May 27, 2026 • 16 mins
Sarah Isgur joins Jack & Joe to talk about her new book, Last Branch Standing--an insider's look at The Supreme Court.
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Speaker 1 (00:00):
We've been wanting to get Sarah igor on for a
long time. First became or wherever on the Dispatch and
the podcast stuff there, and man, anytime any big legal
story breaks, I go to her Twitter feed or wait
for the podcast she does with David French Advisory Opinions
to get it laid out. And couldn't be happier to
have her today.
Speaker 2 (00:17):
Yep, we're both big fans of Sarah Isger, editor of
Scotis Blog, hosted the legal podcast in virus Ory Opinions,
Legal analyst for ABC News and author of a fabulous
new book, Last Branch Standing, a potentially surprising, occasionally witty
journey inside today's Supreme Court. A book so timely and
important I believe it should be a compulsory read for
every American. Not sure how that scores with the first
(00:38):
time Sarah, welcome, How are you?
Speaker 3 (00:41):
I'm great? Thank you guys for having me.
Speaker 1 (00:43):
You bet you before we let you lay out the book.
And here's the deal I'm going to make with you.
Even though we have no leverage. You're like the horror
moves straight. We have no leverage over you, but I'll
let you and I'll go out and buy a hard
bound copy of your book today, even though I'm getting
a promotional copy. If I can get you to do
one of your screeds, and there's there's so many, I
would like the screed might be prejudicial. Maybe I'll go
with presentation or something like that. But and I could
(01:06):
have you do why the whole crying fire in a
crowded movie house is misrepresented?
Speaker 3 (01:13):
I mean, there's so many of them. I for you
do that.
Speaker 1 (01:15):
I love her greatest hits. Why there are no parties anymore?
And it's a waste of time. I want to have
you lay out the pointlessness of issue polling after the book,
because I want you to do that for our audience.
Speaker 3 (01:27):
I really do excellent, No problem, I'm done. I mean,
you don't have to go me into doing a rand.
I love a rand.
Speaker 1 (01:33):
Good.
Speaker 2 (01:34):
All right, First things first, though, tell us about last
Branch standing.
Speaker 3 (01:39):
Well, part of the reason for this book is to
convince Americans that, yes, they're hearing so much more about
the Supreme Court and that it is actually our most
functional branch of government. But it is never the last
word in any of these fights that we're having on politics,
on culture, war, anything else. It is always up to
the American people. If you don't like something the Supreme
(02:01):
Court decided, we can amend the Constitution. We used to
do it pretty frequently in response to Supreme Court decisions,
and most of the decisions from the Supreme Court are
actually just up to Congress. If you don't like partisan jerrymandering,
Congress can deal with that. Today, we just don't expect
them to. We don't make them, and we continue to
(02:23):
vote for people who have no interest in actually legislating,
because legislation requires compromise, negotiation, actually working with someone who
disagrees with you. And it said, we keep electing people
who are really good at putting out Instagram reels yelling
about how the other side is the problem.
Speaker 1 (02:40):
Yeah, I've listened to you so much. I actually know
what your answers are going to be to all my questions,
but I'll ask them anyway. What you have us talker? Well,
I am, I'm a fanboy, wound boy. What changed? Why
you know if we used to amend the Constitution all time?
Speaker 3 (02:54):
What changed? Yeah? I mean a few things. We can
go back one hundred years to the progressive era, Woodrow
Will and Teddy Roosevelt. They really wanted to remake the
United States government and move away from Congress again that messy,
long negotiating process. And they wanted it all to be
housed by experts and independent agencies. It would be shielded
(03:15):
from political influence. So we've been doing that experiment for
about one hundred years. And then during the second term
of the Obama administration, when his immigration legislation failed in
the House because Republicans wouldn't vote for it, he decided
to do executive orders to implement legislation. Now, it didn't
last long. Those executive orders were generally struck down by
(03:39):
courts or President Trump came in and repealed them all
his first day in office. But it taught Congress that
they don't need to do legislation anymore because when their
party has the White House, they can get everything that
they want. And sure it's only for a couple of years,
but they get the Rose Garden address, their bases happy,
and nobody remembers a few years later whose fault it
(04:01):
is when it all disappears.
Speaker 1 (04:02):
So the whole I have a pen and a phone.
Thing that took presidence, so especially.
Speaker 3 (04:07):
Then tires under government by executive order.
