Sarah Isgur’s Last Branch Standing: A Call for Renewed Legislative Power and Judicial Restraint
Podcast host and former GOP political operative Sarah Isgur has released her new book, Last Branch Standing, which challenges conventional anxieties surrounding the Supreme Court. Isgur argues that both liberals, upset by landmark rulings and perceived "stolen seats," and conservatives, frustrated by purportedly disloyal judges and executive orders being overturned, are misplacing their concern. Her central thesis posits that the Supreme Court is only truly fulfilling its constitutional role when it acts as a check on overreaching presidents and questionable legal doctrines. Instead, Isgur redirects attention to the systemic failures of the other two branches of government: an Executive Branch that has increasingly relied on executive orders as a primary mode of governance over the past two decades, and a Legislative Branch, Congress, which she contends has largely abdicated its constitutional duties.
Isgur’s professional background offers a unique vantage point, blending legal expertise with practical political experience. A graduate of Harvard Law School, she began her career with a judicial clerkship before moving into Republican politics. Her resume includes serving Ted Cruz during his campaign for Texas State Attorney General, directing communications for Carly Fiorina’s 2016 presidential bid, and holding a position at the Department of Justice under Jeff Sessions in the first Trump administration. Notably, her tenure in the Trump orbit reportedly concluded with her inclusion on the former president’s "enemies list," a development often attributed to prioritizing her independent judgment over unquestioning loyalty. In recent years, Isgur has transitioned to a prominent role in legal commentary, co-hosting the acclaimed podcast Advisory Opinions with New York Times columnist David French, overseeing SCOTUSblog, and contributing to The Dispatch, an independent media outlet. This diverse experience informs her perspective, offering an insider’s view tempered by a critical analytical lens.
The Court’s Intricacies and Institutional Dynamics
Last Branch Standing offers a thorough, yet accessible, exploration of the Supreme Court from a center-right viewpoint. Isgur demystifies the inner workings of the Court, providing insights into the intense environment and often overlooked contributions of the judicial clerks. She includes "humanizing mini-profiles" of the current nine justices, revealing personal details such as Justice Amy Coney Barrett’s preference for binge-watching Slow Horses and Justice Samuel Alito’s appreciation for the film Being There. Beyond these anecdotal glimpses, the book delivers a lively and incisive historical account of the Court, tracing the major cases that have shaped American jurisprudence. A crucial element of her analysis is the argument that the Court’s decisions are rarely simple 6-3 partisan splits, but more often reflect a nuanced 3-3-3 alignment among justices, challenging common perceptions of judicial politicization. Her detailed breakdown of each justice’s ideological and institutional alignment aims to surprise both casual and seasoned Court observers.
The process of writing the book itself yielded new discoveries for Isgur. She recounts encountering historical events such as the 1788 "Anatomy Riot" in New York, where grave-robbing and medical experiments led to civil unrest, and John Jay, a foundational figure, sustained a head injury that limited his contributions to The Federalist Papers. Such historical anecdotes, she explains, serve to illuminate the often-tumultuous origins of American legal institutions. Isgur also highlights the significant editorial process involved, including cutting approximately 80,000 words from her initial draft. The chapter on the Warren Court, a pivotal era in American legal history, proved particularly challenging to refine due to its complexity and length.
The Warren Court’s Legacy and the Rise of the Conservative Legal Movement
The Warren Court, Isgur contends, is not merely a historical period but the direct catalyst for the modern conservative legal movement. Its expansive rulings on civil rights, criminal procedure, and individual liberties, particularly in the 1950s and 1960s, spurred a conservative backlash that culminated in the founding of the Federalist Society in 1982. This organization, initially a small group of conservative and libertarian law students, aimed to counter the perceived judicial activism of the Warren Court by advocating for originalism and textualism—judicial philosophies that emphasize interpreting the Constitution and statutes according to their original public meaning.
