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 the 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 Isgur, 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 Supreme Court, and whether we should be reassured or troubled that it takes an imperial judiciary to counter an imperial presidency, with Congress increasingly out of the picture.
Below is an edited transcript of an episode of “Interesting Times.” We recommend listening to it in its original form for the full effect. You can do so using the player above or on the NYTimes app, Apple, Spotify, Amazon Music, YouTube, iHeartRadio or wherever you get your podcasts.
Ross Douthat: Sarah Isgur, welcome to Interesting Times.
Sarah Isgur: Thanks for having me.
Douthat: 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. 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.
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 his attempt been to remake the presidency’s powers?
Isgur: 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 turned the amp up to 11 on places that his predecessors had built on in the past.
On the one hand, we can go back to Obama’s “pen and phone” moment.
Archival clip of Barack Obama: 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 the ball forward.
In a lot of ways, you can see Trump using a much bigger pen and a much bigger phone and really having done all of government by executive action.
In another lens, you could go all the way back to the progressive era, to Teddy Roosevelt and Woodrow Wilson, where they think Congress is a bunch of dumb-dumbs coming from wherever, saying: 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 passé, we will basically have this constitutional revolution and move power from Congress over to the executive branch?
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.”
Douthat: So it’s the endpoint. Where are we ending? 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?
Isgur: I say it’s an endpoint because it has so obviously failed. He has failed to implement any of his major policy initiatives through executive order in any realistic sense. Think about the 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 going to [fail].
Douthat: What about Trump’s campaign for what you might call legal retribution against his enemies? 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 and against law firms. Where does that particular campaign stand?
And again, we’re talking a few weeks after Trump fired his attorney general, Pam Bondi, which seemed to be primarily related to the Jeffrey Epstein story, like all things are ultimately. But it was also this sense that 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?
Isgur: Legally, it has failed, at every turn. You can’t point to success in the retribution campaign. And by the way, my list, I think, looks identical to yours. It’s not just the individual — it’s 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, which —
Douthat: Do you think so? I guess I looked at the Bondi firing and I said, “Oh, even though she was willing to do all these things for Trump, he still wasn’t satisfied.” My sense is that maybe he would’ve been satisfied if just one presidential enemy had been convicted.
Isgur: 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 going to lose those cases no matter who the prosecutor is.
But culturally, I mean, we’re sitting here talking about it. I think we can all point to areas that has affected. Universities are a great example, by the way — all sorts of university changes are downstream from this effort.
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.
Douthat: Look forward for a minute. What about the liberal anxiety heading into the midterms around elections and election power? This, too, is an area where Trump has threatened to or put out executive orders suggesting federal takeovers of election law. Does that follow the same pattern that you’ve just described, where it only works on paper?
Isgur: Totally. 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, 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 they’re like, “Oh, Congress gave me this power decades ago. Don’t worry too much about it.” He 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 and even harder to justify. And I think 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. Either the court will say, “The president doesn’t have the power to do that,” or more likely, the next guy will get rid of it on day one.
Think about climate change: Obama had his clean power plan. Trump repealed it. Biden came into office. He didn’t just put Obama’s plan back into effect — he has his own. And then Trump came back into office.
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.
Douthat: 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 said no repeatedly.
Isgur: Over and over again.
Douthat: And this is the difference between where we are now, versus where we were a year ago: 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 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?
Isgur: Yes. Again, the wins that Trump has had have all been on that emergency docket, interim docket, shadow docket — whatever we’re calling it.
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 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. 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 more than 100 that they did not appeal. They just took the L and lost. 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 that independent agencies are not a thing. 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 going to do with the economy and then getting into office and realizing they actually have no say over all these parts of the economy.
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. 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. 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.
Douthat: 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?
Isgur: Right. I mean, Chevron doctrine, this idea that courts just defer to whatever the agency thinks its own power is, was Scalia. That was a conservative thing. And now conservatives are like, “Ugh, Chevron deference — blech.” So, things evolve over time, I guess.
Douthat: Right. Coalitions shift. Yes, I’ve noticed that. So basically, the court’s understanding of presidential power is, as you’re describing it: Maximal presidential freedom, in terms of what federal agencies and elements of the executive branch are told to do. And then, limits are where?
Isgur: Maximal presidential freedom within the executive branch and minimal presidential freedom vis-à-vis Congress.
And it’s funny — the court decides these individual questions and cases, but there’s also these larger trends. Because they decide what cases they take, they can almost be on multiyear journeys or projects.
Douthat: Sculpting anew.
Isgur: Yes, yes. And so it matters where they think the constitutional problems are emerging.
For a long time, the problems that I think they felt were emerging were coming from Congress having too much power vis-à-vis the states, like the commerce clause issue. So in the ’90s, you see the court starts saying: No, no, no, no, no. Congress is of limited powers. And 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.
