Is SCOTUS The Last Defense Against Trump? With Sarah Isgur

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0:35This is the 1600. This country was stone cold dead. And I am Carlo Versano. New York City, I should say, home of the New York Knickerbockers. They were on a just unbelievable run right now. If you're not watching, even if you're not a Knicks fan, you should, because they are playing some of the best basketball I've seen, although I'm not particularly impartial on this matter. Anyway, to the news today, we're talking about the Supreme Court, The nine justices who make up our high court loom pretty large in our political lives these days, just given that our president seems intent on trying to sort of break any of remaining norms, legal or otherwise, that remain.

1:12And our Congress doesn't really functionally exist anymore. But the idea that the Supremes are in the pocket of Trump and sort of executing his vision of the imperial presidency, which is something I've heard from a lot of readers, a lot of listeners, a lot of Democrats in my own life. It's actually really not that simple. So says my guest today, the great Sarah Isker, is a conservative court expert, editor of the indispensable SCOTUS blog, and author of the new book Last Branch Standing, in which she persuasively argues that the Supreme Court is really its own power center in America, probably the most important one that we have at the moment.

1:46Sarah, welcome. Thanks so much for coming on. Thanks for having me. Excited to talk to you. I've been following your work for a long time. SCOTUSBlog was, I mean, I think it was before your time, but it was pretty much the only thing that got me through constitutional law in college. Just a great website. So, look, let's get into it. Before we talk about the court, you worked inside the first Trump DOJ. You've worked on three GOP presidential campaigns. What is the state of the Republican Party under Donald Trump right now? And I ask you that because, as we just saw in the primaries this week, he obviously has a complete stranglehold on the base of the party.

2:21But he's also extremely unpopular, both at the national level and among independents who actually determine national elections. So how do those two things sort of coexist? Well, I mean, part of it is you have to start with we're using the term Republican Party historically to mean two very different things. The Republican Party in 2012 refers to a very different set of, you know, principles and ideologies and voters than the Republican Party of 2026. Literally, the voters themselves have changed. And we've seen the fastest political realignment probably in American history, certainly within our lifetime, between the two parties.

3:02So this is now a different Republican Party. And it's, as you say, it's Donald Trump's Republican Party because we basically got rid of our two political parties about 25 years ago after the Bipartisan Campaign Reform Act of 2002. we kind of ended political parties because we no longer really allow them to accept money. So they don't have a carrot or stick for their candidates. And so now we have two political parties that are driven by who's in charge, who has won an election recently. And so we don't have sort of those longer term, you know, here's our platform, here's what we stand for elections.

3:42So we don't have persuasion elections. We have base elections. And that's what you're seeing Donald Trump do right now, right? He's killing off sort of the Republicans in office who represent their constituents, maybe in districts that Republicans might have trouble holding onto if they don't have these sort of, you know, quirky Republican candidates. And we've seen this happen in states all the time where like the Republican Party of California or New York nominates, you know, someone the base loves, but they can't win a general election. And then they cause all all of the down ballot people in those states to lose as well.

4:20And that's sort of what you're seeing happen at a national level to the Republican Party right now. The base is incredibly happy, but that base isn't large enough to elect someone nationally or probably in a lot of these states, even statewide. Right. This is the point that I saw David Axelrod make on CNN last night. We're recording this Wednesday, so the primaries just happened. And he was saying, yeah, to your point, these are sort of Pyrrhic victories because the true believers in MAGA, that base is shrinking just by virtue of sort of like attrition and people dying. He's not he's not bringing people in.

4:52So it's like these these wins look big. They look like he is he completely controls the party. But then is that you know what is that going to what's actually going to happen in November? And who knows? I mean, he's pulled off, you know, hat tricks in the past. But well, and don't forget, you don't have to outrun the bear. You just have to outrun the Democratic Party. And the Democratic Party also remains not that hard, incredibly unpopular. They also don't have a platform. But in addition to not having a platform, they don't have a leader who can rally their base. And so Donald Trump and the Republican Party can be incredibly unpopular and they can still win elections as long as the Democratic Party remains even more unpopular in some of these states, in some of these districts.

