Sarah Isgur, Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today’s Supreme Court (Crown 2026) – The Burton Book Review

For the previous six years, in her position as co-host of the favored Advisory Opinions podcast, and extra not too long ago as editor of SCOTUSblog, Sarah Isgur has lined the Supreme Court docket’s choices.  “And not using a functioning Congress . . . and with a too-powerful govt department,” Isgur argues, the Court docket right this moment is the “Final Department Standing” as a result of it’s “the one one in every of three that our Founders would acknowledge” (p. xvi).  Drawing on her work protecting the Court docket, Isgur has written an insightful and entertaining guide that illuminates how the Court docket truly works right this moment, its position all through the Nation’s historical past, and the way it is likely to be improved by varied reforms.

The guide takes intention at “the fast-food political pundits who cowl the Supreme Court docket the identical method they speak about Congress or the White Home” (p. xxiii-xxiv).  At its core, the Supreme Court docket’s work entails a extremely structured two-step course of through which 9 people first determine which instances to just accept for evaluate after which apply strategies of statutory or constitutional interpretation, and weigh competing authorized arguments, to resolve fastidiously outlined questions of federal regulation on which the decrease courts sometimes have supplied totally different solutions.  Isgur maintains that the Court docket’s “deserves” choices are sometimes incorrectly portrayed within the press (particularly in headlines) as if the Court docket had been selecting a politically desired final result in a lot the identical method as Congress and the President do, respectively, in passing a statute and signing it into regulation.

Final Department Standing consists of three elements.  Half One units out Isgur’s fundamental argument about how the general public ought to perceive the justices, whom she says fall into three distinct however far-from-homogeneous teams: (1) the “Lonely Liberals” (Justices Sotomayor, Kagan, and Jackson); (2) the “Conservative Honey Badgers” (Thomas, Alito, and Gorsuch); and (3) the “Deciders” (Kavanaugh, Barrett, and Chief Justice Roberts), who maintain the swing votes.  Her principal goal is authorized realism and people critics of the Court docket who keep that it decides instances primarily based largely or solely on political grounds and desired outcomes.  Such critics typically emphasize the 6-3 choices in necessary instances (reminiscent of Trump v. United States, involving presidential immunity) that sharply divide the justices appointed by Republican and Democratic presidents.

Isgur acknowledges that political orientation (and maybe its shut cousin, judicial philosophy), which she describes as “the exterior forces that have an effect on justices’ views of the regulation alongside a conservative-to-liberal axis” (p. xxv), do play a major position in judicial decisionmaking.  She plots this continuum as an “x-axis” on a graph.  However, she argues, so do a cluster of “institutionalist” issues that she calls the “y-axis.”  The latter, she says, encompass “inner forces that have an effect on which instances the justices hear, after they determine them, and the way a lot they attempt to shield the legitimacy and credibility of the Court docket itself” (p. xxiii).  Extra particularly, Isgur seems to take into consideration a justice’s respect for precedent, willingness “to think about[] questions outdoors the information and regulation of a particular case” (p. 11) reminiscent of a call’s anticipated results in the true world or on the regulation, willingness to hitch different justices’ opinions versus writing individually, and inclination to determine points narrowly or keep away from deciding in any respect.  She offers every justice a rating of 1 to 9 on the x- and y-axis.

To help her argument that the y-axis or institutionalist issues are necessary, Isgur factors to statistics regarding voting patterns within the Court docket’s 60-odd deserves choices from the 2024-25 time period.  For instance, the 6-3 by-presidential-appointment configuration cited by critics occurred in solely 9% of all instances; in one other 6%, 6-3 votes featured three Republican-appointed justices in dissent.  If 5-4 choices are thought of, 15% featured the three liberal justices in dissent, and but 15% additionally featured three conservative justices in dissent.  42% of the choices had been unanimous.  Furthermore, though she contends that Justices Kavanaugh and Gorsuch “are as near a twin research because the Supreme Court docket will ever have” (p. 9) given parallels of their life histories {and professional} expertise, Justice Kavanaugh is extra prone to agree with each different colleague than Justice Gorsuch apart from Justice Jackson.  A predominant cause, Isgur argues, other than Justice Gorsuch’s libertarian streak and strict textualist method to statutory interpretation (x-axis components), are the “y-axis” components: Justice Gorsuch is much less probably than Kavanaugh to observe precedent, be influenced by a call’s anticipated real-world results, or compromise with different justices or be part of a gaggle opinion.  In keeping with Isgur’s evaluation, Justices Kavanaugh and Kagan and the Chief Justice all rating excessive on the “institutionalist” y-axis, whereas Justices Gorsuch, Thomas and Jackson all rating low.

