← Interesting Times with Ross Douthat
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A
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Learn more@chase.com Sapphire Reserve cards issued by JP Morgan, Chase bank and a member FDIC, subject to credit approval from New York Times Opinion. I'm Ross Douthat, and this is Interesting Times. President Trump has been testing the limits of presidential power since he returned to office, from his assertion of total control over federal agencies to now his undeclared war with Iran. But so far, many of Trump's most aggressive moves have ended in defeat, usually in the courts and increasingly at the Supreme Court. And it may be that a key revelation of his second term is that the judicial branch is the real power center in American democracy right now. That's the argument of this week's guest, Sarah Isger, a conservative court watcher, a lawyer, and the author of the new book Last Branch Standing. I wanted to talk to her about Trump's power grabs, the internal politics of the court, and whether we should be reassured or troubled that it takes an imperial judiciary to counter an imperial presidency with Congress out of the picture. Sarah Isger, welcome to Interesting Times.
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C
Thanks for having me.
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B
So we're going to talk about the Supreme Court, the divisions within the court, its influence over American politics and the future of the Constitution. Really, we're going to get to some big questions, but we're going to start where all things must start, with President Donald J. Trump and executive power. Because we're about a year and a few months into the second Trump administration. And in the first three to six months of the administration, all anyone wanted to talk about with constitutional questions was just how much power his administration was consolidating in all kinds of different domains. And I want to give you a chance to talk about where that revolution stands. How successful has been his attempt to remake the presidency's powers?
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C
There's very little that Donald Trump has done. In fact, I'm hard pressed to think of anything that is wholly unique. What Donald Trump has done is turn turned the amp up to 11 on places that his predecessors had built on in the past. So on the one hand, we can go Back to Obama's pen and phone moment.
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B
I've got a pen and I've got a phone and I can use that pen to sign executive orders and take executive actions and administrative actions that move
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C
the ball forward in a lot of ways. You can see Trump doing a much bigger pen and a much bigger phone and really having all of government by executive action. In another lens, you could go all the way back to the Progressive era, you know, Teddy Roosevelt and Woodrow Wilson, Progressive era, where they think Congress is a bunch of dumb dumbs coming from wherever. What if we did government by experts in the executive branch and instead of having Congress decide this, we'll have the smartest people because there are right and wrong answers and instead of representative democracy that's so passe, we will have basically constitutional revolution and move power from Congress over to the executive branch. So in another sense, Trump is the end point of this hundred year experiment that we've been running of, meh, let's just have the presidency do it all.
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B
So it's the end point. So where are we ending? Right? Like, what has Trump actually succeeded in claiming? And where have his claims fallen short or not achieved as much as it looked like they might?
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C
I say it's an endpoint because it is so obviously failed. He has failed to implement any of his major policy initiatives through executive order in any realistic sense. You think about Alien Enemies act, federalizing the National Guard, worldwide tariffs, birthright citizenship. These are the main pillars of Donald Trump's policy presidency, the substantive aspects of it, and they've all failed with the exception of birthright citizenship, which is gonna.
- [04:56]
B
What about Trump's campaign for what you might call legal retribution against his enemies? Right. Cause this is another area where there was a lot of aggressive movement. And who is an enemy. You could define that to include the goal of prosecuting James Comey. You could define it to include the President's campaigns against universities, against law firms. Where does that particular campaign stand? And again, we're talking, I guess, a few weeks after Trump fired his Attorney General. Pam Bondi seemed to be primarily related to the Jeffrey Epstein story, like all things are ultimately. But it was also, you know, she had been in charge of conducting this campaign and the campaign was not going well. But how do you assess that campaign after a year or so?
- [05:45]
C
Legally, it has failed at every turn. You can't point to a success in the retribution campaign. And by the way, my list, I think, looks identical to yours. It's not just the individuals, the entities as well. That being said, politically, I think it's been very successful. I don't think Trump cares that much about losing in court. I think probably he's pretty satisfied with that.
- [06:08]
B
Which do you think, do you think? So why did. I guess I looked at the Bondi firing and I said, oh, you know, even though she was willing to do all these things for Trump, he still wasn't satisfied. My sense is that maybe he would have been satisfied if just one of these cases had ended. Like, if just one presidential enemy had been convicted.
- [06:27]
C
Well, let's say this. There's a way to lose competently, and there's a way to lose incompetently. I think President Trump doesn't like displays of incompetence. They're gonna lose those cases no matter who the prosecutor is. But, but culturally, I mean, we're sitting here talking about it. I think we can all point to areas that that has affected. Universities are a great example, by the way, of all sorts of university changes that are downstream from this effort. And so, you know, I focus on law stuff, but it's obvious to me that the legal part is just a very small part of the cultural aspect of the retribution campaign. So I don't know, we'll see what's next. But the good news is that legally, none of it has worked.
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B
Look forward for a minute. What about the liberal anxiety heading into the midterms around elections and election power? Because this, too, is an area where Trump has threatened to or put out sort of executive orders suggesting federal takeovers of election law. Does that follow the same pattern that you've just described, where it takes only works on paper?
- [07:36]
C
He puts out this executive order about mail in ballots, and the Constitution quite clearly says that states control their elections subject to regulations by Congress. So once again, we're back to the same question that we've been at. You know, again, through the Obama administration, through the Biden administration, through the Trump administration, a president wants to do something, can't get it done with Congress, so they go find some vague old statute and are like, oh, Congress gave me this power, like, decades ago. Don't worry too much about it. Signs an executive order, and then, of course, the whole thing winds up in court. The difference for Trump is that the old statutes that he's finding are less persuasive are sort of even harder to justify. And I think his. His election executive order that he did was even flimsier on paper than a lot of these others. But again, I hope it shows people we don't want government by executive order, because either the court will say the president doesn't have the power to do that. Or more likely, it's just that the next guy will get rid of it on day one. So if you think about climate change, Obama has his clean power plan, Trump repeals it. Biden comes into office. He doesn't just put Obama's back into effect, he has his own. And then Trump comes back into office like, this is no way to run a railroad. We take one step forward, we take one step back. We take one step forward, we take one step back. We're just dancing at this point.
