Lawless: A Storm of Shade and Sneering

Summary

The Gist: "Lawless: A Storm of Shade and Sneering" (June 5, 2025)
Host: Mike Pesca | Guest: Leah Littman, Author of "Lawless" and Co-host of "Strict Scrutiny" Podcast
Production: Peach Fish Productions

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Introduction

In this episode of The Gist, host Mike Pesca delves into an in-depth conversation with Leah Littman, a law professor at the University of Michigan and co-host of the Strict Scrutiny podcast. Littman is the author of the provocative book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. This discussion, the second part of their interview, meticulously explores Littman's critical analysis of the U.S. Supreme Court's ideological shifts and the broader implications for American jurisprudence.

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Main Interview: Leah Littman on the Supreme Court and "Lawless"

The Thesis of "Lawless"

Littman's central argument in Lawless posits that the Supreme Court has increasingly operated based on conservative grievances and fringe theories rather than objective legal principles. She contends that the conservative movement has strategically worked to reshape the Court, ensuring that its justices align with partisan and ideological goals.

[06:53] Leah Littman:
"Originalism was originally sold and developed as a methodology to turn back the civil libertarianism and civil egalitarianism of the Warren Court. It is flexible and manipulable enough to allow the justices to do the things that the Republican Party is urging them to do."

Originalism and Its Impact

A significant portion of the discussion focuses on originalism—the judicial philosophy that interprets the Constitution based on its original meaning at the time it was enacted. Littman argues that originalism has been co-opted to serve conservative political agendas, facilitating decisions that align with Republican objectives.

[08:58] Mike Pesca:
"But to go to Dobbs and Roe, you don't need originalism to overturn that. Ruth Bader Ginsburg was very critical of the analysis of Roe."

[09:08] Leah Littman:
"Originalism is always gonna lend itself to this agenda of rolling back certain rights. It overlaps with this 'let's make America great again,' a restoration of some great past."

Roe v. Wade and Justice Ginsburg's Critique

The conversation delves into Justice Ruth Bader Ginsburg's critique of Roe v. Wade. While some argue that her criticism undermines the argument for overturning Roe, Littman clarifies that Ginsburg's concerns were about the decision's legal reasoning rather than a direct call to overturn the precedent.

[10:08] Leah Littman:
"Justice Ginsburg's criticism of Roe is that the decision focused too much on the rights of male doctors and how abortion restrictions interfered with their ability to practice medicine. She wanted it to be grounded in equal protection principles, to show how abortion restrictions discriminated on the basis of sex and undermined women's ability to participate equally in the workforce."

Legitimacy of the Supreme Court

Littman addresses concerns about the Supreme Court's legitimacy, especially in the wake of controversial decisions like Dobbs v. Jackson Women's Health Organization. She emphasizes the importance of recognizing the Court's flaws while advocating for collective responsibility to uphold constitutional principles.

[21:49] Leah Littman:
"They have done a lot of the damage to themselves. And people calling the court illegitimate, that was not right. But I want us to recognize our collective responsibility to ensure compliance and to demand the enforcement of the law."

Impact of Shelby County v. Holder on Voting Rights

A substantial segment examines the real-world effects of Shelby County v. Holder, a landmark case that weakened the Voting Rights Act of 1965. Littman challenges the narrative that the decision had catastrophic consequences for voter suppression, presenting studies that suggest the impact was more nuanced and, in some cases, negligible.

[25:03] Leah Littman:
"This gutting of the Voting Rights Act... wasn't actually calamitous. It was, if anything, closer to negligible. Studies show that the black-white turnout gap increased by only about 1% compared to earlier estimates of 5%."

[37:08] Mike Pesca:
"So it's been more than a decade since Shelby County v. Holder. The data leans towards the latter—Shelby gave states room to act badly, but it didn't have that huge an effect."

Pop Culture References in "Lawless"

Littman's Lawless employs pop culture analogies to illustrate complex legal concepts and Supreme Court decisions. For instance, she likens the abortion ruling to "Ken from Ken and Barbie deciding it" and describes Shelby County v. Holder as the "Red Wedding for democracy."

[37:08] Mike Pesca:
"In reading Leah Littman's book, the main arguments revolve around major Supreme Court decisions, each tied to pop culture references. Some are pretty strange. For example, the kensurrection of the Courts looks at the abortion ruling as if Ken from Ken and Barbie decided it."

