A MARTÍNEZ, HOST:
An observer says the Supreme Court is doing better than its critics believe. Many Americans were dismayed. The court majority seemingly deferred to President Trump again and again. Then came a ruling that overturned the President's signature tariffs policy. Sarah Isgur watched as editor of SCOTUSblog. In her new book, "Last Branch Standing," she argues the other branches of government strayed from the vision of the Constitution's framers. She started her conversation with our co-host, Steve Inskeep, by imagining what the founding fathers would think of today's power structures.
SARAH ISGUR: They would be obviously most horrified and bewildered by Congress. I think they would then turn to the presidency and say, my God, James Madison wrote this as the very definition of tyranny. And then I think they'd turn to the Supreme Court and say, you know what? We wanted a branch that was counter-majoritarian, that stood against bare and fleeting majorities in American life to create stability, to protect minority rights, and the threats to the Supreme Court come from the other two branches not doing their jobs properly.
STEVE INSKEEP, BYLINE: Why do you think the justices seem so partisan to so many people?
ISGUR: I think part of the reason we view the court as so partisan right now is because Congress isn't doing its job.
INSKEEP: I followed your analysis over the years. You seem to think that a lot of the Supreme Court's decisions in recent years are intended to push Congress to do more of its job.
ISGUR: Absolutely. You look at the decisions during the Biden administration on eviction moratorium, vaccine mandate, student loan debt forgiveness. All of those were saying, nope, a president acting alone can't do that. But by God, Congress could do it tomorrow. You then go to the Trump administration, all of his biggest policy initiatives - Alien Enemies Act, federalizing the National Guard, birthright citizenship and tariffs. All of those, same thing. Congress, sure, jump in the game, but the president cannot rule by executive order.
INSKEEP: I think this is why you're telling us in the book that the Supreme Court is deciding who gets to decide.
ISGUR: That's exactly right. That's their only job.
INSKEEP: Let me ask about a few things that the court has done that has caused Democrats, particularly, to feel that the court majority is leaning in favor of President Trump. I think of the tariff case where the court ultimately struck down the tariffs. The Supreme Court could have let that stand, but instead, in this case and many others, said, no, we're going to consider it and we will let the president do what he wants for a year. What do you make of that?
ISGUR: That's right. On the merits docket, the cases where the Supreme Court gets long briefings, oral arguments, writes long decisions, Donald Trump hasn't won a single major case. Where he has done well is that interim docket, the emergency docket, or the shadow docket, as people refer to it. At one point, he had won 17 cases in a row. But he had lost about a hundred and thirty. Donald Trump is still losing way more than he's winning in the branch as a whole.
INSKEEP: That seems to be true, and yet he's gotten to do what he wants for many months or a year in case after case after case. The court could say, we're not even going to hear this case. The president lost, it's obvious. But instead, they say, we'll think about it for a while. And he can do what he wants.
ISGUR: And this is the problem with the interim docket. If they weigh in or don't weigh in, all they're doing is setting the status quo while those cases are pending on their way to the Supreme Court.
INSKEEP: I want to ask about a contrast between two cases where partisan feelings were high in each case, and the justices seemed to flip. One is the 2022 decision overturning Roe v. Wade, the right to abortion. Justice Samuel Alito mocked the decision that he overturned, said it was ridiculous that the decision had found a constitutional right that was nowhere in the text of the Constitution, and that they had invented a three-part test for when it applied, the three trimesters of pregnancy. And he found that all ridiculous. And then, a couple of years later, came the case deciding that President Trump would be immune from prosecution. And most of the same justices discovered a constitutional right that was nowhere in the text of the Constitution and invented a three-part test for when it applied. Sometimes yes and sometimes no. What do you make of that apparent contradiction?
ISGUR: I think those are a great example of where it's totally fine to criticize the Supreme Court decisions. And I want to be clear. Like, I defend the institution, but I think it's absolutely valid to criticize justices' decisions. And those are two perfect examples of cases that are ripe for criticism.
INSKEEP: You add some ways that you think the court could add to its credibility. I just want to tick through a few of them. You wish, for example, that the justices would talk to broad audiences, not just lawyers and judges like themselves?
ISGUR: Absolutely. I call it, you know, naming the lobsters. You're not going to boil the lobster if you know its name. I think they should do more interviews. But I also think it's on us, the public, to not force them to be even more isolated, protesting at their homes, mobbing restaurants that they show up at, secretly recording them, that doesn't change the outcome of cases.
INSKEEP: What's your idea to police Supreme Court ethics?
ISGUR: I think they know they need a binding ethics code. The problem is, who will enforce that? But I don't think it's that hard. We can have lower-court judges who have gone to senior status, who have stopped hearing cases, make those decisions. And it will protect the justices as well when they get bogus ethics complaints.
INSKEEP: Why would you think that it would improve things for them to hear more cases?
ISGUR: The Supreme Court used to hear 150 cases in my lifetime. We're now down under 60 cases a year. So you have all these questions that are left out and that are split among the circuits.
INSKEEP: Are they an overly elite institution?
ISGUR: Absolutely, yes. You know, when you look at the court that decided Brown v. Board of Education, eight, of course, had served in the military. We now only have one justice who served in the military. One hadn't even gone to law school. Five had held elected office. They were coming from all over where, you know, doing all sorts of things in the law. Now we have this very tried and true and narrow path to becoming a Supreme Court justice.
INSKEEP: You'd suggest that maybe reporters should be given the decisions early so they can digest and understand them and explain things to everybody else in the one instant that we're all supposed to understand a decision upon its release?
ISGUR: My suggestion to the court is allow those credentialed reporters to sit with the opinions without their phones, you know, totally embargoed for an hour or two, so that when the decision is released to the public, you have actual people armed with that knowledge. Congress does this, the executive branch does this. Any executive at a corporation knows to do this, and the court needs to catch up.
INSKEEP: Sarah Isgur is author of "The Last Branch Standing." Thanks so much.
ISGUR: Thank you, Steve.
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