Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking here.
Sarah Isgur is one of the busiest people in legal media. She hosts the delightful Advisory Opinions podcast (on which I sometimes appear); serves as an editor of SCOTUSblog, the leading online outlet covering the Supreme Court; and appears regularly on ABC’s This Week with George Stephanopoulos. And now, as of yesterday, she’s a first-time author.
The thesis of Sarah’s new book—Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today's Supreme Court—is deceptively simple: almost everything the media tells you about SCOTUS is wrong. The conventional 6-3 framing obscures far more than it reveals. And compared to Congress and the presidency, the Court is genuinely trying to do its job.
In our wide-ranging conversation, we covered Sarah's unconventional path to legal media (she was inspired by Legally Blonde to apply to Harvard Law School, and was fired from the DOJ and CNN before reinventing herself at The Dispatch); her book’s core argument, which will be controversial in some quarters; Justice Sotomayor’s recent, pointed criticism of Justice Kavanaugh; and possible picks for the next Supreme Court justice and attorney general.
Thanks to Sarah for joining me, and congratulations to her on the publication of Last Branch Standing—a must-read for anyone interested in the U.S. Supreme Court.
Show Notes:
Sarah Isgur bio, author website
Sarah Isgur’s Majority Report, by Kelefa Sanneh for The New Yorker
Prefer reading to listening? For paid subscribers, a transcript of the entire episode appears below.
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Three quick notes about this transcript. First, it has been cleaned up from the audio in ways that don’t alter substance—e.g., by deleting verbal filler or adding a word here or there to clarify meaning. Second, my interviewee has not reviewed this transcript, and any errors are mine. Third, because of length constraints, this newsletter may be truncated in email; to view the entire post, simply click on “view entire message” in your email app.
David Lat: Welcome to the Original Jurisdiction podcast. I’m your host, David Lat, author of a Substack newsletter about law and the legal profession also named Original Jurisdiction, which you can read and subscribe to at davidlat.substack.com. You’re listening to the ninety-fifth episode of this podcast, recorded on Thursday, April 9.
Thanks to this podcast’s sponsor, NexFirm. NexFirm helps Biglaw attorneys become founding partners. To learn more about how NexFirm can help you launch your firm, call 212-292-1000 or email careerdevelopment@nexfirm.com. Want to know who the guest will be for the next Original Jurisdiction podcast? Follow NexFirm on LinkedIn for a preview.
The weather is getting warmer, and we all know what that means: peak season for Supreme Court watchers is almost here. If you enjoy following the Court, I have a book recommendation for you: Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today’s Supreme Court, by Sarah Isgur.
In the words of my former podcast guest Lisa Blatt, a partner at Williams & Connolly and one of the nation’s top Supreme Court advocates, Last Branch Standing is “smart, incisive, nuanced, and funny. This book advocates for the Court—and does so with panache. Isgur succeeds where many others fall short because she illustrates how the Court is not made up of heroes and villains, but real people who do their level best in service of us all.”
Most listeners to this podcast will be familiar with Sarah, one of the nation’s leading legal commentators. She’s an editor at SCOTUSblog, a regular on ABC’s This Week with George Stephanopoulos, and co-host of the wonderful Advisory Opinions podcast (on which I occasionally appear). Among many prior roles, Sarah served as director of the Office of Public Affairs at the U.S. Department of Justice and clerked for Judge Edith Jones of the Fifth Circuit. Without further ado, here’s my conversation with Sarah Isgur.
Sarah, thank you so much for joining me.
Sarah Isgur: Thanks for having me, David.
DL: You are something of a celebrity to my audience, but just because this is what I always do in the podcast, let’s go through your origin story. Tell us about your background and upbringing. Where did you grow up?
SI: I grew up in Fort Bend County, Texas, about an hour outside of Houston in Richmond-Rosenberg. We hyphenated the towns because they were both so small. My dad worked for his uncle until the company went bankrupt, and then he went to law school when I was about 10 years old. I remember him going to law school very well. He knew he wanted to do bankruptcy law; that’s why he went to law school. My mom was a state and federally licensed wildlife rehabilitator, so there were fawns in my bathroom and baby owls nestling in my hair. I had a pet possum named Owen at one point. That was childhood.
DL: It’s interesting. The occupations of your parents explain a lot about you: your love of the law and also your love of wildlife. Did your father’s experience in law contribute to your desire to go to law school?