However, Pesca critiques Littman for sometimes downplaying the unanimous nature of certain decisions, such as McDonnell v. United States, which ruled that certain actions did not constitute corruption, despite widespread agreement among justices.

[37:10] Mike Pesca:
"She writes that the Supreme Court said that what McDonnell did was not corruption and did not violate federal law. Instead, the court declared it was just how politics works. She expresses incredulity, as do I."

Reforms and the Future of the Court

Towards the end of the interview, Littman discusses potential reforms to the Supreme Court, including increasing the number of justices ("packing") and implementing statutes to curb unethical practices, such as accepting gifts from donors. However, she expresses skepticism about the Court's willingness to uphold such reforms constitutionally.

[24:45] Leah Littman:
"Reform... should not happen alone because I just don't think that is a fix for the problems that have developed with the court."

[25:18] Mike Pesca:
"Leah Littman is a co-host of the Strict Scrutiny podcast and the author now of Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. Thank you very much."

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Analysis and Conclusions

In Lawless: A Storm of Shade and Sneering, Leah Littman presents a scathing critique of the Supreme Court's trajectory, arguing that it has become a tool for advancing conservative political agendas through methodologies like originalism and the strategic appointment of justices. Her analysis suggests that landmark decisions, often justified through flawed legal reasoning, reflect deeper ideological battles rather than unbiased legal interpretations.

Key takeaways from the episode include:

1. Originalism as a Political Tool: Originalism, initially a legitimate judicial philosophy, has been repurposed to serve partisan ends, facilitating decisions that align with conservative agendas.

2. Questioning Judicial Legitimacy: The Court's declining public approval and controversial rulings have sparked debates about its legitimacy, with Littman advocating for collective responsibility to uphold constitutional values.

3. Impact of Judicial Decisions: Contrary to widespread narratives, some Supreme Court decisions, such as Shelby County v. Holder, may not have had as dire consequences as predicted, highlighting the complexities in measuring judicial impact.

4. Reform Challenges: Efforts to reform the Supreme Court face significant obstacles, both constitutionally and politically, necessitating a multifaceted approach to address systemic issues.

5. Use of Pop Culture in Legal Critique: Littman's incorporation of pop culture references in her analysis provides an accessible yet critical lens through which to view Supreme Court decisions, though it may sometimes oversimplify or obscure nuanced legal arguments.

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Notable Quotes

• Leah Littman ([06:53]):
  "Originalism was originally sold and developed as a methodology to turn back the civil libertarianism and civil egalitarianism of the Warren Court."

• Mike Pesca ([10:08]):
  "But it's not a fact to say the opposite of what he's saying is true."

• Leah Littman ([21:49]):
  "We have to recognize our collective responsibility to ensure compliance and to demand the enforcement of the law."

• Mike Pesca ([37:08]):
  "The data leans towards the latter—Shelby gave states room to act badly, but it didn't have that huge an effect."

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Final Thoughts

This episode of The Gist offers a compelling and critical examination of the Supreme Court through the lens of Leah Littman's Lawless. Pesca and Littman engage in a robust dialogue that challenges conventional narratives about judicial decision-making and emphasizes the intricate interplay between law, politics, and ideology. For listeners interested in the dynamics of the Supreme Court and its broader societal impacts, this episode provides valuable insights and a foundation for further exploration.

Transcript

[Mike Pesca]

Foreign It's Thursday, June 5, 2025, from Peach Fish Productions. It's the gist. I'm Mike Pesca. Last night was the first New York City mayoral debate and the first time this election that front runner Andrew Cuomo is in the same room as most of his rivals. So what happens when nine candidates, four moderators in two hours, minus a commercial break, all crash together in the most raucous city in America? Well, a lot of this brief response, Mr. Hamdani, then we have to move on.

[Leah Littman]

Okay, we have to move on though. We're going to move on. We're not getting an answer. Okay, I'm sorry, we do have to move on. We're at time, Mr. Mamdani. Okay, we do have to move on.

[Mike Pesca]

Gentlemen, gentlemen, gentlemen, listen, we are moving on from.

[Leah Littman]

We have to move on. But I just want to just add that the question was how would you respond to the allegations? But we have to move on. We're going to move on.

