Our Most Functional Branch

Summary

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Podcast Summary: Armstrong & Getty On Demand – "Our Most Functional Branch"

Date: May 27, 2026
Guest: Sarah Isger – Editor at SCOTUSblog, host of the Advisory Opinions podcast, legal analyst for ABC News, and author of Last Branch Standing

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Episode Overview

In this episode, Armstrong & Getty welcome legal analyst and author Sarah Isger to discuss the role, reality, and public perceptions of the Supreme Court. Drawing from her new book Last Branch Standing, Isger unpacks why the judicial branch is arguably the most functional in the US government, addresses widespread myths about partisanship on the Court, and explains why modern political dysfunction has shifted focus onto the judiciary. The conversation is lively, myth-busting, and geared towards making legal complexities accessible and entertaining for listeners.

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Key Discussion Points & Insights

1. The Supreme Court as the "Last Branch Standing"

• Main Argument: The Supreme Court is our most functional branch, but it is not and should not be the ultimate word in major societal debates—change remains in voters’ hands.
• Quote: “If you don’t like something the Supreme Court decided, we can amend the Constitution … and most of the decisions from the Supreme Court are actually just up to Congress.” (Sarah Isger, 04:48)
• Timestamps: [04:48–05:48]

Details:

• Amendments were historically a common response to Supreme Court decisions.
• Many issues (e.g., gerrymandering) are Congress’ responsibility—but Congress rarely acts because legislation requires compromise, which is politically risky.

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2. Why Is There So Much Focus on the Supreme Court Now?

• Historic Shift: The move from congressional negotiation to governance by executive orders (notably during the Obama administration) has sidelined Congress and placed new weight on judicial decisions.
• Quote: “Congress can deal with [things] today. We just don't expect them to … and we continue to vote for people who have no interest in actually legislating…” (Sarah Isger, 04:48)
• Timestamps: [06:04–07:11]

Details:

• Executive branch actions are easier and more politically satisfying for parties, but short-lived and subject to court reversal.
• The inability or unwillingness of Congress to address contentious issues drives more litigation and public focus onto the courts.

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3. Is the Supreme Court a “Partisan, Right-Wing Trump Court”?

• Data Disproves Common Narrative:
  • Only 9% of Supreme Court cases last term split along pure partisan lines (6–3).
  • 42% of cases were unanimous.
  • The Court is overturning fewer precedents and taking fewer cases than predecessors.
  • Trump lost more cases before the Supreme Court than any president in history—below 50% success rate.
• Quote: “If that's how you're predicting the outcome of Supreme Court cases, you're going to get it wrong more than 90% of the time.” (Sarah Isger, 08:27)
• Timestamps: [08:27–10:14]

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4. Notable Judicial Dynamics

• Surprising Pairings: Justice Kavanaugh agreed with liberal Justice Kagan more often than with fellow conservative Gorsuch.
  • Kavanaugh: “a high institutionalist”—plays team sports (consensus builder).
  • Gorsuch: “a soloist”—more independent, individualistic approach.
• Quote: “Justice Kavanaugh is a high institutionalist. He thinks of this as a team sport... Justice Gorsuch, he's a soloist. He likes skiing and running, solo sports ... and why Justice Kavanaugh is the justice most likely to be in the majority.” (Sarah Isger, 13:37)
• Timestamps: [13:37–14:35]

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5. Declining Faith in the Court & Partisan Pressures

• Current Standing: The Supreme Court is still more popular than Congress or the President.
• Warning Signs:
  • Getting rid of the Senate filibuster has led to judicial appointments with no bipartisan support—could result in more extreme, partisan judges.
  • “Forum shopping” by litigants is eroding public perception of judicial fairness.
  • “The more we pull the courts into our partisan politics, negative polarization … we cannot have the courts reflect that.” (Sarah Isger, 15:00)
• Timestamps: [15:00–16:19]

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6. What Does the Supreme Court Actually Do?

