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- [00:00]
A
Hey there listeners. I wanted to give you a heads up that I'm away this week and this episode was prerecorded. So if something crazy has happened in the world, don't be surprised if you don't hear it mentioned. Hang tight. I will be back on June 1st. Also, if you're looking for a preview of Tuesday night's Senate runoff in Texas, scroll down in the feed. We talked about it last Thursday. All right, here's the show. Hello and welcome to the GD Politics Podcast. I'm Galen Drouke. To summarize, the Supreme Court faces a legitimacy crisis. Favorable views of the court are hovering around all time lows. Just 40 some percent of Americans have a positive view of the institution, which is down from 60% or higher in 2020. And views according to partisanship are predictably sharply divided, with positive views among Democrats in the twenties. As the country has become more deeply divided and the court has become more decidedly a court of Republican appointees, there's an increasing sense that a branch that describes itself as above politics is in fact plenty political and Republican aligned. This has led to suggestions, largely on the left, but not exclusively, of changes to the court, packing it with more members, instituting term limits, establishing an enforceable code of ethics. But today's guest argues that folks should slow their roll, that the court isn't as partisan as it's made out to be, and that it's in fact the only branch of government that the founders would have any hope of recognizing today. Sarah Isger makes the case in her new book, Last Branch Standing, a potentially surprising, occasionally witty journey inside today's Supreme Court. Sarah is the editor of SCOTUS blog, host of the Advisory Opinions podcast, and has worked for Republicans Slash Conservatives in all three branches of government. Sarah, welcome to the podcast.
- [01:53]
B
Thanks for having me.
- [01:54]
A
The pleasure is all mine. So we're gonna dive right into it. When you say that the Supreme Court is the last branch standing, the only branch that appears to be functioning as intended by its creators, is that an indictment of the executive and legislative branches or a defense of the court?
- [02:12]
B
Can't it be all of the above? So the way that our system of government is supposed to work, sort of everyone remembers, you know, three branches of government, checks and balances. Maybe a better way to think about that is supposed to be kind of an ongoing conversation. So let's talk about just two cases from this term that are big cases. One is can Mississippi accept mail in ballots five days after Election Day? Another one is whether the administration can stop people before they reach the southern border and prevent them from applying for asylum. And in both of those cases, people feel like the Supreme Court is going to decide the policy for the United States of America. But if we had functioning branches of government, that wouldn't be the feeling at all. All the Supreme Court is asked to decide is what Congress said about these issues. And so if everything were functioning the way it was supposed to, nobody would care that much what the Supreme Court said. Because the next day, Congress could just change the piece of law. They could amend the statute. They could be like, up. That's not what we meant. Sorry, Supreme Court, you misunderstood us. And that would be that the problem is that none of us believe that Congress does that anymore. You know, Congress did that with the Voting Rights act in the 1980s. They did that as recently as the Lilly LedBetter act in 2009. Like, this used to be a dialogue. But when Congress stopped doing its job, the Supreme Court became the last word on nearly everything. And yet they are the least responsive to democratic pressures. And so the pressure just builds and builds against the Supreme Court because the headlines say, you know, supreme Court strikes down Joe Biden's student loan debt forgiveness. Instead of saying, supreme Court says only Congress can forgive student loan debt, not the president acting alone. Trust us, you don't want a president with this much power. Just wait to see who gets elected next.
- [04:11]
A
Yeah, I mean, there's a lot there. And my first question is just, is this essentially an argument that democratic governance
- [04:19]
B
isn't working, Congress isn't working? I think there's actually some pretty easy reasons why that is easy. As to why, I'm not saying it's easy to fix, but members of Congress react to incentives. And at the very end of the day, we, the voters, have allowed members to go to Congress who do not legislate anymore. And when they stopped legislating, the President was like, hey, guess who's got a pen and a phone and is going to do executive orders? And so we live in an era of government by executive order. And the other thing that we as voters do wrong, not only do we keep electing members to Congress, Congress in the last 20 years who don't actually want to be members of Congress. They appear to want to be Instagram influencers. We also applaud when the president from our party does the thing that we want. We're like, yes, worldwide tariffs, yes, student loan debt forgiveness, and fill in the blank. Climate change, immigration, whatever your issue is, when the president gets some headline or some Rose Garden speech, we're all super pumped about it instead of saying, wait a second, the President doesn't get to make policy in this country, he doesn't get to legislate. And so one of two things is going to happen. One, the Supreme Court is going to say only Congress can do this and the Supreme Court will strike it down. Or two, the next guy who gets into office in two or three years on the first day in office is going to rip up that little executive order and make his own. You can't fix climate change in four year increments. You can't fix immigration in four year increments. So we need to stop applauding presidents for, you know, having these sort of sugar high press releases and stop rewarding Congress for doing Jack nothing.
- [06:01]
A
Yeah. I actually have a question further on down about Marbury versus Madison where we can talk a little bit more about the role that the court plays in relationship to the legislature. But first I want to get into your sort of actual theory a little bit more. So I think folks will hear that you come to this argument from the right side of the political spectrum and think, yeah, you know, of course you're going to defend the court. It's your preferred court. So can you make the case from a data based standpoint?