However, Isgur also stresses that the Warren Court itself emerged as a response to preceding judicial philosophies and societal developments. She characterizes the Supreme Court as a "lagging indicator of our politics," meaning its decisions often reflect, with some delay, broader shifts in American political thought and societal norms. This cyclical nature of judicial interpretation and political reaction, she warns, should be a source of concern, as the current Court’s responses will inevitably shape future political and legal landscapes.
Congressional Abdication and Executive Overreach
A core concern articulated in Last Branch Standing is the growing power imbalance between the branches of government. Isgur laments that an increasingly powerful Executive Branch and a Congress that has largely abandoned its legislative responsibilities have placed an undue burden on the Supreme Court. She cites recent Supreme Court decisions, such as the striking down of President Joe Biden’s student-loan debt forgiveness program and former President Donald Trump’s tariff decisions, as examples of the Court’s attempt at "self-help." In these cases, the Court’s message, Isgur argues, is not to dictate policy but to reassert that major policy changes must originate with Congress, not the president.
This judicial pushback against executive overreach is intended to remind the American people that presidents cannot unilaterally "fix" complex national problems. Issues like immigration, climate change, or economic policy, she contends, demand legislative solutions forged through congressional debate and compromise. When headlines proclaim the Supreme Court striking down a president’s initiative, Isgur hopes the underlying message—that "only Congress can implement" such policies—will resonate with voters. This, she believes, could create the necessary incentives for the public to hold Congress accountable and demand a return to its legislative functions.
The current state of congressional gridlock, Isgur explains, is a direct consequence of shifting political incentives. Voters have increasingly punished members of Congress for compromising across the aisle, preferring ideological purity over legislative collaboration. This dynamic has effectively brought significant legislation to a halt, creating a vacuum that the Executive Branch has attempted to fill through executive orders and administrative actions. The Supreme Court’s recent rulings, by curbing executive power, are thus seen as an attempt to force Congress back into its proper constitutional role.
The "Politicians in Robes" Debate and Judicial Independence
Critics often accuse Supreme Court justices of being "politicians in robes," suggesting their decisions are driven by personal ideology rather than impartial legal interpretation. Isgur strongly refutes this characterization. She argues that the Court’s primary function is not to weigh in on "good policy or bad policy," but rather "to decide who gets to decide." In many instances, the Court engages in statutory interpretation, attempting to discern Congress’s intent in legislation. If the Court’s interpretation is deemed incorrect or undesirable, Congress has the power to amend the statute. This mechanism, however, is underutilized due to congressional inaction. Isgur emphasizes a fundamental misunderstanding among the public regarding the Court’s role, asserting that justices do not view their jobs as making policy but as interpreting law and the Constitution.
To illustrate the Court’s commitment to principle over partisan alignment, Isgur points to the consistency of decisions across administrations. The Biden student-loan debt forgiveness case, for example, shares a core principle with the Trump tariff case: both were instances where the Court checked executive power, regardless of the president’s party affiliation. The repetition of such rulings, particularly against a president from the same party that appointed many of the conservative justices, signals the Court’s intent to uphold the separation of powers.
Judicial Personalities and Institutionalism
Isgur employs various monikers to describe the justices, such as "institutionalist," "honey badgers," and "chaos monkeys," reflecting their distinct judicial philosophies and 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" rather than prioritize individual perspectives. She draws a comparison between Justices Neil Gorsuch and Brett Kavanaugh, both conservative, similarly educated, and having comparable career paths. Yet, Kavanaugh, she notes, is statistically more likely to concur with liberal justices like Elena Kagan or Sonia Sotomayor than with Gorsuch. This divergence, she explains, is not due to differences in their conservative leanings but rather their placement on a "vertical institutionalist axis," highlighting Kavanaugh’s greater inclination toward maintaining the Court’s institutional stability and consensus.
When asked about her favorite writer on the Court, Isgur unhesitatingly names Justice Elena Kagan. She praises Kagan’s early graduate school writing, which she found profoundly humbling, and specifically recommends Kagan’s dissent in the Andy Warhol case as a masterclass in legal writing.
