Jurisprudence

What Could Bring SCOTUS Back From the Brink? Anita Hill Weighs In.

Anita Hill smiling
Anita Hill in Park City, Utah, in 2013. Reuters/Jim Urquhart

This week, Anita Hill appeared on Slate’s Amicus podcast to discuss next week’s history-making confirmation hearings for Judge Ketanji Brown Jackson—a watershed moment for American jurisprudence as the president seeks to confirm the first Black women to the US Supreme Court. Hill talked about the possibility for these hearings to restore the declining legitimacy of the high court and how ideas about judicial objectivity and neutrality are still mired in racist and sexist ideas about the ways judges think. Our conversation has been edited and condensed for clarity.

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Dahlia Lithwick: I’m mindful of the fact that we are about to have—assuming that Judge Ketanji Brown Jackson is confirmed—a court in which we have for the first time in history three women who will persistently be writing dissents. And they will be, I also imagine, in the voice of what we now get from Elena Kagan, absolute fury in Brnovich on voting rights; Sonia Sotomayor, absolute fury on police misconduct, absolute fury on racial discrimination; and now Judge Jackson, who I actually think probably is going to be a more temperate writer, at least initially, but again, writing from a place of sadness, loss, anger, frustration.

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So I wanted to hear your thoughts on what it means that we are going to have this, in some sense, truly historic court with real, at least close to, gender parity, and a depressing fear I have is that the women are going to be relegated to the land of feelings, dissent, upset, and fury. And I just wonder, as somebody who thinks about race and gender the way you do, what it signals that we are going to have three justices largely dissenting, all of whom are women.

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Anita Hill: I think it’s important. I think dissents are important because they can become future majority positions. But I hear exactly what you’re saying. But part of what is coming through in your commentary about women is this presumption that when men write their opinions, that it’s all about logic, it’s not about their feelings, it’s just rational thinking that’s leading them there. There is nothing in any of these opinions that I have read by Sotomayor or Kagan or Ruth Bader Ginsburg to me that says, oh, these are all about that touchy-feely women kind of thing. They are clear, brilliant thinkers. And I think Justice Jackson will be the same. They’re not going to all think alike, which is also wonderful, but they are going to be saddled with this label of being emotional when in fact all of them are being emotional. The men are too. They’re just pretending that somehow there is no emotion behind what they’re saying.

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So I think that’s just a prejudice that we have, and we need to understand that their actions are based on their feelings, just like any judge’s actions are. And there’s nothing wrong with that. What would be better is if they were transparent and told the truth about it. And I think women are more willing and able to tell the truth about where they’re coming from. And I think that people respect that. They’re not trying to hide from those feelings and convince people that, oh, it’s all about my brain, because they can admit that these decisions will change lives. And we ought to have a court full of judges and justices who understand that.

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Lithwick: So first of all, Anita, thank you. I’ve never enjoyed being checked and corrected more than that. It’s really, really an important corrective that when women write from a place of anger, it’s seen as emotional. When Justice Alito writes from a place of anger or Justice Gorsuch, we see that as reasoned and principled.

I don’t think it’s so bad. I think you’re reflecting what will be the assessment of those opinions. And it’s seen as something that’s a negative when in fact it is important. It’s important. And maybe if we were more honest about it, the public would have more confidence in the court because that’s what they care about.

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Hill: Right. And I think that’s why, in a deep way, when Ruth Bader Ginsburg became “the Notorious RBG,” in a sense it was when she allowed herself principally in dissent to really reflect, “I am deeply dismayed. This is ridiculous.” You know? “Skim milk marriage”—that suddenly didn’t sound dispassionate and logical, and as though she had come from the planet Vulcan. She really inhabited her own experiences and her own feelings. And I think you’re right that there’s some virtue to that transparency and that the public really falls in love with that. I mean, when the public hears Justice Sotomayor wringing her hands because things are going askew and we’re moving backwards in her view, it doesn’t just resonate because it’s “emotion,” it resonates because we see that these are real people really dredging from their own experience. And that’s the transparency you’re describing.