- [06:31]
B
Yeah. So if you think that the court is just ideological, the six justices who are appointed by Republicans vote for the Republican thing and the three Democratic appointees vote for the Democratic slash liberal thing, you will get the decision's wrong close to 90% of the time. First of all, the most likely outcome for any case at the Supreme Court is unanimous. It's close to 50% of the cases. And remember, the Supreme Court is taking the cases that have split the lower courts. So the hardest cases in the country that have divided very smart judges throughout the country go to the Supreme Court and most of them turn out to be unanimous. We don't hear about those cases because they don't fit the narrative that, that people actually click on and therefore that reporters report on. I'll just give you one example from last term because it was a single day and it just made me laugh a little bit to myself. So three big cases. One, gun manufacturer liability, two, religious liberty for tax exemption in Wisconsin, and three, reverse employment discrimination related to sexual orientation in Ohio. All three of these cases were considered big cases, culture war cases decided on the same day. All three were unanimous. All three opinions were written by one of the liberal justices, even though the case had been coded conservative. And we never heard about those cases again because they didn't fit our 6:3 narrative. In fact, last term, the exact same number of cases were decided along those, you know, six, three or five, four lines fitting the narrative. You know, all the liberals were in dissent, all the conservatives were in the majority. Exact same number of cases. Flip that. All the liberals were in the majority and it was only conservatives in dissent. We just don't talk about those cases. And the biggest pushback I get on that is like, okay, well, what about, you know, it's the big cases. The big cases are decided along ideological lines. That's just not true. What happens is we don't define the big cases at the beginning of the term. We wait until the end of the term. We see which cases divide 6, 3 along ideological lines, declare those, then the big cases, and then say that the court is divided along ideological lines. It's totally circular. You know, we just had this conversion therapy case about whether the state of Colorado, because they license psychiatrists, can also prevent psychiatrists from, for instance, talking to someone about feeling comfortable in the sex that they were born. And. And the court 8:1 said that that was a violation of the First Amendment, that psychiatrists, in fact, can talk about whatever they want regardless of their license. 81. And like, we're not going to consider that a big case because it wasn't 6:3. So mark my words, wait for the end of the term. The cases that we will talk about will be the 63 cases. It's not because they were the big cases, it's because they were 6:3.
- [09:37]
A
I think that the folks who would counter your argument and say, oh, it's really the big cases that, like, for the most part, what goes to the Supreme Court has some pretty clear constitutional bounds around it. That's why you get all of these unanimous cases. But on the most partisan things like abortion, voting rights, gerrymandering, the things where even before the case sort of reaches the Supreme Court, there's a big sense that there's something at stake for the Republican or Democratic Party or conservative or liberal movements. But those are the cases where you see the most severe splits. Do you think that's not happening at all? I mean, like, can you look at Dobbs and say, no, this really is not about partisanship or ideology. This is really about sort of good stewardship of the Constitution.
- [10:24]
B
Okay, so first of all, obviously, there are cases that are 6:3 along ideological lines, and they are big cases. I don't want to say that the opposite isn't true, if that makes sense. It's just that we don't talk about the big cases that aren't 6 3. And so it makes it feel like all of the big cases are along these ideological lines and that every culture war type case comes out six, three. So, you know, you mentioned abortion or voting rights. We only talk about the abortion or Voting Rights act cases that divide six, three. We don't talk about Allen v. Milligan where they upheld Section two of the Voting Rights act two terms ago because it didn't fall along ideological lines. It didn't fit the narrative. But I'm sure we'll talk endlessly about Calais this term. Now, you asked about Dobbs. I think that's a great case to talk about for like all sorts of reasons. It's about what we're talking about, ideology. It's about who, which party appointed, you know, the justices, whether one party is getting an unfair number of appointments. It's also about precedent and stare decisis and when we uphold that. So, you know, I don't want to spend the rest of the pod talking about Dobbs if you don't want to. But like we can. Dobbs absolutely split along ideological lines. The Republican appointees, all of them voted to uphold Mississippi's ban on abortions after 15 weeks and all of the liberal justices voted to strike it down. The question is, you know, is that because they are partisan and you end up in this little chicken and egg thing problem. So let's go back to Roe v. Wade. Roe v. Wade. Justice Ginsburg, well, she was not even Judge Ginsburg at that point. She didn't like the decision in Roe v. Wade. Why? One, she thought they were winning the political fight and thought that Roe v. Wade sort of stopped the political momentum in its tracks. She thought that was bad for the pro choice movement. She also thought that the decision, its just wasn't grounded in anything, particularly the supreme court, that was a 7:2 decision, did not think that that was a particularly major decision. You look back at their notes, it's not mentioned that much. They kind of thought it was just a normal day at the office. And what happens at that moment. Justice Ginsburg was exactly right. She called it a breathtaking decision, not in a good way. And that limbs too swiftly lopped off would prove unstable stable Roie Wade ends up defining the two political parties and the conservative and liberal legal movements, you know, for the next 50 years. So here's the chicken and egg problem. If we sorted ourselves based on Roe v. Wade, it makes it really hard to say that the case itself is partisan or not. Partisan, because that's how we defined ourselves to begin with. I think that the results in the last few years post dos have perhaps shown some of the constitutional benefits of not freezing political questions in amber by the Supreme Court. This is an unenumerated rights conversation, right? We know that the founders did not put every single right that we have in the Bill of Rights. They put free speech and religion and assembly and press and petition and right to a jury trial. But they said that we're not putting them all in. There are rights not mentioned. They were deeply worried about this possibility that in fact this would be the limit of everyone's rights. And so we've been arguing since then, fine, what are these rights that they didn't write down? And the, you know, liberal argument has been there should be more unenumerated rights that we like. And the conservative argument has been, no, basically there's very few unenumerated rights. Maybe the right to travel, the right for parents to raise their children. Otherwise the sort of liberal idea that we evolve new rights over time as culture changes. Nope, that's what the ratification process is for. You have to actually get a super majority to ratify a new amendment to do that. Otherwise we stick with what the rights would have been considered at the founding, except of course for the rights that we want. This goes back to like sort of the conservative economic argument that there are economic unenumerated rights. And so you've had this back and forth way before Roe v. Wade where conservatives said unenumerated rights, like the right to contract, the right, you know, for all sorts of like these economic business interests. And liberals were like, those aren't in the Constitution. We don't have those unenumerated rights. Then they start controlling the Supreme Court and they're like, there are lots of unenumerated rights, not those economic ones, but all of these liberal, you know, social unenumerated rights. Okay, so now you get to today and we live in an era where we've sort of forgotten, I think the back and forth fight over that. But I would argue by very nature of that fight goes to the overall point, we should be careful about unenumerated rights. And if it can be resolved by states which, you know, through a compromise, stable process of politics, it is for the better, for everyone.
