As noted above, Sarah Isgur’s book, Last Branch Standing, is out today. Here’s a preview of the excerpt of the book we published on SCOTUSblog this morning.
The Supreme Court is losing legitimacy—the only superpower it has. It’s under attack from partisan critics and presidents who don’t want their power challenged.
Yet the court isn’t perfect. Does the institution need to change to catch up to the modern era of our politics, or are its anachronistic rituals the only thing keeping it from becoming another failed branch? How do we preserve the last branch standing?
After walking through the current court and the history of how we got here, these are a few of the ideas I propose at the end of my book, Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today’s Supreme Court.
Filibuster a move
Judges should be above partisan politics, and they should be seen to be above partisan politics. If a judge can’t get at least a few confirmation votes from senators of good faith on the other side of the political aisle, he probably isn’t going to be a very good judge. But if that sounds too Pollyannaish – and at this point in our confirmation wars, it probably is – two Harvard law students came up with a solution.
Thomas Harvey and Thomas Koenig propose two tracks for confirmation. The first is the old one: get a filibuster-proof supermajority of 60 votes. That is, get through the judicial filibuster we used to have. But if a judge can’t get 60 votes, they add another options: get the support of a bare majority of senators in two successive Congresses.
Here’s how it would work. If one side decides to use their power in the minority to block judges for their own partisan purposes (or for any other purpose – worthy or not), then the nominee would “provisionally” be confirmed with a simple majority. After an intervening election, the nominee would automatically be brought up for a vote again regardless of whether the president won reelection or which party controls the Senate. If the nominee passed the Senate again with a simple majority, then the nominee would be deemed confirmed and take the bench.
I love this proposal because it gives voters the responsibility to decide which side is acting in good faith – the nominating side or the filibustering side. And it makes it much harder to delegitimize judges based on their confirmation process. And it could actually speed up the confirmation process because delay tactics aren’t rewarded. A win, win, win.
Enforce the code
Here’s an easy one. In 2023, the court, for the first time in its history, adopted its ethics code. But what happens if one of the justices violates it? What if someone accuses one of the justices of violating it?
It’s easy to accuse a justice of impropriety. And whether the criticism is fair or unfair, there are no judges for the judges. There is simply not enough trust in our institutions to continue to rely on the honor system.
It’s good to have a code of ethics. It’s better to have one that is enforceable.
An ethics board made up of fully retired federal judges could review complaints against the justices and issue public opinions on how to interpret different ambiguous provisions of the code. This board could make recommendations about how a justice could cure the problem – amending their financial disclosures or paying back the fair market value for concert tickets – or even issue a letter of censure if a justice persists in the violation.
Decisions on whether a justice should recuse himself, however, would not be reviewable. First, I don’t think it would be constitutional. But more important, I don’t think it would be wise. The temperature would get too hot if people thought pressuring an outside board could change the makeup of the court. If a justice has a financial interest in a case, for example, and refuses to recuse, Congress would still be able to impeach and remove the justice. Same as today.
An enforceable ethics code would give the public more confidence in the court. It would also protect the justices from nonsense allegations.
Just say yes to cases
In 2025, the court issued 66 opinions before leaving for summer break. Now, I’ll grant you that they wrote just over 650,000 words over the course of those opinions, but nobody asked for a 29-page decision followed by 49 pages of everyone else’s feelings.
If the court started hearing more cases again, it would lower the overall temperature. There wouldn’t be a gun case for the term. There would be a few, and perhaps the outcomes would be mixed or even – heaven forbid – a bit contradictory. All the better. Between 2022 and 2025, the court issued five decisions about gun rights. The pro-gun side went three and two. If that had been the outcome in a single term, it would have been pretty hard to say that one side or the other was running away with the game.
But in a single week in June 2025, eight different petitions for certiorari were filed at the court on gun-related issues. Chances are they’ll all get rejected. That same week, two other gun-related petitions – cases about state laws banning high-capacity magazines and guns like the AR-15 – were turned away.
Instead of waiting for the perfect pitch, the court should start swinging. Lower the number of votes to grant review to three instead of four. Or nominate justices who agree to bring back the courtesy fourth to grant review if three other colleagues want to hear the case.
To see Sarah’s other ideas, keep reading the piece on SCOTUSblog.