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B
Right. But, I mean, the biggest reason, though, that you think it's reached this endpoint, this failure, is that the Supreme Court, the courts generally, but the Supreme Court in particular, have, you know, said no repeatedly. Right. To. Over and over again. And this is sort of the difference between where we are now versus where we were a year ago is that we have a lot of concrete examples of the Supreme Court saying no to Trump. Can you put those together with the cases where the Supreme Court has said yes to Trump on executive power, of which there have also been a lot. And those got a lot of the attention early on. Is there a coherent Supreme Court approach to the Trump administration that makes sense of the range of decisions that we've had?
- [09:55]
C
Yes, again, the wins that Trump has had have all been on that emergency docket, interim docket, shadow docket, whatever we're calling. So the wins have been, what will the status quo be while this case is working its way through? Does the policy go into effect, or does the policy not go into effect while we decide whether the policy is constitutional? Biden had fewer of these executive orders, so there were just fewer of these emergency cases. And he, you know, would win one on the interim docket but lose it in the end and vice versa. So there's nothing particularly new. And those interim decisions can be quite messy. It's very important to understand the denominator for Trump. So, like, at one point, there were these blaring headlines that Trump had won 17 cases in a row, but they choose which cases they appeal. There had been about 120that they did not appeal. They just took the L and lost. And so, as a percentage, Donald Trump isn't actually doing that well even on those. But the conservative legal movement has long had this idea of independent agencies, like, that's not a thing. And you can go back to Justice Kavanaugh's writings as a baby circuit judge, where he talks about the problem of presidents running on what they're gonna do with the economy and then getting into office and realizing they actually have no say over all these parts of the. And as a result, you've created redundancies in the executive branch where parts of the Department of Justice do the exact same thing as the Federal Trade Commission. The difference is the President controls the lawyers in the Department of Justice in a way, he doesn't control the Federal Trade Commission. And so there's, you know, if you're a corporation or even a person trying not to break the law, you're just in a total mess. There's no political accountability that has long existed out there. What has happened is Donald Trump is actually willing to test the waters in it. And so of course he's winning on those things because conservatives have been writing about them for decades. And what's funny is before that, it was liberals writing about them as well.
- [12:11]
B
You mean that when liberals were more likely to win the presidency, there was more scholarship, liberal scholarship, arguing, wouldn't it be nice if the President had more control over all his independent agencies?
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A
Right.
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C
I mean, Chevron doctrine, this idea that courts just defer to whatever the agency thinks its own power is. Was Scalia like that was a conservative thing, that now conservatives are like, ooh, Chevron deference, bleh. So things evolve over time, I guess.
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B
Coalition shift. Yes, I've noticed that. So basically, the Court's understanding of presidential power is, as you're describing it, sort of maximal presidential freedom in terms of what federal agencies and elements of the executive branch are told to do and
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C
then limits where maximal presidential freedom within the executive branch and minimal presidential freedom vis a vis Congress. And it's funny you think about the Court decides these individual questions in cases, but there's also these larger trends because they decide what cases they take. They almost can be on multi year
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B
journeys, projects, sculpting, Sculpting a new.
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C
Yes. And so it matters where they think the constitutional problems are emerging. For a long time. The problems I think they felt were emerging were coming from Congress having too much power vis a vis the states. This is like the Commerce Clause issue. And so in the 90s, you see the Court start saying like, no, no, no, no, no. Congress is a of limited powers. And you know, just because Congress wants to do it doesn't mean it can. Some things are reserved to the states and the federal government doesn't have any say. But by the time you get to the Roberts Court, the problem seems to be emerging from somewhere else. It's not that Congress is doing too much, it's that Congress is doing too little. And so now you see the court on this 20 attorney to try to rein in the President in the hopes. You know, think of it like little siblings and like, you know, the big sibling is just like sitting on the little one and he can't breathe. You know, the court is trying to get the President to stop sitting on Congress. They can't make Congress do its job, but they can hope that if it's very clear that the President cannot solve these problems. You know, if a president runs on student loan debt forgiveness and there's a bill pending in Congress and it doesn't pass, and the President just does it by executive order, you're not gonna have Congress try to pass bills anymore. If one side knows they can get everything they want through executive order, they don't need to compromise. And so the court has been involved in this multi decade process to say, nope, you cannot do it that way. You must go back to the negotiation table. We haven't seen Congress actually take them up on that offer yet.
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B
Well, right, yeah, we'll, we'll get to that. Question of what happens if the courts attempts to sculpt the constitutional order, don't get cooperation. But just to keep with this thread, so basically you're saying that there is this sort of fundamental continuity between the court saying that Joe Biden's attempt to forgive large amounts of student loan debt is unconstitutional because it is policymaking that should be reserved to Congress, and the case of the court saying no to Trump on tariffs. Just drill down a little bit on why was that case a situation where the court could say it doesn't matter how much power Trump has over his own executive agencies, he doesn't have this power.
- [15:52]
C
Yeah. I mean, again, to go back to my sibling analogy, like we're in a road trip and the Chief justice is driving and the two kids are in the back and they keep poking each other. The chief turning back to the two kids is like, you know, Mr. President, like, stay in your seat. Your seat includes all of these agencies. They're not independent of you. You will have more control over them, but they will have less control over anything. And Congress, like, stop trying to give away all your stuff to the presidency just because you don't want to do it anymore.
