Background reading:

• Get Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes, by Leah Litman

Transcript:

00:00:04 Michele Goodwin: 

Welcome to 15 Minutes of Feminism, part of our On The Issues with Michele Goodwin at our Ms. magazine platform. As you know, we are a show that reports, rebels, and we always tell it just as it is, and in this terrific episode, I’m joined by professor Leah Litman, who is the cohost of the exemplary podcast called Strict Scrutiny. We love our time with those hosts, and in this episode we’re talking about Leah’s new book called Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. So, sit back and take a listen to this great episode with Professor Leah Litman.

Leah, it’s always a pleasure to be with you. You’re a great friend and forever a colleague, even if we’re at different academic institutions. You’ve written a really powerful book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. I love the title. 

00:01:26 Leah Litman:
Took a while to workshop it. 

00:01:29 Michele Goodwin:
I mean I get this great work but tell us a little bit about this title.

00:01:34 Leah Litman:
Yeah. So, I have a podcast, Strict Scrutiny, and we cover the Supreme Court, and in the course of covering the Supreme Court and all of the craziness that those guys do, one time I remarked on one of their opinions. It was no law, just vibes. And so, really the conceit and origin for the book was how the Republican justices aren’t doing law and they are instead running on vibes. 

And so, from there it kind of crystallized into expanding—well, what are the vibes they’re running on?—and that’s the conservative grievance element, and then “lawless” seemed like a very short punchy way of describing the thing the court isn’t doing that most people hope or expect that they are.

00:02:17 Michele Goodwin:
You know, this book it’s so accessible, right. So, everybody should run out and get a copy because what you’ve done is to translate some very high ideas to ways in which everybody’s concerned about the way in which the informed and the lesser informed American public and non-American public are concerned. All eyes, you know, not to be navel gazing but eyes are on the United States given the gravity of what’s been taking shape, just even in these early months of the second Trump administration.

And so, of the book, it’s really accessible. There are five chapters and I actually want us to start not with Chapter One but Chapter Four, which is “There’s Always Money in America,” which is what many people come to believe and here’s something that I want to just read from the beginning of chapter four. “The Republican justices,” you write, “have repeatedly shown that they are more than a little out of touch, both with reality and other people.” You are hilarious. For example, you note that in June 2023, ProPublica was preparing to run a story on Justice Samuel Alito’s luxury Alaskan vacation with hedge fund billionaire and Republican donor Paul Singer and that Alito’s trip featured a free ride in Singer’s private jet and a one-thousand-dollar bottle of wine.

Now at this point, some folks from the Federalist Society might be saying, “you’re petty Leah. You are so petty to be pulling out the thousand-dollar bottle of wine,” but there is a reason why you’re talking about this matter of money and the court and the justices and what that ProPublica story is all about. Can you shed light on that?

00:04:11 Leah Litman:
Yeah. So, I think the story nicely encapsulates several things that are happening with the Supreme Court. One is just the rich sense of entitlement that some of the justices have because of course, as ProPublica was getting ready to run this story, Justice Alito runs off to the opinion pages of the Wall Street Journal to protest that they are being unfair to him, and the idea that it is unfair to a powerful public political official to report on some of the gifts and largesse being bestowed on them by people who are basically purchasing access to those officials I think should be striking to most people. 

That is a form of accountability. That is not some unfair treatment, a hit piece. So, that’s one aspect of it. The second is just the utter ridiculousness of some of his response. So, you noted that there had been reports that the trip involved a $1,000 bottle of wine and Justice Alito literally says “if there was wine, it certainly wasn’t a $1,000 bottle of wine,” as if, right, like it’s an insult to him to be misdescribing the value of the wine and he would know whether it was a $1,000 bottle of wine, and you poors just wouldn’t.

00:05:29 Michele Goodwin:
It doesn’t signify well in one direction or the other, right? It doesn’t signify well in the “I know a $10,000 bottle of wine and this certainly didn’t add up” and it doesn’t signify in another direction either. 