SI: I think not—in the specific sense that he’s really a bankruptcy-obsessed guy, and I stay as far away from that as possible. He was a national debater, and that was his thing; the trophies are in our house. I didn’t do debate because I didn’t want to compete in something where I couldn’t beat my dad. If he was number one, I can’t beat that, so I’m not going to do it. There’s no question, however, that he is the reason I went to law school. His influence is why I went, but that’s more because of the history side. We watched Ken Burns’s Civil War documentary many times. We listened to the audio tapes in the car—it was a long drive to school, by the way—over and over. I think I could do the whole thing from memory, certainly Sullivan Ballou’s letter. He would talk to me about Lincoln all the time and American history. It was this very patriotic, proud childhood. So that was a big influence—but not him going to law school, I don’t think.
DL: What did lead you to go to law school, then? Were you interested in public law and constitutional law based on your exposure to history?
SI: Oh, that sounds so high-minded, David. No. I got a job as a press secretary after college on Capitol Hill and was fired six weeks later because I refused to make coffee. I don’t drink coffee. It felt very sexist to have the young woman in the office make coffee that she didn’t drink. So I refused, and I was fired. At 21 years old, I thought that was a stand for feminism. I will now tell you, 20 years later, it sounds pretty obnoxious. I was fired either for being a staunch feminist or being obnoxious.
I was very self-righteous about the “being fired” thing; it was a life-altering, self-vision-altering experience. The movie Legally Blonde had come out, I saw that movie, and I was like, “Well, if I went to Harvard Law School, they wouldn’t have fired me”—which is such a misunderstanding of everything, right? It’s the worst reason to go to law school—the Toby Keith “How Do You Like Me Now?!” song—and that was basically why I went. Also, the idea that they wouldn’t have fired me from the job… it doesn’t make sense. It was totally irrational.
DL: So when you did go to HLS, what career did you have in mind? Did you think you would return to politics, but with the background of being a lawyer?
SI: I guess. There was a job called a campaign lawyer; election law was an area of the law. I was like, “Well, I work on campaigns, so that makes sense.” I didn’t know what that actually entailed or what your day would be like. As soon as I found that out, I was like, “That sounds boring, filling out PAC paperwork all day.” I went to law school knowing that I would stay in politics, but I truly had no idea why I was there. No plan. Didn’t know any law firm names. Didn’t know what a clerkship was. Definitely did not know what the word “appellate” meant—had never seen it or used it in a sentence. I walked in quite wide-eyed and bushy-tailed—in the best way. I was like, “I can’t believe I’m here. This is incredible. Let’s see what happens. Let’s go.”
DL: Well, that’s interesting, because your father was a lawyer and now is a judge. I’m a first-generation lawyer in the United States; I have relatives in the Philippines who are lawyers, but it’s a totally different system. I would’ve thought that someone like you would be very well-versed in legal lingo and careers and status and all of that.
SI: Yeah…. I guess I probably could have named Baker Botts in Houston, where I was, because their name was on the side of a building. My dad became a judge a year before I went to law school, and he was like, “Well, it’s an Article I judgeship,” so he didn’t go through the Article III confirmation process or anything. He was like, “Oh, I’m going to put myself in for this judgeship.” I was like, “Oh, you’re not going to get that.” Looking back, no, I really knew nothing. People were throwing out Cravath or saying they worked at McKinsey; I’d never heard of either of those places. My best friend in high school was named Kenzie, so I think I associated McKinsey with my amazing best friend with long flowing red curly hair, Kenzie. It’s very unlike her, though, I would say, now that I’m an adult and know what McKinsey is—I don’t think they have a lot in common.
DL: On Advisory Opinions, you and David French have this recurring debate about whether or not to go to law school. You advise people to go if they want to become a lawyer and have some idea of what lawyers do. You basically didn’t follow your own advice.
SI: Oh, yeah—it’s because of that. I’m telling younger me, “Don’t go to law school until you have some idea,” because it was difficult for me in the sense that of the people in my section, everyone went to a law firm, and they knew what law firms were. I was just learning as I went, and we all graduated, and they all had bar trips planned to amazing places. Starting salary on the Cravath scale was $190,000 when I left law school. I clerked for a year, and then I took a job on Ted Cruz’s attorney-general race in Texas for no money. I didn’t take a bar trip. I lived at my parents’ house during my clerkship to pay off loans.
It feels like law school is this conveyor belt to a law firm, and everyone tells you, “Basically no matter what you want to do, you need to spend two years at a law firm. Some of you will get trapped in the law firm and never be able to leave. It’s like salmon, and some of you are going to get eaten by the bear. We don’t know which ones, but some of you are going to make it to the breeding ground. Good luck.” I was just like, “I don’t want to take the risk of being eaten by the bear, so I’m not going to do that.” But there was really no one to advise you on that, no one there to say like, “Oh, well, here are some options.”