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B
Right, Because Congress isn't in the analogy. Congress isn't poking the other sibling. Congress is like, here, here, take my, take my toys, take my toys.
- [16:32]
C
But then crying that they don't have any toys. Now, again, you go back to that progressive era when Congress started giving away this power. They did keep two strings. Right. One was this ide that there'd be these independent agencies so the President wouldn't have the power to fire them. And the other was this idea of a legislative veto that Congress at any point could vote on what those independent agencies do and give it a thumbs down. What the Court has done, I think that's been really unhelpful for this constitutional balance is they've taken away those safeguards without taking away the power. So the power keeps accumulating in the executive branch as Congress's strings evaporate. So, you know, the Court got rid of the legislative Veto in the 1980s, so now Congress had no right.
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B
What that means in practice. Right. Is that Congress can't override a president's tariffs without, like having a 2/3 majority.
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C
Yes. Without a veto proof majority. And of course, as they're getting rid of the independence of these agencies, same thing. Right. The President becomes more powerful, but the powers of those agencies are now huge. You know, Justice Kagan has mentioned this in oral argument. Shouldn't we strike down the whole statute, like the existence of the Federal Trade Commission, not just its independence, for instance? And there's something to that argument. So you have this more powerful presidency
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B
in the sense that the Federal Trade Commission, what, by its very existence infringes on Congressional power. What would be the argument for that?
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C
Congress created a bundle of sticks. Right. And the bundle of sticks included the legislative veto, the independent agency, and all of this power. You don't get to take out two of the sticks and then be like, you can just keep that stick. Because the sticks all came together. They're a bundle. It's a bouquet. And so Kagan's point is, let's just strike down the whole thing and make Congress start over. The problem that you'll see over and over again, though, is this was meant to be a conversation between the President and Congress and the courts. If the Court decides a statute means X instead of Y or decides the bundle of sticks, you get this stick, but not that stick. Congress can then jump in and say, no, no, that's not what we meant. We actually meant this and not this. The problem that we keep having is that no one thinks Congress will do that. So the Court becomes the last word on these questions. And that doesn't really work either.
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B
I want to get to what kinds of powers the President has in the face of Supreme Court opposition, because that is something that I think is also connected to the powers that the Court has said the President has Including on presidential immunity. But let's try and do it by sort of walking through a couple of looming cases. Right. Just very, very quickly. Tariffs are obviously the biggest place where the courts have said no to the president.
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C
Correct.
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B
You expect them to say no on birthright citizenship, too?
- [19:28]
C
Absolutely.
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B
And what will be the court's argument or reasoning in that case, quickly?
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C
Well, this is the problem for the administration. They have to win on, like, five different grounds to win it all, and the other side just needs to win on one. So one version of this is what we've been talking about. Congress did not give the president the ability to redefine this. They have a statute in 1952. It has the same language as the 14th amendment. All persons born in the United States and subject to the jurisdiction thereof shall be citizens. And that the court will just say, like, look, if Congress wants to make some more refinements in that, like, for instance, you know, someone who's been here on a tourist visa for under six months, their child is not automatically a citizen. We'll. We'll see that when it comes. And maybe that is. Or maybe that isn't constitutional. But regardless, the president acting alone has no ability to do this whatsoever. We're not gonna be flim. Flamming around with executive orders on who's a citizen in this country.
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B
We.
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C
The president is saying his is only prospective. What if the next president says his is retrospective? What a mess. Another version is that they just, like, get to the root of it and say the 14th Amendment, which has that language that I just told you, it actually already settled this question. And it's everyone except for diplomats, basically, because subject to the jurisdiction thereof just means you're here. We could arrest you for a crime.
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B
Anyone who doesn't have immunity. Right.
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C
So we're done with that. And I think that would garner different majorities on the court. The chief has wanted to make narrower rulings with larger majorities. But you can also see in this case them wanting to settle the question once and for all and not dare Congress to pass a law and then just do this all over again.
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B
So you. But you would guess anywhere from seven to two to nine to zero.
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C
Correct. Okay, but like. And that's the range.
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B
That's the range. Okay, good, good. Well, we'll, you know, we. It's all. I like getting actual predictions in these conversations. What else looms besides birthright citizenship that you think bears on any of the questions we've been talking about?
- [21:38]
C
So two big cases. They're like culturally big cases, but I Think they're court big cases for this, like separation of powers. Conversation is the mail in ballot case about whether Mississippi can have a state law saying that they accept mail in ballots five days after election Day. And the question is whether Congress, you know, in saying that there is an election day meant you, as one of the advocates said you must consummate the election on election day, not just have voted, but that vote needs to be received by a state election official. Or election day doesn't mean anything in particular other than you need to vote. And states can make these rules as they see fit. Some states can have it two days, some states can say, nope, just election day, and Mississippi can stay five days. What's interesting about that case to me is again, the court being the last word is what's making this all a problem. And so I'll be very interested to see, whichever way the court comes out, how the other two branches respond to that, because again, I think the court's trying to jumpstart these branches into actually responding to them. The other case that's similar to that is the asylum case, where there's someone who arrives at the southern border can apply for asylum no matter what, or whether the administration can prevent them from getting to the turnstile and therefore say they do not get to apply for asylum. Again, it's only about a congressional statute, what Congress meant and how the court applies that in this fact pattern. Congress could clarify it tomorrow. Instead of saying arrives in the United States, they could change it to arrives at a port of entry or is in the physical contiguous United States.
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B
But that is sort of a great example of an area where a different Republican president coming into a landscape where the prior administration had used a more liberal interpretation of this law to allow the largest wave of migration in recent American history. A different Republican administration would have come in and said, okay, we have this asylum law that, you know, Joe Biden used in this ridiculous way, let's change the law. And Trump has done nothing like that. There's no revision of the asylum laws pending in Congress, anything like that. He's just assuming that you combine executive power with a friendly Supreme Court. But in this case, maybe it will work and he will get the policy outcome that he wants.