00:05:44 Leah Litman:
No. I mean like if you’re getting a free private jet trip and a free $100 bottle of wine that’s still bad too, Justice Alito. And so, just the silliness of the response, the pettiness of the response, and how it shows, I think, nicely this cloistered universe that there the Republican justices have come to occupy where they are insulated from the worst consequences of their decisions because they have these people propping up this false reality almost around them where they’re doing amazing. They’re doing awesome.

And so, they’re welcome on these free private jet trips, and this is just a stunning picture of one of the three branches of the federal government.

00:06:30 Michele Goodwin:
They think that you are telling a story about how so many of these problems are rooted within American law in our courts. So, you reference for example in the early 1800s Alexis de Tocqueville coming to the United States famously and then writing about and recording that trip, and you mention, quote, “’If you ask me, he wrote, ‘where I place the American aristocracy, I would answer without hesitating. The American aristocracy is at the lawyer’s bar and on the judge’s bench.’” Wow, Leah.

00:07:10 Leah Litman:
Yeah. So, that was written, you know, 200 years ago and I think what’s striking is this was something de Tocqueville observed, right, the Cs were already there in the structure of our government, and part of what I hope to show in the book is how much worse it’s become over time as the justices have accumulated more and more power, as they insist they are above the law because they are the law and who are you to question them, and to suggest that again someone looking at this from the outside would recognize, “Why would you have a system where, in effect, these nine unelected individuals operate like kings?” That is not how a liberal constitutional democracy should run.

00:08:05 Michele Goodwin:
So, you take us from there to really helping us to unpack how the court has had its hand in the cookie jar, a hand in the financial jar, the coin jar. Maybe I should, you know, coins for the justice right there. Tell us about that, this history, so that people understand it as something that is not just a creation of these times but that actually this legacy has some texture throughout the centuries and there are a few cases that you mention along that way.

00:08:39 Leah Litman:
Yes. So, I’m so glad you pointed that out because a big part of the book is, of course, trying to show that while things are very bad now, it’s not like the Supreme Court has been great for all of the other times. In fact, many of the ridiculous and appalling things the justices are doing today have pretty clear callbacks to things the court and its justices have done before.

So, in the specific chapter on economic inequality, I focus on decisions really in the early 1900s that became fixated on this idea that when state legislators or Congress tried to address economic inequality by, say, leveling the playing field between the haves and the have-nots, the Supreme Court became obsessed with this idea that that was unfair discrimination against the rich because it was taking away something from them that they deserve, that they were entitled to, and it was giving the have-nots something they were not entitled to because they couldn’t get it for themselves on the free market. And that kind of obliviousness of course overlooked how laws created the conditions for markets at the time, right, to be grossly unequal as far as forcing employees to work in horrific conditions and not allowing them to have the collective bargaining power to negotiate with their employers for better conditions and better wages.

And so, it’s that kernel, this idea that well the rich, they’re just entitled to do what they want with their money and power because they’re so deserving and any efforts to equalize the playing field are unfair to them and give the have-nots something they do not deserve that I trace not only to those early 1900s cases but also to the modern cases that dismantled campaign finance regulation. I see the same ideas there too.

00:10:48 Michele Goodwin:
So, tell us about that, and in fact you include the famous camera turn toward Justice Alito when Barack Obama is president and he’s talking about one of those cases that you mentioned and Alito mouths “not true” and cameras catch it, right. It’s this very interesting show where many people are like, “what a show of disrespect that the justice is showing towards, you know, President Obama.” It’s a kind of subtle showdown but it’s a case that actually has significant consequences.

00:11:23 Leah Litman:
Yeah. So, the case you’re referring to of course Citizens United v. FEC. That case struck down the federal law that limited corporations, including nonprofit corporations like political action committees, from spending their own money to make their own advertisements, you know, on behalf of candidates. 

