Leah Litman on the Grievance and Conspiracy Theories That Run SCOTUS

Leah Litman: I just think not using politics to try and change the court is just insanity. You are just letting them get away with their takeover and capture of the court. The court is political. There is just no way of getting around that, so you need to acknowledge that if you want to change it. You can’t traffic in this alternative reality and just wishcast that we had a totally different Supreme Court and hope that one day it will return to that. That is not how any of this works. And so that is addressed to democratic, liberal officials and elites who do not seem to be able to get the message.

Brad Onishi: Welcome to Straight White American Jesus. I'm Brad Onishi, author of Preparing for War: The Extremist History of White Christian Nationalism and What Comes Next and the founder of Axis Mundi Media. Today, I welcome Leah Litman to the podcast. Leah is a professor of law at the University of Michigan Law School and co-host of the very popular and very good podcast Strict Scrutiny. She's also the author of Lawless, a book about the grievance, conspiracy theory, and bad vibes currently running the Supreme Court.

I think we're all worried about the ways the court has given a free pass to Donald Trump in his second term. Leah and I speak about the ways that grievance is fueling not just conservative politics in the country, but the conservative justices on our highest court. That leads into a discussion of how that grievance produces conspiracy theories in terms of the way that these justices are reading the law, and how that leads to bad vibes and a bad situation for the rest of us. In the end, we talk about strategies for reforming the court and what it will take to reform it as an institution that works for all Americans.

Brad: Welcome to Straight White American Jesus. I'm Brad Onishi, author of Preparing for War, founder of Axis Mundi Media. If you listen to the show, you know I'm thrilled to get to talk to anyone—I'm thrilled anyone answers my phone calls. And I'm so excited, but today's like extra special. We are joined by Leah Litman, the author of Lawless. So Leah, thank you for joining me.

Leah: Thank you so much for having me.

Brad: So I'm hoping you're not feeling nervous. You've been on The Daily Show to talk about this book, you were with Jamie Raskin on Politics and Prose, so hopefully all of that got you ready for this podcast.

Leah: I mean, I was hoping all of that was preparing me for this moment.

Brad Onishi: I was hoping that you were going to feel good.

Leah Litman: You have to walk before you can run. 

Brad: All right, so here's the book: Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories and Bad Vibes. As I read the book, something hit me, and that is this: you have a Supreme Court that runs on grievance—and I'm going to ask you what that means in a minute—and then the grievance is really what leads to the conspiracy theories, and the conspiracy theories lead to really bad vibes. It's a 1-2-3 sort of situation. They're all connected and in some ways, at least, in a causal kind of relationship.

So let's just start here: What is the grievance that is at play in the Supreme Court at the moment, and what are the ways that them having their feelings hurt is creating the current climate around SCOTUS?

Leah: I think that's a really helpful causal formulation and does really capture some of the dynamics that I think are happening at the Supreme Court. The idea of conservative grievance just refers to this notion—you know, sometimes it's a feeling or an intuition, sometimes it is a claim that Donald Trump or others just make about the world—that different parts of the modern Republican coalition are victims, that they are the victims of discrimination and subordination, that people are out to get them because they hate them and their views.

And it's that notion of conservative grievance that I try to identify as a through line in several different areas of law, from voting rights to LGBT equality to campaign finance regulation. And so it's that idea of conservative victimization—that conservatives are, again, the targets of society or Democratic elites—that I think really fuels this persecution complex that is cannibalizing so much of the law.

Brad: There are two quotes that seem to sum this up for me. One is on pages two and three, and that is, "Conservatives and Republicans are tired of being the oppressed minority"—that's Ginni Thomas.

Leah Litman: Sometimes, as I said, they just say it.

Brad Onish: Just a good piece of evidence there. And then Donald Trump: "We're all victims, everybody here." And the conclusion there is that democracy itself is now unfair.