5:30Right. You're seeing all of this power accumulate in the executive branch, which is kind of the big story of, you know, sort of like the skeleton key, I would argue, at least, of the Trump presidency, the Trump too, at least. Congress has, like I said, ceased to exist in any meaningful way, which I think you'd probably agree with. Trump runs this operation by fiat, by executive order. But isn't a lot of what he's going to what he's doing just going to be reversed by the next Democratic president? Is that the problem of, you know, not legislating, but operating this way? We've really seen this start with President Obama.

6:05He had his year of executive action following the Republicans rejecting immigration reform in the House. He said, I have a pen and a phone, a pen to sign executive orders and a phone to rally the American people if Congress won't act. And that's when he signed DACA and DAPA, the idea of getting, you know, a permanent status to dreamers in the country and their parents. And of course, there were a flurry of lawsuits. This gives rise to the idea that like the governors and state attorneys general in the party not controlling the White House can elevate their profile by being the ones to sue the president.

6:40So when it's a blue president, red state sue. When it's a red president, blue state sue. Donald Trump, of course, you know, turns the amp up on executive orders during his first term. Biden really jacks it up. then. He has the vaccine mandate, eviction moratorium, clean power plan, student loan debt forgiveness. All of those are by executive order. The court strikes down every one of them, not because the policy isn't good, right, moral, whatever you may think. All they're saying in every one of those cases is Congress has to do this. The president acting alone cannot. So President Trump comes in.

7:17He does Alien Enemies Act, federalizing the National Guard, tariffs, birthright citizenship, all of those. I mean, we're technically waiting on birthright citizenship, but nobody thinks he's going to win that. All of those, same thing. The court says you can't do that without an act of Congress. You are only the president. You get to execute the laws that Congress already passed. They have not given you that power. Do your job. And by the way, Congress, start doing your job. Yes, they still do appropriations bills, kind of cough, cough, government shutdown. But they don't do policy legislation anymore.

7:53Do you think we ever will again? Like, do you think this is like an interregnum? Okay. Yeah. Tell me why. I do because the court has policed this line, again, through Biden and now Trump. It was really important to have the tariff decision, to have everyone realize, no, they're not just going to let Republicans do it, but not Democrats. Like, this is about separation of powers. And so to the American people, if you want to keep electing members of Congress who want to be Instagram influencers, OK, but then none of the problems you care about are going to get solved, not immigration, not climate change, not anything else in between.

8:27And at some point, you have to have legislation that involves compromise and negotiation and the end of sort of the reality TV candidate who just stokes anger and outrage on social media to get small dollar donors to give them money to get attention. And all of the people who actually were interested in policy, the nerds, if you will, they've retired because what's the point of being in Congress anymore if you're into policy? I mean, I've argued actually, and many, many other liberals have, you know, crucified me for this, but I've argued that the Republicans should get rid of the filibuster. And my point is that we have to get back, that Congress has to get back to the business of making laws, like for the good of the country.

9:09And if you get rid of the filibuster, at least least they can pass laws and then the American people can vote based on whether or not they agree with those laws. It's kind of a reductive argument, I guess. But I don't know. Tell me what you think on that. I think smart liberals and smart conservatives see this problem and see that as a potential solution. I think you just have to appreciate the tradeoff. On the one hand, you get more legislation. On the other hand, you don't get the stability that's supposed to come from legislation and you don't get the negotiation and compromise, which is the whole point of why we want the legislation so that it's not just like executive orders where one side gets everything they want, then the next president comes in and one side gets everything they want.

9:53The point of the legislation is that neither side gets everything, but it's sort of the wisdom of crowds. If we get 535 people together, they will spot, you know, actually, you know, in my area, we need this. Oh, okay. I need this. I'm willing to vote for it. If you do this, that is how you govern in a pluralistic society where we're not all the same religion, race, rural, urban, et cetera. Um, and like, we've been running this experiment for 250 years with Congress as article one, as the place that we go to resolve our disputes. If we get rid of the filibuster, it solves one problem, but it doesn't solve the larger problem which is that we don't want to, as voters, resolve our disputes with the other side.