So, rather than donating money to candidates, they would create their own ads, run their own print pieces, make their own videos in order to advocate for or against a particular client, and Citizens United, five Republican justices said it is unconstitutional for Congress to restrict corporations ability to spend their own money advocating for or against political candidates because, they suggested, when Congress is doing that it is trying to equalize the playing field in a way that they just can’t do, and the court also in its obliviousness insisted that massive amounts of spending, even from corporations, would not lead to corruption or even the appearance of corruption, and it’s that kind of obliviousness of course that we also saw in Justice Alito’s response to the reporting about his trip to Alaska, and in the obliviousness of the Supreme Court in the early 1930s, right, in insisting that, well, of course legislation that tries to equalize the playing field, that’s giving something to the have-nots they don’t deserve. 

And so, Citizens United did very much of a piece with this and then after Citizens United, many people warned about the consequences for our elections and political spending in a world where there would be unrestricted corporate spending. One of those people of course was then President Barack Obama, who warned that the Supreme Court had opened the door to unlimited spending in elections and it was at that moment where Justice Alito shakes his head and mouths “not true” of course because he cannot handle any criticism of him or even honestly accurate statements.

00:13:29 Michele Goodwin:
And then now fast forward, look at what we’ve seen in the last presidential election. Look at what we’ve seen in the election involving the Wisconsin Supreme Court. Leah, weigh in on it. I know that your manuscript was in as all of this was going on but tell us something about this, Leah. Obama was right.

00:13:57 Leah Litman:
Oh no, he was completely right and I am thankful that I at least have the opportunity to add some lines to the manuscript after the most recent presidential election in 2024 because of course we saw in that race, you know, Elon Musk, the richest man in the world, pour several hundreds of millions of dollars into the cause of electing Donald Trump, and the idea that one person can spend that much money is striking and it is exactly the kind of thing that President Obama and others warned about because of course when you spend that amount of money, you are purchasing a kind of influence and access that everyone else cannot get.

I mean, Elon Musk was able to sit in on meetings about possible appointments, you know, within the Trump administration. He was sitting in on meetings with foreign leaders. He is in and around the White House all the time. He apparently has massive amounts of roving authority over the federal government, and that’s the kind of corruption or at least appearance of corruption that Congress was trying to address when it restricted unlimited political spending, including unlimited political spending by corporations and the Supreme Court just denied that it existed and created the circumstances that allowed the richest man in the world to spend his way to being a shadow president.

00:15:27 Michele Goodwin:
So, I want us to turn to another aspect of your book because the title is great and throughout it, folks can just say “Leah is tossing shade. Professor Litman is just great at shade and serving up the tea,” and you do that. It’s not just in the title but it’s in the pages here. One of the things that you mentioned is that even though they represent a minority of the country, Republicans remain more politically powerful than ever. You said in a tally a month after the 2020 presidential election that Donald Trump legitimately lost. 

Trump told attendees, quote, “we’re all victims.” Everybody here, apparently democracy itself is now unfair, and I want to unpack this a little bit more about Republicans and power and just where we stand in this country because there’s just so much there, and I can’t help but think about—and you turn to aspects of this in Chapter One—insurrection of the courts and I’m thinking about Roe v. Wade as the first place to start in thinking about the transition over time and what it means.

Republicans in power. Democrats in power. Money and influence because Roe v. Wade was a seven-to-two decision, and five of those seven justices were Republican-appointed. Justice Blackman who wrote the opinion in Roe was put on the court by Richard Nixon. Prescott Bush, the father of George H.W. Bush, was the treasurer of Planned Parenthood. And so, now fast forward 50, 60 years from that time, not even 60 years from that time, like just 52 years from the time of Roe. Now you’ve written a book that really makes it really square that there are very strong economic interests that are tied to the Republican party, that are wielding power like never before, and I’m wondering whether we can even call Republicans now Republicans anymore as a start.