I’m very grateful to what I call the “HLS Girl Mafia” that took me under their wing. This is Katie Biber Chen, obviously Rachel Brand, Megan Brown, Stacy Cline, Beth Collins, Beth Stewart, Katie Wheelbarger, Beth Williams. But for them, I would’ve just been sitting on a street corner.
DL: You mentioned this in Last Branch Standing, your new book, which we’ll talk about in a second: you actually have some classmates from your HLS days who are now famous practicing lawyers (in addition, of course, to the members of the Girl Mafia you just mentioned).
SI: Yo, Alex Spiro was my class. He was a good friend in law school. Again, reflecting the lack of imagination that I had, it’s now so obvious that Alex Spiro would become Alex Spiro—he was exactly that way in law school—but at the time we were just like, “This guy is not paying attention in class. I don’t know what he’s going to do. He’s super popular, parties. That’s not what a lawyer is.” And of course now he’s the most successful trial lawyer in America. Ben Huston was in my class; he went on to be the founder and CEO of Carvana. Again, he was the guy... we literally declared him prom king at our tacky prom. We have pictures of him dressed in tutus and Mardi Gras beads. Yeah. I guess that makes sense somewhere.
DL: And I think you mentioned this in the book—wasn’t former solicitor general Elizabeth Prelogar in your class too?
SI: Yes. We did have people who attended class. Elizabeth Prelogar—Elizabeth Barchas at that point—was exactly the same. Incredibly studious. Shockingly poised. She had been Miss Idaho. In every gathering, whenever they were like, “Welcome, class of 2008, among you are this and this,” there was always, “and Miss Idaho.” She probably got sick of that. But yeah, she was as articulate then as she is today, and it was terrifying.
DL: That’s really funny. You had in your class one of the best trial lawyers in America and one of the best appellate lawyers. I actually knew Elizabeth back then because she invited me to guest lecture at a legal profession class taught by David Wilkins, so I feel like I knew her “before she was famous.” But anyway, going back to your career, you mentioned you clerked out of law school, like many HLS grads. Tell us about that experience.
SI: I clerked for then-Chief Judge Edith Hollan Jones on the Fifth Circuit. Her chambers are in Houston; we’d sit in New Orleans. I was from Houston, so I lived at home and it allowed me to save money. It allowed me to reconnect with my hometown city, but now when I could legally drink and had a little bit of spending money that I definitely did not have in high school. That was really fun. The Jones chambers share communal spaces with the chambers of Judge Jerry Smith. Back then, Judge Jones had only three clerks, so I had only two co-clerks, but the Smith chambers had four. Then Judge Jennifer Elrod had just been confirmed, so she had her clerks as well. It was a nice little group. We had a good Fifth Circuit bonding year, really. I still keep in touch with quite a few people from that year. Obviously sitting in New Orleans—there are other clerkships that have other interesting perks, but honestly, the Fifth Circuit sitting in New Orleans is, I think, the best perk of any circuit in the country.
DL: Yes, that definitely has a lot to recommend itself. I was in New Orleans recently for a conference, and I went out one night and took some pictures of the Fifth Circuit’s beautiful building.
Why did you go to join the Cruz campaign after having this federal appellate clerkship, which in many ways is a gold-plated credential for legal practice?
SI: During law school, I had worked on the 2008 Romney campaign, basically full-time, so I knew I was going to do campaigns. I had invited Ted Cruz up to Harvard Law School when he was solicitor general of Texas to moot the Medellín case at HLS, which he did. We’d gotten to know each other a little bit there. Of course, he had the famous 2:00 a.m. poker games at The Mayflower on the balcony, so he was one of the cool kids in FedSoc world.
Nearing the end of my clerkship—we were past the halfway point certainly—he asked if we could meet up and he could talk to me. He pitched the job, and I was just like, “Yeah, I’m all in. That sounds fun, a statewide race in Texas.” In the end, the dominoes didn’t fall: Greg Abbott stayed attorney general, because Rick Perry stayed governor, and so there was no opening. After about a year of running a race for attorney general, it just sort of died with a whimper. One day it was like, “We’re not doing this.” We didn’t lose. We didn’t win. We just stopped.
DL: Then where did you go after that?
SI: The wilderness. I worked for Mike Toomey in Austin. He had been Perry’s chief of staff, and then was a Texas lobbyist. I learned more in that year than probably any other job in my career. He was an incredible boss, just very different than anyone I’d ever worked for. I did opposition research on 35 statehouse races and was responsible for not just the packets for each campaign, but also approving the scripts of the ad, sending letters back and forth with media stations who were declining to run those ads because maybe the opposing candidate thought they were defamatory, so having all my receipts was really fun for me. That was also when Elena Kagan got nominated to the Supreme Court, and I got a call to speak out in favor of her confirmation. At the same time, I got a call if I wanted to go to the Senate Judiciary Committee and work against her nomination. So that was a crazy year.