[Mike Pesca]

And that was from only the first third of the two hour debate. Really shocking when the question is, how do you solve the affordability Crisis? You have 30 seconds. That was literally the first question asked. This debate was not designed to get answers. It probably couldn't have gotten answers. It wasn't even designed and couldn't have really heard ideas. And few ideas were actually exchanged. Andrew Cuomo took most of the incoming. A few candidates dredging up a quote from 2008 when Cuomo said the words shuck and jive. Maybe he was racist, didn't seem to stick. But what about the sexual harassment complaints that drove him from office? Here was how Michael Blake, a very low polling Cuomo rival, put it. The people who don't feel safe are young women, mothers and grandmothers around Andrew Cuomo. That's the greatest threat to public safety in New York City. Cuomo voted not to represent the largest threat to grandmothers. He has a plan to personally fund a grandmother attack force. And they should hold that to state distinction as impossible a format as it was on the very narrow rubric of looking into a camera and expressing clear and possibly to some compelling thoughts. All the candidates did pretty well. Adrian Adams, speaker of the city Council was good. Whitney Tilson, a hedge fund guy who has no chance of winning, was good. Zoran Mamdi. He speaks very well. He has good sound bites. His, he certainly zinged Cuomo a little bit. Now, did he say of President Barack Obama that the lesser evil is still pretty damn evil? He did, but that was 2013, five years after Cuomo said shuck and jive. So I guess if your number one issue as a New Yorker in 2025 is who worst insulted a guy was president three administrations ago, you have that to go on. I will now read a headline from Politico. Did the debate topple Cuomo? Here's what the candidates told us. I didn't read the story, but I assume that everyone but Cuomo said, sure, sure, it did. And I'm the front runner.

[Leah Littman]

Thank you.

[Mike Pesca]

Please don't talk. Please don't talk. On the show today, I do an entire spiel about a chapter or an idea in the book Lawless. And that is also part two of the interview with Leah Littman. She is the author of Lawless how the Supreme Court Runs On Conservative Grievance, Fringe Theories and and Bad Vibes. A co host of the podcast Strict Scrutiny, she's done many, many interviews. I think yesterday in part one, I put to her some harder questions than she's gotten on her press tour. And that continues in part two. They call it the adversarial method for a reason. Leah Littman. Up next, Father's Day gifts. I don't know, maybe there's a sameness to it. Socks, grills, tools, repeat. This year I wanted to do better, so I quinced it up. Quince makes buying a thoughtful gift easy. They have all the pieces. Dads, I'm one wanna wear organic cotton silk polos. I have to say, did I know I wanted that? I didn't. And then it touched my skin and my skin thanked myself. It was a little, you know, self dealing, as they say. But they also have European linen beach shorts and awesome pants. And quince is priced 50 to 80% less than what you'd find with similar brands. It is the whole cutting out the middleman, but it really works. They work with top artisans. They don't hit you with the crazy markups. They hit you with the delightful fabrics and these factories that are safe and ethical and responsible. And for Father's Day, I gotta say I got it for me and then I gave it to my dad. The shirts that I'm talking about, the polo shirts, they were amazing. I didn't want to give them up. I had two, one for me, one for Dad. I chose the color that I wanted and they're amazing shirts. And I made my dad love me more. I made him. For the dad who deserves better than basic, Quince has you covered. Go to quince.com the gist for free shipping on your order and 365 day returns. That's Q-U-I-N C E.com the gist to get free shipping and 365 day returns quince.com/the gist. We're joined once more by Leah Littman, who is a law professor at the University of Michigan, the co host of the podcast Strict Scrutiny. On the podcast Save America Network, it's called Crooked Media. The new book is Lawless how the Supreme Court Runs on Conservative Grievance, Fringe Theories and Bad Vibes. And my first question in part two is exactly at her thesis that the six, three or sometimes five four rulings show you something about the Court. And that thing is that the conservative movement, which runs on grievance, was working full time to work the system to get their justices on the Court. Why isn't it a legitimate way to look at some of these six three rulings, like take Dobbs. And to think that sometimes Republican presidents will be appointing their own justices. They're more likely to appoint like minded justices who see the law in the way that the Republican presidents see the law. The Court has always been ideological. And why should we not assume that there isn't a legitimate theory of jurisprudence out there who looks at Roe vs. Wade and said it was poorly decided. Why look at that? And saying that is done to appease a Republican ideology as opposed to these are genuine thoughts of learned judges within the legal system assessing how a landmark case was originally decided.

