Leah Litman on SCOTUS: “Conservative Grievance, Fringe Theories & Bad Vibes”

BIANNA GOLODRYGA, ANCHOR: The U.S. Supreme Court holds the most power in the nation’s federal judiciary. But over the last few years, a series of decisions has led University of Michigan Law School Professor Leah Litman to believe that the court is no longer practicing law, but running on personal biases instead. She details this in her new book, “Lawless,” and joins Michel Martin to discuss.

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MICHEL MARTIN, CONTRIBUTOR: Thanks, Bianna. Leah Litman, thank you so much for joining us.

LEAH LITMAN, AUTHOR “LAWLESS” AND HOST, “STRICT SCRUTINY”: Thanks for having me.

MARTIN: OK. So, your new book, the title lays it out there, it’s titled “Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.” And what you’re saying here is that these things are more relevant than constitutional reasoning. So, the first thing I wanted to ask you is, how do you know this?

LITMAN: How do I know this? A combination of factors. One is I clerked on the Supreme Court in 2011 to 2012 when the court heard the constitutional challenge to the Affordable Care Act and came within one vote of striking down that major law that would have provided and did provide so many people with access to health insurance. So, that definitely informed my thinking. But second and third, I follow the Supreme Court closely, both as a litigator and a professor and I also co-host a podcast about the Supreme Court, and we follow what the court is up to day in, day out every week. So, I have been reading their opinions every day for over six years now. And then, I also listen to their oral arguments. And sometimes during the oral arguments is when they really give their unvarnished take on what is moving them to decide these cases in this way.

MARTIN: So, would it be fair to say, look, Anthony Kennedy, for people who may remember, was a conservative, but he was also understood to be a swing vote. Could we surmise from that that is in part your — what informs your thinking about the way cases should be decided? That you felt that because he was a swing vote, that he was fairly weighing the evidence on both sides?

LITMAN: I think Justice Kennedy was fairly depicted as a swing vote because he didn’t always vote with the Republican justices and he didn’t always vote with the Democratic justices. That being said, he had very firm views on a range of topics, from campaign finance and the First amendment to LGBT equality. I do think that that model of a justice who doesn’t always vote with their ideological or political counterparts is something of a bygone era. Because in an era of partisan polarization, it’s just so much easier for the parties to find people whose views will reliably track those of the parties that appointed them.

MARTIN: Is there anybody on the court now who you think even approximates the role that Justice Kennedy played?

LITMAN: I don’t think there is anyone on the court like Justice Kennedy. That isn’t to say that I think all of the justices are doing something untoward or improper. The Democratic appointees, for example, while they regularly vote together in these ideologically salient, high profile cases, are not in the habit of reaching decisions that, for example, make it harder for people to participate in democracy or dismantle a key part of the Voting Rights Act on the basis of a misleading ellipsis as the Republican justices have done.

MARTIN: And why do you say conservative grievance, fringe theories, and bad vibes? So, why don’t we start with bad vibes. So, in a chapter focused on LGBTQ equality, you argue that the court’s reasoning is more often granted in intuition and partisanship than the law. So, could you just say more about why you say that?

LITMAN: Sure. So, vibes, I just mean to draw a pointed contrast with law to suggest they are basing the law on their feelings or political talking points, or the zeitgeist of the party. Just to give one example of that, in the Obergefell versus Hodges decision, recognizing marriage equality, Justice Alito wrote a dissent joined by other Republican appointees in which he described the court’s decision, recognizing marriage equality as facilitating the marginalization of religious and social conservatives who have traditional views about marriage and equated that marginalization saying it recalled the harsh treatment of gays and lesbians in the past. So, he is treating marriage equality as basically the same as the harsh treatment of gays, lesbians, and bisexuals throughout the 1900 and early 2000. That is a fairly warped worldview that definitely reflects some feelings rather than reality.

MARTIN: What’s an example of fringe theories that you say have informed too many of the court’s decisions?

LITMAN: I would give as one example of the unitary executive theory, this idea that was pushed by the Reagan administration and it maintains that the president and the president alone possesses all of the executive power and so much power, he has to have the ability to control and supervise everyone in the executive branch. Based on that idea, the Republican justices recently allowed Donald Trump to fire people in violation of federal law, commissioners on the National Labor Relations Board and the Merit Service Protections Board. So, it’s that idea I think that has expanded presidential power so much that the president is now able to act in violation of federal laws.

MARTIN: And what about conservative grievances? Conservative small C conservative has generally been understood to mean, you know, a preference for limited government over expansive government, a preference for, say, minimal intrusion into personal liberties as opposed to sort of a more maximalist view. You use the word grievances. So, tell me what you see as the difference between, say, a conservative grievance and conservative ideology, and how do you think that’s playing out?

