Jack chats with Sarah Isgur about her new book, Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today’s Supreme Court. They unpack her theory of the Court’s decisional dynamics and explore the Court’s approach to executive power in the Trump era, which can be seen as both empowering and constraining the presidency on different dimensions.
Mentioned:
Sarah Isgur, Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today’s Supreme Court (2026)
This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.
Jack Goldsmith: Today, I’m chatting with Sarah Isger about her new book, her first book, Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today’s Supreme Court. Sarah needs no introduction, but I’ll give her one.
She’s the editor of SCOTUSblog. She’s the host of the Advisory Opinions podcast. She’s a legal analyst for ABC News, and she’s arguably my most famous former student—and certainly the most famous student who went to so few classes of mine, that is, who skipped so many classes. Is that fair, Sarah?
Sarah Isgur: With your permission. That’s important.
Okay. All right. So, this is great. I love the book. Why don’t we start by just telling us what the title means?
So, the title came at the last possible hour for this book, as we were trying to figure out what would be fun and explain the thesis of the book in as few words as possible, like a hipster coffee shop. And Last Branch Standing is supposed to capture this separation-of-powers crisis that we’re in right now, where, if the founders were walking around today—this is what Scott, my husband, and I were talking about that night over a bottle of wine—if the founders were walking around today, I think they would be stunned.
They would look at Congress, and just their assumptions over how ambition would work would have failed. And they would be really sad about Congress. I think they would look at the presidency and be basically like, oh, James Madison wrote down the definition of tyranny for you guys, and you just thought of it as a checklist. How great. They’d be horrified by that.
But I think they’d look at the Supreme Court and say, yeah, that’s about right. It looks a little different. There are nine justices. They have their own building. But we wanted something removed from the majority, from the mobs that we were so afraid of—direct democracy. We wanted an independent branch, and we wanted it to be counter-majoritarian to the other two branches, to protect people’s rights against the government, against different parts of the government from one another.
And they’re the last branch actually doing their constitutional function, while the other two branches fail in opposite directions.
You don’t think—so I agree with that, and I think they would be most surprised about Congress and the presidency and the directions they went in. And I agree that the Court is probably more like what the framers imagined. But the Court—it’s the Court’s jurisdiction, broadly considered, in terms of the number and types of really controversial cases that it takes on, and the really extraordinary importance it’s had in American life really since the beginning, or near the beginning. You think they would have thought, yeah, that’s about what we expected?
I think so. I mean, they let each branch sort of develop itself. I think they knew there would be almost like a—I mean, they didn’t know who Darwin was—but a Darwinian process for each of these branches to some extent.
But part of the reason I think we feel that the Court is the final arbiter of so many of our culture-war, political, partisan fights right now is because the other two branches have failed. So take the mail-in ballot case or the remain-in-Mexico case just from this term. And that’s supposed to be just the Court saying—interpreting what a congressional statute means. Did they mean yes or did they mean no for this exact example that the state of Mississippi or the executive branch wants to do?
And if the Court says yes, but Congress is like, no, that’s not what we meant, Congress would just pass a statute the next day or amend the current statute and make it more clear, like they did, for instance, in the Voting Rights Act. Because nobody believes that Congress will do that, because nobody believes that the amendment process still works, is also part of this problem.
The Court becomes the final word on all of these questions. And so the fight for who these justices are, the fight for how these cases are decided—it has just turned the temperature up to boiling.
Yeah. So I want to come back—we’re going to talk mostly about executive power, since that’s what we do here—but I want to ask you a few more questions about the Court. I’m going to come back and ask you about the Court as the final word when we talk about Trump’s attitude towards the Court, because I think that’s another thing that the framers would be surprised about. But first, before we get to executive power, you’ve got a general theory in the book about the decisional dynamics on the Court, and it’s not as simple as conservatives versus liberals. Can you just basically sketch it?
Yeah. So I went into college as a math major and quickly dropped that, with future dreams of finding a mentor like Jack Goldsmith. But at that point, I had no idea. Anyway, so think back to high school algebra and your little grid paper of a vertical axis and a horizontal axis.
That horizontal axis is ideology. I don’t think it’s partisanship, but conservative to liberal, or something along those lines. But if you actually want to predict how the cases are going to come out, that’s not very helpful. Only 15 percent of the cases last term were decided with all of the liberals in dissent, and 15 percent of the cases, by the way, were decided with only conservatives in dissent as well. It was literally the exact same number of cases, and I sort of like that symmetry from last term.
