Lawless

How can you tell when a court stops merely interpreting law and starts channeling a political project? In this book, Leah Litman argues that today’s Supreme Court is running on conservative grievance—what she calls “bad vibes”—and that those vibes travel through institutions, doctrines, and funding networks to produce outcomes that look technical but land as partisan wins. The core claim is simple but unsettling: method isn’t neutral. Originalism, the “major questions” doctrine, selective First Amendment protections, and a narrowed notion of corruption together transform conservative political preferences into binding law that reshapes your rights, your vote, and your government.

Litman contends that this isn’t an accident or a single-term story. It’s a decades-long, well-funded project that built a judicial pipeline (via the Federalist Society and allies), choreographed the right cases (via groups like Alliance Defending Freedom), and rewrote core legal baselines on money in politics, administrative power, and civil rights. To see it, you have to watch the full ecosystem—judicial selection, dark-money architecture, doctrinal pivots, and social rituals that reward judges who deliver.

What “vibes” look like in doctrine

“Vibes” here aren’t mysticism; they’re a recurring orientation. In Dobbs, the majority installed a “history and tradition” test that treats 18th- and 19th‑century practices as dispositive on modern reproductive rights—a jurisprudence shaped by eras when women couldn’t vote. In religion cases like Masterpiece Cakeshop, Fulton, and 303 Creative, the Court recasts equality duties as burdens on religious speech, creating exemptions that let discrimination re-enter the marketplace. In voting cases like Shelby County, Rucho, and Brnovich, the Court dismantles federal protections and declares extreme gerrymandering a non-justiciable political question, even as it narrows ways to challenge racially disparate voting burdens.

These moves travel with another pair: money-as-speech rulings (Citizens United, McCutcheon, SpeechNow) supercharge wealthy influence, while corruption cases like McDonnell narrow criminal law to explicit quid pro quo, blessing a culture of access, trips, and gifts as non-criminal “politics as usual.” And on governance, the major questions doctrine and Chevron’s demise shift technical choices from expert agencies to courts, creating a standing veto on ambitious regulation (West Virginia v. EPA; COVID-era rules; student-debt relief).

The machine behind the rulings

Litman shows how a selection-and-funding machine makes these doctrinal tilts predictable. From Ed Meese’s originalism push in the Reagan era, through the Federalist Society’s vetting pipeline, to Mitch McConnell’s confirmation tactics, personnel choices primed the Court to deliver on movement goals. Donor ecosystems—DonorsTrust, Americans for Prosperity, Marble Freedom Trust—pair with litigation shops (ADF), messaging outlets, and amicus networks to feed cases with sympathetic facts and sustained political cover. Leonard Leo sits at the hub, brokering funds and access that socialize judges into a congenial interpretive world.

The result is coordinated choreography: choose nominees with deregulatory, originalist priors; curate cases like 303 Creative (where the “client” initially had no actual customer request); flood the Court with amici; and package outcomes in neutral-sounding doctrines. That’s why the jurisprudence so often tracks Republican governing interests: restricting reproductive autonomy, widening religious and corporate exemptions, loosening campaign-finance restraints, limiting voting protections, and hobbling regulators (note the alignment with policy gains for energy, finance, and culture-war actors).

Why this matters to you

This isn’t a law-school abstraction; it’s the architecture of your daily life. Dobbs made pregnancies riskier (see Mayron Michelle Hollis’s ectopic pregnancy story in Tennessee). 303 Creative tells LGBT people that “ordinary commerce” can suddenly turn into expressive refusal. Shelby County greenlit polling-place closures and restrictive ID laws, producing hours-long lines that fall hardest on Black voters. Citizens United and McCutcheon let a handful of billionaires bankroll narratives and access pipelines you can’t match with a vote or a small donation. And West Virginia v. EPA slows collective responses to climate and public-health crises by demanding hyper-specific congressional text that our gridlocked Congress rarely supplies.

Key through-line

When the Court elevates grievance-laden narratives to governing doctrines, it doesn’t just decide cases—it reallocates power: from voters to donors, from agencies to judges, from equality norms to religious exemptions, and from modern rights to a curated past.

If you want to contest outcomes, Litman’s advice is implicit: don’t argue doctrine in isolation. Build infrastructure—pipelines, litigation capacity, donor transparency laws, and legislative clarity—that can withstand a Court poised to privilege deregulatory, socially conservative ends. (Note: This echoes insights from scholars like Jamal Greene on “rights as trumps” and Kate Andrias on political economy—doctrine follows power and institutions.)

