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SSRNMeet the Author: Leah LitmanLeah Litman is a professor of law at the University of Michigan Law School. She teaches and writes on constitutional law, federal courts, and federal post-conviction review. Her research examines unidentified and implicit values that are used to structure the legal system, the federal courts, and the legal profession. In 2023, the American Law Institute named Litman a recipient of its Early Career Scholars Medal, and in the same year, the American Constitution Society recognized Litman with the Ruth Bader Ginsburg Scholar Award. Litmans recent work has appeared or will appear in many journals, and her writing for popular audiences has appeared in The New York Times, The Washington Post, Los Angeles Times, and Slate. In addition, she is one of the co-hosts and co-creators of Strict Scrutiny, a Crooked Media podcast about the US Supreme Court, which received the 2023 Podcast Academy award (Ambie) for Best Politics or Opinion podcast and a 2023 Anthem Award for its coverage of the Supreme Court overruling Roe v. Wade. She is also a co-creator, together with Emily Prifogle, of Women Also Know Law, a tool to promote the work of women and nonbinary academics. She spoke with SSRN about the intricacies of the Supreme Court and how understanding it is relevant today, both in and beyond academia.Q: Your body of work has such variety. On top of your experience as a professor and researcher, youre one of the co-creators of Women Also Know Law, and you also co-host the podcast Strict Scrutiny. How is it that youve gotten involved in some of these wider-reaching projects, that extend beyond classrooms and research papers?A: I think its a combination of reasons. First is just a little bit of happenstance. I happened to be at Michigan Law School when Emily Prifogle joined the law school as a faculty fellow, and she had been involved in a related project called Women Also Know History. There was not yet a Women Also Know Law group. Women Also Know is a series of organizations related to different disciplines, which seek to highlight the work of women and non-binary academics. So, we just decided to start the legal version. Similarly, with the podcast, I looked around [and] it seemed like there was not a podcast hosted by several women law professors who wanted to offer a kind of irreverent but also analytical take on the Supreme Court. So again, we just decided to do it and launch it. Five and a half years later, here we are. I think one of the best parts about being an academic is the autonomy you have over what the job looks like and what you do. All of these different things that Im involved in use very different parts of my brain and different skill sets, and its fun to be able to get to do all of them.Q: In the Strict Scrutiny podcast, you and your co-hosts Kate Shaw and Melissa Murray do a great job of talking about the Supreme Court and its legal culture at a broader, more approachable level, while still getting into the nitty gritty of how current events and big legal ideas impact our everyday lives. Why do you think its important to communicate with people beyond traditional academic settings about whats happening in the Supreme Court?A: First, just as a general academic matter, I think part of what academia is about is producing research in the quest for truth. That, of course, has value beyond just an academic audience. I love to see when academics can translate their work to the broader public or when they can work with other people to do so. Not all academic ideas need to have practical implications or practical output, but for those that do, its not going to actually materialize unless youre able to talk to people outside of academia.As to the Supreme Court in particular, the Supreme Court is one of the less transparent institutions within the federal government. Its governed by a set of rules that arent all written down, that arent all public, and yet its extremely consequential and important for our everyday lives, as well as the functioning of our government. We wanted to be able to rectify that by talking about the Supreme Court and bringing it to a broader audience, so people who were interested could learn more about this super important but still fairly opaque institution.Q: Are there any aspects of the Supreme Court and its culture that you wish people understood better?A: It would be hard to identify just one. I can name a few. One is that I think its a mistake to try to understand Supreme Court opinions in isolation. You have to look at them together with previous opinions, related opinions, whats happening in other areas of law, as well as the political context for the decision, in order to really understand what is going on and how a decision might play out on the ground. We try to offer a more contextual understanding of what the court is doing.The second thing I would say as far as what people should know about the Supreme Court is the Supreme Court basically has near plenary authority to decide what cases and issues it takes up. So, I think that fact really skews our assessment about what the court is doing at any given time, just because they have such broad authority to select their docket and decide what issues they are focusing on, kind of similar to elected officials.Q: Your new book, Lawless, is