer fresh insights to both casual observers and seasoned Court watchers.
The Genesis of "Last Branch Standing"
The creation of Last Branch Standing involved extensive research and refinement. Isgur revealed that she had to significantly trim the initial draft, cutting approximately 80,000 words. Much of this extensive editing focused on the historical sections, particularly the chapter explaining the Warren Court era. This period, she acknowledges, is not merely historically significant but represents the very genesis of the modern conservative legal movement. The Federalist Society, for instance, was established in 1982 largely as a direct response to the Warren Court’s perceived judicial activism. However, Isgur emphasizes that the Warren Court itself was a reaction to the legal landscape that preceded it, illustrating the cyclical nature of judicial evolution. She views the Supreme Court as a "lagging indicator" of national politics, a characteristic that she suggests should prompt a degree of apprehension about its future trajectory.
One of the more surprising historical details uncovered during her research was the 1788 Anatomy Riot in New York, a violent public disturbance sparked by graverobbing and medical experiments. During this riot, John Jay, then Chief Justice of the newly formed Supreme Court, sustained a brick injury to the head. Isgur humorously notes that this incident potentially curtailed his contributions to the Federalist Papers, indirectly contributing to Alexander Hamilton’s greater historical prominence. Such historical nuggets, combined with quotes from chief justices or pivotal cases, served to buttress her arguments throughout the book.
Congressional Abdication and Executive Overreach
A core tenet of Isgur’s argument is that the Supreme Court is currently attempting "self-help" to restore the constitutional balance, primarily by pushing back against executive overreach. She points to recent decisions, such as those striking down President Joe Biden’s student loan debt forgiveness program and President Donald Trump’s tariff decisions, as examples of the Court asserting that such significant policy changes require congressional action, not unilateral presidential decree. The Court’s message, she argues, is that presidents cannot unilaterally "fix these problems," and that issues like immigration and climate change demand legislative solutions. Isgur hopes that public understanding will shift, leading headlines to reflect the Court’s emphasis on congressional authority (e.g., "Supreme Court says only Congress can implement student loan debt forgiveness") rather than simply portraying the Court as an obstructionist force.
This perspective directly implicates the role of American voters. Isgur believes that citizens must incentivize Congress to resume its legislative duties. She attributes the current congressional gridlock to changes in political incentives, where compromising with the opposition is often punished in primary elections, leading to a legislative stalemate. The resulting inability to forge compromises has, in turn, allowed the Executive Branch to expand its powers, filling the void left by an inactive Congress.
The "Politicians in Robes" Debate
Isgur strongly refutes the accusation that Supreme Court justices are merely "politicians in robes." She argues that the Court’s primary function is to determine "who gets to decide" a particular issue—whether it’s Congress, a supermajority of Americans through the amendment process, or another entity. Many contemporary cases, she notes, involve statutory interpretation, where the Court seeks to discern congressional intent. If the Court misinterprets a statute, Congress has the power to clarify or amend it, a mechanism often overlooked in public discourse. Isgur emphasizes that justices do not, and generally do not view their role as, weighing in on "good policy" versus "bad policy."
However, the perception of partisanship persists. Critics often highlight instances where judicial decisions align with the political leanings of the appointing president. Isgur addresses this by drawing a parallel between the Biden student loan case and the Trump tariff case. She posits that the Court’s decision to strike down Trump’s tariffs, after having done so for Biden’s student loan relief, is particularly significant. Repeating such a ruling against a president from the same party that appointed some of the conservative justices signals the Court’s commitment to the principle that presidents cannot act unilaterally on major policy issues without legislative authorization. This repetition, she argues, transforms a one-off decision into a firmly established precedent, reinforcing the message to the executive branch regardless of party affiliation.
Justice Personalities and the Court’s Institutionalism
Isgur categorizes justices using various monikers—"institutionalist," "honey badgers," "chaos monkeys"—to illustrate their different approaches. She identifies herself as a "high institutionalist," likening the Court’s function to a "middle school group project" where the goal is to "speak with one voice." She contrasts Justices Neil Gorsuch and Brett Kavanaugh, both conservative, similarly educated, and from similar professional backgrounds, yet often arriving at different conclusions. This divergence, she explains, is not due to differing degrees of conservatism but rather their placement on a "vertical institutionalist axis." Kavanaugh, for instance, often aligns more with liberal justices like Elena Kagan and Sonia Sotomayor than with Gorsuch, suggesting a greater emphasis on institutional stability and compromise.
Isgur holds a particularly high regard for Justice Elena Kagan’s writing, describing her as her "favorite writer on the Court." She was particularly impressed by Kagan’s graduate school writing at age 24, finding it "humbling." She recommends Kagan’s dissent in the Andy Warhol case as a masterclass in writing, suggesting aspiring writers study it diligently.
Challenges to Judicial Independence and the Media’s Role
The conversation also touches on the delicate balance between public scrutiny and judicial independence. Isgur criticizes certain journalistic practices, such as secretly recording justices or their spouses, as counterproductive. While acknowledging the public’s desire to understand the justices’ thoughts, she argues that such methods foster isolation, discouraging normal interactions and potentially deterring qualified individuals from seeking judicial appointments due to the intense public scrutiny and personal risk involved. She warns that this environment could inadvertently favor "sociopaths" for public office, a hyperbolic but pointed critique of the current political climate.