Litman maps how conservative legal networks engineered a judiciary that would predictably deliver movement-aligned rulings. You watch a multi-decade pipeline mature: Ed Meese champions originalism in the Reagan DOJ; the Federalist Society grows from a debating club to a talent-and-ideology certifier; and Senate Republicans refine confirmation hardball from the Bork fight to the Garland blockade and the rapid confirmations of Gorsuch, Kavanaugh, and Barrett.

This pipeline matters because interpretive methods don’t operate themselves. Originalism and textualism travel with human discretion. If you want Dobbs, 303 Creative, Shelby County, and West Virginia v. EPA, you need judges inclined to read history selectively, to favor private ordering over public regulation, and to treat wealth-based speech as sacrosanct. The Federalist Society’s nomination lists and vetting rituals fill that role, helping ensure ideological fidelity before and after appointment.

The selection-and-socialization loop

Selection isn’t the whole story. Socialization keeps judges “on script.” Conferences, donor-hosted retreats, and elite validation reinforce identities and priorities. Litman quotes a Federalist Society cofounder boasting the group can “absolutely” keep justices in check. That sounds hyperbolic until you see how a justice’s laudatory reception at Society events pairs with donor-funded perks in adjacent spaces (ski retreats, portraits, jet rides) that signal belonging. (Note: Political scientists call this an “epistemic community”—shared assumptions, status signals, and reward structures.)

Leonard Leo emerges as the movement’s super-connector. He coordinates Rule of Law Trust, Judicial Crisis Network, and allied nonprofits to bankroll confirmation campaigns, nurture friendly litigators, and cultivate relationships with sitting judges and justices. On the demand side, litigators like Alliance Defending Freedom manufacture cases with facts that travel well to the Court; on the supply side, donors route money through vehicles like DonorsTrust and Marble Freedom Trust to reduce scrutiny and sustain multi-year efforts.

From pipeline to policy

The policy fruits of this machine are identifiable. On social policy, you get Dobbs and a jurisprudence that treats religious exemptions as expanding speech while contracting equality. On democracy, you get a Court skeptical of voting protections and blind to partisan gerrymanders (Rucho) even as it narrows racial-impact challenges (Brnovich). On political economy, you get a Court that treats money as speech (Citizens United) while trimming anti-corruption law to explicit quid pro quo (McDonnell), and that arms courts—not experts—to thwart major regulations (West Virginia v. EPA, Chevron’s fall).

Personnel makes doctrine durable: after decades of occasional GOP “surprises” (Souter, sometimes Kennedy), the movement refined screening to reduce drift. Trump’s explicit pledge to pick from Federalist Society lists—and the Senate’s speed in confirming—locked in a supermajority willing to overturn precedent and re-anchor baselines in a conservative vision of history, religion, property, and speech. That’s not drift; that’s the design.

Strategic takeaway

If you care about different outcomes, you must build counter-infrastructure: talent pipelines, confirmation strategies, donor transparency, and case-selection shops that can carry alternative legal theories up the ladder. Doctrine follows who’s in the robes—and who’s shaping what gets to them.

(Parenthetical note: Progressives have begun answering with judicial-nominations reform talk, state-court strategies, and pro-democracy litigation hubs. But Litman’s point is sobering: without a comparable machine, occasional wins won’t arrest a systemic tilt.)

Litman calls Dobbs a “Ken‑surrection” to underscore how originalism aligned with a political movement to restore patriarchal control over reproductive autonomy. Originalism’s premise—that the Constitution means what it meant when adopted—sounds neutral. In practice, it invites courts to anchor modern rights to eras when women and many minorities lacked political power. That framing made Roe fragile and invited the Dobbs majority’s “history and tradition” test, asking if a right was deeply rooted in 18th- and 19th‑century law.

The personnel story connects the dots. William Rehnquist opposed the ERA and Roe early on; Sam Alito wrote memos seeking Roe’s downfall; and nominees like Alito and Barrett came through a Federalist Society pipeline expressly built to deliver originalist judges. Mitch McConnell’s blockade of Merrick Garland, followed by rapid confirmations under Trump, created the votes to revisit Roe. The Court then choreographed timing—granting and deciding cases after personnel changes—to ensure the outcome. Method and muscle moved together.

