Sizing Up the "Last Branch Standing" with Sarah Isgur

On the latest episode of GoodFellows, senior fellows John Cochrane, H.R. McMaster, and Niall Ferguson, as well as moderator and distinguished policy fellow Bill Whalen, are joined by prominent lawyer, author, and podcaster Sarah Isgur.

Below are some of the key moments and insights from this fascinating discussion of the US Supreme Court and its role in American politics and governance across the nation’s history. Later in the show, the GoodFellows also talk Iran, the Trump-Xi Summit, and the legacy of Fed Chair Jerome Powell as Hoover’s Kevin Warsh, now confirmed by the Senate, prepares to step into the top job at the US Federal Reserve.

Quote of the Day

Sarah Isgur starts the show by outlining why a common way of viewing the Supreme Court, through the lens of partisan politics and ideology, doesn’t capture the nuances of how this judicial body actually functions:

[Many argue that] the court is only political and maps onto our current partisan tribalism; or [say] this is like a math problem and you put in facts and you get out law and it’s just a mechanistic thing. Both of those are incorrect. Okay. So we do have ideology. It’s not partisan. It’s not Republican and Democrat, but there is such a thing as a conservative and a liberal judicial philosophy, no question. But we also have this Y axis, this vertical axis that I’ve called institutionalism. . .
This is the idea [of institutionalism]: Brett Kavanaugh and Neil Gorsuch are both conservative. They are Federalist Society, petri dish experiments with great hair. And yet last term, Brett Kavanaugh was more likely to agree with Justices Kagan and Sotomayor than he was with Justice Neil Gorsuch. So how can that be? Well, this is this institutionalist spectrum, where Justice Kavanaugh is actually much closer to Justice Kagan [in viewing the Court as] a team group project. It’s one court over 230 years. Whereas Justice Gorsuch, conservative, is much more like Justice Jackson. Ideologically very different, but they see themselves as like just one vote. Doesn’t matter what anyone else says. This isn’t a group project. This is a solo and I will belt it out for all the world to hear, which is why you see so many separate opinions from Justices Gorsuch and Jackson in particular.

The Central Issue: Are Current Partisan Criticisms of the Court Unprecedented?

Sarah Isgur, whose new book Last Branch Standing dives into the history of Presidential and other political criticisms of the Supreme Court, says:

You go back through history and the complaints that you read about the Supreme Court sound so modern. Jefferson is railing against John Marshall, his cousin, for how partisan the Court is. They never side with him. He goes so far as to impeach Samuel Chase to try to remove him to start this practice in American politics of having a Supreme Court that mirrors the party of the president. That’s in 1805. We are early on here, right after our first partisan election; [Jefferson’s] plan was to then impeach John Marshall again, his cousin. . .
They knew each other and just hated each other. And you’re going to see this repeat. [Andrew] Jackson ignores the court, Lincoln runs against the court. FDR threatens to pack the court. Nixon threatens to defy the court. And so, the threats and challenges and insults that you see from Donald Trump may feel different to us, but historically they fit into a nice normal pattern of American presidents being real mad at an independent branch of government that says “no” to them.

Key Takeaways

Americans’ Perception of Partisan Lawmaking on the Court is the Issue

H.R. McMaster asks Isgur what she thinks about the Court’s ability to rise above partisan politics: “Sarah, it strikes me that [in] the judiciary, the Supreme Court in particular, like the military, our credibility rests a lot on the belief that we can transcend partisan politics. And of course, what I’ve been upset about across multiple administrations are efforts by politicians to drag the military into partisan politics, which would be so damaging not only to our Constitution, but I think to just our citizens’ confidence. And you can see that, you can see how this plays out with the justices and the joint chiefs together whenever the president is giving the State of the Union and they’re all just stone faced, because they’re jealously guarding this idea that they’re beyond partisan politics. What’s your assessment of recent efforts to drag the Supreme Court into partisan politics?”

Sarah Isgur responds: “I could have named this book Last Branch Standing for Now, but the threat isn’t coming from Donald Trump per se or one political party or the other. It is coming from the American people not believing that Congress passes laws anymore, not believing that we get to ratify amendments to the Constitution, and instead believing that the Supreme Court decides everything. [This leads Americans to believe] we need to fight to the death over who picks these justices, how they’re picked, what these confirmation hearings are about.”

What’s Going on in Iran?

