MORNING GLORY: If you care about the Constitution, read Sarah Isgur's new book
Bravo Sarah Isgur. And thank you.
The "bravo" is for Isgur’s new book: "Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today’s Supreme Court." 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."
If Isgur has a discernible judicial philosophy/ideology, it’s probably best described as a merger of Chief Justice John Robert’s and Justice Amy Coney Barrett’s, with a dash of the other four "conservatives" on the Court thrown in.
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. She’s 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, you’ll have to read her book. The same rule applies to the nine justices.
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Isgur is also not just "occasionally witty." She is very funny, and that helps a non-lawyer or even lawyers who aren’t 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 Isgur’s.
Constitutional law is complicated stuff. That’s why all law students have to spend at least two semester-long classes to get the basics down and those two courses don’t usually include the Court’s criminal law jurisprudence. Isgur takes all that great tumbleweed of complexity and makes it manageable.
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, I’ve 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.
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But they don’t shoot for laughs. Isgur does and there are plenty to be had. Enjoy.
The "thank you" is because Isgur’s 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 Senate’s legislative filibuster rules in place so that we need never have to test proposition one.
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 Court’s membership at 9 — with one of the seats designated as the chief justice. On nine occasions total, Congress has tweaked the number of justices, beginning in 1789, 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 party’s smell test.
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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 Court’s numerical composition came after the upheaval of the Civil War and Andrew Johnson’s near-impeachment and on the heels of the ratification of the 14th Amendment 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 after great threats to the Constitution and its repair after secession and civil war via the guarantee of "due process of law" from every state as well as the federal government.
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I am prepared for Senate Democrats to refuse to confirm even one federal district court judge from President Trump must less any Supreme Court nominees should the Democrats regain the Senate majority in 2027. That’s the political process playing out and turnabout is fair — and constitutional — play.
But piling five more Justice Brown Jackson’s on to the Court via court-packing legislation would mark a fundamental break with our past legal history and evolution. That would not be consistent with the rule of law. That would in fact be its abrogation and the beginning of a cycle impossible to predict in its outcome.
Which is why it is important for the Senate GOP to defend its filibuster rules. The filibuster is the one hurdle that must be crossed before any bill to mangle the Constitution via disfiguring the Court makes it to a final vote. Serious senators will defend it for the simple reason is that it preserves the stability of every institution but especially the Court.
If you care about the Constitution, read Sarah Isgur’s new book and realize the Court isn’t meant to move quickly or to be broken beyond repair in a fit of partisan excess. "We must never forget, that it is a constitution we are expounding," Chief Justice Marshall famously wrote in the 1819 decision McCulloch v. Maryland. Whether that restraint is still within the whole of the Republic depends not a little on serious people of the center-right to the center-left keep their eyes on the prize: The rule of law.
Hugh Hewitt is a Fox News contributor and host of "The Hugh Hewitt Show" heard weekday afternoons from 3 PM to 6 PM ET on the Salem Radio Network, and simulcast on Salem News Channel. Hugh drives Americans home on the East Coast and to lunch on the West Coast on over 400 affiliates nationwide, and on all the streaming platforms where SNC can be seen. He is a frequent guest on the Fox News Channel’s news roundtable, hosted by Bret Baier weekdays at 6 p..m ET. A son of Ohio and a graduate of Harvard College and the University of Michigan Law School, Hewitt has been a Professor of Law at Chapman University’s Fowler School of Law since 1996, where he teaches Constitutional Law. Hewitt launched his eponymous radio show from Los Angeles in 1990. Hewitt has frequently appeared on every major national news television network, hosted television shows for PBS and MSNBC, written for every major American paper, has authored a dozen books and moderated a score of Republican candidate debates, most recently the November 2023 Republican presidential debate in Miami and four Republican presidential debates in the 2015-16 cycle. Hewitt focuses his radio show and his column on the Constitution, national security, American politics and the Cleveland Browns and Guardians. Hewitt has interviewed tens of thousands of guests from Democrats Hillary Clinton and John Kerry to Republican Presidents George W. Bush and Donald Trump over his 40 years in broadcasting. This column previews the lead story that will drive his radio/ TV show today.