A Millennial Civics Lesson – Religion & Liberty Online

Citizenship requires an understanding of how government works, particularly the poorly covered and oft-maligned judicial branch. Few people have ever read the pro-ratification Federalist Papers or even the U.S. Constitution itself. In light of the short shrift given to civics in secondary school instruction these days, and the raging bias in the conventional news media, it is more important than ever that Americans develop a basic knowledge of the Supreme Court—its composition, operations, and function. Since the landmark decision Marbury v. Madison (1803), the Court has exercised the sometimes-controversial power of judicial review to enforce the provisions of the Constitution. 

Accordingly, I welcome the publication of books aimed at a general audience that demystify the Court and its processes—especially by “younger” authors who connect with that important voting bloc. Many—actually, most—books about the Court are either turgid scholarly tomes unlikely to be digestible to lay readers or partisan screeds that preach to the choir. (Justice Amy Coney Barrett’s Listening to the Law was a rare and welcome exception.) Sarah Isgur, a Washington, D.C.-based podcaster and legal commentator, has written a book, Last Branch Standing, that is actually intended as a balanced primer that fits into neither of the typical categories. Isgur teases readers with the subtitle “A Potentially Surprising, Occasionally Witty Journey Inside Today’s Supreme Court.” Does she deliver? With a few minor reservations, which I will explain shortly, I rate her book a success.

Last Branch Standing is especially timely because the radical left (which is now synonymous with the Democratic Party) is embarked on an increasingly aggressive campaign to delegitimize the Court and, worse, to convert it into another political branch of government that Democrats can control through Court-packing. This is nothing short of an assault on our founding document’s structure and, indeed, on the rule of law and the institution of constitutional self-government. The life-tenured Supreme Court, created by Article III of the Constitution, serves as an indispensable element of the separation of powers that keeps the other branches in check. 

In its quest for power, the left aims to change that.

Once-genteel and largely perfunctory Senate confirmation hearings for the president’s nominees to the Court have—at least for prospective justices thought to be “conservative”—been turned into a brutal gauntlet, as evidenced by the ordeals inflicted on Clarence Thomas, Robert Bork, and, most recently Brett Kavanaugh. When “borking” fails to defeat the confirmation of conservative justices, Democrats use brazen intimidation tactics to cow them. In 2020, Senate Majority Leader Chuck Schumer stood outside the Supreme Court and threatened the justices if they overturned Roe v. Wade (1973): “I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” Two years later, less than a month after the unprecedented leaking of Justice Alito’s draft decision in Dobbs v. Jackson Women’s Health Organization, which overruled Roe, an armed gunman intent on murder was apprehended outside Justice Kavanaugh’s home, in the dark of night. The would-be assassin sought to prevent Dobbs from becoming final. 

This was not an isolated act of physical intimidation aimed at the justices. After the Dobbs leak—which remains unsolved—a pro-abortion group disclosed the conservative justices’ home addresses, triggering noisy, illegal protests by left-wing activists outside the justices’ homes. Recently, Justice Amy Coney Barrett’s home was “swatted”—i.e., an anonymous person falsely reported to the police that gunshots had been heard at Barrett’s address. As the Wall Street Journal observed, “The call was a fake emergency meant to send police to swarm the home of the Justice and her family.” This is borderline domestic terrorism. 

Equally disturbing is the extent to which extreme rhetoric demonizing the Court—once limited to the fever swamps of far-left publications such as Mother Jones and The Nation—has been adopted by “mainstream” Democrat officials (if that is not an oxymoron). Court-packing, a radical proposal that permanently—and justifiably—sullied FDR’s reputation, is now widely touted among Democrat presidential candidates. Attacking the independence of the Supreme Court, formerly a fringe position, is now commonplace. Suddenly, maintaining the nine-person size of the Supreme Court, the rule since 1869, has taken on a special urgency. 

The attacks on the Court are not merely political. As Jonathan Turley points out in his new book, Rage and the Republic, a cadre of left-wing intellectuals, including some Ivy League law professors, insouciantly condemns the Constitution itself, along with the freedoms and tripartite federal structure it embodies, denouncing the document drafted in 1787 as “dangerous” and deriding those who support it as “slaves” and “cultists” engaged in “Constitution worship.” These critics favor untrammeled majority rule, which our Founders rightly regarded as “mobocracy.” Furious that an originalist Court is—at long last—rejecting decades of bogus “living Constitution” precedents, these nihilistic enemies of the Constitution advocate shredding two centuries of norms and traditions—including the independent role of the Supreme Court—in the pursuit of raw power. 

James Madison would be aghast.

This is why Last Branch Standing, an entertaining and wide-ranging defense of the Court as an institution, is a welcome “finger in the dike.” The left’s war against the Court must be opposed. The first step is debunking the false narrative in a manner accessible to untutored readers. Born in 1982, Isgur is a millennial familiar with the sensibilities and attitudes of that cohort. Both her legal podcast (Advisory Opinions) and her book speak in the vibe of that generation. Isgur, a Harvard Law School graduate who has long lived and worked in the vicinity of the nation’s capital, is very knowledgeable about the Court. (Although she did not clerk on the Supreme Court, her husband, Scott A. Keller, an acclaimed appellate litigator—to whom she dedicated the book—did.) 

Her affection for the Court is infectious. Isgur reverently describes the ritual of oral argument, which opens with the words “God save the United States and this Honorable Court,” which could serve as the book’s theme. Despite her occasionally flippant tone, Isgur is dead serious about preserving the independence of the judicial branch. No fan of a dysfunctional, gridlocked Congress or an overbearing, “too-powerful executive branch,” Isgur believes that “our politics is broken.” The Court ends up getting blamed for the other branches’ mistakes. She recognizes that the Court is under siege; the title of her book reflects that. She observes that “The Supreme Court is the last branch standing, but the cracks are starting to show.” 

