Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today’s Supreme Court, by Sarah Isgur (Crown, 416 pp., $32)
On her podcast Advisory Opinions, Sarah Isgur often discusses an axis for assessing Supreme Court justices beyond the usual conservative/liberal one. Her interest is in “institutionalism”—the extent to which a justice respects precedent, looks for narrow holdings, and aims to avoid drastic consequences.
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On an institutionalist axis, two justices who are ideologically identical might reach different decisions about a case. One might want an intellectually pure, far-reaching opinion, while the other would arrive at a more modest conclusion to maintain stability.
The institutionalism axis also helps us see that some justices are especially protective of the Court’s standing. They understand that the judicial branch is more than case outcomes. To play its special role in our constitutional system, it needs to be trusted, even esteemed, by the public and governing leaders. In other words, an institutionalist doesn’t simply use an institution to get certain results; instead, he behaves in ways that strengthen the institution.
The only way to understand Isgur’s valuable book, Last Branch Standing, is to recognize that she is the ultimate Supreme Court institutionalist.
This stance places her at odds with the anti-institutional spirit of our times. Thanks to the polarization of our politics and changes in media consumption, the best way to get attention in the public square today is to say as many negative things as possible. The more scandalous, accusing, and apocalyptic, the better. This is obvious when it comes to cable news and social media, but it’s also evident in books about governing. Readers seem to enjoy being told that some official is a villain, some group is out to get us, or some institution is failing. Even prominent books about the ostensibly staid judiciary have taken this turn.
Accordingly, a reader unfamiliar with Isgur’s other work—she is the editor of SCOTUSblog—might initially find Last Branch Standing countercultural, even quaint. It has an easy, conversational tone. Few legal books use “bonkers” and “vomit-y,” refer to “vibes theory” and “chaos muppets,” or compare something to “taking home the girl with the crazy eyes from the bar.” It also takes great pains to avoid harshly criticizing courts and judges. There are no villains here. For example, an early chapter portrays each current justice in detail, and all come across as brainy and decent. Indeed, she describes the history of the Supreme Court as “smart, thoughtful, well-intentioned people trying to do the right thing by their fellow citizens.”
If the market wants diatribes, why did a major publisher decide to greenlight an earnest, lively, feel-good book like this? Because Isgur has shown that there’s an appetite for it. The public square is now chock-full of people with no experience in governing and who know little about the day-to-day work of America’s institutions but nevertheless have tall platforms from which to criticize and lament. Isgur, on the other hand, has significant experience across the federal government, a quick mind, and a cheerful disposition. She is doing something right: her Advisory Opinions is among the most popular legal podcasts in America, listened to by practicing attorneys, professors, and federal judges alike.
Though she’s right-of-center, her aim—her secret sauce, it seems—is to explain the judiciary, not proselytize for her political preferences. Her theory of action appears to be something like this: if the public better understands the courts, they will better appreciate them; and if the public understands and appreciates the courts, they will understand and appreciate America and its governing institutions. Toward the end of the book, she writes, “The Supreme Court is losing legitimacy—the only superpower it has.” Her book aims to shore up that superpower.
The goal of most right-of-center commentators is to advance conservative politics. Last Branch Standing represents a sturdier, less fiery version of conservatism: protect America’s way of life by protecting America’s key institutions. In Isgur’s eyes, the barbarians at the judiciary’s gate are those who attack it anytime a court doesn’t produce the political outcome they desire. “Partisans can’t abide an institution that has its own legitimacy if that institution doesn’t bend to their partisan interests.”
Last Branch Standing is written for a lay audience. It is eminently readable—punchy, informative, fun. It does not have a novel academic thesis systematically, meticulously defended across chapters (but it does make good use of scholarly research). Nor is it an exposé carried forward by gossipy revelations (but it does have instructive anecdotes designed to humanize the Court). Instead, it’s a collection of loosely tethered chapters with a common theme: America’s judiciary, especially the Supreme Court, is a complex, interesting, fundamentally human organization that deserves to be respected.