That to me feels like the kernel here of the grievance: that if democracy is unfair to us in the ways that we think we're being persecuted, and if equality feels like persecution to me, then democracy is unfair. Is it true, in your mind, that we now have a situation where the Supreme Court—at least the conservative majority—sees a situation where there's no possibility that women or LGBTQ folks or racial minorities or Black people in this country could be facing discrimination, but there is a 100% chance that the world is out to get white folks, white men, white Christians, fill in the blank? Is that a fair summation?

Leah: I really do think that intuition is behind these different areas of law, and I think in some cases the clearest examples of that are in LGBT equality and voting rights. Just to take voting rights—and I'm happy to talk about LGBT equality—but on voting rights, the Supreme Court in 2013 dismantled a key part of the Voting Rights Act that was the crown jewel of the civil rights movement. It was a portion of the Voting Rights Act that required certain states to obtain federal permission before they made any changes to their voting laws or policies. Which states were subject to it? States with especially bad histories of voter discrimination, especially states in the former Confederacy.

So how did the Republican justices justify invalidating that piece of legislation? Well, they looked at it and said, "Voter discrimination? That's not so much a thing. We solved that." So that's the component of "there really is no discrimination against racial minorities." At the same time, they were quite convinced that there was discrimination and unfair victimization of the white conservatives, particularly southern white conservatives, who were subject to the law.

In Chief Justice Roberts' majority opinion, he referred to the law as "disparate treatment"—a term of art that refers to intentional discrimination—and he also talked about it as punishing the South and treating the former Confederacy as the victim. During the oral argument in the case, Justice Scalia was apoplectic about the idea that Republican members of Congress would lose support and potentially lose their seats if they voted against the law. He was turning the country's support for voting rights and the concept of multiracial democracy into a targeted victimization and campaign against white Republicans.

I mean, if that doesn't encapsulate this notion of conservative grievance and the inversion of equality and discrimination, there are other examples, but that's a good one.

Brad: So you spend significant time on originalism in the book, and you talked about Scalia, so let's just do it now. One of the ways that you can justify an argument like Scalia's in that case or others is basically saying people who are not considered persons in the late 1700s are not part of the Constitution's original intent, structure, framework, and therefore we can justify somehow marginalizing them or ruling in ways that will lead to less protection and less representation for them in our republic. Is that part of how you get from originalism and someone like Scalia to the kind of grievance and the enactment of things in that form?

Leah: Yeah, I mean, the very project of originalism was initially trotted out as a way of criticizing Brown v. Board of Education, the decision invalidating segregated public schools, and then it really took off during the years of the Reagan administration, as that administration and the Republican Party more broadly leaned into the backlash to feminism and made that one of their causes. And they trafficked in this idea that they wanted to make these conservative social policy moves, and they argued that originalism—appointing judges who would engage in originalism—was a way to accomplish that.

And of course it would, right? Originalism tells judges to figure out what the Constitution means by looking to see what laws or decisions or policies were being made in the 1700s or 1800s—a time when women couldn't vote, when people of color couldn't vote, and they were viewed as less than equal citizens. So it's no surprise when you use that methodology that you would arrive at a conclusion that women and people of color don't have all of the rights that they won over the last century, because it turns out they weren't always viewed as full and equal citizens. So as a methodology, it is tailored to achieve the end that it was initially offered to do.

Brad: As a scholar of religion and somebody who spent significant time of his life figuring out interpretations of the Bible, on this show we are always trying to show people that if you begin with your interpretive framework in place, you can always get out of your document—you can always get out of your scripture or your constitution—what you'd like to get out of it, as long as you have the right interpretive lens to start. Originalism and biblical literalism, to me, are related on that front.

Page 37: "Dobbs' history and tradition approach to originalism supports a political project of taking away rights from groups that were not always included in American politics and society. It effectively maintains that a group possesses rights today only if the group possessed those rights in laws that were enacted in the 1700s or 1800s." So you just did voting rights, now do reproductive rights. How do we get here with Dobbs?