- [15:44]
A
It sounds like you don't think Dobbs is the stereotypical case of conservatives versus liberals. Do you think there could you point to any cases where you think the critics are basically right, that the ideological story is the story?
- [15:59]
B
Oh, I think Dobbs is a case about the Ideological story being the story. It's just that it's not a partisan story. It's about why someone identifies as a legal conservative or a legal liberal in the first place. It's about methodology. It's about, as I was talking about, unenumerated rights, or whether you look to sort of the idea that we had a contract in the Constitution that we agreed to and the only ways to change that are through the political process, or whether you think that the contract evolves over time and we pick judges to decide when it has evolved. So that's, that is absolutely going to split on ideology. Why would it not? Republican versus Democrat.
- [16:40]
A
But then why wouldn't the court say, like, let's actually take another look at all of these unenumerated rights. Like let's maybe stare decisis doesn't apply to same sex marriage or what have you. Like, why stop at abortion if it's not kind of politically motivated? And maybe the broader question is here, in an era where the Supreme Court is very aware that it's unpopular, is it itself playing popularity politics in the sense that there are some places where it's willing to make big moves for areas that are really important to the conservative legal movement, but otherwise it fears losing its legitimacy, you know, a significant portion of which it has lost, as I discussed in the intro, based on public opinion polling. And so it ends up playing politics because of the situation it's in vis a vision, public opinion.
- [17:38]
B
Oh, I'm so glad we get to talk about precedent. So there's an entire chapter in this on the book, and I'm kind of proud of the chapter title, the Unbearable Lightness of Precedent. Okay, let's take this out of the culture war context and go to a case called Ramos. This is about whether the Constitution demands that states have unanimous jury verdicts. It's in the Constitution, the Bill of Rights for the federal government to have that. But after the 14th amendment, we've been sort of playing around with how many of the things in the Bill of Rights apply to the states as well as the federal government. So pretty quickly we're like, free speech does, religion does. But we've been really dragging our feet on some other things. So for instance, the right to a grand jury that you have against the federal government has never been applied to the states. So where does unanimous juries fall? Is it closer to grand juries? Man, we don't care that much. Not a fundamental right. Or is it closer to freedom of speech? So this case called Ramos comes up and it is looking at A precedent called Apodaca. Now Apodaca said states can do whatever they want. This is not applied to the states. It's not a fundamental right. All nine of the justices thought that Apodaca was wrongly decided, but the case split 5, 4. Why? Because even though they all agreed that Apodaca was wrongly decided, they couldn't decide whether. Well, I mean they couldn't agree on whether to overturn the precedent of Apodaca. The Supreme Court has factors that they're supposed to weigh to overturn precedent, and the justices weigh those factors really differently. So for instance, Justice Kavanaugh believes that you don't overturn a precedent just because it's wrong. It better be like egregiously super duper, really, really wrong. They didn't base it on anything. There's nothing in the Constitution that could possibly give you that impression. You dum dums. Like, it has to be extra wrong. Justice Gorsuch on the other hand, is like, eh, if it's wrong, it's wrong. I don't know man. Like I'm not going to spend that much time worrying about it. There's other factors, like reliance interests. Okay, the court got it wrong. Maybe it was even like really wrong. But if millions of people have organized their lives around this Supreme Court decision, something else needs to factor in of why we're going to change that decision. It can't just be that it was wrong, even really, really wrong if it has become sort of part of this fabric of people's lives. So the court in Ramos says, look, Abodaka was wrong. Five of us think there's no one's really relying on this, not in any like what the government, the prosecutors are relying on non unanimous jury verdicts to put people in jail. That's not enough of a reliance interest. It was egregiously wrong. So they overturn it. You then apply that. The reason I bring it up is because I think it's really helpful for people, if they care about this, to go read that decision. Because you can see the arguments outside of something that I feel like people bring a lot of emotion to. But you can apply that to Obergefell and gay marriage and see why they're like, nope, reliance interest wins out. It's just even if we were deciding it for the first time, doesn't that
- [20:54]
A
get kind of murky though? Like it's really subjective where the boundaries of. Is this too disruptive to American life? Like certainly some people could say, unless they are partisanly inclined. Another way that too many Americans have Become reliant on the Roe decision to overturn that or something.
- [21:12]
B
You know, like talked about that in Roe and they said, well, no, the reliance decision would only be for people who are already pregnant and believed at the time of getting pregnant that they would be able to have an abortion. Otherwise, there's no long term reliance decision on it. Obviously the other side disagreed. So your point is right, that like all of these are up for argument, but those are the factors and each of the Justices have a different way of considering those factors. So if you want to understand how a decision's gonna come out or whether the Court's gonna take a case, that ideological spectrum is important. I'm not saying it's not. And again, it's different than the partisan spectrum, but nevertheless conservative to liberal. But you've also gotta understand how they think of these various factors for stare decisis and how they've applied them in the past.
- [22:01]
A
Do you think that, you know, famously Justice Roberts cares a lot about the legitimacy of the Court in the public's eyes, or at least that's what the reporting suggests. So as the Court has become less popular, do you think that the Court has made decisions in some cases based on public opinion, where it tries not to cross public opinion too much? I mean, there are all kinds of arguments that even whole systems of government that are not democratically accountable, like dictatorships, are still ultimately bound by public opinion because people can rebel ultimately, even if it's not meant to be influenced by public opinion. There are like for example, during the New Deal and fdr. There, the Court might change its behavior if it feels like its relationship to the other branches of government or the public becomes tenuous. Do you see any of that behavior by the Court right now?