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. So now you see the court on this 20-year journey to try to rein in the president. Think of it like little siblings, and the big sibling is sitting on the little one and he can’t breathe. 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 — 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 going to 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 multidecade 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.
Douthat: Right. We’ll get to that question, of what happens if the court’s attempts to sculpt the constitutional order don’t get cooperation.
But just to keep with this thread, basically you’re saying that there is this 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.
Drill down a little bit on tariffs. 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”?
Isgur: Again, to go back to my sibling analogy, it’s like we’re on 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, says: “Mr. President, 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, stop trying to give away all your stuff to the presidency just because you don’t want to do it anymore.”
Douthat: Right. Because, in the analogy, Congress isn’t poking the other sibling. Congress is like: “Here, take my toys.” Right?
Isgur: And then crying that they don’t have any toys.
Again, if you go back to that progressive era, when Congress started giving away this power, they did keep two strings. One was this idea that there’d be these independent agencies, so the president wouldn’t have the power to fire them at will. And the other was this idea of a legislative veto, where Congress at any point could vote on what those independent agencies do and give it a thumbs down.
What the court has done that I think has 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’ strings evaporate. The court got rid of the legislative veto in the 1980s, so now Congress had no version —
Douthat: Right. What that means in practice is that Congress can’t override a president’s tariffs without having a two-thirds majority.
Isgur: Yeah, without a veto-proof majority. And of course, as they’re getting rid of the independence of these agencies, same thing — the president becomes more powerful, but the powers of those agencies are now huge.
Justice Kagan has mentioned this in oral argument: Should 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 —
Douthat: In the sense that the Federal Trade Commission, by its very existence, infringes on congressional power? What would be the argument for getting —
Isgur: That Congress created a bundle of sticks, 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, from 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.
Douthat: I want to get to what kind 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 walking through a couple of looming cases.
Tariffs are obviously the biggest place where the courts have said no to the president.
Isgur: Correct.
Douthat: You expect them to say no on birthright citizenship, too?
Isgur: Absolutely.
Douthat: And what will be the court’s argument or reasoning in that case?
Isgur: Well, this is the problem for the administration. They have to win on, like, five different grounds to win at all, and the other side just needs to win on one.
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 the court will just say: Look, if Congress wants to make some more refinements in that — for instance, someone who’s been here on a tourist visa for under six months, their child is not automatically a citizen — we’ll see that when it comes. 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 going to be flimflamming around with executive orders on who’s a citizen in this country. 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 get to the root of it and say: The 14th Amendment — which has that language that I just told you — 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.
Douthat: Right. Anyone who doesn’t have immunity.
Isgur: Right. 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.
Douthat: But you would guess anywhere from 7-2 to 9-0?
Isgur: Correct. And that’s the range.
Douthat: OK. Good. 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?
Isgur: So, two big cases. They’re culturally big cases, but I think they’re big cases for the court in this separation of powers conversation. 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 — the question is whether Congress, in saying that there is an Election Day, meant, as one of the advocates said, that 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 say 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. 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 jump-start these branches into actually responding to them.
The other case that’s similar to that is the asylum case — whether 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.”
Douthat: But that is 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 would’ve come in and said, “OK, we have this asylum law that Joe Biden used in this ridiculous way. Let’s change the law.” And Trump has done nothing like that.
Isgur: Nothing.
Douthat: There’s no revision of the asylum laws pending in Congress, anything like that. He’s just assuming that you combine an 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?
Isgur: 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 and 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.
Douthat: Right. It failed.
Isgur: It failed. 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.
Douthat: Yes. So, most likely there’ll be some victories for Trump, but there’ll be two really large defeats — birthright citizenship and tariffs. Both are 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?
Isgur: Not in any of the cases we have yet, really. First of all —
Douthat: Well, he hasn’t done it yet. But on birthright citizenship, for instance?
Isgur: I’m 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 has actually built its legitimacy as an independent branch. 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. No problem.
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.
Douthat: Well, to walk through the maximally paranoid scenario, because I think there’s a lot of people who read The New York Times who entertain these scenarios, 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.
Regardless of that, I think with that in the background, the fears of what a president can do have just gotten stronger. There’s this sense that, well, the court gave the president all this immunity, 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.
Isgur: Nope. [Laughs.]
Douthat: Right. So, how would you reassure someone, if you would reassure them, that that is unlikely?
Isgur: 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 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.” Those people are going to go to jail, and then they can argue about it.
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 Trump.
Douthat: OK. Let’s talk about the court itself for a moment. We’ve been talking about its powers and how it shapes the country. But obviously, it does not exist — nine people exist.
Part of what your book does is try and tease out the actual power dynamics inside this incredibly powerful institution. So briefly, how do you see the court divided right now beyond the broad conservative majority, liberal minority split?
