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The Intercept
18-07-2025
- Politics
- The Intercept
Executive Lawlessness: Leah Litman on the Supreme Court Enabling Presidential Overreach
During Donald Trump's first term, the Supreme Court made some effort to check his power. But that era is over. The court has ruled that Trump cannot be prosecuted for actions he took as president, including for his role in the January 6 attack on the Capitol, and it just wrapped its latest term by restricting lower courts' power to block his unlawful orders on issues like birthright citizenship, abortion care, and immigrants' basic rights. 'What the Supreme Court did is it limited lower courts' ability to use what has been the most effective tool that lower courts have to reign in the Trump administration's lawlessness, which is to block a policy on a nationwide basis,' says Leah Litman, author of the new book, 'Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.' This week on The Intercept Briefing, newsroom counsel and correspondent Shawn Musgrave speaks with professor and attorney Litman and politics reporter Jessica Washington about how the Supreme Court's right-wing supermajority is laying the legal foundation for unchecked executive lawlessness — and signaling to Trump that it won't stand in his way. Listen to the full conversation of The Intercept Briefing on Apple Podcasts, Spotify, or wherever you listen. TRANSCRIPT Shawn Musgrave: Welcome to The Intercept Briefing. I'm Shawn Musgrave, newsroom counsel and correspondent for The Intercept. During President Donald Trump's first term, the U.S. Supreme Court seemed at least somewhat interested in holding him accountable to the law. But even before Trump was reelected, the Supreme Court showed signs that it wouldn't stand in his way in a second term. CBS: Well you've been watching a special report. The nation's highest court has ruled that former President Donald Trump is entitled to some level of immunity from federal prosecution for official acts he took while in office. PBS: Former President Donald Trump is immune from criminal prosecution for any so-called official acts taken as president. WHAS11: Absolutely immunity for core constitutional powers. SM: Last summer the Supreme Court ruled that Trump couldn't be prosecuted for actions he took as president, including for his role in the January 6 attacks on the Capitol. And this past June, the Supreme Court finished its term by limiting lower courts' authority to block any of Trump's unlawful orders on issues like birthright citizenship, abortion care, and immigrants' basic rights. The Supreme Court's conservative supermajority also greenlit Trump's horrific practice of deporting people to countries they've never lived in, countries where they may face torture and inhumane detention, like South Sudan. The Court did so with barely any explanation at all. For good measure, this term the Court also signed off on a slew of conservative attacks on transgender and reproductive healthcare, pornography, and even basic representation of queer people in public school classrooms. All of these are perfectly legal and constitutional, according to Chief Justice John Roberts and the six rightwing justices. Joining me now to discuss the Supreme Court and how we got here is Leah Litman, a law professor at the University of Michigan and co-host of the Strict Scrutiny podcast. In May, Professor Litman published a new book, 'Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.' Welcome to the show, Professor Litman. Leah Litman: Thanks so much for having me. SM: Also joining us is Jessica Washington, politics reporter for The Intercept, who's been covering legal battles over reproductive rights and other issues. Welcome, Jessica. Jessica Washington: Thank you for having me. SM: We're speaking on Friday, July 11. Professor Litman, before we get into the Supreme Court's train wreck of a term, could you set the scene a bit? Your book essentially argues that the Supreme Court's conservative supermajority is no longer practicing law. It's just doing conservative politics using judicial language. How did we get here? LL: So I think we got here in a number of different ways. One is a story of the decline of our democratic institutions. In part because of the Electoral College and Senate malapportionment, it became easier for a party that enjoys only minority support to win control of the Senate and the presidency. And of course, those are the institutions that then select Supreme Court nominees. And so you almost have this double layer of democratic deficit that is built into the modern Supreme Court. And that court therefore became increasingly comfortable catering to an increasingly narrow segment and minority of the country. You add to that several choices that the Republican Party itself made to really lean into the politics of minority rule, deciding to basically channel the backlash to feminism, channel the backlash to the civil rights movement, and go all-in on oligarchs and corporate interests. And that made them a party that then depends on minority rule. And so in order to constantly whip their base into a frenzy, they always portray themselves as the victims. And so when that is the message of the political party, and that party can obtain power through minority rule, that's what you are going to see in the justices they appoint. Particularly because they also perfected this judicial selection machine where they could identify people who are willing to go all-in on some of the more fringe elements of the party. SM: And we'll get into this a little bit when we talk about some of the recent decisions. But what role does originalism — the judicial doctrine favored by the six of the justices now, and kind of depending on how you count some of the other liberal ones, maybe they're also originalists too — but how does originalism play into your framework and kind of what we're seeing recently from the court? Can you first talk about what originalism is and what role it's playing? LL: Of course. So originalism refers to a method of interpreting the Constitution, and it generally maintains that the Constitution means what it meant when it was originally ratified, whether that's in the 1700s, or in the case of some of the amendments, 1800s or afterwards. And so it directs decision-makers to a time when the country was much less democratic. And therefore it's not really surprising that originalism cropped up as a way of resisting some of the civil rights movements and advances of the 20th century. The first time you start hearing things about how the Supreme Court departed from the original intent of the framers was in the aftermath of Brown v. Board of Education, when segregationists are criticizing the court declaring segregated public schools unconstitutional. And then it really picks up steam during the 1980s in the rise of the Federalist Society and as the Ronald Reagan administration decides to lean into the backlash to feminism and the civil liberties and civil rights revolution of the 1960s. And so originalism starts to become trumpeted and advertised as the method of getting courts to roll back those civil rights advances. And I think it kind of naturally lends itself to doing so. So how does it fit in? I mean, it was a project that was pumped out and advertised as a way of accomplishing some of the Republican Party's agenda. And it's no surprise that in the hands of a super majority Republican dominated Supreme Court that it does just that. SM: So let's talk about how this has played out in some recent decisions, specifically, decisions around reproductive healthcare. Jessica, in June you wrote about a ruling that paved the way for South Carolina and other red states to target Planned Parenthood's funding. Can you tell us about that decision and how it relates to ongoing fights about defunding reproductive health? JW: Yeah, definitely. So Medina v Planned Parenthood at South Atlantic, which is the case you're referring to, can effectively be boiled down to: Can states bar Medicaid patients from accessing a healthcare provider, in this case Planned Parenthood, for ideological reasons? And the court's answer was more or less, yes they can. To take a major step back though, in 2018 South Carolina's Governor Henry McMaster attempted to exclude Planned Parenthood from the state's Medicaid program, limiting the healthcare options for the 1.3 million South Carolinians who were in the program. McMaster was explicit that he did this because Planned Parenthood provided abortion care, and I think it's really important when we talk about this, remember that Medicaid in South Carolina does not cover abortion care, except in extremely limited circumstances. And lower courts have repeatedly sided with Planned Parenthood arguing that the Medicaid act, kind of ironically when we're talking about originalism, explicitly allows recipients to pick the provider of their choice in a clause known as the free choice of provider provision. But in June, the Supreme Court rejected those earlier interpretations in a six-three decision. They