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

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.

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."

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.

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."

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.