LITMAN: Yes. So, I agree that small C conservative generally refers to limited government not intruding on people’s rights. I don’t think that describes the modern court. They have been willing to make rather rapid and significant changes in the law in ways that I don’t think can be described as small C conservative. So, by conservative grievance, I mean, this fixation on the idea that the core constituency of the modern Republican Party, social and religious conservatives, as well as Republican political elites, that they are the victims, they are the ones that are put upon. So, it’s not the teenager in Texas who is victimized by the abortion restriction that prevents her from obtaining healthcare, it is instead the religious conservative man who is now forced to obey and abide by civil rights laws that prevent him from discriminating on the basis of sexual orientation or gender identity, that he is the one victimized. That’s the idea of conservative grievance that I think animates so much of the law today.

MARTIN: You know, one of the most closely watched cases this term ended in this surprise deadlock. This just happened just last week. The Supreme Court declined to allow Oklahoma to open a publicly funded Catholic charter school that had planned to, I guess, infuse religious teachings or used religious teachings in all aspects of its curriculum. There was a 4-4 split in this case because — well, we don’t know how Justice Amy Coney Barrett would’ve voted. We can speculate, but she recused herself. How do you look at that decision?

LITMAN: So, I think this decision is absolutely stunning in what it suggests for at least four Republican justices are willing to do. Had they said the state has to create this religious, public charter school, what they would be saying is the Constitution requires states to create some religious public schools. Think about that for a second. We used to think the constitution prohibited states from operating religious public schools. This is such a shift and major transformation in the law. You know, there used to be this principle of separation of church and state. There is an establishment clause in the Constitution that is supposed to prohibit governments from establishing religions, from teaching religious doctrine as truth. And yet, four Republican justices were willing to say they thought that the establishment clause, the separation of church and state, was a kind of ranked discrimination against religious conservatives who wanted to operate a religious public school. It’s a perfect example of how this conservative grievance mindset is cannibalizing the law. Now, justice Barrett, there are many other cases that are percolating in other courts that raise this same question. So, she didn’t have to participate in this case in order to eventually decide this question, which I imagine will return to the Supreme Court in the next few years.

MARTIN: One of the things that you write in your book is that you write about the danger of treating the Supreme Court as a neutral guardian of the Constitution. You write that the Supreme Court is extremely powerful, it’s also poorly understood, and the combination makes the court dangerous. Why dangerous?

LITMAN: People are not paying enough attention to what the Supreme Court is doing. And so, that leads them to misunderstand who they should hold responsible for various decisions that our government makes. If you look at recent polling, for example, some voters actually held Joe Biden responsible for the overruling of Roe versus Wade because that happened during his administration. Other voters didn’t vote for the Democratic candidate in the 2024 election because Joe Biden had not done one of the things he said he would do, namely offer student debt relief. He tried to, but the Supreme Court, six Republican justices, prevented him from doing so. So, I think the more people understand about our government, the better informed they will be about who to hold responsible and how they should vote in different elections.

MARTIN: I think that some people may be listening to our conversation and might think, was it ever different? Was it ever different? That these — maybe these folks they come from — everybody comes from a certain context. They have beliefs that they grow up with, that they adopt. Was it really ever different?

LITMAN: So, I think the court has always been political in the sense that people’s lived experiences and worldview probably informed their judging. Also, the court has always affected the nature of our government and how it operated. But I think the court has become partisan in a way that it hasn’t always been. That is the courts justices probably always reflected some ideology or worldview in their decisions. But what is different is the extent to which the justices now divide along partisan lines with the Republican justices doing one thing and Democratic justices doing another. You add to that the extent to which the justices are now reaching decisions that cater to and are supported by an increasingly narrow segment of society, and I think that also differentiates what the court is doing today from what they have done in the past.

MARTIN: Well say, say more about that. Like, why you say that? Just because in terms of partisanship, could it be that that’s what our lens is now that the politics of the country are so partisan. Could it be us that’s more partisan as opposed to them?

LITMAN: So I think we are all probably a little bit more partisan, but the reason why I think their decisions are attributable to partisanship is these are views that are put in the Republican party platform that are championed by Republican political elites. So the Republican party in 2016 ran on a platform in which they promised to appoint justices who would overrule Roe versus Wade, as well as Obergefell versus Hodges, the marriage equality decision. Also, when some Republican representatives attempted to introduce legislation that would have reduced the amount of money in politics, then Republican majority or minority leader Mitch McConnell chastised them saying, look, we owe a lot of our power and our seats to a lot of money in politics. So I think these are views of the Republican party that the party has come to embrace that the Republican justices have now all of a sudden discovered are in the Constitution.

MARTIN: We also see that many of these decisions are deeply unpopular from a public opinion standpoint.
I mean, the Dobbs decision overturning the nationwide legal access to abortion is deeply unpopular, as evidenced by the fact that even in conservative leaning states, when voters have had the opportunity to vote on this issue, they have consistently voted to expand or remain open or continue to have access to abortion rights. So do they care? Do they care about the fact that most people don’t agree with them?