ruled against Planned Parenthood and that Medicaid recipients do not have a right to pick a specific provider. Obviously, as you've mentioned, this comes in a long history of Republicans trying to defund Planned Parenthood any way they can. And this ruling extends so far beyond South Carolina, essentially granting other conservative states the leeway to also exclude Planned Parenthood from their Medicaid programs. This has massive implications for millions of low income Americans. I believe nationally, about a third of all women have received healthcare services from Planned Parenthood. And now we're talking about limiting access to reproductive and sexual healthcare in places where access is already abysmal and incredibly limited. I mean, we have incredibly high rates, I think, in South Carolina of maternal mortality, of sexually transmitted diseases, and really limited access to contraceptives and of course abortion care. SM: So Professor Litman, this sounds like a pretty technical decision, but Justice Ketanji Brown Jackson writing for the three liberals wrote a pretty fiery dissent, slamming it as 'part of a project of stymying, one of the country's great civil rights laws.' How does this decision about Medicaid and Planned Parenthood and interpreting one federal statute fit into broader efforts over the decades to chip away at reproductive rights and other civil rights? LL: Absolutely. So I would highlight two aspects of this decision that I think are relevant. One is that, in my view, it really underscores that the movement that led to the rise of originalism, the movement that led the court to overrule Roe v. Wade, it was never just about originalism. It was never just about letting the voters decide whether abortion access is protected. It was always about this broader backlash to women's sexual autonomy, their sexual freedom, feminism and civil rights more generally. And so of course, right, this decision is not about originalism, it's not about the constitution. It is about how to interpret this set of federal statutes. And so it's no surprise that even when they're not turning to this methodology originalism — that again, was advertised as a way of rolling back Roe v. Wade and other social policy advancements — that they would do the same thing and accomplish the same result just through a different method here, interpreting statutes. Now, when you say Justice Jackson links this to the broader project of rolling back civil rights, as Jessica described, the question in this case is whether patients and providers can sue states when states violate federal law, the Medicaid act. Again, no real question here that South Carolina's decision to boot Planned Parenthood violates federal law. Supreme Court, right, doesn't deny that it does. The question is whether you can do anything when a state violates that federal law and the patients and providers had relied on this federal statute, section 1983, which is known as the General Civil Rights Law. That law was passed in the wake of the Civil War during reconstruction as a way of ensuring that private citizens can enforce their federal civil rights and get their day in federal court when states are attempting to deny them their rights. And that is the federal law that the Supreme Court says these patients and providers cannot rely on when South Carolina is attacking women's access to healthcare. And Justice Jackson links the court's decision to narrow civil rights remedies and the ability to enforce civil rights to the Supreme Court largely dismantling reconstruction in the aftermath of the Civil War. And so I think that those are really the two projects on display in this Planned Parenthood decision, both an attack on the project of multiracial democracy, that reconstruction represented, and also this attack on feminism, the idea that women have rights. SM: So there's another way that this has played out recently in the reproductive healthcare arena. Last summer, two years after overturning Roe in the Dobbs decision, the Supreme Court punted in another major abortion case out of Idaho, and we're now starting to see the fallout from that move under the Trump administration. The case last summer was about patients' rights to emergency abortions under the Federal Emergency Medical Treatment and Active Labor Act, or EMTALA. The Supreme Court sent the case back down to lower courts without ruling on what's actually protected or not under that federal law. Jessica, so what has the Trump administration been doing recently to weaken protections for emergency abortions? JW: Thank you for asking about this. So just to start off, EMTALA or the Emergency Medical Treatment and Labor Act requires that hospitals that take Medicare provide stabilizing care to patients experiencing medical emergencies. So in 2022, after the fall of Roe, the Biden administration provided guidance, clarifying that if abortion care was necessary to stabilize a patient in an emergency situation, hospitals were required to do so, regardless of the abortion laws in the state and whether or not they contradicted that effort. So in June, the Trump administration rescinded that guidance with a super vague statement, essentially saying we're rescinding this, but kind of nothing really changes and we don't interpret it the same way. And they said that, and I'll read it cause I think it's helpful to. 'CMS will continue to enforce EMTALA, which protects all individuals who present to a hospital emergency department seeking examination or treatment, including for identified emergency medical conditions that place the health of a pregnant woman or her unborn child in serious jeopardy.' It's really not clear what they meant here. They didn't add a ton of extra information. HHS told me that effectively nothing would change when I asked. But when I talked to providers, they told a very different story. They said the confusion caused by this new guidance would get women killed in these really uncertain and fast-paced medical emergencies where every second counts. So essentially what the Trump administration has done here is add a bunch of confusion into our medical system that already had a ton of confusion, and this confusion gets people killed. SM: Professor Litman, let's talk about the Supreme Court's role in the confusion. This seems like another example of the conservative majority on the Supreme Court using a procedural or technical maneuver to give anti-abortion Republicans and the Trump administration now free reign. They didn't technically weaken or change the federal law EMTALA, but they also declined to say what it meant. So can you talk about what you see in the road ahead for reproductive rights under this court? LL: I mean, the Supreme Court has its hands all over the unfortunate catastrophe that is unfolding because states are basically being told maybe you don't have to abide by EMTALA when it comes to abortions. So what the Supreme Court did in this EMTALA case is it dismissed the writ as improvidently granted, which just means they decided not to decide whether EMTALA actually does prevent states from enforcing their abortion bans to prohibit hospitals from providing health and stabilizing care when that care is an abortion. When a woman shows up to an emergency room and she's experiencing severe complications, and the question is can we stabilize her by providing an abortion and some states restrictive abortion laws say, no you can't. And EMTALA, right, should say, no you have to. And so by declining to decide whether EMTALA does indeed prevent states from enforcing their abortion bans in those circumstances, the Supreme Court left open the possibility that states can continue to enforce their abortion bans in those medical emergencies. And so that is what creates the uncertainty that Jessica is alluding to, whether indeed these abortion bans can be enforced against hospitals and doctors that are trying to provide life and health saving care to their patients. I think the second way in which the court is responsible for this catastrophe is during the period in which the Supreme Court was ostensibly deciding to decide whether to decide it, they had stayed a lower court ruling that had blocked the state from enforcing its abortion ban in these cases of medical emergencies. So what happened when the state could enforce its abortion ban in these cases of medical emergencies, women had to be airlifted out of the state in order to receive emergency care. If you read the stories of these patients, it is appalling. SM: Yeah, it's horrifying, LL: Right, like they are telling the helicopter pilots and whatnot, tell my children I love them. They don't remember what is happening. Women are being told, maybe get helicopter insurance because the price of these rides is just immense. And so the Supreme Court, again allowed the state to enforce its abortion ban during the period in which it was deciding whether to decide this case, opted not to decide it, and thereby cleared the way for the Trump administration to signal to states, don't worry, you can enforce your abortion bans in these medical