[Unnamed Guest]

Yeah. So two things. One is on some level I just don't think it matters whether the judges view themselves as selecting an interpreter methodology that they think is just the best interpretive methodology, or if they are saying I overrule Roe because I think abortion is murder. Either way, the Republican Party can select justices who will advance their political partisan ideological agenda. And so if that is the mechanism, either way, it's happening. We should still understand the justices to be selected and appointed to advance partisan political ideological aims. So that's one thing. But second is as I unpack in the book, originalism was originally sold and developed as a methodology to turn back the civil libertarianism and civil egalitarianism of the Warren Court. So Ronald Reagan's Attorney General gets up and stands up in front of the entire American Bar association before there was this well established conservative legal movement and conservative legal ecosystem and says guess what? A jurisprudence of original intentions. That's the way to challenge the radical egalitarianism and radical libertarianism of the Warren Court. This is said repeatedly. Another official within the Reagan administration, Stephen Markman, who would go on to become actually a justice on the state Supreme Court, where I live, Michigan Supreme Court authored a document in which he said, originalism is the way to advance the social issues, social policy of the Reagan administration. So they baked into originalism ways of advancing their preferred social policies. That's the way it was developed. That's how it was taught. That's how it's been practiced. And so I just think these things are, you know, inseparable in a lot of ways, in part because originalism is always gonna lend itself to this agenda of rolling back certain rights. You know, it overlaps with this let's make America great again, a restoration of some great past. And it is flexible and manipulable enough to allow the justices to do the things that the Republican Party is urging them to do.

[Mike Pesca]

Yeah, but to go to Dobbs and Roe, you don't need originalism to overturn that. Ruth Bader Ginsburg was very critical of the analysis of Roe. Roe.

[Unnamed Guest]

Can I stop you right there?

[Mike Pesca]

Go ahead.

[Unnamed Guest]

I think this is one of the absolute worst talking points and things that has been said to people about Roe. Justice Ginsburg's criticism of Roe versus Wade is that the decision focused too much on the rights of male doctors and how abortion restrictions interfered with their ability to practice medicine. She wanted the decision to be grounded in equal protection principles, to show how abortion restrictions discriminated on the basis of sex and undermined women's ability to participate equally in the workforce. And her criticism of Roe is that it was not developed as part of that equal protection litigation strategy. She refused to retire under President Obama because she didn't think any other prospective replacement would be as protective of abortion rights as she was. She is not someone who says, let's overrule Roe. Roe is wrongly decided. She wanted it to be reasoned in a different way and to reach more far than it did.

[Mike Pesca]

Yeah, I don't know what you think the talking point was, but basically she believed that Roe was based on the wrong argument. A violation of women's privacy rather than gender equality. We're not saying different things, but that's what the argument is. She looked at the original way Roe was argued, and she had a critique of it. But of course, this all comes back from Griswold and Penumbras of emanations and finding a right to privacy in the Constitution, which. Which you don't need any doctrine of originalism. And I know Ed. Ed Meese promulgated that, and I know that Strom Thurmond believed in originalism, but originalism never had to exist to look at Roe and find that it was a very shaky ruling. So, and the only reason I say any of this is if the entire conceit is that this is a concoction of a vast right wing machine, and there is a vast right wing machine and Leonard Leo is paying for these people. But I don't think it shows up in the Roe ruling to anyone. You don't have to be bought and paid for or part of the Federalist Society bench to look at Roe and to have had problems with how that was actually decided. It doesn't actually flesh out your general thesis of the vast right wing apparatus that is warping the Supreme Court.

[Unnamed Guest]

So I disagree for two reasons. One is that if you disagree with Roe's reasoning, that doesn't necessarily require you to overrule Roe. Right? Replacing its reasoning with equal protection would actually expand the protections of Roe, not result in overruling or restricting it. Whereas coming up with this interpretive methodology like originalism, that is a justification for overruling Roe in a way that just criticizing its basis as being grounded on privacy rather than equality isn't. Second is, I think that originalism helped in a lot of ways because what it is became code for is overruling Roe without having to say overruling Roe. And so that allowed the Republican Party to traffic in these ideas where people understood what they were saying without them having to explicitly own it once it became clear how wildly unpopular it was. So if you think back to, for example, Brett Kavanaugh's confirmation hearing, former Senator Ben Sasse said, look, we have had women screaming about how women are going to be dying at all of these recent confirmation hearings, and that has never happened. Let's talk about stare decisis and originalism. And that provides a vocabulary for these confirmation hearings to happen in a register that isn't about women dying, women being denied health care, but it is still the method through which the Justices are going to accomplish just that. And that's how it was developed. You know, the method that Justice Alito applies in Dobbs is the one propounded by Chief Justice Rehnquist, one of the original dissenters in Roe, that he offered once on the Supreme Court after he was elevated to Chief justice. And everyone understood at the time that opinion. Glucksberg was trained at overruling Roe because if you define the history and tradition, originalism in that way, it will inevitably result in Roe being wrongly decided. So I think you can track the development of the movement, track the development of the law from Beginning to end, as pretty clearly trained on the project of overruling Roe.