• Clarification: The Court’s job isn’t to determine the best policy, but “who gets to decide.”
• Quote: “The Supreme Court’s job is never to say what the good policy is. It is to say who gets to decide.” (Sarah Isger, 16:50)
• Example Provided: On book bans in schools, it’s not about whether the book is appropriate but which level of authority makes that call (librarian, parent, mayor, state, or Congress).
• Timestamps: [16:50–17:58]

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7. The Problem with Issue Polling

• Key Points:
  • Election polling can be checked against results, but there’s no equivalent reality check for issue polling.
  • Issue polls are often misleading, capturing what people think they’re supposed to say or reflecting their party preference—not their detailed view on an issue.
  • “Sometimes people hear a question...but what they’re answering...is, who do you support for president?” (Sarah Isger, 19:59)
  • Poll question wording and lack of details skew results.
• Memorable Moment: Isger likens herself to "Rain Man" when hearing dubious poll numbers: “That's not a real poll, that's not a real poll. Don't do it.” (Sarah Isger, 21:50)
• Timestamps: [19:53–21:59]

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Notable Quotes & Moments

• On Public Misunderstanding of the Court:
  “Both sides only care about outcomes, really.” (Sarah Isger, 16:50)

• On Modern Political Dysfunction:
  “We keep electing people who are really good at putting out Instagram reels yelling about how the other side is the problem.” (Sarah Isger, 04:48)

• On Supreme Court Myths:
  “First of all, I guess we'd expect Trump to actually win some cases right now. Every major policy question that has come before the Supreme Court, he has lost.” (Sarah Isger, 09:20)

• On Issue Polling:
  “There’s no way to grade it. So that’s a big problem, right?” (Sarah Isger, 19:59)

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Conclusion

The episode offers an accessible and energetic tour of the realities of the Supreme Court as outlined by Sarah Isger. Bringing insider knowledge and sharp commentary, Isger emphasizes that while the Court is under unprecedented political scrutiny, much of the criticism and perceived dysfunction is misplaced—rooted in broader issues of legislative gridlock and partisan media narratives. The Supreme Court remains more functional and less partisan than its critics contend, and Americans have more agency than they often believe.

Recommendation: Armstrong & Getty highly commend Isger’s book Last Branch Standing for anyone who wants to understand the workings and misperceptions of today’s Supreme Court.

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Transcript

[Podcast Host 1]

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[Armstrong]

We've been wanting to get Sarah Isger on for a long time. First became aware of her on the Dispatch and the podcast stuff there and man, anytime any big legal story breaks I go to her Twitter feed or wait for the podcast she does with David French advisory opinions to get it laid out and couldn't be happier to have her today.

[Getty]

Yep, we're both big fans of Sarah Isger, editor of scotus, blog, host of the legal podcast Advisory Opinions, legal analyst for ABC News, and author of a fabulous new book, Last Branch Standing, a potentially surprising, occasionally witty journey inside today's Supreme Court. A book so timely and important, I believe it should be a compulsory read for every American. Not sure how that squares with the First Amendment. Sarah, welcome. How are you?

[Sarah Isger]

I'm great. Thank you guys for having me.

[Armstrong]

You betcha. Before we let you lay out the book, and here's the deal I'm gonna make with you. Even though we have no leverage, you're like the Hormuz straight. We have no leverage over you. But we're gonna let you and I'll go out and buy a hardbound copy of your book today, even though I'm getting a promotional copy. If I can get you to do one of your screens. And there's so many like Screed might be prejudicial. Maybe I'll go with presentation or something like that. But and I could have you do why the whole crying fire in a crowded movie movie house is misrepresented there. I mean, there's so many of them I've heard you do that that I

[Getty]

love her greatest hits.

[Armstrong]

Why there are no parties anymore and it's a waste of time. I want to have you lay out the pointlessness of issue polling after the book because I want you to do that for our audience. I really do.

[Getty]

Excellent.

[Sarah Isger]

No problem. Done. I mean, you don't have to goad me into doing a rant. I love a rant.

[Armstrong]

Good.

[Getty]

All right. First things first, though, tell us about Last Branch Standing.