History as a gatekeeper

Dobbs deploys a “deeply rooted” inquiry that uses a sexist past to decide modern liberty. The majority emphasized anti-abortion laws from the 1800s while discounting the Reconstruction Amendments’ egalitarian thrust and 20th-century privacy precedents. Litman frames this as a jurisprudence of masculinity: male lawmakers in eras that treated women as legal dependents now control what counts as liberty today. That isn’t neutral history; it’s curatorial power masquerading as method.

The human toll is immediate. Litman recounts Mayron Michelle Hollis’s ectopic pregnancy in Tennessee after Dobbs. Because providers feared criminal liability under state bans, care was delayed until a hysterectomy was necessary. This is the ground truth of doctrinal shifts: medical deserts, prosecutorial threats, and chilling effects on standard care, including miscarriage management.

Aftershocks beyond abortion

Dobbs reverberates through other unenumerated-rights cases. Justice Thomas openly invited reconsideration of contraception (Griswold), sexual intimacy (Lawrence), and marriage equality (Obergefell). Even without outright reversals, courts can narrow these rights by embracing carve-outs as speech or religion (303 Creative) or by manipulating standards of review. The lesson: once “history and tradition” becomes the master key, rights that emerged from modern understandings of equality stand on precarious ground.

Litman stresses the politics that paved the way: Republican administrations used abortion as a wedge (from Nixon’s Southern Strategy through Reagan’s evangelical alliance), built interpretive cover (Meese’s originalism), and paired that cover with appointments engineered to deliver doctrinal turns. Legal arguments mattered, but only because the right judges held the pens.

Bottom line

Originalism operates as a political project: it converts a curated past into present law, constraining democratic updates to liberty and equality while embedding power imbalances from the founding and Reconstruction eras.

(Note: Scholars like Jack Balkin and Will Baude argue for more capacious “living originalism,” but Litman’s account shows how, in practice, the Court’s version narrows rights tied to gender and sexuality. You should treat method claims as power claims and ask: whose history, which traditions, and who benefits?)

You might think Obergefell settled marriage equality; Litman shows how a different playbook—equality reframed as compelled speech—has carved holes in LGBT protections. The arc runs from Masterpiece Cakeshop’s “narrow” ruling, to Fulton’s invitation for wider religious carveouts, to 303 Creative’s declaration that a web designer can refuse same‑sex wedding services on speech grounds. The message to businesses is clear: claim expressive status, then seek a speech or religion exemption from civil-rights laws.

Alliance Defending Freedom helped manufacture 303 Creative with a fact pattern designed to maximize sympathy and avoid messy conflicts (the initial record lacked any real same-sex customer request). That’s strategic litigation: curate plaintiffs, frame speech claims, and deliver the Court a scenario that feels “safe” for a rights carveout. The result is doctrine that expands far beyond wedding cakes or websites once lower courts apply it to photographers, calligraphers, and any “expressive” vendor.

The rhetorical inversion

303 Creative flips civil-rights vocabulary: the person denying equal service becomes the rights holder in need of protection; the protected class appears as the “compeller” of speech. Litman argues this inversion weaponizes the First Amendment to undermine anti-discrimination norms. It echoes past backlashes—Anita Bryant’s campaigns and Boy Scouts v. Dale—but with sharper doctrinal edges that invite routine commercial actors to opt out of equality duties.

Practically, you may see refusals in everyday transactions, uncertainty in adoption and foster-care contexts, and widening litigation over where expression ends and commerce begins. This uncertainty itself chills enforcement: agencies and individuals may avoid testing the edges when they fear hostile courts. Meanwhile, conservative groups can pick friendly jurisdictions to generate new exemptions, building a layered body of case law that narrows equality without overruling it outright.

Connections to Dobbs and beyond

The same justices who dismantled Roe signaled openness to revisiting Lawrence and Obergefell. Even if the Court never squarely reverses those cases, an exemption-heavy world functionally reduces protection. Combine historical tests (Dobbs) with speech-elevation (303 Creative), and equality rights become porous, contingent on opponents’ ability to frame their objection as expression or religion.

Litman’s warning: don’t treat signature victories as permanent. Without durable legislative backstops and enforcement capacity, a sympathetic Court can nibble at the margins until the core is hollowed out. If you want protections to last, you need robust statutes, explicit coverage for sexual orientation and gender identity, and administrative agencies empowered to enforce them (backed by funding and political support).