[Mike Pesca]

Without originalism, do you think Roe wouldn't have been without the idea of originalism, do you think Roe would have been overturned?

[Unnamed Guest]

So when you ask me without the idea of originalism, things that I want to put in the bucket of originalism are some of the other things you were alluding to, like Leonard Leo and his entire network. Right. That is justifying originalism and providing talking points to support the confirmation of Republican appointees. So when you say without originalism, you know, my mind goes to, well, a world without the Federalist Society, a world without all of this entire apparatus.

[Mike Pesca]

I'm not asking without this idea, would we have, would we wipe away the people who believed in the idea? I'm saying without the idea, I would assume that Leonard Leo and those who are conservative would want the court to be conservative and find a way for the court to get conservative. I'm saying take away the idea, the vulnerabilities of Roe, that one ruling, not some of the others, wouldn't they still be there and, and be motivating to a large percentage of Americans and judges?

[Unnamed Guest]

So I'm not sure because I think originalism is both a ideology and a methodology. And I think if you take it away, I don't know what that world looks like as far as them pushing in the executive branch and through nominations for judges who would overrule Roe.

[Mike Pesca]

In the book, you write about something that Anthony Kennedy wrote. It seems unexceptional to conclude some women come to regret their choice to abort the infant life they once created and sustained, even though he conceded that there was, quote, no reliable data to back up this take. So I agree that's sloppy to assert something without data. But to go back to what he says, it's unexceptionable to conclude that some women come to regret the choice. You write, and this is a major part of your book, vibes greater than symbol, facts. Vibes are better than facts. The facts suggest the opposite is true. So is what you're saying is not true that some women come to regret their choice to abort the infant life they created in society.

[Unnamed Guest]

So the long term longitudinal study that Diana Green Foster conducted found that women who are denied abortions regret their choices in that they have lower levels of happiness than women who receive abortions. So I actually do think that statement is inaccurate in the context in which Justice Kennedy represented it, which was a basis to justify restrictions on abortion, because there is no evidence that a woman who is prevented from Getting an abortion. Right. Is made to feel better for having been denied an abortion. And that is the statement that Justice Kennedy is making there, that because some women.

[Mike Pesca]

No, it's not. I mean, you're a licensed professor.

[Unnamed Guest]

No, it is. That is literally his rationale for upholding the partial birth abortion.

[Mike Pesca]

Now, it says, it says the word say seems unexceptionable to conclude some women come to regret their choice to abort the infant life. I wouldn't call it the infant life, but fine, you changed it to, ah, but what about the women who regret being denied? Possibly a good point, but that's not what he's talking about.

[Unnamed Guest]

No. So I am not talking about the women who are denied. I am talking about the context in which he is making that statement, which is to justify the conclusion that the federal government can prevent some women from getting an abortion. So it is the disconnect, right, between the statement he is offering as well as what that statement is being used in service of, that I think makes the statement horribly false and misleading.

[Mike Pesca]

But that's not a fact. What you've done is you've taken the implication of his statement and rebutted it. I agree with you. But it's not a fact to say the facts suggest the opposite is true. I mean, this might be a little syntactical, but of course you cannot say that there are facts out there that rebut his idea that it's unexceptionable that some, which I guess could mean three or four out of the million who get an abortion come to regret it. There are women, Roe herself, you know, there are women who say they came to regret it.

[Unnamed Guest]

Yes, although she purportedly rescinded that statement as well. So I don't know exactly the like. My problem is, like, I actually cannot identify anyone. And Diana Green Foster's longitudinal study didn't identify anyone. So, like, if you look at the.

[Mike Pesca]

Anthro, there was a longitudinal study that didn't identify one person who ever said they regret an abortion.

[Unnamed Guest]

That was her study.

[Mike Pesca]

Listen, I can't. Okay, here's, here's how this goes. I'm with you ideologically, but if we're literally asserting that there's not one woman.

[Unnamed Guest]

Out there, I'm not going to insert there isn't anyone.