set to come out in 2025. Could you give an overview of what this book is about and why you chose to write it now?A: The full title, which will give you a sense about what its about, is Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories and Bad Vibes. Im publishing this with a trade press, rather than an academic press, because it is geared toward the general reader, rather than just the academic reader. What the general gist of the book is, is it goes through five broad areas of law and shows how what the Supreme Court is doing now originated from political movements that began at least several decades ago. Those political movements harnessed certain social attitudes and feelings, and we can understand and actually see the remnants of those feelings and movements within the substantive content of the law and that helps us understand where the Supreme Court might go next. Thats the general arc. All of these areas of law reflect, I think the nicest word is ambivalence toward different groups that are not, by and large, part of the modern GOP coalition. So, doctrines that kind of stick it to the people who are less well off, doctrines that stick it to younger voters, doctrines that stick it to racial minorities, and it looks at those together with the political makeup of the modern Republican coalition and the policies of the modern Republican party, and shows how the doctrines, in some ways, work in tandem with that.Q: What encouraged you to start writing the book in the first place?A: Partially, what happened with the podcast. I mean, the Supreme Court is just so important right now. I have a sense that people really want to understand it. Obviously, we try to do a lot of that in the podcast, but the podcast is just hour-long episodes, you listen to them, its an audio format rather than read, and we cant necessarily go as in depth as wed like or give all of the long history into every single topic it is we are covering.I wanted to bring that understanding and context [of] what is happening now to a broader audience, and also help people understand some of the mechanics of the Supreme Court and how it got to be so. The book talks about how the court selects cases or why the Supreme Court has the authority to select cases or why the Supreme Court has the authority to basically decide what issues are in a given case. It discusses various powers that the court has that people might not be aware of and also how those powers developed over time and what they are the product of.Q: What research or other projects are you working on right now that youre particularly interested in or excited about?A: I have a piece that is coming out in the new year in the Texas Law Review called The New Substantive Due Process. The basic gist of that piece is it shows how the Supreme Court is refashioning the institutions of the administrative state based on doctrine and body of law that really resembles what is known as substantive due process, the idea that the Constitution protects certain liberties that are not defined or spelled out explicitly in the constitutional text. And while the Republican appointees on the Supreme Court have been hostile to the traditional individual rights line of substantive due process, theyve essentially transmuted it and replicated it as a weapon to wield against the administrative state, even though they dont call it substantive due process. Thats the one thing Im working on.I have [about] three other projects that are in various stages of early research and writing that span a bunch of different topics. One is about federal post-conviction review and remedies. Another is about statutory interpretation and the other is about originalism and attacks on education. Again, one of the best parts about being an academic is I just get to focus on what I find interesting and what I think is important at the given moment.Q: Do you choose what your focus is based on whats happening currently in the world, or do you look ahead at issues you think will be important in the next couple of years?A: Its a little bit of both. The new substantive due process piece kind of spans both. It illustrates the kind of early seeds of this new substantive due process, but then spends a fair amount of time talking about what might happen over the next, lets say, decade, if not more, in light of where the Supreme Court appears to be headed. The originalism education project is, I think, more forward-looking than some of the other ones. Its really a mix of different approaches.Q: Your most downloaded paper on SSRN is The New Major Questions Doctrine, which you co-authored and was posted to SSRN in July of 2022 and published in the Virginia Law Review in September 2023. This paper explores the changes made to the Major Questions Doctrine. How would you explain to someone unfamiliar with this doctrine firstly, what it does, and then what changes have been made to this in recent years, specifically with how the focus is on what a major issue is and whether a decision has economic or political significance impacts decision making?A: The Major Questions Doctrine is a rule about how courts interpret statutes, federal laws. In general, we think about this court as a textualist court that tries to interpret federal statutes based on the best meaning of the words in the statute. The Major Questions Doctrine essentially