DL: Then where did you go after that?
SI: Then I went to Romney 2012. By the way, all my jobs are one year long, so we’ve got a long way to go to 2026. For Romney 2012, my job was Election Day operations, which is preparing for Election Day itself and overseeing all of the legal volunteers, getting all of the potential motions ready, and preparing for a recount. So you want to almost live in the day after the election if you’re the operations day director and going through those motions, practicing with your teams in every state, making sure they know who the duty judge is overnight. And so that takes just months and months, to get those binders together for all of the potential swing states that could go to a recount. I traveled the country, to every swing state, and there were binders full of something—they weren’t women.
DL: I feel that today you have what many lawyers would regard as a dream job. You host Advisory Opinions, an extremely popular and influential legal podcast. You’re a legal commentator for ABC News. You appear on other shows as well. Now, you’re the author of a fantastic new book. How did you make the jump from the legal and political career to where you are today?
SI: Well, like all of my jumps, I got fired. I would’ve stayed a campaign operative for my whole life. I love it. It’s an adrenaline high. It’s a meritocracy. Hard work is rewarded, and so is cleverness. I loved being an operative. But I was always at best adjacent to the Republican Party. My first race was John Cornyn’s 2002 race, and I remember showing up and them being like, “I think you’re supposed to be for the other team.” A Republican at that point was supposed to be Ann Taylor in pearls, and I was like Anthropologie and big teak necklaces or something. That’s how I got started in opposition research, because they were like, “Well, you look like a Democrat, so go sit at the opposing guy’s rallies and record what he says.” So I was always adjacent to the Republican Party; when the Republican Party shifted and realigned, it moved further away from me. And so that was sort of it.
I went to the Department of Justice during the first Trump administration. I actually got fired four times, but the last one stuck. I knew—maybe not going into DOJ, but shortly after arriving, my first full day in the office was the day that Jeff Sessions recused himself from the Russia investigation—I knew that whether it was that day or the day after, I had a choice to stay a political operative and secure my future career, or to do this job that I was hired to do. And that was a really easy decision. I cannot tell you how easy it was that this was going to be the last partisan job that I did, the last political appointment. I did it to the best of my ability. And when I got fired in the end, I was like, “Okay, well, gotta go find something else to do.”
I won’t say that that was a particularly happy or easy time in my life. I’ve been fired and unemployed a lot of times, and those times of unemployment are always just emotionally very hard on me. I need something to do; I’m like a puppy who will chew the furniture if I get bored. And so I have trouble getting out of bed, thinking that I’ll never work again—all the sort of dark hours of the soul that people have. I don’t want to gloss over that because that absolutely was months and months and months of that. I’d gone to CNN and gotten canceled very publicly and lost that job, so I was fired from two jobs in two weeks. That’s impressive.
Then I just sat around. I had just gotten married days earlier to Scott Keller when I got fired from the CNN job, and I was like, “Well, let’s have a baby.” That didn’t come easily. And so when you look back, everything works the way that it does for a reason: that time allowed me to do IVF. If I had still been an operative, I would’ve been working the normal 18 hours a day that I like to work. That was hard, and the transition was hard, and it wasn’t easy. Learning to speak in my own voice was really hard, which I know surprises people, but I really liked speaking on behalf of a principal, on behalf of someone else’s beliefs and preferences. It took a long time for me to be able to say what my preferences were.
DL: You did have that role of speaking for others, as both a campaign operative and then later a spokesperson for the Justice Department. When did you start really writing and podcasting in your own voice?
SI: I had dabbled; I’d written stuff. I’d written a law review note. I’d written in a neuroscience journal; I’d worked with a neuroscientist in that period between Texas politics and the 2012 Romney campaign. I dabbled writing for The Weekly Standard, which will turn out to be quite relevant because fast-forward, The Dispatch is starting, and those guys were like, “Hey, is this something that you would consider doing?” I was like, “I literally have nothing else going on in my life, please, yes.” I said, “I don’t know how good I’m going to be at any of this.” They were just incredibly patient, allowed me to experiment with things, allowed me to be bad at things for a while, but I like to think at least I got there.
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How did you connect with Jonah Goldberg and Steve Hayes of The Dispatch? Were they people you knew already through conservative or Republican circles?
