June 15, 2025

This week, I sat down with Leah Litman — law professor at the University of Michigan and co-host of the popular Supreme Court podcast, Strict Scrutiny — for an interview on our YouTube channel. We talked about her new book, Lawless, a behind-the-scenes insight into the Supreme Court’s strategy, how she’s teaching the next generation of lawyers during the worst possible time for the law profession and much more. 

I sent members a written version of this interview (ads free) and thought you’d enjoy a preview — on me. I hope you find our conversation as compelling as I did. Let me know what you think by replying to this email and please consider upgrading to our premium membership to always receive exclusive content like this.

Marc: Leah Litman, welcome to Defending Democracy.

Leah: Thanks so much for having me.

Marc: All right, I've got so many things I wanna talk to you about, but first we're gonna start with your book. You wrote a terrific book about the Supreme Court. And for people who don't know, Leah was actually a Supreme Court clerk for Justice Kennedy, which is very rarefied air. What made you decide to write a book about the Supreme Court? 

Leah: Two reasons. One is, in some ways, I think this book is really coming out of my experience clerking at the Supreme Court. I was there when the Court heard the big constitutional challenge to the Affordable Care Act and almost struck down that entire law based on this idea that one day the government would make you buy and maybe even eat broccoli. Watching the justices come within one vote of almost blowing up so many people's health care and life-saving health insurance based on ignoring past precedent and just misassessing the risks was very eye opening for me. And I think it really influenced how I think about the Court, teach law and whatnot.

And then second is seeing people all of a sudden pay attention to the Court when they overruled Roe v. Wade, but still in my mind, not really appreciate the Court's long game and where these decisions were coming from and where the justices might go next.

Marc: Does each justice have their own long game? Or do like five justices have a long game together? Do all nine of them? Sometimes I notice this with Justice Thomas, he'll seem to write something like, “geez, it'd be really great if we eventually got a case that said this.”

Is that just him musing or is that part of a broader strategy?

Leah: I think that there is some individualization and then some coordination. I think that Justices Thomas, Alito, Gorsuch, Kavanaugh and the Chief all have some issues in which they are particularly interested and trying to signal they would like to hear. Justices Alito, Thomas and Gorsuch really want the Court to take a Second Amendment case and to chip back on what they said in Rahimi. There are some individual preferences, but I think the long game is that there are certain key issues that have been so much ingrained in the modern conservative legal movement that on those issues, the justices are really on the same page and moving as a body. 

In that category, I would put Roe v. Wade, affirmative action, Humphrey's Executor and independent agencies. There is a clear group preference among the Republican appointees that I think they all know where they are going to go. And sometimes that involves inviting litigants to generate a case. 

Honestly, I think that's partially what happened when Donald Trump fired a bunch of multi-member commissioners. The New York Times was reporting how Trump's advisors thought he could do this because they anticipated having a friendly audience at the Supreme Court. And they knew that based on what the justices had been saying, doing, writing, and whatnot. So there, I think, yes, they are inviting cases. They are generating cases. And that is part of what allows them to go where they are going to go.

Marc: I graduated law school in 1993. Obviously I was always liberal and was not a part of the Federal Society, but it existed and was actually quite in its ideological or intellectual heyday in that they espoused what they said were neutral principles that would be the same neutral principles no matter who were the winners or the losers. And I think that there are two cases that have kind of radicalized me. 

The first is Shelby County. I actually wrote an amicus brief on behalf of then-Majority Leader Harry Reid. He and I, we were on our own on this. I'm pretty sure if you ask the Framers of the 13th, 14th and 15th Amendments what they thought of the equal dignity of the southern states, they'd say we don't give a shit about that. The brief we wrote was that Section 5 of the 14th Amendment says that Congress has the authority to implement legislation. The Court doesn't get to make up a bunch of other doctrines to limit that authority to undo discrimination in voting under the 14th and 15th Amendments. And so that radicalized me. 

The more recent one, is the immunity decision. I have represented lots of members of Congress where there is an actual provision for immunity called the Speech and Debate Clause, which the Court has carved into a thousand little pieces. It means that there is no textual or originalist basis for presidential immunity. 