Speaker 2 (04:11):
At this point, right, I was just going to say,
so Congress is not legislating in the executive branch, is
is that most of the reason there's so much of
a spotlight on the Supreme Court these days or what
else is happening.
Speaker 3 (04:23):
I think that's right, you know, because Congress is where
we were supposed to work out these problems. Again, you know,
I'm thinking of cases that are waiting at the Supreme
Court right now, birthright, citizenship, asylum, at the southern border,
whether Mississippi can accept mail in ballots five days after
the election. All of those are questions we're supposed to
work out in Congress. But because none of us believe
(04:45):
that will happen, we end up bringing lawsuits to court
and asking the courts to work those out for us.
And so then we focus a lot more on the courts.
It becomes really important who these judges are, and they
become part of our partisan agreements instead of sort of
the place of last resort to sort of, you know,
be a referee.
Speaker 1 (05:05):
And we've seen the declining popularity numbers for the Supreme
Court because of this, putting them in an impossible situation
on a bunch of this stuff. A reply to this,
this is an out of control right wing Trump Court.
Speaker 3 (05:18):
Yeah, the data isn't great for people who argue that.
So last term for six three cases, you know, where
all of the Republican appointees vote one way and all
of the Democratic appointees vote the other way, which is
what you would expect if this were a you know,
Republican red team versus Blue team court. That accounted for
drum roll, nine percent of the cases. So if that's
(05:41):
how you're predicting the outcome of Supreme Court cases, you're
going to get it wrong more than ninety percent of
the time. And even if you include the five four cases,
it turns out exactly equal numbers had all of the
liberals and descent versus having all the liberals in the
majority and only conservatives in descent's dead. You know, forty
two percent of the cases are unanimous. That's the most
(06:03):
likely outcome of any case at the Supreme Court. Very few,
as I say, fall against partisan lines. The other things
we'd expect if this were a you know, Trump Supreme Court, well,
first of all, I guess we'd expect Trump to actually
win some cases. Right now, every major policy question that
has come before the Supreme Court, he has lost Immigration,
(06:23):
Alien Enemies Act nope. Federalizing the National Guard nope, Paris nope,
birthright citizenship. I will bet you a shiny nickel that
one's a hard no. So he keeps losing. In fact,
in his first term he lost more than any president
in United States history. He's the first president to ever
be below fifty percent. At the Supreme Court, we'd expect
(06:46):
them to be overturning precedent, Nope, this court is overturning
fewer precedents than any court in modern history. We'd expect
them to be taking more cases, Nope, this court is
taking fewer cases than any court in recent history. So,
no matter what way you look at it, the data
just isn't there. For the people who want to argue
that this is a partisan court.
Speaker 2 (07:05):
Well, let's be honest about what animates virtually all of
modern politics. You just raised zero dollars for the Democratic Party, Sarah,
So thanks for wasting our time. You noted and I
found this so interesting that Brett Kavanaugh was more likely
to agree with Elena Kagan than Neil Gorsich. What's going
on there?
Speaker 3 (07:24):
Yeah? So, I mean Britt Kavanaugh and Neil Gorsich are
basically twins. They went to high school together. They had
the same history teacher. They clerked on the court together.
They were circuit judges at the same time. They were
appointed by the same president. They are federalist society lab
creations with good hair and conservative judicial principles. But last
(07:45):
term they only agreed with each other fifty percent of
the time. As you say, Justice Kavanaugh was more likely
to agree with Justice Kagan than he was with Justice
Gorsicic because Justice Kavanaugh is a high institutional He thinks
of this as a team sport. He likes basketball and baseball.
Justice Gorsich, He's a soloist. He likes skiing and running
(08:09):
solo sports. He is more like Justice Jackson, which is
why you see them agreeing with each other's concurrences and
why Justice Kavanaugh is the justice most likely to be
in the majority. He is the swing justice as of now.
Speaker 1 (08:24):
Sarah Isger's book is called Last Branch Standing. In the
first sentence in the promotional stuff, is here a myth
busting glimpse into the inner workings of the Supreme Court,
And you've already busted a few myths? How worried are
you about the declining faith in the Supreme Court because
of the untrue partisan things people have been saying on
both sides now for several cycles.
