America will soon celebrate the 250th birthday of its founding. But more than two centuries later, there may only be one branch standing: the Supreme Court.
“It’s the only branch the founders would recognize. They’d be stunned how little Congress is doing right now,” Sarah Isgur told Drew Mariani. Isgur the editor of the Supreme Court website SCOTUSblog, is also the author of a new book Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today’s Supreme Court. Congress, she says, has “become Instagram influencers, cheerleaders, or antagonists for the party that controls the White House.”
She does not spare the executive branch, either. “The president, on the other hand, is now running the government by executive order. And whatever problems you think the country has, let me assure you, you will not fix it in four-year increments, which is what we’re doing right now,” she told Drew. Executive orders, she argues, are a weak form of governance because they can simply be repealed by the subsequent officeholder. “You have an executive order signed by President Biden and President Trump repeals it the first day he’s in office and then everyone cheers,” she said, but “that’s going to get repealed the first day the next guy’s in office.”
Isgur argues that the quiet Congress and unitary executive branch place an undue burden on the Supreme Court. She gives the example of the recent decision on the Voting Right’s Act, “We treat that like it’s the last word on the subject.” Instead, if Americans wanted an updated Voting Right’s Act they should expect Congress to pass a new law, or amend the Constitution. “We used to do that, but nobody believes that anymore. And so the pressure builds on the branch that was supposed to be least representative, least Democratic, and was supposed to stand up to majorities.”
What’s Next for the Court
Despite the fact it is the last branch standing, Isgur sees some rough waters ahead. Because of the Court’s counter-majoritarian nature, it is meant to be a lagging indicator of American politics. “If we don’t sort of clean up our act soon, it will catch up with where we are now in the other branches,” she said.
At the end of her book, Isgur recommends several reforms for the Court. One reform is an enforceable ethics code. In 2023, the Court adopted a code, but Isgur thinks it is toothless, so recommends an ethics board. “An enforceable ethics code would give the public more confidence in the court. It would also protect the justices from nonsense allegations,” she argues.
Isgur also recommends the Court take on more cases. “If the court started hearing more cases again, it would lower the overall temperature.”
Among other recommendations, like saying no to cameras, Isgur calls for an end to “forum shopping,” — where cases are presented in front of judges who are perceived to be favorable. Isgur calls instead for “random assignment” of cases. “The end result, I predict, would increase trust and legitimacy in the judiciary,” she said.