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- [00:04]
A
This is in conversation from Apple News. I'm David Green in for Shemitah Basu. Today, how the Supreme Court really operates. The Supreme Court is on summer recess after a busy term dropping major decisions on issues from presidential power to voting rights to birthright citizenship. And we are now starting to grapple with how their rulings will play out and potentially reshape the country as we've known it. And those decisions weren't easy for the court to make.
- [00:41]
B
These are hard questions of law, and they struggle and they vote and they write and sometimes the votes change.
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A
That is Sarah Isger. She is a legal analyst and a Supreme Court watcher.
- [00:53]
B
So it can be contentious and heated and all of those things, but they are colleagues. Justice Barrett has said it's an arranged marriage with no option for divorce.
- [01:04]
A
Sarah is the editor of SCOTUS Blog, the co host of the podcast Advisory Opinions, and the author of a book called Last Branch Standing, a potentially surprising, occasionally witty journey inside today's Supreme Court. She also represents the conservative viewpoint on a public radio podcast I host called Left, Right and Center. I always love to talking to Sarah, and I wanted to sit down with her to unpack what some of these decisions we've been seeing in the headlines actually mean and why, in her view, the court has actually limited presidential power more than people might think. Is there a dominant theme coming out of this term that you think we should all think about and remember as the headline from this last year in the Supreme Court?
- [01:50]
B
I think we may look back at this term as being the high watermark of the difficulty level for the Roberts court for the 21 years that it has existed and for however much longer he stays on the court. There's a few reasons for that. One, when Donald Trump comes into office, he really turns up the amp to 11 in terms of trying to run the government by executive order and moving his base to attack the court when they don't vote the way he wants, which if you go back and look, was basically on everything, everything for him, right? Alien Enemies act, federalizing the National Guard, tariffs, birthright citizenship, the Federal Reserve. He loses and he loses and he loses. Now, there are cases that he won, but those weren't things he cared about compared to tariffs and birthright citizenship, federalizing the National Guard. So you have that going on. You also have this trend line of presidents taking power from Congress that starts, I mean, it starts a hundred years ago, but it really picks up during the Obama administration and continues through Trump and then Biden and then Trump again and the court is more and more pulled into these culture war battle lines because Congress isn't actually doing its job. It's not doing the compromise and the negotiation and the hard work to produce stable legal outcomes. So presidents keep stepping in. And when presidents step in, they don't really have the authority to do that. And so then the court gets dragged in. And so you have the Roberts court feeling like the last word in all of these political fights. You have Donald Trump attacking the court from the right, including his own nominees and the chief justice, in very personal terms. And you have the left saying that it will now be a litmus test for their candidates about packing the court, about fundamentally changing what that institution is. And so I think this term was vitally important as a check on executive power against presidents. This one, the next one. But, like, if you're coming in as the next president of the United States, you would be an idiot to try to do everything by executive order, because they have now been very consistent in striking down executive orders from Biden on student loan, debt forgiveness to clean power, plan to eviction, moratorium to vaccine mandate, and then, of course, Donald Trump, birthright, citizenship tariffs, all of those things. So surely they've proven the point now, and we've seen a real downtick in those executive orders from Donald Trump. So that interim docket and all of that has. Everything has slowed down at this point.
- [04:36]
A
So this court, you're saying, even though it was an incredibly difficult term for all the reasons you're describing, you think has sent a message in some ways to both the other branches of government, like, you know, executive branch, like, don't think that you can run the country by executive order. A message to Donald Trump and future presidents and Congress, do your damn job. Because we're not going to be here to fix things all the time and don't want that role.
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B
Yeah. And I think the legacy of the Roberts court will really be saying, no, we don't amend the Constitution for you. That's your job, Voters, you know, we're not the last word in anything when we say something. You can amend the Constitution to override us or for the vast majority of these cases on immigration or temporary protected status, or when Mississippi can accept its ballots after election Day. Congress can pass a law tomorrow on any of those topics. So don't come crying to us. Hmm.
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A
I want to ask you about one thing that you brought up, the interim docket. Is that the same as what we've been calling the shadow docker?
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B
Yes, the shadow docket, the emergency docket. One Judge called it the bling docket. Why the bling docket versus the boring docket.
- [05:45]
A
Oh, okay, that's great. So the interim shadow docket and then the merits docket is kind of the regular docket where there are arguments. Is that the distinction that people should know? Okay. And just to be like Donald Trump has under his presidency, there have been many more interim shadow docket cases. Is that just because he's been sort of like in hyperdrive when it comes to executive.
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B
Yes.
- [06:09]
A
Executive orders, etc. That that's what has caused that. It's not that he has some secret passageway to John Roberts office to say, like, hey, I want to get more cases on the shadow docket. There's been a whole lot going on that needs to be decided quickly before we get to a final decision.