- [22:57]
B
So it's funny. Let's break this down a little. One, the Court is at an all time low for its approval rating. Fact. Also fact. The Court is far more popular than almost any other institution in American life. All institutions have dropped significantly in the last 20 years. And the Court is still at the top of the dwindling, you know, the, the dropping pile, if you will. The other thing that's interesting, if you break down, you know, sort of when it drops, when it rebounds, the court actually in the last 5 years post Dobbs had gone up significantly in approval rating. It appears that there's two things that drive the public's opinion of the Court. One, there was a recent decision that we don't like. The outcome of those can be very fleeting. So you'll see quick drops and then it rebounds very quickly, you know, right back up to where it was. And then there's these long term institutional declines. And what's funny is the drops in approval rating are driven by partisan politics. So the current drive that the Supreme Court has to go down in approval ratings has not been driven by Democrats, it's been driven by Republicans because of Donald Trump's attacks on the court. And you've actually then seen, you know, that move the numbers down to this lowest approval rating ever, because the Democratic numbers were already quite low. Okay, but to your point about, you know, are they thinking about public approval? I hear this from both sides of the left. They make sort of contradictory arguments. So one of the leading guys at the Brennan center, for instance, says the Court never is considering public opinion, and this is really bad. They should be considering public opinion because that's what their legitimacy is based sort of the, the argument that you were making of what they, you know, maybe are doing. And my argument, I guess, would be, look, the Court's job is to stand against bare and fleeting majorities. If you've got a bare majority, meaning 51%, like, nah, that's what the political process is for. We wouldn't have a First Amendment or a fourth Amendment. You know, criminal defendants aren't the most popular people in the world. Nobody's standing up, you know, for the guilty guy to have that evidence suppressed. And so the Court's job is to stand against the majorities that the founders were worried about. The sort of mob idea of, aha, we're in the majority now. We will punish our minority enemies so that we can stay in the majority. That's one of the Court's jobs. And if you get a super majority, more than a bare majority, you can amend the Constitution. And as we have done many times, the 16th Amendment was ratified in response to a Supreme Court decision. Then the fleeting majorities, okay, so you've got a really big majority, but it doesn't last for very long. The Court's also supposed to stand against that majority. If you maintain a majority on any specific issue for a very long time, and this is the FDR example, eventually you're going to get to appoint Justices that share that change in overall society, culture, legal application and awareness. Fdr, of course, when he left office, had. Democrats had appointed all nine justices on the Supreme Court. As recently as 1992, Republicans had appointed eight of the nine justices on the Supreme Court. None of that, though, explains why we feel that the Court is so partisan in this moment. It's because we've had those very obvious swings in the past. We don't remember them. The court wasn't nearly as salient in our political conversations as it is now. And that's why my argument is you have to find a different reason. And that appears to be the fact that Congress actually isn't part of the game anymore.
- [26:52]
A
Yeah, but do you think that this current court is making decisions geared towards maintaining public legitimacy, not just sort of pure interpretation of the Constitution based on their own jurisprudence?
- [27:09]
B
No, but. Okay, it's a little bit hard to answer for the actual outcomes of the cases. The answer is no. In terms of what cases they take and how wide or narrow they make those decisions, I think the answer is more yes. So, for instance, you know, if you take out that paragraph, you'll get Justice Kagan to join the decision, and now it'll be a 7:2 decision. And that lends legitimacy and credibility to the decision. Absolutely. They think about that. And it's why you saw so many 7:2 decisions last term, again, none of which we talked about as a society, because they weren't 6:3. And then, of course, they don't take cases if they feel like it's not quite ready. We want to see the lower courts deal with this more. We think the political process may work this out on its own. And so they will leave questions to, you know, simmer like a nice gumbo in the lower courts because of those issues as well. There. There's this famous line at the turn of the century about the Supreme Court, and it said, the Constitution may not follow the flag, but the Supreme Court follows the election returns. Like, they're not idiots. They're aware of what's going on. They lurk on social media. They have teenagers who fill them in on things.
- [28:24]
A
Yeah. So they, I mean, so in a way, they are playing politics. It might not be pure partisan politics, but this isn't just a. You go in with a certain jurisprudence and you apply that to everything that comes across your desk or across the.
- [28:38]
B
I think the outcome is more like that. But I think, again, like the. How wide or narrow that you know how much they decide in this case, what questions they leave to be answered later, or do they answer it all now? I think you might see this in the birthright citizenship case. Right. They have a lot of options of how to decide that case and rule against Donald Trump. One option is they can say, you know what, We've read the 14th Amendment, and the 14th Amendment means that everyone born here is a birthright citizen of The United States, we're done with this. That is the very wide decision. But there's a narrower decision, which is, look, if Congress wants to get in this game on birthright citizenship, they could pass a law. We don't think it will look anything like this executive order, because it costs you nothing to make the biggest, widest executive order known to man. If Congress passes it, who knows what it could look like? They might say, if you're here on a tourist visa for less than six months, your child is not automatically a citizen of the United States because you're clearly not subject to the jurisdiction of the United States. You intend to go home in just a few weeks, and therefore your child has no sort of duty to the United States. And if. You know what, if they pass that, we're happy to look at that and think about the 14th Amendment at that point. But a president acting alone can't do that Executive order. That's number two. Number three is Congress passed a law in 1952. It's the exact same language as the 14th Amendment. All persons born in the United States and subject to the jurisdiction thereof shall be citizens of the United States and the state in which they reside. Now, it's the same language, but, you know, nearly a hundred years had passed. And during those hundred years, we had had birthright citizenship for everyone. Therefore, we assume that's what Congress intended when they wrote that. Even if it's not what the 14th Amendment intended, that's the narrowest option by which Trump could lose. And so you can see where, you know, if they have five votes for number one, maybe another one vote for number two, but they have three more votes for number three. Like maybe you decide on number three and make it unanimous rather than decide on number five. People aren't changing their votes based on that. It's just that it's sort of a all inclusive menu, if you will. If you agree with number three, you already agree with number one.
