The Academy Against the Constitution – Aaron Slutkin

Enemies of this Court in particular, and the Supreme Court in general, have acquired new arms in University of Michigan law professor Leah Litman’s new book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. She argues that today’s Republican-appointed majority is “unconcerned with things such as law, facts, and the will of the American people.” Instead, “these guys (and Amy)” use “vibes” to institute decreasingly popular Republican policies, based on the “feelings” of the justices and their political supporters.

Throughout the book, Litman attempts to make her attacks on the Roberts Court and its governing legal methodology, originalism, by appealing to readers through popular culture. Abortion, gay marriage, election law, campaign finance, and the administrative state each take a chapter constructed around a framing narrative: the Barbie movie, Mean Girls, Game of Thrones, Arrested Development, and American Psycho. As entertaining as the book tries to be, it fails to sweeten an ahistorical account of how the current majority and originalism came into being.

That account describes a conservative reaction against the Civil Rights Movement and the Sexual Revolution. In the decades after Brown v. Board of Education of Topeka (1954) and Roe v. Wade (1973), “Republican presidents appointed a bunch of Kens”—a Barbie reference—“to the Supreme Court who continued Republicans’ fight for gender traditionalism by slowly chipping away at women’s sexual and bodily autonomy.” Reactionaries founded the Federalist Society and established a “brutally effective screening mechanism” to identify judicial candidates and keep them accountable through a network of conservative fundraisers, gifts, lobbying, parties, and applause. The fruit of this process was Dobbs v. Jackson (2022), which overturned Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992).

None of this would have been possible, Litman argues, had not “the politics of male grievance found a home in the law via a jurisprudential method that came to be known as originalism.” Originalism, she says, is an ideological tool concocted to contest “the allegedly ‘bad’ vibes of the Warren Court.” This is the claim on which her analysis of the Constitution rests.

True, originalism gained its contemporary name, along with its political valence, in the 1980s. But it only needed to be asserted formally at that time in reaction to a novel school of legal interpretation that captured the courts in the 1950s. The “Warren Court Era,” Litman writes, was an “unusually progressive period in the Court’s history.” That it was progressive because it departed from the traditional course of constitutional interpretation, which is now formalized as originalism, she does not say.

Originalism in its various forms teaches judges to adhere to either the original intent or the original public meaning of law. That injunction is as old as Aristotle’s Ethics and as American as Hamilton’s famous letter to Washington arguing the constitutionality of the Bank of the United States. John Marshall Harlan’s great dissent in Plessy v. Ferguson (1896) makes an originalist reading of the Reconstruction Amendments, and no less an originalist Antonin Scalia defended the outcome of Brown in originalist terms. 

To argue that the originalist method is an innovation, Litman cites Justice William Rehnquist’s dissent in Roe v. Wade and Attorney General Edwin Meese III’s 1985 Address to the American Bar Association. Litman writes, “Reagan’s attorney general said that a ‘jurisprudence of original intention’ was the way to challenge ‘the radical egalitarianism and expansive civil libertarianism of the Warren Court.’” Her arrangement of quotations from two different paragraphs implies that Meese objected to the Warren Court on political, not legal, grounds and sought to employ originalism as a means of uprooting progressive outcomes. In fact, Meese objected to the Warren Court for “remold[ing constitutional] principles in light of policies.” Its decisions, however desirable the outcomes, were “tainted by ideological predilection,” he said. The Warren Court and its descendants were guilty of exactly what Litman accuses originalists, Meese argued. 

Most of those descendants vigorously protest that their constitutional interpretations are both grounded in a reasonable interpretation in the law and, sometimes, required by the American jurisprudential tradition. Litman, however, is unique in arguing that legal interpretation should take a backseat to the will of the majority, which should reflect her own preferences. Take her account of Roe v. Wade: the decision crowned a long feminist movement, when women entered en masse into the workforce and “wanted to be full and equal citizens and enjoy all the rights men had.” Among these was “control of their fertility and reproductive decision-making.” Feminist claims “resonated with a Court that reflected a society that was coming around to the idea that women should have rights, too. So in 1973, in the midst of the ascendant feminist movement, the Court decided Roe v. Wade.”

The Constitution and, more often than not, the Courts yoke American politics to our history and traditions. So much should not be sacrificed for temporary gain.

Roe was the correct decision because it was anticipated by political action, she says. As such, its legal reasoning is an afterthought in analyzing a Court that should be concerned with what is new and popular. Only six pages after her account of these social movements does Litman offer that “[s]ome Warren Court justices said that ‘liberty’ includes a right to privacy, and that the right to privacy includes sexual liberation and reproductive decision-making.” Despite this, Lawless never sheds the original admission that public opinion, not the Court, had discovered new rights. These, thank heavens, were “democratic and inclusive” and not their opposite.

Litman’s account is totally divorced from history and law in discussing Dobbs v. Jackson. The opinion in Dobbs, authored by Justice Samuel Alito, ruled that the Fourteenth Amendment’s guarantee of “liberty” does not extend to cover abortion. The Court thus returned to the states the task of balancing reproductive liberty interests with the state’s interest, recognized by Roe, “in protecting potential life.” Litman’s evaluation of Dobbs ignores life entirely, stating that “Republicans have really big feelings about reproductive freedom” and describing the majority’s, including Amy Coney Barrett’s, desire to “ma[ke] the patriarchy great again.” “The feeling behind the process that produced Dobbs was patriarchy,” she writes; “Patriarchy was the vibe.”

