BENSON BYTE: Sarah Isgur Provides an Inside Look Into the Supreme Court

At Walmart, we're helping our associates build meaningful careers. One way we're doing that, investing $1 billion in training and education. Last year, more than 100,000 associates earned promotions. Combined with benefits like 401K matching and paid parental leave, we're proving that Walmart isn't just a place to work, it's a place to grow. Learn more at walmart.com slash grow at Walmart. Have you ever stopped and thought about what's actually powering your day, the coffee you made this morning, the drive you took to get here, even the device you're listening on it? I'm Tanner Faust, and that's exactly the kind of thing we're going to talk about on the energy tailgate, a podcast from Chevron. I'll be your host inviting guests to discuss big energy topics and what they mean for everyday life, all from the tailgate of our truck. This is the energy tailgate. 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. 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. Joining us now is my friend Sarah Isger. She is editor of the SCOTUS blog and author of a brand new book called Last Branch Standing, a potentially surprising, occasionally witty journey inside today's Supreme Court. She is a graduate of Harvard Law School. She has a very impressive resume in the judicial space. Most importantly, she is a fellow Northwestern Wildcat. Sarah, welcome to the show. It's great to have you. Congratulations on Last Branch Standing. I'm not just a fellow Wildcat. We went to college together. That's right. That's right. We overlapped a little bit. We knew each other just a little bit. And you've gone on to all these great things. You have a podcast that multiple Supreme Court justices are confirmed listeners of your show, which is amazing. And you have a great deal of influence in this realm. You were the perfect person. to write a book like this. And I just want to briefly for the audience brag for a second on your behalf. The book is superb. I got an advanced copy. Sarah was kind enough to get me one weeks ago. And I just devoured it in very short order. It is not necessarily at the top of most Americans list of exciting, sexy topics. Oh, a book about the Supreme Court. Interesting? Is it readable? It is all of that and more. It is, as someone who follows the court relatively closely for sort of an average person, I learned a lot.

I also don't think it is inaccessible to someone who doesn't follow the court and just wants to learn more. It is eminently readable. It is quite funny at times. I know the subtitle says occasionally witty. I would say more than occasionally. Very fun to read. And I think it should be essential or required reading for American maybe high school and college students when it comes to understanding the Supreme Court of the United States. in our present day in our present political moment. I think a book like this was vital. We needed this as a country. I hope everyone buys it and reads it. I think it could very much reshape perceptions of the court. Sarah, did I read all that correctly the way that you wrote it for me? You saw the cash under the envelope, so that's good. There's a reason that people may feel like they don't know a lot about the Supreme Court, but they're hearing a lot more and more and more about it recently, which is really the reason I wrote the book is because all of a sudden the Supreme Court. feels like it's the last word in every major policy, you know, culture war debate that we're having. And it's not really meant to be that way. It's meant to be the case that when the Supreme Court says something, that then Congress maybe passes a law or maybe we as Americans ratify the Constitution, ratify a new amendment to the Constitution. But none of us believe that that is possible anymore. I mean, mostly Congress, like functioning like a real branch of government. And so we have these headlines, you know, Supreme Court strikes down Trump's tariffs. And we kind of throw up our hands and be like, well, okay, then I guess that's the end of that. The Supreme Court is in a Democratic branch. We can't vote these people out of office when, in fact, what it should read is Supreme Court says only Congress can pass worldwide tariffs. And Donald Trump's party controls both houses. You know, like the blame should be on Congress and on us as voters for allowing Congress to, you know, become Instagram influencers or whatever they're spending their time doing. Yeah, that's the thing. I think you really contextualize things in a way that's important. You also endeavor, I think, very successfully to demystify the court in certain ways because, oh, it's like this august institution and their black robes and the big columns out front. And people just say, oh, it's kind of like this black box that things go into and then they just rule from on high. Well, you actually go through and describe as people, all nine of the current justices. Again, I learned things about all of them in your book. And you also sort of explain having been very much involved at the Supreme Court. You're well aware of how things work there. You're extremely well-sourced. You say, here's how in reality, everyday life operates at the court. Here is how they get to the place where the headlines get written. It's not anywhere close to as simple as people might think, but it's also very human to people.