Speaker 3 (08:47):
Well, let me give you the good news and the
bad news. The good news is that the Supreme Court
is still more popular than the President or Congress. So
if we're just fighting among the three branches of government,
definitely the Supreme Court is winning. The bad news is
that our courts tend to be a lagging indicator of
our politics. So another title for the book could have
(09:07):
been last branch Standing dot dot dot for now, because
everything that we're doing now will eventually be reflected in
the courts, and there are warning signs. Getting rid of
the filibuster means that we now appoint judges who didn't
get any votes from the other side of the aisle.
That is not great. That is going to breed more
extreme judges who are outliers, and it's going to change
(09:29):
the behavior of people who want to become judges to
be more partisan, more outspoken, lock themselves into certain positions.
We have forum shopping now that we didn't used to have.
That's not great. You know, you could be the most
fair judge in the world, but if everyone knows that
one side picked you. It doesn't look that fair to anyone. So,
you know, I think those are things we can pretty
(09:50):
easily fix, but it's not great. And the more we
pull the courts into our partisan politics, negative polarization. I mean,
we have a really top toxic political environment right now.
We cannot have the courts reflect that.
Speaker 2 (10:06):
Let's go a little ABC one two three about the
Supreme Court kind of basic stuff. I think a lot
of folks, particularly on the left, think it's about choosing
the right result, period, and a lot of us on
the right would like to believe that the court does
nothing but look at the Constitution and the law and
president and they may despise the result. But we've got
(10:28):
to go with with this is that's oversimplified obviously, But
is that characterization of the left and right, at least
on the right track.
Speaker 3 (10:37):
You know, I think I think the conservative right wanted
to think that about themselves, but it's pretty clear now
that that's not true. Both sides only care about outcomes. Really.
You see the right attack the Supreme Court every time
they rule against Donald Trump, sometimes specific justices in very
personal terms. You know, the attacks against Justice Amy Tony
(10:58):
Barrett got very gender in my opinions, and I think
that there's a natural human tendency to care about the outcome.
I get it. But the Supreme Court's job is never
to say, you know what the good policy is. It
is to say who gets to decide? So you're mad
that the book is in your local school library, the Supreme
(11:19):
Court isn't going to tell you whether that's a good
book or a bad book for kindergarteners to read. Their
question is who gets to decide whether that's a good
book or a bad book? Is it the librarian, Is
it the parent coming into the library. Is it the
you know, city mayor. Is it a state legislature? Is
it the governor? Is it Congress? Those are the questions
(11:40):
that the Supreme Court decides. They're never deciding which book
it should be?
Speaker 2 (11:44):
Right, I meant the Justice is more than than the
average commentator or voter. Forstance, Justice Jackson strikes me as
just wanting the result, no matter how she has to
twist the law.
Speaker 3 (11:57):
Well, what's interesting because the legal less left for a
long time sort of had this idea of living constitutionalism.
The Constitution evolves as our culture evolves, and it is
up to the nine justices on the Supreme Court to
decide where it has evolved to President Lyndon Johnson famously
once said it takes two thirds of Congress and three
(12:19):
quarters of the states to amend the Constitution. Justice Douglas
can do it in an afternoon. That was really where
they were. That had basically disappeared from the legal left,
and yet nothing has yet replaced it. And so I
think you see Justice Jackson trying to come up with
a new legal philosophy for the legal left that, yes,
will produce liberal results, but they can be sort of
(12:42):
intellectually built a new house, if you will, on the
block of judicial philosophy. And look, like I said, nine
percent of the cases were six' three along ideological. Lines
SO i also think it's unfair to say ideology plays
no role In Supreme court decisions nine percent of the.
Time it. Does it's just that ninety one percent of
(13:04):
the time something else is at.
Speaker 1 (13:06):
Work so the book's last branch standing couldn't recommend it more.
Highly i've Heard sarah talk about it in a bunch
of different, podcasts And i'm SURE i will eventually read.
It she explains this stuff in a way that idiots
like me can understand it in an entertaining.
Speaker 3 (13:18):
Way so.
Speaker 1 (13:20):
You have worked on presidential. Campaigns you worked For Carly.
Fiorina we used to have her on regularly back in
the day when she was. Running but, ANYWAY i, know
with your background and a bunch of different, areas you
don't think issue polling has much. Merit explain.
Speaker 3 (13:37):
That, Ah, okay deep, Breath, sarah don't go too. Far,
okay here too. Far here's the. Problem when we do candidate,
polling we can actually judge whether the poll was any
good because we have an election, day, right there is
a backstop to the. Polling we never can do that
with issue. Polling we can never find out whether that
(13:59):
poll was a good poll or a bad. Poll there's
no way to grade. It so that's a big, problem.