- [31:04]
A
GD Politics is powered by you, the listeners. If you enjoy the show, the data driven analysis, the genuine curiosity and lack of partisan bs, and yes, sometimes the silliness too, please consider becoming a paid subscriber at gdpolitics. Com. Paid subscribers help make the podcast possible, and they also get twice the number of episodes and access to the paid subscriber chat where you can send me whatever questions you've got. Independent political media only works if the people who value it support it. So if GD Politics is part of your week, head to GDPolitics.com and become a paid subscriber that's GDPolitics.com I so appreciate it. Thank you. On the topic of the birthright citizenship case and some other cases, like the Tariffs case, there is also this idea of like, hey, look, the court's not that partisan. It keeps crossing President Trump or, you know, potentially crossing President Trump. And I wonder if in some ways the Trump era has made your argument sort of easier to make because the president.
- [32:14]
B
Oh, it's been great for me.
- [32:16]
A
Yeah, yeah, exactly, exactly. Like the president is not necessarily making conservative legal arguments, right?
- [32:22]
B
Nope. He is the opposite.
- [32:24]
A
Exactly.
- [32:24]
B
Conservatives in the birthright citizenship argument were the ones arguing textualism and originalism, and it was the administration arguing for sort of this living, evolving constitutionalism.
- [32:34]
A
That's literally, that's literally what I have written here. So the even birthright citizenship is more of a living constitutional argument, AKA a liberal argument. Disregard what the text says. The people who wrote the text couldn't imagine birth tourism, but it's a problem today. So we need to reinterpret what the Constitution says. And so the justices in this moment who have been appointed by Republicans came up through the conservative legal movement that predates Trump.
- [32:59]
B
And so all of the justices are a lagging indicator of our current politics. They're basically frozen in time from the moment that they were confirmed. And so you have to go back to that moment to figure out what their politics even would be.
- [33:15]
A
Right. And so in some ways, like maybe they are being partisan, but they're just being like George W. Bush partisans. They're not being Trump partisans.
- [33:23]
B
It's certainly, you know, think about it, think about it. No, no, no. I've thought a lot about this. It's certainly the case that they are picked by a political actor in that moment who thinks that they will represent that ideology on the court. Now, as we know, sometimes those presidents are wrong. Once you give someone life tenure, it changes their behavior. It's sort of like a coming out party. You don't quite know what was in that box, even if you looked at the wrapping. And two, you know, again, there's these two spectrums to think about. Potential justices and presidents don't seem to know or care, I guess, about the second spectrum. But the second spectrum is what's killing Donald Trump. So first spectrum, ideology, like we've talked about, conservative to liberal. Again, I don't think it is Republican to Democrat because, I mean, frankly, the Republican Party today looks nothing like the Republican Party from 10 years ago. So the Republican to Democrat spectrum wouldn't mean very much for very long anyway. If the two parties keep realigning on issues as quickly as they have, wait.
- [34:26]
A
But if you do freeze it, and I want to get to the rest of this, because this is a really important part of your book, but if you do freeze it at the 2006 era parties, when you look at the court today, do you see a more clearly partisan court?
- [34:43]
B
No. Because what I also love about the lagging indicator part is that the issues that you were picked for, you know, in 2005 that that President really cared about tend not to be the issues 20 years later. And presidents sort of lack imagination to pick justices for future issues that they can't really come up with. Like, they can't, you know, when Alita was put on the court in 2005, George W. Bush could not have imagined lawsuits about the First Amendment and social media and Twitter's liability, even though that is one of the biggest things that they are sort of working through in cases these days. So what you really want if you're a president is. Yeah, I mean, I guess I'm not suggesting presidents should ignore ideology, though, again, to my point, you can't possibly know what a justice is going to think about, you know, new technology, massively changing culture, transgender participation in women's sports. Not a thing when most of these justices were appointed. So what they should be looking at is this other spectrum that I talk about in the book. And that's an institutionalist spectrum, or you can think of it as an incrementalist spectrum, a consequentialist spectrum. And in on, you know, on the ideology, ideological spectrum, Kavanaugh and Gorsuch are right next to each other. They are federalist society, petri dish lab creations. But on this other spectrum, the institutionalist spectrum, they are as far apart as you can get. They only agreed with each other 50% of the time last term. Kavanaugh was more likely to agree with Kagan and Sotomayor than Gorsuch on that spectrum. Kagan and Kavanaugh are actually very close to each other in this, like, institutionalist spectrum. And Gorsuch and Jackson are very close to each other. Again, Gorsuch and Jackson couldn't be further apart ideologically. But you will see them joining each other's concurrences all the time because of this institutionalist, temperamental, non incrementalist sort of view of what they think their jobs are as justices on the court. And when presidents don't know about that spectrum, them or don't think about it when they're picking their justices, that's how you end up with President Trump having three appointees, all of which he is super duper mad at because they've ruled against him on Alien Enemies act, federalizing the National Guard, tariffs, birthright citizenship, almost certainly to come. And he's, you know, railing against the court and how they're disloyal. And it's like, my dude, you might have wanted to talk to someone about the other ways in which these justices think about their jobs and apply their own methodologies to these cases. Because ideology, as I said, will make sure you are wrong. In 90% of the cases. It's only predictive whether you think it's chicken or egg or whatever. But let's say it's purely partisan. That will only help you. In 10% of the cases in the last 20 years, 90 plus percent has had at least one liberal in the majority, no matter what the case is about.
- [37:50]
A
And so when you apply this sort of Y axis of institutionalism to the X axis of liberal versus conservative, you say instead of seeing a 6, 3 court, you see a 3, 3, 3 court. Can you just describe that for listeners?
