1 00:00:00,320 --> 00:00:02,200 Speaker 1: We've been wanting to get Sarah igor on for a 2 00:00:02,360 --> 00:00:05,560 Speaker 1: long time. First became or wherever on the Dispatch and 3 00:00:05,600 --> 00:00:08,080 Speaker 1: the podcast stuff there, and man, anytime any big legal 4 00:00:08,119 --> 00:00:11,480 Speaker 1: story breaks, I go to her Twitter feed or wait 5 00:00:11,560 --> 00:00:14,480 Speaker 1: for the podcast she does with David French Advisory Opinions 6 00:00:14,520 --> 00:00:16,880 Speaker 1: to get it laid out. And couldn't be happier to 7 00:00:16,920 --> 00:00:17,440 Speaker 1: have her today. 8 00:00:17,960 --> 00:00:20,599 Speaker 2: Yep, we're both big fans of Sarah Isger, editor of 9 00:00:20,680 --> 00:00:23,239 Speaker 2: Scotis Blog, hosted the legal podcast in virus Ory Opinions, 10 00:00:23,320 --> 00:00:26,160 Speaker 2: Legal analyst for ABC News and author of a fabulous 11 00:00:26,200 --> 00:00:29,760 Speaker 2: new book, Last Branch Standing, a potentially surprising, occasionally witty 12 00:00:29,880 --> 00:00:32,879 Speaker 2: journey inside today's Supreme Court. A book so timely and 13 00:00:32,920 --> 00:00:35,920 Speaker 2: important I believe it should be a compulsory read for 14 00:00:36,000 --> 00:00:38,240 Speaker 2: every American. Not sure how that scores with the first 15 00:00:38,280 --> 00:00:40,040 Speaker 2: time Sarah, welcome, How are you? 16 00:00:41,240 --> 00:00:43,000 Speaker 3: I'm great? Thank you guys for having me. 17 00:00:43,159 --> 00:00:45,160 Speaker 1: You bet you before we let you lay out the book. 18 00:00:45,200 --> 00:00:47,000 Speaker 1: And here's the deal I'm going to make with you. 19 00:00:47,040 --> 00:00:48,720 Speaker 1: Even though we have no leverage. You're like the horror 20 00:00:48,760 --> 00:00:52,880 Speaker 1: moves straight. We have no leverage over you, but I'll 21 00:00:52,960 --> 00:00:54,480 Speaker 1: let you and I'll go out and buy a hard 22 00:00:54,480 --> 00:00:56,320 Speaker 1: bound copy of your book today, even though I'm getting 23 00:00:56,320 --> 00:00:58,640 Speaker 1: a promotional copy. If I can get you to do 24 00:00:58,720 --> 00:01:00,520 Speaker 1: one of your screeds, and there's there's so many, I 25 00:01:00,520 --> 00:01:02,720 Speaker 1: would like the screed might be prejudicial. Maybe I'll go 26 00:01:02,760 --> 00:01:06,320 Speaker 1: with presentation or something like that. But and I could 27 00:01:06,400 --> 00:01:10,399 Speaker 1: have you do why the whole crying fire in a 28 00:01:10,400 --> 00:01:12,680 Speaker 1: crowded movie house is misrepresented? 29 00:01:13,280 --> 00:01:14,760 Speaker 3: I mean, there's so many of them. I for you 30 00:01:14,920 --> 00:01:15,399 Speaker 3: do that. 31 00:01:15,480 --> 00:01:18,080 Speaker 1: I love her greatest hits. Why there are no parties anymore? 32 00:01:18,120 --> 00:01:20,119 Speaker 1: And it's a waste of time. I want to have 33 00:01:20,200 --> 00:01:25,720 Speaker 1: you lay out the pointlessness of issue polling after the book, 34 00:01:25,840 --> 00:01:27,680 Speaker 1: because I want you to do that for our audience. 35 00:01:27,720 --> 00:01:31,000 Speaker 3: I really do excellent, No problem, I'm done. I mean, 36 00:01:31,000 --> 00:01:33,119 Speaker 3: you don't have to go me into doing a rand. 37 00:01:33,200 --> 00:01:33,800 Speaker 3: I love a rand. 38 00:01:33,920 --> 00:01:34,160 Speaker 1: Good. 39 00:01:34,760 --> 00:01:37,160 Speaker 2: All right, First things first, though, tell us about last 40 00:01:37,200 --> 00:01:38,080 Speaker 2: Branch standing. 