10:39We want to dominate the other side. And even if it doesn't resolve our disputes, we're somehow fine with that as long as we've won and they've lost. No, I think that's a fair counterpoint. I guess my thing is, like, it would just be nice to give these people who we elect some skin in the game here. Some muscle memory of what it means. Yeah, exactly. Right. Some muscle memory. That's a good way of putting it. OK, so let's get to the court. The book makes the case, and I think it's a persuasive case, that the court isn't really 6-3. It isn't really 6-3 conservative liberal. At least it's more complicated than that.

11:13And your thesis is basically it's more like 3-3-3. Walk me through this idea of the ideological axis versus the institutionalist axis. So last term, only nine cases were just sorry, nine percent of cases were decided six, three along ideological lines. So if you're trying to predict what this court is going to do in any given case and you think it's, you know, a six, three red team versus blue team institution, you're going to be wrong over 90 percent of the time. Look at Gorsuch and Kavanaugh. Right. These guys are both uber conservative Fed side guys appointed by the same president. They even went to high school together, by the way.

11:51They only agreed with each other 50 % of the time last term. And my argument is, if you want to understand the court, you've got to understand the difference between Kavanaugh and Gorsuch. Kavanaugh likes basketball and baseball. He's a team player. He literally calls the Supreme Court in his public remarks the team of nine. And he's in the majority on most cases, right? He is now the justice most likely to be in the majority. more than any justice since 1953, like when we started counting this, by the way. So, you know, maybe in court history, Gorsuch is into skiing and running and, you know, solo sports.

12:31He sees it as like, nope, it's just me. I just have to tell you what I think of it. So he writes separate opinions more than any other justice. Um, and you know, has these sort of YOLO opinions where he's like, well, it's up to Congress to figure that out. Like, it's not my fault if the precedent says something different because like the precedent's wrong, that is actually a far better predictor of a lot of what these justices decide. So Kavanaugh is much closer to Kagan. He is more likely to agree with Kagan last term than with Gorsuch. Gorsuch is much closer to Justice Jackson. Yes, she's super liberal and he's super conservative, but they're both non-institutionalists.

13:10And so they'll join each other's concurrences in a lot of these cases. But nobody's paying attention to that because we live in this, you know, tribalist, negative partisan era. And so the only cases that you hear about out there are the 9 % that fit into the 6-3 mold. That being said, the 9 % that fit into the 6-3 mold are mostly the big ones, right? They're the cases that really, you know, shape daily American life, right? I dispute that. So first of all, I'm not saying that none of the cases are ideological. 9 % ain't nothing, right? And there are some big cases in there. But there's a lot of big cases that we don't even talk about because once they're not 6-3, we decide they're not big anymore, as in it becomes this sort of circular, self-fulfilling definition of what a big case is.

13:59So last term, the country of Mexico sued Smith & Wesson, the gun manufacturer, to hold them liable for gun deaths in the country of Mexico from illegally trafficked guns, arguing that Smith and Wesson knew they were being illegally trafficked and even advertised to the cartels like, hey, our guns are great for illegal trafficking. This went to the Supreme Court. It had, you know, divided lower courts, the smartest judges in the country. And that is a big case. That's a big deal. But it was unanimous. And Justice Sotomayor wrote the opinion holding that gun manufacturers cannot be held liable. And we never talked about the case again.

14:36If that case had been 6-3 along ideological lines, we would have it in the pantheon of Citizens United as the case that everyone talks about. It becomes a landmark case because it's ideological. So the definition of big cases, we have to agree on what those are ahead of time, not just when they're ideological. That's a fair point. Well, I mean, speaking of actually landmark cases, I think everyone listening would agree is a real landmark case. Louisiana versus Calais. Is it Calais or Calais? It's Calais, right? It's Calais, but hilariously, the chief justice who actually gets a pronunciation key before oral argument mispronounced it the last time that it was argued.