operating at a very high level, of course, but you kind of pull back the curtain a little bit about how things work behind the scenes, even down to the cafeteria and what certain justices tend to eat for lunches and that sort of thing, which I think is important in some ways weirdly to humanize not just the justices, but the institution itself. Does that make sense? Absolutely. I mean, I think we do this in all sorts of our lives. You know, we see people in headlines and we treat them as, I don't know, like these are TVs like physical objects when in fact they have lives, they go home, they get stuck in traffic, they watch TV, you know, there's this moment where I'm trying to describe the chief justice. And if you want to understand his jurisprudence, you actually do kind of need to understand him as a person. And so this is a guy who will like proselytize that Diet Coke is poison. Like when he takes the clerks out for lunch and one of them orders a Diet Coke, he will chastise them. But at the same time, he gets off the treadmill and always grabs a handful of M&Ms. Right? Like, he's all about moderation and sort of these quirky moments. And if you want to understand him on the bench, you need to understand that about him off the bench. But what makes him tick? And for the record, I'm a peanut M&Ms and Coke Zero guy, so I'm not sure where I would fall on the X, Y, access for him, which is a little heads up, a little preview of what I want to talk about next. Sarah. You argue, kind of a central thesis of this book, Last Branch Standing, is that, broadly speaking, the American public, often the American media, often many politicians, misunderstand the Supreme Court. Some intentionally, many not. There's this general sense, I think, fed by a lot of people, that it is a right-wing six-to-three court and therefore it has become illegitimate. There's all these allegations of corruption. I think so much of that is just a grandstanding and demonization for partisan and political reasons. But the six-to-three right-wing court sort of narrative has taken hold. And you say, hold on, that's really not true. It's much more of a three. three three situation. Break that down for us. What does that mean? What does that look like, practically speaking? If you try to predict the outcome of a case that reaches the Supreme Court and all you think about is the ideology of the justices, you will be wrong close to 90% of the time. So in the last 20 years, a liberal justice has been in the majority in more than 90% of the cases. Last term, we had the same number of cases that had all the liberals in dissent. So fine, that fits the narrative. We had the same number of cases with all the liberals in the majority and only conservatives in dissent.

So if you want to understand the court, you've got to figure out why, for instance, Brett Kavanaugh and Neil Gorsuch, both Trump appointees, both created in a, you know, Federalist Society petri dish as far as any of us can tell, why they only agree with each other 50% of the time last term. Brett Kavanaugh was more likely to agree with Elena Kagan, Sotomayor, every other justice other than Ketanji Brown Jackson than with Justice. Neil Gorsuch, this guy who he has, you know, the same amount of conservative. And so what I try to explain in the book is there's this whole other spectrum that you need to think about the justices on. And this is where their personalities as actual humans become really important. And not only do pundits miss this, I think presidents miss it when they're deciding who to appoint to the Supreme Court. They just think about ideology at this point, but they're missing this temperamental aspect. Are you an institutionalist, an incrementalist, someone who thinks a lot about precedent and the courts that came before you? Or are you more like Neil Gorsuch, who I refer to as kind of my yolo libertarian justice, who, you know, he's just there to tell you his view of the law. It's a solo practice. And so he writes the most concurrences on the court right now. I refer to him as the great concurrer. Whereas Brett Kavanaugh... By the way, explain what that means. Why is there a distinction? So you have the majority opinion that five or more justices joined. Right, like here's the ruling. Here's what we've decided. Boom. The end. Like in the tariff case, that was only 25 pages. Then you have the dissent. I disagree and here's why. Fine. But then you can have these justices say, you know, I agree with the outcome of this case, but we didn't reach this question and here's why. Or I agree with the outcome of this case, but for totally different reasons. Here's what I think of the law. There's all sorts of ways that someone might agree with the outcome but want to write their own separate opinion, you know, just so you know what they think. That's a very Neil Gorsuch. and Ketanji Brown Jackson model two justices who are far apart on that ideological spectrum, but right next to each other on that temperamental spectrum and what they see as the role of a Supreme Court justice. Brett Kavanaugh, on the other hand, and Elena Kagan, for instance, again, far apart ideologically, but very close to each other on this temperamental spectrum, they think of this as like a middle school group project. Yes, there's nine people in our group, but we turn in one diorama to the teacher at the end. And so they're not going to be likely to write separately as much. They are going to... try to find areas of agreement to bring as many justices on board in a majority opinion. And so if you don't think about the justices from that spectrum, you're going to get a whole lot of cases wrong. And if you're a president of the United States, you might end up quite frustrated with some of your picks. As we have seen, I want to also just quickly come back to the point that you made. If you were just an average person and you saw a headline that the Supreme Court had decided something six to three.