What do you make of those two objections that I lodge?

Leah: Who would let constitutional texts get in the way of a good time, Marc?

I'm on board with both of them. Shelby County was also radicalizing for me. It was actually the case I wrote my job talk paper about when I was trying to become an academic about the equal sovereignty principle in particular. That has also been a long running, long festering concern slash disagreement I have had that made its way into a book intended for a general audience, even though it kind of came from a Law Review article.

That decision is just unreal, relying on this equal sovereignty principle. And it's not just that the people who drafted and ratified the Reconstruction Amendments wouldn't believe in the equal dignity or equal sovereignty of the former Confederacy. It's that in order to invent that principle, John Roberts had to insert a misleading ellipsis into a prior opinion in order to make it mean the exact opposite thing that it said, which is this thing of equal sovereignty, was only a rule that applied when Congress was admitting states to the Union. It didn't apply to laws Congress enacted after a state was already in the Union and represented in Congress. 

But again, what's constitutional text or a little Supreme Court doctrine to get in the way of a good time? 

The immunity opinion was also shocking but not surprising. I think given that the Court had slow-walked it and the extent to which the Democratic appointees warned us that they were in the bag for Donald Trump in the Trump v. Anderson case about whether states could disqualify him under the provision of the 14th Amendment that prohibited those who engaged in insurrection or rebellion from holding office. The fact that they declined Jack Smith's request to take that up in a timely fashion, they slow-walked it, those were all indications that they were going to go big. And still the opinion they wrote is just grotesque. They twisted the Court's prior cases. They inverted our constitutional scheme, which was founded on the idea that we are a government of laws, government under the law. 

No man is above the law. And yet they somehow made it so one special man, dear leader, is above the law. It's all shocking. And they seem to have no buyer's remorse about it as well, which is also deeply troubling. They've gone ahead and let him fire officials in violation of federal law, doubling down on this unitary executive theory that was also very present in the immunity opinion. Those should be radicalizing. 

Marc: How do you think students sort of process all this and how do you see this affecting the next generation of lawyers?

Leah: I hesitate to make wide generalizations, however, I think it has to be incredibly formative and instructive to have grown up and only known a political world that has been deeply influenced by Donald Trump. I think the first core political memory that I have is the Supreme Court's decision in Bush v. Gore and waiting to see what happened in Florida. That has been very influential on how I have thought about government and the Court. 

Some people come to law school thinking lawyers are there to fight and we're gonna lose a lot of the time, but it's still worth fighting and trying to slow things down. Some come and want to change things and engage in more systematic, systemic change. There are still some people who come to law school and think I'm not going to have to concern myself with this. And I think the initial period of the Trump administration has been disabusing them of that idea, as the administration has destabilized public service, attacked law firms, etc. There's no escaping this kind of politics right now for people who are engaged in the practice of law.

And of course there are some people who are excited about what is happening and view it as an opportunity. I don't exactly know what this generation of lawyers is going to do when they are further into practice, but I have no doubt that what they experienced and grew up with is definitely going to shape their views.

Marc: I'm curious, since you undoubtedly coach your students on careers and write letters of recommendations and clerkships and the like, one of the things that shocked me was judges and justices hiring law clerks with a little bit of heterodox, you know?

Leah: Yes.

Marc: Not every law clerk for a liberal justice or judge would be a liberal. Not every clerk for a conservative judge or justice would be a conservative. Law professors would be solicited for recommendations from conservative students if they're liberal, vice versa. Harvard Law professor Michael Klarman came on the podcast recently and painted a picture of something a little more bleak, that it has become much more ideological. 

Leah: Yes.

Marc: I wonder if it doesn't also negatively impact the judiciary, where it's just like everything is separated from the get-go?

Leah: That is definitely my experience. At the Supreme Court, there's just no non-ideological hiring. It's just not a thing anymore.

That has also become more prevalent at the Court of Appeals. There are certainly still some Court of Appeals judges who are just not interested in ideology or who are firmly looking to hire someone with a different perspective than they have. But there are today many more who just want ideological allies. 