Isgur defends the Court, and the independent judiciary in general, precisely because it is a “counter-majoritarian” institution designed to curb the other branches. This is as the Founders intended. Isgur reminds us that

the Supreme Court isn’t the same as Congress. … The legitimacy of the judiciary—their independence from the political branches that don’t simply disregard their decisions when it’s politically popular to do so—is what allows us to maintain our system of self-government.

Isgur is a bona fide insider: editor of SCOTUSblog, a website devoted to the Court’s docket; podcaster; president of the Federalist Society’s student chapter at Harvard; married in Justice Kavanaugh’s chambers; and a self-confessed SCOTUS groupie who revels in Court history, trivia, lore, and gossip. An otherwise ambivalent reviewer of Last Branch Standing conceded that “Isgur clearly loves the Court.’’ And she does—enthusiastically—including all nine justices. Isgur is truly ecumenical in this regard. A self-described “right-wing wackadoodle in law school” and career “Republican political operative,” Isgur supported Obama-appointee Elena Kagan’s confirmation, describes her as “the Court’s most politically savvy member,” and rates her to be “the best writer on the Court today. Maybe ever.” (Kagan was Isgur’s law school dean at Harvard.)

Despite sometimes effecting a breezy air, Isgur’s grasp of her subject is solid. Most Americans are unfamiliar with the meaning of “federalism,” “originalism,” “textualism,” “stare decisis,” “judicial review,” “substantive due process,” “strict scrutiny,” “incorporation,” and other basic concepts in constitutional law. Isgur explains them in plain English. Ditto procedural terms such as certiorari, interim (or emergency) docket, per curiam, justiciability, standing, and even judicial filibusters, cloture, and the “nuclear option” that now allows Senate confirmation of nominees to the Court by a mere majority vote. She deplores this development, which she believes has transformed the judicial role, potentially turning the confirmation of judges into “just another partisan political football.”

Last Branch Standing is loaded with nuggets of interesting (and sometimes counterintuitive) information. She notes that “more than 11,000 people have served in the House of Representatives. More than 2,000 in the U.S. Senate. But only 116 Americans have ever donned the robes of a Supreme Court justice.” Despite media reports suggesting the Court is divided along partisan grounds, Isgur points out that typically over 40% of the Court’s decisions are unanimous. Contrary to the left’s narrative that the Court under Chief Justice Roberts has overturned precedents willy-nilly, she points out that “as of 2024, the Roberts Court has overruled 1.6 precedents per term. The lowest pace in more than seventy years.” 

Isgur’s profiles of current (and former) justices are smart and balanced. She renders the pivotal Chief Justice John Marshall with deep respect. She argues that the justices all try to apply the law as they see it, which some readers may dispute, but support for the institution may warrant a presumption of good faith. In contrast to the stereotype that the Court’s conservatives march in lockstep, Isgur observes that in 2023 the “honey badgers” (her sassy nickname for Justices Thomas, Alito, and Gorsuch) voted together only 59% of the time. That same term, the liberal justices (Sotomayor, Kagan, and Jackson) were in agreement 81% of the time. In addition, Isgur gets behind the legal “holdings” of many of the Court’s decisions with real-life back stories, à la Paul Harvey (a Boomer reference that readers will not find in Last Branch Standing). Her treatment of the seminal case Marbury v. Madison is outstanding. 

This technical detail may sound boring, but it isn’t. Isgur’s prose is lively, engaging, and infused with snarky asides, slang, and pop culture references that will—by design—elude many Boomers. Isgur is not attempting to channel Robert Bork, Alexander Bickel, or other academic figures from a prior era. The book, like her popular podcast, is directed at a younger, Beltway-oriented demographic. Nor is the book jejune; it is deeply researched, factually rich, and accompanied by an excellent index, glossary, end notes, and suggestions for additional reading. Isgur is also not afraid to throw a sharp elbow (or two). She is clearly not a fan of Adrian Vermeule’s “common good constitutionalism,” for example, nor Oliver Wendell Holmes’s legal realism. 

Among the many interesting points that Isgur makes, she describes with some trepidation the phenomenon she terms the “professionalization” of the Court that in recent decades has led to a shrinking docket; longer, more fractious opinions; the rise of an elite cadre of judicial clerks at SCOTUS laboring behind the scenes; and the production of a surprisingly non-diverse cohort of justices drawn overwhelmingly from the ranks of Ivy League law schools who had previously clerked on the Court. The Court that decided Brown v. Board of Education (1954) had quite a different look; most of the justices then were graduates of non-elite law schools (one had not graduated from any law school), most had served in the military, and a majority had held elected office. 

Have we created a modern Article III mandarin caste?

As I began reading Last Branch Standing, my initial reaction was that Isgur’s glib, overly familiar tone (“dear readers…”), casual use of profanity, incessant name-dropping, and nonstop litany of movie titles, TV shows, and pop music performers would detract from the gravitas the subject matter warranted. By the end of the book, I had changed my mind. Isgur’s spicy tone in the book is similar to that of a podcaster. Podcasts are popular with millennials. Conservative influencers must take their audiences (and their allies) where they find them. Many of her suggested Court reforms are predictably unrealistic. Solutions are hard. Giving credentialed reporters early access to SCOTUS decisions to improve the accuracy of reporting? Recommending that media companies hire disgruntled Big Law associates—like the far-left hacks at Above the Law?—to host long-form podcasts about the Court? 

A fine romp nonetheless.