Leah: Yeah, well, let's look at how Samuel Alito applied originalism as a methodology in Dobbs. He said, "Look, the question here is whether women had the constitutional right to decide to end their pregnancy. So let's look at how women were treated in the 1800s. And heck, while we're at it, let's go back to the Dark Ages too." There was this guy, Matthew Hale, who sentenced women to death for witchcraft, and you know what he said? "Women don't have rights over their own bodies." And state laws and state decisions at the time did not recognize explicitly that women have control over their own bodies and autonomy.

So again, by directing courts and the country to a time when the country was less democratic, when certain groups were not viewed as full and equal citizens with rights over their own bodies—surprise, surprise—Sam Alito found that certain groups, including women, weren't viewed as full and equal citizens with rights over their own bodies. So it accomplished the same end, again, the very end that people were proposing it as the way to do. Reagan's Attorney General gave speeches in which he made quite clear that "a jurisprudence of original intentions is the way to roll back excessive civil libertarianism and egalitarianism"—by the way, that's code for liberty and equality, all of that excess that the Warren Court did.

Brad: It gets to be too much. Sometimes I wake up and I think I'm too free and I have just too much control over my own body. I wish someone would rein it in and get things back in order.

Leah: Patrick Henry said, "Give me liberty." I said, "Take it away."

Brad: Give me liberty, or a Supreme Court that knows better than me and can regulate everything that I need in life. Okay, let's go back to the thesis here. So you've got grievance, you've got an idea that a certain subset of people—white men, white landowning men, white Christians, whoever maybe—has been persecuted since the '60s, since the Warren Court, since a certain recent time.

To me, that leads to the conspiracy theory, because if you start with the feelings, you get to a place of like, "Well, we're going to have to post facto find the theoretical framework that justifies those feelings. We need to find the reasons that I feel this way," and that is where conspiracy comes in and all kinds of fanciful ideas of what is happening in the country. So do you see that relationship in terms of going from grievance to conspiracy?

Leah: I think that's a really astute point, and once you formulated it that way, I do see that dynamic. And if I could just give some examples in the area of LGBT equality, where I think that might be doing some work:

So when the Supreme Court issued their big marriage equality decision, Obergefell v. Hodges, Justices Alito and Thomas start making these writings in which they say people with traditional views about marriage will find it increasingly difficult to participate in society. They became convinced that people opposed to marriage equality were going to be thrown out of their homes and jobs and whatnot—by which, I guess, they mean criticized.

And it's based on that conspiracy theory, imagining the world to be what it is not, that then leads them to say, "Well, of course, the First Amendment prohibits a state from targeting individuals because of their beliefs"—like the wedding website designer who doesn't want to make wedding websites for same-sex couples, or the cake maker who doesn't want to make a cake celebrating a same-sex wedding. You name it. And so I think that is very much in play in that particular area, and I think it's probably also doing some work elsewhere too.

Brad: So let's talk about 303 Creative, because we covered that as soon as that happened. And to me—jump in, tell me where I'm wrong, tell me where the religion prof is not getting the law right—but 303 Creative, to me, is a really good example of grievance leads to conspiracy, because 303 Creative was brought by ADF, and it did not even include an example where someone had been asked to create a website. It was not one of these like, "Hey, I was asked to do something that felt like it was against my religious beliefs." It was like a completely hypothetical: "Well, if hypothetically I were asked to do that, that might be this, therefore we have to make a landmark ruling that outlaws this and takes away protections from X, Y, and Z." Is that right? That sounds like conspiracy to me.

Leah: I mean, I think it is both conspiracy, but also like a cultivated conspiracy, in the sense that Alliance Defending Freedom really set about to construct a case that they thought would get the Supreme Court to say states can't apply these non-discrimination ordinances to certain businesses. Because this wedding website designer—she only became a wedding website designer, and then only then was like, "Oh, I actually specialize in wedding websites. And oh, by the way, it's really important for me to celebrate faith as part of making wedding websites." Those are ways in which her company kind of evolved.