41 00:01:39,760 --> 00:01:42,240 Speaker 3: Well, part of the reason for this book is to 42 00:01:42,560 --> 00:01:45,520 Speaker 3: convince Americans that, yes, they're hearing so much more about 43 00:01:45,520 --> 00:01:48,720 Speaker 3: the Supreme Court and that it is actually our most 44 00:01:48,880 --> 00:01:52,960 Speaker 3: functional branch of government. But it is never the last 45 00:01:53,000 --> 00:01:56,080 Speaker 3: word in any of these fights that we're having on politics, 46 00:01:56,080 --> 00:01:59,160 Speaker 3: on culture, war, anything else. It is always up to 47 00:01:59,160 --> 00:02:01,680 Speaker 3: the American people. If you don't like something the Supreme 48 00:02:01,720 --> 00:02:05,280 Speaker 3: Court decided, we can amend the Constitution. We used to 49 00:02:05,320 --> 00:02:08,720 Speaker 3: do it pretty frequently in response to Supreme Court decisions, 50 00:02:09,200 --> 00:02:12,840 Speaker 3: and most of the decisions from the Supreme Court are 51 00:02:12,840 --> 00:02:16,120 Speaker 3: actually just up to Congress. If you don't like partisan jerrymandering, 52 00:02:16,480 --> 00:02:21,160 Speaker 3: Congress can deal with that. Today, we just don't expect 53 00:02:21,160 --> 00:02:23,720 Speaker 3: them to. We don't make them, and we continue to 54 00:02:23,800 --> 00:02:26,600 Speaker 3: vote for people who have no interest in actually legislating, 55 00:02:26,800 --> 00:02:31,680 Speaker 3: because legislation requires compromise, negotiation, actually working with someone who 56 00:02:31,680 --> 00:02:34,359 Speaker 3: disagrees with you. And it said, we keep electing people 57 00:02:34,400 --> 00:02:37,920 Speaker 3: who are really good at putting out Instagram reels yelling 58 00:02:37,960 --> 00:02:39,880 Speaker 3: about how the other side is the problem. 59 00:02:40,200 --> 00:02:41,840 Speaker 1: Yeah, I've listened to you so much. I actually know 60 00:02:41,880 --> 00:02:43,639 Speaker 1: what your answers are going to be to all my questions, 61 00:02:43,639 --> 00:02:48,200 Speaker 1: but I'll ask them anyway. What you have us talker? Well, 62 00:02:48,240 --> 00:02:52,120 Speaker 1: I am, I'm a fanboy, wound boy. What changed? Why 63 00:02:52,400 --> 00:02:54,200 Speaker 1: you know if we used to amend the Constitution all time? 64 00:02:54,240 --> 00:02:56,760 Speaker 3: What changed? Yeah? I mean a few things. We can 65 00:02:56,800 --> 00:02:59,760 Speaker 3: go back one hundred years to the progressive era, Woodrow 66 00:02:59,760 --> 00:03:03,120 Speaker 3: Will and Teddy Roosevelt. They really wanted to remake the 67 00:03:03,240 --> 00:03:08,040 Speaker 3: United States government and move away from Congress again that messy, 68 00:03:08,240 --> 00:03:11,920 Speaker 3: long negotiating process. And they wanted it all to be 69 00:03:11,960 --> 00:03:15,560 Speaker 3: housed by experts and independent agencies. It would be shielded 70 00:03:15,639 --> 00:03:19,360 Speaker 3: from political influence. So we've been doing that experiment for 71 00:03:19,400 --> 00:03:23,079 Speaker 3: about one hundred years. And then during the second term 72 00:03:23,080 --> 00:03:27,720 Speaker 3: of the Obama administration, when his immigration legislation failed in 73 00:03:27,760 --> 00:03:31,120 Speaker 3: the House because Republicans wouldn't vote for it, he decided 74 00:03:31,480 --> 00:03:35,360 Speaker 3: to do executive orders to implement legislation. Now, it didn't 75 00:03:35,440 --> 00:03:39,120 Speaker 3: last long. Those executive orders were generally struck down by 76 00:03:39,160 --> 00:03:42,560 Speaker 3: courts or President Trump came in and repealed them all 77 00:03:42,560 --> 00:03:46,640 Speaker 3: his first day in office. But it taught Congress that 78 00:03:46,760 --> 00:03:49,960 Speaker 3: they don't need to do legislation anymore because when their 79 00:03:50,000 --> 00:03:52,560 Speaker 3: party has the White House, they can get everything that 80 00:03:52,600 --> 00:03:55,360 Speaker 3: they want. And sure it's only for a couple of years, 81 00:03:55,600 --> 00:03:58,520 Speaker 3: but they get the Rose Garden address, their bases happy, 82 00:03:58,760 --> 00:04:01,680 Speaker 3: and nobody remembers a few years later whose fault it 83 00:04:01,720 --> 00:04:02,880 Speaker 3: is when it all disappears. 