[Mike Pesca]

Well, two people to constitute a sum. Then you get to the idea of what facts are. It is not factual to say the opposite of what he's saying is true. It's fine to say his conclusions were that sort of engaging in sloppy logic leads to the terrible conclusion of Possibly overturning Roe. I'm with you. But it's not factual to say the opposite of what he said is true.

[Unnamed Guest]

I think it is factual because I think some is conveying an impression that is just false. And I understand you want me to say, like, implication or conclusion in service of. But that is not how I wanted to write the book.

[Mike Pesca]

No, I just don't write that. I don't know what I want you to say. I just. I think that facts are stubborn and important things, and that's not a fact. Do you think there is a cost? And I've heard. I know. I think I know what your answer is going to be, because I've heard you talking about it. But do you think there's a cost or a danger, especially before the current court, to talk about how illegitimate the Supreme Court has become, to question the legitimacy given that now the Supreme Court is perhaps the last bulwark to the lawlessness, unconstitutionality, and deep excesses of the Trump administration?

[Unnamed Guest]

Yeah. So it is, as I think I've said before, kind of a weird time for a book that is focused on the court to come out that is very critical of the court, in part for that reason. But I guess I hold two different ideas in my mind. One is that criticizing the court, urging reforms to the court is always going to be different than saying we should not respect judgments or decisions of the court that enforce a statute against the executive branch or something like that. Like there's conceptual space between these things. Second is, I think it is important to understand the ways in which the court is aligned with the Trump administration and also lay the groundwork for the Trump administration, both with respect to particular substantive areas of law, but also just with respect to the Trump administration, period. So I just think law, politics, ideology, society, a lot going on. It's complicated. But this is an important part of the story that I wanted to be presented. You know, the book is not intended as like an academic tome on all facets of the Supreme Court. It is. Right.

[Mike Pesca]

And no, most academic tomes don't have.

[Unnamed Guest]

Much Barbie or Mean Girls or anything else.

[Mike Pesca]

Right. I agree with you. Criticism, scathing criticism, deserved criticism, check, check and check. But legitimacy, little bit dangerous. And then actually asserting this court is illegitimate. Not even the whole, this court threatens or flirts with illegitimacy. This court is illegitimate. That is something on the show that I've talked about. I very much am worried about it. And you know that once the court gives a ruling, as they will, that Donald Trump doesn't want to adhere to. He's going to reach for that. He's going to exactly point to those statements and it's going to be weaponized. And so that's why phrasing or thinking about the court with that specific term, illegitimate, really worries me. Does it worry you?

[Unnamed Guest]

I understand the concern. I guess it doesn't worry me for two reasons. One is, in some ways, I think it's over determined. The court's public approval ratings are so low, especially in the aftermath of them overruling Roe. I think they did a lot of the damage to themselves. And people calling the court illegitimate, that was not right. Like kind of the driver about people's opinion of the court after Dobbs. So that's one thing. Second is I want to put us in a position where, if and when Donald Trump asserts the authority not to abide by a Supreme Court ruling that tries to enforce a guarantee of due process against him or whatnot, that we recognize our collective responsibility to ensure compliance and to call for compliance and to demand the enforcement of the law and not just to hand it all over to the idea that the Supreme Court is perfect and good and anything it says should be respected. And so for us all to play a role in that kind of like collective constitutional position.

[Mike Pesca]

Well, saying the Supreme Court did it to themselves with this one bad ruling. The Supreme Court's favorability rating is, according to Pew, last I looked, 47%, 51 unfavorable. But you know, the Democratic Party would kill 47% approval rating.

[Unnamed Guest]

They've also done that to themselves.

[Mike Pesca]

Well, that's the thing. This is what I'm talking about. Then if you say Congress is illegitimate, our institutions are illegitimate, I mean, I don't know. I'm just more constitutional. I just think it's socially conservative than.

[Unnamed Guest]

You to like, recognize institutions are flawed and that like, kind of.

[Mike Pesca]

Does that mean that illegitimate? Does that mean we should say they're illegitimate? Does that mean are very well listened to?

[Unnamed Guest]

I'm fine saying, like, the way they're operating right now is not legitimate. You know, I just think the federal legislature has become. But sorry to interrupt, but of course.

[Mike Pesca]

It is legitimate because we have to follow them, just like Trump has to follow them. If we say, damn it, I hate it, but it's legitimate. They're the court. You got to follow the rules. We'd be in much a much better position.

[Unnamed Guest]

When I say illegitimate, I'm not calling for mass civil disobedience.