LITMAN: No, I don’t think so. The conservative legal movement has created this system that provides them affirmation for reaching decisions that are more broadly unpopular. So they still receive some positive affirmation. But second, I think that also speaks to how far removed the Supreme Court has become from the people and our democratic institutions. As the Senate has become less representative, as it’s possible for the President to win the presidency without winning the popular vote. As partisan gerrymandering has made the House less representative, the Supreme Court just has come to care less about public opinion because the institutions that could provide some check on the Supreme Court are themselves less responsive to public opinion.

MARTIN: Is there an argument to be made here? Well, this is in fact an argument that Mitch McConnell made, right, who was the longtime Senate Republican leader. His argument, and I think the argument that other people have, is that elections have consequences. And that if the Republicans successfully made the court a voting issue, that’s how democracy works. And that liberals could have done that and they chose not to, for whatever reason, or at least weren’t as successful at it. What would you say to that?

LITMAN: Two things. One is I actually do think Democrats and progressives need to do a better job of injecting the court into their political life and getting voters to care more about the court on the left as voters on the right do. But second is if elections have consequences, then I think all elections have consequences. And if I remember correctly, when Justice Scalia passed away in 2016, President Barack Obama was still president. And so, as a president, he is entitled to have nominations and have those nominees considered. And so, it was only some elections that Mitch McConnell seemed to think have consequences.

MARTIN: There are those who would argue that the reason you’ve written this damning indictment of the way the court operates is that you don’t agree with their decisions, and that if you did agree with their decisions, then perhaps you’d see it differently. What would you say to that?

LITMAN: I think in the book I am able to point to some pretty objective shenanigans that the justices have used in order to reach the decisions that they did. Just to take one example, in Shelby County V Holder, the pretty catastrophic decision to end the pre-clearance process of the Voting Rights Act, that was the part of the Voting Rights Act that required certain states with especially bad histories of racial discrimination to obtain permission from the federal government before changing their voting laws or policies. Justice Roberts’ majority opinion relied on a previous case that had said the exact opposite of what he said it meant. He inserted a misleading ellipsis. He said, the Voting Rights Act violates this doctrine of equal sovereignty, which doesn’t prevent Congress from treating the states differently on the basis of newly developed or later developed conditions. The problem is, is that the full quote said, that doctrine does not apply beyond the terms on which a state is admitted to the union. So, he twisted this doctrine, which previously had only governed what Congress could offer as conditions or a state’s admission to the Union as something that restricted Congress well after states have been admitted to the union.

MARTIN: What’s interesting is that increasingly we find that conservative legal jurists have raised objections to some of these cases, and also specifically when it comes to the question of presidential power. I mean, I think a lot of conservative jurists have been particularly vocal around their concerns about the way the Supreme Court has abed a maximalist view of presidential power, and I wonder how you think that’s playing out.

LITMAN: I just worry that those individuals are being written off as RINOs, Republicans in name only. The Supreme Court recently had an opportunity to cut back on their immunity decision and reign in their expansive views on presidential power when Donald Trump asked the court for permission to fire the NLRB, National Labor Relations Board, and another commissioner in violation of federal law. What did the Supreme Court do? They doubled down on the unitary executive theory and said, yes, Donald Trump basically gets to preemptively overrule our prior case that had upheld the existence of independent agencies. So, it doesn’t look like they have any buyer’s remorse or that they are being influenced by what the administration is doing with the expansive vision of presidential power or the criticism they have faced for enabling it.

MARTIN: Before I let you go, one of the things that’s been really interesting to me over the course of Donald Trump’s rise to political power has been how he has upended, particularly on the conservative side, a number of sort of public facing individuals, thinkers, you know, members of Congress who’ve resigned saying, look, I can’t function in this party with this person as the head of it. There are like substacks and newsletters being written by people who are lifelong conservatives who just say their goal now is to call attention to what they see as the abuses of this ecosystem, as you put it. And I just was wondering about you, I mean, as a person who clerked for Justice Kennedy, is there anything about this current era that has kind of changed you in some way or changed the way you think about things?

LITMAN: I think it has changed the extent to which I feel obligated to make myself heard and make my voice heard, and my willingness to be more openly critical. I have no doubt that the things I have written probably render me unconformable for various offices, and yet, I still feel compelled to share them. I think it has also led me to rethink the way our institutions are structured and whether we should be revisiting bigger questions like the Supreme Court’s authority to choose their own cases. Seeing the extent to which the court has gone astray and accumulated so much power over time has led me to think more deeply about the way things are and what we might have to change.

MARTIN: Leah Litman, thank you so much for speaking with us.

LITMAN: Thank you for having me.