84 00:04:02,920 --> 00:04:04,520 Speaker 1: So the whole I have a pen and a phone. 85 00:04:04,600 --> 00:04:08,040 Speaker 1: Thing that took presidence, so especially. 86 00:04:07,680 --> 00:04:11,040 Speaker 3: Then tires under government by executive order. 87 00:04:11,040 --> 00:04:12,960 Speaker 2: At this point, right, I was just going to say, 88 00:04:12,960 --> 00:04:15,880 Speaker 2: so Congress is not legislating in the executive branch, is 89 00:04:15,880 --> 00:04:19,000 Speaker 2: is that most of the reason there's so much of 90 00:04:19,040 --> 00:04:21,320 Speaker 2: a spotlight on the Supreme Court these days or what 91 00:04:21,320 --> 00:04:22,080 Speaker 2: else is happening. 92 00:04:23,600 --> 00:04:26,680 Speaker 3: I think that's right, you know, because Congress is where 93 00:04:26,720 --> 00:04:30,000 Speaker 3: we were supposed to work out these problems. Again, you know, 94 00:04:30,279 --> 00:04:32,560 Speaker 3: I'm thinking of cases that are waiting at the Supreme 95 00:04:32,600 --> 00:04:36,640 Speaker 3: Court right now, birthright, citizenship, asylum, at the southern border, 96 00:04:36,960 --> 00:04:40,160 Speaker 3: whether Mississippi can accept mail in ballots five days after 97 00:04:40,160 --> 00:04:43,159 Speaker 3: the election. All of those are questions we're supposed to 98 00:04:43,160 --> 00:04:45,719 Speaker 3: work out in Congress. But because none of us believe 99 00:04:45,760 --> 00:04:49,360 Speaker 3: that will happen, we end up bringing lawsuits to court 100 00:04:49,360 --> 00:04:51,560 Speaker 3: and asking the courts to work those out for us. 101 00:04:52,360 --> 00:04:54,359 Speaker 3: And so then we focus a lot more on the courts. 102 00:04:54,360 --> 00:04:57,200 Speaker 3: It becomes really important who these judges are, and they 103 00:04:57,240 --> 00:05:01,800 Speaker 3: become part of our partisan agreements instead of sort of 104 00:05:01,839 --> 00:05:03,880 Speaker 3: the place of last resort to sort of, you know, 105 00:05:03,960 --> 00:05:04,760 Speaker 3: be a referee. 106 00:05:05,040 --> 00:05:08,840 Speaker 1: And we've seen the declining popularity numbers for the Supreme 107 00:05:08,839 --> 00:05:11,239 Speaker 1: Court because of this, putting them in an impossible situation 108 00:05:11,320 --> 00:05:14,520 Speaker 1: on a bunch of this stuff. A reply to this, 109 00:05:14,520 --> 00:05:17,599 Speaker 1: this is an out of control right wing Trump Court. 110 00:05:18,560 --> 00:05:21,640 Speaker 3: Yeah, the data isn't great for people who argue that. 111 00:05:22,120 --> 00:05:25,960 Speaker 3: So last term for six three cases, you know, where 112 00:05:26,000 --> 00:05:28,480 Speaker 3: all of the Republican appointees vote one way and all 113 00:05:28,520 --> 00:05:31,800 Speaker 3: of the Democratic appointees vote the other way, which is 114 00:05:31,800 --> 00:05:33,800 Speaker 3: what you would expect if this were a you know, 115 00:05:33,920 --> 00:05:37,919 Speaker 3: Republican red team versus Blue team court. That accounted for 116 00:05:38,080 --> 00:05:41,800 Speaker 3: drum roll, nine percent of the cases. So if that's 117 00:05:41,800 --> 00:05:44,080 Speaker 3: how you're predicting the outcome of Supreme Court cases, you're 118 00:05:44,080 --> 00:05:46,520 Speaker 3: going to get it wrong more than ninety percent of 119 00:05:46,560 --> 00:05:50,279 Speaker 3: the time. And even if you include the five four cases, 120 00:05:50,760 --> 00:05:54,599 Speaker 3: it turns out exactly equal numbers had all of the 121 00:05:54,640 --> 00:05:57,039 