Key insight

The Court isn’t repudiating equality outright; it’s transforming equality into a set of default rules riddled with opt-outs—especially when conservative claimants can package objections as protected expression.

(Parenthetical note: This strategy mirrors the Court’s broader pattern of selective First Amendment expansion for conservative-aligned speech while constraining unions and disclosure—institutional asymmetries covered below.)

Litman frames voting law as the fight over who governs. The modern story starts with the Voting Rights Act’s promise to correct Jim Crow disenfranchisement and arrives at a Court-led rollback that normalizes minority rule. Shelby County (2013) gutted the VRA’s preclearance by striking the Section 4 coverage formula, removing a proven deterrent against racially targeted laws. Within hours and days, states like Texas and Alabama revived restrictive voter ID rules, closed polling places, and tweaked procedures that disproportionately burden Black voters.

Rucho (2019) compounded the harm by declaring partisan gerrymandering a non-justiciable political question, greenlighting extreme maps so long as they avoid explicit racial markers. Brnovich (2021) then narrowed Section 2, making it harder to challenge laws with disparate racial effects. Together, these moves tell lower courts to tolerate structural distortions—long lines in majority-minority precincts, reduced early voting, and maps that dilute minority representation—even when they skew representation for a decade or more.

State-level consequences

North Carolina’s omnibus law targeted Black voters “with surgical precision” (as one court put it), restricting early voting and same-day registration. Georgia and Texas closed polling places and tightened vote-by-mail rules, producing wait times that fell hardest on Black and urban voters. Alabama drew maps minimizing Black-majority districts until further litigation intervened. The common pattern: once preclearance vanished and federal oversight retreated, lawmakers moved quickly to entrench advantages.

Litman connects this to broader minority-rule structures: Senate malapportionment, the Electoral College’s distortions, and confirmation rules that allow presidents who lost the popular vote to appoint justices for life. The Court’s decisions don’t just allow these skews; they stabilize them by removing tools (preclearance, partisan-gerrymander review) that might otherwise correct imbalances.

“Winter is coming”

Borrowing from Game of Thrones, Litman calls this a hard winter for multiracial democracy. The promise of a post-2008 spring—higher turnout, expanded access—gave way to a long season of retrenchment powered by judicial skepticism of federal oversight. Unlike policy swings that can be reversed at the ballot box, map cycles and voting infrastructure changes can lock in power for a decade, insulating lawmakers from accountability.

For you, this means future elections are shaped in the off-years by case law and map-drawing rather than only by campaigns. If your community loses a polling place or sees early voting cut, the barrier isn’t just inconvenience—it’s the disappearance of legal remedies that used to catch disparate burdens before they spread.

Takeaway

Democracy’s guardrails depend on enforceable rules. When the Court narrows those rules, it doesn’t simply step back—it leans the field, making it harder for majorities to translate votes into representation.

(Note: There are episodic countercurrents—e.g., state courts occasionally policing gerrymanders; Congress considering John Lewis VRA updates—but Litman underscores that without preclearance-like oversight, reactive litigation will often be too slow or too narrow.)

Part of the Court’s transformation is economic: it redefined political spending as protected speech and shrank corruption law to explicit quid pro quo. After Citizens United (2010), SpeechNow, and McCutcheon, wealthy donors could give and spend through Super PACs and dark-money vehicles with few limits. The legal story rests on an equation—money equals speech—and on an empirical claim—that independent expenditures don’t corrupt. Litman shows how both claims restructure politics in favor of the rich.

You see it in the numbers. Harlan Crow’s reported federal spending jumped from roughly $2.5M (1977–2009) to over $10M (2010–2023). The Uihleins’ giving surged from under $8M across decades to more than $222M in under ten years after McCutcheon. Charles Koch’s networks move billions through 501(c)(4)s, foundations, and donor-advised funds (one gift allegedly exceeded $4B to a single 501(c)(4) in a year). Vehicles like Americans for Prosperity Action (Super PAC), Americans for Prosperity (501[c][4]), DonorsTrust, and Marble Freedom Trust form an opaque machine that funds ads, litigation, amicus briefs, and think-tank pipelines.