[Mike Pesca]

You're one of your, one of your prescriptions is meme the shit out of these guys and Amy. So I know that. What do you think, other than the public getting involved, what do you think can be done? What do you think anything can be done through statute with just a pretty small issue of the justices on the court accepting extremely large gifts from donors?

[Unnamed Guest]

So I think it can be done by statute. I am not confident that the current Supreme Court thinks it can constitutionally be done by statute, though.

[Mike Pesca]

Are they going to be the final determinant on that?

[Unnamed Guest]

This is part of the issue is I do worry they would say, and we have the power to strike down this statute that attempts to restrict our ability to receive gifts.

[Mike Pesca]

And what do you think of the idea of or the fix of packing gifts the court, which is to say increasing the numbers, which wouldn't even be a constitutional amendment, would it?

[Unnamed Guest]

Yeah. Yeah. So I just think that reform, like any of the reforms, should not happen alone because I just don't think that is a fix for the problems that have developed with the court.

[Mike Pesca]

Leah Lippman is a co host of the Strict Scrutiny podcast and the author now of Lawless how the Supreme Court Runs on Conservative Grievance, Fringe Theories and Bad Vibes. Thank you very much.

[Unnamed Guest]

Thank you.

[Mike Pesca]

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It really works. Forget overpriced designer brands. Ditch the disposable fast fashion. It's going to ditch you eventually. True Classic is built for comfort. It's built to last. And it's built to Give back. You can grab them at I'll name some retailers. Target, Costco, or how about this? Go to trueclassic.com the gist that helps us the most. And it'll help you because you'll look truly classic. Trueclassic.com/the gist and get hooked up today. And now the spiel. So in reading Leah Littman's book, the main arguments revolve around major Supreme Court decisions, each tied to pop culture references. Some are pretty strange. For example, the kensurrection of the Courts looks at the abortion ruling as if Ken from Ken and Barbie decided it. Another chapter, the American Psychos of the Supreme Court, is about the murder and execution of the administrative state. Then there's a reference to Arrested Development in connection with Citizens United and McDonnell vs. US. There's always money in the banana stand. Doesn't quite land. This, however, is not literary criticism. It's a little legal criticism. So when writing about McDonnell, a decision that let elected officials off the hook for corruption, I agree with that assessment. So does Lipman. She writes the supreme said that what the McDonald's did was not corruption and did not violate federal law. Instead, the court declared it was just how politics works. She expresses incredulity, as do I. But the reason that she writes it is that she says it connects to Citizens United because the court thinks that access to power is never corruption, even when it's clearly bought. All right. Don't you think she should have said in those passages that the McDonald ruling was unanimous? It was nine nothing. Not a runaway conservative ruling. The court at the time included Kagan, Sotomayor, Suter, Ruth Bader Ginsburg. They were all on board. And then there is the Voting Rights Act. On that front, I thought I was mostly aligned with Littman going in, and then I dug a little deeper. So her overriding analogy for this one is Game of Thrones. She calls Shelby County v. Holder the red wedding for democracy. Remember, in Game of Thrones, the red wedding was, quote, a pre planned massacre. And Lippman writes, the long night is coming and the dead come with it, claiming that Starting in the 1980s, Republicans and Republican judges began reviving arguments against the Voting Rights act and democracy itself. That's. That part's true. Reagan was against it. Conservatives have been for a long time. So, so far so good. Or at least to me, so far so very, very familiar. I've heard for years that Shelby county was the judicial gutting of the Voting Rights Act, a horrible affront to black voters, a a pure power grab Based on willful ignorance. But yeah, I had heard that. But I did want to go back and see what the data actually said. It's like they say in my cousin Vinnie, perhaps the laws of physics cease to exist on your stove. I am not going to do the pop culture thing. I am going to tell you what the studies actually say and what the advocates say the studies say. So here's the headline. This gutting of the Voting Rights Act, a big chapter in the book, a major plank in the idea that these, what does she call them, the Supreme Court runs on conservative grievance and fringe theories and bad vibes, wasn't actually calamitous. It was if anything, closer to negligible. So it's been more than a decade since Shelby County v. Holder. That was 2013 decision and it did strike down the federal government's ability to pre screen voting laws in certain states. The supposed cutting of the Voting Rights act and has been chronicled extensively by most prominently the NYU Brennan center, named for the liberal Supreme Court Justice. And when the Brennan center comes out with a new study on this or a new write up of this, most of the mainstream media writes it up. Brennan routinely releases updates that get play in the media, citing studies that show that after Shelby county, black voters in the states of the former