Speaker 3: liberals and descent versus having all the liberals in the 122 00:05:57,080 --> 00:06:01,200 Speaker 3: majority and only conservatives in descent's dead. You know, forty 123 00:06:01,240 --> 00:06:03,680 Speaker 3: two percent of the cases are unanimous. That's the most 124 00:06:03,720 --> 00:06:07,360 Speaker 3: likely outcome of any case at the Supreme Court. Very few, 125 00:06:07,400 --> 00:06:10,320 Speaker 3: as I say, fall against partisan lines. The other things 126 00:06:10,320 --> 00:06:13,840 Speaker 3: we'd expect if this were a you know, Trump Supreme Court, well, 127 00:06:13,839 --> 00:06:15,800 Speaker 3: first of all, I guess we'd expect Trump to actually 128 00:06:15,839 --> 00:06:19,560 Speaker 3: win some cases. Right now, every major policy question that 129 00:06:19,600 --> 00:06:23,760 Speaker 3: has come before the Supreme Court, he has lost Immigration, 130 00:06:23,960 --> 00:06:29,359 Speaker 3: Alien Enemies Act nope. Federalizing the National Guard nope, Paris nope, 131 00:06:29,520 --> 00:06:32,279 Speaker 3: birthright citizenship. I will bet you a shiny nickel that 132 00:06:32,320 --> 00:06:35,599 Speaker 3: one's a hard no. So he keeps losing. In fact, 133 00:06:35,600 --> 00:06:39,320 Speaker 3: in his first term he lost more than any president 134 00:06:39,400 --> 00:06:42,240 Speaker 3: in United States history. He's the first president to ever 135 00:06:42,320 --> 00:06:46,279 Speaker 3: be below fifty percent. At the Supreme Court, we'd expect 136 00:06:46,279 --> 00:06:49,039 Speaker 3: them to be overturning precedent, Nope, this court is overturning 137 00:06:49,080 --> 00:06:52,560 Speaker 3: fewer precedents than any court in modern history. We'd expect 138 00:06:52,600 --> 00:06:55,479 Speaker 3: them to be taking more cases, Nope, this court is 139 00:06:55,520 --> 00:06:59,200 Speaker 3: taking fewer cases than any court in recent history. So, 140 00:06:59,600 --> 00:07:01,640 Speaker 3: no matter what way you look at it, the data 141 00:07:01,800 --> 00:07:03,919 Speaker 3: just isn't there. For the people who want to argue 142 00:07:03,920 --> 00:07:05,600 Speaker 3: that this is a partisan court. 143 00:07:05,920 --> 00:07:08,640 Speaker 2: Well, let's be honest about what animates virtually all of 144 00:07:08,680 --> 00:07:13,120 Speaker 2: modern politics. You just raised zero dollars for the Democratic Party, Sarah, 145 00:07:13,200 --> 00:07:15,960 Speaker 2: So thanks for wasting our time. You noted and I 146 00:07:16,000 --> 00:07:19,200 Speaker 2: found this so interesting that Brett Kavanaugh was more likely 147 00:07:19,240 --> 00:07:22,920 Speaker 2: to agree with Elena Kagan than Neil Gorsich. What's going 148 00:07:22,960 --> 00:07:23,400 Speaker 2: on there? 149 00:07:24,760 --> 00:07:27,240 Speaker 3: Yeah? So, I mean Britt Kavanaugh and Neil Gorsich are 150 00:07:27,280 --> 00:07:29,920 Speaker 3: basically twins. They went to high school together. They had 151 00:07:29,920 --> 00:07:32,760 Speaker 3: the same history teacher. They clerked on the court together. 152 00:07:32,800 --> 00:07:34,760 Speaker 3: They were circuit judges at the same time. They were 153 00:07:34,760 --> 00:07:38,440 Speaker 3: appointed by the same president. They are federalist society lab 154 00:07:38,560 --> 00:07:44,960 Speaker 3: creations with good hair and conservative judicial principles. But last 155 00:07:45,080 --> 00:07:48,120 Speaker 3: term they only agreed with each other fifty percent of 156 00:07:48,160 --> 00:07:51,320 Speaker 3: the time. As you say, Justice Kavanaugh was more likely 157 00:07:51,360 --> 00:07:54,960 Speaker 3: to agree with Justice Kagan than he was with Justice 158 00:07:55,000 --> 00:08:00,960 Speaker 3: Gorsicic because Justice Kavanaugh is a high institutional He thinks 159 00:08:00,960 --> 00:08:04,360 Speaker 3: of this as a team sport. He likes basketball and baseball. 