- [06:26]
B
Right. Federalizing the National Guard, Alien Enemies Act. All of those, at one point or another, were interim docket questions. And it's because of that initial flurry that Donald Trump signs when he first comes into.
- [06:38]
A
I mean, my understanding is there's not a lot of transparency. These are cases that can be brought by the White House getting the court to make a decision on a case. There are no or arguments. It can happen very quickly. I mean, this. On its face, this sounds really worrisome.
- [06:55]
B
Okay, so the term shadow docket was coined over a decade ago when there was this idea that the question of what the law would be while a case was pending in those lower courts. Nobody was noticing the fact that that was happening and that it could be quite predictive of how the Supreme Court would decide in the end. This was during the Obama administration on things like immigration and climate change. It wasn't deciding those cases. It was deciding whether Obama's executive orders could go into effect while those cases were still being litigated and going up to the Supreme Court. So fast forward to now, there actually are quite a few of those cases that do get briefed and argued before the court. So all they're telling you is the likelihood of how they would vote eventually.
- [07:45]
A
Oh, I see. So a lot of these shadow docket cases, they do make a decision, but it's not the final word.
- [07:51]
B
None of, like. The whole point is that it's never the final word. That's not to say they're not important. Right. The shadow docket decision, the interim decision on birthright citizenship, was wildly important. If they had said that that executive order could go into effect while the case had been pend, that would have been 18 months, where people born in the United States would not have automatically had citizenship.
- [08:15]
A
Wow. I want to get to sort of where the court is today. I know you have talked a lot about the 14th amendment and this court being in kind of a long journey to define the meaning of the 14th Amendment and how it will play out in some of the biggest legal questions of our day. I mean, the 14th Amendment comes up in the birthright citizenship case. It comes up in the trans athletes case. For people who don't understand what that amendment is. What, what is its true meaning and why is that true meaning up for debate in our country and our society right now?
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B
Far be it from me to tell you what the true meaning of the 14th amendment is. That feels like asking what's going on.
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A
Even this court can't even prove that
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B
it's in your heart. But I can tell you some of the history and why this is hard. So the Civil war ends in 1865 and immediately they ratified the 13th amendment to abolish slavery. And then the 14th amendment in 1868 is ratified and it has both the all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and the states in which they reside. It also has the equal protection clause. And we're going to spend the next hundred and fifty years arguing about exactly what the purpose of this was. And on the conservative side, you'll hear a narrative about the 14th Amendment that it is the second founding of the United States. It washes clean the sins of slavery that came before it. And we start over finally with a colorblind Constitution where no man is greater or lesser because of the color of his skin. On the liberal side, it's a different narrative. The 14th Amendment is a remedial measure. It is not meant, nor could it ever wash away the sins of slavery. It is meant to help now fix the sins of slavery. And that's going to include race conscious laws to take into account the effects, the incidents and badges of slavery that had been in existence. And so the history of the 14th Amendment is hard and it's hard to even know where you're supposed to look. Is it the debates about ratifying the 14th Amendment? Because you can kind of find someone saying whatever you want in those debates
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A
I think about and you tell me if I have this understanding. But like, you know, the court just said that states can have sports for biological women that is legal under Title 9. The liberal justices on the court tried to use the 14th amendment saying that if you are a trans woman athlete, you should under equal protection have the Right to take part in women's sports. So that right there is another example of sort of a difference of opinion on what the 14th Amendment means and how it should be applied to one of the biggest cultural questions in our society right now.
- [11:13]
B
Let me nuance what you just said a little bit. Okay, so what the majority said, and this was 6, 3 along ideological lines. So you have the conservatives versus the liberal justices. The six conservative justices said that the equal protection clause does not prevent states from having all biological female sports, and that Title 9 didn't prevent it either. But the next big case on this will be whether, in fact, Title 9 requires states to ban biological males from competing in women's sports. But right now, we're just talking about may states ban biological males from competing in women's sports. And what the majority says is, yes, states may do that. What the dissenter said, the three liberal justices didn't actually say that states couldn't ban transgender women from playing on biological women's sports teams. What they said was that there should be some heightened scrutiny. Like, for instance, if there were evidence that the states passed these laws with animus, meaning they did it specifically to hurt transgender individuals, that we should send it back to the courts to figure out why they passed these laws, whether it's narrowly tailored. Meaning, like, if this is a third grade soccer team, do we really. Is there really a good reason to say that the kids can't play on the girls team? So it wasn't quite the disagreement that everyone says it was. The dissenters had more of a nuanced take of like, let's send it back with some instructions on how to think about these laws. And the majority was like, no, these laws are sort of de facto okay. But it wasn't like one side was like, let them play. And one side was like, no, they can't play.