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C
Maybe. But again, if you actually care about this issue and you agree with the Trump administration, the next Democratic president to come in can snap their fingers, change it immediately. So you haven't really won anything, and you also haven't lost anything. And that's the problem that we seem to have right now. What makes Trump, kind of unique is that Joe Biden actually did try to move legislation about student loan debt forgiveness.
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B
Right.
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C
It failed.
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B
It failed.
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C
Obama tried to move legislation on immigration. It failed. Trump hasn't even tried. And remember, before the election, in fact, he told Republicans not to vote for immigration legislation changes because one gets the sense he wanted to do government by executive order. Because this is more fun.
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B
Yes. So most likely there'll be some victories for Trump, but there'll be two really large defeats. Birthright citizenship and tariffs. Both very big issues. Birthright citizenship is more important to the Republican base or the conservative base. Tariffs are obviously close to Trump's own heart. A year ago, there was a lot of conversation, including on this show, about what it would take for Trump to defy the court. In practice, you've had a sequence of setbacks for the president that have been met by angry tirades on social media, some attempts to do end arounds, but basically, Trump has accepted the power of the court to block him. Does that continue? Is there any scenario where Trump acts Andrew Jackson style in defiance of the Supremes?
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C
Not in any of the cases we have yet, really, because first of all.
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B
Well, he hasn't done it yet. But on birthright citizenship, for instance, I'm
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C
saying for the cases that we have pending to talk about, there's not really an option to defy the court. The court has really been defined over the course of our entire American experiment by being at odds with powerful presidents. My argument would be this is built its legitimacy as an independent branch. You know, there's only been 17 chief justices and there's been like 50 presidents. These guys look around and are like, we will outlast you and the next guy and the next guy, like, no problem. Like on birthright citizenship, for instance, if the Supreme Court, as I predict, says, no, Donald Trump cannot do that through executive order, that's sort of the end of it for Donald Trump.
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B
Well, just. Just to walk through the maximally sort of paranoid scenario, because I think there's a lot of people who read the New York Times who entertain these scenarios. Right. The one thing we haven't talked about is the court's ruling about broad executive immunity from prosecution and legal action. This was a big ruling before Trump came into power. I think there's an argument that the court saw it as much protecting Biden from Trump, prosecuting him as protecting Trump. But regardless of that, I think with that in the background, the fears of what a president can do have just gotten stronger. There's just this sense that, well, the court gave the president all this immunity, and so can't he use that to issue crazy pardons and do all kinds of things, knowing that in the end, even if it doesn't work, he won't be prosecuted? What do you make of that argument? Because certainly Trump has not been shy about issuing corrupt pardons.
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C
Nope.
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B
Right. So just how would you reassure someone if you would reassure them that that is unlikely?
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C
If one were giving a president good legal advice, they would say that that immunity decision should have no bearing on how you act. You should act as if it never happened, because we do not know what immunity this actually gives you. Whatever immunity Donald Trump or any president may enjoy. And I really think of the immunity decision as like a preface to a future immunity decision. You just don't know a lot based on that. There's so many unanswered questions. So I wouldn't rely on that at all if I were giving legal counsel to a president, especially if the president was like, hey, I'll pardon you for a future crime you commit on my order to ignore the Supreme Court decision and affirmatively do this thing. You know, those people are going to go to jail and then they can argue about it. And I just don't think there's going to be a lot of executive branch officials that are going to enjoy playing roll the dice with President.
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B
Foreign.
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A
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Learn more@chase.com Sapphire Reserve cards issued by JP Morgan Chase bank and a member FDIC subject to credit approval. Hey, I'm Joel.
- [29:10]
C
And I'm Juliet from New York Times
- [29:11]
B
Games, and we're out here talking to people about games.
- [29:14]
C
You play New York Times Games? Yes, every day. Do you have a favorite Connections? It just makes you think.
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B
I feel like it gives me elasticity. Create four groups of four.
- [29:24]
C
This is actually a pretty cool game. What's your favorite game? The crosswatch.
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B
The crossword. I do it with my brother. We get Thursday sometimes, but I don't think I couldn't do Thursday on my own.
- [29:33]
C
I feel like I'm learning. I feel like I'm accomplishing something. I like the do do, do do do do do do. When you finish it, my family does wordle and we have a huge group chat.
- [29:44]
B
Like my grandma does wordle.
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C
Your grandma does wordle?
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B
Oh, every day.
- [29:47]
C
Yeah. Do you have a wordle Hot take?
- [29:49]
B
You should start with a word that's strategically bad to make it more fun.
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C
All of these games are so fun. Cause it's like a little five to ten minute break. I love these games. Yeah. New York Times subscribers get full access to all our games and features. Subscribe now@nytimes.com games for a special offer.
- [30:16]
B
Okay, let's talk then about the court itself for a moment. Since we've been talking about its powers and how it shapes the country. But obviously it does not exist. Nine people exist. Right. And this is, you know, part of what your book does is try and tease out the actual power dynamics inside this incredibly powerful institution. So just briefly, how do you see the court divided right now beyond the broad conservative majority, liberal minority split?
- [30:44]
C
So I love comparing Justices Gorsuch and Kavanaugh because they're so similar. I mean, they're both the sons of powerful D.C. mothers. They go to the same high school, they work in the W administration. Oh, I forgot to mention. They clerk at the Supreme Court the same term for the same justice. They go on the circuit court at the same time. They go on the Supreme Court nominated by the Same president within 18 months of each other. They are Federalist Society lab creations that are given the imprimatur of perfect conservative Justice. Kavanaugh was more likely to agree with every other justice, including Sotomayor and Kagan. Jackson is the one exception then Gorsuch. So you've gotta come up with some other way other than ideology to explain why these guys repel each other in opinions. They are the only two justices to switch spots between the federalizing the National Guard case that Trump lost and the tariff case that Trump lost.