The Ethics of Reporting on the Judiciary and its Consequences
The interview touches upon the controversial 2024 Rolling Stone report that featured secret recordings of Justice Samuel Alito and his wife. Isgur criticizes the practice of undercover recording, deeming it "gross and unethical." Her primary concern, however, extends beyond journalistic ethics to the broader implications for judicial independence and public service. She argues that such practices, along with public protests and even threats against justices, contribute to their increasing isolation. This isolation, she contends, discourages "normal people" from considering judicial service, potentially leaving the field open to "sociopaths" – individuals driven by self-interest rather than a commitment to public good. She highlights that prospective Supreme Court nominees often cite the intense scrutiny and impact on their families as reasons to decline consideration, a trend that could significantly diminish the quality and diversity of future judicial appointments.
Presidential Nominations and the Shifting Landscape of Judicial Confirmation
The discussion turns to the prospect of a president, particularly Donald Trump, nominating a "completely unqualified" individual like Jeanine Pirro to the Supreme Court. Isgur suggests that while such a possibility might be considered, the realities of the judicial selection process, particularly for Circuit Court judges, often lead presidents to choose candidates from a well-established "farm team" of legal professionals, many of whom have come up through conservative legal networks like the Federalist Society. These individuals, while conservative, generally possess traditional legal credentials. She points out that Trump’s Circuit Court picks, for instance, have largely been "super normies," with many having clerked for Justice Kavanaugh, a justice Trump has at times criticized.
The confirmation process in the Senate also acts as a significant check. Isgur highlights the increasing politicization of judicial nominations, noting that Justice Amy Coney Barrett was the first justice in U.S. history to be confirmed without a single vote from the opposing party. This trend suggests that in a politically divided Senate, confirming a Supreme Court justice from the opposing party is "very hard to imagine." However, Isgur expresses hope for a broader shift in American politics away from "reality-TV politics," which she believes could eventually diminish the intensity of partisan battles over judicial appointments. She emphasizes that life tenure for Supreme Court justices means that a president truly doesn’t know how a nominee will rule once confirmed, underscoring a critical aspect of judicial independence.
The "Borking" of Robert Bork and the Supreme Court "Forever War"
Isgur identifies the Senate’s rejection of Robert Bork’s Supreme Court nomination in 1987 as a pivotal moment that irrevocably altered the judicial confirmation process and initiated what she calls the "Supreme Court forever war." While presidents had historically seen nominees rejected, Bork’s rejection was unique in being explicitly based on ideological grounds. This event, Isgur argues, served as the "first brick on the road to overturning Roe v. Wade," igniting a "Remember the Alamo" rallying cry among Republicans. It led to the institutionalization of "war rooms," spin campaigns, and surrogate calls for Supreme Court nominees, transforming confirmations into highly partisan political battles. The subsequent contentious nomination of Clarence Thomas further solidified this "never again" mentality on the right, pushing both parties to play "for keeps" in judicial appointments. This heightened politicization, Isgur concludes, profoundly influenced the trajectory of American politics and the composition of the Supreme Court, ultimately contributing to the eventual reversal of Roe v. Wade.
The Federalist Society’s Evolution and Internal Divisions
The conservative legal movement, despite its recent successes, particularly with the overturning of Roe v. Wade, is not without its internal struggles. Isgur explains that the Federalist Society, initially a minority voice formed in response to the Warren Court, gained prominence by offering a robust social network alongside its ideological tenets. Its success, she argues, lies less in being a monolithic ideological cohort and more in its function as a community where members forge professional connections and personal relationships.