So I talk about this vertical axis, and it’s this idea of something like institutionalism—how much you care about stare decisis. I like to compare Gorsuch and Kavanaugh. I mean, they’re twins in their résumés. They’re the same amount of conservative, right? They come up through the Federalist Society rock-tumbling system for justices, and they both end up on the Court nominated by the same president.
They only sided on the same side of the “V,” so to speak, 50 percent of the time last term. And it’s not because they’re so different on that ideological axis; it’s because they’re so far apart on that institutional axis. Justice Gorsuch thinks of himself as just Justice Gorsuch—“just Neil,” we could call it. And so his vote is all he can give you. He looks at the law and the facts inside the four corners, and what Neil thinks of that—that’s it. That’s his role.
I think Justice Kavanaugh thinks of himself as part of a choir, a middle school group project, if you will. The Court is speaking with one voice. He’s simply a member of that body. But it’s not about what he wants or what he thinks. And so if he can take out a paragraph and get another vote, they can narrow the aperture or not take that case—that is what he views as his role on the Court. They’re just very different views of that institutionalism part.
And the other institutionalists are Justice Barrett and the chief justice, and the other non-institutionalists—is that what you call them?
I have called them that. I mean, I could use some better branding if someone has ideas. So, in their high school lunch cafeteria—you know, who sits with who at lunch—you have the chief, Barrett, and Kavanaugh. They’re sort of our popular kids. They’re going to be in the majority the most—you know, jocks on the football team.
You have our freaks-and-geeks table of Alito, Thomas, and Gorsuch. They’re sitting together, but they don’t actually talk to each other at lunch. And then, you know, we have our high-academic-nerd crew—maybe Kagan, Sotomayor, and Jackson—although Kagan is a high institutionalist, whereas Jackson is a very low institutionalist.
And so you’ll see Kagan break off a lot more. A lot of 7–2 decisions from last term, and the interim docket dissents that Justice Jackson has written with our sort of most strident language—Justice Kagan joined none of those dissents. And I think, again, it’s not an ideological difference; it’s an institutionalism difference.
And Justice Kagan’s role as a strategy maker—you know, if she’s going to be in dissent, if she’s going to be more liberal, how do you get to the outcomes or prevent the outcomes that you don’t want? And Justice Jackson is like, my job, like Justice Gorsuch, is just to say, nope, that’s wrong. Nope, you’re wrong. Nope, I hate this. That’s not how Justice Kagan views her job.
Do you think institutionalists have—I don’t know how you’d measure this, because I can imagine both sides of the argument—do they have more power on the Court because they are more pragmatic about the details and more willing to find something, say, to achieve a majority? So therefore, they’re more—why don’t you give us the numbers on how often the institutionalists are in the majority? They must be in the majority much more often, I take it. Is that right?
Way, way more often. Justice Kavanaugh has been in the majority more than any justice in modern history. Over all of the terms he’s been on the Court, I think we’re at 93% on average. The chief, of course, is in the 90s over most of his tenure. Justice Barrett is the third, but she’s still at like 90–91%.
But it gets to this question of what it means to be influential. I think Justice Gorsuch and Justice Jackson, on opposite ends of that ideological spectrum but quite close together in terms of how they view their jobs, would say, no, no—influence is not being in the majority. It’s not being the fifth vote that’s deciding a case.
Influence is being John Marshall Harlan or being Justice Scalia. It is having a theory of the law and sticking to it and passing that on to posterity and future generations. My percentage in the majority is irrelevant to my influence on the American experiment.
And Justice Thomas has been on the Court for a long time, but he’s arguably an example of that, I take it.
I think so too. Although, as he’s handing off the baton of text, history, and tradition, that Rahimi case has to scare him a little bit. He seems to be deciding this in line with Bruen—his text, history, and tradition coming-out party—and all of his potential protégés on the Court are like, yeah, yeah, we’re definitely doing your test, but it’s coming out the opposite way you think it should.
Which, if you’re Justice Thomas on your way out the door—whether it’s this year or in 10 years—that’s not great.
Okay, I want to shift to executive power. So what is your basic take on the Court dealing with Trump 2.0? You know, there was a period in which the narrative was the Court is totally under the thumb of the Trump administration or totally caving to the Trump administration. That narrative, I think, is much more difficult to sustain now for a variety of reasons.
But what the Court has been dealing with—what I take it is the challenge of the Trump administration—is a very, very aggressive conception of executive power and a very aggressive, critical, harsh attitude towards the federal courts, at least the lower courts.
Well, I mean, the smartest person on this issue is my favorite former law professor, Jack Goldsmith, who has written extensively on it, and I associate myself with all of his remarks on this topic.