The, I think, immediate assumption for everyone is that you've got the three more progressive Democrat appointed justices on one side and the six center-right justices Republican appointed on the other. That does happen. Sometimes in major cases, we think about Dobbs, for example, overturning Roe versus Wade, some of the other more controversial cases. But there are tons of, first of all, unanimous decisions. There was a case just recently. involving LGBT rights and a law out in Colorado that was 8 to 1, that a lot of people who just have this prism of 6 to 3, it's always this right-wing court, they kind of just, their brains short-circuited on the 8-1 ruling, and they just sort of glided past it as if it hadn't happened. You can also have 6-3 coalitions that look absolutely nothing like... right versus left, and that is very, very frequent. Why don't we hear more about that? Put more meat on the bones for us, because I find that one of the most fascinating dynamics that is underreported, and I think it would actually be really healthy for the country if more people knew about this. Hi, Ryan Reynolds here for Mint Mobile. Are you looking for a beach read this summer? May I suggest your big wireless bill? It's got suspense, mystery, a slightly flat, emotional arc, and a shocking twist where you realize you've been overpaying the entire time. Fortunately, though, Mint's story is better. Every plan, $15 dollars a month a month, even unlimited. That's it. Happy ending, zero tiers. Give it a try at mintmobile.com slash switch. Up front payment of $45 for three months, $90 for six months, $1,000 per month equivalent to taxes and fees extra. Initial term only greater than 50 gigabytes, may slow when network is busy. See terms. This episode is brought to you by San Pellegrino Chau. A gift from Italy to your home. San Pellegrino Chau is a flavored sparkling water made with real fruit juice, finished with a pinch of Sicilian salt for a perfectly balanced taste. So which flavor will you choose? Peach, lime, blood orange, cherry, or maybe the all-new limoncello. Crafted in Italy with zero grams of added sugar, San Pellegrino Chow. Buy it now. With the all-new Dynasty Blueprint in EA Sports College Football 27, you can build your program by earning Dynasty points to spend on NIL, staff, and more. But the fun doesn't end at graduation. With the EA Sports MVP bundle, get College Football 27, Madden, NFL 27, plus deluxe edition rewards in both games. Make your rise with the MVP bundle, available now at EA.com. Rated E for everyone with mild lyrics, user interact, and in-game purchases, includes random items, conditions, and restrictions apply. See the link for more info. So every time I talk about this to someone who has been told that it's a 6-3 conservative court and I provide them statistics, you know, no, it's not and last term and all of this. The number one thing that they say back to me is, yeah, but in the big cases, it's 6-3 along these ideological lines.

And I say, well, wait a second. I would actually be really interested to have all of, you know, the pundits and people who watch the court get into a room at the beginning of the term. We'll have hand out little, you know, worksheets with all of the cases. And you tell me which ones are the big cases. If we can agree on that at the beginning of the term, then let's see how they come out at the end of the term. But that's not how we cover the court. What happens is we wait, see which cases are six, three along ideological lines. then declare those the big cases, then declare that the court is ideologically, you know, partisan and divisive. So last term, there was a case on gun manufacture liability, religious liberty for tax exempt status in Wisconsin, and reverse employment discrimination for sexual orientation out of Ohio. All three of those were big cases and conservative coded. And if they had come out six three, you would have heard about them. But instead, All three were unanimous. All three majority opinions were written by one of the liberal justices, Elena Kagan, Sotomayor, and Jackson. And we never heard about those cases again. Right. Right. And that's my frustration. Yeah. One of several. I also think part of the reason for that is ideological and political because, in my view, the left is culturally dominant in a lot of ways. And they view power and dominance as their birthright in academia, in... entertainment you go down the list and they get really frustrated when there's an institution that doesn't just rubber stamp what they want and the u.s supreme court right now for a long time the left really got its way at the supreme court for decades but more recently they haven't and then we've had these voices get louder and louder trying to delegitimize the institution of the court. And we've seen some, I think, really reckless things done and said. Chuck Schumer, for example, got a rare rebuke from the Chief Justice for calling out justices by name at a rally at the Supreme Court. You know, you're going to reap the whirlwind. You won't know what hit you if you rule a certain way. I feel like particularly on the political left, There are all these calls now for reforms. They were perfectly fine with how the court operated so long as the outcomes they wanted were happening. But that hasn't been always the case, especially on some of these big ones. And so they've decided actually there's a crisis at the court, a crisis of credibility and legitimacy, and therefore we need reforms. And they talk about all sorts of ideas, including court packing and stuff that really gets into banana republic territory. I wonder if you agree with my thesis about the motives behind a lot of this. And then what do you make of these calls for reform? And is this something that people need to take seriously, as I do, as what I consider to be a threat to the institution? It is a threat to the institution. I guess what I find sort of funny, not ha ha funny, but you go back and read newspapers in 1805 when Chief Justice John Marshall, you know, the heralded guy with all the bus around, you know, any law school.

