Chief Justice of the Supreme Courtroom John Roberts, Justice Elena Kagan, Justice Brett Kavanaugh, Justice Amy Coney Barrett, and retired Justice Anthony Kennedy attend Donald Trump’s tackle to a joint session of Congress. Picture by Getty Photographs
Robert Zaretsky
November 3, 2025
One of many many virtues of Leah Litman’s lucid and blistering new e book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes is that it, because the title suggests, reads virtually like a pulpy crime story. However not like most whodunits, we all know on the very begin of Litman’s story who dun the crime. No much less uncommon, Litman ends her story with what could be dun by People who want to withstand this state of lawlessness.
Litman is a professor of constitutional legislation on the College of Michigan, and co-host of the favored weekly authorized podcast Strict Scrutiny, which topics the choices made by SCOTUS to scathing wit and surgical evaluation. (In Litman’s wide-ranging criticism of SCOTUS, she lambastes the hypocrisy of the Republican-majority’s skepticism on abortion circumstances offered by Jewish plaintiffs who argue that their non secular religion compels them to carry out, present, or entry abortion care. As she notes, this skepticism is a decidedly uncommon response from a courtroom that’s often eager on increasing, not retracting, non secular exemptions from legislation.)
After I spoke to Litman over Zoom, she expanded on the Roberts courtroom’s cultural grievances, crackpot theories, and total “dangerous vibes,” a time period she says she makes use of to attract a distinction between “what some folks consider as legislation,” i.e. “one thing that’s goal or determinate.” As a substitute, it turns into one thing primarily based on emotions and what “triggers them and what upsets them,” which she sees as reflective of the “speaking factors and zeitgeist of the Republican Occasion.”
In our dialog, Litman traced the historic origins of bruised emotions and dangerous vibes that passes itself off as conservative jurisprudence. We will see in the present day, she emphasised, a reaffirmation of the Misplaced Trigger motion following the Civil Battle, “this agency dedication to restoring and entrenching white conservative political energy and shutting out racial minorities from the political course of and treating the inclusion of racial minorities within the polity as an affront to white conservatives and as a type of discrimination in opposition to white conservatives. And these similar concepts seed, , the opposition to the fashionable Voting Rights Act.”
“Dangerous vibes” is, after all, not a time period usually discovered within the footnotes of legislation overview articles. But whereas Litman acknowledged the time period is type of “loosey-goosey,” she sees it because the driving drive behind SCOTUS’ authorized reasoning. One of many many issues with vibes, Litman noticed, is that “whereas everybody has emotions, my emotions don’t govern what different folks can do. I’m allowed to have emotions and views concerning the world. However that doesn’t imply I get to declare that everybody should make me really feel good.”
Within the case of the courtroom’s conservative majority, Litman says, which means they get to be ok with expressing their cultural and social grievances. They will, like Martha-Ann Alito, achieve this by, say, flying an upside-down American flag exterior their home in help of the women and men who invaded the Capitol on Jan. 6. However, extra importantly, they’ll additionally carry these grievances to their authorized reasoning and switch our structure the other way up. (One thing that Mrs. Alito’s husband has finished again and again as one in all our nation’s 9 sages.)
But, although the Roberts Courtroom — which Litman refers to in her e book as “the blokes (and Amy)” — is perhaps consumed by grievance, they aren’t blind to the necessity to garb these dangerous vibes within the guise of theories. That is the case for originalism, a seemingly impartial technique to resolve circumstances primarily based on a literal studying of the Structure. But, the absence of any point out of ladies in our founding doc has allowed the Supreme Courtroom, even after the passing of the Fourteenth Modification, to proceed to disclaim equal rights to girls.
Therefore the significance of the current overturning of Roe v. Wade. As Litman drily noticed, originalism gives conservatives and reactionaries a method to discuss points with out acknowledging the precise stakes concerned. It gives a type of believable denial from positions that, in impact, declare, “Sure, we must always take away girls’s contraception capsules, drive them to undergo childbirth, and never enable them to get divorced.”
In the meantime, as Litman remarked, the Roberts Courtroom usually dons the guise of one other supposedly goal principle, institutionalism. Her critique is especially unsettling for these of us who wish to assume that Chief Justice John Roberts is an institutionalist who, just like the deus ex machina in historical Greek tragedy, will all of the sudden seem over the stage set and carry us freed from our tragic and deadly predicament.
On one degree, Litman mentioned, “anybody seems to be like an institutionalist when in comparison with Clarence Thomas and Sam Alito. That John Roberts is extra alongside the spectrum towards the median American voter than both of them is simply clearly true and doesn’t inform us that a lot about whether or not John Roberts is definitely a reasonable or median. There are simply so many examples the place selections by John Roberts have undermined our establishments and delegitimized our establishments.”
Take into account all the choices written or signed onto by Roberts on marketing campaign financing, presidential powers, partisan gerrymandering, or voting rights for instance her declare. Clearly, Litman just isn’t ready for the Chief Justice to save lots of us. “Have a look at all of the issues that Donald Trump is doing that defile our establishments and degrade our democracy. These are issues that John Roberts made completely clear that the president is constitutionally entitled to do. And there’s simply nothing our lawmaking establishments like Congress or the federal courts can do about that,” she mentioned.
What, then, are we to do? In her e book, Litman urges the reader to “make them combat for his or her nihilism and acquire it at a price.” In our dialog, she eagerly expanded on this name to motion. The forces of democracy and decency can not win this combat in a single day, she instructed me. “There isn’t a magic repair that may work. As a substitute, we have to make the case to our fellow residents and our future elected leaders that with a purpose to get ourselves out of this mess…and shore up our democracy in order that we don’t run the chance of sliding again into autocracy and authoritarianism, we have to reform and democratize the Supreme Courtroom.”
It isn’t what we would hope to listen to, however it’s the message we have to hear. The truth is, as Albert Camus insisted, there is no such thing as a cause for hope, however that’s by no means a cause to despair. Or, as Litman concludes in her e book, “the nihilistic take could be to throw up our fingers and do nothing as a result of all of it appears too troublesome. They’ve stolen a Courtroom and they’re virtually daring anybody to problem them. It’s time to name their bluff.”