But what I think is helpful is to step back in sort of these grand projects that the Court has undertaken from time to time. In the Rehnquist Court, I think you start to see the beginning of a Commerce Clause project, right? This idea that Congress has exceeded its constitutional bounds of a limited government.
And so, of course, Morrison and Lopez and these other cases in the ’90s sort of don’t go anywhere, but that’s because the two branches change so dramatically. When Obama comes into office and does the “pen and phone” thing, the constitutional crisis that the Court has in its lap looks totally different than it did in the ’90s.
It’s not Congress with a Wickard problem—legislating every problem it sees in the world instead of leaving it to the states, the vertical federalism problem. It’s this horizontal separation of powers, where the president is just leaving Congress behind at the end of the hundred-year Progressive Era experiment of replacing Congress with the administrative state.
And so I think the Roberts Court has thought here now for two decades: this is our constitutional crisis to try to rebalance—not in any one case, but over the course of many cases and many presidents—because what the Court has that the other two branches don’t have is longevity. We’ve had so few chief justices—17—compared to nearly 50 presidents.
And so you have Roberts, over the course of Obama and Trump and Biden and now Trump again, limiting presidential power, giving the president more accountability over, for instance, personnel or money to spend within the presidency, but making it a weaker presidency.
Now, they can’t make Congress do their job, but they can let the problems pile up and hope that the incentives change such that voters wake up and say, I actually want people in Congress who are going to deal with this, because clapping at a Rose Garden ceremony and then actually having the Court strike it down—or having the next president repeal it the second he gets into office—ain’t working for immigration or climate change or name any other problem you want.
So I think that the Court has been quite consistent in that. I think that’s what Trump is upset about. The idea that they’re in Trump’s pocket—it’s literally the opposite, in my opinion, in looking at all of these cases.
Yes, what—he won 17 interim docket decisions in a row? Those were basically repeat cases. They were all about the same two issues. And in the meantime, every substantive policy thing by this administration: Alien Enemies, federalizing the National Guard, tariffs, and (I mean, does anyone think birthright citizenship is turning out any other way?) birthright citizenship—the four biggest policy things of his presidency to date—the Court is going to say or has said no. And it said it with his own nominees in the majority.
OK, so I basically agree with that. But just let me add a few things and clarify it. When you said that they are weakening the presidency, you’re talking about—you’re not talking about vertical control. You’re not talking about the unitary executive, the president’s control over especially senior executive branch officials in so-called independent agencies.
But it might go further than that—we don’t know. And the Court has, in a lot of interim orders, decisions—and probably going to happen in Slaughter—is siding with the Trump administration on that. And the Trump administration has run with that.
Now, I would say about that that the Court was already moving in that direction, and it was going to go in that direction no matter who was president. In fact, Collins was the last unitary executive decision before Trump 2.0—Collins during the Biden administration. The Biden administration was already engaging in fairly aggressive, at least from a historical baseline, removal strategies. So the Court was going to go in that direction in any event in terms of—because they believe it. They’ve been believing it since Free Enterprise Fund, if not earlier. They were going to empower the president to assert vertical control.
Justice Kavanaugh was writing about this in 2008, in 2013—long before he was a twinkle in any justice’s eye.
Yeah. So I’ll say two things about that, and I think that’s exactly right. One, Trump took that possibility—he ran with it. He’s been pushing it much, much more aggressively than any president, certainly more aggressively than a Democratic president.
And the only thing I find thus far—and we don’t know how Slaughter, the FTC case, Humphrey’s Executor case is going to turn out—the only thing I find surprising thus far is that the Court seems to be really sticking to its guns, even though we’ve got this hyper-aggressive, maybe even abusively aggressive unitary executive. Is that fair?
Yes. I think my hypothesis is that they try very hard not to think about any one person as president, and so they don’t want to be reflexively making rules for a president who is abusing the power. They want to come up with the sort of platonic rules for a presidency.
So they want a more politically accountable president in a law review article sense, but they want a weaker presidency. I think this, by the way, is potentially a flaw of the current model of the Supreme Court, where we have such narrow lanes for how to become a Supreme Court justice and the resume items you have to pick up along the way of your journey.
And it is professionalized—overly professionalized—the view of the justices of their jobs. And when they take cert, they answer questions, not cases. And you look at what this Court looks like compared to the Brown v. Board of Education Court, and you’re like, this must be a totally different group that we’re trying to build here.
You know, Justice Jackson hadn’t gone to law school. Eight of the nine had served in the military. Five or so had held elected office. You could come from anywhere and be a Supreme Court justice, especially if you were a political rival of the president.