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B
But allowing for that kind of uniqueness, it still seems to be the case that you do have a kind of three, three, three totally division on the court. Three Justices who seem to the casual observer at least further to the right, three who are conservative but center right and move back and forth function as swing votes, and three who are more liberal. Is that how you would define the three groupings?
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C
Not quite. I think, you know, what you just described is a horizontal ideological spectrum. But I think there's a vertical one that, you know, I've said is institutionalism. You can think of it as respect for precedent, thinking of the court as a single voice, thinking of, you know, its legitimacy and credibility over time and through the other branches. But that's a spectrum as well. And it's temperamental, it seems, more than anything. And yet we see presidents spend so much time thinking about that horizontal axis and making sure they have Someone who is going to rule the right way on these whatever the specific culture war issue of the day is, when in fact that vertical axis is responsible for which cases the Supreme Court decides to take, how narrowly or broadly they decide them. Whether, you know, it's 6, 3 or 7, 2 or 8, 1 or 5, 4, that has a lot more to do with that axis. And it's interesting that presidents haven't seemed to notice that yet.
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B
Give me just two contrasts, one conservative and one liberal, of people who are high versus low on institutionalism.
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C
Yeah, you bet. So Kagan and Kavanaugh are both high institutionalists. They are going to moderate their own positions to get larger majorities on the court. They're far less likely to write separate concurrences with their own sort of idiosyncratic views of the law. Justice Kagan has called concurrence is a. Hey, I've got a thought and I want to share it. You know, she poo poos. The very idea of having these concurrences low institutionalists, my non institutionalists, Gorsuch and Jackson, certainly I've referred to Justice Gorsuch in the book as the great concurrer after, of course, the great dissenter, John Marshall Harlan. They're going to write separately about their own views of the law. They're not going to care very much about precedent. What those guys decided isn't my problem. This is what I think of this case right now. And they're not going to think very much about the Court as an institution. Over time, again, that leads you to make bad decisions that take into account all sorts of things that aren't your job. Your job is just to read the Constitution says what the Constitution says the end. Those are my low institutionalists.
- [34:40]
B
But there's still also just a pretty clear sort of three. Three, three. Or maybe, I mean, yeah, Gorsuch, I agree. Is maybe he's unclassifiable. The first three are the most conservative in any. Just sort of casual. Let's be simplistic.
- [34:58]
C
Let's be casual.
- [34:58]
B
Well, no, I mean. Cause I just think it's important to insist upon the evidence of our eyes and ears. Yes, the justices cross lines all the time and have all kinds of eccentricities. But in the end, on the big cases, you would say there's three justices who are the furthest to the right. There's three who are center right and there's three who are liberal right.
- [35:21]
C
I'm not sure that Thomas Alito and Gorsuch are more conservative than the chief Kavanaugh and Barrett.
- [35:30]
B
Okay.
- [35:31]
C
I do think that they are more idiosyncratic in the book. I call them conservative honey badgers, like they are each soloist, you know, but depending on the issue, they can move all around about the conservativeness. And it goes to this definition of what conservative is, and they don't even agree on that. And I think it's going to be really hard for anyone to predict the outcome of cases if all they think about is ideology in which justices are more conservative than the other.
- [36:00]
B
Which of the middle ground justices do you think is the most influential? Because again, I grew up in a world where for a long time, the only thing you needed to know to figure out how the court was gonna rule was to psychoanalyze Sandra Day o' Connor and Anthony Kennedy and then o' Connor Ret. And for a little while, it was just like, Anthony Kennedy is in charge of the Supreme Court. He is our philosopher king and so on. There's no philosopher king out of Roberts, Kavanaugh and Barrett. But is there a Justice that you think is the defining justice of the Court right now?
- [36:32]
C
I love the question of who is the most influential justice because it gets to this very interesting question over what it means to have influence over time. So, yes, Justice Kennedy was very influential over how cases turned out. If we're just doing that metric, it's Kavanaugh, he is in the majority more than any justice in the modern era, more than Justice Kennedy even was.
- [36:55]
B
So that's really interesting.
- [36:57]
C
Check that as an answer. On the other hand, when we look at that era of the Court, we don't think of Justice Kennedy as being influential on the legal project. We think of Justice Scalia as being the most influential. And so in that sense, I think you can come closer to understanding the project Justice Jackson thinks she is doing, or Justice Thomas, for instance, with text, history and tradition, he's in the majority less than any justice, some terms. And yet we do think of him as being quite influential because it's not always about being the fifth vote and being in the majority.
- [37:32]
B
Right. But Kennedy wasn't influential long term, in part because he did play the philosopher king. And each decision seemed to be emanating from this kind, his kind of vario idiosyncratic and personal reading of the state of the American soul. Someone like Barrett, though, is in the same kind of position as Kavanaugh or Kennedy before her, but is a sort of Scalian hardcore theorist. So when she's in the majority, she's trying to ground the decision in Theory, I think to a greater degree than Kavanaugh or Roberts. So does that mean that you would bet on her as the influencer just out of that group?
- [38:13]
C
Yeah. She is certainly, you know, like the Dos Equis guy, the most interesting justice in the world because she is on this formalism project.
- [38:23]
B
All interesting times guests are, you know, the most interesting people in the world. So I'm glad to hear that she qualifies. Go on.
- [38:29]
C
For sure, she's on this formalism project. Right. She is doing something different than Justice Scalia was. She's doing something different than the other justices are. And what makes it interesting is while being very conservative, if you were to plot that, you know, spectrum on kind of any definition of federalist society conservative, she has ruled against the Trump administration more than the other conservative justices. Gorsuch, by the way, has the distinction of ruling against the government more than any Justice. Cuz he's our like libertarian.