emergencies. SM: Let's turn to some of the other signals the Supreme Court is sending to the Trump administration and conservatives around the country. Let's start with the birthright citizenship case. The conservative majority didn't address whether we all still have birthright citizenship as a bedrock constitutional concept via the 14th amendment. Instead, they ruled that district courts couldn't issue nationwide injunctions in a staunchly originalist decision that Justice Jackson torched in her dissent as a 'smokescreen of legalese.' So Professor Litman, what's the real impact of this decision and how does it fit into your framework of a vibe-based Supreme Court? LL: Yeah, so the impact of this decision I think is twofold. One is the practicalities in litigation, that is, where it might actually undermine people's ability to enforce their rights. And then the second is more atmospheric and what signals they are sending to the Trump administration as far as emboldening their attacks on lower courts. So I'll just start with the first, kind of like the practical rubber hits the road. What the Supreme Court did is it limited lower courts' ability to use what has been the most effective tool that lower courts have to reign in the Trump administration's lawlessness, which is to block a policy on a nationwide basis. Because what the Supreme Court is saying is in order to block the administration from applying its policy to anyone anywhere, you need one of two things to happen. One is your case needs to proceed as a class action, and the second is a case could be filed by a state and a court would have to conclude that in order to remedy all of the harms to a state, the policy has to be blocked on a nationwide basis. Now, some cases involving some policies are going to be able to clear those procedural obstacles, but not all of them are. And so what that means is in some set of cases, the Supreme Court is going to say, no, you can't have a class action here, or your state can't get a nationwide injunction. And what that is going to create is what Justice Jackson called a catch me if you can regime of executive lawlessness, where in order to prevent the executive brand from violating your rights, you would have to sue. And that allows the executive branch, again, to potentially implement its illegal policies in some places that didn't opt to sue against some people, who weren't able to get a lawyer, or weren't able to be part of a class action that was certified. And that's going to create this patchwork of lawlessness where the executive branch is basically free from its legal obligations. In some ways, I think, the more concerning aspect of this decision, although that is certainly very concerning. The more concerning aspect of this decision is the Supreme Court's choice to resolve this issue now, in the context of a case that involves some of the most egregious and blatant lawlessness. Because the Supreme Court had a choice about when to decide this question of nationwide injunctions, what case to decide it in, and also had a decision about what issues in the case to decide. That is whether they would also say, sure, you can't get a nationwide injunction, but by the way, this executive order, super illegal in multiple ways. The plaintiffs challenging it asked the Supreme Court to decide those questions and by opting to decide that the issue in this case that warranted their time is the behavior of the lower courts rather than the behavior of an executive branch that is violating the Constitution, violating federal law and refusing to comply with court orders. That the problem is the lower courts? That is really going to embolden the executive branch in their continued attack on the legitimacy of lower courts enforcing federal law against the executive branch. SM: Yeah, and since the birthright citizenship case, we've seen smaller decisions on the shadow docket from the Supreme Court of them just saying, no, actually we're just going to reverse this injunction that the lower court issued LM: Right. SM: No explanation. That's what they did in the South Sudan case. So, vibe certainly seems to be the way to think about it. [Break] SM: Maybe let's turn to perhaps the most vibe based decision of the term, in my opinion: The Pride Puppy case. LL: OK. I think I would agree with you. [Laughter] SM: Yeah. Yeah, it's a tough category. I would put it between this and maybe the porn case, but the Pride Puppy case. Jessica, can you briefly give us the background on this one? JW: So in this case, parents in Montgomery County sued over the inclusion of LGBTQ+ inclusive books. These books included, as you've mentioned, Pride Puppy, along with a host of other books celebrating people of different queer identities. Parents argued that because they weren't given the option to opt out of these lessons, their religious liberty was violated. So in this case, the court ended up siding with the families. And it's a little more complicated than that, but that saying that they were entitled to a preliminary injunction while their lawsuit went ahead. Now, I think what's important in this case to talk about is the dissent. So in the dissent Justice Sonia Sotomayor noted this was an incredibly slippery slope, and I think a lot of legal analysts could agree. This really opens the floodgates for parents to challenge on lessons from everything from evolution to civil rights if it violated their specific religious belief. This also clearly opens the floodgates as well for litigation from families over the inclusion of LGBTQ+ books and classrooms generally. So I think this is a case where you can really see this kind of slippery slope argument going forward. And also, when you're talking about this case, we're really talking about just the inclusion of queer people in general in stories for children. We're not talking about books that said you have to be trans or anything like that. We're talking about books that simply tell children it is OK to be different. SM: Or just that they exist. JW: Or that they exist! SM: Their inclusion as characters. JW: Yeah, their inclusion as human beings and people with equal value and rights. And this is definitely a backward slide. LL: Jessica, I agree with your reading of the books. But I think Shawn, why this decision takes the cake on the most vibes-based is because when Justice Samuel Alito and the other Republican appointees looked at the books, they picked up different vibes. And the vibes they picked up is these story books, which again involve a pride parade, and a puppy in a rainbow bandana, and a woman in a leather jacket, and a book in which a girl's favorite uncle is going to get married, just so happens gets married to a man, and the girl's concerned that her favorite uncle will have less time to spend with her. SM: Filth, absolute filth. LL: [Laughs] The vibes that he picked up and the other Republican appointees is what the books were saying is you have to accept marriage equality or trans people because otherwise you are evil. Like literally, if you read the opinion, Justice Alito talks about this storybook, 'Uncle Bobby's Wedding,' and says, the book is coy about the precise reason why little Chloe objects to her uncle's wedding. And it's like, it's not coy about this at all. But again, he picks up some different vibes because the books involve gay people and trans people, and he just can't live with that. SM: So this ties into a chapter of your book about the Supreme Court's really scavenger hunt for religious discrimination as part of the conservative blowback to queer people just finally getting some legal rights in landmark cases like Lawrence v Texas in 2003, which struck down state sodomy laws, and of course the Obergefell decision in 2015, which legalized same sex marriage. So can you give us a bit of the historical context for how we got to Justice Alito's very particular reading of Pride Puppy? LL: Yeah. So here too, the story really starts with the political and social movement that the Republican Party capitalized on. And in the midst of this backlash to feminism, there is also a backlash to advancements in LGBT rights. So my book talks about Anita Bryant, who is this former pageant queen who appeared in Florida orange juice commercials, and she kinda leads this crusade against LGBT rights. And she insists she's not doing so out of hate, but out of love. And that the problem is that, as she calls it, the homosexuals around the country have the support of liberal politicians and they're filled with religious bigotry. And so it's these ideas that get incorporated into the Republican Party's resistance to LGBT equality, where they paint efforts to obtain civil rights for the LGBT community as actually attacks on those religious believers who are opposed to LGBT equality. And you start to see these ideas surface in the dissents to those major cases that represented victories for LGBT equality. In Obergefell v. Hodges, the marriage equality decision, Justice Alito talks about how that decision, to again, recognize that same sex couples can get marriage licenses, how that is