In Donald Trump’s second term, a familiar pattern is emerging: the president does something illegal, someone sues to stop him, and eventually the Supreme Court decides the case. From which agencies Trump can effectively shutter, to which agency heads he can depose, to whether or not he can disappear people into a Salvadoran gulag or deny infants birthright citizenship, the buck stops with the nine justices on the nation’s highest court.
“It’s misleading and obscuring… to paint the court in that light.”
But that court is not acting…normally. The court’s GOP-appointed 6-3 majority is creating a new legal reality for the country as it determines that the Republican Party’s rightwing priorities are also the Constitution’s preferences. Just in the last few years, it has ended the right to abortion, greenlit discrimination against LGBTQ people, eviscerated the separation of church and state, turned back the clock on voting rights, blasted away gun control laws and regulations, let the firehose of billionaire money take over American elections, gut protections for voting rights, and declared open season on federal regulations big business doesn’t like. And that’s not to mention the court’s willingness to personally deliver wins to Trump, including the grant of criminal immunity for official acts—a decision that redefined the presidency just in time for a reelected Trump to take advantage of this new freedom to crime.
In a new book, Leah Litman, a constitutional law professor at the University of Michigan and co-host of the legal podcast “Strict Scrutiny,” lays out how the court has gone awry. Litman believes that the court’s recent jurisprudence is driven not by the law, but by the resentments of its GOP appointees. Hence the book’s title: Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.
“Political culture imagines that the Supreme Court safeguards the Constitution, when in reality it is chipping away at the constitutional rights of historically marginalized groups,” Litman writes, concluding her chapter on the court’s patriarchy-fueled war on abortion and women’s rights. “The court is allowing feelings and politics to trump the law and sometimes just be the law.”
With humor and a healthy dose of pop culture, Litman’s book is a layman’s guide to the court’s current jurisprudence: a court that is not protecting minority rights, democracy, or workers but rather has sided with rich and reactionary elements of American society. Litman pulls in history as well as the logic of recent opinions to argue that “the Court has steadily descended into no law, and just vibes.”
Litman’s book is an accessible primer on our current moment: How did we get to the court we have, and what happens when a court already dedicated to rolling back the clock on democracy becomes one of the few checks against Trump’s anti-democratic rampage. We spoke about her book, the Court, and how it is responding to the unprecedented challenges of Trump’s second term.
My biggest takeaway from the book was that it’s an attempt to take the legal gloss off of the court and show how they’re basically political actors. You make the point in the introduction that it’s not a coincidence that when you get a majority of Republican appointees, then Republican policies become the legally permissible policies. What is the biggest thing that you would have readers take from the book?
I think that is definitely part, trying to remove some of the veneer that is on the Supreme Court—not only to illustrate how their rulings track the political talking points and larger political movement of the Republican Party over the last half century, but also to illustrate how the court works: how they pick cases, how they decide cases, and the amount of power they have to set their own agenda and decide a huge swath of issues that are super important.
You have a chapter on the court’s history on voting rights. In the 2019 case Rucho v Common Cause, Chief Justice John Roberts wrote an opinion saying that federal courts can’t decide partisan gerrymandering disputes. You point out that if you can gerrymander in order to protect your political party, then the logical end point is the end of democracy, because we aren’t doing the whole voters-pick-their-representatives thing anymore. It’s a good example of how the court appears hostile to the basic functions of how democracy works. And it really seems simpatico with Donald Trump, who also doesn’t really like how democracy works.
I was actually going to start my answer there, because it’s, in a lot of ways, easiest to see it articulated by Donald Trump, or Republican senators who say we’re a republic, not a democracy, or when Donald Trump says “We’ve all been victimized,” referring to the outcome of a legitimate presidential election. Of course, those are very pointed, clear statements that they’re just not that into democracy when democracy doesn’t get them what they want.