Right but there's another. Problem when you ask people what
candidates they intend to vote, for that's a very binary.
Choice they understand what an election is and that they're
going to go in and check the box for one
person or the. Other and, remember those poles still aren't
perfect when it comes to issue. Polling, oftentimes the question
(14:22):
you're asking people is it the question they think they're.
Answering you, know do you think the straits of horror
moves should be open or? Whatever well kind of depends
what are the trade? Offs are you going to list
all of the potential trade offs in that? Question you've
only got like thirty seconds to ask them a question
and get them to answer. It and that's why you
get so many different results with issue. Polling it's also
(14:45):
the case that sometimes people hear a question that can
be about a very specific, issue but what they're, answering
what they think you really want to know is who
do you support for? President so you, know do you
like ex policy or why? Policy the answer is do
you Like Donald trump Or Kamala? Harris and so you're
rarely getting the answer THAT i think you. Want if
(15:06):
you're asking the same, question the exact same question over,
time and that moves that is interesting to, me, right
like not the raw, number but, like oh it is
moved by seven points in the last. Month, well something
that has changed if you're asking the exact same. Question
but that's rarely what we're.
Speaker 1 (15:25):
Doing do you regularly hear because in talk radio we
do it all the. Time forty three percent Of americans
blah blah, blah do you regularly slap your forehead with
oh my, god there's no way there's any accuracy.
Speaker 3 (15:35):
THERE i sort of turned into like a Rain man
type figure WHERE i start saying that that's not a real,
poll that's not a real. Pull don't do, it that's
not a real.
Speaker 2 (15:43):
Pull. Perfect Sarah asker's new book Is Last Branch. Standing
can't wait to read it To. Sarah what a pleasure has.
BEEN i hope we can do it again.
Speaker 3 (15:51):
Soon, Absolutely thanks, guys you got you all?
Speaker 2 (15:54):
Right thank?
Speaker 1 (15:54):
You, yeah, yeah, Yeah i've heard it go on at
length about how issue polling it except in extreme, situations
is almost, useless like it's close to your better off
having never heard it than coming away with any.
Speaker 2 (16:08):
INFORMATION i have follow up comments as.
Speaker 1 (16:10):
Well, yeah we got told them more on the way
to stay Here armstrong And getty
We've been wanting to get Sarah igor on for a
long time. First became or wherever on the Dispatch and
the podcast stuff there, and man, anytime any big legal
story breaks, I go to her Twitter feed or wait
for the podcast she does with David French Advisory Opinions
to get it laid out. And couldn't be happier to
have her today.
Speaker 2 (00:17):
Yep, we're both big fans of Sarah Isger, editor of
Scotis Blog, hosted the legal podcast in virus Ory Opinions,
Legal analyst for ABC News and author of a fabulous
new book, Last Branch Standing, a potentially surprising, occasionally witty
journey inside today's Supreme Court. A book so timely and
important I believe it should be a compulsory read for
every American. Not sure how that scores with the first
(00:38):
time Sarah, welcome, How are you?
Speaker 3 (00:41):
I'm great? Thank you guys for having me.
Speaker 1 (00:43):
You bet you before we let you lay out the book.
And here's the deal I'm going to make with you.
Even though we have no leverage. You're like the horror
moves straight. We have no leverage over you, but I'll
let you and I'll go out and buy a hard
bound copy of your book today, even though I'm getting
a promotional copy. If I can get you to do
one of your screeds, and there's there's so many, I
would like the screed might be prejudicial. Maybe I'll go
with presentation or something like that. But and I could
(01:06):
have you do why the whole crying fire in a
crowded movie house is misrepresented?
Speaker 3 (01:13):
I mean, there's so many of them. I for you
do that.
Speaker 1 (01:15):
I love her greatest hits. Why there are no parties anymore?
And it's a waste of time. I want to have
you lay out the pointlessness of issue polling after the book,
because I want you to do that for our audience.
Speaker 3 (01:27):
I really do excellent, No problem, I'm done. I mean,
you don't have to go me into doing a rand.
I love a rand.
Speaker 1 (01:33):
Good.
Speaker 2 (01:34):
All right, First things first, though, tell us about last
Branch standing.