Confederacy have indeed been suppressed in voting. And they do this by measuring the black white turnout gap. Here are some of their statistics. In 2012, the last presidential election before Shelby. So this one was with the full preclearance of the Voting Rights act in place. The black white turnout gap was less than 2%. Next presidential election it went up to 9%. And next presidential election after that 11%. So yeah, that's bad, right? They also track the midterms. They find that actually almost no change from 2014 to 2018, but then a pretty big spike to 2020. Again I say hu, but the study that Brennan used was conducted by Kevin Morris. Michael Miller. Decent enough. It looked at county level data and saw how voting changed. But I was wondering why is it the gap that's so important? If gutting the Voting Rights act was meant to suppress black votes, wouldn't just looking at black votes to see if there were more or less answer that question. And black votes went up in the next few elections, white votes went up more. Might there be a reason for that? Might there be a reason why black votes would be expected to relatively suffer from the starting line of 2012 when the first black president was up for reelection versus the next two presidential elections which Featured no black candidates, but a white Republican making explicit appeals to white voters. And then another study came out a few years after the one that Brennan used. This one was by Stephen Billings et al. It didn't just look at county data, went deeper. It used something called the triple difference methodology, the gold standard in a study like this. It looked at differences in race and time and the preclearance coverage on the law that was ruled on. It's like they call it a difference in difference model. But this extra lens filters out national trends and racial turnout changes that might have happened anyway. This kind of study didn't just ask did black turnout rise or drop? It asks did it drop more than white turnout in the places where federal oversight was removed? And it asked it. Well, the older study that Brennan still cites says that the black white turnout gap in those regions of the former Confederacy where you needed a Voting Rights act was about 5 percentage points greater than it would have been if the Voting Rights act were in full force. So in other words, the gap got worse by five points. The new triple difference study said it's maybe 1%, not 5%. And by the way, there have been other studies using the Brenner Center's method did not replicate what the Brennan center found. Two other pretty decent studies found no difference. Or there might have been a rise in black voting relative to whites. Wait, how could there be a rise? I will tell you. Counter mobilization. And this is what we learn from the voter ID battles, that voter ID laws are supposed to suppress the black vote. But what happens is when people hear they're being discriminated against, they're extra incentivized to turn out. Now, let's be clear, this doesn't make, if that's what's going on, counter mobilization. It doesn't make the original Roberts Court moral or legally correct. But maybe it was correct. What it does add up to is the idea that this supposedly calamitous ruling had very little real world effect. I think it's very safe to say, conservative, to say, in fact, don't just trust me. I'll put in the show notes the stats supplied by the Kaiser Foundation. Look up the national black and white turnout rate in the past in all the elections since shelby. So in 2022, 9.6% was the gap. But in North Carolina, which I looked at because they've probably had the most fights over voter ID law and the courts have weighed in for North Carolina, the against the 9.6 national average, the state gap was only 8.1 in 2021 national gap was 3.7. In North Carolina it was 1.6% more white. Same in 2018, half the gap of the national gap. And then check this out. In 2016, three and a half percent more white voters. That was the gap nationally. But in North Carolina, more black people, a greater percentage of black people turned out than white people. And the same was true in 2014. So many court rulings, the laws trying to enforce voter id. And what happened was more blacks were voting relative to whites in that state. By the way, I looked at New York, just because it was the next one on the list from North Carolina, they did worse than North Carolina. And New York wasn't one of those states of the former Confederacy affected by preclearance. So was Shelby a judicial gutting of democracy or just another round in America's endless political arms race? The data leans towards the latter. Shelby gave states room to act badly, but even if they tried to, it didn't really have that huge an effect. And where it may have had some effect, the real world effects were really, really, really small and might have even helped black turnout. So no red wedding, no winter is coming, no end of the world zombie apocalypse. I say to understand this, let's go back to more traditional texts. A little Much ado about nothing and a lot of Emperor's new clothes. And that's it for today's show. Michelle Peska's cbso. Corey War is the producer. Ashley Khan is co cbso. Kathleen Sykes writes up the old gist list. Oh, you should, you should check it out. It's very educational. Astrid Green does our socials and Leo Baum, he does a little bit of everything. Uproot G Peru Duparu. Thanks for listening.

[Leah Littman]

Thank you.

[Mike Pesca]

Please don't talk. Please don't talk.