Later in the litigation, her lawyers said she received a request to make a wedding website for a same-sex couple. Only a journalist, Melissa Gira Grant, did some digging, and it turned out this supposed request came from a man who was already married to a woman and who was a wedding website designer himself. So it's like imagining this might happen, and it would be really bad—but they don't even know what it would mean to be asked to make a wedding website, given that she hadn't really been designing them, and you don't know if it would just involve copy-pasting certain texts, and whether she would actually need to create any kind of messaging that would be part of this, which was the supposed problem with applying this law to her in the first place.

And the conspiracy theories infect the justices' ability to read books. In a case from this last term, Mahmoud v. Taylor, about whether school districts had to provide parents with notice and an opportunity to opt their children out of certain instruction involving LGBTQ-inclusive storybooks, Samuel Alito stared at this book Uncle Bobby's Wedding, which is about a girl who is worried that her favorite uncle will spend less time with her when he gets married, and saw it as a situation in which a young girl has sincere religious objections to marriage equality, says to her mother, "Mommy, I have sincere religious objections to marriage equality," and then her mom says, "No, Chloe, that's bad and evil. You must accept gay marriage." That is how Samuel Alito read this book. So they can find conspiracy theories in children's books.

Brad: The Mahmoud v. Taylor case out of Maryland, Montgomery County, is important for so many reasons. But let's just take Alito here, and here's what I take you to be saying—and again, just jump in when I'm wrong and you feel like I'm getting off base or too far afield.

I hear you saying that there's somebody who has such deep and widespread convictions—shall we say feelings—somebody who has such strong feelings about things like same-sex relationships, any relationship that is not heteronormative. This is the man, as you note in the very first pages of the book, who loves flying flags, or at least his wife does. He himself, not so much, but she's off doing—when he's on the bench, who knows what flags Mrs. Alito has been flying? She's letting the freak flags fly. They may be upside-down American flags, they may be "Appeal to Heaven" flags, who knows.

But what I heard you just say is he has such strong feelings that his ability to read a text that is meant for children is severely impaired, such that he comes up with this interpretation that most people are like, "It is very hard for me to see how you got from A to Z." This is a little girl who's like, "You're my uncle's getting married. Oh no, are we still going to hang out? Are we still going to play? Are we still going to get ice cream?" And for him, that's a whole nexus of ramming woke ideology down a little person's throat.

Leah: That was literally happening in real time during oral argument. And then after people wrote about and spoke about how this was a gross misreading of the book, he wrote it into the majority opinion as well. And it wasn't just Sam Alito. Neil Gorsuch also fell prey to this. Speaking about another book, Pride Puppy, he demanded of the lawyer defending the school district, "Well, isn't this a book about a sex worker?" And the lawyer is like, "What sex worker? There's no sex worker in the book." And it turned out there is a woman in a leather jacket and a drag queen, but Neil Gorsuch read "sex worker, BDSM."

Brad: So here's a takeaway that I could not get away from as I read the book, and it's something I've talked about on this show before: we started to hear in 2016, "Facts don't care about your feelings," right? "F your feelings, your feelings don't matter." And this was a mantra coming from MAGA world, and it has been for a long time. "Facts don't care about your feelings"—Ben Shapiro, whoever it is you turn to, they're saying these things.

And every time I look up these days, I feel like feelings are conquering facts on every front. That could be at HHS with RFK and whatever he's doing today, that could be with the claims of fraud, waste, abuse with DOGE. That's clear to me when it comes to immigration, and every time I hear J.D. Vance talk about, "The most expensive thing we could do is not deport all these millions of people," when all of the economists tell us, "Actually, this is going to destroy our economy." The same thing with tariffs.

Now we might think Donald Trump's our president again, we're just going to get all the feelings, because that's all he runs on. The thing that your book makes clear is that there are six justices, or five, sometimes six justices, who are clearly running on feelings almost all the time, such that their ability to objectively reckon with facts, reality, data seems highly impaired. It seems like a court where feelings are trumping facts consistently.

Leah: I mean, when they said "facts don't care about your feelings," they meant "your" and "my" feelings. They care deeply about their own feelings, so much so that they sometimes overcome the law, and sometimes they just declare them to be the law.