Speaker 3 (01:39):
Well, part of the reason for this book is to
convince Americans that, yes, they're hearing so much more about
the Supreme Court and that it is actually our most
functional branch of government. But it is never the last
word in any of these fights that we're having on politics,
on culture, war, anything else. It is always up to
the American people. If you don't like something the Supreme
(02:01):
Court decided, we can amend the Constitution. We used to
do it pretty frequently in response to Supreme Court decisions,
and most of the decisions from the Supreme Court are
actually just up to Congress. If you don't like partisan jerrymandering,
Congress can deal with that. Today, we just don't expect
them to. We don't make them, and we continue to
(02:23):
vote for people who have no interest in actually legislating,
because legislation requires compromise, negotiation, actually working with someone who
disagrees with you. And it said, we keep electing people
who are really good at putting out Instagram reels yelling
about how the other side is the problem.
Speaker 1 (02:40):
Yeah, I've listened to you so much. I actually know
what your answers are going to be to all my questions,
but I'll ask them anyway. What you have us talker? Well,
I am, I'm a fanboy, wound boy. What changed? Why
you know if we used to amend the Constitution all time?
Speaker 3 (02:54):
What changed? Yeah? I mean a few things. We can
go back one hundred years to the progressive era, Woodrow
Will and Teddy Roosevelt. They really wanted to remake the
United States government and move away from Congress again that messy,
long negotiating process. And they wanted it all to be
housed by experts and independent agencies. It would be shielded
(03:15):
from political influence. So we've been doing that experiment for
about one hundred years. And then during the second term
of the Obama administration, when his immigration legislation failed in
the House because Republicans wouldn't vote for it, he decided
to do executive orders to implement legislation. Now, it didn't
last long. Those executive orders were generally struck down by
(03:39):
courts or President Trump came in and repealed them all
his first day in office. But it taught Congress that
they don't need to do legislation anymore because when their
party has the White House, they can get everything that
they want. And sure it's only for a couple of years,
but they get the Rose Garden address, their bases happy,
and nobody remembers a few years later whose fault it
(04:01):
is when it all disappears.
Speaker 1 (04:02):
So the whole I have a pen and a phone.
Thing that took presidence, so especially.
Speaker 3 (04:07):
Then tires under government by executive order.
Speaker 2 (04:11):
At this point, right, I was just going to say,
so Congress is not legislating in the executive branch, is
is that most of the reason there's so much of
a spotlight on the Supreme Court these days or what
else is happening.
Speaker 3 (04:23):
I think that's right, you know, because Congress is where
we were supposed to work out these problems. Again, you know,
I'm thinking of cases that are waiting at the Supreme
Court right now, birthright, citizenship, asylum, at the southern border,
whether Mississippi can accept mail in ballots five days after
the election. All of those are questions we're supposed to
work out in Congress. But because none of us believe
(04:45):
that will happen, we end up bringing lawsuits to court
and asking the courts to work those out for us.
And so then we focus a lot more on the courts.
It becomes really important who these judges are, and they
become part of our partisan agreements instead of sort of
the place of last resort to sort of, you know,
be a referee.
Speaker 1 (05:05):
And we've seen the declining popularity numbers for the Supreme
Court because of this, putting them in an impossible situation
on a bunch of this stuff. A reply to this,
this is an out of control right wing Trump Court.
Speaker 3 (05:18):
Yeah, the data isn't great for people who argue that.
So last term for six three cases, you know, where
all of the Republican appointees vote one way and all
of the Democratic appointees vote the other way, which is
what you would expect if this were a you know,
Republican red team versus Blue team court. That accounted for
drum roll, nine percent of the cases. So if that's
(05:41):
how you're predicting the outcome of Supreme Court cases, you're
going to get it wrong more than ninety percent of
the time. And even if you include the five four cases,
it turns out exactly equal numbers had all of the
liberals and descent versus having all the liberals in the
majority and only conservatives in descent's dead. You know, forty
two percent of the cases are unanimous. That's the most
(06:03):
likely outcome of any case at the Supreme Court. Very few,
as I say, fall against partisan lines. The other things
we'd expect if this were a you know, Trump Supreme Court, well,
first of all, I guess we'd expect Trump to actually
win some cases. Right now, every major policy question that
has come before the Supreme Court, he has lost Immigration,
(06:23):
Alien Enemies Act nope. Federalizing the National Guard nope, Paris nope,
birthright citizenship. I will bet you a shiny nickel that
one's a hard no. So he keeps losing. In fact,
in his first term he lost more than any president
in United States history. He's the first president to ever
be below fifty percent. At the Supreme Court, we'd expect
(06:46):
them to be overturning precedent, Nope, this court is overturning
fewer precedents than any court in modern history. We'd expect
them to be taking more cases, Nope, this court is
taking fewer cases than any court in recent history. So,
no matter what way you look at it, the data
just isn't there. For the people who want to argue
that this is a partisan court.