SI: I probably exchanged some emails with Steve Hayes in the course of my previous jobs, but no, I did not know either of them. Toby Stock was their third co-founder, and he had also been the dean of admissions when I was at Harvard Law School. He did not admit me, but we came in at the same time. I don’t remember even really how, but we just realized that this was a bridge of sanity for each other. And so once a month or so, we would go get brunch and chit-chat about life in Cambridge, with him as a conservative member of the HLS administration under Elena Kagan and me as a conservative law student. We just kept in touch; we still keep in touch. We talk all the time. We would do these little walks. He doesn’t like to have coffee meetings; he likes to have walking meetings, which I very much appreciate.
We were walking around Dupont Circle and he said, “I’m launching this new media startup, and we don’t have a name for it.” I was like, “Well, again, I have nothing to do right now. I’m really good at coming up with creative, weird names. I’ll send you 10 names by the end of the day.” And so I did that. He sent the names on to Jonah and Steve. They thought they were totally weird and bizarre, and they were like, “We want to meet the girl who comes up with such weirdo names.”
DL: Did you name The Dispatch, or was that not on your list?
SI: Oh no, my names were much weirder.
DL: Oh, okay. I thought the punchline was going to be, “And I named The Dispatch.”
SI: No.
DL: I guess this kind of takes us to the present day because you still write for The Dispatch, which now of course owns SCOTUSblog, where you’re an editor, and you do the Advisory Opinions podcast, which I mentioned. And now, of course, it takes us to the publication of your first book, Last Branch Standing, which is fantastic. What prompted you to write it?
SI: I just felt like we were getting all these questions from people listening to the podcast of like, “What book will give me a primer to listen to this podcast and a reference point?” I didn’t really have one to point to, so I wanted to write an explanation of the Supreme Court for smart people, and that’s sort of what it was.
Now, in terms of the content of the book, if you’ve ever listened to the podcast or had a five-minute conversation with me, I can’t help but word vomit on you about how the conventional wisdom about the Court that everyone is fed is just wrong. It’s not supported by the facts, it’s not supported by the data, it’s not supported if you know the justices—none of it. And so it was sort of “Sarah’s rant of how to understand the Court,” and to understand the Court is to understand that the narratives about the Court are wrong.
DL: By the way, I should say that your book is great for both lawyers and non-lawyers alike. One of your blurbers is my former constitutional law professor, Akhil Amar, who certainly knows a fair amount about constitutional law and the Court. Of course, two of your early readers were myself and my husband, Zach Shemtob, of SCOTUSblog as well, and we both learned things from reading your book. So it’s great for lawyers, but it’s also very accessible to laypeople.
So going back to what you were just saying about the conventional wisdom—and this is, in a way, the thesis or argument of your book—what is wrong about the conventional wisdom, and why?
SI: The conventional wisdom is that you should think about the Court basically the same as you think about Congress or the presidency or the midterm elections: “We are in a battle of right versus left. The two sides don’t really stand for anything. They’re just tribes that fight each other for preferred outcomes. And the Court is therefore six right versus three left. The right always wins. It’s illegitimate.” Or if you’re Donald Trump, it’s illegitimate because they’re not being loyal enough to him. That’s part of the fun of the criticisms of the Court: they’re internally contradictory. They don’t make a lot of sense, actually. How can the left say that Donald Trump always wins, and Donald Trump says Donald Trump always loses? It’s the one area where Donald Trump admits he loses all the time.
The truth is, it’s because neither side wants to actually grapple with a branch whose job is different. It’s not their job to say whether X is good or Y is good or this side is good or that side is good. Their only job is, “who decides.” I use the library example in the book because it lowers the temperature a little in the sense that the fights go both ways. They’re trying to take out To Kill a Mockingbird in a blue state; they’re trying to take out Tango Makes Three in a red state. So the question for the Court isn’t whether To Kill a Mockingbird should be in your library. The question is, who gets to decide what books are in your library, and what is the process by which we decide if they did their job correctly or incorrectly?
So that’s really interesting. I think it’s why the people who listen to our podcasts who aren’t lawyers are often engineers, math people, doctors—because they come from logic-based fields. At the end of the day, law, especially appellate and Supreme Court litigation, is a pretty logic-based exercise. It’s about analogies, it’s about process, and it’s very unlike politics. So the more you hate our current politics, the more you might like the Supreme Court as a branch and the conversations you can have about Supreme Court cases. But in the media, they’re all the same, and that isn’t correct.
DL: I agree with your overall thesis that the Court, in the words of Justice Amy Coney Barrett, is not comprised of a bunch of partisan hacks.” And I agree that the Court can’t be viewed through the same lens through which we view the political branches. But what about a weaker version of the conventional thesis? Would it be fair to say that justices at times let partisan considerations affect their rulings?