- [38:05]
B
Yeah. So you're going to have the liberal justices Kagan, Jackson, and Sotomayor. Now, yes, they're all together on the liberal side of the ideology, but on that Y axis that I've talked about, that's vertical. Kagan's at the top, Sotomayor, and then Jackson. Okay, next table is the deciders. These are the justices that are more likely to be in the majority than almost any justices in modern Supreme Court history. The chief, Kavanaugh and Barrett are in the majority more than 90% of the time. They're, you know, I call them the deciders. You can't do anything at the Supreme Court without five votes. And one of these guys is going to be your fifth vote. They're all institutionalists, incrementalists, rather than sort of, you know, I gave that birthright citizenship example. They are far less likely to just say, like, oh, let's get to the 14th Amendment question. They're far more likely to say, oh, we can decide this on the statutory grounds. And then we can, you know, wait another day because maybe that will never happen. We don't have to reach that really big constitutional question. And then my last table are the conservative honey badgers, I call them. That's Thomas, Alito and Gorsuch. They are the least institutionalists of the conservative justices. They also actually tend not to agree that much with one another on their own methodologies. Gorsuch is more Libertarian. Alito is sort of the pure, you know, social conservative type. And so Gorsuch loves the First Amendment. Alito, not such a big fan of the First Amendment. So even though I group them together as non institutionalists, there are these other methodological things that actually keep them pretty far apart on specific issues.
- [39:51]
A
How much has the fact of Trump changed the court or emphasized this Y axis of institutionalist versus ad hoc est, if you will? Trump has probably asked the court to do a lot more, particularly in his second term, than any president has in recent memory. And so the emphasis really turns to that institutionalism versus ad hoc ism versus the ideological spectrum, where, you know, there might have been a little more strategy, particularly when Anthony Kennedy was the, you know, median justice and the decider, he was not just institutionally versus not institutionally median, but also on an ideological spectrum, pretty median as well. So has the fact of Trump and the fact of this, you know, 6, 3 court, although I know you call it a 3, 3, 3 court, has that put more emphasis on this Y axis?
- [40:46]
B
I would argue that probably Trump has put more emphasis on both axes because previous presidents tended to not only be Republican or Democrat, obviously, but they tended to be liberal and conservative in the traditional ways that we have thought about those. The Republican Party no longer really has conservatives in its coalition anymore. You know, remember, conservatives were free trade, high national security, and socially conservative. Trump really hasn't been any of those things in particular, or at least he's been all over the map on them. Hard to pin down on any sort of actual left right spectrum that we've ever seen before. And so I think allows the court to look even more independent, as you sort of noted. And Donald Trump's attacks on the court have arguably been good for the court. I mean, it's bad for the court in the short term and he shouldn't do it, and I don't like it. But at the end of the day, the guy who appointed three of the justices, calling them disloyal and that they're too independent kind of proves the point, Right?
- [41:59]
A
Interesting. Yeah. So I want to talk a little bit about how the court might be able to boost its legitimacy in the public's eyes or some of the challenges going forward for legitimacy in the public's eyes, because the percentage ultimately of Americans who are going to sort of look at this more process based argument and see, oh, okay, there are institutionalists versus ad hocus, and maybe it's not as partisan as I thought. I mean, I just don't think that's gonna be the thing that cuts through. As much as I hope that you sell a billion copies of your book, people are going to pay attention to outcomes and high profile stories.
- [42:36]
B
And you know what the good news is on that. That's been the case since 1801. Jefferson railed against the Supreme Court and their partisan outcomes. He tried to impeach Samuel Chase and remove Chief Justice Marshall so that he could have the outcomes he wanted. And you look at the complaints that people were writing about the Supreme Court, you know, in the 19th century, they will look so modern to you. So people caring about outcomes and not particularly caring about the rule of law. Like I say, like I'm a process girl in an outcomes world. I have always been the outlier through all the versions of me in history. I'm not worried about that. We don't have to convince everyone to care about process. You're right. It's not going to happen.
- [43:16]
A
So first question on, you know, outcomes and ways that the court is viewed in high profile ways by the public. How does the court overcome the Merrick Garland issue or the idea that no justice will be replaced if the President and Senate don't belong to the same party?
- [43:35]
B
Yeah, big problems. So I have a chapter in my book about reforms that I propose for the court, number one of which is a binding ethics code. They have an ethics code, they've revised it after the, you know, scandals of late, but it's still not binding because who would actually be able to enforce it against the justices? That part gets a little messy. But I think there's plenty of proposals out there. You know, for instance, to have lower court judges who have already retired sit on a committee of some kind anyway, like that I think is very easy to fix. The problem that you're talking about is harder to fix, but not impossible. There was a proposal by these two guys named Tom, I call them the Toms. And I think it's, it's brilliant because it gets to the problem you're getting at. You know, we had the filibuster before where a justice or judge had to get 60 votes. Now we haven't had a 60 plus vote partisan Senate in a long time. So that always meant that you had to get some votes from the other side. Well, guess what? Each side got sick of that and being blocked by the other side. And so Harry Reid got rid of the filibuster for lower court Judges and Mitch McConnell got rid of it for Supreme Court justices. My argument is that has been really bad for the legitimacy of the Judiciary, because instead of something like a general election where you have to have votes from both sides, and so anyone who is up for being a judge has to move to the middle. Anyone who wants to be a judge, law students who aspire to federal judgeship someday want to make friends with people on the other side, talk to them, understand them. That is good for the legal profession and for the judiciary as a whole. Well, now we've moved post filibuster to something more like a primary election. You only need votes from your side, and therefore you don't want votes from the other side because that would prove you're insufficiently loyal to your team. And it has changed behavior of everyone, including the law students who now aren't friends with people who ideologically disagree with them, that's really dumb and really bad. Biden's appointees were more liberal than Obama's. Because of this, Trump's appointees are more conservative than Bush's were. We don't want our courts to look like Congress. You know, those little charts where the two sides have moved more and more out to the extremes, but that's exactly what we're going to get. And of course, you point out maybe the biggest problem of all, when we have divided government, nothing will happen at all. One person, by the way, suggested that instead of going to back to 60 votes, have a Supreme Court justice confirmed, or any judge, we should go to 75 votes. His point was really funny. He's like, when my kid has a midnight curfew and comes home at 12:15, I don't say, oh, no, it was too hard for you to come home at midnight. I'll make your curfew 1 o'. Clock. Instead you say, your new curfew is 10 o'. Clock. Congratulations, I expect to see you home tomorrow night really early. And so the 75 vote threshold would be something like, yeah, it's going to change who you can appoint as a judge. They will not be, you know, guys who worked on campaigns or had senior staff positions in the White House. You're going to have to go find people with sort of no political valency whatsoever. That's a good thing, not a bad thing. For our judgeships. The 2 Toms proposal is a little different. They say There would be two paths to get confirmed to a judgeship. One, the old path, you make more than 60 votes, you're confirmed. Congratulations, you passed through the filibuster. But since, you know, we can't have nice things and both sides like to block judges, the second path would be if you get 51 votes, you would be provisionally confirmed. And after the next election, midterm or general election, whatever, but a new vote for Senate, you would have a vote again for that judge. They would be automatically brought up for a vote, regardless of who the President is now. And it would let voters decide who was acting in good faith by blocking that judge, the side that appointed him or the side that blocked him. And it would work for legislation as well. And what I really like about this idea is it would make our congressional elections actually about something real. Like, especially if we did it for legislation, we would actually have basically election referendums on pieces of legislation or specific judges. And maybe that would make people care about who their member of Congress was and what they were actually going to vote for and not just, like, again, how many Instagram followers they have.