Everyone saying the same thing. The Supreme Court is a threat. We need to change the justices on the court. Jefferson wanted to remove Chief Justice Marshall. He impeached Samuel Chase because he wanted more partisan, friendly justices on the court. President Jackson wanted to ignore the Supreme Court opinions he didn't like. Of course, FDR wanted to pack the court. Lincoln said the court was a problem. Of course, after Dred Scott. So this is nothing new to the court, these types of partisans not liking outcomes and not caring too much about the process. What I guess I would remind people, because all of the nine justices on the court, think about this guy every day. His portrait is in their conference where they take votes on the cases. Nobody else is allowed in the room. They sign their names to his Bible before they take their seat at the court and put on their black robes. And it is John Marshall Harlan. He is the dissenter in Plessy v. Ferguson, the only dissenter on the court. This was the case that upheld segregation. And it's a reminder to them that the politics of the moment, the culture, the society that you were born into is not how you will be judged, whether your decisions are popular. John Marshall Harlan was the sole dissenter. Frederick Douglass wrote him a letter that said, one man with God is a majority. So each of these justices are actually charged with ignoring the popular majority and simply saying what the Constitution says. Now, they may disagree because they have different judicial philosophies, different views on how to interpret the Constitution. But they, you know, Chuck Schumer can sit in front of the Supreme Court all he wants. It will make them more stubborn, not less, as it should. Our guest is my friend and author Sarah Isger. Sarah, you write in your book, Last Branch Standing, about some reforms that maybe should be entertained at the court, not root and branch stuff, more tinkering, but I think that's interesting, especially since court reform is a buzzword or phrase for some people. You actually, I think, take a constructive view of that question, and people can buy and read the book to get to that. I do want to come back to something that you just said a moment ago. about how these cases are decided. This again goes to the demystification, getting behind closed doors. After oral arguments take place, you described, and I'd had this explained to me actually by a justice at one point. I did not know this prior to that conversation. I would have learned it for the first time, if not in your book. Talk about the process of how the justices actually go through and grapple with a case before them where it is

Only them in the room. There are rules, even down to who opens and closes the door, right? Explain this. So the justices really never talk about a case before oral argument. The first time they're hearing each other's thoughts on what is interesting or what point of law is important is oral argument, which you can, of course, hear live from the Supreme Court website, or you can tune into SCOTUS blog, where we live blog a lot of the bigger oral arguments. Very much so. Invalu resource. After oral argument, they will all go to lunch together inside the building in their lunchroom. And they will not talk about work at all. They will talk about what they're binge watching. Amy Coney Barrett, Elena Kagan, read the books. By the way, I just have to say parenthetically, I love slow horses. I love the show. I love the books. So the fact that Amy Coney Barrett and Elena Kagan together are fans, I became bigger fans. of both of them just because of that one fact. Sorry, go ahead. Okay, so then they will leave lunch, and depending on what day of the week it is, they might have conference after lunch, if it's a Wednesday, or it may be a couple of days later. They will meet in the Chief Justice's conference room. As I say, Chief, sorry, Justice, John Marshall Harlan's portrait hangs in that room. They have assigned seating. They will speak in order of seniority about the case and how they intend to vote. Nobody can speak twice until each justice has spoken once. And the junior justice, that would be Justice Ketanji Brown Jackson, is in charge of opening the door and sending notes if they need anything. And Ketanji Brown Jackson has noted that Amy Coney Barrett, previously the junior justice, often gets cold in the conference room and will want to send a note to her clerks to please go fetch a shawl or a, you know, jacket from her chambers. Ketanji Brown Jackson responsible for opening the door, giving the note to the marshal who gives it to the clerk. knock knock now the jacket's here getting the jacket and handing it to Amy Coney Barrett a few additional things here sarah you tell a story in this book about really i think a pivotal moment in your own career where president obama nominated elana Elena Kagan to the u.s supreme court you knew her very well when she was your dean at harvard law But she was on the left and the Republicans, you remember the Republican Party, were trying to defeat the nomination or at least sort of scuff her up. And you were approached by both the confirmation team. from the White House and soon to be Elena Kagan to help them as someone on the right who could vouch for her and by the Senate Republicans trying to get you to help them defeat the nomination. And you made the choice that you made. I'll let people buy and read the book to find out how that all played out. I think that's a really cool, interesting story. Gives a little insight into how well placed you are in this whole orbit.

