The Supreme Court doesn't decide what's good, only who decides
Sarah Isgur says the justices decide who has the power to decide, not whether a policy is good.
Original Jurisdiction · Last Branch Standing: Sarah IsgurSarah Isgur, a writer at The Dispatch and the author of a new book on the Supreme Court, was asked what is wrong with the usual way people talk about the court.
The conventional wisdom treats the court like Congress or the presidency, a tribal fight of right against left in which six justices on one side always defeat three on the other. Isgur's response is that the comparison misses the work. "It's not their job to say whether X is good or Y is good," she said. "Their only job is who decides."
The conflicting complaints are internally contradictory and don't make much sense, in her account. Critics on the left say President Donald Trump always wins at the court, while Trump says he always loses there. Neither side wants to confront an institution doing different work.
To lower the temperature she turns to libraries. She points to activists in a blue state trying to remove To Kill a Mockingbird. Elsewhere, in a red state, activists try to remove Tango Makes Three, a picture book about two male penguins raising a chick. The question for the court is not which title belongs on the shelf, but who has the authority to choose books and whether that person or board followed a lawful process.
Law, in this account, is a logic based exercise unlike politics. It turns on comparing new disputes to old ones and testing whether the correct steps were followed. That character draws nonlawyers from technical fields to her podcast, whose nonlawyer listeners are often engineers, math people, and doctors.
She does not deny that outcomes can look political. It can look inconsistent, for example, to block President Joe Biden's student loan forgiveness and then rule the other way on Trump's tariffs. Her answer is that the justices themselves see consistency where outsiders see partisanship. Put all nine under a polygraph, she said, and they would pass, because they believe their reasoning holds together. That differs from elected partisans, who will either admit inconsistency or lie about it.
Questions people ask
What are the two books in her library example?
To Kill a Mockingbird, Harper Lee's novel about race and justice in Alabama, has been challenged in some liberal districts over its racial language and perspective. Tango Makes Three, based on the true story of two male chinstrap penguins at New York's Central Park Zoo, has been among the most challenged picture books in conservative districts because it depicts a same sex penguin couple raising a chick.
What are the student loan and tariff cases she mentions?
Biden tried to cancel large amounts of federal student loan debt through executive action, and the Supreme Court blocked it in 2023. Trump imposed broad tariffs by invoking emergency powers, and challengers argue he also exceeded what Congress authorized. Isgur uses the pair to show how the same legal question about who can act without Congress can look partisan when the presidents change.
How does the court decide who decides?
Much of the work turns on the Constitution's division of power. The court asks whether the Constitution leaves an issue to the states, to Congress, to the president, or to individuals, and then whether that decision maker followed lawful procedures. That who decides question comes before any judgment about whether the policy is wise.