On issues of reproductive freedom, when the Supreme Court was deciding whether California could require unlicensed pregnancy crisis centers to disclose the fact that they are not licensed, Justice Thomas's majority opinion said, "Well, we're not going to apply our usual rules"—under which the government can always, usually, very regularly, require people to disclose all kinds of information they don't want to disclose, like the expiration date for meat or a product safety risk. He said, "We're not going to apply those rules because abortion—that's a controversial topic." So they had big feelings about it, and therefore they don't have to apply the usual rules of law.

Brad: That formulation you just gave is so insightful. It's "facts don't care about your feelings"—only certain people are allowed to have feelings, because only certain people are human. And if you've been human since the 1700s, then you're good, at least in the right category.

All right, folks listening to this show are going to be nodding, they're going to be in agreement, they're going to be thankful. First of all, I also need to point out a few things before I ask you—on is, I have not read a book in a long time with more Mean Girls references. So thank you, thank you so much.

Leah: I am so glad you said that, because the book has been reviewed in a few places, and the thing that really irks reviewers are the cultural references and the jokes. And I just think that's just me—that's the book I wanted to write. And I get that it's not for everyone—it isn’t for everyone—but if you like your Supreme Court analysis and commentary with snark and Mean Girls references, this is the book for you.

Brad: One of the best pieces of snark, people.

Leah Litman: It’s so fetch.

Brad: Thank you. See, this is a millennial’s dream. This is amazing. So, one of the best pieces of snark—and if you have not read the book yet—is Neil Gorsuch the nepo baby. It's a complete takedown of Neil Gorsuch. Cum laude, not magna... Anyway, okay, I'm going to give you a quote from the book, and I'm going to get your reaction to your own writing, which is always fun:

"Panic warnings about politicizing the court miss the point. Refusing to acknowledge the court is political and refusing to engage in any kind of politics vis-à-vis the court is unilateral disarmament."

There's a fear on the side of liberals, progressives, everybody who is not on the MAGA train of "Well, if we politicize the court, aren't we doing what they do? And aren't we just going down the wrong road?" And you're saying no.

Leah: Yeah, I mean, I just think not using politics to try to change the court is just insanity. You are just letting them get away with their takeover and capture of the court, and the court is political. There's just no getting around that. And so you need to acknowledge that if you want to change it. You can't traffic in this alternative reality and just wishcast that we had a totally different Supreme Court and hope that one day it will return to that—that is not how any of this works. And so it is addressed to Democratic political officials and elites who do not seem to be able to get the message.

Brad: My good friend Andrew Seidel, colleague, says the court's been packed, we have to unfuck the court, and one of the ways to do that is to expand the court if and when we ever get somebody from not-Trump-land in the White House. Maybe, if we don't get J.D. Vance and then Barron Trump as our regime successors. So do you agree with that? Are there other things you're thinking about?

Leah: So I do think that Supreme Court expansion has to be part of the equation. And the reason for that, I put it to people this way: other necessary reforms to the Supreme Court include things like an enforceable, mandatory ethics code. Do you think this Supreme Court would allow Congress to enact and enforce an actually enforceable, meaningful ethics code against them? If you think the answer to that is no, then you are also in favor of Supreme Court expansion.

If I think about some of the necessary reforms to our democracy—a renewed, expanded Voting Rights Act, a prohibition on dark money in politics, a prohibition on partisan gerrymandering—those are also three laws that this Court will not let our country and our democracy have. So there too, if you would like our country to become more democratic, then you also support Supreme Court expansion.

And I get that it's uncomfortable. I get that it feels like a radical option. I happen to think it is no more radical, and in fact less radical, than allowing Sam Alito just to be king of the country for however many decades that his jurisprudence maintains control of the Supreme Court.