SI: That’s a great question, and a really fair one. Here’s my best answer. I think those of us on the outside can see certain decisions and think that that is true. But I also think you have to grapple with the fact that if you put all nine of these people under truth serum and a polygraph test, they would all pass with flying colors. And if you ask them, “Are you being consistent when you uphold or strike down Biden’s student loan debt forgiveness, then do the reverse when it comes to Trump’s tariffs,” it looks inconsistent to us. It looks like surely partisan considerations come into effect. But if you talk to them, they will have a version where they are being entirely consistent, and they really believe that. That, to me, is different than partisans on the Hill who will either admit that they’re not being consistent or, I assure you, would not pass any polygraph about it. They’ll either tell you or they’ll lie. The Supreme Court justices do not think that they are doing that. We may think they are subconsciously, and I think that’s a fair conversation to have, but it’s unfair to say that they think that’s the project that they are engaged in, because they do not.
DL: Even the title of your book captures how you compare the judicial branch, “the last branch standing,” with the other two branches, which you argue—correctly, in my view—are in many ways far more dysfunctional. But let me raise something interesting with you. Last Tuesday, in a public appearance at the University of Kansas School of Law, Justice Sonia Sotomayor threw some shade on one of her colleagues, Justice Brett Kavanaugh. Referring to his concurrence in Noem v. Vasquez Perdomo, concerning the constitutionality of immigration stops, she said—and I’m just going to quote her—“I had a colleague in that case who wrote these are only temporary stops. This is from a man whose parents were professionals and probably doesn’t really know any person who works by the hour.”
Now, I feel that justices can be harsh toward each other in opinions, but they usually “leave it on the page,” so to speak. But here, Justice Sotomayor sort of went out of her way, at a public appearance, to criticize a fellow justice, in an arguably personal way, where she’s talking or speculating about his background. So is the Court becoming more like the other branches?
SI: No. I agree that is a super outlier, weird thing for her to say. We have not heard justices criticize each other in personal terms, publicly. Even when they criticize each other on the page, it can be quite fiery, it can be professionally disrespectful, you might say, but it’s not personally disrespectful, in the way that... maybe it’s wrong to characterize what she said as disrespectful, but yeah, assuming someone’s background based on stuff you’ve read about them in Wikipedia or something is just a weird thing to do anyway and an ungracious thing to do, to assume someone’s background, to assume who their friends are, to assume their motivations.
Here’s the thing I’ll say, though: the justices are human. Not everything that comes out of their mouths is planned in advance. We have all said things when we feel really strongly, when we are hurt by something, that we come to later regret. We know from Justice Kennedy’s recent book that Justice Scalia apologized to him. Again, I don’t know what’s going on with Justices Sotomayor and Kavanaugh, but I think there’s a decent chance that Justice Sotomayor probably regrets that that came out the way that it did or that she went there. I think it’s also fair, however, to say that absolutely reflects how she feels about that case.
Two things can be true at once, right? I think losing a case at the Supreme Court that you feel really strongly about, that you think the other people haven’t thought through correctly, can be emotionally taxing. We’ve heard Justice Sotomayor talk about going back to chambers and crying. We’ve heard Justice Kagan say she doesn’t cry, she punches the wall. But they seem to hold themselves to a standard where they don’t let others see that. And it makes it a really hard part of the job. I will say, it’s an important part of the job. It’s part of the “black robe” thing, right? Before Chief Justice Marshall, they wore colorful robes. They each represented their alma maters. They looked like Easter eggs. And Chief Justice Marshall was like, “Nope, the black robes are at once sort of a sign of puritanical ‘not flashiness,’ etc. And you’re not an individual; you’re not a person here. You are a judge. That’s it. Not John Marshall, Chief Justice. That’s it.”
So that black-robe thing has really carried on. They do take that seriously. It’s why you’ve seen the other branches fail—I think that’s not too strong a term—because transparency has won out over proper functioning and process. In Congress, for instance, that level of transparency at the Court would end the Court. So when you see a justice talk in an unguarded moment about their feelings about how a case turned out, that’s the kind of transparency that I think actually isn’t great for the branch, even if that’s how every human is. She’s human.
[UPDATE (4/15/2026, 9:23 p.m.): As reported by Amy Howe of SCOTUSblog, Justice Sotomayor issued the following statement earlier today: “At a recent appearance at the University of Kansas School of Law, I referred to a disagreement with one of my colleagues in a prior case, but I made remarks that were inappropriate. I regret my hurtful comments. I have apologized to my colleague.”]