The question of presidential appointments, particularly the hypothetical scenario of a president nominating an "unqualified" individual like Jeanine Pirro to the Supreme Court, is also explored. Isgur believes such a scenario is unlikely due to the existing "farm team" system of judicial appointments, largely influenced by organizations like the Federalist Society. While presidents may desire loyalty, the pool of candidates with the necessary resume (Harvard Law, clerkships, etc.) tends to be more "normie" than purely partisan. Furthermore, the confirmation process in the Senate acts as a check, making it difficult for truly unqualified candidates to succeed, especially if the president lacks a strong Senate majority. She highlights Justice Amy Coney Barrett as the first justice in U.S. history to receive no votes from the opposing party, underscoring the escalating partisanship of the confirmation process.
The Bork Legacy and the Conservative Legal Movement
Isgur argues that the rejection of Robert Bork’s Supreme Court nomination in 1987, famously leading to the coining of the verb "Borking," was a pivotal moment that inadvertently escalated the "Supreme Court forever war" and ultimately contributed to the overturning of Roe v. Wade. Before Bork, while nominations were sometimes rejected, it was not typically for ideological reasons. His rejection galvanized the Republican party, fostering a "never again" mentality and leading to a more aggressive, "balls to the wall" approach to judicial nominations. This, combined with the profound political impact of Roe v. Wade (which Isgur compares in its divisive power only to Dred Scott), solidified the Court’s role at the center of American political battles.
Despite the recent conservative "wins," particularly the overturning of Roe, Isgur observes that the conservative legal movement is currently experiencing internal disarray. The Federalist Society, initially a minority group fighting against perceived judicial activism, grew into a powerful social network. However, with conservatives now holding a majority on the Court, a "splinter cell" has emerged within the right. These factions, epitomized by figures like Senator Josh Hawley, question whether adhering strictly to originalism and textualism (as seen in Justice Gorsuch’s majority opinion in Bostock, extending employment discrimination protections to gender identity and sexual orientation) is serving their desired outcomes. This internal conflict raises the fundamental question for the conservative legal movement: will they prioritize process (like Scalia’s originalism, even when it led to outcomes he personally disliked, such as flag burning protection) or simply pursue desired outcomes now that they hold power? Isgur believes the institutionalist commitment to process will ultimately prevail, citing recent Harvard Federalist Society elections as evidence.
The Stagnation of Constitutional Amendments
Isgur laments the modern era’s lack of constitutional amendments, despite the framers’ intention for the Constitution to be a living, adaptable document. She attributes this stagnation partly to the Warren Court era, where, as Lyndon B. Johnson famously quipped, "Why amend the Constitution when Justice Douglas can do it in an afternoon?" The "living Constitution" concept, which allowed for evolving standards of decency to reinterpret the Constitution, offered a quicker, more satisfying alternative to the arduous supermajority process required for amendments.
Both Justices Antonin Scalia and Stephen Breyer, despite their ideological differences, advocated for making the amendment process easier, though not easy. Isgur includes her own proposed amendments in her book, focusing on reforming the amendment provision itself. She argues that strengthening the amendment process could garner bipartisan support as it wouldn’t inherently favor one side. The absence of a functioning amendment process means the Supreme Court’s decisions are often perceived as the "last word," rather than one step in an ongoing constitutional conversation involving Congress and the people. When Congress fails to act as a "pressure valve of compromise and stability," the Court’s counter-majoritarian role becomes distorted, and its decisions take on an outsized finality.
Chief Justice Roberts’s Legacy
Isgur offers an insightful perspective on Chief Justice John Roberts’s legacy, noting his initial aspiration to emulate Chief Justice John Marshall, who steered the Court through its most perilous early years. Roberts, she believes, views his primary task as navigating the Court through the current turbulent political waters, particularly in the face of presidential challenges to the institution, and restoring the separation of powers.
By one metric, Roberts’s stated goal of achieving more unanimous opinions and speaking with "one voice" has seemingly failed, with the Court maintaining a similar number of unanimous decisions but experiencing a proliferation of concurrences, reflecting individual justices’ desire to articulate their distinct legal reasonings. However, Isgur contends that the Court under Roberts has grown in legitimacy and credibility when it has asserted its independence against presidents who have challenged it. Roberts, understanding the long-term nature of judicial tenure (17 chief justices compared to nearly 50 presidents), can effectively tell any president, "I will outlast you." His legacy, she concludes, will be defined by his success in demonstrating that the Court is an independent branch of government that "does not rule for you or against you," but rather decides "who decides"—and increasingly, that answer is Congress, not the president.
Ultimately, Isgur’s Last Branch Standing serves as a compelling call for Americans to re-evaluate their relationship with the Supreme Court, urging a deeper understanding of its constitutional role and a renewed demand for accountability from the legislative and executive branches.