160 00:08:04,880 --> 00:08:09,120 Speaker 3: Justice Gorsich, He's a soloist. He likes skiing and running 161 00:08:09,520 --> 00:08:13,000 Speaker 3: solo sports. He is more like Justice Jackson, which is 162 00:08:13,000 --> 00:08:16,880 Speaker 3: why you see them agreeing with each other's concurrences and 163 00:08:17,040 --> 00:08:20,560 Speaker 3: why Justice Kavanaugh is the justice most likely to be 164 00:08:20,560 --> 00:08:23,400 Speaker 3: in the majority. He is the swing justice as of now. 165 00:08:24,560 --> 00:08:27,240 Speaker 1: Sarah Isger's book is called Last Branch Standing. In the 166 00:08:27,240 --> 00:08:29,360 Speaker 1: first sentence in the promotional stuff, is here a myth 167 00:08:29,480 --> 00:08:31,800 Speaker 1: busting glimpse into the inner workings of the Supreme Court, 168 00:08:31,840 --> 00:08:36,960 Speaker 1: And you've already busted a few myths? How worried are 169 00:08:37,000 --> 00:08:40,839 Speaker 1: you about the declining faith in the Supreme Court because 170 00:08:40,880 --> 00:08:44,320 Speaker 1: of the untrue partisan things people have been saying on 171 00:08:44,360 --> 00:08:45,920 Speaker 1: both sides now for several cycles. 172 00:08:47,000 --> 00:08:48,320 Speaker 3: Well, let me give you the good news and the 173 00:08:48,320 --> 00:08:51,240 Speaker 3: bad news. The good news is that the Supreme Court 174 00:08:51,440 --> 00:08:54,840 Speaker 3: is still more popular than the President or Congress. So 175 00:08:54,880 --> 00:08:57,160 Speaker 3: if we're just fighting among the three branches of government, 176 00:08:57,559 --> 00:09:01,280 Speaker 3: definitely the Supreme Court is winning. The bad news is 177 00:09:01,840 --> 00:09:04,560 Speaker 3: that our courts tend to be a lagging indicator of 178 00:09:04,600 --> 00:09:07,240 Speaker 3: our politics. So another title for the book could have 179 00:09:07,280 --> 00:09:11,400 Speaker 3: been last branch Standing dot dot dot for now, because 180 00:09:11,480 --> 00:09:14,520 Speaker 3: everything that we're doing now will eventually be reflected in 181 00:09:14,559 --> 00:09:18,000 Speaker 3: the courts, and there are warning signs. Getting rid of 182 00:09:18,000 --> 00:09:20,880 Speaker 3: the filibuster means that we now appoint judges who didn't 183 00:09:20,880 --> 00:09:23,240 Speaker 3: get any votes from the other side of the aisle. 184 00:09:23,520 --> 00:09:26,160 Speaker 3: That is not great. That is going to breed more 185 00:09:26,720 --> 00:09:29,920 Speaker 3: extreme judges who are outliers, and it's going to change 186 00:09:29,920 --> 00:09:32,160 Speaker 3: the behavior of people who want to become judges to 187 00:09:32,200 --> 00:09:36,800 Speaker 3: be more partisan, more outspoken, lock themselves into certain positions. 188 00:09:37,120 --> 00:09:39,360 Speaker 3: We have forum shopping now that we didn't used to have. 189 00:09:39,800 --> 00:09:41,800 Speaker 3: That's not great. You know, you could be the most 190 00:09:41,840 --> 00:09:44,000 Speaker 3: fair judge in the world, but if everyone knows that 191 00:09:44,040 --> 00:09:48,200 Speaker 3: one side picked you. It doesn't look that fair to anyone. So, 192 00:09:48,760 --> 00:09:50,520 Speaker 3: you know, I think those are things we can pretty 193 00:09:50,520 --> 00:09:54,320 Speaker 3: easily fix, but it's not great. And the more we 194 00:09:54,480 --> 00:09:58,679 Speaker 3: pull the courts into our partisan politics, negative polarization. I mean, 195 00:09:59,040 --> 00:10:01,800 Speaker 3: we have a really top toxic political environment right now. 196 00:10:02,120 --> 00:10:04,280 Speaker 3: We cannot have the courts reflect that. 197 00:10:06,679 --> 00:10:08,760 Speaker 2: Let's go a little ABC one two