If you want a better understanding of how the judiciary, particularly the Supreme Court, has been destroying democracy through what can be described as “death by a thousand cuts,” read this book. Each precedent-breaking ruling, taken alone, has only a marginally incremental impact. But when these actions accumulate over time, they become deadly. This is the case Litman makes in her excellent book. The recent history of how conservatives have captured the Supreme Court, and lower courts, comes off as a massive and pervasive conspiracy, resulting in creeping normalcy intended to gain general acceptance of democracy stripped of its ideals, and replaced with rule by an enriched and powerful minority.
You may ask how this is possible. For one thing, if law is nothing but an abstraction, it is easy to contort and pervert legal principals to serve undemocratic principles. As an example, when a baker refuses to make a cake for a non-binary couple, it is not the couple who are discriminated against. It is the baker who suffers discrimination by being forced to betray her religious beliefs. When campaign finance laws are watered down or eliminated, it is not the disenfranchised who were being hurt by the absence of reform, it is the rich and powerful who are discriminated against and deprived of freedom of speech due to the existence of the reform. According to Litman, the “Court is equating equality with discrimination, which enables more of it.” In other words, we are all equal. None of us is stopped from spending millions of dollars in campaign contributions in favor of one policy or candidate. The fact that few have that ability and having it gives some more free speech than others, is beside the point. Recognizing facts would entail stepping out of an ideological bubble and dabbling in real life, not to mention actually exhibiting a belief in democracy.
The Court has expanded its authority over time, now feeling free to upend Congressional authority. The Court’s arrogation of power eviscerated the Voting Rights Act. Of course, that is easy to do when law becomes nothing but an abstraction, easily justified regardless of facts on the ground or by evidence that voter fraud is a non-issue. During COVID, absentee ballot rules were relaxed to allow more time for receiving ballots in Wisconsin. The pandemic impacted minorities more substantially than others. Blacks accounted for about half of all COVID-related deaths even though they made up only 6% of the population. The Supreme Court reversed the lower court order, preventing countless minorities from having their votes counted. Again, everyone is equal. Everyone had the same ability to vote. At least that is a reasonable conclusion when deliberations exclude consideration of real life circumstances.
Gerrymandering is not an issue for the court. Why? Gerrymandering is a political issue. And before long (my assessment, but one that follows from the book), certain issues about Trump’s abuse of power (like his tariff actions) will reach the Supreme Court and when they are forced to make a decision, they will say that the Constitution created three co-equal branches of government, with checks and balances. But on issues about Presidential abuse of power, the institutional check is not the judiciary, but Congress’s power to impeach, thus skirting the issue entirely. Even if Democrats take control of both houses of Congress in the midterms, the likelihood that Congress will be able to check Presidential power is negligible.
The author takes us on a jurisprudential history tour that is compelling and thought-provoking for its planning, forethought, and systematic implementation. She goes through the origins and application of “originalism,” “textualism,” and finally – once there was enough political cover created through gerrymandering, voter suppression, and more – what might be characterized as “Republican Sentimentalism.” Her characterization, with much background and justification, is that “vibes” play an important part in conservative judicial rulings.
Even nonsense is not out of the question, such as when the court reasoned that, in the words of the author, “laws banning gender–affirming care did not really discriminate against trans-people since the laws banned gender-affirming care for everyone.”
Of course, the Supreme Court can issue rulings without providing any rationale at all. These cases, characterized as comprising a “shadow docket,” were used mostly in emergency situations. It appears this practice is quietly being expanded to cover non-emergency cases. And it is clear that retribution is a component of their jurisprudence. It is almost as though Earl Warren is to this Court, what Obama is to Trump. The only rationales needed for overturning established precedent are serving the rich, turning back the clock on non-historical rights, and doing away with anything related to the Warren or FDR/Johnson/Obama/Biden legacy. In essence, the author makes the point that “the Supreme Court made Redemption great again.” [For those who would be helped with a history reminder, the post-bellum Supreme Court was of great service to the South as slavery was replaced by Black Codes, convict leasing, lynching and Jim Crow, all representing the hallmarks of the Southern Redemption. ]
In 1873, the Court ruled that the 14th Amendment could only be litigated in federal courts, and only with regard to federal citizenship. In 1874, voting rights were undermined by ruling that voting is not a guaranteed right. States were only prohibited from giving preference to one citizen over another. In 1876, the Supreme Court refused to allow federal prosecution for White mob lynchings, ruling that the 14th Amendment only covered government acts. In 1883, the court ruled that discrimination in public places did not violate the 14th Amendment, nor did it amount to the 13th’s prohibition against “badges of servitude.” In 1896, Plessy v. Ferguson enshrined Jim Crow and judicially recognized Blacks as inferior to Whites. Consistency, just as with our current Supreme Court, was not a big deal. In an 1899 case, the Court ruled that separate schools for Blacks could be closed if the closure was done for fiscal, as opposed to racist, reasons. There are many parallels between the late 19th Century Supreme Court’s facilitation of discrimination and our current court. [For a more thorough exploration of these post-Reconstruction cases, I highly recommend reading or rereading Carol Anderson’s book, White Rage.]
The only issue, and it is a minor issue, I have with the book is the author’s use of sarcasm, which was used frequently in the beginning, even though it faded rather quickly and then disappeared throughout the majority of the book. The reason I say that is based on a desire to see this book reach as diverse an audience as possible. Too often, the use of sarcasm turns people off who are reachable, rejecting the implication they are stupid or uninformed, while reinforcing the bias against bi-coastal or urban elites. Diehard MAGA cultists are not worth the effort to educate. But there are many who sympathize for what Trump and MAGA represents to them, but can be convinced they are working against their own self-interest by supporting him and his followers. This may represent a small fraction of the electorate, but remember how few votes it took to give Trump the election in 2016 and 2024.
One of the most striking stories in the book is the case of Barry Jones, the wrongfully convicted Arizonian for whom the Supreme Court declared it was his fault that his court-appointed attorney was so ineffective at trial and that federal courts were precluded from hearing evidence not introduced at trial. Luckily, Kris Mayes was elected Attorney General in 2022 by a margin of 280 votes and signed an agreement releasing him. Just 280 voters in Arizona are the reason why Jones is likely alive today. Never say organizing does not work; never say your vote doesn’t count! Such encouragement is the theme outlined in the book’s Conclusion.
This is a wonderful book that I highly recommend.