Bravo Sarah Isgur. And thank you.
The “bravo” is for Isgurs new book: “Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Todays .” Isgur is a superb communicator, a Harvard Law School-trained lawyer and a practiced observer of the Court as she and New York Times columnist David French demonstrate with every episode of their much listened-to podcast “Advisory Opinions.”Â
If Isgur has a discernible judicial philosophy/ideology, its probably best described as a merger of Chief Justice John Roberts and Justice Amy Coney Barretts, with a dash of the other four “conservatives” on the Court thrown in.Â
But as Isgur explains at length and in useful detail, every label used in every discussion of the Court is at least very oversimplified and usually misleading. Shes Sarah Isgur. She runs on common sense, good humor and an appreciation for the complexity of Supreme Court proceedings. If you want to know what she thinks, youll have to read her book. The same rule applies to the nine justices.
Isgur is also not just “occasionally witty.” She is very funny, and that helps a non-lawyer or even lawyers who arent focused on the Court to get the key themes into their heads. “Winsome” always wins when pitted against “loud and certain,” and far too much Supreme Court chatter falls into the latter category. Not Isgurs.Â
Constitutional law is complicated stuff.  Thats why all law students have to spend at least two semester-long classes to get the basics down and those two courses dont usually include the Courts criminal law jurisprudence. Isgur takes all that great tumbleweed of complexity and makes it manageable.Â
When justices write books, I try to read them and am always eager to interview them within the rules set the Court has quietly established. An interviewer of a justice should not ask about matters before the Court or likely to get there, and should not expect one justice to dish on another. In interviews with Justices Barrett, Gorsuch and Thomas and with now retired Justice Breyer, Ive found it is not difficult to respect those rules and still have interesting conversations. The books by justices should be mandatory for journalists covering the Court. They write to be understood.
But they dont shoot for laughs. Isgur does and there are plenty to be had. Enjoy.Â
The “thank you” is because Isgurs book prompted me to finally put down in a column the simple propositions that (1) it is unconstitutional to expand the Court above its present number and (2) Republicans should support keeping the in place so that we need never have to test proposition one.Â
Amateurs will be quick to point to the historical fact that the size of the Court has varied between 6 and 10 members since it was first established by the Constitution, and that only the most recent change came via the Circuit Judges Act of 1869, which fixed the Courts membership at 9 â with one of the seats designated as the chief justice. On nine occasions total, Congress has tweaked the number of justices, beginning in 1789, Â but it has not done so since 1869, though there have been many opportunities for super-majorities of both parties to try and do so. Franklin Roosevelt famously tried and failed to “pack” the Court in 1937 after a landslide win in 1936, but his proposed Judicial Procedures Reform Bill of 1937 failed even his own partys smell test.
Why? It is guesswork to attribute motives to one or more legislators for what they did or did not do, especially legislators from a century and a half ago. But the fact should matter greatly that the last change to the Courts numerical composition came after the upheaval of the Civil War and Andrew Johnsons near-impeachment and on the heels of the ratification of with its guarantee of the “due process of law” should matter to those who believe in the rule of law. The last change to the composition of the number of justices came immediately
