As challenging as it might feel to pay attention to the U.S. Supreme Court right now, the time is ripe for an approachable book about its evolution into a conservative-controlled institution. The Court is not exempt from the problem of low trust in government — public confidence in the Court is near a historic low. University of Michigan law professor Leah Litman’s new book “Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes” offers one explanation for why this might be. Litman tells a sobering story of how the Court came to place greater import on conservative political goals than on service to the American people. And more impressively, the book manages not to be too disheartening to read.
For transparency’s sake, I should confess that I was already a fan of Litman before I opened her book. She co-hosts a legal news podcast called “Strict Scrutiny,” which I am an emphatic enjoyer of, although the short walk to my college classes doesn’t offer the same listening opportunity my rural high school commute did. Having found her podcast thoughtful, I hoped that her book would provide the same accessible communication about the Court.
Writing accessible discourse about the Supreme Court is no small task, and overall, I think Litman rises to the occasion. She does an incredible job of providing thorough context without being condescending. Her playfulness certainly helps; maybe it’s because I am already accustomed to hearing her sarcastic asides on the radio, but her frank and informal commentary flows smoothly in between sentences explaining legal doctrine without feeling trite or forced.
For all of her criticisms of the Court’s reliance on “vibes” in its decision-making, Litman’s book has plenty of good vibes of its own. I appreciated many of them, such as her tart commentary after quoting a 1970’s memo claiming that “…the American business executive is truly the ‘forgotten man.’” Litman replies, “I get it: being a rich white man is so hard!”
Parts of Litman’s approach, however, gave me pause. The book is much more a critique of conservative jurisprudence than a defense of progressive decisions. Like her podcast, her book largely assumes that anyone engaging with it likely shares her view of the Court. She focuses much more on constructing a narrative of how the Court reached its current state than litigating points of contention. Her discourse around the overturning of Roe v. Wade, for example, focuses on how “The justices in Dobbs made a choice about when, whether, and to what extent they should discount practices that existed around the time the Constitution was ratified.”
I wholeheartedly agree. At the same time, I would have liked to hear a little more from her about where progressive cases perhaps contained vulnerabilities that made them easier to sweep aside than they could have been. I would have also appreciated discourse about how pre-Dobbs abortion opinions might have been constructed so as not to give the Court such an easy inroad to make those choices. The execution of Roe has received plenty of criticism from the left as well as the right — even Justice Ruth Bader Ginsburg was critical of the 1973 decision.
Given her belief that “…the Court has descended into no law, and just vibes,” Litman might reply that the vibes-based court largely overturns whatever they dislike, whether they are given a legitimate opening or not. Be that as it may, I think it still matters that progressive arguments are as sound as they can be. Last semester, I enrolled in a required freshman writing class — on the topic “Personhood in the U.S. Constitution.” The course left me with the strong sense that there is a lot of nuance and difficulty to explore in the reasoning behind many decisions, even when I find their outcomes to be unequivocally positive.
That said, Leah Litman is not a Supreme Court justice. Drawing on vibes is her prerogative, as is knowing her audience. She isn’t here to dispute; she is essentially giving a debrief. This book is for anyone concerned about the Court’s recent actions and asking, “How grave is the situation, and how did we end up here?” This is a question Litman answers decisively — but with nuance — and with enough playful asides and pop culture references to make the read enjoyable. The title of the chapter on LGBT rights, called “You Can’t Sit with Us!”, particularly amused me.
Does she occasionally over-explain her pop-culture references? Maybe. The pre-established fact that the voting rights chapter was themed “Game of Thrones” would have clarified the context of “You know nothing, John Roberts,” just fine without her explanatory parenthetical aside, even for a culturally ignorant reader like me. But are her pop-culture references fun as heck? Absolutely. They lighten the mood, and they make her book a delight to read despite its bleak subject matter.
All in all, Litman tells the story of a Court that has come to stand in stark contrast to the ideal it should embody.
In Federalist No. 78, Alexander Hamilton depicted the judiciary as a reactive institution, and therefore, the least threatening branch of government: “…the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution… It may truly be said to have neither FORCE nor WILL, but merely judgment.”
Judgement, “Lawless” makes clear, can do quite a lot. However, even more significant is Litman’s contention that the judiciary is not solely reactive, and it is not without a political agenda of its own. In response to the idea of a politically impartial Court, she writes: “Law gives people (including lawyers and also judges) a tool and a language to accomplish their goals. These goals can be noble. They can also be ignoble, such as when a political party with fringe views tries to insulate itself from having to answer to voters or democracy.” The conservative justices on the Court, she argues, have been strategically appointed by conservative politicians. She also notes that because the justices are not directly beholden to the people through elections, they are well-situated to enact the more extreme tenets of conservatism.
Overall, “Lawless” is a thorough examination of our Supreme Court. Though it is likely too unapologetically — and sassily — left-leaning to persuade conservative readers, its accessibility and playfulness give it reach to an audience that is progressive but may not be paying full attention to the Court. Litman’s book was a joy to read, and I enthusiastically recommend that concerned, Court-curious citizens pick it up.