going to facilitate the marginalization of people with traditional views about marriage. And he says it will call to mind the harsh treatment of gays and lesbians in the past. As if allowing gay people to get married is just like prohibiting them from getting married and a period in which you could be institutionalized for consensual sexual intimacy with a person of the same sex. That's the mindset that was in play among the Republican appointees on the Supreme Court, and that is now the mindset that you can see surfacing in their majority opinions. They deny that there is discrimination against LGBT people at the same time that they insist any and all equality for LGBT individuals is actually discrimination against the religious and social conservatives who are opposed to LGBT equality. And based on that idea, they are chipping away at LGBT equality and giving people with objections to marriage equality the ability to opt out of civil rights laws that prohibit discrimination on the basis of sexual orientation or gender identity. And so it's that kind of long arc that I trace in political and social movements and then identify in the writings of the Republican appointees on the court today. SM: Right. One of the really formative moments for me in law school was reading Justice Scalia's descent in Lawrence. LL: Oh yeah. SM: And I mean, I had heard of Scalia all my life as this kind of lion of originalism and rigorous legal thought, but then if you read the entirety of his dissent, there's some pretty bigoted zingers in there that didn't quite make the news coverage at the time. LL: Yeah. He talks about how people are entitled to protect themselves and their families from what they view as an immoral or destructive lifestyle. That is how he talks about that case. SM: Yeah. And the capture of the homosexual agenda. LL: Oh, yeah. The court has signed on to the homosexual agenda. It's like, oh my gosh. SM: Before we wrap up, I want to talk a bit about the court's two most recently confirmed justices. There's Justice Amy Coney Barrett, the conservative appointed by Trump, who going into this term, was being framed as a moderate or kind of a wild card in the conservative majority by some commentators, especially compared to some of the other Trump picks for SCOTUS. And then there's Justice Ketanji Brown Jackson, who's leaning into the role now of writing these blistering, very clear-eyed dissents sometimes just for herself. So Professor Litman, what did we learn from this term about these two justices? LL: I think what we learned about Justice Jackson is that she is really the next frontier of what I hope will be Democratic appointees to the courts in that she recognizes what her Republican colleagues are up to and she is willing to call it out in ways that lay plain. You know, the slipperiness of their maneuvers, how selective they are in their approach to legal rules, and the underlying ideology that is doing work at issue in these cases. And I think her willingness to do that is, from my perspective, greatly appreciated, very powerful, and calls more attention to the Supreme Court than they would otherwise get in a world of more subdued dissents or a world where the Democratic appointees are engaged in appeasement and trying to make compromises with the Republican appointees to accomplish what, I don't know, but I appreciate her recognition that that is not the strategy right now. Especially in a world where the court is six to three Republican appointees. And I have found her writings and her statements off the bench to just be incredibly persuasive and memorable and also accessible. Justice Barrett, I was not one of the people that thought she was some secret, moderate, liberal squish. So what we learned is that people trying to sell that narrative, were selling us a false bill of goods. This is a rock-ribbed right-wing conservative, who just so happened to say a state court in New York could engage in an electronic remote sentencing of Donald Trump on those 34 felony convictions, as long as he was going to impose no prison time. Like that was one of the cases in which she departed from her Republican colleagues, in which everyone was making some big deal about it. And then, I can go into the other examples. But the point is, they weren't that big a deal. And she was with them on the big ticket cases and in fact, she's to their right on some issues. SM: Yeah, exactly. LL: In Skrmetti, the case about, yeah, the ban on gender affirming care for trans kids, the Chief Justice's majority said, oh, this law doesn't actually discriminate against trans people. And she wrote separately to say, but even if it did, I would be fine with that and still treat it as constitutional. So this is not some secret moderate who's going to save us. SM: Yeah. Her concurrence in Skrmetti was wild, especially since from her wing of the court, you're not supposed to talk about things that are necessary to the decision. So to kind of pull in this really farfetched argument that it would be really hard to show that trans people have been subject to de jure or by law discrimination was the thrust of her concurrence, which Justice Thomas signed onto. And what world, this century or another, can you make that statement with a straight face? It's not a moderate result. I agree. Jessica, do you have any thoughts, particularly reading some of the dissents that you've covered from Justice Jackson? JW: I think what's really interesting to me is in Washington, collegiality is so important. Waiting your turn is so important, you know, not speaking before your time. And the fact that she's been willing to, especially in the Supreme Court, throw that out the window: speak openly, speak often, speak forcefully, call out her colleagues — I think we're seeing, as Professor Litman pointed out, we're seeing really this shift in Jackson and hopefully a shift that we see maybe from some lawmakers as well. But this recognition that we're not in regular times, we are in this really quick descent, I would argue, towards something akin to fascism. And the fact that she recognizes that and is willing to speak on that is such a shift in this court, and it feels so important in this moment. SM: I agree. We've talked about the bleakness of recent Supreme Court decisions. Let's end maybe by looking to the future and how our democracy might find ways to repair some of the damage. Professor Litman, in your book's conclusion, you come out in favor of expanding the court and also give some other thoughts on countering the conservative reshaping of the judicial branch. So how can we, get past all the damage that the Supreme Court has inflicted so far, and probably will keep inflicting at least for the rest of Trump's term? LL: It's really two things. One are the specific proposals you can enact into law to democratize an institution like the Supreme Court. And then the second is all of the things that need to be done in order to get us to a point where we can actually adopt those reforms. So it's easy enough to list the things that I think have to be done from Supreme Court expansion, to limiting the Supreme Court's authority to strike down laws like the Voting Rights Act, to ethics reform, to all of the other things that would be very helpful to making the Supreme Court a better functioning institution, giving Congress more control over the kinds of cases the Supreme Court hears, or creating term limits, like all of that would be great. And then the question is: OK, how do we get from here to that world? And this answer is always frustrating to people and they don't like to hear it, but it's going to take a while to change an institution like the Supreme Court. And there are going to be things we have to invest in that are not going to yield immediate returns. From public education and information to organizing, to investing in state and local elections and primaries to identify those democratic leaders who understand the situation in the same way that Justice Jackson understands the situation, contra other democratic politicians and leaders. So, those are some steps, and that involves organization that involves education, and that involves staying committed to the strategy over the long haul, because again, it's not something that's going to get fixed merely by securing a good outcome in the midterms or the next presidential election because the reality is the Democratic Party is still the way it is. And part of the work that has to be done is either reshaping and reforming the Democratic Party so that it understands and responds to the situation we find ourselves in, or changing enough people's minds to create enough pressure on the current democratic leaders and democratic political elites to do that. SM: Jessica, do you have any thoughts? JW: So my two cents are definitely from the people I've spoken to, court expansion, and then also just the extent to which we've seen so much corruption within the court, really unchecked — unchecked by Congress, even though that is their role. So definitely some real checks and balances on the Supreme Court that we just