Conservatives Keep Playing the Victim And It’s Working

PLUS a Giveaway of 5 copies of Leah Litman’s new book Lawless

There’s a particular type of man who, when you are talking about sexism, immediately responds with “not all men.” Or certain MAHA influencers whose platforms are built on bullying but when they get attacked for something (say platforming child abusers) claim they are being victimized and the world is out to get them.

It’s the same as any toxic relationship where the person who is doing the attacking or abusing suddenly starts crying because the victim has had the nerve to assert they are doing something wrong.

That’s the energy that defines the current conservative majority on the Supreme Court.

Leah Litman

is a constitutional law professor, co-host of the Strict Scrutiny podcast, and a woman you want in your corner when the republic is crumbling. She’s also how I explain to my dad that even if I had gotten a Supreme Court clerkship, I still could have ended up a millennial lawfluencer.

This week she released her book Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes (Bookshop, Amazon) in which she explains how blatantly political actors running high on grievance have taken over the law of our land. How our court is not driven by logic or law, but by the emotional needs of men who believe that equality is oppression

It’s a great book not just because it’s smart (it is), or because it’s deeply researched (also yes), but because it names the thing so many legal analysts are still too polite to say out loud: that the conservative justices are not neutral, not restrained, and absolutely not victims.

The book, Leah says “is meant to be read like shit talking with your girlfriends about the worst people in the world.”

Early in the book Leah quotes Justice Alito’s dissent in Obergefell, the 2015 decision that enshrined marriage equality in which he says the decision to institute equality “facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play."

Similarly, post his 2020 election loss, Donald Trump would often tell crowds of MAGA that “we’re all victims.” Democracy itself was the aggressor.

“I think the common thread across all the chapters [of the book]” Leah says, “is this notion of conservative grievance and entitlement. They feel like they are the victims. And they honestly feel like they deserve political power, and they are entitled to it, and no amount of evidence, no number of votes, seems to be enough to persuade them otherwise.”

In 2015, Ginsburg was still on the court. Since then a Trump-appointed conservative majority has grown in power. Alito’s trajectory can be traced from writing the Obergefell dissent directly to writing the Dobbs majority, overturning Roe v. Wade.

Litman walks us through how this victim complex isn’t just a rhetorical tic, it’s a judicial strategy. Conservative justices, especially Alito and Thomas, frame their rulings as righteous corrections of past wrongs done to them or their people. The Christian baker who doesn’t want to bake a cake. The gun owner in New York who wants to carry in Times Square. The wealthy donor who’s just so tired of being regulated. And in doing so, they recast power as persecution. They turn backlash into precedent.

Do you like having healthcare? Litman asks us. Because there are endless lawsuits arguing that the Affordable Care Act unfairly victimizes business owners who don’t want women and LGBTQ+ folks to have certain kinds of healthcare. The plaintiffs are proxies in a much bigger story the Court is telling about whose suffering has value in America. It’s not the pregnant teen in Texas. It’s the religious man who doesn’t want to follow civil rights law.

These plaintiffs are not randomly chosen or even organically evolving, they are ones that are handpicked by conservative groups to provoke exactly the kind of decision the Court is now willing to hand down. The Alliance Defending Freedom, a conservative impact litigation firm, had a total revenue of $102 million in 2023. And the justices are people who have been groomed by Leonard Leo, with careers manufactured to be perfect for the role they were destined to play.

The first chapter of the book is about how the court has used originalism to institute patriarchy, under the frame of the Barbie movie. (It’s like she wrote the book specifically for me.) When the 14th amendment was passed in 1868 it said that states cannot deprive “people” of liberty, and one would think that women were included in that definition of people but alas, they were not. Women were barred from voting, they couldn't be lawyers, one justice called the idea of women having a distinct and independent career “repugnant.” This all changed in the early 70’s when the court started to realizes that sex discrimination was bad and “put women, not on a pedestal, but in a cage.” Litman writes:

To social conservatives, it seemed as if the women had gone wild. The feminist movement and civil rights revolution were ushering in social, economic, and political changes that frightened people who were more comfortable living in a world with clearer gender hierarchies and more rigid gender roles. In their eyes, America looked like it was about to be overrun by a bunch of Weird Barbies who didn’t dress for the male gaze, wore guerrilla fatigues, and wanted to take over the entire country.