- [39:01]
B
He's consistent. Biden, he's against Biden, he's against Trump, he's against them all.
- [39:06]
C
Yeah, I love. He's the solo dissenter in this IRS tax case that's like, who cares? Except he was like, no, screw the irs. They're always the bad guys. So what Barrett is up to is what everyone is watching, even though she's not the most likely to be the fifth vote, but because there's this sense that she is moving the court more than just as the deciding vote.
- [39:33]
B
So then what about the liberals? So you already mentioned, right, that Justice Jackson is clearly playing for the long term in the sense of writing dissents, that there's no chance she's going to get any of the conservative justices to ever sign onto. But the theory is you are basically trying to establish a view of all of these decisions that will be available to a future liberal majority when it comes time to unwind the decisions of the conservative court. Talk about her, but then talk about how that's different from what certainly than what Justice Kagan is doing. And I'm curious where you think Justice Sotomayor fits in that because, you know, what you do in dissent is very interesting generally, I think.
- [40:18]
C
Well, let's just make sure we level set on their seniority. So if you're in the majority, it's the senior most justice in the majority who gets to assign the opinion. And if you're in dissent, the senior most justice in dissent gets to assign the dissent. Justice Sotomayor is the senior most of the liberal justices, and so in that sense, she is the great dissenter. Of this Court. She's gonna write the dissents in those big cases. The principal dissent, Justice Jackson, though, is writing a whole lot more in sort of a like, hey, but also, you know, voice, where there might be a principal dissent from Justice Sotomayor, and then you get another dissent from Justice Jackson. Again, she's anti institutionalist. She sees her job as fundamentally different. Every justice signs their name into the flyleaf of John Marshall Harlan's Bible before they take office. His portrait sits in the conference as they vote. He is the justice that they will all tell you is their North Star. He is the sole dissenter in Plessy v. Ferguson, upholding Louisiana's separate railroad car. Posterity now says that he was obviously right. And it's this idea that in the moment, you shouldn't be caught up in the culture and what the majority tells you and how you were raised or anything else. Your job is only to say what the Constitution demands, and that is when the Court is at its best. And so every justice wants to be John Marshall Harlan. Every justice wants to avoid being Roger Taney, the Chief justice who decides Dred Scott. And the question is how they all are trying to navigate to do that. And for.
- [41:56]
B
But many of them don't want to be John Marshall Harlan all the time. And so this is the balance where, if you look at Justice Kagan, it seems very clear that she is trying to envision a liberal jurisprudence that could take over the Court if you just flipped a seat or two. Right. Whereas Justice Jackson is envisioning a liberal jurisprudence that would require five seats to flip. And that's very different. Right?
- [42:24]
C
Yeah. Last term, we saw several 7:2 decisions where Kagan separates from Sotomayor and Jackson. Even the Chiles case, this term on conversion therapy and the First Amendment, it was 8:1. Jackson is still by herself. Jackson's not crazy, though. After FDR left office, there were nine Democratic appointees on the Supreme Court. As recently as 1992, there were eight Republican appointees on the Supreme Court. These swings happen faster than I think we think. And so justice, you know, the liberal jurisprudential set has really been struggling to find what's going to replace living constitutionalism. They are all doing versions of textualism and originalism, especially now that those methodologies are against what Donald Trump is doing.
- [43:15]
B
Right.
- [43:16]
C
So as the liberals search for what that jurisprudential methodology is going to be, Jackson is trying to define one, and Kagan is trying to define a different one. She is the strategic Justice.
- [43:31]
B
Right.
- [43:31]
C
She's constantly trying to Remind the other justices. Don't forget you want to be consistent. Remember this other thing that you did find consistencies in that. Or look at this originalist argument. Ah, aren't you an originalist? You know, what if we take this out and just narrow this decision? What if we don't take this case? So she is winning all sorts of things behind the scenes. And Jackson is like, no, I'm not doing strategy. We're not doing behind the scenes. I'm not narrowing apertures. Who cares about apertures? I'm gonna write in nearly every case.
- [44:01]
B
Do you think that's mostly an intellectual or a temperamental difference? Like what? Temperamental?
- [44:06]
C
Yes.
- [44:07]
B
So it's just like the kind of person you are coming into the court matters as much or more than your sort of formal jurisprudential commitments.
- [44:16]
C
Presidents have been caring so much about these ideological commitments, they haven't paid attention to the temperament at all. And the temperament is defining which cases the court is taking and how narrowly or broadly they're deciding them far more than the ideological stuff.
- [44:57]
A
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- [45:21]
B
Learn more@chase.com Sapphire Reserve cards issued by JP Morgan Chase bank and a member FDIC subject to credit approval. I'm Dane Brugler. I cover the NFL draft for the Athletic. Our draft guide picked up the name the Beast because of the crazy amount of information that's included. I'm looking at thousands of players putting together hundreds of scouting reports. I've been covering this year's draft since last year's draft. There is a lot in the Beast that you simply can't find anywhere else. This is the kind of in depth, unique journalism you get from the Athletic and the New York Times. You can subscribe@nytimes.com subscribe. Temperament also connects to one of the biggest decisions justices make, which is when to leave. Right. A decision that famously reshaped the court in a profound way when Ruth Bader Ginsburg decided to hang on for one more term. There's a lot of talk actually about both Samuel Alito and Clarence Thomas, but it's mostly about Alito potentially retiring now, with a situation where a Republican president can appoint his replacement and a Republican Senate can confirm one which may not obtain for two years, four years, much beyond that, do you think he's going to retire?