This is going to have horribly negative effects on the judiciary and the legal profession because now people are being credentialed based on their ideological leanings and political views. The class of people who have been able to or who are going to be able to have this experience of seeing the Supreme Court up close or seeing the Court of Appeals from behind the scenes are going to have that, in many cases just because they had the right political views, that is not a great system when we are thinking about how to train the next generation of people who are supposed to be enforcing the rule of law.

Marc: You also spent a small amount of time at a Big Law firm, WilmerHale, one of the firms that fought against Donald Trump. And you are now at a university, which I don't know if your particular university has been targeted by Donald Trump yet, but you have seen the administration target large institutions, the media organizations. You're a very prominent media figure yourself with an award-winning podcast.  

I have been very critical of Big Law. I run out of adjectives to describe [Paul Weiss Chairman] Brad Karp as spineless, gutless, without dignity. I don't know how Paul Weiss partners wake up in the morning. They should be ashamed of themselves— 

Leah: Same dignity as the former Confederacy.

Marc: Do you feel pressure, either internal or external about how you do your job?  Do you worry that Donald Trump will hear your podcast or read your — he'll never read your book. You don't have to worry about that, but does that affect you at all?

Leah: I don't feel pressure from the institution to change what I'm doing or to censor myself. I do watch with some concern how MAGA and the Trump administration sometimes identify particular critics and just attack them on social media. 

During, I think, the first Trump administration, there was a group that put together a mock list of individuals they wanted to warn might be potential judicial nominees in the Biden administration and my name was on that list, even though that was never going to happen. But it was shown on some right-wing media and I just got a barrage of absolutely horrible messages, some of which coded as threats and that was not fun. 

My podcast co-host has testified before the House Judiciary Committee and Senate Judiciary Committee and was basically shamed and yelled at because of some things, very harmless things, that she had said on the podcast. I think the reality is that the choices I am making are going to close some doors, and they come with some risks. But those are risks that I have to be willing to kind of suck it up and bear right now.

Marc: You referenced what I wanted to end with discussing with you, which is you are also a pioneer in the area of media. Democrats right now are looking for their new Joe Rogan, and I'm happy to be interviewing among the candidates for— 

Leah: I don't think anyone would identify me as the Democrats' Joe Rogan.

Marc: You and your co-hosts started Strict Scrutiny in I think in 2019, right? You were very early to podcasting. Now everyone wants to have a podcast. Now everyone wants to have a podcast on YouTube. But you all recognize the power of this form of journalism, which it is to educate, to inspire, to advance political positions, legal positions.

You deserve an enormous amount of congratulations, but must also have a lot of wisdom about what the left is generally not doing right in this space, because there is a lot of discussion in the ether about the sort of collapse of legacy media and the relative advantage that the right has generated in the podcast new media space. I'm just curious what you make of all of that and what your secret to success is.

Leah: Our secret to success is we believe in what we're doing and we enjoy doing it. And what we believe in is messaging about the importance of people understanding the Supreme Court and what the Supreme Court is doing. As far as more general lessons, what the left or Democrats are or aren't doing, some of it is, I think, a failure among Democratic political officials of being unwilling to fight, unwilling to meet the moment and generally not being willing to take a stand and feeling like they need to run everything through some sort of political calculus that is based on what the polls say right now, rather than recognizing their own power to shape public opinion and to move public opinion.

That's just my own personal view of the Democratic Party. I think there has also been an unwillingness to recognize the moment we are in. This is true not only of how they look at the Trump administration, but also of how they look at the Supreme Court and their willingness just to mindlessly defend institutions that have fundamentally changed and are no longer institutionally equipped to protect our democracy. 

Those are some of the failings. I think that the search for the Democratic Joe Rogan though, just misses some of what Joe Rogan is, which is he's not an engine for generating information or theories in the right-wing ecosystem. He just amplifies them. The search for a Democratic Joe Rogan misses that aspect of the misinformation or disinformation media ecosystem on the right.

I certainly think Democrats could improve on communication, but I think that the search for the Democratic Joe Rogan is just kind of silly in some ways.

Marc: All right, well, you still have my vote.

Leah: Thanks. I think I might introduce myself in the future as the Democrat’s Joe Rogan and see how that goes over.

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