You can see the same antipathy toward democracy in the rulings of the Republican justices on the Supreme Court, including in Rucho v. Common Cause, where they just think, “Yeah, it’s totally fine for politicians to write a set of rules that give themselves power even when they don’t win a majority of the votes.” That was, in a lot of ways, a natural outgrowth of their antipathy toward enforcing constitutional protections for voting rights, as far as allowing states to adopt voter identification laws or other measures that make it harder to participate in democracy and therefore easier for politicians to, again, pick their voters and disenfranchise some number of people.
I also saw that thread in the court’s immunity ruling from last summer, where they just did not seem bothered by the prospect that an outgoing president would try to interfere with the peaceful transition of power and attempt to launch an insurrection at the Capitol. To them, the real concern was the prosecution of that precedent—as if that entire fiasco, the real problem was individuals suffering from Trump derangement syndrome, not the underlying threat to democracy. As to why they think this? I think the common thread across all the chapters [of the book] is this notion of conservative grievance and entitlement. They feel like they are the victims. And they honestly feel like they deserve political power, and they are entitled to it, and no amount of evidence, no number of votes, seems to be enough to persuade them otherwise.
You write that in the 1930s, the court had one of those rare moments when it changed course. It had been striking down New Deal laws to fight the Great Depression, a continuation of its Gilded Era cases in which it continually blocked laws that helped working people. Finally, FDR threatened to add justices to the court. In response, the court started upholding New Deal legislation. I imagine Brown v Board of Education is another such course correction. Are there any more recent ones, or ones that you think might be coming?
I’m not sure I can point to other examples similar to the 1930s one, at least with respect to this court. One possibility is what the court is going to say about the constitutionality of multi-member commissions, because that’s an instance where it seems like they want to allow the president to fire members of the Federal Trade Commission, the National Labor Relations Board. My guess is some of them will get cold feet about allowing the president to fire the chairman of the Federal Reserve Board and thereby actually cause another Great Depression or recession. So I don’t know exactly what effect that might have on their rulings on presidential power. It remains to be seen.
They haven’t had any chance to really revisit the immunity decision from last summer, Trump v. United States. But I could see them being like, ‘Oops, we gave the president too much power.‘
Implications are staring them in the face. And yet I’m not holding out hope that there is going to be a clear acknowledgement, admission of wrongdoing, or course correction, for two reasons. One is, unlike the 1930s when the court did actually reverse course, now we have such a polarized media ecosystem where you have Republican politicians, Republican commentators and whatnot, basically creating this alternative universe where they’re telling the Republican justices they’re doing awesome, and their rulings are great, and the real problems are everybody else and not them. That does diminish one of the ways to get justices to admit their mistake.
The second is they have had a few opportunities to acknowledge the administration’s misdeeds, their efforts to evade court orders, their efforts to avoid any prospect of oversight, and kind of tiptoed around the edges, reached some compromise rulings, but not actually acknowledging that this is an administration that’s acting like they are just not subject to the law.
I’m fascinated by this question of power. To jump back into the book, in your final chapter, you talk about the anti-regulation, anti-administrative state agenda of the court today. You write that they’re so busy tearing down regulations but “there’s no attempt to say what the government should look like or why.” I’m curious if you have an idea yourself of what they are going for. Trump is putting forward a very clear agenda of dramatically reducing government. Is that what the court’s GOP-appointees have in mind?
What the President has in mind seems to be something like: No government efforts to basically regulate in the public interest or for people with less power. So, no helping students get access to education, no helping individuals breathe clean air, no helping individuals get health insurance. None of those regulations of corporate interests that actually reduce the power and money of the already powerful.
Instead, the interventions are directed against either their perceived enemies or against the less powerful. Using the law to basically attack institutions that are trying to protect transgender students, using the law to go after law firms that had the audacity to try to hold Donald Trump accountable under the law previously. It’s a very dual state, where, on one hand, it is completely anemic whenever the general public or someone not in the relevant circle needs something, but they preserve these weapons—in particular, federal funding, federal criminal law enforcement, and federal immigration powers—to police disfavored populations.