Speaker 2 (07:05):
Well, let's be honest about what animates virtually all of
modern politics. You just raised zero dollars for the Democratic Party, Sarah,
So thanks for wasting our time. You noted and I
found this so interesting that Brett Kavanaugh was more likely
to agree with Elena Kagan than Neil Gorsich. What's going
on there?
Speaker 3 (07:24):
Yeah? So, I mean Britt Kavanaugh and Neil Gorsich are
basically twins. They went to high school together. They had
the same history teacher. They clerked on the court together.
They were circuit judges at the same time. They were
appointed by the same president. They are federalist society lab
creations with good hair and conservative judicial principles. But last
(07:45):
term they only agreed with each other fifty percent of
the time. As you say, Justice Kavanaugh was more likely
to agree with Justice Kagan than he was with Justice
Gorsicic because Justice Kavanaugh is a high institutional He thinks
of this as a team sport. He likes basketball and baseball.
Justice Gorsich, He's a soloist. He likes skiing and running
(08:09):
solo sports. He is more like Justice Jackson, which is
why you see them agreeing with each other's concurrences and
why Justice Kavanaugh is the justice most likely to be
in the majority. He is the swing justice as of now.
Speaker 1 (08:24):
Sarah Isger's book is called Last Branch Standing. In the
first sentence in the promotional stuff, is here a myth
busting glimpse into the inner workings of the Supreme Court,
And you've already busted a few myths? How worried are
you about the declining faith in the Supreme Court because
of the untrue partisan things people have been saying on
both sides now for several cycles.
Speaker 3 (08:47):
Well, let me give you the good news and the
bad news. The good news is that the Supreme Court
is still more popular than the President or Congress. So
if we're just fighting among the three branches of government,
definitely the Supreme Court is winning. The bad news is
that our courts tend to be a lagging indicator of
our politics. So another title for the book could have
(09:07):
been last branch Standing dot dot dot for now, because
everything that we're doing now will eventually be reflected in
the courts, and there are warning signs. Getting rid of
the filibuster means that we now appoint judges who didn't
get any votes from the other side of the aisle.
That is not great. That is going to breed more
extreme judges who are outliers, and it's going to change
(09:29):
the behavior of people who want to become judges to
be more partisan, more outspoken, lock themselves into certain positions.
We have forum shopping now that we didn't used to have.
That's not great. You know, you could be the most
fair judge in the world, but if everyone knows that
one side picked you. It doesn't look that fair to anyone. So,
you know, I think those are things we can pretty
(09:50):
easily fix, but it's not great. And the more we
pull the courts into our partisan politics, negative polarization. I mean,
we have a really top toxic political environment right now.
We cannot have the courts reflect that.
Speaker 2 (10:06):
Let's go a little ABC one two three about the
Supreme Court kind of basic stuff. I think a lot
of folks, particularly on the left, think it's about choosing
the right result, period, and a lot of us on
the right would like to believe that the court does
nothing but look at the Constitution and the law and
president and they may despise the result. But we've got
(10:28):
to go with with this is that's oversimplified obviously, But
is that characterization of the left and right, at least
on the right track.
Speaker 3 (10:37):
You know, I think I think the conservative right wanted
to think that about themselves, but it's pretty clear now
that that's not true. Both sides only care about outcomes. Really.
You see the right attack the Supreme Court every time
they rule against Donald Trump, sometimes specific justices in very
personal terms. You know, the attacks against Justice Amy Tony
(10:58):
Barrett got very gender in my opinions, and I think
that there's a natural human tendency to care about the outcome.
I get it. But the Supreme Court's job is never
to say, you know what the good policy is. It
is to say who gets to decide? So you're mad
that the book is in your local school library, the Supreme
(11:19):
Court isn't going to tell you whether that's a good
book or a bad book for kindergarteners to read. Their
question is who gets to decide whether that's a good
book or a bad book? Is it the librarian, Is
it the parent coming into the library. Is it the
you know, city mayor. Is it a state legislature? Is
it the governor? Is it Congress? Those are the questions
(11:40):
that the Supreme Court decides. They're never deciding which book
it should be?
