It wasn’t clear to Isgur what her post-Trump career would look like. In 2019, she accepted the job of political editor at CNN, but the offer was rescinded after many liberals objected to the idea of a former Trump official wielding editorial power at a news network known for its unsparing criticism of him. In the aftermath, Isgur heard from a much less prominent outlet: The Dispatch, a new publication founded by a small group of Trump-skeptical conservatives. French, who had already been hired there, suggested they start a podcast together, and on December 9, 2019, they launched “Advisory Opinions.” (French was originally Isgur’s co-host, but was officially demoted to “special guest” after he left the Dispatch to join the Times.) Isgur and French got to know each other on air, and quickly developed both a rapport and a following, especially within the legal world. “I do think podcasts have an enormous influence on law students,” Lisa Blatt, a Supreme Court litigator, said during a recent episode. “I don’t know any that don’t listen to this one.”
The medium of podcasting encourages intimacy, both with the audience and among the hosts. Not long ago, over lunch in a Washington restaurant, Isgur and French were interrupted by a fan—a guy who had started listening in law school and was now working as a judicial clerk. “We had a slumber party last night,” Isgur told me, slightly mischievously, after the fan had left. “David stayed at my house.”
“Yeah,” French clarified. “I stayed with Sarah and Scott.”
Last year, when Politico published a leaked draft of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned the abortion protections enshrined in Roe v. Wade, French began frantically texting Isgur, and wondered why she wasn’t replying immediately. (She was driving.) “David’s my best friend,” Isgur said. “If you’re just factoring in the amount of time you talk to someone, and spend with them—like, when you see an interesting news story, other than your spouse, who’s the first person you send it to?”
French conveyed a similar sentiment in starchier language. “We are in constant communication,” he said.
Isgur and French had come to Washington for a live taping at the office of Paul, Weiss, the powerful law firm. Their host was Kannon Shanmugam, the chair of the Washington office, who is one of the nation’s leading Supreme Court litigators and also, like seemingly everyone in the conservative legal world, a friend of Isgur. A few dozen summer associates and junior lawyers had gathered in a conference room, and some of them seemed slightly starstruck. The discussion was, as everyone expected, both nerdy and high-spirited: Shanmugam talked with equal enthusiasm about the admissibility of confessions in joint trials and the lucky necktie he customarily wears for Supreme Court appearances. Afterward, one fan presented Isgur with a framed copy of a quote from a recent concurrence by the newest Justice, Ketanji Brown Jackson, which Isgur had found so widely applicable (or, perhaps, so transcendently banal) that she had talked about getting it tattooed. It said, “Other cases presenting different allegations and different records may lead to different conclusions.”
“Advisory Opinions” has benefitted from the past few years of dramatic Supreme Court decisions, which have supplied an influx of both listeners and discussion topics. And yet Isgur and French rarely express outrage—or, for that matter, glee—about the outcomes. Isgur told me that she had no particular gut reaction to the Dobbs decision itself, although she did take exception to some of the language in Justice Samuel Alito’s majority decision. After the draft was leaked, Isgur accused Alito of embarking on a “tirade,” adding that the argument would have little “persuasive value” for “anyone who is not steeped in the pro-life community.” (French, who is more skeptical of the Republican Party than Isgur but also a lifelong advocate for the pro-life cause, was gratified by Alito’s decision, which scarcely differed from the leaked draft.) She sometimes saves her strongest reactions for more obscure verdicts, like Justice Amy Coney Barrett’s concurring opinion in Biden v. Nebraska, from this past summer, which struck down President Biden’s student-loan-forgiveness program as an abuse of executive authority. “Consider a parent who hires a babysitter to watch her young children over the weekend,” Barrett wrote. “As she walks out the door, the parent hands the babysitter her credit card and says: ‘Make sure the kids have fun.’ ” In this scenario, Barrett wrote, it would be unreasonable for the sitter to take the kids on an overnight trip to an amusement park, unless the parent had left tickets on the counter, or said something about a two-thousand-dollar budget. In this analogy, of course, Biden was the babysitter, and Congress, the parent, had provided him no reason to think it had authorized such an expensive undertaking. “Mic drop, David,” Isgur said, after reading a long excerpt. “So good!”
When Trump was elected, in 2016, the Court had four Justices perceived as liberal and four perceived as conservative. By appointing Gorsuch, Kavanaugh, and Barrett, Trump put the conservatives in charge, six to three. This is Trump’s Supreme Court—but what’s remarkable is how little it resembles him. None of Trump’s three Justices are distinctively Trumpy; they are, as Isgur says, “Justices who would have been picked under any Republican Administration.” And they have proved less reliable than Republicans might have hoped, or Democrats might have feared. Gorsuch has sometimes applied his legal philosophy in ways that put him at odds with his political supporters: he has emerged as perhaps the Court’s leading advocate for Native American rights, and he wrote the majority decision in Bostock v. Clayton County, which held that laws banning sex discrimination also banned discrimination on the basis of gay or transgender identity. Kavanaugh, like Chief Justice John Roberts, is an institutionalist—more worried about the Court’s perceived legitimacy, and more inclined to seek out compromise. As Isgur puts it, “Kavanaugh is always, like, ‘You know, this is a really big controversial thing, but here I am to say it’s a lot more simple and less controversial than you might think.’ ”
The Justice who seems closest in spirit to Donald Trump is Clarence Thomas, whose opinions almost invariably advance conservative priorities, and who has lately been the target of a series of investigations into his relationship with various donors, and into the activities of his wife, Ginni, a conservative activist. (On the morning of January 6th, 2021, as pro-Trump protesters gathered in Washington, Ginni Thomas wrote, on Facebook, “LOVE MAGA people!!!!”) But Justice Thomas long predates Trump; even his critics would probably concede that his jurisprudence hasn’t changed much since he was appointed, more than thirty years ago, by George H. W. Bush. Some Republicans have started to wonder if Trump deserves blame, rather than credit, for his Supreme Court appointments, and Trump himself seems to have some regrets. “I’m not happy with the Supreme Court,” he told his supporters on January 6th. “They love to rule against me. I picked three people, fought like hell for ’em—one in particular,” he added, seemingly adding Kavanaugh to his long and mutable list of enemies.
