Supreme Court justices claim their rulings are based on originalism, textualism or other lofty sounding legal theories. But a new book claims the court’s conservative majority decides cases with “a mishmash of law, vibes, fantasy, facts and ‘alternative facts.’”
“At the very moment Republicans gained a super-majority on the Supreme Court in 2020, the court suddenly realized that the Constitution required the country to adopt the Republican Party’s platform on abortion, voting, industry regulation, campaign finance and a bunch of other stuff, too,” writes attorney and law professor Leah Litman in Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.
Republicans have a poor record of winning the popular vote for president, but Republican presidents have appointed 14 of the 19 new justices from 1974 to 2024. Now, the justices are returning the favor.
Leah Litman
“A majority of the justices … are convinced that Republicans are being treated unfairly by the increasingly diverse society that no longer shares their views,” Litman writes.
Leah Litman is a professor of law at the University of Michigan and a former Supreme Court clerk. She received the Ruth Bader Ginsburg Award for her “scholarly excellence” from the American Constitution Society and has been published in top law reviews.
Her book arrives amid historic declines in confidence in the high court, with half of Americans telling Gallup they have no or little confidence in its rulings. Litman is an affable guide who uses pop culture references to ease readers through a complex historical tour of legal history and theories.
In four big chapters (some packed with big 300-word paragraphs), Litman trains her fire on the court’s most anti-democratic tendencies:
- Promoting patriarchy by curtailing women’s rights
- Promoting “family values” by ruling that discrimination against LGBTQ people is a constitutional right
- Promoting minority party rule by the GOP by restricting voting rights
- Allowing the mega rich to have outsized influence over politics
Promoting patriarchy has a long history. The Supreme Court denied women the right to vote until Congress passed the 19th Amendment in 1919. A century later, the same anti-women agenda inspired the court’s historic ruling overturning Roe v Wade. Litman says such decisions are part of a bigger project: curtailing women’s rights.
For decades, conservative justices have supported their anti-women rulings with a legal theory called originalism, the view that “a group possesses rights today only if the group possessed those rights in laws that were enacted in the 1700s or 1800s.”
Since women, gays and Blacks lacked rights back then, originalist justices aren’t inclined to grant them rights today, she explains. Thus, originalism provides a surefire way to slow unwanted social change.
Originalism and other theories “may generate an impression that law is totally different from politics or ideology,” Litman writes, but the reality is that “the Republican Party coalesced around originalism and cultivated the theory as a way to restore some of what they felt had been lost which included the patriarchy.”
Discrimination against LGBTQ people isn’t really discrimination according to the current court. Litman shows how the court’s conservative justices work with groups like the powerhouse Christian nonprofit Alliance Defending Freedom in order to “generate cases to steer the law in their preferred direction.”
The best example is 303 Creative v. Elenis, in which a conservative Christian website designer claimed Colorado’s anti-discrimination law required her to offer websites for same-sex weddings. No one had ever asked the designer to create such a website, but the court took the case anyway.
“Prohibiting discrimination against LGBT persons is (supposedly) discrimination against the religious and social conservatives who want to engage in it,” Litman writes. “The law now reflects a persecution complex that imagines religious and social conservatives are the victims of in a society that no longer shares their views.”
“The court’s grip on voting rights” is slowly strangling democracy,” Litman claims. She points to 2013, when the court struck down key parts of the Voting Rights Act of 1965, a centerpiece of Civil Rights legislation designed to reverse decades of suppression of Black voters.
The ruling in the Shelby County case sent a clear message, she contends. Within 24 hours of the decision, Alabama moved to limit Black votes in the state by resurrecting a voter ID bill and closing motor vehicle offices where voters could obtain such IDs. Within six years of the decision, Southern states closed more than 1,000 polling places.
A 2019 ruling made it easier for states to limit minority voting by gerrymandering districts. Taken together, the court’s rulings on voting mean that “somewhere between five and 10 House seats in the 2022 election were safe Republican seats rather than competitive” or Democratic seats. Coincidentally, in 2022, Republicans won control of the House of Representatives by five seats.
Supreme Court justices “are allowing the mega-rich to have outsized influence over politics and unparalleled access to political leaders, including the justices themselves,” Litman says.
Citizens United was the 2010 case the court used to overrule previous decisions and strike down the federal prohibition on corporate election expenditures. The result has been a flood of untraceable dark money contributions in political races, followed by an increase in GOP state legislators thanks to those contributions, she says.
The court’s conclusion: “Access to power holders is never corrupt, even when it is purchased, and that the wealthy are entitled to use their money to secure access to political officials.
Litman says she wrote this bracing and sometimes depressing book to encourage more Americans to recognize the importance of the court and vote accordingly.
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