Sure, one would possibly say, however what concerning the handful of “huge” instances yearly just like the presidential immunity resolution?  Principally, Isgur argues that in the event you have a look at the instances forecast to be the “huge” instances at the start and finish of the Supreme Court docket’s time period, these lists will probably be considerably totally different.  If a case projected to be “huge” is resolved by a lopsided margin or in a shocking method in contrast with the political optics of the second, then these instances are inclined to drop off the checklist of massive instances.  She cites a number of examples of such affirmation bias to help this declare.  That is solely a partial reply, nevertheless.  Many instances projected to be “huge” find yourself being determined 6-3 with the “Lonely Liberals” in dissent.

In relation to the Court docket’s emergency, interim, or “shadow” docket, which within the present time period has ballooned and featured lopsided leads to favor of the Trump Administration (typically, once more, by votes of 6-3 alongside political traces), Isgur acknowledges that it represents “a brand new risk to the Court docket’s legitimacy” as a result of it “shines a harsh mild on the justices’ ideological variations alongside the x-axis and institutional variations alongside the y-axis” (p. 333).  It is a essential subject, and Isgur’s take differs considerably from that of Georgetown Regulation Professor Stephen Vladeck, who actually wrote the guide on this topic (The Shadow Docket, 2024) and who’s engaged on a much-anticipated sequel.  In all of those instances, the Supreme Court docket is being requested very early in litigation to train its equitable authority and grant emergency reduction (a keep or injunction) affecting the established order whereas the underlying authorized problem works its method by the decrease courts.  To make these choices, the Court docket examines varied equitable components together with whether or not the celebration asking for emergency reduction will undergo irreparable harm if reduction is withheld.

In simply over per week since Isgur’s guide was revealed, there have been two main developments in regards to the emergency docket.  First, the New York Instances revealed a narrative, primarily based on leaked inner memos, regarding a 2016 case involving President Obama’s Clear Energy Plan through which a 5-4 Court docket reportedly issued emergency reduction in a brand new and extra expansive setting.  See https://www.nytimes.com/2026/04/18/us/politics/supreme-court-shadow-docket.html.  Evidently for the primary time, the Supreme Court docket suspended a nationwide regulatory program that had not but been reviewed by any decrease courtroom.

Second, Justice Jackson delivered a speech at Yale Regulation Faculty through which, drawing on her expertise as a federal district courtroom decide and as a Supreme Court docket regulation clerk in 1999-2000, she examined the historical past and present state of the emergency docket, argued that “there isn’t any such factor as an interim docket,”  criticized the Court docket’s “scratch-paper musings” in emergency docket instances for his or her unsure results on decrease courts, and provided a number of concepts for reform.  See https://vimeo.com/1183042359?share=copy&fl=sv&fe=ci. As these developments and the Court docket’s choices in current emergency docket instances show, there’s a strong debate inside the Court docket about how a lot discretion the Court docket retains to resolve these emergency requests summarily and with out rationalization, how extensively the Court docket ought to clarify these choices, and whether or not the President’s incapacity to train his asserted constitutional authority instantly counts as irreparable harm on condition that such “constitutional” hurt is extremely summary in nature and nonexistent if the President’s motion is prohibited (because the underlying lawsuits search to determine).  See id. at 1:04:26 to 1:07:42.  One can solely hope that this vigorous public debate – to which Isgur’s guide makes a contribution – will result in enhancements in how the Court docket handles the emergency docket.