Speaker 2 (11:44):
Right, I meant the Justice is more than than the
average commentator or voter. Forstance, Justice Jackson strikes me as
just wanting the result, no matter how she has to
twist the law.
Speaker 3 (11:57):
Well, what's interesting because the legal less left for a
long time sort of had this idea of living constitutionalism.
The Constitution evolves as our culture evolves, and it is
up to the nine justices on the Supreme Court to
decide where it has evolved to President Lyndon Johnson famously
once said it takes two thirds of Congress and three
(12:19):
quarters of the states to amend the Constitution. Justice Douglas
can do it in an afternoon. That was really where
they were. That had basically disappeared from the legal left,
and yet nothing has yet replaced it. And so I
think you see Justice Jackson trying to come up with
a new legal philosophy for the legal left that, yes,
will produce liberal results, but they can be sort of
(12:42):
intellectually built a new house, if you will, on the
block of judicial philosophy. And look, like I said, nine
percent of the cases were six' three along ideological. Lines
SO i also think it's unfair to say ideology plays
no role In Supreme court decisions nine percent of the.
Time it. Does it's just that ninety one percent of
(13:04):
the time something else is at.
Speaker 1 (13:06):
Work so the book's last branch standing couldn't recommend it more.
Highly i've Heard sarah talk about it in a bunch
of different, podcasts And i'm SURE i will eventually read.
It she explains this stuff in a way that idiots
like me can understand it in an entertaining.
Speaker 3 (13:18):
Way so.
Speaker 1 (13:20):
You have worked on presidential. Campaigns you worked For Carly.
Fiorina we used to have her on regularly back in
the day when she was. Running but, ANYWAY i, know
with your background and a bunch of different, areas you
don't think issue polling has much. Merit explain.
Speaker 3 (13:37):
That, Ah, okay deep, Breath, sarah don't go too. Far,
okay here too. Far here's the. Problem when we do candidate,
polling we can actually judge whether the poll was any
good because we have an election, day, right there is
a backstop to the. Polling we never can do that
with issue. Polling we can never find out whether that
(13:59):
poll was a good poll or a bad. Poll there's
no way to grade. It so that's a big, problem.
Right but there's another. Problem when you ask people what
candidates they intend to vote, for that's a very binary.
Choice they understand what an election is and that they're
going to go in and check the box for one
person or the. Other and, remember those poles still aren't
perfect when it comes to issue. Polling, oftentimes the question
(14:22):
you're asking people is it the question they think they're.
Answering you, know do you think the straits of horror
moves should be open or? Whatever well kind of depends
what are the trade? Offs are you going to list
all of the potential trade offs in that? Question you've
only got like thirty seconds to ask them a question
and get them to answer. It and that's why you
get so many different results with issue. Polling it's also
(14:45):
the case that sometimes people hear a question that can
be about a very specific, issue but what they're, answering
what they think you really want to know is who
do you support for? President so you, know do you
like ex policy or why? Policy the answer is do
you Like Donald trump Or Kamala? Harris and so you're
rarely getting the answer THAT i think you. Want if
(15:06):
you're asking the same, question the exact same question over,
time and that moves that is interesting to, me, right
like not the raw, number but, like oh it is
moved by seven points in the last. Month, well something
that has changed if you're asking the exact same. Question
but that's rarely what we're.
Speaker 1 (15:25):
Doing do you regularly hear because in talk radio we
do it all the. Time forty three percent Of americans
blah blah, blah do you regularly slap your forehead with
oh my, god there's no way there's any accuracy.
Speaker 3 (15:35):
THERE i sort of turned into like a Rain man
type figure WHERE i start saying that that's not a real,
poll that's not a real. Pull don't do, it that's
not a real.
Speaker 2 (15:43):
Pull. Perfect Sarah asker's new book Is Last Branch. Standing
can't wait to read it To. Sarah what a pleasure has.
BEEN i hope we can do it again.
Speaker 3 (15:51):
Soon, Absolutely thanks, guys you got you all?
Speaker 2 (15:54):
Right thank?
Speaker 1 (15:54):
You, yeah, yeah, Yeah i've heard it go on at
length about how issue polling it except in extreme, situations
is almost, useless like it's close to your better off
having never heard it than coming away with any.
Speaker 2 (16:08):
INFORMATION i have follow up comments as.
Speaker 1 (16:10):
Well, yeah we got told them more on the way
to stay Here armstrong And getty
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Joe Getty
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