BENSON BYTE: Betrayed? Sarah Isgur of SCOTUSblog Questions Conservative Critics of Amy Comey Barrett

This Memorial Day, as America approaches the 25th anniversary of 9-11, the Tunnel to Towers Foundation paid off the mortgages on 26 homes for Gold Star families and families of fallen first responders across 13 states. In tribute to the 343 FDNY firefighters lost on 9-11, Tunnel to Towers has committed to delivering 343 mortgage-free homes this year. Their courage will never be forgotten. Join us. Donate $11 a month at T2T.org. This is going to be an extremely busy month. I have to watch 104 soccer games. Follow the pregame, the post game, yell useless opinions at the TV. It's a lot. So I knew that when it comes to screening for colon cancer, the choice was clear. The Coligard Plus test. It can be used at home and can only take 15 minutes, so I can do it during halftime and not miss any action. If you are 45 or older and at average risk, ask your healthcare provider about screening for colon cancer with the Coligard test. You can also request a prescription at colagard.com. Across the country, United Health Group is working with local partners to build healthier communities every day. That includes helping partners like the Goodacre provide 45,000 meals and lower A1C in the Twin Cities. And helping Hello Family Dool Us deliver 44% fewer underweight births in Spartanburg. Because building healthier communities starts by giving people access to the care and services they need to live healthier lives. Learn more. at UnitedHealthgroup.com slash commitment. Now it's time for another Guy Benson, Bensonvite, where we bring you the day's most interesting interviews in a bite-sized package. For the full episode, visit Guy Benson.com or wherever you listen to podcasts. Back with us now is Sarah Isger. She is editor of SCOTUS blog, an author of the great book, Last Branch Standing, a potentially surprising, occasionally witty journey inside today's Supreme Court. And we had her on recently to talk about that book, which is superb. And now let's talk about that court. Sarah, great to have you back. Wonderful to be with you. Let's start with just sort of some interesting intrigue, which came at the very end of the court's term. NPR, and a reporter there who leans very left but is pretty plugged in, she had reported that Samuel Alito... was announcing his retirement from the court, which would then, of course, have had all sorts of implications and a nomination process and a confirmation process kicking off as we head toward the midterm elections. And then it was retracted that report. And there was an apology that they put out. They said there was a misunderstanding. I mean, that is a pretty seismic report whenever it happens that a justice is retiring. And for someone who has the sourcing that she has,

to have gotten it wrong, or some people are saying, was that a premature report from her? That was definitely eyebrow-raising, to say the least. What's your interpretation? What's your analysis of this whole little kerfuffle? So it's fascinating. Look, let's bottom line up front. There is no reason to think that Samuel Alito is retiring this term. As in like he says he will be there for the, you know, for October arguments. So like he's not going anywhere. How did this happen? It doesn't make a lot of sense. I mean, Nina Totenberg is the longest running Supreme Court journalist we have right now. She has covered the confirmation hearings of three. Chief justices, that's a long time back. This is 50 years. So she knows that at the end of every term, the chief justice from the bench thanks the staff. And if anyone's retiring, he may make note of them in particular, like a staff person retiring. And so her explanation is that she heard from someone else that the chief was doing retirement announcements. She heard announcement, singular, and then just published the pre-written story that they had that Samuel Alito was retiring. But I have to tell you, that explanation doesn't make a ton of sense because even if you thought there was a retirement, why would you assume it was Samuel Alito? It was more likely, probably, but you wouldn't even want to check. Oh, is it Samuel Alito? Let's make sure of that before I publish a whole story about it. Yeah, I'm still sort of mystified by the whole thing. There have been at least conversations about a potential retirement because, you know, Republicans have the presidency and the Senate right now, and that may or may not still be the case, you know, next year this time with the midterms coming up. And those are the races that we focus on, the Senate races for major reasons here. But even that goes to kind of a fundamental misunderstanding where people cover the Supreme Court the way that they talk about Congress. Right. The Supreme Court is ideological. People are legally conservative or legally liberal, but that doesn't map onto partisan politics very well. Because, again, if Samuel Alito were a partisan, yeah, for all the reasons you just said, he would retire right now. The fact that he's not retiring kind of proves that the whole narrative about the court isn't quite right. Well, I think that's true. I think you will sometimes... definitely get big pressure. So for example, we can talk about RBG and there was pressure on her to retire before she died. And then the timing worked out from the left's perspective, very unfortunately. And then there was like an overt campaign to get Justice Breyer to step down for political reasons. And he did end up doing so. So there is a, there's a political backdrop. to the timing of these things, but it's not necessarily a partisan or a political decision-making process ever or often for these justices. And I think that's maybe the category error that you're talking about here.

