Why the Supreme Court Is Not to Be Trusted

Laurie L. Levenson cross-examines Leah Litman’s “Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.”

By Laurie L. LevensonAugust 16, 2025

• Law

• Politics

DO YOU WANT to know why today’s Supreme Court rules like it does? Leah Litman, professor of law at the University of Michigan, has the answer, and it is one that people should know. In her terrific new book on the Supreme Court, Lawless, Litman pulls no punches, using her vast scholarly knowledge, together with down-to-earth language and fun analogies to movies and television shows, to persuasively demonstrate how the Republican Party has captured the Supreme Court through the tools of “conservative grievances, fringe theories,” and what Litman’s subtitle calls “bad vibes.”

As Litman puts it, this is a “big-picture book,” not a book on constitutional theory. And it is hard-hitting. The Supreme Court rules the way it does on issues ranging from abortion to LGBTQ rights to voting rights because Republicans have adopted a “bro” approach to the Supreme Court. That is, they are using their appointments to the court to ensure that straight white men feel aggrieved that “others”—women, people of color, and the LGBTQ+ community—might be taking their place in society. It is, as Litman says (borrowing a term from the 2023 movie Barbie), a “Ken-surrection.”

The analogies to popular culture do not diminish the importance of Litman’s message; rather, they make it more accessible. The first chapter starts with the Supreme Court’s decision to overturn Roe v. Wade (1973). It was nothing less than “a move to restore a patriarchy where men are on top”—one that had been years in the making. Litman is the best type of professor: she uses her vast knowledge of history and the law to show us how this happened. While never talking down the reader, she lays out the history of this country’s “patriarchy problem,” noting that the very method the court uses to decide cases, “originalism” (i.e., using the meaning of Constitutional rights that were adopted at a time when women had no rights, including no right to vote), puts a hand on the scale of how these cases are decided.

As Litman puts it, throughout much of the United States’ history, patriarchy has been “the vibe.” When women made a move to share in the economic, social, and political life of our country, Republicans balked at these changes. In response, “the men at the helm of the Republican Party saw attacks on feminism and feminists as a way to secure political support,” and they identified groups primed to help them. We know who they are—evangelicals and Catholic voters. And we now know how much impact they have on the court. With five Catholic justices, can there be any doubt? Years ago, I had dinner with the late Justice Antonin Scalia. I asked him candidly whether he ever faced ethical issues on the bench. His answer was that there were issues like the death penalty where he wondered whether he should follow the law or “what my Pope tells me to do.” Now, Scalia was capable of kidding during a conversation. But the importance of this remark was clear—at least to me. Justices are affected by their religious backgrounds and associations.

Litman explains that originalism is a vehicle for white male grievance to find a home in the law, rejecting the views of those who are not “true believers” Stripping women of the right of choice took their autonomy and handed it back to the “Kens” of our society. And the whole thing was planned. As Litman notes, Donald Trump ran for president in 2016 on the promise “to reverse the long line of activist decisions—including Roe.” But he had to make sure he got justices on the court who felt the same way. Using what law professor Melissa Murray has called the “jurisprudence of masculinity” (i.e., focusing on whether women’s rights are clearly enough expressed in the Constitution, which was adopted at a time when women had no rights), the Republicans got their opportunity to overturn a law that women had relied upon for nearly 50 years. And the Republicans are not going to stop with the 2022 Dobbs decision that overturned Roe. Cherry-picking their jurisdictions, they are challenging contraceptive rights by bringing actions in jurisdictions where district-court judges, like Matthew Kacsmaryk in Texas (who, according to the book, actually dressed his children up in T-shirts that said “I SURVIVED ROE V. WADE”), refer to fetuses as “unborn babies.”

Who knew that Barbie could be such a great vehicle to teach constitutional law? But Litman uses the film effectively to sum up Republican efforts to create a right-wing court, and the jurisprudence for it to use, in overturning women’s rights. Indeed, one of the many things to love about this book is the way it uses what Republicans have openly said to emphasize how bold and outrageous their plans have been. Consider, for example, the Republican response to Obergefell v. Hodges in 2015. When the decision came out, Republican senator Ted Cruz said it marked “some of the darkest 24 hours in our nation’s history.” Litman does not miss a beat in adding her commentary: the case was “presumably up there with the bombing of Pearl Harbor.” Call that legal sass, and Litman has plenty of it. It helps make the book approachable and memorable. Goodbye, nerdy law professor; hello, effective messenger.

Reviewing Republicans’ efforts to block LGBTQ rights, Litman ties the effort back to the McCarthy era, when homosexuality was grouped together with communism, seen (in the words of Senator Joseph McCarthy) as a “grave evil to be rooted out of the federal government.” Scalia took up the cause, pushing against gay rights in Lawrence v. Texas (2003). What he offered was not legal analysis but homophobic vibes. “Many Americans,” Scalia wrote in his dissent, “do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools” because they want to “protec[t] themselves and their families from a lifestyle that they believe to be immoral and destructive.” And then comes the Litman commentary—“And their feelings are what should matter, obviously.” So, the Republican Party shopped for a case to demonstrate that straight, religious conservatives were having their rights violated by affording rights to others. And, in a made-up case, 303 Creative LLC v. Elenis (2023), they found it. And Trump found a bunch of new judges who did anti-LGBTQ legal work in their prior careers and were guaranteed to rule however the Republicans wanted in the cases coming before them.

For Litman, there are no sacred cows. If Justice Samuel Alito uses language that demonstrates that he is having a hissy fit, she calls him on it. You can’t help but smile when you read the book, although the court’s decisions are deadly serious and downright depressing. When Alito pens in his dissent in Bostock v. Clayton County (2020)—where the majority upheld the right of gay employees to sue for discrimination—that the court’s opinion is like a “pirate ship” that flies a false flag before pillaging, Litman needs only one word to respond—“Arrrrr.”

Probably the most crucial chapter in the book addresses voting rights and the decades-long efforts of Southern conservatives in the Republican Party to maintain their political stranglehold over the country—including disenfranchising minority voters. They are, Litman argues, people who “will stoop to anything to win and maintain power.” In recent cases overturning the Voting Rights Act, the Republican appointees on the Supreme Court have undermined voting rights in a way that is “dark and full of terrors—for democracy.” There is no happy ending to this story. The assault on democracy continues—with economic inequality, political corruption, and the influence wealthy individuals can exercise over political candidates and justices alike. As predicted, Citizens United v. FEC (2010) broke our democracy. Before there was a Department of Government Efficiency, there was a Republican Party that laid the groundwork for this case and others.

As Litman sums it all up: “Does the country know that the Court is nuts?” Actually, she ends with a note of hope from my favorite movie (and one on which—full disclosure—I served as the technical legal adviser), Legally Blonde (2001). When people underestimate the film’s protagonist, Elle Woods (Reese Witherspoon), and her ability to get into and succeed at Harvard Law School, she answers with “What, like it’s hard?” Just as Elle does in the film, we need to fight and fix things. It will only get harder if we wait.

So, what’s the game plan? Get involved at the local and state levels. Embrace term limits for the court. Expand the Supreme Court. And that’s just getting started. Above all, we should adopt the motto “If you’re going to let one stupid Court ruin your democracy, you’re not the girl (or boy, or nonbinary reader) I thought you were.” As Litman writes, “It’s time to call their bluff.” And it’s time to read this book!