00:17:41 Leah Litman:
Yeah. It certainly seems as if there is a different breed that is present in politics now and I think that that’s where a part of the subtitle eluding to fringe theories comes in because part of what the book is describing is how the Republican Party and Republican officials have become comfortable basically appealing to and representing an increasingly narrow segment of the American public, and part of what has allowed them to do so is one, the kind of infrastructure of our constitutional democracy but also second, the fact that they then use any power they have to make it easier for them to rule by minority.

So, on the infrastructure of course we have the electoral college and the senate system. Electoral college allows someone who doesn’t win the popular vote to obtain the presidency. The Senate that system allows a group of senators, you know, to vote for legislation, a majority of them, even though they don’t represent a majority of the American people. And of course, those two institutions select who is on the Supreme Court. And so, it’s almost like this, you know, matryoshka doll of minority rule where there are all of these additional layers of minority rule that have been built into the system and become even worse just given demographic trends, you know, where people live and whatnot.

So, that’s part of the story but the other part is whenever Republicans now are in power, they try to make it easier for them to win elections even when they don’t win a majority of the vote. So, one of the examples I point to is the story of the North Carolina Supreme Court, which of course we’re continuing to see play out now, but that court used to be a majority of progressive justices. It flipped control over a series of elections to a majority of Republican-affiliated justices. What were the first things that court did once it became Republican controlled?

Reinstated a voter identification requirement and said the state legislator got to keep their partisan gerrymandering. Both of those laws, partisan gerrymanderers and voter IDs, allow the Republican party to win elections even though they might not win a majority of votes and eligible voters. And so, this is also happening of course at the United States Supreme Court and elsewhere but it has just become this fixation of the Republican party to be committed to minority rule and to try to cement avenues for minority rule.

00:20:20 Michele Goodwin:
In the Ken-Surrection, and I’d love for you to unpack the Ken-Surrection, but you mentioned that now the Supreme Court is packed with a bunch of Kens. You say the Supreme Court’s decision to eliminate women’s right to reproductive freedom was a Ken-Surrection, a move to restore a patriarchy where men are on top and that overruling Roe was just the opening salvo in the fight and it was not just happening in Barbieland, and you cite Gerwig’s 2023 film, but that these are matters that are happening every day. They’re running through people’s lives. They’re here with us and there’s more that can be anticipated. Can you unpack a bit of that for us?

00:21:11 Leah Litman:
Yeah. So, first I’ll explain the Ken-Surrection bit and then elaborate a little bit more. So, Ken-Surrection is obviously a reference to the Barbie movie as you noted. In the Barbie movie, Ken goes to the real world where men run everything. He returns to the feminist utopia of Barbieland and he wants to remake it into a patriarchy, but in order to do that the Kens need to ratify a new Constitution because the one they have has actually created this feminist utopia. 

And so, I suggest that when the Republican appointees on the Supreme Court embraced originalism and overruled Roe v. Wade, they effectively engaged in their own Ken-Surrection by remaking the U.S. Constitution, the one we have, into a Kenstitution, one that only cared about the views of the white men who drafted and ratified the original Constitution and the 14th Amendment, you know, in the 1800s.

And so, that’s the Ken-Surrection bit of these justices basically remaking our law so that our country certainly never has been a feminist utopia but is going to be way more like the patriarchy that the Kens envisioned in the Barbie movie.

00:22:24 Michele Goodwin:
One could say that you’re even being generous there. I mean, again, you’re serving it up…because if you think about it, I mean they’re actually not being loyal to the reconstructed Constitution at all. Like they’re not engaging with any of that history whatsoever, why we have birthright citizenship to begin with. They’re not engaging with the 13th Amendment and its abolition of slavery and involuntary servitude. They’re not engaging. Here’s what’s interesting is that it’s not like the Court can’t do that. 

The day before Dobbs, there’s Bruen, and Justice Thomas is all over slavery in Bruen. He’s like oh let’s give a prologue to it. Let’s understand black male bodily autonomy. Let’s understand that Black men need guns in order to be fulfilled in their full rights, in their full recognition, and that without that then basically we’re just kind of placing Black men back to Jim Crow era and to slavery. So, it’s not like the court can’t recognize that version of history. It just chose not to do so the next day in Dobbs.

