Is the Supreme Court the “Last Branch Standing?”

CHRISTIANE AMANPOUR: We turn now to the highest court in the United States. There are nine Supreme Court justices, six of whom were appointed by Republicans and three by Democrats. And since Trump 2.0, they have made several high- profile and controversial decisions. On Wednesday, a ruling weakened the Voting Rights Act, a historic civil rights era law, by striking down a black congressional district in Louisiana. It could dilute the political power of minority communities. But despite the court drawing worldwide attention, our next guest says there is a lot we get wrong about it. Attorney and former Department of Justice spokesperson Sarah Isgur attempts to bust the myths and misconceptions in her new book, “Last Branch Standing.” And she’s joining Walter Isaacson to discuss looking beyond partisan politics and finding solutions for a court in crisis. And just to note, they spoke just before Wednesday’s redistricting ruling.

WALTER ISAACSON: Thank you, Christiane. And Sarah Isgur, welcome to the show.

SARAH ISGUR: Thank you so much for having me.

ISAACSON: In your new book “The Last Branch Standing,” you say the Court is — the Supreme Court is the only one of the three branches of government that our Founders would fully recognize. What do you mean by that?

ISGUR: At this point, Congress has, you know, slunk off into the distance. We don’t hear from them much anymore. And the president — presidents from both parties — for the last 15, 20 years have been running the government through executive order. Again, something that was James Madison’s very definition of tyranny. And so the Supreme Court is the branch the Founders would still recognize doing its job. But we, the American people get frustrated, blame them, when in fact, oftentimes who we should be blaming is the president for acting without Congress or Congress for not doing their job.

ISAACSON: Critics of the Supreme Court say we wouldn’t have wanted unelected officials to be making so many of these decisions that they should be made by Congress. Do you think the Founders intended it to be this way?

ISGUR: No, the Supreme Court was never supposed to be the last word, is not supposed to be the last word. When the Supreme Court makes a decision, throughout our history, it was supposed to be part of an ongoing dialogue with the representative branches. Congress can pass a law the next day on cases pending this term: whether Mississippi can have mail-in ballots come in five days later, whether Donald Trump can deny someone asylum at the southern border. Those are just questions of statute. The Supreme Court will tell us what they think the statute means and Congress can change it the next day as they did with the Voting Rights Act or the Lilly Ledbetter Act. Or the Supreme Court makes a decision, and we, the people — through a super majority — can ratify the Constitution as we did after the Supreme Court’s decision that led to the 16th Amendment for the income tax. The problem is that we voters do not believe Congress will do their job. We do not believe we have the power to amend the Constitution anymore. So the pressure builds on the Supreme Court, the counter majoritarian branch of government, that is not supposed to be responsive to majority factions and whims.

ISAACSON: I wanna read you something, that you wrote “It’s actually easier to convince voters that the opposing candidate is evil than it is to tell them that he’s wrong. Partisans seem to crave the dopamine hit they get from the outrage. It’s the entire business model of some cable news stations.” Explain how that’s affected the Court.

ISGUR: We are in this moment of negative polarization where candidates aren’t looking to convince you that they’re right on policy — or even better. What they’re trying to convince you of is that the other side is a threat to your very existence — your family, your church, your way of life — so that you have no choice but to vote against them. Against that backdrop, of course we see our institutions failing in approval numbers because those partisans will tear down anything that is a threat to their power.

So yes, the Supreme Court is up against huge headwinds right now. Because each side, both tribes, want to use the Supreme Court to batter the other. You see the right complain that the Supreme Court isn’t loyal to Donald Trump. You see the left complain that the Supreme Court is just a partisan vehicle of Donald Trump. When in fact, yes, the Supreme Court justices have ideologies. They don’t map perfectly onto our partisan ones. But like all of us, they have priors and beliefs.

But they also have institutionalism — this other spectrum that I refer to. Where Justice Kavanaugh is actually a lot closer to Justice Kagan, a Democratic appointee than he is to Justice Gorsuch, a fellow Trump appointee. And if you’re not willing to take the Supreme Court on the terms that the justices view themselves, the way that they decide cases, and you just think of them as being part of our partisan fights, you’re gonna get about 90% of the cases wrong in any given term.

ISAACSON: And yet we think of it as a 6-3 court, six conservatives, three liberals. In your book you talk about it really being a 3-3-3 court. Explain that to me.

ISGUR: That’s exactly right. The data just doesn’t bear out the six-threeness of the Supreme Court. Last term, only 15% of the cases were 6-3 along ideological lines. The exact same number — 15% — were actually 6-3 reverse ideological lines, with all of the liberals in the majority and only conservative justices in dissent. Of course, the most likely outcome of any Supreme Court case, unanimous.