15:19And I asked Justice Barrett, who's from New Orleans, like, did he just botch that? It's Calais, right? And she was like, yeah, yeah, it's Calais. You can't interrupt the boss though, Right. Yeah. So Kelly is this landmark ruling that minority minority majority districts are unconstitutional racial gerrymanders. That's basically the gist. So I've argued in my column that this ruling is not the catastrophe the Democrats have sort of made it out to be. For one, just because to me and again, maybe maybe this is naive of me, but the idea that race as this sort of sole thing that determines a person's voting behavior, to me, it just seems dated and not accurate.

15:58A lot of people disagree with that. Fair. I think I mean, this is you know, I can see the argument on both sides here. But you're much more fluent just in the nuances of the of the law here. Can you walk us through your understanding of the constitutionality of Calais? Yeah. So the argument goes that you cannot determine what district someone is going to be in based on the color of their skin. So you are not allowed to use race any longer in redistricting at all. If you do use race, then Section 2 of the Voting Rights Act says that you have violated the law and you can bring a lawsuit to say that that has been racially gerrymandered.

16:33And, of course, the 14th Amendment also says, you know, guarantees equal protection of the laws. And so if you have, you know, if a district has been created to break up and or, you know, a community of racial minorities for the purpose of diluting their vote, you can also bring a 14th Amendment challenge to that district. Neither of those two things have changed. But the idea that the law demands that states create majority minority districts so that black voters in the South can elect a black representative to Congress. That's what the court said you can no longer do. And the facts of the case were sort of interesting.

17:09Louisiana created one majority minority district and they were sued by black voters who said, no, you have to create a second majority minority district. And so Louisiana was like, OK, you know, a judge says that we have to do this. So they did it. They created a second district after a judge said that they had to. Then they were sued by white voters. And now a new set of judges said that that violated the law, too, because that was a racial gerrymander. And so Louisiana was damned if they did, damned if they didn't. And that's why the case went to the Supreme Court was this idea that states must use race to draw their districts, but they must not use race to draw their districts.

17:49And the Supreme Court has just said no more using race to draw districts at all. historically what's interesting is that republicans were the ones who wanted section two of the voting rights act because it helped them to pack black voters in the south into fewer districts than to allow them to be sort of swing voters in across a lot of districts democrats were the ones who were against packing um but you know here we are again in this very partisan moment the results of this i think certainly are going to be fewer black representatives in the south i don't think that's a great thing for America.

18:23But it's also a possibility that the extreme race and partisan polarization that we've seen in the South is because of the packing of these districts and that when voters are placed and have to, you know, you have to actually persuade them that you will get different types of members who actually go after black voters in a way that members in the South weren't doing because those voters had been packed into these single districts. isn't also partisan gerrymandering seems like back to your point about congress like we could just solve this legislatively tomorrow today and tomorrow today right um yeah i mean anyway that's a it's very frustrating so the supreme court has said frustrating we're not going to rule on partisan gerrymandering because like how would we decide that a district was too partisan and where would those factors come from not the constitution there's not some statute that we can look to so Congress, feel free to pass a statute that tells us, you know, here's how we're going to do drawing districts.

19:23Here's how you know if a district has been drawn, you know, unlawfully and if it's too partisan. But until then, the Supreme Court can't do anything about it. And yet everyone's blaming the Supreme Court instead of blaming Congress, who still hasn't done anything about it. Right. And you could make I think you could probably make a similar argument on the birthright question, right? You could you could clarify this issue of subject to the jurisdiction thereof with Congress, but they're just never going to do that. So they kick it to the court. We feel like the court is the last word in the conversation when in fact there is nothing that the court can decide where we voters do not have the last word, even if it's constitutional.