three about the 198 00:10:08,760 --> 00:10:11,800 Speaker 2: Supreme Court kind of basic stuff. I think a lot 199 00:10:11,840 --> 00:10:15,520 Speaker 2: of folks, particularly on the left, think it's about choosing 200 00:10:15,640 --> 00:10:18,320 Speaker 2: the right result, period, and a lot of us on 201 00:10:18,360 --> 00:10:20,800 Speaker 2: the right would like to believe that the court does 202 00:10:20,960 --> 00:10:24,560 Speaker 2: nothing but look at the Constitution and the law and 203 00:10:24,640 --> 00:10:28,240 Speaker 2: president and they may despise the result. But we've got 204 00:10:28,240 --> 00:10:32,560 Speaker 2: to go with with this is that's oversimplified obviously, But 205 00:10:32,640 --> 00:10:34,880 Speaker 2: is that characterization of the left and right, at least 206 00:10:34,920 --> 00:10:35,679 Speaker 2: on the right track. 207 00:10:37,679 --> 00:10:41,520 Speaker 3: You know, I think I think the conservative right wanted 208 00:10:41,559 --> 00:10:44,760 Speaker 3: to think that about themselves, but it's pretty clear now 209 00:10:45,160 --> 00:10:49,000 Speaker 3: that that's not true. Both sides only care about outcomes. Really. 210 00:10:49,400 --> 00:10:51,600 Speaker 3: You see the right attack the Supreme Court every time 211 00:10:51,600 --> 00:10:54,880 Speaker 3: they rule against Donald Trump, sometimes specific justices in very 212 00:10:54,920 --> 00:10:58,600 Speaker 3: personal terms. You know, the attacks against Justice Amy Tony 213 00:10:58,600 --> 00:11:03,280 Speaker 3: Barrett got very gender in my opinions, and I think 214 00:11:03,320 --> 00:11:06,360 Speaker 3: that there's a natural human tendency to care about the outcome. 215 00:11:06,400 --> 00:11:08,960 Speaker 3: I get it. But the Supreme Court's job is never 216 00:11:09,080 --> 00:11:12,920 Speaker 3: to say, you know what the good policy is. It 217 00:11:13,000 --> 00:11:16,120 Speaker 3: is to say who gets to decide? So you're mad 218 00:11:16,200 --> 00:11:19,360 Speaker 3: that the book is in your local school library, the Supreme 219 00:11:19,360 --> 00:11:21,040 Speaker 3: Court isn't going to tell you whether that's a good 220 00:11:21,040 --> 00:11:24,160 Speaker 3: book or a bad book for kindergarteners to read. Their 221 00:11:24,320 --> 00:11:26,880 Speaker 3: question is who gets to decide whether that's a good 222 00:11:26,880 --> 00:11:29,240 Speaker 3: book or a bad book? Is it the librarian, Is 223 00:11:29,240 --> 00:11:32,360 Speaker 3: it the parent coming into the library. Is it the 224 00:11:32,840 --> 00:11:36,200 Speaker 3: you know, city mayor. Is it a state legislature? Is 225 00:11:36,240 --> 00:11:40,440 Speaker 3: it the governor? Is it Congress? Those are the questions 226 00:11:40,520 --> 00:11:43,040 Speaker 3: that the Supreme Court decides. They're never deciding which book 227 00:11:43,040 --> 00:11:43,520 Speaker 3: it should be? 228 00:11:44,640 --> 00:11:46,920 Speaker 2: Right, I meant the Justice is more than than the 229 00:11:47,040 --> 00:11:52,679 Speaker 2: average commentator or voter. Forstance, Justice Jackson strikes me as 230 00:11:52,840 --> 00:11:55,040 Speaker 2: just wanting the result, no matter how she has to 231 00:11:55,120 --> 00:11:55,840 Speaker 2: twist the law. 232 00:11:57,520 --> 00:12:00,800 Speaker 3: Well, what's interesting because the legal less left for a 233 00:12:00,840 --> 00:12:04,680 Speaker 3: long time sort of had this idea of living constitutionalism. 