One thing that French learned during the week or so when he thought he might be the next President: he does not speak for the majority of Republican voters—or even, it seems, for a sizable minority of them. Trump-averse conservatives are prominent in the media, but they gained little traction in the Republican Presidential primary, and they were a nonfactor in last year’s Republican scramble to name a new Speaker of the House. In national political debates, the perspectives of people like Isgur and French simply don’t matter very much. The exception, of course, is the Supreme Court, which generally functions as if the pre-Trump Republican Party still existed. “Sotomayor and Alito are really capturing my heart with this concurrence,” Isgur said, discussing a case about a dog toy that resembled a bottle of Jack Daniel’s whiskey. She harbors particular affection for unexpected splits and trans-partisan alliances, over and above the general affection she harbors for the Court itself. In an era of aggrieved political discourse, Isgur is something unusual: a commentator who truly seems to love the government institution she covers.
We generally want our legal system to be both independent of politics and accountable to citizens, and the more powerful it becomes, the more likely we are to notice that these two wants are fundamentally incompatible. As Republican-appointed Justices have come to dominate the Court, some left-leaning observers, like Jamal Greene, have grown more suspicious of the “unelected judges” who presume to tell Americans which laws can and can’t be enacted on their behalf. Meanwhile, some of Trump’s supporters have been frustrated by the way that courts, virtually without exception, have rejected his claims of election fraud. (“Naw, dawg.”) They have started to imagine what Trump might be able to accomplish if only he weren’t so deferential to the Federalist Society, which reportedly played a big role in helping him select his judicial nominees. A recent Times article quoted Mike Davis, who helped Trump navigate the judicial nomination process in his first term. “In the Trump 47 administration, they need much stronger attorneys who do not care about elite opinion who will fight these key cultural battles,” Davis said. He may have been suggesting that the next cohort of Republican nominees will not much resemble Gorsuch, Kavanaugh, or Barrett. There is no requirement, after all, that Supreme Court Justices come from the highly selective law schools—no requirement, in fact, that they be legal scholars, or indeed lawyers at all.
When Isgur and French are feeling optimistic, they imagine that the legal world is somehow immune to the obstreperous spirit that has reshaped the rest of the conservative movement. French told me that a friend of his, a leader within the Southern Baptist Convention, recommends “Advisory Opinions” to friends who need to be reminded of the value of civil discourse and sophisticated argument. (Until recently, it might not have seemed likely, or perhaps even conceivable, that Southern Baptists would seek lessons in civility from a bunch of lawyers.) And Isgur says that in the legal world, conservatives and liberals still pride themselves on their trans-ideological friendships, as Justices Ruth Bader Ginsberg and Antonin Scalia used to do. “That feels very deeply ingrained,” she told me. Then again, Washington politicians likewise used to brag about their trans-partisan friendships—until, sometime in the past decade or two, they mainly stopped. It is possible that the Supreme Court will come to resemble the House of Representatives, with its absurd partisan arguments that even partisans struggle to take seriously. “I’m very scared of that,” Isgur says.
There are signs that the Court is already becoming a more rancorous place. Alito, in an interview with the Wall Street Journal, said that the Dobbs leak “created an atmosphere of suspicion and distrust,” and he complained that the Justices were “being hammered daily” ; in November, the Court responded by adopting an official code of conduct. During the COVID Omicron surge, the Court had to issue an unusual statement from Gorsuch and Sotomayor, denying that he had angered her by refusing to wear a mask, despite her requests. “We are warm colleagues and friends,” the statement affirmed—although most friendly colleagues don’t need to issue public affirmations to that effect. And, last year, an armed man was arrested outside Kavanaugh’s home; he told police that he was angry about the leaked Dobbs decision, and about the Court’s rulings to uphold gun rights. (He has been charged with attempted murder, and pleaded not guilty.) Polls suggest that Americans are starting to think of the Supreme Court more in the way they think of Congress: Pew recently reported that, for the first time in more than three decades of polling, a majority of respondents, fifty-four per cent, had an unfavorable view of the Court. This number reflected not a general hostility but a sharply partisan divide: sixty-eight per cent of Republicans had a favorable view, but only twenty-four per cent of Democrats did.
Anyone who has been outraged by recent Court decisions may find this erosion of legitimacy to be rather heartening. Maybe people are finally starting to view the Justices as the politicians they have always been. But, for now, they have an unusual role in our political life: they’re an old-fashioned ruling élite in an anti-élitist age. Perhaps this helps explain the upbeat sensibility of “Advisory Opinions”: Isgur and French try to reassure us that smart people are in charge, and that our political system is, in fact, more stable, and more normal, than it seems. There are, of course, abnormalities in every era, and Isgur acknowledges that ours may be unusually abnormal. “January 6th is a horrible outlier to my thesis—like, my life thesis,” she told me. The invasion of the Capitol seemed like proof that American politics was being distorted by something deeper than mere partisan wrangling. But, on most days since then, it has been possible to read the heated but sober arguments emanating from the Supreme Court and feel almost as if the whole thing had never happened.