Isgur: So, I love comparing Justices Gorsuch and Kavanaugh because they’re so similar. They’re both the sons of powerful mothers in the D.C. area. They go to the same high school.
They work in the George W. Bush 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 got to come up with some other way other than ideology to explain why these guys repel each other in opinions. They’re the only two justices to switch spots between the federalizing the National Guard case that Trump lost, and the tariff case that Trump lost.
Douthat: But allowing for that kind of uniqueness, it still seems to be the case that you do have a kind of 3-3-3 division on the court.
Isgur: Totally.
Douthat: Three justices who seem, to the casual observer at least, further to the right; three who are conservative but center-right, and who move back and forth and function as swing votes; and three who are more liberal.
Is that how you would define the three groupings?
Isgur: Not quite. I think what you just described is a horizontal ideological spectrum. But I think there’s a vertical one as well, that I’ve said is institutionalism. You can think of it as respect for precedent, thinking of the court as a single voice, thinking of 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 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 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.
Douthat: Give me just two contrasts — one conservative and one liberal — of people who are high versus low on institutionalism.
Isgur: 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 idiosyncratic views of the law. Justice Kagan has called concurrences a Hey, I’ve got a thought and I want to share it. 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, say what the Constitution says — the end. Those are my low institutionalists.
Douthat: But there’s still also just a pretty clear sort of 3-3-3 — or maybe, Gorsuch, I agree, maybe he’s unclassifiable. The first three are the most conservative in any sort of casual — Let’s just be simplistic.
Isgur: Let’s be casual.
Douthat: Well, no. I mean, 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, three who are center right, and three who are liberal. Right?
Isgur: I’m not sure that Thomas, Alito, and Gorsuch are more conservative than the chief [Roberts], Kavanaugh, and Barrett.
Douthat: OK.
Isgur: I do think that they are more idiosyncratic. In the book, I call them conservative honey badgers. They are each soloists. 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.
I think it’s going to be really hard for anyone to predict the outcome of cases if all they think about is ideology and which justices are more conservative than the other.
Douthat: 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 going to rule was to psychoanalyze Sandra Day O’Connor and Anthony Kennedy.
Isgur: Right.
Douthat: And then O’Connor retired, and for a little while it was like: Anthony Kennedy is in charge of the Supreme Court. He is our philosopher king.
There’s no philosopher king among Roberts, Kavanaugh, and Barrett. But is there a justice who you think is the defining justice of the court right now?
Isgur: 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.
Douthat: That’s really interesting.
Isgur: So, 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. In that sense, I think you can come closer to understanding the project that 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.
Douthat: 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 his very 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 hard-core 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.
Does that mean that you would bet on her as the influencer, just out of that group?
Isgur: Yeah. She is certainly, like the Dos Equis guy, the most interesting justice in the world, because she is on this formalism project. [Laughs.]
Douthat: All “Interesting Times” guests are the most interesting people in the world, so I’m glad to hear that she qualifies.
Isgur: [Chuckles.] For sure.
She’s on this formalism project. She’s doing something different than Justice Scalia was. She’s doing something different than the other justices are. What makes it interesting is, while being very conservative — if you were to plot that spectrum on 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 because he’s our libertarian YOLO. [Laughs.]
Douthat: Right. He’s consistent. He’s against Biden. He’s against Trump. He’s against them all.
Isgur: Yeah. He’s the solo dissenter in this I.R.S. tax case. That’s like, who cares? Except he was like: No, screw the I.R.S. 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.
Douthat: What about the liberals? You already mentioned 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 on to. 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, certainly than what Justice Kagan is doing. And I’m curious where you think Justice Sotomayor fits in that, because what you do in dissent is very interesting generally, I think.
Isgur: Well, let’s just make sure we level set on their seniority. 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. In that sense, she is the great dissenter of this court. She’s going to write the dissents in those big cases — the principal dissent. Justice Jackson, though, is writing a whole lot more in a sort of “Hey, but also” 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 fly leaf 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 tell you is their North Star. He’s 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.
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 —
Douthat: But many of them don’t want to be John Marshall Harlan all the time. 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, whereas Justice Jackson is envisioning a liberal jurisprudence that would require five seats to flip. And that’s very different, right?
Isgur: 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 was 8-1. Jackson is still by herself.
Jackson’s not crazy though. After F.D.R. 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 we think.
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.
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. 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. Aren’t you an originalist? What if we take this out and just narrow this decision? What if we don’t take this case?
So Kagan 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 going to write in nearly every case.
Douthat: Do you think that’s mostly an intellectual or a temperamental difference?
Isgur: Temperamental, yes.
Douthat: So the kind of person you are coming into the court matters as much or more than your formal jurisprudential commitments?
Isgur: Yes. And 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.