haven't seen before, seems to be very important especially with everything that has come out — thank you ProPublica — about Clarence Thomas. It definitely seems like a little more rules in the Supreme Court would help us out. SM: Alright. And with court expansion and Pride Puppy. I think we're gonna leave this conversation there. Thank you so much Professor Litman for joining us on the Intercept Briefing. LL: Thanks for having me SM: And thanks for joining Jessica. JW: Thank you. SM: Last month, the Supreme Court upheld a ban on gender-affirming care for trans kids in Tennessee. In her dissent, Justice Sonia Sotomayor wrote, 'The majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review. By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims. In sadness, I dissent.' Ella, from Los Angeles gave us a call to share how her mom and other mothers of trans children are organizing. Here's Ella. Ella: My mother, I don't know that she would personally call herself an activist, but her and a bunch of moms from greater Los Angeles who have trans children are currently working on a massive spreadsheet of essentially hundreds and hundreds of trans resources. They're trying to find tips about possible laws, talking to lawyers, and have created a really incredible and powerful network of support. I think it's really moving the lengths that these women are going for their children. Something that I cling to when I think of how scary a lot of these times are. SM: Thanks for sharing, Ella. That does it for this episode of The Intercept Briefing. We want to hear from you. Share your story with us at 530-POD-CAST. That's 530-763-2278. You can also email us at podcasts at This episode was produced by Truc Nguyen. Laura Flynn is our Supervising Producer. Sumi Aggarwal is our executive producer. Ben Muessig is our editor-in-chief. Chelsey B. Coombs is our social and video producer. Fei Liu is our product and design manager. Nara Shin is our copy editor. Will Stanton mixed our show. Legal review by David Bralow. Slip Stream provided our theme music. You can support our work at Your donation, no matter the amount, makes a real difference. If you haven't already, please subscribe to The Intercept Briefing wherever you listen to podcasts. And tell all of your friends about us, and better yet, leave us a rating or a review to help other listeners find us. Until next time, I'm Shawn Musgrave. Thanks for listening.
USA Today
11-07-2025
- Politics
- USA Today
How some Supreme Court decisions divided the court's conservative supermajority
The conservatives splintered in more than a dozen cases in which some joined with the three liberals to form a majority. WASHINGTON − Though the Supreme Court's conservative supermajority continues to push the law in a rightward direction, the six justices appointed by Republican presidents are not always rowing in sync. In the term that ended in June, the conservatives splintered in more than a dozen cases in which at least two joined with all three liberals to form a majority − including in cases important to the conservative legal movement. It happened when the court upheld the Biden administration's regulation of untraceable 'ghost guns' and turned aside conservative challenges to Obamacare and to an internet subsidy program in cases targeting the power of federal agencies. And it happened in multiple cases involving death row inmates and other criminal defendants. 'I've said this before and I'll say it again: I think liberals should be thankful to President Trump for appointing more moderate conservatives,' said Josh Blackman, a law professor at South Texas College of Law in Houston and close observer of the high court. 'It could be much worse for them.' Divisions over federal agency decisions Leah Litman, a law professor at University of Michigan Law School and a court critic, said she's more focused on the conservative majority's decisions that she believes have major negative consequences. Litman, author of 'Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes,' said it's harder to gauge the significance of the cases in which the conservatives splintered. More: Trump wasn't the only Supreme Court winner this year. Here's the scorecard. In the challenge to a federal subsidy program for phone and internet service, for example, the court passed up a chance to further curtail the power of federal agencies. Three conservatives − Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett – joined with the three liberals in ruling that Congress had not improperly given its taxing authority to the Federal Communications Commission. But in a concurring opinion, Kavanaugh left the door open to reviving a legal theory, mostly dormant since 1935, that prohibits Congress from delegating legislative power to the executive branch. 'It feels like the justices are treading water because they haven't yet figured out exactly what they want to do,' Litman said. More: How Justice Ketanji Brown Jackson is standing out from her liberal colleagues Blackman, however, said he's surprised the conservatives split over issues about federal agency authority, which was a big area of concern when Trump, during his first term, was selecting his nominees: justices Neil Gorsuch, Barrett and Kavanaugh. 'Gorsuch is saying, `I thought we had a plan here,'' Blackman said. ''I thought we were going to do something here.'' Gorsuch and the ghost guns When Gorsuch was in the minority, he was often joined by justices Clarence Thomas and Samuel Alito, the court's most conservative justices. But not always. In fact, Gorsuch wrote the 7-2 decision upholding the Biden administration's regulation of untraceable 'ghost guns' that Thomas and Alito opposed. That was one of the court's many decisions overturning rulings from the Louisiana-based 5th U.S. Circuit Court of Appeals, a court that is often more conservative than the high court. The high court's libertarian Conservative legal commentator Sarah Isgur said Gorsuch is one of the court's most interesting judges because of his libertarian streak. 'He's part of the most conservative wing, but where he breaks, he breaks against the government,' Isgur said at a recent public forum on the court's term. Gorsuch was not afraid to stand on his own, including with his solo dissent in a dispute between a taxpayer and the Internal Revenue Service. Gorsuch said the court's 8-1 decision endorsed the IRS' effort to 'never having to answer a taxpayer's complaint that it has made a mistake.' Criminal cases divided the conservatives In addition to some of the decisions involving federal agencies, conservatives were not all on the same page on cases involving criminal defendants and others fighting for civil rights. The most high-profile case involved death row inmate Richard Glossip, who said he did not get a fair trial in a 1997 murder-for-hire case. More: Supreme Court orders new trial for Oklahoma death row inmate in closely watched case In a rare move for a prosecutor, Oklahoma's attorney general concluded trial attorneys hid evidence that might have led to Glossip's acquittal. Roberts and Kavanaugh joined with the three liberals in ordering a new trial for Glossip. 'Let's just fix this' Daniel Epps, a professor at Washington University School of Law, said the decision looked more like one from the past in which the justices sped over procedural and substantive roadblocks to get at the result that seemed right. But the case does not signal a radical change in the court's approach to criminal cases, Epps said at a forum at Texas A&M University School of Law. Instead, he said, it suggests there are at least a couple of conservative justices willing to say, 'OK, let's just fix this' in cases that get significant attention because someone seems to have gotten a raw deal. 'I think that would've happened more often 10 years ago," he said, "but maybe it's still going to happen occasionally." A `big win' for prisoner's rights In fact, on the same day the American Civil Liberties Union lost its challenge to Tennessee's ban on gender affirming care for minors, civil rights advocates celebrated the court's decision in a different case. Roberts and Gorsuch joined the liberals in siding with a state prisoner in Michigan trying to sue a prison official for sexual abuse, retaliation and destruction of property. Unemployment benefits: Supreme Court says these workers can sue over delays Cecillia Wang, national legal director for the ACLU, called the decision a 'big win for prisoners' rights.' And she said it's similar to another 5-4 decision, one favoring Alabamans trying to sue the state over extreme delays in filing for unemployment benefits. In both cases, the majority found those trying to enforce their rights had been placed in unwinnable Catch−22 situations. In a term when the conservative majority 'really flexed its muscle to devastate civil rights plaintiffs in the marquee cases,' Wang said, a majority still 'sided with civil rights plaintiffs, with criminal defendants, in lower-profile cases that were enormously consequential for people's ability to vindicate their civil rights in the courts.'
