Leah Litman on How the Supreme Court Operates on Grievance and Fringe Theories

The Supreme Court as a Political Entity

• ⚖️ The Supreme Court is increasingly partisan and sloppy, with justices openly incorporating political talking points and feelings of Republican elites into legal arguments.
• 🎯 This shift is characterized by a sense of conservative grievance, where core Republican constituencies feel like victims and use this to justify outlandish rules that grant them more power.
• 🗓️ While the court has always been political, the last few decades have seen an acceleration in its partisanship and a decline in its need to conceal these motivations.

Key Moments and Doctrines Driving Change

• 🚀 Antonin Scalia is identified as an early proponent of this grievance-based jurisprudence, particularly in dissents concerning LGBT rights and the rollback of the Voting Rights Act.
• 🗳️ The Bush v. Gore decision is seen as a critical moment where Republican justices ordered a state to halt a recount, risking disenfranchisement and setting a precedent for partisan decision-making.
• 📜 The invalidation of key parts of the Voting Rights Act in 2013 is highlighted as another milestone, where a bipartisan act was dismantled based on questionable legal theories.
• 🧠 Fringe theories like the unitary executive theory and the major questions doctrine are discussed as tools used by the court to advance Republican agendas and allow the administration to disregard laws.

The Role of Institutions and Ecosystems

• 🤝 The development of the Federalist Society created an alternative ecosystem that validated justices for adhering to conservative legal movements, reducing reliance on national public opinion.
• 📉 The decline of other democratic institutions, such as the Senate and the Electoral College, has made the Supreme Court feel less pressure to respond to public opinion.
• 🏛️ Democrats are criticized for failing to recognize the changing nature of the Supreme Court and the Republican party, leading to a lack of proactive measures to safeguard rights.

The Shadow Docket and Its Implications

• 📈 The use of the shadow docket (decisions made without full briefing or oral argument) has dramatically increased, particularly under the Trump administration, allowing the government to implement policies that lower courts have declared illegal.
• ⚠️ This practice is seen as emboldening the administration's failure to comply with lower court orders, as they face no penalty for disregarding them.
• 🌍 The shadow docket's use in immigration cases, such as denying individuals the right to challenge deportation to dangerous countries, exemplifies its problematic application.

Future Challenges and Court Reforms

• ⚖️ Upcoming cases address critical issues like the future of the Voting Rights Act, parental rights to opt out of public school instruction with LGBT themes, and the non-delegation doctrine, which could render much of modern governance unconstitutional.
• 💡 Structural democratic reforms are necessary to protect democracy from the Supreme Court, with figures like Alexandria Ocasio-Cortez and Jamie Raskin advocating for such changes.
• 🚫 The Supreme Court's decisions, particularly on issues like nationwide injunctions and the potential dissolution of law on a person-by-person basis, pose a significant threat to the rule of law.