- [12:54]
A
Which actually brings up something that you have thought about and written a lot about in your book, which is we too often oversimplify the way we identify the justices on this court. It would be very easy to look at a decision like that that was 6, 3 on a question of trans women. Athlet. And say, like, you had the three liberals just are fighting for the rights of trans women to play in women's sports. And the six conservatives are saying no, Even though this was six to three, you're saying there was nuance, and you think there are other ways that we should be thinking of these nine justices. And I love the names that you've given to them. There are three deciders There are three conservative honey badgers, and there are three lonely liberals. Who is in those different camps, and why do you identify them in that way?
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B
I'll pick a justice from the deciders and from the conservative honey badgers and compare the two. So Justice Kavanaugh and Justice Gorsuch, both sons of powerful D.C. mothers before there was a women's restroom in the Senate. They're brought up in sort of oddly similar ways. They both go to the same high school. They're in the same history class with the same teacher, who, by the way, is still teaching at Georgetown Prep. Congrats, Mr. Oaks. God only knows how many more Supreme Court justices you have coming down the pike also.
- [14:10]
A
I love that you that. But yes, go on. Yes.
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B
They both work in the W administration and get appointed to the circuit court, and then they both are appointed by Donald Trump to the Supreme Court within 18 months of each other. And they're both, you know, Federalist Society lab creations that were grown in petri dishes with good hair.
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A
So we're thinking they would just be the same person, basically.
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B
They should be.
- [14:32]
A
Yeah.
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B
There's ever. I mean, we could not have done
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A
it straight down to the good hair.
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B
They were separated at birth. Last term, Justice Kavanaugh only agreed with Justice Gorsuch 50% of the time. He was more likely to agree with Justice Kagan than with Justice Gorsuch.
- [14:50]
A
That's amazing.
- [14:51]
B
This term, once again, Justice Kavanaugh was less likely to agree with Justice Gorsuch than any of the other Republican appointed justices. And so you have to ask yourself, okay, these guys should be the same. They're so similar. Why are they voting so differently? And my answer to that is that Justice Kavanaugh likes sports and team sports, and Justice Gorsuch is extremely athletic, but he likes solo stuff like skiing and hiking and running by himself. And this is their view of the court. Justice Kavanaugh thinks of it as a team of nine. It's the long arc of history. He's on the same team as the guys who were on the court 100 years ago and the guys who will be on the court 100 years from now, whereas Justice Gorsuch is like, I'm just here to say what Neil thinks. That's all I do here. Just Neal. And so you're gonna see a lot more separate opinions, solo writings from Justice Gorsuch than you ever would from Justice Kavanaugh. And those types of differences exist across the Supreme Court, so that Justice Kavanaugh is actually much closer to Justice Kagan in terms of how they think about the role of their jobs on the Court, the role of the Court itself. Whereas Justice Gorsuch, much closer to Justice Jackson on that same axis.
- [16:06]
A
Wow. Okay, So a lot of these, a lot of these oversimplified definitions of who these people are, really, it takes away from us fundamentally really understanding what this group is about.
- [16:16]
B
Well, in last term, 91% of the cases were not divided 6, 3 along ideological lines. This term the number jumped a lot. 22% of the cases were decided 6, 3 along ideological lines. But that still means 4 out of 5 cases weren't. Many of them were ideological in this really long decades running jurisprudential sense. But again, if you only think about the next election or the next Congress or polling, you're gonna miss what's happening at the Supreme Court because they don't think in two year increments. They don't care when the midterms are. You know, Chief Justice Marshall made it through Jefferson trying to impeach him, and then Jackson trying to ignore the court. And the whole time he's like, I'm gonna outlast you guys. You're here for four or eight years max, I'll be here for 35. And you see the same attitude of Chief Justice John Roberts where he's like, donald Trump is a blip on my radar. It's a challenge for sure, but I'm thinking about the presidency, not the President.
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A
So what, what is your message to more left leaning people in the United States who look at the court and say there are only three justices who are liberals who represent like the way I think. And that deeply concerns me, especially with, with someone like Donald Trump in office.