Yahoo
16-05-2025
- Politics
- Yahoo
"A court captured by far-right conspiracy theories": How the GOP drove the Supreme Court off a cliff
"Strict Scrutiny" cohost Leah Litman has the profile of a person who, in previous eras, would seem like a defender of the Supreme Court. She's a law professor at the University of Michigan and once worked as a law clerk for former Justice Anthony Kennedy. In recent years, she's become one of the most outspoken critics of how the current iteration of the nation's highest court has abandoned good faith readings of the law, basic legal reasoning, and even facts in pursuit of a far-right agenda. In her new book, "Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes," Litman chronicles the decline of this once-venerated institution. She spoke with Salon about her book and how recent cases suggest the court is getting even more unhinged in this second Donald Trump administration. This interview has been edited for length and clarity. I listened to, and I was struck by how victimized acted during the entire thing. He felt he was being oppressed by this children's book called "Uncle Bobby's Wedding." It perfectly illustrated the thesis of your book, which is about how much the jurisprudence of the current Supreme Court is all vibes and grievance. What were you thinking when you listened to those arguments? I don't know whether to laugh or to cry. The justices keep providing me with so much content and so much material after I finished the manuscript. It perfectly reflects this notion of conservative grievance: the idea that social conservatives, religious conservatives, all the core parts of the Republican constituency, are the real victims. And there's no discrimination except against white evangelical Christians. That worldview was on display. This is a children's book about a young girl being concerned that when her favorite uncle got married, he'd have less time for her. Justice Alito read it as a personal attack and rank discrimination against religious conservatives like him because her favorite uncle happened to be getting married to a man. Apparently, acknowledging that some men marry men whom they love is discrimination against Sam Alito and people who believe that marriage is between a man and a woman. It was stunning in its clarity. I don't know what's going on in his head, but it's hard to use any word but "lying" to describe his claims during arguments. He said that the little girl in the book objected to the marriage cause she was homophobic, when she loved her gay uncle, and just didn't want him to have less time for her. The projection is very telling. Justice Alito read this book, where Chloe is concerned about her uncle's upcoming wedding, and Justice Alito seemed to read into Chloe his own views. He imagined Chloe saying something like, "Mommy, I have a sincere religious objection to Uncle Bobby's marriage to a man." And then he interpreted her mother as saying something like, "No, Chloe, that's bad. You can't think that. Men get to marry men because that's the future liberals want." Of course, Chloe and her mother said no such thing. He read the mere acknowledgement that a man would marry a man as an expression of hostility to his worldview, which is that same-sex marriages shouldn't exist at all. Acknowledging their existence, acknowledging the existence of LGBT people, he perceives as an attack on him, because the jurisprudence he is fashioning is all about bringing about a world where gays, lesbians, and bisexuals are not allowed to have civil rights and are not allowed to live been this myth for a long time that there might be liberal judges and conservative judges, but they all adhere to the same belief that they should follow the facts and they should follow the law. Brett Kavanaugh talked about it as "calling balls and strikes." To reject the obvious reading of a children's picture book suggests that's not the case. How far have they drifted from those basic principles? Oh, I would say quite far. It wasn't just Sam Alito, although he is the best example and encapsulation of this conservative grievance, bad vibes, fringe theory direction that the Supreme Court is headed in. During the same oral argument, you had Neil Gorsuch insisting that the book "Pride Puppy" involved a sex worker who was into bondage. If you read the book, there is a woman wearing a leather jacket, and she's at a Pride parade. Neil Gorsuch took from that and insisted, no, the book actually involves bondage and sex workers. Examples are myriad. In the 303 Creative case, which also concerned LGBTQ equality, you have the court insisting the case involved a wedding website designer with sincere religious objections, who was going to be forced to make a wedding website for a same-sex wedding. The person did not specialize in wedding website design. She did not sell her business as a designer of websites from a religious perspective. And the one alleged request she received for a same-sex wedding was submitted by someone who claimed they never submitted such a request, who was a website designer themselves, and was a man married to a woman. The Supreme Court has been running on these fast and loose characterizations of the facts for a while. We all can have a good laugh at the idea that "Uncle Bobby's Wedding" is a personal attack on people who don't believe in marriage equality. But the uncomfortable reality is that a conspiracy theory-laden universe is in full swing at the Supreme Court. It's a court captured by far-right conspiracy theories. That worldview interferes with their assessment of the law, their assessment of the facts, and their ability to engage with reality. Sam Alito and, to a large extent, Clarence Thomas get the most attention for having their brains poisoned by this stuff. But a lot of people think Chief Justice John Roberts isn't so bad. Look, there are differences between the Republican appointees, but the reality is, on the big picture level, they are in lockstep in important ways. Chief Justice Roberts, this purported moderate institutionalist, struck down the key provision of the Voting Rights Act in Shelby County versus Holder by inserting a misleading ellipsis into a quotation he drew from one of his previous opinions. He inserted this ellipsis, so the sentence meant the literal opposite of what it had actually said. This is the same Chief Justice who wrote the sweeping immunity ruling that effectively placed the president above the law. And people ask why Donald Trump thinks he's above the law. Some of the president's more expansive, outlandish assertions of executive power draw from this idea of the unitary executive theory, which is the idea that the Constitution gives the president and the president alone all of the executive power. It's that idea that the president relied on to fire inspectors general, to fire the heads of commissions like the National Labor Relations Board or the Equal Employment Opportunities Commission. Guess who wrote that the Constitution puts all of the executive power in the president: John