Every so often, I find myself daydreaming: As the members of the Supreme Court of the United States (SCOTUS) watch their stock portfolios plummet because of Trump’s tariffs, or as they observe the president ignore decisions by other justices, including those he appointed, they have second thoughts about giving Trump unprecedented power—and they find a way to save us.   

I was disabused of this fantasy when I read Leah Litman’s marvelous new book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. The University of Michigan law professor, who clerked at the high court, will discuss her book with Barbara McQuade on May 14 at Literati Bookstore.

I loved the book—well, as much as I can love something that convinces me that radical right justices are ruling from their feelings instead of the law. Litman’s style is accessible, and her book is full of pop culture references: American Psycho, Arrested Development, Game of Thrones, Taylor Swift. The story she tells is bleak, but there’s comic relief, mostly in the form of snarky comments of the sort some of us are driven to these days.

Lawless is also a comprehensive exploration of the SCOTUS Republicans before and through the Roberts Court, their psychology, and the cases they took, tracking decisions that turned the law on its head and got us where we are today.

Some SCOTUS rulings shocked me, like Dobbs, which overturned Roe v Wade, and Citizens United, which allowed corporations to contribute tons of money to election campaigns, paving the way for Elon Musk to buy an election. I wouldn’t have been surprised if I’d followed the decisions that preceded these. Litman shows how ruling after ruling chipped away at our protections over many years, paving the way for recent decisions.   

Lawless is divided into five sections, each dealing with a critical issue. In “The Ken-Surrection of the Courts,” for instance, Litman shows us how women lost the right to control our bodies and lives. When Ken, in the movie Barbie, gets a taste of a patriarchal world, he wants to make changes at home. Litman explains that the Republicans on the court want to restore that wonderful time in America when women couldn’t even open credit cards in their own names. The attack on abortion rights, she suggests, came largely from “a latent discomfort with women’s rights and feminism more generally.”

This is the book’s central theme—in the view of the SCOTUS Republicans, the white, rich, straight Christian guys have been discriminated against for years. They have to work beside women, some of whom even want equal salaries; they may live next door to a gay couple, some of whom may be raising children who are better adjusted than their own; other people have the right to vote, too, and believe it or not, they may vote in their own interests—the list of injustices is long.

In an effort to right these wrongs, the justices have crafted opinions that diminish other people’s rights and enhance their own. One of these is their inalienable right to feel good.

In the movie Mean Girls, a group of girls who are not at all nice exclude other girls. In the section “You Can’t Sit With Us,” Litman takes us through the questionable legalese that SCOTUS has been using to diminish the rights of Black people as well as those who are GLBT.

Litman marshals evidence from many cases to support her point.  In 2018, a baker who opposed gay marriage argued he shouldn’t be required to bake a wedding cake for a gay couple. Since the baker would have refused a straight person who wanted a cake celebrating gay marriage—because, as Litman wryly notes, straight people often want cakes celebrating gay marriage—the court ruled the baker wasn’t discriminating. In fact, in one of many twisted opinions, allowing the baker to feel uncomfortable was deemed discriminatory.

Among the things Litman takes on in the remaining sections are changes in campaign finance law, the assault on government agencies and expertise, the erosion of voting rights, and straight-up corruption. Continuing to offer political and historical context, she shows how SCOTUS Republicans shop for cases that will help them reinterpret laws. We learn how they have used originalism—the idea of harking back to the social context of the original Constitution—when it supports the ruling they want to make (and ignoring originalism when it doesn’t). She explores the way SCOTUS resolves cases in ways that are divorced from what people need and want and recycles Republican talking points. We see how the ultra-conservative Federalist Society helped administrations from Reagan onward select true believers to sit on the court.

It’s a scary story.

Not one to give up on a fantasy easily, I asked Litman about some recent cases. Didn’t Barrett recuse herself from the religious charter school case? Didn’t Scotus rule against Trump recently in two cases, 9-0 in one of them?

“Don’t be fooled when the Supreme Court doesn’t do the most outlandish thing," she said. "I do think the SCOTUS cares deeply about its own image.”

Litman said the judges don’t want us to think they’re just ideological or political, though they are. “The court cases are more complicated than what they seem," she said.

Sometimes the opinions leave wiggle room. For instance, SCOTUS ordered Trump to “facilitate” the return of a wrongly deported person; he didn’t, and there have been no consequences. “Sometimes they dodge an issue or save it for another day or slightly move the law,” she said.

Still, Litman reassured me, the situation is fixable.

“Even Elon Musk couldn’t buy Wisconsin.” (A Democrat recently won a seat on the Wisconsin court after Musk poured lots of cash into her opponent’s campaign.) “We have transformed Michigan’s Supreme Court six to one,” she said.

Of course, it won’t be easy.

“They have stacked the decks against democracy," Litman said. "It’s going to be a tough fight and a fight that is going to require a longer-term commitment.”

She suggested working at the state and local levels to stem some of the bleeding. Michigan voters, for instance, passed an amendment to protect abortion rights in the state. “Winning means preventing some of the damage to people’s lives," she said.

Litman said she wants the book to invigorate people, to help us “find other people to fight alongside with,” to provide a context for today’s events, and to give people a sense of “what might happen if we don’t do anything about it.”

Davi Napoleon, a theater historian and freelance writer, holds a BA and MA from the University of Michigan and a Ph.D. from New York University in theater history, theory, and criticism. Her book is Chelsea on the Edge: The Adventures of an American Theatre. 

Leah Litman will discuss "Lawless" with Barbara McQuade on Wednesday, May 14, at 6:30 pm at Literati Bookstore, 124 East Washington Street, Ann Arbor.