As to whether this is the vision that John Roberts and others have in mind, my guess is it probably matches Sam Alito’s vision at a minimum. Neil Gorsuch, he’s more of a libertarian, so I’m not sure it totally tracks his. And the others are probably of the view that presidents just get to decide. They’re so committed to this idea that presidents are the singularly important entity under the Constitution, all of the executive power is vested in them that they just get to decide how to deploy the vast sweeping apparatus of the federal executive branch.
A big upcoming case is birthright citizenship. I was surprised they are taking this case so quickly. And to be clear, they’re not technically taking the constitutional issue of birthright citizenship in a few days. They’re considering whether to allow the government to limit birthright citizenship while the question is litigated. What do you make of this decision to hear this piece of the case now?
The court drew out the initial briefing, scheduled it for argument in May. Honestly, a part of me wonders if they have structured the timing so that they will issue this perceived ruling against the Trump administration at the same time they are probably going to be handing him substantial victories or moving the law in deeply conservative directions in other important areas like voting rights, LGBT equality, religious public schools. Kind of get some cover, to basically give them some favorable press and some offsetting press against the other things they are likely to do this term.
I had that thought as well. And since it’s not even the merits, they could, a year later, limit birthright citizenship on the merits.
You’re writing about the court, but you’re not a full outsider, because you did clerk on the court for Justice Anthony Kennedy. My sense of people that are brought into the institution is that they have a reverence and defense of the institution. Your book is literally called Lawless. Can you share if your experience being part of the court for a year informed this book, or if it is unrelated to that experience.
I don’t think they’re entirely unrelated. I did not emerge from my clerkship with a lot of reverence for the court or a desire to be a Supreme Court practitioner and in those circles. I understand the desire of people who are at the court, within the court, around the court, to see it as a place where legal arguments have a chance; it’s not politicized, they are doing some good. There are some cases in which I think that’s true. But I just think it’s misleading and obscuring more than it should to paint the court in that light and to allow it to give that impression.
You’re writing about a court where you’re at least somewhat critical of their efforts over 200 years to increase their own power. And you explain how this court is issuing opinions based on their own grievances, rather than what the law dictates. Then the book lands in this moment where Trump is threatening the rule of law and it’s incredibly important for the administration to listen to the courts. How do you balance those two things?
I hope my book is needed context for people who are thinking about how to respond to this current moment or what to take away from it. We should call on the courts to enforce the law, and expect, in some ways, that they will do so. If we just give up the game and say “It’s hopeless, they’re going to do whatever they want,” we kind of eliminate the capital or costs of them doing even more bad things.
Part of me looks back on the first Trump administration and thinks part of the problem, or the flaw, is people on the left took to defending institutions when those institutions were deeply flawed and just were going to be incapable of actually addressing the threat to democracy, the rule of law, that this form of Trumpism and autocracy posed. Defending the Supreme Court during the first Trump administration, defending like the institution of Congress during the first Trump administration—I just think those were deeply misguided on some level. We should be able to recognize the flaws in our institutions that led us to the moment we are in, and not let any of them escape that examination or accountability.
In your book, every chapter focuses on a grievance the justices are working out. And it’s the same stew of grievances that applies to Trump’s movement: a vindictive patriarchy, not liking minorities, against voting rights, floated by wealthy interests. It’s all part of the same thing. It’s just really complicated to think about one of these institutions stopping the other, because they’re marinating in the same stuff.
That’s exactly right. To show the ways in which the court is on board with the ideology that the Trump administration is expressing, even if it’s doing so in more sanitized language.
I love my dog. She’s trained to go to the bathroom outside. But just because she clears that low bar doesn’t mean I think she should be in charge of the United States government. And similarly, if the Republican-controlled court can and does recognize that Donald Trump cannot declare himself king for all eternity, I am unwilling to say then they should be our rulers as well.