[Sarah Isger]

Well, part of the reason for this book is to convince Americans that, yes, they're hearing so much more about the Supreme Court and that it is actually our most functional branch of government. But it is never the last word in any of these fights that we're having on politics, on culture war, anything else, it is always up to the American people. If you don't like something the Supreme Court decided we can amend the Constitution. We used to do it pretty frequently in response to Supreme Court decisions, and most of the decisions from the Supreme Court are actually just up to Congress. If you don't like partisan gerrymandering, Congress can deal with that today. We just don't expect them to. We don't make them. And we continue to vote for people who have no interest in actually legislating because legislation requires compromise, negotiation, actually working with someone who disagrees with you. And instead, we keep electing people who are really good at putting out Instagram reels yelling about how the other side is the problem.

[Armstrong]

Yeah, I've listened to you so much, I actually know what your answers are going to be to all my questions, but I'll ask them anyway.

[Getty]

You're half a stalker.

[Armstrong]

I am. I'm a fanboy.

[Getty]

Down, boy.

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[Armstrong]

What changed? Why, you know, if we used to amend the Constitution all the time, what changed?

[Sarah Isger]

Yeah, I mean, a few things. We can go back 100 years to the Progressive era, Woodrow Wilson, Teddy Roosevelt. They really wanted to remake the United States government and move away from Congress again, that messy, long negotiating process. And they wanted it all to be housed by experts and independent agencies who would be shielded from political influence. So we've been doing that experiment for about 100 years. And then during the second term of the Obama administration, when his immigration legislation failed in the House because Republicans wouldn't vote for it, he decided to do executive orders to implement legislation. Now, it didn't last long. Those executive orders were generally struck down by courts, or President Trump came in and repealed them all his first day in office. But it taught Congress that they don't need to do legislation anymore, because when their party has the White House, they can get everything that they want. And sure, it's only for a couple years, but they get the Rose Garden address, their base is happy, and nobody remembers a few years later whose fault it is when it all disappears.

[Armstrong]

So the whole I have a pen and a phone thing took precedence.

[Getty]

So essentially, then, we are under government

[Sarah Isger]

by executive order at this point.

[Getty]

Right. I was just gonna say so Congress is not legislating in the executive branch. Is, is that most of the reason there's so much of a spotlight on the Supreme Court these days or what else is happening?

[Sarah Isger]

I think that's right. You know, because Congress is where we were supposed to work out these problems. Again, you know, I'm thinking of cases that are waiting at the Supreme Court right now. Birthright citizenship, asylum at the southern border, whether Mississippi can accept mail in ballots five days after the election. All of those are questions we're supposed to work out in Congress. But because none of us believe that will happen, we end up bringing lawsuits to court and asking the courts to work those out for us. And so then we focus a lot more on the courts. It becomes really important who these judges are and they become part of our partisan disagreements instead of sort of the place of last resort to sort of, you know, be a referee.

[Armstrong]

And we've seen the declining popularity numbers for the Supreme Court because of that, putting them in an impossible situation on a bunch of this stuff. Reply to this this is an out of control right wing Trump court.

[Sarah Isger]

Yeah, the data isn't great for people who argue that. So last term for six, three cases, you know, where all of the Republican appointees vote one way and all of the Democratic appointees vote the other way, which is what you would expect if this were a, you know, Republican red team versus blue team court that accounted for. Drumroll. Nine percent of the cases. So if that's how you're predicting the outcome of Supreme Court cases, you're going to get it wrong more than 90% of the time. And even if you include the 5, 4 cases, it turns out exactly equal numbers had all of the liberals in dissent versus having all the liberals in the majority and only conservatives in dissent. Instead, you know, 42% of the cases are unanimous. That's the most likely outcome of any case at the Supreme Court. Very few, as I say, fall against partisan lines. The other things we'd expect if this were a, you know, Trump Supreme Court. Well, first of all, I guess we'd expect Trump to actually win some cases right now. Every major policy question that has come before the Supreme Court, he has lost. Immigration. Alien Enemies Act. Nope. Federalizing the National Guard. Nope. Tariffs? Nope. Birthright citizenship? I will bet you a shiny nickel that one's a hard no. So he keeps losing. In fact, in his first term, he lost more than any president in United States history. He's the first president to ever be below 50% at the Supreme Court. We'd expect them to be overturning precedent. Nope. This court is overturning fewer precedents than any court in modern history. We'd expect them to be taking more cases. Nope. This court is taking fewer cases than any court in recent history. So no matter what way you look at it, the data just isn't there. For the people who want to argue that this is a partisan court, well,

[Getty]

let's be honest about what animates virtually all of modern politics. You just raised $0 for the Democratic Party, Sarah, so thanks for wasting our time.

