Supreme Vibes: A Review of Professor Leah Litman's “Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes."

The central thesis of Professor Leah Litman’s wonderful new book, “Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes,” is stated succinctly on page two:

The Supreme Court is running on conservative grievance, fringe theories, and bad vibes. A majority of the justices are convinced that Republicans are being treated unfairly by the increasingly diverse society that no longer shares their views and as their party demands more and more to make up for this travesty … the Republican justices are more than happy to give that to them.

Professor Litman's book covers most of the important constitutional law issues of our day. She argues that Republicans believe they are victims when it comes to the separation of church and state, gay rights, voting rights, reproductive justice, the role of money in local, state, and national elections, as well as the GOP’s desire to create a strong and unitary Executive.

In addition to comprehensively discussing the numerous legal doctrines that the Republican justices have used to further the interests of the Republican Party, Professor Litman does a brilliant job showing that any suggestion that the conservative justices care about text or history, as opposed to GOP values, is ridiculous.

She points out that in Printz v United States, the conservative justices struck down a federal law after observing that “no constitutional text” addressed the “question in the case.” And, a year earlier in Seminole Tribe of Florida v. Florida, the Court adhered to an extremely dubious 19th century precedent that read the constitutional text “another state” in the 11th Amendment to mean the “same state,” even as it overturned a major and much more persuasive precedent less than 10 years old.

Had she wanted to, Professor Litman could have provided dozens of other examples of how the Court's conservatives have flouted text and history to further the values of the Republican Party. Other prominent examples include Shelby County's non-textual and anti-historical equal state sovereignty doctrine, West Virginia v. EPA's major question doctrine, and, of course, the completely fabricated Presidential Immunity doctrine the conservatives dreamed up in Trump v. United States. Professor Litman does discuss all of these GOP-favored results very well but without specifically focusing on their utter inconsistency with the conservative justices' alleged fidelty to text and history.

Professor Litman’s book is written with a light, almost casual touch, often referring to cultural blockbusters like Game of Thrones and taking some poetic license with formal grammatical conventions to make the prose readable and fun despite its serious subject matter. Although convoluted constitutional doctrines are discussed throughout the book, one does not need to be a lawyer or law professor to understand Professor Litman’s forceful critiques.

I could easily go on and on praising this sophisticated yet accessible destruction of the conservative justices' political takeover of American constitutional law. There is much to admire in the book. But I am confident that other progressive scholars will do that, and they should. But in the balance of this review, I want to make a different point, one that will not surprise those who have read my posts here or my articles and books.

Professor Litman is correct that the Roberts Court runs on GOP vibes and is effectively lawless. But she does not try to demonstrate that the Roberts Court's use of vibes is any different from previous Supreme Courts or even the rare liberal decisions issued by the Roberts Court.

She never tries to show how cases she approves of like Roe, Grutter, Sims, Sullivan and other liberal decisions consist of anything more than liberal or Democratic party vibes. It is my view that she could not make such a showing. That being the case, the problem must be, not that the current Court runs on vibes, but that it operates according to the wrong vibes. If I am right, Professor Litman should have said so. Whether or not the justices are actually politicians masked as judges (and of course they are), law professors are not or should not be politicians in disguise.

As Judge Harvie Wilkinson argued long ago, Roe and Heller were equally bad as constitutional law decisions based on values, not law. There is nothing in text or history to justify the one-person, one vote rule articulated in Reynolds v. Sims. Most of the Warren Court's criminal procedure rules cannot be fairly derived from text or history. And the same can be said of the Burger Court's Establishment Clause decisions limiting government aid to religious schools.

The reality, as I have argued throughout my career, is that without strong judicial deference to government officials, constitutional law will always be much more vibes than law. Make no mistake, I strongly prefer Professor Litman's vibes to the Roberts Court's vibes. But I have always thought our job was to discuss and evaluate law, not vibes. That is why, although I am fiercely pro-choice, I have always said that Roe and Casey were bad law, even as I would favor a constitutional amendment giving women the right to choose.

Professor Litman's excellent book will not persuade anyone who is not already with her. That critique could be laid at the feet of most constitutional law professors, and I have always thought that is a serious problem for our profession.

Or maybe constitutional law is just politics all the way down, and Professor Litman is playing the game as well as it can be played.

I really don't know.

-- Eric Segall