For the previous six years, in her function as co-host of the favored Advisory Opinions podcast, and extra just lately as editor of SCOTUSblog, Sarah Isgur has coated the Supreme Court docket’s selections. “And not using a functioning Congress . . . and with a too-powerful govt department,” Isgur argues, the Court docket in the present day is the “Final Department Standing” as a result of it’s “the one one in all 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 in the present day, its function all through the Nation’s historical past, and the way it may be improved by numerous reforms.
The guide takes goal at “the fast-food political pundits who cowl the Supreme Court docket the identical manner they speak about Congress or the White Home” (p. xxiii-xxiv). At its core, the Supreme Court docket’s work includes a extremely structured two-step course of by which 9 people first resolve which circumstances to just accept for overview 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 usually have offered totally different solutions. Isgur maintains that the Court docket’s “deserves” selections are sometimes incorrectly portrayed within the press (particularly in headlines) as if the Court docket have been selecting a politically desired end result in a lot the identical manner 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 preserve that it decides circumstances based mostly largely or completely on political grounds and desired outcomes. Such critics usually emphasize the 6-3 selections in necessary circumstances (corresponding to 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 big function 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, include “inner forces that have an effect on which circumstances the justices hear, once they resolve them, and the way a lot they attempt to defend the legitimacy and credibility of the Court docket itself” (p. xxiii). Extra particularly, Isgur seems to take note of a justice’s respect for precedent, willingness “to contemplate[] questions outdoors the details and regulation of a selected case” (p. 11) corresponding to a choice’s anticipated results in the actual world or on the regulation, willingness to affix different justices’ opinions versus writing individually, and inclination to resolve points narrowly or keep away from deciding in any respect. She provides every justice a rating of 1 to 9 on the x- and y-axis.
To assist 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 selections from the 2024-25 time period. For instance, the 6-3 by-presidential-appointment configuration cited by critics occurred in solely 9% of all circumstances; in one other 6%, 6-3 votes featured three Republican-appointed justices in dissent. If 5-4 selections are thought of, 15% featured the three liberal justices in dissent, and but 15% additionally featured three conservative justices in dissent. 42% of the selections have 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 primary motive, Isgur argues, aside from Justice Gorsuch’s libertarian streak and strict textualist strategy to statutory interpretation (x-axis components), are the “y-axis” components: Justice Gorsuch is much less seemingly than Kavanaugh to observe precedent, be influenced by a choice’s anticipated real-world results, or compromise with different justices or be part of a gaggle opinion. In line 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 in regards to the handful of “large” circumstances yearly just like the presidential immunity choice? Principally, Isgur argues that should you take a look at the circumstances forecast to be the “large” circumstances at first and finish of the Supreme Court docket’s time period, these lists might be considerably totally different. If a case projected to be “large” is resolved by a lopsided margin or in a shocking manner in contrast with the political optics of the second, then these circumstances are inclined to drop off the checklist of huge circumstances. She cites a number of examples of such affirmation bias to assist this declare. That is solely a partial reply, nevertheless. Many circumstances projected to be “large” find yourself being determined 6-3 with the “Lonely Liberals” in dissent.
On the subject of the Court docket’s emergency, interim, or “shadow” docket, which within the present time period has ballooned and featured lopsided ends in favor of the Trump Administration (usually, once more, by votes of 6-3 alongside political traces), Isgur acknowledges that it represents “a brand new menace to the Court docket’s legitimacy” as a result of it “shines a harsh gentle on the justices’ ideological variations alongside the x-axis and institutional variations alongside the y-axis” (p. 333). This can be a crucial subject, and Isgur’s take differs considerably from that of Georgetown Legislation 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 circumstances, the Supreme Court docket is being requested very early in litigation to train its equitable authority and grant emergency aid (a keep or injunction) affecting the established order whereas the underlying authorized problem works its manner by the decrease courts. To make these selections, the Court docket examines numerous equitable components together with whether or not the celebration asking for emergency aid will endure irreparable harm if aid is withheld.
In simply over per week since Isgur’s guide was revealed, there have been two main developments regarding the emergency docket. First, the New York Occasions revealed a narrative, based mostly on leaked inner memos, regarding a 2016 case involving President Obama’s Clear Energy Plan by which a 5-4 Court docket reportedly issued emergency aid 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 court docket.
Second, Justice Jackson delivered a speech at Yale Legislation Faculty by which, drawing on her expertise as a federal district court docket choose 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 is no such thing as a such factor as an interim docket,” criticized the Court docket’s “scratch-paper musings” in emergency docket circumstances 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 selections in current emergency docket circumstances reveal, 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 clarification, how extensively the Court docket ought to clarify these selections, and whether or not the President’s lack of ability 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 against the law (because the underlying lawsuits search to ascertain). 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 One in all 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 12 months (with such salutations as Pricey 3L, Pricey Elect-ed, Pricey Indentured and Pricey Exhausted). Deploying her trademark references to standard tradition, Isgur provides many enjoyable particulars of life within the Court docket’s interior sanctum together with, for instance, sure goings-on at clerk blissful hours. There are additionally attention-grabbing chapters on every group of three justices by which Isgur gives 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 need 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 circumstances and the rule of lenity in felony circumstances, however there are myriad different examples corresponding to Justice Thomas’s rejection of implied “impediment” preemption and the late Justice Scalia’s solicitude for the Confrontation Clause. Nonetheless, Isgur has shed important gentle on how Supreme Court docket practitioners truly strategy the duty of persuading a majority of justices to rule of their favor in particular person circumstances. The creator’s Federalist Society credentials, and unabashed admiration of the extra conservative justices, additionally set this guide aside from most within the discipline.
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 circumstances 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.
Essentially the most attention-grabbing chapter in Half Two is on the Federalist Society (based in 1982) and its affect on American regulation and the number of Supreme Court docket justices by Republican presidents. As a former President of the Federalist Society Chapter at Harvard Legislation Faculty, Isgur is well-situated to inform this story, which incorporates present disagreements over the best way 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 “widespread good constitutionalism” or imagine “an activist judiciary is nice once more so long as their selections are good” (p. 192).
Half Three purports to revisit the y-axis, however in reality covers a potpourri of numerous matters, together with a dialogue of the Court docket’s declining docket, why the Court docket takes the circumstances 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, numerous 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 unique typeface, that deal in a extra legalistic method with points that curiosity her: e.g., setting forth eight “nice” constitutional amendments, criticizing numerous “made-up” authorized doctrines, and describing the assorted strategies of judicial interpretation.
Final Department Standing must be of curiosity to anybody who cares in regards to the Supreme Court docket and needs to know it higher. And the guide might 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.