Sarah Isgur: Reforming the Supreme Court for a New Era

The Supreme Court, a cornerstone of American democracy, is facing a growing crisis of legitimacy. Attacked by partisan critics and challenged by presidents unwilling to accept constraints on their power, the Court’s authority is eroding. But is the solution to fundamentally alter the institution, or to preserve its time-honored traditions? These are the questions at the heart of a critical debate, explored in depth by legal expert Sarah Isgur in her book, Last Branch Standing: A Potentially Surprising, Occasionally Witty Journey Inside Today’s Supreme Court. Isgur doesn’t shy away from proposing bold solutions to safeguard the Court’s future.

Addressing the Confirmation Process: A Two-Track System

Judges should operate above the fray of partisan politics, and public perception demands it. However, increasingly contentious confirmation battles threaten this ideal. Isgur highlights a compelling proposal by Harvard law students Thomas Harvey and Thomas Koenig: a two-track confirmation process. The first track maintains the traditional requirement of 60 Senate votes. But if a nominee fails to secure this supermajority, a second option comes into play – securing a simple majority in two successive Congresses.

Here’s how it would work: if a nominee is blocked by partisan obstruction, they would receive a provisional confirmation with a simple majority. Following an election, the nominee would be brought up for a vote again, regardless of the presidential or Senate control. A second simple majority confirmation would solidify their position on the bench. This system places the onus on voters to determine which side is acting in good faith, making it harder to delegitimize judges based on the confirmation process and potentially accelerating the confirmation timeline – a true win-win-win.

Enforcing Ethical Standards: A Necessary Step

In 2023, the Supreme Court adopted its first-ever ethics code, a significant step forward. But what happens when a justice violates this code? Currently, there’s no mechanism for enforcement. Isgur proposes the creation of an ethics board comprised of fully retired federal judges. This board would review complaints, issue public opinions on ambiguous provisions, and recommend corrective actions, such as amending financial disclosures or issuing letters of censure. Crucially, the board would not have the power to review recusal decisions, recognizing the potential for undue pressure on the Court.

An enforceable ethics code would bolster public confidence in the Court and protect justices from frivolous allegations.

Increasing Case Volume: Lowering the Temperature

The Court’s caseload has been shrinking. In 2025, only 66 opinions were issued before the summer break. Isgur argues that hearing more cases could actually lower the overall political temperature. Instead of focusing on a handful of high-profile cases, a broader range of issues would be addressed, potentially leading to more nuanced and less polarizing outcomes. She points to the example of gun rights cases, where a series of 5-4 decisions created a perception of a court dominated by one side. Increasing the number of cases heard, and potentially lowering the threshold for granting review from four to three justices, could foster a more balanced and less contentious environment.

Resisting the Allure of Cameras: Protecting Deliberation

While transparency is generally desirable, Isgur cautions against the introduction of cameras into the Supreme Court. She fears that cameras would transform oral arguments into spectacles, incentivizing presidents to appoint justices who excel at performance rather than legal scholarship. She advocates for maintaining live audio access, allowing the public to hear the arguments directly, while preserving the deliberative nature of the Court. “I, for one, want the nerds,” she writes, emphasizing the importance of prioritizing intellectual rigor over media appeal.

Ending Forum Shopping: Ensuring Impartiality

Strategic “forum shopping” – where litigants file lawsuits in jurisdictions likely to yield favorable rulings – undermines the integrity of the judicial system. Isgur proposes random assignment of a single federal district judge for cases seeking nationwide injunctions, increasing trust and legitimacy in the judiciary. This would prevent litigants from cherry-picking judges and signaling to the world that the system is biased.

Breaking the Tie: A Modern Solution to an Ancient Problem

Ties happen, but they can have significant consequences. In the 2025 case of Oklahoma Statewide Charter School Board v. Drummond, a 4-4 split due to Justice Barrett’s recusal upheld a lower court decision. Isgur proposes several solutions to address this issue, including randomly selecting a tiebreaking justice from a “Jack-o’-Lantern” (as practiced in Louisiana), utilizing a senior justice, or designating “recusal judges” at the start of each term. Any of these options would be preferable to the current system, which can lead to instability and undermine public trust.

Sarah Isgur’s proposals offer a thoughtful and pragmatic path forward for the Supreme Court, addressing critical challenges and safeguarding its role as a vital institution in American democracy.

Sources:

• SCOTUSblog – For ongoing coverage of the Supreme Court.
• Brookings Institution – Sarah Isgur’s Profile – For more information on Sarah Isgur’s work.