Leah Litman’s Lawless is an irreverent yet sobering account of the current Court’s willingness to further the Republican party’s most conservative agenda. Litman, a University of Michigan law professor and former clerk to Justice Kennedy, is well-known as a co-host of Strict Scrutiny, a podcast about the Supreme Court. Litman’s claim is that Republican-appointed Justices are using nonsense theories to overrule precedent, re-institute a traditional patriarchy, and significantly reduce the rights of historically marginalized groups. Wielding virtually unchecked power, this small group of privileged insiders is deciding what’s best for Americans (i.e., wealthy Republicans) but is either oblivious or indifferent to public opinion. In short, the Court is making our democracy less democratic.
The book opens with a reference to the Alito residence flying an upside down American flag soon after the January 6 riot, a symbol of support for the theory that Biden stole the election from Trump. When the story broke in May 2024, the Court was considering two cases related to Jan. 6th. The first addressed whether riot participants could be convicted for obstructing Congress’ certification of the votes, and the second whether Trump was immune from criminal prosecution for his role in attempting to overturn the 2020 election. The Court sided with Trump in both cases.[1] Thus Litman sets the stage for the increasingly political stance taken by the majority of the Court and the lengths to which they seem willing to go to achieve their own ideological goals.
The book’s five chapters demonstrate that “conservative grievance, fringe theories, and bad vibes” have governed the Court’s decisions on a wide range of legal issues, including abortion, LGBT and voting rights, campaign finance, and the power of federal agencies.[2] Relying on her extensive expertise in Supreme Court history and jurisprudence, as well as relatable pop culture references, Litman makes a convincing case that a majority of the Court believe that Republicans are being treated unfairly (“by the increasingly diverse society that no longer shares their views”) and are prepared to rectify the situation.[3]
In the first chapter, Litman describes the Court’s reliance on originalism (a theory of constitutional interpretation based on its meaning at the time of adoption) to overrule Roe v. Wade (guaranteeing a woman’s right to an abortion),[4] as a way to restore the traditional male patriarchy and put men back “on top;”[5] in other words, to “Make America Great Again.” In Chapter Two, Litman examines several of the Courts’ decisions since Obergefell v. Hodges (guaranteeing the right of same-sex couples to marry)[6] that continue to chip away at LGBT rights in the name of religious freedom.[7]
In Chapter Three, Litman focuses on continued efforts by Republican-appointed justices to restrict voting rights (ultimately of people of color or those likely to vote Democratic) guaranteed by the 1965 Voting Rights Act. For example, since Shelby County v. Holder (invalidating the requirement that certain states preclear redistricting plans with the federal government),[8] the Court has made it harder to prove discriminatory intent.[9] As Litman sees it, these cases are not grounded in any theory such as originalism; they simply re-interpret the law based on Republican “feelings and talking points.”[10]
Chapter Four takes on the law of campaign finance. Litman views the Court as helping the Trump Administration construct an oligarchy that “allows the mega-rich to have outsize influence over politics and unparalleled access to political leaders, including the justices themselves.”[11] Since Citizens United v. Federal Election Commission (invalidating restrictions on corporate campaign contributions),[12] the Court has adopted the attitude that speakers have a right “to say conservative things the Republican justices like” but not to criticize conservatives.[13]
The last chapter focuses on the Court’s complicity in Republican efforts to shrink the size of government and deregulate industry. For example, in Loper Bright Enterprises v. Raimondo, the Court overruled the Chevron doctrine that required courts to defer to agency interpretations of ambiguous federal statutes.[14] In so doing, Litman argues, the Court achieved the Republicans’ goal of taking power away from agencies and giving it to federal courts (despite the judiciary’s lack of industry expertise).
As Litman acknowledges, the book paints a bleak picture of the Court as an “ongoing, slow-motion, unfolding disaster.”[15] Yet she concludes with constructive ideas for jump-starting change, including talking with friends and acquaintances about why the Court’s decisions are troubling, keeping an eye on local elections, advocating for change (such as expanding the size of the Court and term limits), and voting “in every single election at every single level.”[16]
Although clearly written for a progressive and sympathetic audience, Lawless should be of interest to even the most die-hard conservatives, who would benefit from Litman’s (and many Democrats’) view of the current Court. For the non-legal reader, it can be dense at times, and at least this reader found the pop-culture references more distracting than useful. Yet its insight into the Republican stronghold on constitutional interpretation and its impact on our everyday lives is unlikely to fade quickly from memory.
[1] Fischer v. United States, 603 U.S. 480 (2024); Trump v. United States, 603 U.S. 593 (2024).
[2] Leah Litman, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes (Simon & Schuster, 2025), 11.
[3] Litman, Lawless, 2.
[4] Roe was overruled in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).
[5] Litman, Lawless, 14.
[6] 576 U.S. 644 (2015).
[7] See Masterpiece Cakeshop v. Colo. Civ. Rts. Comm’n, 584 U.S. 617 (2018); 303 Creative LLC. v. Elenis, 600 U.S. 570 (2023).
[8] 570 U.S. 529 (2013).
[9] See Abbott v. Perez, 585 U.S. 579 (2018); Brnovich v. Democratic Nat’l Comm., 594 U.S. 647 (2021).
[10] Litman, Lawless, 116.
[11] Litman, Lawless, 143.
[12] 558 U.S. 310 (2010).
[13] See, e.g., Ams. for Prosperity Foundation v. Bonta, 594 U.S. 595 (2021) (invalidating a California requirement that nonprofits disclose their major donors in part because of the “sensitive” nature of details relating to their supporters).
[14] 603 U.S. 369 (2024).
[15] Litman, Lawless, 223, 235.
[16] Litman, Lawless, 226.
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