234 00:12:05,040 --> 00:12:08,439 Speaker 3: The Constitution evolves as our culture evolves, and it is 235 00:12:08,520 --> 00:12:11,880 Speaker 3: up to the nine justices on the Supreme Court to 236 00:12:11,920 --> 00:12:16,560 Speaker 3: decide where it has evolved to President Lyndon Johnson famously 237 00:12:16,800 --> 00:12:19,439 Speaker 3: once said it takes two thirds of Congress and three 238 00:12:19,520 --> 00:12:22,920 Speaker 3: quarters of the states to amend the Constitution. Justice Douglas 239 00:12:22,920 --> 00:12:25,760 Speaker 3: can do it in an afternoon. That was really where 240 00:12:25,760 --> 00:12:29,040 Speaker 3: they were. That had basically disappeared from the legal left, 241 00:12:29,080 --> 00:12:31,840 Speaker 3: and yet nothing has yet replaced it. And so I 242 00:12:31,840 --> 00:12:34,400 Speaker 3: think you see Justice Jackson trying to come up with 243 00:12:34,480 --> 00:12:38,760 Speaker 3: a new legal philosophy for the legal left that, yes, 244 00:12:38,800 --> 00:12:42,200 Speaker 3: will produce liberal results, but they can be sort of 245 00:12:42,280 --> 00:12:46,800 Speaker 3: intellectually built a new house, if you will, on the 246 00:12:46,840 --> 00:12:51,960 Speaker 3: block of judicial philosophy. And look, like I said, nine 247 00:12:51,960 --> 00:12:55,800 Speaker 3: percent of the cases were six' three along ideological. Lines 248 00:12:56,120 --> 00:12:59,160 Speaker 3: SO i also think it's unfair to say ideology plays 249 00:12:59,200 --> 00:13:02,000 Speaker 3: no role In Supreme court decisions nine percent of the. 250 00:13:02,000 --> 00:13:04,800 Speaker 3: Time it. Does it's just that ninety one percent of 251 00:13:04,840 --> 00:13:06,160 Speaker 3: the time something else is at. 252 00:13:06,160 --> 00:13:09,679 Speaker 1: Work so the book's last branch standing couldn't recommend it more. 253 00:13:09,720 --> 00:13:11,559 Speaker 1: Highly i've Heard sarah talk about it in a bunch 254 00:13:11,600 --> 00:13:13,520 Speaker 1: of different, podcasts And i'm SURE i will eventually read. 255 00:13:13,520 --> 00:13:16,440 Speaker 1: It she explains this stuff in a way that idiots 256 00:13:16,480 --> 00:13:18,120 Speaker 1: like me can understand it in an entertaining. 257 00:13:18,120 --> 00:13:18,559 Speaker 3: Way so. 258 00:13:20,360 --> 00:13:23,679 Speaker 1: You have worked on presidential. Campaigns you worked For Carly. 259 00:13:23,720 --> 00:13:25,840 Speaker 1: Fiorina we used to have her on regularly back in 260 00:13:25,840 --> 00:13:28,160 Speaker 1: the day when she was. Running but, ANYWAY i, know 261 00:13:28,600 --> 00:13:31,640 Speaker 1: with your background and a bunch of different, areas you 262 00:13:31,960 --> 00:13:37,079 Speaker 1: don't think issue polling has much. Merit explain. 263 00:13:37,200 --> 00:13:42,520 Speaker 3: That, Ah, okay deep, Breath, sarah don't go too. Far, 264 00:13:42,800 --> 00:13:48,520 Speaker 3: okay here too. Far here's the. Problem when we do candidate, 265 00:13:48,559 --> 00:13:51,600 Speaker 3: polling we can actually judge whether the poll was any 266 00:13:51,600 --> 00:13:53,800 Speaker 3: good because we have an election, day, right there is 267 00:13:53,840 --> 00:13:56,640 Speaker 3: a backstop to the. Polling we never can do that 268 00:13:56,679 --> 00:13:59,480 Speaker 3: with issue. Polling we can never find out whether that 269 00:13:59,520 --> 00:14:01,360 Speaker 3: poll was a good poll or a bad. Poll there's 270 00:14:01,360 --> 00:14:04,520 Speaker 3: no way to grade. It so that's a big, problem. 271 00:14:04,600 --> 00:14:07,360 Speaker 3: Right but there's another. Problem when you ask people what 272 00:14:07,480 --> 00:14:11,440 Speaker 3: candidates they intend to vote, for that's a very binary. 