Niall Ferguson explains his current view of the war: “Well, I certainly didn’t oppose it from day one because I think there were very good reasons for taking military action against the Islamic Republic, not least its program of missile building, which was rapidly creating an extraordinarily dangerous imbalance of power in the region. To say nothing of its ongoing ambitions to have nuclear weapons and its ongoing campaign via proxies to terrorize the region. Its massacring of more than 30,000 of its citizens in January was one reason that President Trump said that help was at hand to the Iranian people and I supported the initial phase of operation epic fury, but it wasn’t enough to take down from the air, a substantial part of Iran’s defense capabilities. You also had to prevent Iran gaining control of the Strait of Hormuz, which it swiftly did. And I think the mistake, and I’ve criticized this, was not to take military action to open the Strait.

I think the president’s decision not to do that when I think it was pretty clearly proposed by the Chairman of the Joint Chiefs and Admiral Cooper, the commander of [US Central Command], was a major strategic blunder. The decision to fall back on purely economic pressure on the blockade of Iranian exports of oil was insufficient given the situation. Moreover, I think the United States has not done a good job of protecting its allies in the region, particularly the United Arab Emirates, which has borne the brunt of Iranian retaliation. So, what began well went off the rails and now the president is in a very bad place because he’s trying to exert economic pressure. It’s moving too slowly. The negotiations have been strung along in a now familiar way and as those negotiations extend and the Strait of Hormuz remains blocked, the economic pain throughout the global economy moves closer and closer to the United States.”

What Should We Expect from Trump’s Summit with Chinese President Xi Jinping?

Former National Security Advisor H.R. McMaster: “I think what President Trump goes in, he’s in a position of strength and I think the agenda’s kind of buying some time, like a little page out of Deng Xiaoping, buy some time so that we can make our supply chains more resilient, maybe lessen the course of power that China has over our economy. But I think if President Trump is resolute here in the next few months, he’s going to be in a position of even greater relative advantage and if on top of it, he could be a little bit nicer to allies and partners and we could work together internationally to counter various forms of Chinese economic aggression. . . I think this summit could be a pivot toward really the free world gaining strength relative to this axis of authoritarians, which in their belief that we are so damn weak and decadent and divided, they’ve all overextended themselves and are in positions of considerable weakness. I hope he goes in with that attitude into the meetings.”

How Will History Remember the Legacy of Federal Reserve Chair Jerome Powell?

John Cochrane: “Powell’s legacy: Powell is clearly a decent man, a smart man, and a dedicated public servant. You can’t take that away from him. Also, he did a great job of navigating the politics in Washington. That said, your target was 2%. You hit 10%. Financial stability was supposed to be achieved. You had a big bailout and then Silicon Valley Bank went under and just about everything else. . . came close. So the Fed. . . not Powell personally, had some major institutional failures under his watch that are only beginning to be addressed. However, standing up to Trump and for the Fed’s independence, I think that will be his most memorable legacy and that’s one on which you can retire with honor.”

Parting Wisdom

John Cochrane extracts a lesson in long-run market adaptation from Iran’s attempts to close the Strait of Hormuz:

“In some sense. . . when you have one bullet, you get to shoot it once and then the other guys learn to duck. . . [The Chinese] achieved something on the tariffs [on rare earth minerals], but they also woke America up to, “Oh wait, we’ve got to do something about [this],” which we’re now doing in a big hurry, at least to develop some capacity to not let that hurt us tremendously. The same sort of is true of the Strait [of Hormuz]. Five years from now, one way or another, the world is going to be a whole lot less dependent on getting stuff through the Strait of Hormuz. There’s going to be pipelines built. There’s going to be other sources of supply ready to go. You get to do these things once [tariffs on critical materials, blockades, or other acts of coercion] and then you’ve shot your bullet.“

That wraps up this GoodFellows conversation guide. If you like this companion to the show, or have any recommendations for future conversation guides, please let us know in the comments below.

John H. Cochrane is the Rose-Marie and Jack Anderson Senior Fellow at the Hoover Institution, Stanford University. An economist specializing in financial economics and macroeconomics, he is the author of The Fiscal Theory of the Price Level. He also authors a popular Substack called The Grumpy Economist.

Niall Ferguson is the Milbank Family Senior Fellow at the Hoover Institution, Stanford University. He is the author of sixteen books, including The Ascent of Money, Civilization, and Doom; columnist with the Free Press; founder of Greenmantle; and co-founder of the University of Austin.

H. R. McMaster is the Fouad and Michelle Ajami Senior Fellow at the Hoover Institution, Stanford University and distinguished visiting fellow at Arizona State University. He is author of the bestselling books Dereliction of Duty, Battlegrounds, and At War With Ourselves.