Before we go, though, I want to play a clip. There's a report. Now, just came out, it's actually a great news hook for your book as you're out there selling this book. Sonia Sotomayor has reportedly apologized to one of her fellow justices. Listen to Cut 36. Justice Sonia Sotomayor apologizes for comments she made about Justice Brett Kavanaugh, who was part of a majority decision on immigration enforcement. Sotomayor saying, this is from a man whose parents were professionals and probably doesn't really know any person who works by the hour. Now, she's apologizing, saying, I made remarks that were inappropriate. I regret my hurtful comments. I have apologized to my colleague. All right. So that was a local news report about it. And I can only imagine the behind the scenes things that happened that led to a public apology, which is eye-opening and pretty rare. But I think it goes to the... interpersonal dynamics in that building and within that constant and within that institution i mean we had seen friendships pop up famously for example justice Scalia and justice Ginsburg way way apart ideologically extremely close personally so much of dc is so rancorous and dysfunctional This is still a major exception, one that is, I think, refreshing. It goes to the title of your book, Last Branch Standing. What is your insight on that apology? What does it say about how things work at that place? The moment that I heard that Sonia Sotomayor had said that, you know, I have a legal podcast, advisory opinions, and I said, you know, I think those were unfortunate comments. Anytime you're sort of guessing about who someone knows and their life experience, you're in dangerous water. And I said, I'll tell you, I'll bet she misspoke, not in the sense that she isn't upset about the case. And she's upset about, you know, her colleague coming out in a different place than she did in that case. But like we all do, sometimes something comes out of our mouth. And you know what? Like we meant it, but we didn't mean to say it. And we sort of immediately regret it and apologize to that person. And so I actually predicted that she would apologize because, you know, Amy Coney Barrett has said this. This is more like, you know, being in an arranged marriage with nine people with life tenure and no hope of escape. And Sonia Sotomayor really values collegiality, especially she has gone out of her way publicly with Brett Kavanaugh and Amy Coney Barrett to show how much she values their working relationship. And so, no, we don't have, you know, Justice Scalia and Justice Ginsburg riding on elephants going on vacation together anymore.

But there is a genuine affection between a lot of these justices as they maybe just walk down the hall back to their chambers together and share a laugh. And I'm so glad she apologized. I'm not the least bit surprised. And I guess what I hope people understand is, this isn't like the chief justice goes to Sonia Sotomayor and says, you must put out an apology. And that it's like some fake thing like we see in Congress or sort of, you know, presidential campaigns or something like that. I assure you, nobody talked to Sonia Sotomayor. And she immediately wanted to find a way to do that apology. And I assure you also that she apologized to Brett Kavanaugh before she put out the public statement as well. Sarah Isger is editor of SCOTUS blog. Her book is Last Branch Standing, a potentially surprising, yes, occasionally witty, yes, journey inside today's Supreme Court. It is superb. I recommend it very strongly. Even if you don't feel like you're a legal nerd at all, it's almost like this book is for you, as a matter of fact. And if you are a legal nerd, you will also love and learn from this book. I can't. speak highly enough about the book or Sarah herself Sarah congratulations on this I see the promotion tour is going extremely well I hope so many millions get a chance to read your book and we're just thrilled for you thank you for writing it Guy, thank you for your support over all of these years. I cherish your friendship and look forward to many, many more years to come. Oh, the feeling is very mutual. Sarah Isgar. On Guy Benson. That was yet another Guy Benson bite. For full episodes of Guy Benson, go to Guy Benson.com or wherever you get your podcasts.

$47,000. That's what the average engine customer saves on business travel. Every year. That's a 26% savings, all with no booking fees. Up to 70% off hotels. Zero booking fees. Free to start, total control. Find a hotel that meets your team's complex needs. Did we say no fees? We did. That's engine. Teams travel, spend. managed. Get started at engine.com slash savings. Listen to the show ad free on Fox News Podcast Plus on Apple Podcasts, Amazon Music with your prime membership, or subscribe wherever you get your podcasts.