How SCOTUS Became Your Weird Fringe Theorist Uncle (with Leah Litman)
May 8, 2025
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Leah Litman, a constitutional law professor at the University of Michigan and co-host of Strict Scrutiny, dives into the Supreme Court’s conservative leanings and its embrace of fringe legal theories. She critiques how these ideologies shape landmark decisions and discusses the implications of unenumerated rights and the unitary executive theory. The conversation also touches on upcoming Supreme Court cases that could reshape the Voting Rights Act and influence education, all while infusing humor into the serious topic of judicial defiance.
The Supreme Court's conservative justices adopt a grievance mindset that influences their rulings on contentious legal issues, such as reproductive rights.
Fringe legal theories, like the independent state legislature theory, are shaping judicial outcomes and undermining established legal precedents in significant cases.
Current debates on executive power, particularly regarding immigration, highlight the risks of unchecked authority and the necessity for judicial oversight.
Deep dives
Conservative Grievance in the Supreme Court
The concept of conservative grievance represents a mindset among Republican justices who perceive themselves as victims of a society that does not share their views. This perspective influences their interpretation of laws, where they often see societal rules or laws they oppose as personal affronts. For instance, Justice Samuel Alito epitomizes this grievance, viewing criticisms of his ideological positions as illegitimate attacks on both himself and the Supreme Court. This prevailing attitude shapes many of the court's rulings, particularly regarding contentious issues like reproductive freedom and anti-discrimination laws.
Fringe Theories and Their Legal Implications
Fringe legal theories are interpretations lacking widespread legal support and often reflect extreme viewpoints that resonate with only a small segment of the population. One significant example discussed relates to the 'Stop the Steal' movement, which falsely asserted widespread voter fraud in the 2020 elections. This ideology links to the independent state legislature theory, which claims that state legislatures alone govern federal election rules, a notion that has found its way into recent Supreme Court opinions. Such theories can undermine established legal frameworks and pave the way for controversial judicial outcomes that disregard established precedent.
The Role of Executive Power in Immigration Decisions
Current debates around executive power, particularly in immigration law, reveal a troubling trend of wielding authority without adequate checks. The Alien Enemies Act has been employed by some political figures to justify deportations that lack proper legal grounding, raising questions about the president's unilateral powers. Critics, including some judges, argue that the executive branch should not have the authority to classify individuals as threats without due process. This misuse of power emphasizes the potential for abuse inherent in unregulated executive discretion and the importance of judicial oversight.
The Far-Reaching Consequences of the Major Questions Doctrine
The major questions doctrine has emerged as a contentious legal principle that affects how administrative agencies can enact regulations on significant public issues. This doctrine suggests that courts should be skeptical of major regulatory actions unless Congress explicitly authorizes them, which has often aligned with political controversies. Decisions like those surrounding climate change regulations and student debt relief reveal a partisan divide on what constitutes a 'major question.' This application has led to concerns that such doctrines might facilitate a conservative agenda by allowing the judiciary to weaken regulatory protections established by executive agencies.
Navigating the Future of the Supreme Court
As key cases approach regarding the Voting Rights Act and the role of religion in public schools, the Supreme Court's trajectory remains uncertain. These decisions could significantly impact minority voting rights and the separation of church and state within educational contexts. The court's current composition raises questions about the extent to which justices will uphold precedents that protect civil rights. Observers are keenly watching these developments, as they will likely define the Supreme Court's legacy and influence on American society for years to come.
Plus, Preet answers questions about whether anyone without a law degree has served as a Supreme Court justice, and whether a district court could disregard a Supreme Court ruling.
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Show notes and a transcript of the episode are available on our website.
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