20:03We can amend the Constitution after the 16th Amendment was ratified in response to a Supreme Court decision. Student loan debt forgiveness, tariffs, whether Mississippi can accept ballots five days after an election, whether Trump can turn people away at the southern border, birthright citizenship, all of those things are simply questions for Congress. But the headlines say Supreme Court strikes down Trump, Supreme Court strikes down Biden, instead of saying Supreme Court says Congress can do this today. Right. No, I think that's really that's the that's the thesis here. So in terms of what we're waiting for before this term wraps up, they wrap up what the end of June usually, right?

20:40So we've got like a month. There's nothing in statute that makes them wrap up. But Generally speaking, the last day of June is the last day. OK, yeah. They want to get to their barbecues. I don't blame them. They work hard. So do we, yeah. They do. Yeah, exactly. OK, so we've got birthright. We're waiting on birthright. You and I, I think, agree that Trump will lose on this case. What are the other big pending decisions that you're watching? There's a couple others, right? Yes, there's a transgender sports case who's allowed to play on women's sports teams, both at the college level, even the middle school level and everything in between.

21:12the cases that I just mentioned about whether Mississippi, whether states can decide when to accept absentee ballots. Mississippi decides to accept their ballots up to five days after the election. Or must you have all the ballots by election day? As in, is it an election day? Or is that just when you have to have voted by? The question of whether Donald Trump can turn away people at the southern border. This is something that Joe Biden did as well. The remain in Mexico policy. The idea that if we sort of post guards 20 feet away from the border and then say you can't get within 20 feet of our border, then we don't have to accept your asylum claim.

21:49We've got we've got some big ones left for sure.

21:55So I heard you making this point on Ross Douthat's show at The New York Times about I forget whether it was you or him actually making the point, but it was the idea is that like he doesn't actually Trump, that is, doesn't actually necessarily want to win some of these big cases. Not that he doesn't want to win, but he doesn't really care if he wins because he's essentially moving the Overton window just by getting these cases in front of the court. These aren't necessarily big settled questions, birthright being the example. Is that fair? I mean, I think Donald Trump is misunderstood politically in a few ways.

22:30For instance, I don't think that Donald Trump actually wants Republicans to win in the midterm elections that I absolutely agree with you there. And I don't think he wants a Republican to win the presidency in 2028. Right. Because then it would show that actually, you know, he wasn't the magic ingredient. He wants to be the magic. So when it comes to the Supreme Court, he gets all the plaudits for doing the thing with his base. And if the Supreme Court strikes it down, he just turns his base on the court. They don't think he wasted their time or that he didn't go to Congress to ask for legislation or do the hard work of actually lobbying Congress for legislation.

23:09They just blame the court. It lowers the court's approval numbers. I mean, interestingly, you see all these headlines about Supreme Court's approval number at the lowest, you know, it's ever been historically. That is true, but it's being driven by Republicans, not by Democrats, because of Donald Trump. Now, I think the court is supposed to be counter-majoritarian. They're supposed to stand up to presidents. That's what they have been at their best historically. Jefferson, Jackson, FDR, Nixon, and now Trump. So I think it proves the need for an independent branch of government. But yeah, Donald Trump doesn't mind when they strike these things down.

23:44It gives him an enemy. He likes having enemies. Gives him a foil. Exactly. And this is why I've been saying for a long time, this is why he gets off base the most when he doesn't have a foil. And the Democrats don't have anybody in any sort of position of power to give him a foil, which It gets him into these crazy positions of, you know, like yelling at the Pope, right? Because it's like he's looking, he needs somebody. Literally yelling at the Pope, yes. Yeah, right. So I think it is a point of fact that the court has lost legitimacy in the eyes of a lot of Americans. It doesn't poll as bad as Congress, which polls just worse than like, you know.

24:19Yeah, nobody does. Cockroaches poll better than Congress. Exactly. But it doesn't poll particularly well either. The book puts out a number of ways that, you know, for the court to sort of reinstall some of this, some measures of legitimacy. My favorite is this idea that they should hear more cases. Can you talk about that and a couple of the other sort of reforms? If you were king of the, you know, king of the Supreme Court, king of the country, Sarah, what are some of like just the easy, not easy, but the first things you would do? Yeah, I mean, in our lifetime, they were hearing 150 cases a term.