Douthat: Temperament also connects to one of the biggest decisions justices make, which is when to leave. A decision that famously reshaped the court in a profound way was 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 they may not obtain for two years, four years, much beyond that.
Do you think he’s going to retire?
Isgur: It is such a close call. There’s just no indication that Justice Thomas wants to leave. That’s why we’re all ignoring that possibility. Justice Alito, there’s evidence on both sides. On the one hand, he has twin grandbabies and he’s never seemed like much of a people person. On the other hand —
Douthat: But maybe that means he doesn’t like the twin grandbabies. You never know, right?
Isgur: [Laughs.] I think everyone loves their grandbabies!
Douthat: I mean, no. Everybody likes their twin grandbabies. I apologize to the justice for the imputation. Go on.
Isgur: He has this book coming out, and that set tongues wagging because the book’s release is for that first week of oral argument.
Douthat: In the next term?
Isgur: 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 is a feature, not a bug. So it’s hard to know.
That being said, we’re certainly all making our short-lister lists and taking bets all the same.
Douthat: Let’s talk about those bets about potential replacements. We’ve just been talking about the dynamic among liberals, but the dynamic on the right is itself incredibly complicated.
On the one hand, you have the normal range of ideological possibilities. Do you want another lab-grown Federalist Society justice? Do you want someone who 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. It’s not false at all to assume that he wants a yes-man, hack, and a crony on the Supreme Court.
So what do you get out of that combination? What kind of nominee?
Isgur: 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 résumés 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 résumés that one may have.
By that measure, it sure looks like his Supreme Court nomination would come from the circuits. And Judge Andy Oldham on the Fifth Circuit clerked for Justice Alito. And currently, three of the nine justices replaced the justice that they clerked for: The current 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.
Douthat: 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 a 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.
Who does Trump nominate where it’s perceived as just a Trump pick and Senate confirmation is in doubt?
Isgur: So I think the “just a Trump pick” is probably Solicitor General D. John Sauer. But what’s interesting about him is that he would get confirmed quite easily. He has the shininess of the résumé while having 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.
I think, if we want to keep moving along that spectrum, you probably get to Todd Blanche next.
Douthat: Who is the acting attorney general in the wake of Pam Bondi’s firing.
Isgur: Right. There’s Aileen 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.
Douthat: Your book is an endorsement of the court as an institution —
Isgur: Correct.
Douthat: In the sense that you argue that in a difficult situation, to put it mildly, it’s serving the country well. I agree that the court is doing a decent job under difficult circumstances, but I did come of age with a common conservative view that said 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 5-4 votes from a bunch of increasingly Ivy League lawyers. And I’m still sympathetic to that view, even though now that final say aligns much more often than it did about 20 years ago with my own political preferences.
What about you? Were you a court skeptic 15 years ago in that sense?
Isgur: 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: 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 that “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: 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.
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.
Douthat: But to the extent that that choice is being made under conditions where the Constitution, at least as interpreted through Marbury v. Madison — and there are other interpretations, but as interpreted through judicial review — the 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. You get abdication from Congress for a reason.
And those people — again, they used to be on the right, but 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 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?
Isgur: 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 of which should be to 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: 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.
Douthat: Right. You wouldn’t be relying on quite literally the workings of divine providence to decide when a justices dies and are replaced.
Isgur: 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 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’re 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?
What if they want to go join a corporation for a lot of money? What if the other justices know this president has been elected, he’s about to get his second pick on the court, 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.
Douthat: 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.
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 where we are to where we’re going, it seems like Donald Trump is probably not going to pick a constitutionally existential fight with the Supreme Court, in part because he’s just 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 court versus president collision.
And I like the court right now, and I don’t like the president. But the president is elected, and the court is not. And I’m just not sure how all of that turns out.
That’s less a question than a …
Isgur: Comment. [Chuckles.]
Douthat: Well, a sort of gloomy prophecy. I’m curious if you have a more optimistic take on the next 15 years of judicial history.
Isgur: I think our politics is turning, and politics, of course, is downstream from culture.
Douthat: It’s more like a whirlpool. Surely everything’s downstream of everything else. But no, go on.
Isgur: [Chuckles.] 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, that 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.
Crockett ran a very traditional, what I’m calling this reality TV-based candidacy that looks a lot like Donald Trump with some different policy priorities. Talarico ran a very Ted Lasso campaign. Optimistic. He had campaign mechanics on the ground organizing. And Talarico won in the end.
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.
The other thing I’ll add is, historically, this is not the biggest threat the court has faced in history. That absolutely goes to Thomas Jefferson, when he wanted to impeach 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. The ink was still wet on Marbury v. Madison. 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, F.D.R. I think the institution will survive just fine if we understand it better.
Douthat: All right. Sarah Isgur, thank you so much for joining me.
Isgur: Thanks for having me.
Thoughts? Email us at [email protected].
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