- [46:49]
C
It is such a close call. There's just no indications that Justice Thomas wants to leave. That's why we're all ignoring that possibility. Justice Alito, there's just evidence on both sides. On the one hand, he has, you know, twin grandbabies and he's never seemed like much of a people person. On the other hand.
- [47:09]
B
But maybe that means he doesn't like the twin grandbabies. You never know, right? I mean, no, everybody likes their twin grand grandbabies. I apologize to the justice for the imputation. Go on.
- [47:19]
C
You know, he has this book coming out and that set tongues wagging because the book's release is for that first week of oral argument. And on the one hand, a book
- [47:28]
B
is going to sell in the next term.
- [47:30]
C
Yes, in October. On the one hand, this is his first book. A book is going to sell much better if you're an active Supreme Court justice. On the other hand, you're not doing a book tour because it's during that week that you're sitting for oral argument. But of course, this is Justice Alito not doing a book tour as a feature, not a bug. So hard to know. That being said, we're certainly all making our short lister lists and taking bets all the same.
- [47:59]
B
Well then let's talk about those bets, about potential replacements. Right. Because the dynamic on the right, we've just been talking about the dynamic among liberals. But the dynamic on the right is itself incredibly complicated because on the one hand, you have sort of the normal range of ideological possibilities. You want another lab grown Federalist Society justice. Do you want someone who sort of represents the kind of common good constitutionalism that some conservative theorists have embraced? But then you have Trump himself who is really angry about the justices he picked, who Leonard Leo and the Federalist Society handed to him. And they've all betrayed him in various ways. And he, you know, I don't think it's would be, it's not false at all to assume that he wants a yes man, a hack and a crony on the Supreme Court. So what do you get out of that combination? What kind of nominee?
- [49:01]
C
When we look at the circuit nominations that Donald Trump has made, they all look remarkably similar and they are all of a first term ilk. They all have the same resumes that Federalist Society judges have always had. By the way, I'm Becoming increasingly convinced that that is a bad thing. We are so narrowing the resumes that one may have. So by that measure, it sure looks like his Supreme Court nomination would come from the circuits. And, you know, Judge Andy Oldham on the Fifth Circuit clerked for Justice Alito, and currently three of the nine justices replace the justice that they clerked for. The chief replaced the former chief. Justice Kavanaugh replaced Justice Kennedy. Justice Jackson replaced Justice Breyer. So that's why he is probably at the top of everyone's shortlist right now. But that's not necessarily a great thing.
- [49:58]
B
Right. But still, it does seem like Alito has been the justice most likely to side with the Trump administration in a lot of key cases. He's also a serious, respected jurist and not seen as, you know, crony or yes man. So it seems like the Alito mold is the place where Trump's desire for court support meets. Who can actually get confirmed? Right. Like, give me a name. Who does Trump nominate? Where it's perceived as just a Trump pick and Senate confirmation is in doubt.
- [50:34]
C
So I think the just a Trump pick is probably Solicitor General John Sauer. But what's interesting about him is that he would get confirmed quite easily. He has the shininess of the resume while having the, you know, shown loyalty to Trump. Elena Kagan was, of course, Solicitor General and had not been a circuit judge before she went on the court. So John Sauer would easily be following in that model. You know, I think that the. If we want to keep moving along that spectrum, you probably get to Todd
- [51:03]
B
Blanche next, who is the acting Attorney General in the wake of Pam Bondi's firing.
- [51:09]
C
Right. You know, there's Eileen Cannon, the district judge who ruled in favor of Trump in some questionable motions and areas involving the classified documents case. I hear her name mentioned a lot, but most of the time, people sort of giggle afterwards like it would be a troll. But Trump's not opposed to trolling.
- [51:28]
B
Your book is an endorsement of the court as an institution in the sense that you argue that in a difficult situation, to put it mildly, it's serving the country. Well, I agree that I think the court is doing a decent job under difficult circumstances, but I did come of age with a common conservative view, that said, that it's a bad thing for American democracy to have so many crucial questions. Culture war questions, maybe especially. But not only them, settled in the final analysis by five to four votes from a bunch of increasingly Ivy League lawyers. And I'm still sympathetic to that view, even though now that final say aligns More often, much more often than it did 20 years ago with my own political preferences. What about you? Were you a court skeptic 15 years ago in that sense?
- [52:23]
C
Oh, I think everything you're saying is still true and completely consistent with the idea of this institution being the last branch standing. This is the problem we face, which is you need Congress to get back in the game for this whole thing to work. The Court cannot stand as an institution by itself. And by the way, I defend the institution. That doesn't mean you can't criticize decisions of the Court or think decisions were wrong. It's more about like, abolish the Supreme Court stuff. Doesn't make sense when the Supreme Court is the only counter majoritarian branch we have, which is to your point, it has to use that counter majoritarianness sparingly. It is not meant to stand athwart being nine platonic guardians saying, you know, here's what we think is the better answer. President Lyndon Johnson famously said, why amend the Constitution when Justice Douglas can do it in an afternoon? We don't want that. And that's the Imperial Court you're talking about. So I don't think we have an Imperial Court by necessity. I think we have an Imperial Court by choice because we are not voting. We are not creating the incentives to bring in Congressmen who legislate.
- [53:37]
B
But to the extent that choice is being made under conditions where the Constitution, at least as interpreted through Marbury versus Madison, and there are other interpretations, but as interpreted through judicial review, U.S. supreme Court has sweeping power relative to lots of other modern democracies. It's an unusually powerful court. And some people would say, well, the problems of presidential power, the atrophying of congressional power, they're what you'd expect when the system by its nature pools certain kinds of power in the judiciary in this way, like you get abdication from Congress for a reason. And those people, again, they used to be on the right, now they're on the left. More might say maybe if we weaken the Court to some degree or weaken the power of the Justices. Right, and you have term limits, for instance, or you change the way in which the Court is constructed, maybe that drains some power from it and then that power flows back to Congress. What do you make of that argument?