Roberts. He was writing the same for the Reagan administration back when he was a lawyer in the Reagan administration. People mistake the forest for the trees. It's more interesting to focus on the differences between the Republican appointees. It is closer to reality to acknowledge that on these super high-profile, ideologically salient cases, the Republican justices are where the Republican Party is. There's a recent case where reporting suggests that a lawsuit regarding a bus full of Venezuelan immigrants that they were trying to send to that El Salvador in prison. The rest of the court stepped in and stopped Alito from doing that and rushed out a decision that ended up probably saving those men's lives. What is your read on that particular situation? Some lower courts had blocked the government from relying on the Alien Enemies Act to summarily expel people to this foreign megaprison in El Salvador. The case went up to the United States Supreme Court on a request for emergency relief, blocking the government from carrying out these renditions. The Supreme Court blocked the Trump administration and released its order blocking the deportation before Alito finished his dissent. In doing so, they likely saved these men from being sent to El Salvador because they got the order out before the men could be transported. What to read from that? It's a little hard to know. I'd imagine that the Supreme Court is responding in part to the administration's blatant disregard, if not outright defiance of their previous order in the case of Kilmar Abrego Garcia, which told the administration to facilitate Mr. Abrego Garcia's return. The administration's response has basically been, "make me." Then Stephen Miller characterized the decision in Abrego Garcia as a unanimous win for the administration. That's definitely not true. As to whether they thought they can't wait on Justice Alito, because he is trying to buy the Trump administration time to deport these men, I'm not sure. Trump got this immunity decision, and he seems to recognize that, as you argue in this book, these six Republican judges are going to bend over backwards to misinterpret the law to help him out. There is another case that just got going, where 12 Democratic attorneys general are suing, claiming Trump's tariffs are illegal. Which seems right to me, though I'm not a lawyer. It will be another interesting test of whether or not the Supreme Court has a limit. What are your thoughts on that case? Because it is a situation where Trump's agenda is so different than the standard Republican agenda. If you look back at the first Trump administration, there was this case challenging the entire Affordable Care Act. The state of Texas sued on this cockamamie theory that the entire Affordable Care Act had become unconstitutional when Congress reduced the penalty for not having health insurance to $0. And the Trump administration joined Texas's lawsuit, to ask the court to strike down the entirety of the Affordable Care Act. That was a Trump thing. It was not the consensus position of the Republican caucus, which had voted down efforts to repeal the entirety of the Affordable Care Act. In that case, the Supreme Court rejects the Trump administration's request. That's another example where the zeitgeist of the Republican Party is not exactly tracking what Donald Trump is asking for. And in those instances, you have a Republican court majority that is probably closer to the median Republican in Congress or than they are to Donald Trump. Now, that means, of course, they are enabling Trump, left and right and all over the place, you know, and are on board with a lot of his agenda. But it does mean there are some differences. It seems to me that the Supreme Court often oversteps with regard to this Christian nationalist agenda. Or is it larger than that? I think it is larger than that. I agree that one of the ideas they are most committed to is that conservative Christians are the victims of a society that doesn't share their views. But they are also very committed to the idea that white conservatives accused of racial discrimination are very put upon. That idea has inflected a lot of their jurisprudence on voting rights. This term, they are hearing another Voting Rights Act case that asks them to say it's actually unconstitutional racial discrimination for states to try to ensure that black voters are represented in districting. It's super transparent in the cases of religion, but it's definitely present in other areas of law as well. When I'm chatting with people on social media, I find the Supreme Court situation is the source of almost nihilistic pessimism. There are six Republican-appointed justices. As you said, they are in lockstep with this increasingly ridiculous, paranoid agenda. There is no sense that will change any time soon. They sometimes seem to have king-like powers. Should people feel this hopeless? Are there reasons to feel that this can get better? I understand the feeling of hopelessness. I definitely feel depressed sometimes. But, just like we tell people not to obey in advance for the Trump administration, don't obey in advance for the Supreme Court, either. If you have a great law or policy that you think will meaningfully improve people's lives, and you think it's constitutional, do it. Make them strike it down. Make them pay the price for taking away people's healthcare, voting rights, and whatnot. Second, if you are that convinced that the Supreme Court is such a destructive force on society, you should try to convince other people of that as well. If we do that, we might be in a situation where the next time progressives, the Democratic Party, the left have political power, they could exercise that political power in ways that reduce the destructive potential and powers of this Supreme Court. The other thing that gives me hope is the polling on the Trump administration on immigration and other matters, and especially the polling on the Supreme Court. A majority of the country is not on board with their wild grievance-laden, retributive agenda. And so that gives me hope. Just because these weirdos on the Supreme Court are doing this doesn't mean the rest of the country is OK with it. How much of this is Mitch McConnell's fault? Mitch McConnell is a key figure in my book for a reason. Even when Republicans aren't on board with what Trump is doing, the Republican Party and people like Mitch McConnell own absolutely everything he is doing. They have enabled him and they continue to do so. It doesn't really matter if Mitch McConnell is occasionally voting against the nominee, voting against tariffs, or whatnot. He held open a Supreme Court seat to give Donald Trump a better chance of being elected president. He refused to impeach Donald Trump when Donald Trump attacked our democracy. He has held open seats to make room for radical extremists on the lower courts who have done absolutely wild things, like order nationwide bans on medication abortion. He owns a lot of this, and he should be remembered as such.