And so, yes, I think that has to be part of the package of reforms. I mentioned some of the other ones—ethics reform, enforceable ethics code. I also think term limits would be great just to regularize Supreme Court appointments. I also think we should normalize the prospect of Congress enacting laws like an expanded Voting Rights Act and saying this Supreme Court can't declare them as unconstitutional.

So those are just some of the package of Supreme Court reforms that I would want to see, but I think they are all necessary to democratize an institution that is making our country less democratic. And one thing I don't want people to forget in this moment where people are rightfully focused on the presidency and Congress is the ways in which the Supreme Court has enabled so much of what we are seeing.

Brad: Well, yeah, the president has immunity as long as he's doing president things, whatever that means. I want to ask about one more thing, and then a couple of things in the near future, and one of them is this really insightful point you make about the Federalist Society that I think is probably good for people to hear.

When we think about the Federalist Society, we think about Leonard Leo, and we think about young right-leaning folks in law schools around the country. I think there's a chance that some folks are like, "Oh yeah, when so-and-so was in law school, they joined the Federalist Society, and that was their little frat that they were in in law school, and when they graduated, they stayed in touch with all the folks from the frat, and they mentor some people who are coming up the ranks, and they look out for each other." That's nice, and it's obviously more nefarious than that, and it's obviously more right-leaning and power-hungry. But that's kind of how it works.

You make this point that one of the reasons our Supreme Court is packed, and one of the reasons the federal judiciary is packed, is the Federalist Society is a watchdog, such that if you as a young lawyer and then a young judge, newly appointed judge, rule in ways that will please the Federalist Society, you will then be somebody who's on the list for nomination when people come asking politicians and others, "Hey, who should we appoint?" The Federalist Society is going to say, "Hey, so-and-so's on the list." I guess I just—we've never really drawn out that point on this show. And I'm wondering if you can elaborate on that a little bit. The Federalist Society is not just a good old boys club for conservatives in law school—it is a regulator and a pipeline.

Leah: Yeah, so on the pipeline front, membership in the Federalist Society is a key credentialing function. If you want a clerkship with certain judges, if you want a position in the executive branch in certain Republican administrations, if you want a judicial nomination, an association and membership in the Federalist Society is a necessary part of that, because what does it allow? It allows them to get to know you and to figure out your views before they sign you up for a lifetime appointment. And the founders of the Federalist Society were quite open about this. They pretty much said that explicitly to Amanda Hollis-Brusky, a professor at Pomona, who wrote what I think is the definitive book on the Federalist Society, Ideas with Consequences.

And then I think on the back end, what they provide is a kind of disciplining function where they are promising support and a friendly audience for people who reach outcomes that are favored by the Federalist Society, and in that way can help keep people in line. And then I also think they are communicating to nominees and socializing them in what it means to be a Republican, a conservative today, and that is part of what enables changes in the Republican justices' positions as the Republican Party itself evolves.

Brad: All right, Leah Litman, thank you for your time. Thank you for being here. You are kind of all over the place, but where are the best ways to connect with you and everything you're doing with this book?

Leah: So I co-host a podcast, Strict Scrutiny. New episodes drop every Monday. It's focused on the Supreme Court and the legal culture that surrounds it. So if you want to know more about the court and to follow in real time what the court is doing, I'm there basically every week. I also am pretty active on Bluesky at Leah Litman. Those are basically the main ways to find me, and there I'll alert people to anything I'm doing related to the book as well.

Brad: Thank you so much. You can get the book wherever you get your books. And it is illuminating. It is both an unflinching look at what's going on, but it's also filled with the kinds of hope that Leah just ended with.

For subscribers, if you stick around, I'm going to ask a few more questions about the 2026 midterms and what Leah, as a law scholar, sees coming in terms of the threats to voting, to intimidation, to the kinds of shenanigans that the Trump administration is going to get up to. And if you're not a subscriber, it's a great time to do that. You can see that in the show notes.

As always, we'll be back Wednesday with "It's in the Code." We'll be back Friday with the weekly roundup. So appreciate your support and you listening. You can go give us a review, leave a comment or two, and enjoy your day. We'll catch you next time. Thank you.