However, with conservatives now holding a majority on the Supreme Court, a "splinter cell" has emerged within the right. This faction, dissatisfied with outcomes that do not perfectly align with their desired policy goals, even when derived from originalist or textualist principles (such as Justice Gorsuch’s majority opinion in Bostock extending employment discrimination protections to LGBTQ+ individuals), seeks to prioritize outcomes over process. Senator Josh Hawley’s public criticism of the Bostock decision exemplifies this internal tension, questioning the value of originalism if it leads to unexpected results.
Isgur posits that the challenge for the Federalist Society and these splinter groups is whether they are "willing to stick by the process when you could just get the outcomes you wanted." She recalls Justice Antonin Scalia’s pride in his originalism leading him to outcomes he personally disliked, such as in the flag burning case, demonstrating a commitment to principle over preference. Isgur believes that most individuals, including those within the conservative legal movement, desire to "be the good guy in their own story" and maintain intellectual consistency, suggesting that the process-oriented approach will ultimately prevail over outcome-driven judicial activism. Recent internal elections at the Harvard Federalist Society, where the splinter group initially gained ground but later lost elections, support this hypothesis.
The Stagnation of Constitutional Amendments
Despite the Constitution being designed for amendment, the modern era has seen a significant decline in its use. Isgur attributes this stagnation, in part, to the legacy of the Warren Court and the "living Constitution" idea. As President Lyndon B. Johnson famously quipped, "Why amend the Constitution when Justice Douglas can do it in an afternoon?" This sentiment, Isgur argues, highlights a societal preference for instant gratification, making the appointment of justices to effectively "amend" the Constitution through interpretation seem easier and more satisfying than the arduous process of formal amendment, which requires supermajorities.
Justices Scalia and Stephen Breyer, despite their ideological differences, both acknowledged the need to make the amendment process "easier," though not easy. Isgur’s book includes her own proposed amendments, particularly one focusing on amending the amendment provision itself, which she believes could garner bipartisan support as it doesn’t favor one political side. She stresses that the Supreme Court was never intended to be the "last word." Historically, unfavorable Court decisions could be challenged through constitutional amendments (like the 16th Amendment responding to an income tax ruling) or by Congress passing new legislation (as with the Voting Rights Act). The current inability of Congress to act as a "pressure valve of compromise and stability" elevates the Supreme Court to a position of ultimate authority, transforming it from a counter-majoritarian check into the final arbiter of national policy, bypassing the democratic legislative process.
Presidential Intimidation and Chief Justice Roberts’ Legacy
The article also addresses former President Trump’s appearance at the Supreme Court during oral arguments, an act many interpreted as an attempt at intimidation. Isgur views this event as a display of weakness rather than strength. She recounts that Trump’s presence and criticisms were largely ignored by the justices, and he departed halfway through the arguments "without anyone noticing or caring." This, she suggests, demonstrated the Court’s independence and resilience, effectively communicating, "You came to my branch now, son," and undermining the intended intimidation.
Chief Justice John Roberts’ legacy, Isgur argues, is intrinsically linked to that of Chief Justice John Marshall, Roberts’ self-proclaimed "north star." Marshall successfully navigated the Court through its most challenging early period, a feat Roberts aims to emulate. Isgur believes Roberts sees his primary task as safeguarding the Supreme Court’s independence amid presidential challenges and restoring the constitutional separation of powers, particularly between the presidency and Congress, which she identifies as the most significant current constitutional threat.
While Roberts initially expressed a desire for more unanimous opinions and a more unified voice from the Court, Isgur notes that he has largely "failed" by that measure, with the Court producing a similar number of unanimous opinions but a significant increase in concurrences. However, she contends that the Court under Roberts has paradoxically "grown in legitimacy and credibility" when it has stood firm against presidential challenges. By consistently ruling against executive overreach, regardless of the president’s party, Roberts has reinforced the perception of the judiciary as an independent branch of government, separate from political influence. His legacy, therefore, may be defined by his steadfast defense of the Court’s institutional integrity against pressures from the Executive and Legislative branches, reaffirming its role to "decide who decides," and more often than not, pointing to Congress as the appropriate decision-maker.