And so the backlash was born. Litman tracks how the politics of male grievance found a home in the law through the jurisprudential method of originalism. A fancy way of saying - let’s go back to 1868, and the legal underpinning of the Dobbs decision. In 1988 a Regan appointee in the Office of Legal Policy actually wrote out this plan in a document called “the Constitution in the Year 2000.” In it he says that achieving the social policy goals of the Republican party will require selecting judges with a commitment to originalism.

Litman details how another Regan appointment, Samuel Alito, would draft a memo about how to get the Supreme Court to overturn Roe,something he was able to do 30 years later.

All of this shows just how long these plans have been in the works. The conservatives have been playing the very long game and now they are reaping their rewards.

The story of today’s conservative majority and their approach to reproductive rights is not one that can be told succinctly in a paragraph, or even in a single Substack. It’s complicated, it’s winding, and it’s long. And that’s sort of the point.

I was watching recently when Leah did a Live interview with Barrett of the American Girl meme account Hellicity Meriman, and there was a commenter who kept insisting that she didn’t care about the past, she only wanted to know what people could do now. This is a common refrain I hear from folks who are, I think, being ill served by the groups who are supposed to be leading the grassroots resistance and not offering sufficient leadership. (another conversation) But that doesn’t mean that a dissection of the Court doesn’t have a critical role.

We have to care about the past because history is repeating itself and we can learn from the steps that have been taken to get us here.

We have to keep a critical eye on the court for three reasons:

1. The vast majority of the general public neither follows the court nor understands its significance. This has allowed people like Leondard Leo to work in the shadows for decades setting out a strategy to take over the country undemocratically. It’s the real deep state and people need to understand.

2. Today’s conservative movement is not happening by happenstance. And most certainly not happening because of actions done yesterday. They spent 50 years working to overturn Roe and have laid a careful legal path to enact their rule. Through incremental progress, that included many losses, they are achieving their goals. Many today want instant results. They want to sign a petition and have done their annual work for democracy. The book offers a key to understanding how changes happens.

3. When Dobbs came down, for the first time I started hearing people talk about how originalism is a major scam. And maybe you’ll say this is inside baseball stuff that doesn’t matter, but it actually does. Originalism is the legal manifestation of Make America Great Again, the idea that the constitution should be frozen in time to when it was written and the social and cultural mores that existed then. For anyone in this country who cares about change, both the judges and justices who practice this and the politicians who vote for them, are in calcified opposition to change.

Understanding the stories conservatives tell us about how they are shaping the law is absolutely critical to understanding our current political moment and how we get out of it. When someone is being gaslit, they will never escape the relationship until they understand what is happening.

Today’s court is a reflection of America’s institutionalization of minority rule. This is something I talk a lot about in my book, Democracy in Retrograde (which, for those reading, does go deep into what you can do! On sale for $15), and Leah provides an excellent example of the self-serving circle that Republicans have created for themselves. Senators representing a minority of Americans vote for members of the court who then make decisions enacting further entrenchment of undemocratic norms.

The solutions require politics: passing voter enfranchisement laws, fixing our broken electoral college system and perhaps even expanding the court. Politics requires people, people who know what's happening and people who care enough to change it.

So what do conservatives get from this performance of victimhood?

Power. That’s the point.

It lets them play offense while pretending to be on defense. It gives them the cover to rewrite laws, roll back rights, and rig systems in their favor, all while claiming to be the real victims of liberal overreach.

They overturned Roe, then immediately turned around and claimed people were being mean to them. Alito wrote about the tone of public criticism, as if the real threat wasn’t forced birth but harsh language on Twitter.

Litman pulls the mask all the way off. She shows how the Court is using its authority not just to decide cases but to advance a deeply ideological project, one that centers white Christian male grievance as the most protected class in America.

→ I am giving away FIVE COPIES of Leah’s wonderful book, you can enter by commenting ‘LAWLESS’ in the comments. Promo ends friday!

Buy your copy this week (first week of sales are super important for authors!) Bookshop, Amazon

P.S. Leah says the cases we should be paying attention to this cycle are the ones that argue that the existence of secular education in this country is victimizing people who are religious, and that states can fund religious charter schools. She talked about it more on Dahlia Lithwick’s podcast.