That's right. And, you know, Samuel Alito, by Supreme Court standards at least, is quite young. Clarence Thomas, of course, is a little bit older, although Clarence Thomas has made clear to his, you know, allies that he plans to leave the court, as they say, feet first, as in he intends to die on the bench at this point. They see their role on the court. and the role of the court. I think quite differently than, again, those who follow politics closely, those who are into elections and midterms. The Supreme Court doesn't work on those timelines. There are no elections. They, you know, outlast presidents. Chief Justice Marshall, who was our fourth Chief Justice, probably our most famous Chief Justice. The whole point was he went to battle against Jefferson who wanted to undermine the independence of the judiciary. He outlasted him because then he goes in battles with... President Jackson about the independence of the judiciary. He's sort of like, yeah, I'll be here long after your term's over. Speaking of presidential battles as they pertain to the Supreme Court, I saw one analysis, and I've seen some legal sort of experts like yourself quibbling here or there, but it's an analysis that was done by a guy named Gabe Fleischer. And he looked at since Donald Trump's reelection. So this term, SCOTUS has issued 44 decisions or orders relating to the president. And at least based on his calculation, the court sided with Trump in 25 of those cases. 11 times they ruled against him. And then it was sort of a mixed verdict, if you will, in the other eight. And, I mean, talk about narratives in the court, right? There are people, and you've discussed this in your book, Sarah. There are people who at least when the politics are right, they claim that this is just a partisan Trump court that rubber stamps whatever Donald Trump wants, and they just ignore the many examples where... The opposite is true. And considering that this is a right-leaning ideological court, and it's a Republican president, 25, 11, and 8 is not really, I think, something that illustrates what some, I think, cynical people want to put out there in terms of how this court operates, particularly vis-a-vis Trump himself. Cheers to America's 250th birthday. Get 20% off your first purchase at Fox Newswineshop.com with code FN Radio 20. 20% discount excludes wine club offers and cannot be combined with any other promotion. Expires July 31st, 2026, must be 21 order to order. Please drink responsibly. And just think about the major decisions from this term. Alien Enemies Act, federalizing, sorry, federalizing the National Guard, tariffs, birthright citizenship, removing someone from the Federal Reserve. He lost them all. So, you know, actually the numbers you read out put Trump better than he did his first term. He was the first president ever to go under 50% win rate at the Supreme Court for his first term in office. Biden and Obama actually did better than that. But overall, you know, part of this is Donald Trump is a Republican president, but he's not a particularly...

conservative president, at least not in the traditional way that we think of conservatism and legal conservatism. And so sometimes, like when he's trying to fire people from an independent agency, that does align with legal conservatism. But other times when he's trying to run the government by executive order instead of going through Congress, that is not going to line up with legal conservatism and he's going to lose. And he's, of course, notching some very big wins on issues like immigration as well before the court. But it's just it's a more complex and textured picture. In terms of Trump and the Supreme Court, then a lot of the critics would have people believe, where they have this lazy, stupid, inaccurate claim that they're just servile to the president. They do whatever he wants. It's not true. And then a lot of those same people actually cheer when they get the outcome that they want from the court, not really addressing at all their previous criticisms and narratives about said court. So that's just something that drives me personally a little bit crazy. Oh, I go even nuts because. no matter how the court decides, they will find a way to criticize the decision. You know, when the court ruled against Trump on tariffs, I was told that actually wasn't a sign that the court was independent of the presidency. It was just a sign that they were corporatist and were worried about their stock portfolio. Yeah, I mean, some people will... kind of twist themselves into pretzels regardless to criticize an institution that they want to undermine for partisan political reasons. But you'll have, you know, even elected Democrats. I saw Hakeem Jeffries where he will trash the court one day in really intense terms and play footsy with court packing and all these really damaging things that many Democrats are now talking about openly, almost like it's some kind of litmus test moving forward in democratic politics. And then when they get an outcome that they like, There'll be these triumphant sort of high-minded statements about how wonderful this is for our democracy and so on and so forth. It's like, well, do you remember your last press release or do you just kind of go just lurch from decision to decision on how you're feeling about the court? And there's some of that on the right as well. There has been a lot of criticism, not just of the Chief Justice. That's been true for a long time. And I've engaged in it myself a little bit. The Obamacare decision really stuck in my craw. Justice, Chief John Roberts is a very known commodity at this point. One of the newest justices is Amy Coney Barrett, a Trump appointee, quite young by court standards, of course, a female, quite conservative in many ways, but many on the right, especially kind of more in Maga world, they're very, very angry with her. And they're making it seem like she's some sort of neo-suter who came in in sheep's clothing as a conservative and now is actually this, you know, left-wing rogue. I think that is a...