operates as an exception to that rule. They say, when we are talking about statutes that give administrative agencies power, were not going to adopt the best interpretation of the statute. Instead, were going to place a thumb on the scale against agency regulations that are major in order for the agency to have the power to adopt major regulations. Those need to be spelled out explicitly in the constitutional text, rather than in broad, general language. Thats kind of how the doctrine works.As far as the changes in it and what has happened, the Supreme Court used the phrase Major Questions Doctrine for the first time in West Virginia v. EPA, a 2022 decision. There were seeds of some related ideas in earlier cases, but those cases had basically said, Look, were going to consider the significance of a regulation together with a host of different factors, like the text of the statute, its statutory history, its structure, and if you add all of that together and here, majorness meant the cost and the sweeping changes that a regulation would make then that was a reason to think actually the statute doesnt give the agency that power. But over time, its become something quite different, where instead of considering the majorness alongside the text and statutory context and trying to discern its meaning, majorness operates as a threshold consideration, where if the regulation is major, youre no longer looking for the best interpretation of the text. Thats how the doctrine has changed.In the paper, we argue that the court has paid increasing focus, not just to the economic significance of a regulation that is, how much it might cost to private parties but also to whether there is political controversy surrounding a regulation. That is, whether some people, in particular the Republican Party, is agitated against the regulation.Q: Have you seen any of the things you wrote about in the paper come to fruition since you wrote it?A: After we posted the paper, almost a full year later, the Supreme Court issued its major student debt relief case. There, the court invoked the Major Questions Doctrine to conclude that President Bidens loan forgiveness program for many borrowers of federal loans was illegal and it invoked the Major Questions Doctrine. We think the decision reflected our understanding of the doctrine, in that it focused on the political significance of the regulation which wasnt necessarily going to cost private parties that much money, [since] it was just forgiving federal loans and it focused on political significance. The court quoted an op ed basically saying that student debt relief had engendered emotionally charged opinions and debate. The editors were kind enough to allow us to basically insert two references to the decision into the piece. But we think, yes, how the Supreme Court later applied the doctrine was consistent with what we were saying the court was doing.Q: Youve mentioned before, in the podcast, that you enjoy and put a special focus on habeas corpus. What is it about this topic that continues to interest you?A: Habeas corpus refers to the body of law that allows people who are being detained to challenge the lawfulness of their conviction. Habeas law is governed by a Byzantine body of statutory rules, including the Antiterrorism and Effective Death Penalty Act, as well as a complicated body of judicial common law. So, its highly technical. There are a bunch of rules and its unclear how, if at all, the provisions fit together. For someone who likes to puzzle through doctrinal intricacies and is very into the analytic elements of law, I think thats partially what drove me to it: the fact that there were all of these different bodies of law that were highly technical, that didnt necessarily seem to relate together but were hugely consequential. They were just requiring a lot of work by courts, by people who are detained, so trying to understand what was happening amidst the mess, is part of what drew me to it.Q: Is there anything else you want to add about your recent work or about things that youre especially interested in that youd want people to know more about?A: In general, my work is trying to identify the implicit that is, not explicitly stated values that are underlying a lot of the doctrines and legal changes we are seeing. I think thats important, because in order to assess what courts, Congress, [and] political actors are doing, we need to understand whats motivating them and whats the driving force behind the doctrine. Thats a general theme.Q: Law is one of the most prominent disciplines on SSRN. How do you think SSRN contributes to the legal research and scholarship landscape?A: Its hugely important because its a way of transmitting our work to other academics and to a broader audience in a way that is so much more timely than the longer window of journal publication. You were saying earlier about the New Major Questions Doctrine piece that we posted it in July 2022. It wasnt published until September 2023, and we really wanted to get that piece out basically as soon as the Supreme Court had refashioned and formalized New Major Questions Doctrine so people, including lower courts and litigants, would understand what was happening and be able to evaluate it. The way to do that was to post a paper on SSRN.You can see more work by Leah Litman on her SSRN Author page here.