[Armstrong]

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[Sarah Isger]

when

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[Getty]

You noted and I found this so interesting, that Brett Kavanaugh was more likely to agree with Elena Kagan than Neil Gorsuch.

[Armstrong]

What's going on there?

[Sarah Isger]

Yeah, so, I mean, Brett Kavanaugh and Neil Gorsuch are basically twins. They went to high school together. They had the same history teacher. They clerked on the court together. They were circuit judges at the same time. They were appointed by the same president. They are Federalist Society lab creations with good hair and conservative judicial principles. But last term they only agreed with each other 50% of the time. As you say, Justice Kavanaugh was more likely to agree with Justice Kag than he was with Justice Gorsuch. Because Justice Kavanaugh is a high institutionalist. He thinks of this as a team sport. He likes basketball and baseball. Justice Gorsuch, he's a soloist. He likes skiing and running, solo sports. He is more like Justice Jackson, which is why you see them agreeing with each other's concurrences and why Justice Kavanaugh is the justice most likely to be in the majority. He is the swing justice.

[Armstrong]

As of now, Sarah Isger's book is called Last Branch Standing in the First Sentence and the promotional stuff is here A myth busting Glimpse into the inner workings of the Supreme Court, and you've already busted a few myths. How worried are you about the declining faith in the Supreme Court because of the untrue partisan things people have been saying on both sides now for several cycles?

[Sarah Isger]

Well, let me give you the good news and the bad news. The good news is that the Supreme Court is still more popular than the president or Congress. So if we're just fighting among the three branches of government, definitely the Supreme Court is winning. The bad news is that our courts tend to be a lagging indicator of our politics. So another title for the book could have been Last Branch Standing for Now, because everything that we're doing now will eventually be reflected in the courts. And there are warning signs. Getting rid of the filibuster means that we now appoint judges who didn't get any votes from the other side of the aisle. That is not great. That is going to breed more extreme judges who are outliers, and it's going to change the behavior of people who want to become judges to be more partisan, more outspoken, lock themselves into certain positions. We have forum shopping now that we didn't used to have. That's not great. You know, you could be the most fair judge in the world, but if everyone knows that one side picked you, it doesn't look that fair to anyone. So. So I think those are things we can pretty easily fix, but it's not great. And the more we pull the courts into our partisan politics, negative polarization. I mean, we have a really toxic political environment right now. We cannot have the courts reflect that.

[Getty]

Let's go a little ABC123 about the Supreme Court. Kind of basic stuff. I think a lot of folks, particularly on the left, think it's about choosing the right result, period. And a lot of us on the right would like to believe that the court does nothing but look at the Constitution and the law and precedent. They may despise the result, but we've got to go with this. That's oversimplified, obviously, but is that characterization of the left and right, at least on the right track?

[Sarah Isger]

You know, I think the conservative right wanted to think that about themselves, but it's pretty clear now that that's not true. Both sides only care about outcomes, really. You see the right attack the Supreme Court every time they rule. Donald Trump, sometimes specific justices, in very personal terms. You know, the attacks against Justice Amy Coney Barrett got very gender y in my opinion. And I think that there's a natural human tendency to care about the outcome I get it. But the Supreme Court's job is never to say, you know, what the good policy is. It is to say who gets to decide. So you're mad that the book is in your local school library. The Supreme Court isn't going to tell you whether that's a good book or a bad book for kindergarteners to read. Their question is, who gets to decide whether that's a good book or a bad book? Is it the librarian? Is it the parent coming into the library? Is it the, you know, city mayor? Is it a state legislature? Is it the governor? Is it Congress? Those are the questions that the Supreme Court decides. They're never deciding which book it should be.