- [48:06]
A
So add to the proposals for Supreme Court reform, you know, packing the court, term limits, it's not clear to me how any of this would move forward in Congress, let alone how the Supreme Court might rule on it if Congress were to actually pass a law. So I guess I'm curious from two perspectives. One is, what do you think is actually reasonable or likely in terms of structural reforms that could boost the legitimacy of the Court? And then two, and then this is. You know, we could write a whole thesis about this, but the fact that the Supreme Court could then just strike down any of the reforms because of Marbury vs. I prom. I said that we would get to Marbury versus Madison Wyatt, which is why I have to get here in this moment. You know, the Supreme Court early on in its existence, established the power for itself to strike down laws passed by the Congress, which in this day and age is pretty common across advanced democracies, although not everywhere. Right. Sovereignty of Parliament, for example, in the United Kingdom, means that it is very rare that an act of Parliament can be struck down by the courts. Other countries have constitutional courts that are specifically tasked with deciding if, you know, Parliament or Congress's laws are constitutional. But. But the fact that in America, at least, the Court can itself decide what reforms are allowed maybe puts us in a somewhat tricky bind here, perhaps.
- [49:38]
B
It's funny, I was talking about this with a conservative that thought that if you tried to add any seats to the court, it would be unconstitutional, despite the fact that we have, you know, had a court with six members, nine members, and everything in between. He said, yeah, but we've had nine for so long. Any attempt to add seats now would basically undermine the due process of law, which is guaranteed in the 14th Amendment and the court could strike it down. So you are right that the court could strike down an act of Congress, but you still have to get to the court to do it. And so you have to have someone who is particularly injured by that act of Congress. You know, general taxpayers are not injured. Members of Congress are not injured. A Supreme Court justice cannot sue. And so it does become a little tricky to find how you're going to get some of these cases to the court. And of course, the court itself, I think would be very hesitant to rule on that. Marbury versus Madison gets all the attention, although recent scholarship I think is pretty universal, that judicial review existed before Marbury vs Madison in the United States. It was well known, you know, coming in through common law. So Marshall didn't reinvent the wheel on that one. The case, it's a much more relevant deal for our purposes in this conversation is when Jefferson, okay, backing up election of 1800. It's a huge disaster. Nearly tears the country apart. Jefferson beats Adams and Adams like haha. On my way out the door, I'm going to pass the Midnight Judges act and create a whole new band of judges, what we would now call circuit judges, an intermediate appellate court. And I'm going to fill them with federalists. And Jefferson comes in and is like, get rid of that nonsense. And fires all of those new federalist judges. And of course, one of those judges sues and says the Constitution says once I'm confirmed, I have life tenure and that I can't be removed except by impeachment. See Chief Justice Marshall. And Chief Justice Marshall, a federalist himself, someone who Jefferson is trying to impeach and remove from office at that point, says that Jefferson can in fact fire all of these judges. Why? Because he's getting rid of the judgeship itself, not the individual judge. It's a really controversial opinion even today. I'm not sure that that's exactly right or that it would come out the same way if it was decided for the first time today. But that's exactly the case that you're talking about with any of these judicial reforms. And I'll just say that this Chief justice fancies himself quite the Chief Justice Marshall. And so look at Stuart v. Laird, if you want to, you know, get some insight into that.
- [52:28]
A
So you think if Congress manages to pass Supreme Court reforms, they're not likely to be struck down?
- [52:37]
B
I don't think so. Because of that institutionalist spectrum, I think they would say it is not our job to. To get to police our own branch
- [52:46]
A
and then does that include term limits? Because I think that is maybe seems to be, I don't know. It's, it's very much favored on the left right now, but it's broadly popular when it comes to members of Congress. On both sides of the parties. Yes, on both sides of the.
- [53:00]
B
It is not a left or right thing. I hear from conservatives all the time who love term limits, and I think it's a terrible, terrible idea. It's a, it's a question of whether Congress could do it or whether you need a constitutional amendment. Since I don't like term limits, I guess I am probably more likely to think that it needs a constitutional amendment. But I see the arguments on both sides of that. Can I just tell people really quick why I hate term limits?
- [53:26]
A
Go for it. To be clear, this is, this podcast and Its forebearer, the FiveThirtyEight Politics podcast, has invited on many an academic who says like all of the things that you lose, like institutional knowledge and blah, blah, blah, blah. So we are, we're familiar with like the academic arguments for a lack of,
- [53:43]
B
of term limit or academic.