Litman continues to mischaracterize the Court’s history of identifying unenumerated constitutional rights in order to prove her ahistorical thesis that originalism emerged as a means of reversing Roe. In chapter one’s most detailed foray into constitutional law, she reads Dobbs to say that, “the Constitution protects only those rights that are ‘deeply rooted in this Nation’s history and tradition.’” This formulation, she says, “came from an opinion written by Chief Justice Rehnquist, one of the dissenters in Roe.” That’s true enough, but it hides some important facts. Alito does not cite Rehnquist’s dissent to contravene Roe and Casey’s recognition of a constitutional right to abortion. In fact, Litman’s citation of Dobbs quotes from Rehnquist’s unanimous opinion in Washington v. Glucksberg (1997), an intervening precedent that uprooted the logic of Roe and Casey. Fine. Glucksberg’s source must be Rehnquist’s dissent in Roe. But why, then, did Litman not cite Rehnquist’s dissent explicitly? 

Because doing so demolishes her history of originalism. That dissent reads, 

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

Any reader, Litman included, would notice the internal quotation marks. Those cite Snyder v. Massachusetts (1934), a precedent 39 years older than Roe. That sentence in Snyder cites precedents from 1932, 1915, 1908, 1905, 1900, and 1884.

It is not remotely the case that the originalist argument aimed at Roe emerged in reaction to it, as she says. Her own quotations betray that it is at least as old as Fourteenth Amendment jurisprudence itself.

To buttress this imaginative history, Litman is forced to retreat to the last hill remaining to a critic of originalism: disparaging the Founders and the Constitution they made. She blames the “white men (Kens) who drafted and ratified the original Constitution and all of the amendments in the 1700s and 1800s” for being insufficiently enlightened to acknowledge a right to abortion therein. They have been assisted by the system of “minority rule” established by the Constitution through the Senate, the Electoral College, and the states. In an absolutely stupefying inversion of the process by which our fundamental law came into being, Litman says, “The Constitution divided the country into units, the states, which allows for minority rule.” Others call the mechanism whereby states retain authority under the Constitution they created, federalism.

An originalist analysis, no doubt beginning from firmer constitutional understanding, “reflects a deeply rooted commitment to the idea of democracy,” Meese argued in 1985, because the “Constitution is the fundamental will of the people; that is why it is the fundamental law.” He concluded: “To allow the courts to govern simply by what it views at the time as fair and decent, is a scheme of government no longer popular.” Meese understood that originalism, unlike Litman’s alternative, does not promise its practitioners everything they could imagine. The final result rests in measuring the nature of the law passed by majorities.

In Lawless, by contrast, Litman submits her idea of fairness and decency as the test all law must pass. Hence, she dismisses the idea that controversial political issues, when not protected by legitimately constitutional rights, are within the reach of majorities: “The Court overturned the constitutional protections for abortion because abortion access was controversial in the sense that Republicans didn’t like it,” she says. What other definition of controversy exists? I’m not sure. But, in fairness, I have not seen Barbie or Game of Thrones. 

I have seen Legally Blonde, to which Litman turns, to guide her conclusion. This Supreme Court “is an obstacle to democracy,” and “reforms to the Court have to be a part of the conversation.” Term limits are not enough; “there has to be a bend and a snap, as Elle Woods said.” Court expansion and jurisdiction-stripping measures must follow. 

Unsurprisingly, these are not the end of the reforms the book implies are necessary. Litman’s last target is constitutional, meaning limited, government. In discussing the administrative state, she says that Republican-appointed “justices seize on evidence that the Constitution does limit government in some ways to infer a broader principle of limited government, and apply that principle in case after case to limit the government.” That broader principle is the logic of both a written constitution and an independent judiciary. As Publius explained in Federalist #78, judges in our system are to be the “faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.” John Marshall, realizing this authority in Marbury v. Madison (1803), continued: “The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written.” Constitutional government is limited government, and the Courts are designed to play a role in keeping it so. Of course, Litman does not believe majorities should be unfettered. Rather, she holds that courts should enshrine and protect the rights that majorities want them to project—an unabashed circularity that makes the judiciary an unelected supra legislature and abandons the idea of a constitution.

This is not to say that judicial review is the essence of constitutionalism, or that the Supreme Court—or any other branch—is owed a servile fealty. Nine robed justices should not legislate for a country of 340 million self-governing citizens; rather, legislative deference is the foundation of republican government, and the Courts should intervene in the legislative process only when defending constitutional boundary stones.

Unfortunately, the commercial success of Litman’s book and Erwin Chemerinsky’s recent book against the Constitution (both debuted as bestsellers) means Americans will hear a louder, more persistent drumbeat urging them to take up arms against the Courts and the Constitution. There is no question that, in 2028, Supreme Court “reform” will top the policy agendas of would-be Democratic hopefuls for president. The only question, then, is whether Republican candidates will join the crusade to sacrifice the Constitution for partisan advantage.

Friends of self-government should realize what Litman does, though with horror: that the Constitution and, more often than not, the Courts yoke American politics to our history and traditions. So much should not be sacrificed for temporary gain.