Half Considered one of Final Department Standing additionally contains illuminating and at occasions gossipy chapters on Supreme Court docket regulation clerks and oral arguments.  The chapter on regulation clerks is written in a intelligent epistolary kind, as a sequence of letters to a clerkship applicant and regulation clerk over the course of a yr (with such salutations as Expensive 3L, Expensive Elect-ed, Expensive Indentured and Expensive Exhausted).  Deploying her trademark references to fashionable tradition, Isgur provides many enjoyable particulars of life within the Court docket’s internal sanctum together with, for instance, sure goings-on at clerk completely satisfied hours.  There are additionally attention-grabbing chapters on every group of three justices through which Isgur supplies clearer portraits of the justices as individuals.  And for every justice, she ends with a tagline or accolade.  For instance, Justice Gorsuch is the justice “you’d most wish to have in your facet in a bar combat” (p. 87) and Justice Kagan the justice “you’d most prefer to be besties with” (p. 103).  The guide succeeds in giving the general public a way more vivid sense of the justices as individuals.

Isgur’s analytical framework would have benefited from extra emphasis on the truth that particular person justices have developed particular approaches and strategies in sure areas of regulation.  To make sure, she does point out Justice Gorsuch’s particular solicitude for each the rights of Native People in Indian regulation instances and the rule of lenity in felony instances, however there are myriad different examples reminiscent of Justice Thomas’s rejection of implied “impediment” preemption and the late Justice Scalia’s solicitude for the Confrontation Clause.  Nonetheless, Isgur has shed important mild on how Supreme Court docket practitioners truly method the duty of persuading a majority of justices to rule of their favor in particular person instances.  The creator’s Federalist Society credentials, and unabashed admiration of the extra conservative justices, additionally set this guide other than most within the area.

Half Two of the guide particulars the “political” historical past of the Supreme Court docket.  It features a sustained dialogue of the primary Chief Justice, John Jay; the second Chief Justice, John Marshall; and quite a few landmark instances together with Marbury v. Madison, Dred Scott v. Sandford, Plessy v. Ferguson, Roe v. Wade, and Lochner v. New York.  It additionally features a historical past of the affirmation course of, the abolition of the filibuster for Supreme Court docket nominations, and a chapter on how Congress and the Presidency have modified.

Probably the most attention-grabbing chapter in Half Two is on the Federalist Society (based in 1982) and its affect on American regulation and the collection of Supreme Court docket justices by Republican presidents.  As a former President of the Federalist Society Chapter at Harvard Regulation Faculty, Isgur is well-situated to inform this story, which incorporates present disagreements over find out how to deploy originalism as a way of constitutional interpretation in addition to whether or not originalism can survive ascendant populist forces within the Republican celebration who advocate for “frequent good constitutionalism” or imagine “an activist judiciary is nice once more so long as their choices are good” (p. 192).

Half Three purports to revisit the y-axis, however actually covers a potpourri of numerous matters, together with a dialogue of the Court docket’s declining docket, why the Court docket takes the instances it does, adjustments within the skilled composition of the Supreme Court docket and the Supreme Court docket bar, totally different views about stare decisis and precedent, varied threats to the Court docket’s independence, and proposals for Court docket reform.  On this half as elsewhere within the guide, Isgur contains passages, cleverly set out in a distinct typeface, that deal in a extra legalistic method with points that curiosity her: e.g., setting forth eight “nice” constitutional amendments, criticizing varied “made-up” authorized doctrines, and describing the assorted strategies of judicial interpretation.

Final Department Standing must be of curiosity to anybody who cares concerning the Supreme Court docket and needs to grasp it higher.  And the guide will probably be particularly helpful to those that are contemplating going to regulation college, given its inclusion of a particular appendix containing recommendation from Isgur and ten outstanding authorized figures, together with three justices, on whether or not to take that plunge.