273 00:14:11,520 --> 00:14:13,880 Speaker 3: Choice they understand what an election is and that they're 274 00:14:13,880 --> 00:14:15,520 Speaker 3: going to go in and check the box for one 275 00:14:15,520 --> 00:14:18,280 Speaker 3: person or the. Other and, remember those poles still aren't 276 00:14:18,280 --> 00:14:22,120 Speaker 3: perfect when it comes to issue. Polling, oftentimes the question 277 00:14:22,240 --> 00:14:25,120 Speaker 3: you're asking people is it the question they think they're. 278 00:14:25,160 --> 00:14:28,480 Speaker 3: Answering you, know do you think the straits of horror 279 00:14:28,520 --> 00:14:31,640 Speaker 3: moves should be open or? Whatever well kind of depends 280 00:14:31,680 --> 00:14:33,600 Speaker 3: what are the trade? Offs are you going to list 281 00:14:33,720 --> 00:14:37,000 Speaker 3: all of the potential trade offs in that? Question you've 282 00:14:37,000 --> 00:14:39,360 Speaker 3: only got like thirty seconds to ask them a question 283 00:14:39,400 --> 00:14:41,640 Speaker 3: and get them to answer. It and that's why you 284 00:14:41,680 --> 00:14:45,480 Speaker 3: get so many different results with issue. Polling it's also 285 00:14:45,520 --> 00:14:47,960 Speaker 3: the case that sometimes people hear a question that can 286 00:14:48,000 --> 00:14:51,320 Speaker 3: be about a very specific, issue but what they're, answering 287 00:14:51,360 --> 00:14:54,200 Speaker 3: what they think you really want to know is who 288 00:14:54,200 --> 00:14:56,640 Speaker 3: do you support for? President so you, know do you 289 00:14:56,720 --> 00:14:59,760 Speaker 3: like ex policy or why? Policy the answer is do 290 00:14:59,800 --> 00:15:03,760 Speaker 3: you Like Donald trump Or Kamala? Harris and so you're 291 00:15:03,840 --> 00:15:06,360 Speaker 3: rarely getting the answer THAT i think you. Want if 292 00:15:06,360 --> 00:15:10,240 Speaker 3: you're asking the same, question the exact same question over, 293 00:15:10,320 --> 00:15:14,920 Speaker 3: time and that moves that is interesting to, me, right 294 00:15:15,080 --> 00:15:18,560 Speaker 3: like not the raw, number but, like oh it is 295 00:15:18,640 --> 00:15:21,240 Speaker 3: moved by seven points in the last. Month, well something 296 00:15:21,240 --> 00:15:23,720 Speaker 3: that has changed if you're asking the exact same. Question 297 00:15:24,440 --> 00:15:25,560 Speaker 3: but that's rarely what we're. 298 00:15:25,560 --> 00:15:28,600 Speaker 1: Doing do you regularly hear because in talk radio we 299 00:15:28,640 --> 00:15:30,880 Speaker 1: do it all the. Time forty three percent Of americans 300 00:15:30,920 --> 00:15:33,560 Speaker 1: blah blah, blah do you regularly slap your forehead with 301 00:15:33,600 --> 00:15:35,640 Speaker 1: oh my, god there's no way there's any accuracy. 302 00:15:35,680 --> 00:15:39,080 Speaker 3: THERE i sort of turned into like a Rain man 303 00:15:39,120 --> 00:15:41,400 Speaker 3: type figure WHERE i start saying that that's not a real, 304 00:15:41,440 --> 00:15:43,080 Speaker 3: poll that's not a real. Pull don't do, it that's 305 00:15:43,120 --> 00:15:43,480 Speaker 3: not a real. 306 00:15:43,520 --> 00:15:48,000 Speaker 2: Pull. Perfect Sarah asker's new book Is Last Branch. Standing 307 00:15:48,040 --> 00:15:50,040 Speaker 2: can't wait to read it To. Sarah what a pleasure has. 308 00:15:50,040 --> 00:15:51,200 Speaker 2: BEEN i hope we can do it again. 309 00:15:51,240 --> 00:15:54,320 Speaker 3: Soon, Absolutely thanks, guys you got you all? 310 00:15:54,400 --> 00:15:54,760 Speaker 2: Right thank? 311 00:15:54,800 --> 00:15:57,240 Speaker 1: You, yeah, yeah, Yeah i've heard it go on at 312 00:15:57,280 --> 00:16:01,520 Speaker 1: length about how issue polling it except in extreme, situations 313 00:16:01,640 --> 00:16:05,720 Speaker 1: is almost, useless like it's close to your better off 314 00:16:05,720 --> 00:16:08,280 Speaker 1: having never heard it than coming away with any. 315 00:16:08,280 --> 00:16:10,520 Speaker 2: INFORMATION i have follow up comments as. 316 00:16:10,560 --> 00:16:12,360 Speaker 1: Well, yeah we got told them more on the way 317 00:16:12,360 --> 00:16:15,400 Speaker 1: to stay Here armstrong And getty