- [54:46]
C
I suggest several reforms at the end of the book. We could end forum shopping tomorrow. I think that's incredibly dangerous for the judiciary as a branch. This idea that you can pick which judge hears your case. I don't care how fair that judge is. If everyone knows one side picked you, you're not going to look very fair. And we could easily fix that having a binding ethics code. I suggest amendments to the Constitution, the first one of which should be make amending the Constitution easier, by the way. Also make the impeachment conviction level lower. So again creating more accountability and a little more churn like what I think you want. What I would caution people about is, you know, look at Chesterton's nice fence over there. Before you start tearing it down, make sure you know what's on the other side of the fence. So with term limits, for instance, it sounds nice. Every president would get two picks on the court. Those justices would serve for 18 years. It would create a lot more consistency.
- [55:43]
B
Right. You wouldn't be relying on quite literally the workings of divine providence to decide. No, seriously, to decide when justices die and are replaced.
- [55:54]
C
Yeah, there are lots of conservatives and liberals who are term limit curious. I would like to disabuse them of that notion based on what the second and third order effects will be. First of all, if every president automatically gets two picks, those two people will eventually be named ahead of time and eventually they will end up being part of a ticket campaigning with the President. You will have the President, the vice president, and you know, two Supreme Court Justices. That will change who becomes a Supreme Court justice. Like it's changed who becomes a President. We no longer pick the best president. We pick the best person at running for president. Second, when those people are ready to leave office after 18 years, they are going to want another job. What if they want to be Attorney General? Would you trust their decisions in advance of them leaving the court? If they're angling for a cabinet spot, that what if they want to go join a corporation for a lot of money? What if the other justices know, you know, this president has been elected, he's about to get his second pick on the court on. So let's hold these cases until that justice is on because we think they'll decide it better. It will make the court less independent. It will make trust in the court, I think, deteriorate quite a bit. And remember, the Court isn't meant to be democratically accountable. It's meant to be counter majoritarian to protect the first Amendment or the fourth Amendment. We want it to stand against these bare and fleeting majorities in our pluralistic society. And if you get a big enough majority, you amend the Constitution. If you get a long enough majority and the culture has changed, you get new justices on the Supreme Court that reflect that as well. But Beware of changing the incentives of these justices because its independence is the superpower.
- [57:43]
B
So I buy that argument to some degree. I can certainly imagine all kinds of unintended consequences that flow from turning the Supreme Court into a term limited enterprise. I guess I just wonder when you describe a better world that involves big changes to the amendment process or things like that. That seems fairly unrealistic to me. And when I look ahead from the where we are to where we're going, it seems like Donald Trump probably is not going to pick a constitutionally existential fight with the Supreme Court, in part just because he's really unpopular right now and he doesn't have the oomph to pull it off. But it just seems to me like over a longer time horizon, you have an imperial presidency and we won't call it an imperial court, but you have a very powerful court and a weakened Congress. I just sort of foresee some kind of constitutional crisis in our future driven by this sort of court versus president collision. And I like the court right now, and I don't like the president, but the president is elected, the court is not. And so I'm just not. I'm not sure how all of that turns out. So that's less a question than a, you know, well, a sort of gloomy, sort of gloomy prophecy. And I'm curious if you have to carry us out a more optimistic take on the next 15 years of judicial history.
- [59:10]
C
I think our politics is turning. And politics, of course, is downstream from culture.
- [59:15]
B
You know, reality, it's more like a whirlpool. Surely everything's downstream of everything else. But now, go on.
- [59:21]
C
Reality TV viewership is dropping off a cliff and perhaps we are done with our reality TV era of candidates as well. And it will take a little while, but when people realize over, over, over that these executive orders aren't actually working, we're not solving any of the problems. I look at the primary race in Texas between Talarico and Crockett and the Democratic primary for Senate, and Crockett ran a very traditional, you know, what I'm calling this reality TV based candidacy looks a lot like Donald Trump with some different policy priorities. Talarico ran a very Ted Lasso campaign, optimistic. He had campaign mechanics, you know, on the ground type organizing. And Talarico won in the end. And if that's a harbinger of things to come, we could actually have a functional Congress and the court can recede back into just being part of the conversation instead of the last word in the conversation. And the other thing I'll just add is, historically, this is not the biggest threat the court has faced in history. That absolutely goes to Thomas Jefferson when he impeaches Samuel Chase for being a partisan hack, basically with the goal of eventually impeaching Chief Justice John Marshall and ending the Supreme Court before it began. It was not the organization or the institution we think of it as today at all. You know, Marbury versus Madison, the ink was still wet on. So this idea of what it was, what it would be, what its value was in our system was all up for grabs. And Jefferson wanted it to be a reflection of politics. And of these elections, that's the biggest threat. So the court has faced off with greater presidents than this. Lincoln, fdr. I. I think the institution will survive just fine if we understand it better.
- [61:18]
B
All right, Sarah Isger, thank you so much for joining.
- [61:20]
C
Makeup. Thanks for having me.
- [61:46]
B
Interesting Times is produced by Sofia Alvarez Boyd, Victoria Chamberlain, and Emily Holzeneck. Jordana Hochman is our executive producer and editor. Original music by Isaac Jones, Sonia Herrero, Aman Sahota, and Pat McCusker. Mixing by Efim Shapiro. Audience strategy and operations by Shannon Busta, Christina Samulewski, Andrea Batanzo, and Emma Kelbeck. Special thanks to Jonah Kessel, Allison Brusek, Marina King, Jan Kobel, and Mike Pierretz. And our director of opinion shows is Annie Rose Strasser.
- [62:45]
C
So good, so good, so good.
- [62:47]
B
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