- [17:31]
B
Yeah, I get it. There's several different things I'd want to point out. One long arc of history. When FDR left office, there were nine appointees by Democratic presidents. As recently as 1992, there were eight appointees by Republican presidents. The pendulum will swing again. So don't destroy an institution because of the here and now, because you live in two year election cycles. This is how the Court works. You want it to be counter majoritarian. Second point, and this is a point that Justice Kagan makes all the time. And I think it is, it has been convicting for me. And it's about intellectual humility. And I said she was this high institutionalist, right, that like she's as much about the guys 100 years ago as the guys a hundred years from now. And her point is, when I read a case that I think they got wrong I have to ask myself, are they wrong? Or is it possible I'm wrong? How sure am I? Why am I sure that I'm the one who's right? Why do I think history ends with me? And you look back at Plessy versus Ferguson, it was seven. One upholding Louisiana's separate Railroad Car Act. It ushered in an era of Jim Crow laws. It changed the course of American history. Seven justices got that wrong. America got that wrong. Right. Culturally, everyone was like, yeah, obviously you can uphold these laws. And so anytime, you know, you're looking at a Supreme Court decision and thinking they got it right or they got it wrong, I would just keep Plessy in my heart. Why are you so sure that you're the one who's right? Maybe you are right and maybe they're wrong. Maybe they're right and you're wrong. Maybe you're all wrong. And Frederick Douglass writes a letter to John Marshall Harlan, the sole dissenter, who, by the way, like fascinating life, also not some moral paragon, who you always knew would do the right thing when given the chance. And Roger Tawny, the guy who writes the Dred Scott decision, sort of the reverse, actually. A very moral guy who had freed his slaves and paid them all lifetime pensions, thought slavery was an abomination. And here he gets this moral question so horribly wrong. Frederick Douglass writes this letter to John Marshall Harlan and says, one man with God is a majority. And I guess I try to hold that in my heart, too, especially when you're on the losing side. The long arc of history is very long. And every justice now signs their name into John Marshall Harlan's Bible, the flyleaf of his Bible. When they take their oath of office, it is John Marshall Harlan's portrait that sits above them in conference. When it's just the nine of them, no one else is allowed in that room when they vote on cases. So they are constantly being bombarded with reminders about that long arc of history. And we should have that, too, because having a counter majoritarian branch of government is how you get a First Amendment. It's how you get criminal justice protections. Donald Trump will be gone soon. You need the court to be around for a long time.
- [20:29]
A
Biggest case that you're looking for in the next term,
- [20:35]
B
There's a lot of big ones. We've got the assault weapons ban, whether states can pass those types of weapons bans. We've got one on parental rights out of Washington, on what states can do with runaway teens and whether they need to inform their parents about giving them Gender affirming care, for instance, and whether the parents get to sue about that. There's one on religious liberty. Colorado has a universal pre K program, but they exclude Catholic schools. And sort of how we think about the establishment clause and the free exercise clause which are in great tension together. But I think it kind of makes America a beautiful place to have both an establishment clause and a free exercise clause. It's one of my favorite parts of the Constitution. Yes, I have favorite parts of the Constitution. I'm really cool at cocktail parties.
- [21:28]
A
For anyone who reads your book Last Branch Standing and everyone should, the conclusion is titled how to Stop Worrying and love the Court. Why do you love the court? And why should all of us love the court?
- [21:43]
B
I have been contrarian since a pretty young age. I love an anti authority figure everything. And that's what the court is. It's counter majoritarian to the bare and fleeting political majorities of our time. It's counter majoritarian to Congress when it says Congress has done something unconstitutional. And by God, it's counter majoritarian to a president who says I'm just gonna run this government the way I want to and we're gonna transform this into a parliamentary system because I said so and so to say no to that with no army, with no money and to win and I mean through history, right? Forget Donald Trump again. Think Jefferson who hated the court and wanted them to be partisan on his side. Jackson, who's like, fine, I'll just ignore the court and start the trail of tears. Lincoln wanted to defy the court. I mean he ran in 1860 against Dred Scott. And FDR wants to pack the court if they don't rubber stamp his New Deal legislation. Nixon won't turn over the tapes. He at least threatens not to. That is a cool institution. And I'm attracted to that kind of contra weak power that is a moral force even when they're wrong. And my God, they've gotten some big things wrong. We talked about Plessy versus Ferguson, the wave of lynchings that comes after that Buck v. Bell where they uphold eugenics as part of this progressive era, you know, experiment. They think the at the end of history and that they can just perfect humans through government. E.W. korematsu where they are interning Americans just because of who their parents or grandparents are. They've gotten big things wrong. But isn't that the story of America, y'? All? We get big things wrong and we continue on to fix them down the road. It's not that we're supposed to have it all right today it is to make a more perfect union. More perfect, not perfect as we keep going. And I think having a counter majoritarian branch is a beautiful part of that experiment.
- [23:50]
A
Sarah, I love talking to you about this stuff. I learned so much. You're the best. Thank you.
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B
Thank you.
- [23:59]
A
We will include a link to Sarah Isger's book Last Branch Standing on our Show Notes page. And every weekend you can find new episodes of of Apple News in conversation in the Apple News app. Just tap on the audio tab, the little headphones at the bottom to find.