And yet here we have this almost law professor who’s worked in the executive branch, who’s been a circuit judge for a long time. You’ve ideally clerked for the justice you’re replacing on the Court—the chief, Kavanaugh, and Jackson all replaced their justices. I mean, that’s getting a little bit much.
But I think that explains why they’re not too fixated on what Donald Trump is doing with these rules. They’re writing law review articles in the form of concurrences.
But—I agree. The reason it’s surprising—and it could be admirable that they are sticking to their guns in the face of this—is they really mean it. This shows that they really mean it, come whatever the consequences.
And we’re going to see how they write the Slaughter case and whether it’s a very, very broad conception of the unitary executive or whether it’s a narrow ruling. What do you think? I predict a narrowish ruling.
I think this could be quite broad. Oh my God, we disagree about something.
But I think they could—first of all, they could decide the case without even overruling Humphrey’s Executor.
That’s true, yes.
I think they’ll overrule Humphrey’s. But the oral argument was so concerned with all of the collateral implications of doing that—for non-Article III courts, for military courts, for administrative agencies, basically for all of the intersection between admin law and federal courts—that I think they’re going to try to write in a way that doesn’t deal with those implications. Do you think that’s right?
I think it’s certainly what the chief wants. I just don’t know if he gets to five. And, of course, it’s very different being the fifth vote versus the sixth vote, as I think we can sort of intuitively figure out.
I think the impeachment example is a fun one—like, let’s go to Congress and just how humans work. If you know that President Trump is not going to be removed from office and you’re a senator, you know the votes aren’t there—why would you vote to convict? You don’t come at the king and miss.
Well, same thing. If you’re the fifth vote, you decide which way the case comes out. That’s very different than if there already are five votes and you’re like, let’s jump in, see if I can narrow this—that’s the Kagan role, if you will. That’s why she is the seventh vote so often.
So in a case like Slaughter, we know there are five votes to overturn Humphrey’s. The question in this case is, interestingly, who’s the sixth and seventh potential vote, and how much does the chief want to have a larger majority instead of 6–3, and what’s he willing to trade for it?
And by the way, just to clarify for those—I don’t mean trade in some other case. They don’t trade across cases. I mean trade within the Slaughter case to narrow the ruling.
Right. And the tariff case was also consistent. So they’ll go along with a powerful presidency in terms of vertical power, but in terms of weakening the presidency, you mean in terms of the president being able to read vague or old statutes or statutes that arguably don’t give him the power. This is the major questions doctrine. This is the tariff ruling.
That case was hugely important because when the president started yelling and screaming and going crazy against the Court, my thought was, exactly what they wanted, because it shows that they’re willing to do this major questions thing—whether it’s coherent or not—even in a Republican presidency, when it matters the most to Donald Trump. Do you agree with that?
Hundred percent agree. Donald Trump’s attacks on the courts have been a gift to the chief justice at a time where the Court’s legitimacy and credibility has been a central focus, for all those reasons we talk about with the other two branches failing and the Court being the last word.
It is great for them to be attacked by a president reeling on losses and really bring those to the forefront of the media narrative. It’s arguably what’s built the court—Jefferson, Jackson, Lincoln, FDR—withstanding that type of political pressure and lasting through it. Because again, these chief justices, they last through three, four, five presidents. That’s what’s made this institution.
Right. Not everybody appreciates that point. I think it’s exactly right.
So let’s talk about Trump and the Court. Until the tariff case, the strategy of the administration seems to have been just be as difficult and abusive as possible towards lower courts. If you’re not defying the decisions, you’re coming very close to doing it—having competent lawyers, in many cases, don’t always follow judicial orders. Just totally abusive towards the lower courts, seemingly as part of the strategy.
At the same time, fawning over the Supreme Court. The SG is fawning over the Supreme Court, saying that you listen to their decisions, even if it’s not binding on him. The president also fawning towards the Supreme Court until the tariff case.
The president has not stopped being critical of the Court since then. The question is—there was a lot of worry last year. It seems to have dissipated, but now, with the birthright citizenship case probably going against the president, do you think there’s a danger of President Trump defying the Court?
No, because of the number of people it would take in that case. There’s a difference between implementing something in defiance of the Court and ignoring the Court to stop doing something. The other branches ignored Brown v. Board of Education for 10 years and then, of course, continued to quasi-ignore it even after that. That was fine in terms of the Court’s legitimacy and credibility.
You mean ignoring in terms of not enforcing it vigorously?
They didn’t enforce it at all. Schools didn’t desegregate.