gross misreading wildly unfair of her actual record on the bench at the high court and previous to that but there is this kind of emotional response when she has joined uh let's say that the three progressive justices in some sort of coalition where the outcomes aren't what elements of the right one and saying oh well she's some sort of turncoat what do you make of the whole discourse around Amy Coney Barrett I find it fascinating because there's three Trump appointees, all of whom have quote unquote betrayed Donald Trump in major opinions at this point. But the rights ire is focused on Amy Coney Barrett. And it's not just in gender like undertones. I think they're gender overtones at this point. They've called her a DEI hire. They said that this is proof of why we can't put any more women on the Supreme Court because all of the women have been terrible justices. Again. I can't even begin to describe what's wrong with that. But like when Justice Gorsuch. votes against Donald Trump. It's not because of his gender. So why is it because of her gender, unless, of course, this is sort of motivated thinking. Amy Coney Barrett is probably the justice that is most similar to Justice Scalia on the court right now. Of course, she clerked for him. But that's not the only reason. I mean, she quotes him a lot. She is a formalist in a way that the other justices are not. You know, we're not going to do a whole law school class right now. But it's this idea that like she's going to be very, very strict about how cases get to the court exactly what posture they're in. What exact question is the court being asked? And that's going to make her very suspicious of uses of executive power that are not authorized by Congress. So that's why you're going to see her rule against Trump more often. Because she's been very consistent, by the way, right? In terms of saying, hey, this is not our job. This is Congress's job. This is a point that she has made over and over and over again in her days being a professor on the lower court and at the Supreme Court. This is not some new, you know, divergent, you know, posture of hers. This is very consistent. Right. And again, I think if you had sort of an old school conservative president, they would love Amy Coney Barrett. It's because you have a president right now who is Republican but not conservative that you're seeing this tension. And then you add on to that her gender in this moment where everyone wants to blame everything, frankly, on both sides, on DEI initiatives. And so she gets to be the focus of it in a way that, frankly, I think if you're a conservative, is pretty... short-term thinking. I'll just say that. Yeah, I've also seen people coming to her defense looking at her record on the high court and her votes. She was in the majority to overturn Roe v. Wade, one of the seminal watershed decisions in the history of the court, which was a major goal of legal conservatives for decades, right, for generations. So she was in the majority on that case overturning Roe, the Dobbs case. She voted to get rid of...

Chevron deference, a huge win against the administrative state from a conservative perspective. She's handed Trump wins on immunity, on immigration. on you know blocking states from trying to remove him from the ballot she's ruled with conservatives on affirmative action on as i mentioned a number of cases pertaining to immigration you go down the list gun rights religious liberty she has been rock solid on so many of these things and i feel like when people don't get their way on a number of cases even if they're big ones like you know birthright citizenship a lot of people cared a lot about that one you don't throw the entire record out and stamp your feet and have a connection and say, oh, this is now a left-wing progressive because you didn't get your way and lose sight of the record that she has built her jurisprudence over these last number of years. I just think it's short-sighted and unfair. There's also, and this is on the right and the left. And I wish we had more of this in all parts of our conversations right now. There's a lack of intellectual humility. So when the court decides the way you want it to, then it's acting independently and following the law. When the court rules the way you didn't want it to, they're corrupt. You know, it's all the bad reasons. Instead of just take like one quick moment and say, am I so sure I'm right about this? Because you think back to a case like Plessy versus Ferguson, which upheld... segregation in the South ushered in an era of violence and Jim Crow, that was a seven to one decision. Seven justices were sure they were right. The population was sure it was right. Culture was sure it was right. And they were dead wrong. So like just take a quick moment. Maybe you're right and they're wrong. Maybe they're right and you're wrong. Maybe you're both wrong. But this like every time they rule with me, they're good, every time they rule against me, they're bad. It's really unlikely to any president. is always legally right or legally wrong. Yeah, I think that's, of course, fair. I would say that some of the criticisms of Amy Coney Barrett, while I disagree with them, people are at least, and guess there's some people who are making it about her. sex and whatever. I think a lot of it's just like, this is wrong, she's dead wrong, this is so disappointing. I've seen a lot of that. That is different than what we've seen from the left more broadly, which is trying to delegitimize the institution itself because they've taken a series of relatively high profile Ls in recent years after dominating. The court for decades where they weren't saying, oh, this is, you know, structurally problematic. And if they've trumped up all this ridiculous, you know, ethics stuff and, oh, the court, they're all corrupt. A lot of that stuff, I think, is the most dangerous.

rhetoric that we've gotten and potentially moving towards action, that seems to be highly concentrated on the left these days, which is a conversation that I want to continue to have with you, Sarah. I also want to hopefully bring you back to say, now that the court has ruled what they have on birthright citizenship, which did not come as a huge surprise to me, I have big problems with the status quo on birthright citizenship. I actually think it's sort of crazy, but I think what the court decided is... defensible, at least to a large extent. Where do we go from here? What can be done to fix this policy? That is maybe a very big question for another day. I wish we had more time, but we're up against the top of the hour. So I have to let you go. Please, please come back. Sarah Isger. Thanks for having me. That was yet another Guy Benson bite. For full episodes of Guy Benson, go to Guy Benson.com or wherever you get your podcasts. Listen to this show ad-free on Fox News Podcast Plus on Apple Podcasts, Amazon Music with your prime membership, or subscribe wherever you get your podcasts.