DL: That’s a great way to segue to my next topic. The justices, despite their brilliance, are humans. Humans get old. Humans retire. So the other day, I spoke to a reporter about rumors that Justice Samuel Alito might retire. You talked about this on Advisory Opinions with David French, but that was a while ago, and things change, as we know. What’s your latest feeling or intel or gut on whether Justice Alito might hang up his robes in 2026?
SI: In truth, it’s really hard to say. Here are the data points that go into my analysis. I think he is having fun as a Supreme Court justice, to the extent that Justice Alito’s capable of fun. And he is—he just doesn’t show it. He’s not going on roller coasters and giggling; he’s not a giggler, that one. He has two new grandbabies, so that might lean one direction. But the real thing that we’re all basing this on are two parts: one, that Republicans still control the Senate, and there’s a Republican president. I don’t like that those are serious factors in a justice’s retirement decision, but they absolutely are. So if you want to talk about the one thing that is very partisan at the Court, it’s picking who will replace you, and I don’t doubt that the White House has told him that he can pick his replacement, basically. That’s got to be pretty heady stuff.
We’ve seen now multiple justices be replaced by clerks for them. Chief Justice Rehnquist was replaced by one of his clerks. Justice Kennedy was replaced by one of his clerks. Justice Breyer was replaced by one of his clerks. I think that is a terrible trend for the Supreme Court, not from an ideological or partisan standpoint, but from this over-bureaucratization and professionalization of the Court, this narrowing of experience of the types of people who become justices. I really hate it; I write about it a lot in the book. That being said, it’s where we are. So that’s your one bucket, is the White House politics around who replaces you, getting to pick your replacement. Justice Alito obviously is quite fond of and close to his former clerk, shortlister Judge Andy Oldham of the Fifth Circuit. So that wouldn’t surprise me.
The other piece of information that we’re all using is the fact that Justice Alito has a book coming out, his first book. He’s never written a book. So on the one hand, you’re like, “Well, maybe he’s writing a book because he’s done.” And it’s coming out the first week of oral arguments of the next Term, so he’s clearly not doing a book tour—or he knows he won’t have another job, so he can do a book tour? The problem is, that cuts both ways if you’re Justice Alito. He’s not doing a book tour! What? He’s not shaking hands and doing rope lines. So I feel like anyone who tells you that they absolutely know his plans… unless you are Mrs. Alito or Mr. Alito or the three cats that he claims, the one that lives in his house, and the two strays that he feeds but claims are his cats, even though I have questioned whether those cats are actually getting fed by a whole lot of houses in the neighborhood, and they’re just playing him… unless you’re one of those mammals, I don’t think you know.
DL: So you think the White House has mentioned to Justice Alito that he could have a lot of input in his successor. In the past, I have gone with conventional wisdom when asked about possible shortlisters, in alphabetical order: Judges Patrick Bumatay, James Ho, Andrew Oldham, Amul Thapar. But I’m curious: after adverse rulings in tariffs and possibly birthright citizenship, do you think Donald Trump this time around might want to go for someone that he thinks will be more personally loyal to him? Because basically he went with all the smart FedSoc-y judges in his first term, and then they voted against him in his signature policy initiative, and they might vote against him in another one. Do you think the administration this time around might prefer a John Sauer or an Emil Bove or a Todd Blanche, somebody who has a personal relationship with Trump?
SI: This has always been Trump’s problem, and he’s always vacillated between these two extremes of shiny elites—which he always wanted to be, and was always rejected from those clubs—versus extreme loyalty and sycophancy. And what we’ve seen in his Cabinet so far is in the first term he leaned towards shiny elites, and in the second term he leaned toward loyal sycophants. But there’s a very clear trade-off: The shiny elites aren’t loyal, and the loyal sycophants aren’t competent.
So yes, he picked shiny elites for his three justices in the first term, but he’s been firing a lot of his Cabinet in his second term because they’re loyal but not competent. So it’s hard to say for the Supreme Court. I’ve been keeping double lists: the normie list of circuit judges and the more Trumpy list. I would put John Sauer at the top of that Trumpy list, more so than even an Emil Bove. Todd Blanche would probably be high on that list for me. I might look to states even. But yeah, not a circuit judge.
DL: Maybe John Sauer is the overall leader in the sense that even though he is very loyal to the president, he also does have a lot of the conventional credentials. He’s the U.S. solicitor general, as was Justice Kagan. He graduated from Harvard Law School. He clerked for the Supreme Court. He was a state solicitor general. He has the résumé of a conventional candidate, but with the personal connections of a Trumpy candidate.
SI: Yeah. In that sense he kind of looks like Susie Wiles, the most successful person in Trump’s administration: competence plus loyalty.