ISAACSON: Well, you talk about the three, which are the three that can go either way. It seems like Roberts is the keystone of that group. How does that give him more control of the court than we thought he would have?

ISGUR: It’s interesting. On the one hand, the Chief Justice only has one vote, same as all of the other eight justices. But when it comes to the court itself, he can assign the majority opinion when he’s in the majority. And that of course allows you to narrow or widen the aperture of any given opinion. In that sense, he is the most powerful justice on the Supreme Court in modern American history. Even though Justice Kavanaugh is slightly more likely to be in the majority in any given case, this really is the Roberts Court.

ISAACSON: So the big case you’re looking at is the one called birthright citizenship. Explain exactly what that is.

ISGUR: Absolutely. So Donald Trump, on his first day in office signs an executive order saying that in fact, no, someone born in the United States to a mother who was here illegally and a father who did not have citizenship or permanent residence, is not a citizen of the United States. That has not been the policy of the United States going all the way back to the 14th Amendment ratified in 1868, which says, all persons born in the United States and subject to the jurisdiction thereof, are automatically citizens. The question is what that subject to the jurisdiction thereof means. And so it was interesting in oral argument, you actually saw the liberal justices making very conservative originalism, textualism arguments and you saw the administration making the more considered liberal arguments about evolving facts, evolving standards of the political majorities. And so again, you see sort of that switch of hats that maybe proves the point that what we think of as conservative or liberal in law world doesn’t map onto our partisan politics these days.

ISAACSON: One of the people that seems to be, I’d say a swing vote is somebody from down here in New Orleans, Amy Coney Barrett, explain how she fits into your axes.

ISGUR: I describe her like the Dos Equis guy, the most interesting justice in the world. She doesn’t fit the mold for even how to become a Supreme Court justice in this point where we have narrowed the resume path so incredibly. She’s the only justice on the Supreme Court to have gone to a public law school. She’s one of very few justices to have not worked in the executive branch. She’s a law professor through and through and the first mother of young children to ever work at the Supreme Court. So she clearly comes with a different perspective. She’s the conservative justice most likely to vote against the Trump administration. You see that frustration among the conservatives and Republicans who want the court to reflect the politics of Donald Trump. She’s not there for that. She’s doing a different project, something that legal scholars would call formalism.

She is the justice who is going to insist that you cross your T’s and dot your i’s before you ever get to the Supreme Court.

ISAACSON: So what does that mean when she’s making a decision, say on birthright citizenship?

ISGUR: Obviously we’ll see, but at this point the question is really how Donald Trump loses not whether he’s going to lose if you listen to the oral argument. It would be interesting to see whether Justice Barrett, for instance, doesn’t want to reach the question of the 14th Amendment and what that language means. But in fact, again, goes sort of earlier on in the case, if you will, narrower to say, Look, Congress has this power. They passed a statute in 1952 and they didn’t contemplate the president being able to define any of this. And the language that they used clearly ratified this idea that everyone born in the United States — not born to a diplomat, let’s say — is automatically a citizen of the United States. We’ll see whether she goes with that narrow decision or whether in fact there are enough votes for that broad 14th amendment: Nope. The Constitution itself says that everyone born in the United States is automatically a citizen unless they’re born to a diplomat or someone not subject to the legal jurisdiction of the United States.

ISAACSON: It used to be in my memory that conservatives were always railing against activist judges who tried to make law from the bench. And now whether it’s birthright, citizenship or many other cases, it seems to be — but correct me if I’m wrong — the more conservative justices that are not going back to the originalist words but are trying to in some ways make their own law.

ISGUR: I think that our current justices actually kind of are a lagging indicator of our politics. They tend to reflect these legal moments, you know, frozen in amber from 10, 20 years ago when they first went on the bench. For, you know, Justices Thomas and Alito, that’s back to the late eighties and early nineties. But you are seeing that change in law students, in law professors who are on the right and that will be reflected in the judiciary soon enough where, for instance, we’ve heard about something called “common good constitutionalism.” This is really the political right’s answer to the Warren Court’s living constitutionalism. This idea that it should be up to judges and justices to make decisions that are for “the common good.” And that common good is defined by the conservative political majority at the time. Of course it didn’t work very well for the Warren Court. You could argue that that’s how Richard Nixon got into office. It certainly gave birth to the Federalist Society in 1982. I describe in the book that the Federalist Society is the second most successful political organization in United States history. And so to have an active —

ISAACSON: What, what’s what’s first, by the way?

ISGUR: Mothers Against Drunk Driving, I think is that is…

ISAACSON: Okay, thank you. Go ahead.

ISGUR: …the first most successful. But you see this idea of judges and justices making the law for the American people, but being unaccountable to any sort of elected democratic process, causing these political backlashes throughout American history. Dred Scott, Plessy, Korematsu, Buck v Bell — a case that maybe isn’t a household name, but actually upheld eugenics and mandatory sterilization by the state of Virginia. These are majority common good decisions by the Supreme Court that of course are a stain on our country’s history.

