How The Supreme Court Became Lawless

It’ll be very hard to turn the page on this era we’re living through, in any kind of democratically legitimate way, unless we do something about the Supreme Court first.

This simple insight has gained traction on the broad left over the past several years, but it still faces deep skepticism in the two realms that matter most—the legal elite, and the Democratic Party establishment—where, for different reasons, eminences are terrified of, if not hostile to, the idea of expanding or reforming the courts.

This is why I’ve been such a big fan of Leah Litman for many years now: She’s a rare public-facing legal ace (former Supreme Court clerk, University of Michigan professor, etc, etc.) who doesn’t play make-believe about the right-wing takeover of the judiciary and the attendant erosion of equal justice under the law.

If you want to best anticipate how the Supreme Court will rule on any contentious, politically charged issue, you’d be better off throwing reading comprehension and notions of principled jurisprudence out the window, and familiarizing yourself with the culture of the conservative movement: the victimhood, the trollish exalting in bad faith, the heads-we-win/tails-you-lose contempt for the idea that there should be one set of rules. These attitudes feed the backwards reasoning GOP-appointed justices use to fashion opinions that make the world we all have to live in conform to their fringe ideas.

Leah just wrote a book about this called Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes, which I really enjoyed, so I invited her to talk with me and Off Message subscribers about how these insights should shape our expectations for the second Trump presidency, and what it will take to get out from under the legacy of the Roberts Court.

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Among other things, we discussed:

• How Leah decided to stop worrying and treat the Supreme Court with the skepticism it deserves;

• Whether the Court’s conduct in the first months of the new administration surprised her at all;

• What to make of the strange new respect in (some quarters of) the new resistance for Amy Coney Barrett;

• Why the liberal establishment, structurally, can’t compete with the Federalist Society;

• And whether there are any kinds of court reforms that would immunize the judiciary against partisan polarization.

It was a good conversation and I hope you’ll give it a watch and/or listen.

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