Yahoo
13-05-2025
- Politics
- Yahoo
The Supreme Court's Radical Right Turn Is About Restoring Patriarchy, Plain and Simple
This essay is excerpted and adapted from Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes, which was published by One Signal Publishers, an imprint of Simon & Schuster, on Tuesday. When the Supreme Court overruled Roe v. Wade in the 2022 decision Dobbs v. Jackson Women's Health Organization, the dissenters warned that 'one result of today's decision is certain: the curtailment of women's rights, and of their status as free and equal citizens.' In the framework of the biggest hit film the following year, the Barbie movie, the decision to eliminate a woman's right to reproductive freedom was a Ken-surrection—a move to restore a patriarchy where men are on top. Overruling Roe was just the opening salvo in this fight, which has raged ever since and only been exacerbated by Donald Trump's return to the White House. The decision overruling Roe illustrates how the Supreme Court can make constitutional law worse through a cycle that merges feelings and politics with courts and law. The feeling behind the process that produced Dobbs was patriarchy. Those are now the vibes animating this area of law after Republicans turned assorted feelings about feminism and gender roles into a political strategy, and Republican justices channeled the big feelings about feminism and women's sexual liberation to hard launch a gender counterrevolution. Originalism was merely a vessel for Republicans' anti-feminist thoughts and prayers, but that ideology goes well beyond the jurisprudential methodology of originalism. Which means the law may as well. As the feminist movement of the mid-1900s took off, so too did a strand of anti-feminist male grievance politics. After Congress passed the Equal Rights Amendment, the constitutional amendment that prohibits discrimination on the basis of sex, a countermovement pushed states not to ratify the measure. A young lawyer who worked in the Richard Nixon administration wrote a memo offering various objections to the ERA. That lawyer's name was William H. Rehnquist (the same William H. Rehnquist who Nixon would later nominate to the Supreme Court and Ronald Reagan would make chief justice of the United States). Rehnquist blasted the ERA's 'overtones of dislike and distaste for the traditional difference between men and women in the family unit' and warned that outlawing sex discrimination would cause 'the eventual elimination' and 'dissolution of the family.' Phyllis Schlafly, one of the principal organizers against the amendment, urged the country to reject the ERA on the ground that 'women's lib is a total assault on the role of the American woman as wife and mother and on the family as the basic unit of society.' She also accused feminists of 'promoting' 'day-care centers for babies instead of homes' (among other things). The Republican Party decided to incorporate these feelings into a political strategy. They came up with more anodyne-sounding language to describe their anti-women's-liberation platform—a promise to restore 'traditional family values.' That led to an affinity between conservative religious voters, especially white evangelical voters, and the Republican Party. But the politics of gender hierarchy didn't exactly win over the ladies. While the Republican Party won over evangelical voters in the 1980s, they also lost women voters as women began to consistently prefer Democratic presidential candidates. Republicans initially seemed almost surprised that women fled the party, and they struggled with how to respond (without having to embrace women's rights, of course). Nixon staffers acknowledged they had a 'woman problem,' and Reagan promised to appoint a woman to the Supreme Court to shore up Republicans' support among women voters. But at some point, a fair number of Republicans started to view losing women as the inevitable and acceptable cost of their political strategy of male grievance. In 2021, then Republican Senate candidate and future vice president J.D. Vance derided Democrats as 'a bunch of childless cat ladies who are miserable.' When his remarks resurfaced during the 2024 presidential campaign, Vance said, 'Obviously it was a sarcastic comment. I've got nothing against cats.' That same year, Republican congressional representative and future Republican nominee for attorney general Matt Gaetz boasted to the press about the GOP's strategy for replacing lost women voters with minority men voters: 'For every Karen we lose, there's a Julio and a Jamal ready to sign up for the MAGA movement.' That ascendant 'separate sex roles are good actually!' worldview was already being funneled into the jurisprudential method known as originalism. Originalism took off at around the same time that the Republican Party decided to run against feminism and to embrace originalism as a way to do that. Reagan Attorney General Ed Meese said, in front of the entire American Bar Association, that a 'jurisprudence of original intention' was the way to challenge 'the radical egalitarianism and expansive civil libertarianism of the' Supreme Court that had recognized some measure of constitutional protections for women's sexual and bodily autonomy. Originalism had (and still has) a natural symbiosis with a Republican Party that was looking to restore certain traditions such as gender roles related to the family. A key premise of originalism is that the Supreme Court has erred by departing from some righteous past that must be restored. (Patriarchy—the righteous past is patriarchy.) Originalism directs decisionmakers to ask what the Constitution meant when it was ratified or amended (in the 1700s or 1800s). That outsources the content of our fundamental laws, including what rights we have, to a group of people who were probably more sympathetic than the modern electorate to Republicans' platform of gender traditionalism—the white men (Kens) who drafted and ratified the Constitution and many of its amendments. The court's decision overruling Roe illustrates this well. Dobbs declared there was no constitutional right to decide to have an abortion because 'until the latter part of the 20th century, there was no support in American law for a constitutional right to an abortion.' Never mind that women couldn't fully participated in civic society or electoral politics until the latter part of the 20th century. For the majority in Dobbs, it didn't seem to be a bug that their jurisprudential method ignored women. If anything, it may have been a feature, since the Republican justices didn't have to consider the views of the hysterical women who wanted to control their bodies, their lives, and their futures. The majority could instead consult a group that was more sympathetic to the whole 'traditional family values' thing—the dudes (Kens) who ran things in the 1700s and 1800s. It's eerily and conveniently similar to the stated preference of the 2024 Republican nominee for governor in North Carolina, who said, in 2020, that he'd like to 'go back to the America where women couldn't vote because that was when the Republican Party had a better reputation.' Ladies and gentlemen (but mostly for the gentlemen, because patriarchy) … originalism! To this day, originalism fits the Republican Party's political project: It kind of parrots the party's 2016, 2020, and 2024 slogan 'Make America Great Again,' which, like originalism, promises a return to the way things were. (Patriarchy—that's the way things were.) It's important to see the ideology, not just the methodology, that's at work here, in the political party that brought us Dobbs—because the ideology will push the law in ways that go well beyond the methodology. The Trump administration pulled funding for research to protect pregnant women from domestic violence, labeling it a 'DEI' initiative. They slashed funding for family planning programs. They fired the Navy's first female chief, creating an all-male corps of four-star generals and admiral leadership positions. They fired the first woman to serve as Commandant of the Coast Guard and issued a statement disparaging her leadership and 'excessive focus' on DEI policies. The Department of Education rescinded the guidance that indicated name, image, and likeness payments to student athletes should be equal between men and women. The administration has disrupted and destabilized federal funding for rape crisis centers and removed funding opportunities from the website for the federal office on violence against women. They even tried to blame the deadly plane crash at Washington National Airport on 'DEI policies,' which they seemingly used to refer to the mere presence of women (and racial minorities) in important federal jobs. The ideology is, as ever, about subordinating women and elevating men—it is excluding women's voices, and women themselves, from public life. They are sending the message that women are unfit for political leadership and many aspects of civic life. Because that was the ideology at work in Dobbs, the implications for the law go well beyond those matters in which the justices might invoke originalism. This term, the court is hearing a major case involving women's health care, Medina v. Planned Parenthood of South Atlantic. The decision arises out of states' attempts to 'defund Planned Parenthood'—in this case, to bar Planned Parenthood from participating in the Medicaid program (which supplies health insurance to various needy populations). Removing Planned Parenthood jeopardizes women's health care because Planned Parenthood is often the health care provider for indigent and needy populations. In some areas, particularly rural ones, Planned Parenthood is the only health care provider for women. The question in Medina is whether federal law—the Medicaid Act, and the general civil rights statute, Section 1983, allow private individuals (either patients or providers) to sue and challenge a state's exclusion of Planned Parenthood from Medicaid. Originalism is nowhere in the case, since the matter turns on the interpretation of federal statutes rather than the Constitution. But the ideology behind the originalism in Dobbs is. Cases in the lower federal courts underscore the same. Federal courts have heard, or are hearing, challenges to states' exclusion of contraception from the Title X family planning program—another matter that has nothing to do with originalism. A district court in Texas is still sitting on a group of Republican-led states' challenge to mifepristone, one of the two drugs in the medication abortion protocol. In that case, the states are arguing that suppressing teen birth rates injures them, as if teenage girls' true calling is to serve as baby incubators for the states. When the Supreme Court overruled Roe v. Wade, Justice Samuel Alito's majority opinion insisted that no other rights would fall. The statement was ridiculous at the time, and has aged even worse over the last three years. The Republican justices' transformation of the law, and the political movement they are part of, was never just about 'abortion.' They are about women's place in the law, and the country.
