Leah Litman on the Supreme Court’s “Bad Vibes” Era
JUDJ-Prepared Summary from January 7, 2026 | Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. The views and opinions expressed in this blog are those of the speaker.
In a recent America at a Crossroads discussion, Leah Litman, a University of Michigan law professor, former Supreme Court clerk, and co-host of the podcast Strict Scrutiny, joined the program to examine how the Supreme Court has drifted away from neutral legal reasoning and toward decisions shaped by grievance, ideology, and political mood. Drawing from her book Lawless, Litman argued that today’s Court is increasingly guided by “vibes”—a shift with profound consequences for democracy and civil rights.
Ideological vs. Partisan Courts
The Court, Litman argued, has always been ideological. Justices inevitably bring views about liberty, equality, and power to the bench. What has changed is partisanship. In earlier eras, ideological differences did not reliably map onto party affiliation. Today, however, the divide between Republican and Democratic appointees is stark and predictable on issues like voting rights, racial equality, and LGBTQ protections. The result is a Court that functions more like an unelected political branch—without the accountability elections provide.
When Doctrine Follows Desire
A key example Litman cited is the dismantling of core protections in the Voting Rights Act. In striking down those provisions, the Court relied on a supposed principle—“equal sovereignty of the states”—that appears nowhere in the Constitution and conflicts with Reconstruction-era history. To Litman, this was emblematic of a broader pattern: legal doctrines are invented or reshaped to justify outcomes the majority already prefers. When reasoning runs backward from result to rationale, law becomes window dressing.
Conservative Grievance as a Driving Force
Central to Litman’s critique is what she calls “conservative grievance.” As society becomes more inclusive, some members of historically dominant groups experience that change as loss or discrimination. The Court’s conservative majority, she argued, increasingly treats those feelings as constitutional injuries in need of remedy. This mindset reframes equality for marginalized groups as oppression of the majority—turning civil rights on their head.
LGBTQ Rights and the Expansion of Exemptions
Litman pointed to recent LGBTQ cases as especially revealing. As public support for marriage equality and LGBTQ inclusion has grown, the Court has portrayed opponents of those changes as a besieged minority. Decisions allowing businesses or individuals to opt out of anti-discrimination laws are justified as protecting free expression or religious liberty. The danger, Litman warned, is that once “expressive” exemptions are broadly recognized, they can be extended to other contexts—interracial marriage, disability, or religious difference—eroding the foundation of civil rights law.
Originalism: Method or Movement?
Although conservative justices often claim originalism as a neutral interpretive method, Litman traced its modern rise to political backlash against mid-20th-century civil rights gains. As a theory, originalism directs judges to the views of 18th-century lawmakers—overwhelmingly white, male, and propertied—when interpreting liberty today. In practice, she argued, it has proven remarkably successful at rolling back protections for voting rights, reproductive freedom, and gun regulation, aligning closely with one party’s agenda despite claims of neutrality.
Why the Shadow Docket Matters
Finally, Litman addressed the Court’s growing reliance on the “shadow docket”—emergency orders issued with little explanation. While such tools have legitimate uses, their expansion allows the Court to reshape policy quickly while avoiding public scrutiny. Fewer opinions mean fewer reasons to examine—and fewer opportunities to hold the Court accountable.
Taken together, Litman’s message was stark but purposeful: understanding how “bad vibes” shape the Court is the first step toward reform. Public attention, sustained criticism, and political engagement, she argued, remain essential tools for restoring a judiciary grounded in law rather than grievance.
About America at a Crossroads
Since April 2020, America at a Crossroads has produced weekly virtual programs on topics related to the preservation of our democracy, voting rights, freedom of the press, and a wide array of civil rights, including abortion rights, free speech, and free press. America at a Crossroads is a project of Jews United for Democracy & Justice.