That’s the states and the local governments. But the executive—
I just mean the political actors involved. At that time, it was far more about vertical federalism than now. Not doing something is much easier to do if you’re president. That’s the Jackson ignoring-the-Court example. FDR had prepared a speech, if the Court had come out the other way on the Gold Clause cases, saying, sorry, this is too important to the economy—we’re just going to ignore them.
Trump wouldn’t really be ignoring the Supreme Court in the birthright citizenship case. He would have to implement something and have a whole lot of other executive branch officials affirmatively do things in the face of all sorts of injunctions and mandamuses.
And even if he promised them pardons—no, it just gets too messy and too difficult. And look what he did with tariffs. He didn’t ignore it. He pulled down those tariffs immediately while railing against them.
But do you think if you lose the birthright citizenship case and he tells—and he orders the government to still not process citizenship in accordance with the statute or the Court’s ruling—do you think executive branch lawyers carry out those directives to defy the Court? Is there a point at which—do you have a sense—people in the Justice Department will draw the line at overt defiance of the Supreme Court? Would that be a problem for the president, or do you think he could pull it off?
There are a lot of DOJ lawyers who had prestigious jobs in the law before this. They will need jobs in the law after this. I don’t see it happening—not with those. The ones that make the headlines are sort of in the clown car. But I don’t know anyone in the SG’s office who isn’t a serious person, who would work at a major firm afterwards and isn’t going to be willing to blow that up. And clients aren’t going to hire you if that’s what you’re known for.
Interesting. Okay, two more questions. First, are we going to see retirements this summer? Do you have a prediction about that?
Boy, that Alito thing can go either way. CT—no, not happening. That I feel more confident about. Justice Alito is like a teetering for me. I think the fact that he’s writing a book means he thinks he’s nearing the end of his tenure, but I don’t find that the book coming out the first week of the term, when they’d be hearing oral arguments, to be some definitive statement either way.
His book sells much better if he’s still on the Court. On the other hand, it’s hard to do a book tour when you’re sitting in arguments. He’s got twin grandbabies he’d probably like to spend time with. His wife has a whole lot of flags that still need to be flown at various places. He loves solitude and animals.
But it’s also where he gets his socialization from—his clerks, whom he adores. His clerks—I talk about this in the book—describe him as maybe not talkative, but as the warmest boss and someone who cares deeply. I have this example where he argued all sorts of cases before the Supreme Court, and you get your white goose quill each time you argue. Oral advocates really prize those goose quills.
Some of them frame each one with the briefs. You can find out a lot about a person from where they keep their quills. Justice Alito’s are in one of those free vases that you might get with a flower arrangement on a shelf in his chambers. But you’ve got to dig through some other stuff, including a pink plushy axolotl that one clerk class gave him as an inside joke.
And it’s like this metaphor—his clerks literally come before his own memories, ego, career. He’s invested in them now, and I think he really enjoys that part of the job.
Okay, last question. You talk about Supreme Court reform in the book. I think that if the Democrats win the presidency in the next term, that they’re going to be under enormous pressure—at least, yeah, I would say enormous pressure—to reciprocate some of the Trump weaponization. Or they might not call it that—they might call it recalibrating, they might call it accountability.
But I think one thing that they’re sure to think about doing—and we already hear about this—is to try to do something aggressive with the Court. I predict that the easiest thing will be packing the Court, adding seats to the Court. You already hear talk about this among serious Democratic politicians.
And you already hear them saying that the justification is going to be that Trump v. United States is what led to Trump acting the way he’s acting, which I don’t think is right. So my question is: Do you think it’s likely, if there’s a Democratic president and they control the Congress, that we’ll see a serious Court-packing plan? And how do you think that will work out, if so?
This is sort of like that being-the-fifth-vote thing. I think there’s a lot of senators who are happy to talk a lot of game on the campaign trail about packing the Court, but it’s very different when you’re the one.
I mean, these aren’t stupid people. They know they’ll be destroying the Court and having an independent third branch of government—which sometimes is a real pain. You know, when they’re striking down Biden’s student loan forgiveness plan, when they’re striking down vaccine mandates, you shake your fist and scream at the clouds.
But it’s also what struck down Trump’s tariffs, birthright citizenship. You need a third branch that is counter-majoritarian, that has buy-in from both sides when they’re out of power, to stop the other party from doing things that are unconstitutional.
So regardless of what these guys say, in the end—maybe this is wishful thinking, but I don’t think so—I think these guys love their country more than they love the partisan politics or hate the other side.
Okay, I think we’ll be testing that proposition if the Democrats win in 2028. Sarah, thanks very much. Congratulations on your book, and thanks for chatting with me.
Thanks for having me.