The reader will learn the basics: how cases get to the Court; how individuals become clerks, judges, and justices; how the judiciary does its work. You’ll learn about writs of certiorari, standing, and Article III. The book also has history: how the federal judiciary came into being, its biggest cases, its toughest moments. You’ll learn about John Marshall, John Jay, Lochner, and radioactive confirmation battles. Isgur also slips in headier material: canons of construction, judicial methodologies, tiers of scrutiny, the “shadow docket,” “text, history, and tradition.” But her years of experience as a spokesperson for the Justice Department, legislators, and candidates comes in handy, allowing her to make the toughest subjects accessible. She has the sugar-filled spoonful of stories, examples, hypotheticals, and analogies to help the legal medicine go down.
In this way, Isgur has a clear bent for teaching. A footnote late in the book tells the story of how, in advance of announcing a major Justice Department decision, she walked reporters through history and policies, so they would understand exactly what the department was doing and why. Her aim was to ensure that they at least appreciated the reasoning behind—and were prepared to make informed judgments about—the decision. This episode provides a good metaphor for Last Branch Standing.
The book’s chapters are episodic, like Law & Order. As long as you know the basics of the story, the order of consumption doesn’t matter much. There are chapters on the 3-3-3 breakdown of the Court’s current membership, oral arguments, unenumerated rights, the Federalist Society, congressional lassitude, and more. It also has numerous sidebars on topics tangential to the narrative (like qualified immunity, the extent of free speech, and justiciability) but interesting and informative nonetheless. Overall, the book’s major contribution isn’t to make an extended central argument so much as to offer chunks of knowledge, much of it memorable. For example, her take on the Justice Brett Kavanaugh–Christine Blasey Ford saga (and its aftermath) is moving. Her views on the consequences of ending the filibuster and Justice Amy Coney Barrett as a third-wave Court feminist are insightful. Her assessment of Justice Neil Gorsuch’s hyper-confidence and unflattering initial appraisal of Chief Justice John Roberts is eye-opening.
The book is so upbeat that one could read it as loath to criticize—particularly members of the current Court. For instance, the weakest, potentially most dangerous, decision of recent years (the Trump immunity case) is merely described as “perplexing.” So Last Branch Standing can, at times, come across as a kind of generous authorized biography of the judiciary. But this is more a reflection of the author’s character than her calculation. In her writing and podcasting, Isgur is principled but good-natured. She doesn’t hide her GOP credentials or conservative sensibilities, but she does act as though the health of the judiciary is more important than ideological or partisan differences. This is what enables the book’s serious but breezy treatment of polarizing issues. It also explains her ability to interview conservative and liberal professors, her fondness for Justice Elena Kagan despite their different philosophies, and her friendships with legal practitioners across the spectrum. Given the toxicity of contemporary public discourse, works that err on the side of graciousness are refreshing.
My only semi-misgiving about Last Branch Standing is that its astuteness, exuberance, and commercial success might convince patriotic early-career professionals that the best way to defend our institutions is to write and talk about them for a living. For the past decade, I’ve argued that one critical aspect of American civic virtue is disappearing: the commitment to public service. Everyone wants to be a pundit, analyst, or influencer nowadays, but few are willing to do the actual work of governing. The size of the commentariat has exploded while the number of serious statesmen and stateswomen has plummeted.
American liberty and democracy certainly allow the stands of public life to be full of citizens fanatically cheering or hissing. And the size and complexity of the republic warrant some number of play-by-play announcers and color commentators in the press box breaking down the game for the audience at home. But for the nation to flourish, some portion of our most able citizens needs to be on the field.
Isgur describes her path into analysis humbly, presenting it essentially as the result of realizing that she wouldn’t be the smartest lawyer around but that she would be able to explain what the smartest lawyers were doing. That is far too modest. The author has brains and acumen to spare. But many talented young Americans may similarly convince themselves that governing can be left to others. Isgur did valuable inside-the-system service earlier in her career, and I hope she finds ways to do so again. America needs fine minds (especially those with a knack for civility, curiosity, and good humor) to lead our governing institutions.
In other words, if you care about the judiciary’s role in American governing, by all means give Last Branch Standing a read. But if you want to strengthen our institutions, commit yourself and encourage others to serve them.