00:23:33 Leah Litman:
Oh absolutely. I think the third chapter of the book, which is about voting rights and race, like really focuses on how the court over time, not just this court but previous courts, have dimmed the lights and the promise of reconstruction and the reconstruction amendments by adopting this overly narrow view about what Reconstruction did and what it was about and in some ways maligning Reconstruction, you know suggesting that there are certain aspects of Reconstruction, the 13th, 14th and 15th Amendments, which were driven by this irrational hatred toward the south rather than a recognition of what is actually needed to ensure the civil rights of individuals who had just been freed from slavery, right, and what is necessary to retain civil rights today.

And so, yes, the court has absolutely been selective in how it has approached the Reconstruction amendments both when it comes to voting rights and race, also when it comes to individual rights like abortion and reproductive freedom and that’s part of why, you know, I in the book like try to identify what is the ideological vision, like the substantive vision, that is underlying like their views of the Constitution, which certainly don’t seem just to be drawn from the texts and the history.

00:24:54 Michele Goodwin:
So, Leah, as we begin to wrap up, one could say that what’s been served up is something that is bleak. You even say that in the conclusion. Like okay, but that’s not where it ends because you give a vision towards what can be done and I actually think that there’s a lot to be said for sitting with that which is a bit bleak and sitting with that which actually tells the story, which is what you’ve done across a series of ways. Let’s look at this. Let’s turn the kaleidoscope such that we’re honest and such that we can move beyond what has been some of the propaganda that we’ve digested about ourselves.

And so, as we turn to that space of change what does that look like for you and I have to give a plug out because you talk about Legally Blonde as well. So, yeah, what does change represent?

00:25:55 Leah Litman:
Yeah. So, I think part of what I was hoping to accomplish in the book was to tell a story to make clear how badly we need to fight, to get people agitated and want to fight, to want to do something, and part of why I wrote the book in the tone that I did, you know, about the Ken-Surrection and with all the shade is to try to make that fight fun, right? Like going to protests can be fun. Shouting “Fuck the man, Dan the man,” right, like that can be fun. And so, part of what I want to do is like tell the story in a way that makes people want to engage in that fight and that fight is winnable. 

It is not just about the Wisconsin Supreme Court race, you know, where Elon Musk poured in more than 10 million dollars, right, and still did not manage to buy that seat on the Wisconsin Supreme Court. It’s also about the Michigan Supreme Court, which has undergone a radical transformation over the last 15 years. And so, when people put in the work, when they educate themselves, when they educate others, when they are willing to go to protests, to knock on doors, to register people to vote, to help other people vote, that is how change happens, and yes, it is easier to do and effect change at the state and local level. It takes more time and there are more obstacles at the federal level but the other option is basically giving up and going home, and at least for me personally, just letting these guys win is not an option. 

And so, at the end of the book, I kind of put the challenge in terms of Legally Blonde, where I say, you know, the professor is asking if you’re going to let one prick ruin your life you’re not the girl I thought you were, and here it’s like if you’re going to let one court ruin your country, you too are not the person I thought you were. And so, it’s an invitation to fight and to figure out how you can fight because we all have different contributions we can make.

00:27:59 Michele Goodwin:
Leah Litman, this is a marvelous book. Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. Leah Litman is the cohost of the award-winning super podcast Strict Scrutiny. Leah, thank you for joining me and I can’t wait for the next time that we share company.

00:28:24 Leah Litman:
I agree. Thank you so much, Michele. It is always a pleasure to be in conversation with you.

00:28:28 Michele Goodman:
Guests and listeners, that’s it for today’s episode of On the Issues with Michele Goodwin at Ms. magazine. I want to thank each of you for tuning in for the full story and engaging with us. We hope you’ll join us again for our next episode where you know we’ll be reporting, rebelling, and telling it just like it is. 

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