Narrowing corruption

Meanwhile, McDonnell (2016) made it much harder to criminalize influence. The Court overturned convictions where a governor took luxury gifts and arranged meetings, holding that such “access brokering” wasn’t an “official act.” Subsequent rulings continued to pare back honest-services and fraud theories. The practical effect: lavish hospitality, paid access, and donor-driven social circuits rarely cross the criminal line absent explicit, documented swaps. That includes gifts to justices themselves—like Harlan Crow’s private jets, yacht trips, and school tuition for a relative of Justice Thomas—conduct that shocks the public but often evades the Court’s narrow corruption framework.

Add selective First Amendment protection and the asymmetry sharpens. In Americans for Prosperity Foundation v. Bonta, the Court struck a donor-disclosure rule on the theory that transparency chills speech—shielding conservative-aligned donor anonymity even as money reshapes politics. In Janus, the Court invalidated public-sector union fair-share fees on compelled-speech grounds, undercutting a counterweight to corporate political power. Corporate spending that effectively forces dissenting shareholders to bankroll political speech draws far less solicitude than union collection mechanisms—revealing a tilt in whose “speech” the Court valorizes.

Why it changes your politics

When a handful of donors can bankroll campaigns, think tanks, and media at scale—and do so anonymously—your vote competes not just with ideas but with financed megaphones, access circles, and litigation strategies. Policy responsiveness shifts toward donor preferences; oversight weakens as disclosure rules fall; and prosecutors can reach only the rare explicit bribe. The center of gravity moves from town halls and hearings to fundraisers, retreats, and backchannels.

Core linkage

Money-as-speech plus access-isn’t-corruption equals policy capture risk: a legal environment that amplifies wealthy voices while narrowing tools to check undue influence.

(Parenthetical note: This echoes earlier political-economy critiques by Zephyr Teachout and Lawrence Lessig, but Litman adds the Court’s internal social economy—donor hospitality and judicial validation—as part of the same influence system.)

Litman details how the Court retooled statutory interpretation to hobble the administrative state. The centerpiece is the “major questions doctrine,” announced in West Virginia v. EPA (2022), which says that agencies need clear congressional authorization for rules of vast economic or political significance. Pair that with the 2024 overruling of Chevron deference and you get a power shift: judges, not agency experts, now have the last word on many technical statutory ambiguities.

Agencies exist because Congress can’t micro-legislate complex domains like climate, health, and finance. Under the Administrative Procedure Act, agencies must reason from evidence and respond to public comments—processes designed for expertise and accountability. The major questions doctrine disrupts this settlement by making “bigness” and controversy into constitutionalized speed bumps. If a policy is ambitious or politically salient, courts presume Congress didn’t authorize it unless the statute speaks with unusual specificity.

Cases and consequences

West Virginia v. EPA kneecapped the Clean Power Plan despite statutory text authorizing the “best system of emission reduction.” COVID-era cases blocked the CDC’s eviction moratorium and OSHA’s test-or-vaccinate rule. The Court likewise scuttled student-debt relief by importing major-questions reasoning and justiciability moves that let political opponents of the program win in court rather than Congress. These hits share a theme: when a regulation triggers intense partisan opposition, it becomes “major,” and therefore presumptively unauthorized.

Chevron’s fall removes a decades-old instruction to defer to reasonable agency interpretations of ambiguous statutes. Now, judges decide technical questions that agencies once resolved—sometimes fumbling the science (Litman notes a Justice who conflated nitrogen oxides with nitrous oxide). The effect is predictable: fewer guardrails for polluters and financial actors, more litigation bottlenecks, and a judicial veto over proactive governance.

Why it matters to you

If you care about clean air, pandemic readiness, or consumer protection, these doctrines make it harder for elected majorities to act through agencies. Because Congress struggles to pass hyper-specific statutes in a polarized era, a “clear statement” requirement becomes a deregulatory ratchet. The more controversial the problem, the more the Court demands legislative precision that our system rarely supplies. That dynamic hands effective agenda-setting power to a judiciary selected and socialized by deregulatory networks.

Net effect

The Court rewrites the separation of powers so that agencies can do less, courts can say no more often, and powerful private actors face fewer constraints—even as crises demand nimble, expert responses.

(Note: Some justices defend this as restoring Congress’s role. Litman’s rejoinder is practical: in an era of gridlock, “tell Congress to be clearer” functions as a veto, not a neutral fix.)