ISAACSON: How much control do presidents have over what the judges and justices they appoint will do?

ISGUR: The presidents in the past have often appointed political rivals to the Supreme Court. The Brown versus Board of Education Court looks so different than the types of justices we even consider today. Five of them had held elected office. Two had been Attorneys General. Eight of course had served in the military. Five had gone to public schools and one in fact had never even gone to law school. Today, six of the justices clerked on the Supreme Court, three for the justice that they then replaced. We have narrowed that resume track so much. I think it is actually a problem for the legitimacy of the court moving forward that I discuss in the book. Presidents now really only considering ideology, not considering that breadth of experience. And we saw, for instance, Sandra Day O’Connor had an enormous influence on the Supreme Court bringing civility after we had sort of the scorpion culture where the justices all loathed each other. Sandra Day O’Connor single-handedly changed that by joining the Supreme Court. Justice Kennedy, the swing vote, he was a solo practitioner in Sacramento. So I really advocate for broadening the scope of who we look at for these positions as well.

ISAACSON: You say that Justice Sandra Day O’Connor and changed the tone of the Court made it more civil. I think, and correct me if I’m wrong, she was the last person on the court to actually have held elective office. Is that something we should go back to a bit?

ISGUR: That’s exactly right. There is a trade off to be had here. I would like people who have spent serious amounts of time and understand the inner workings of the legislative branch at a moment when Congress is flailing as a branch. On the other hand, it is absolutely the case that by having these, you know, almost professional Supreme Court justices join the court, we have the most clear writing probably of the top 10 writers to ever serve on the Supreme Court. Nine of them are on the court today. By the way, I personally think Justice Elena Kagan is probably the best writer of the best writers we’ve ever had on the Supreme Court. That’s going to be a trade off if you have someone who maybe has built other skills over time. But yes, I think some diversity of experience on the court is only going to be a good thing, even if it’s little bits of diversity like we see with Justice Barrett.

ISAACSON: People say this is the most controversial court, the opinion of the court and public opinion has gone way down. Put it in the context of American history. Is this the most controversial court?

ISGUR: Not by a long shot. That was probably John Marshall’s court in 1801 when Thomas Jefferson wins the first partisan election in American history. If you remember, it was the first time that we had the peaceful transfer of power when John Adams stepped away after losing that election. Thomas Jefferson’s party had called him a hermaphrodite. They had said horrible things about each other, and it was John Adams appointment of John Marshall to the Supreme Court that really makes it, for the first time, an independent counter-majoritarian branch of government. Jefferson didn’t like that. He tried to impeach Samuel Chase, one of the justices on the court. And he had the super majority in the Senate to do it. Nevertheless, he lost that vote. The senators believed he was going to impeach John Marshall next. And this is what creates a branch of government that can stand up against presidents that can protect the First Amendment, unpopular speech, against majorities that is able to create a process for criminal defendants who of course are deeply unpopular with American majorities. And it really is, I think, a proud moment in American history, the creation of the Supreme Court as we know it.

ISAACSON: You talk about Chief Justice Marshall creating really the independence of the Court despite what the President then wanted. There’s a probably apocryphal quote at one point, I think it’s President Jackson was said to have said, alright Chief Justice Marshall has made his decision now let him try to enforce it. Whether or not Jackson said that, that sentiment has been there. Do you worry about that sentiment being here now, if the Supreme Court tries to make a decision about an election that President Trump doesn’t agree with, that the President might defy the Supreme Court?

ISGUR: The Supreme Court has faced this again and again, as you note I couldn’t find the evidence that Jackson said exactly that in my research, but he did say something quite close to it. He said, This decision has fallen stillborn. And of course that justice — President Jackson’s attitude about that Supreme Court case led to the Trail of Tears. President Lincoln wanted to ignore the Supreme Court. FDR wanted to pack the Supreme Court. He had a speech that he drafted, telling the American people that he was going to ignore a Supreme Court decision if they came out the other way. President Nixon wanted to ignore the Supreme Court. So this is nothing new. But what’s interesting is time and time again, either presidents in fact do obey the Supreme Court, as we saw with President Trump in the tariffs case. He took those tariffs down right away. Or they ignored the Supreme Court at the peril of history. Nobody enforced Brown versus Board of Education for a decade. We had the exact same levels of segregation in our public schools, even though the Supreme Court decided that case unanimously in 1954. But the Supreme Court is looked on with that decision as being the best of our Supreme Court history. And so I think it is a dangerous game to play with the Supreme Court. And so I’m not too worried about it.

ISAACSON: Sarah Isgur, thank you so much for joining us. Appreciate it.

ISGUR: Thank you so much for having me.