DL: One last question before we go to the speed round. You mentioned some folks who were loyal but maybe lacking in competence. Former attorney general Pam Bondi—in my opinion, your opinion, many people’s opinions—mishandled the Epstein files, and she made some other missteps. Who do you think might be the next attorney general? We’re recording this on Thursday, April 9; maybe we’ll know by the time this airs. I tend to doubt it, because Todd Blanche as deputy attorney general can hold down the fort for a while. But who’s your money on?
SI: Great question. If I’m Trump, I just keep Todd Blanche. I keep him as acting for a long time. I don’t know if I ever nominate him. There’s no real need to. He can be the acting forever. He’s the first assistant in the Department of Justice, in that sense. And then keep it as a test run. Keep telling him that you’re going to nominate him, but you just want to make sure he can do the job, and keep him sort of on his toes, staying loyal, because he’s not the Senate-confirmed attorney general. That’s perfect for Donald Trump and what he wants. Todd Blanche is another example of someone who has the credentials and has been very loyal—a very well regarded, former Southern District of New York federal prosecutor, who knows how to get the trains running at DOJ. So that’s who I would stick with. Yes, there are all these elected officials that he could put in there. I just think when it comes to attorney general, more so than probably Supreme Court justice, he would like to have someone, again, more on their toes, the way that he can now keep Blanche running on the treadmill.
DL: Now let’s turn to my speed round. These are four standard questions, and they are the same for all my guests. My first question is, what do you like the least about the law? And this can either be the practice of law or law as an abstract system.
SI: I’ll do law as an abstract system because I write about it in the book. Forum shopping is the worst thing happening in law right now, the idea that you can pick which judge you appear in front of. And this is true for civil litigation, but obviously it’s more corrosive when we’re talking about public law. Even if you’re the most fair judge in the country, if everyone knows that one side wanted you, you don’t look that fair no matter how you rule, and it’s been really bad for the system. And it’s so easy to fix. Congress could fix it tomorrow. The judiciary could fix it tomorrow. I don’t know why we still have this system. It’s dumb.
DL: My second question is, what would you be if you were not a lawyer—or in your case, a legal journalist and author?
SI: So, there’s two answers to that. If I had to start totally over, I think I’d be an emergency room doctor. If we’re talking about tomorrow I get canceled, and I have to go find another job—this is really dark, but I have dark thoughts late at night—if my family were gone, I would be so sad, I wouldn’t be able to live in this house or this country, and I would go pick up a machine gun and walk with one of the rhinos in Africa because they have to be guarded 24 hours a day so that poachers don’t get them. And your job is obviously to prevent poachers from killing your rhino, but it’s a very dangerous job because the poachers are willing to kill you to get to the rhino. I just think that would be a high calling, and I would take that seriously.
DL: My third question—and I’ll be really interested to hear your answer to this because Zach and I marvel at you as one of the most energetic people we know, you wear a million hats professionally, you’re a mom of two, you throw fabulous parties—my third question is, how much sleep do you get each night?
SI: Minimum eight hours. Hopefully more.
DL: Okay, now I officially hate you.
SI: I’m a sleeper. But here’s the thing, even in campaign world I will prioritize sleep over everything else. So on campaigns I would lose like 20, 25 pounds over the course of a campaign, because I would prioritize sleep over eating. This is gross, but I would prioritize sleep over showering. You maximize your sleep at all times: I’ve lived with that ethos, including through parenthood. Now, sometimes it has to come in the form of a little nap, but over the course of a 24-hour period, I want all eight hours.
DL: Good for you. And my last question is, any final words of wisdom, such as career advice or life advice, for my listeners?
SI: This is going to sound very Oprah-y, but I get asked versions of, “You seem really happy all the time, what’s your secret,” and I guess my life advice to lawyers is that you get to choose whether you’re happy about things. You don’t get to change everything about your circumstances or control that, but at the end of the day, you choose whether you approach life empty or full and find joy in things and literally go smell roses. There are some baby wrens living in a basket outside my parents’ door—I’m here staying in Houston with my parents right now—and so each day, I just go around the corner and listen to their little cheeping, and that brings me joy. So, find joy, choose joy, be joy to others, extend grace to others, have some intellectual humility that you can be very sure about something and you could still be wrong—and that will make you a more pleasant person for others to be around as well.
DL: Well, you have definitely embodied that attitude in both your life and work. Sarah, thank you so much for joining me.
SI: Thank you, David.
DL: Thanks so much to Sarah for joining me, and congratulations to her on the publication of Last Branch Standing—which I encourage all of you to check out. I consider myself fairly knowledgeable about the Supreme Court, but I learned a ton from reading this book.
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