[Armstrong]

Right.

[Getty]

I meant the justice is more than the average commentator or voter. For instance, Justice Jackson strikes me as just wanting the result, no matter how she has to twist the law.

[Sarah Isger]

Well, it's interesting because the legal left, for a long time sort of had this idea of living constitutionalism. The Constitution evolves as our culture evolves. And it is up to the nine justices on the Supreme Court to decide where it has evolved to. President Lyndon Johnson famously once said, it takes two thirds of Congress and three quarters of the states to amend the Constitution. Justice Douglas can do it in an afternoon. That was really where they were. That is basically disappeared from the legal left, and yet nothing has yet replaced it. And so I think you see Justice Jackson trying to come up with a new legal philosophy for the legal left. That, yes, will produce liberal results, but they can be sort of intellectually built, a new house, if you will, on the block of judicial philosophy. And look, like I said, 9% of the cases were 6, 3 along ideological lines. So I also think it's unfair to say ideology plays no role in Supreme Court decisions. 9% of the time it does. It's just that 91% of the time, something else is at work.

[Armstrong]

So the book is Last Branch Standing. Couldn't recommend it more highly. I've heard Sarah talk about it in a bunch of different podcasts, and I'm sure I will eventually read it. She explains this stuff in a way that idiots like me can understand it, in an entertaining way. So you have worked on presidential campaigns. You worked for Carly Fiorina. We used to have her on regularly back in the day when she was running. But anyway, I know with your background and a bunch of different areas, you don't think issue polling has much merit. Explain that.

[Sarah Isger]

Okay, deep breath, Sarah. Don't go too far, okay?

[Getty]

Go too far.

[Sarah Isger]

Here's the problem. When we do candidate Polling, we can actually judge whether the poll was any good because we have an election day, right? There is a backstop to the polling. We never can do that with issue polling. We can never find out whether that poll was a good poll or a bad poll. There's no way to grade it. So that's a big problem. Right. But there's another problem. When you ask people what candidate they intend to vote for, that's a very binary choice. They understand what an election is and that they're going to go in and check the box for one person or the other. And remember, those polls still aren't perfect. But when it comes to issue polling, oftentimes the question you're asking people isn't the question they think they're answering. You know, do you think the Straits of Hormuz should be open or whatever? Well, it kind of depends. What are the trade offs? Are you going to list all of the potential trade offs in that question? You've only got like 30 seconds to ask them a question and get them to answer it. And that's why you get so many different results with issue polling. It's also the case that sometimes people hear a question that can be about a very specific issue, but what they're answering, what they think you really want to know is, who do you support for president? So, you know, do you like X policy or Y policy? The answer is, do you like Donald Trump or Kamala Harris? And so you're rarely getting the answer that I think you want if you're asking the same question, the exact same question over time. And that move, that is interesting to me, right? Like, not the raw number, but like, oh, it has moved by seven points in the last month. Well, something that has changed if you're asking the exact same question, but that's rarely what we're doing.

[Armstrong]

Do you regularly hear. Because in talk radio, we do it all the time, 43% of Americans, blah, blah, blah. Do you regularly slap your forehead with, oh, my God, there's no way there's any accuracy there.

[Sarah Isger]

I sort of turn into like a Rain man type figure where I start saying that that's not a real poll, that's not a real poll. Don't do it. That's not a real pol.

[Armstrong]

Perfect.

[Getty]

Sarah Isger's new book is Last Branch Standing. Can't wait to read it, too. Sarah, what a pleasure it's been. I hope we can do it again soon.

[Sarah Isger]

Absolutely. Thanks, guys.

[Armstrong]

You betcha. All right.

[Getty]

Thank you. Yep, yep.

[Armstrong]

Yeah, I've heard her go on at length about how issue polling, except in extreme situations is almost useless like it's close to. You're better off having never heard it than coming away with any information.

[Getty]

I have follow up comments as well.

[Armstrong]

Yeah, we'll withhold them more on the way. Stay here.

[Sarah Isger]

Armstrong and Getty.

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