- [53:45]
A
Don't worry, Love it. Go for it.
- [53:48]
B
So I'm really into public policy trade offs. And on the one hand, you are fixing a problem, right? The randomness problem of justices dying. Just, you know, Obama gets two picks and Trump gets, Obama gets two picks in eight years and Trump gets three picks in four years. It feels unfair. Now, law of large numbers, that does work itself out over the course of American history, but what good does that do me here in 2026 with a human lifespan? I get it. It's a real problem and this would fix that problem. However, you have to look at the trade offs. What do you get for fixing that problem? And my argument is if every president is guaranteed two picks on the Supreme Court, they will eventually have to say who those two picks are. Eventually, those two picks will end up campaigning with him on a ticket. And so you will have a president, a vice president and two Supreme Court picks on the campaign trail before an election. And it will change who gets picked as a Supreme Court justice, of course, because you're not going to pick nerds and introverts for the campaign trail. But I don't want the people who are best at running for Supreme Court justice to become Supreme Court justices. Look what it's done to the presidency. Long for the days when we actually picked someone who might be good at being president and not just the person who was good at running for president. You also have a problem on the back end. If the other justices know that someone is going to be off the bench in six months or two years, they may hold cases because they're going to know who the next person coming online is and think that that person is more likely to vote for them. It will. All those problems you talked about earlier in the podcast about sort of strategic voting, partisan aligned voting, all of those become far worse when these guys just got off the campaign trail on their way in and are strategically able to guess or know the next justice on the way out.
- [55:40]
A
Yeah. I mean, on the topic of elections and the Supreme Court and the relationship between the two, there's lots of speculation about one or two Supreme Court justices stepping away at the end of this term. Of course, we have midterms in the fall. Do you think that that's the kind of event, having worked, you know, in. In politics at the Department of Justice, having clerked for a judge, you know, like, do you think that that is the kind of event that reshapes electoral politics? Do you see it reshaping electoral politics in this moment?
- [56:13]
B
You know this even better than I do. Republicans have traditionally been the judicial voters by a pretty wide margin. Democrats have never really been able to get that to be a motivation for their voters to turn out the way that Republicans have. That does appear to have been shifting a little, largely because it has dropped in importance to Republicans a lot and it's picked up a little bit of ground with Democrats. I think this midterm election and, you know, God help me, we've thought we saw waves coming in the past and they never materialized. This sure looks like a wave election where these small turnout juices are just not going to be deciding factors. It will also be the case, I think, that if, for instance, Justice Alito were to announce his retirement, they generally do this on July 2 after the term ends. They would fill that spot before people even really start voting. Republicans might try to hold it over for this reason to get higher turnout, but at the end of the day, I think it will be pretty much a non factor at this point. There's when you have so many bigger, you know, economic factors, national security factors, judicial politics tends to play a role when we don't have a lot else going on.
- [57:31]
A
Yeah. Okay, final question here. During the first half of the conversation, we talked about reasons why we might want to check our assumptions about the partisanship of the Court. In the second half, we talked a little bit about reasons that the court might be becoming more partisan, like what you mentioned with the End of the filibuster for lower court and Supreme Court justices. We talked about how the current court is a lagging indicator for politics itself because this is maybe more of a George W. Bush conservatives majority than a Trump magazine majority. I understand that this book right now is a sort of reason for optimism, at least for one branch of government. Are you worried when you look towards the future that some of these trends are going to maybe push the court in the same direction as the executive and the legislature?
- [58:23]
B
Yeah. I mean, another title for the book could have been Last Branch Standing for Now because they are a lagging indicator. You know, we talked about the end of the filibuster, but all of the current justices were judges beforehand except Elena Kagan, who was during the filibuster. So all of these current justices were confirmed when there was a filibuster. Like they are massive lagging indicators of our politics. We are going to start confirming people who are post filibuster judges to the Supreme Court. And yeah, I think that's kind of scary. I think court packing is the scariest thing because I haven't heard anyone really make the argument that you keep the institution at all once you start adding seats to it, it ceases to be counter majoritarian and protecting minority rights when the majority just gets to put enough justices on to then have the majority. And we need a court that is counter majoritarian or there is no First Amendment for anyone because the majority of the moment can just say we don't like your speech and we are putting, you know, enough justices on the court to ban that speech. That should scare the hell out of people, in my opinion. My good news about that is I actually see our politics, the ship of our politics turning ships take a long time to turn. So I'm actually more, I'm more concerned in the very, very short term than I am in the medium to long term because I think our politics is going to shift relatively dramatically in the next decade or so. And I my biggest piece of evidence for that, weirdly maybe, but I think you will appreciate is the drop in reality TV viewership. It is dropping off a cliff. They are not green lighting any more reality TV shows. They are canceling ones that are currently existing. They are slashing budgets for them. Our politics is downstream of our culture and we seem to be sick of sort of fake outrage, ginned up amusement and maybe we're done with our reality politics as well. And that would fix a whole lot of what's happening in the other two branches.
- [60:37]
A
You know, at 5:38 we talked a lot about reversion to the mean being just as likely, if not more likely than an exacerbation of current trends, even when it may not seem like it at all. So I can absolutely appreciate that perspective. Sarah, thank you so much for joining me today. I really appreciate your time and enjoyed the book Last Branch Standing.
- [60:58]
B
Galen, I'm so thankful. Thank you.
- [61:00]
A
My name is Galen Druke. Remember to become a subscriber to this podcast@gdpolitics.com and wherever you get your podcasts. Paid subscribers get about twice the number of episodes. You can also join in our paid subscriber chat and pass along questions for us to discuss on the show and you ensure that we can keep making a podcast that prioritizes curiosity, rigor and a sense of hu humor. Also, be a friend of the POD and go give us a five star rating wherever you listen to podcasts. Maybe even tell a friend about us. Thanks for listening and we'll see you soon.