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Justice Sotomayor is a perfect example of dealing with dissonance, if you will. She is a former prosecutor, but she is also very clear that she wants the criminal justice system to be responsible. She’s not “let’s prosecute at all costs.” She wants fairness in the criminal justice system. As a prosecutor, she realizes that the system is only as good as it is fair and balanced. And so I think it’s important for us to really value the fact that she is dealing, not only from her perspective as a former prosecutor, but she is addressing these issues as a person who is a member of the bar and who is seeking justice across the board.

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Lithwick: Let’s turn to what you’re expecting from Ketanji Brown Jackson’s upcoming confirmation hearings, and I want to hear what you’re seeing in the ether and what you’re thinking about. But I think I want to frame my question this way. Judge Jackson, when President Biden tapped her, talked about standing on the shoulders of Constance Baker Motley. I know you have spoken about Constance Baker Motley yourself recently, and that you think about that legacy. And one of the things I wish you would give us a moment on is this notion that she had to recuse because people claimed she was biased, because there’s a built-in bias to being a Black woman. That means that you cannot sit and judge fairly. And I think we’ve seen it in other contexts. We’ve seen litigants try to get gay judges to recuse in LGBTQ rights cases. Give me your thoughts on this question of judicial “objectivity” and the conversation around race and gender, and the presumption that no matter what you achieve in the world, you’re always biased because of who you are.

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Hill: Well, the presumption is that because of your skin color, because of your biology, your anatomy, there is a built-in bias. And the worst part of that presumption is that if you are a white male, then you don’t have any of those biases, that whiteness and male genitalia really is just a reflection of your lack of bias. And of course, that presumption is a built-in prejudice. And we need to understand that the standard that we are applying to objectivity doesn’t exist in reality; that there are not people who come in with no perceptions, no bias, no differences in their thinking. The question is, have you actually assessed your own bias and do you understand that in fact you bring a perspective, and understand how that perspective can be valuable in some instances and in some other instances it can actually be harmful to the judicial process? But if we allow white male judges to just presume their own objectivity, then we are not getting the best judges. Because the best judges will be constantly questioning their objectivity and testing it.

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Unfortunately, women of color, women generally, and I would say even Black male judges or men of color, have had their objectivity questioned throughout their lives. And so to recognize that objectivity is not owned only by white males, that the standards that we assume are not real standards. And what we should be looking for is for people to understand what their biases are, what their prejudices are, and be able to put them aside in ways that allow them to think very clearly about what the law is as well as what the outcomes will be, and what the impact will be. All of those things are very difficult. All of that juggling is difficult, but it’s important and it’s something that we should be welcoming. And that’s why we want judges that have that ability. That’s why I was talking about Sonia Sotomayor, because, yes, she brings in her background as a prosecutor, but she’s not stuck in that perspective. She’s able to understand other perspectives, a perspective of the accused as well as the prosecutors in cases.

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Lithwick: Are you seeing anything leading up to these confirmations that makes you feel sanguine that maybe we are going to have the conversation you just laid out—that we are going to have a sane, coherent conversation about Judge Jackson’s accomplishments and her merits and her judicial writing and her achievements? Or do you think we are hurtling toward yet another confirmation hearing that gets stuck in the loop of the “wise Latina woman” conversation we had around Sonia Sotomayor?

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Hill: Yes. Well, that all depends on the “we.” Who is the “we?” Is the “we” the Senate Judiciary Committee? I mean, perhaps we will have some of this conversation in front of the public during the testimony that will be brought not only by Judge Jackson, but also the others who are going to be called to comment on her ability and fitness for the role. But I think right now, because we have all of these different platforms, we have ways that conversation can take place and go as directly to the public as the hearings themselves. And it is for us, whether it’s in media or commentary or reporting, to make sure that conversation is happening. I don’t know, with politics being as they are, that we can have it completely in the hearing room, but there’s nothing to stop us from having it outside.

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Lithwick: And does that lead you to think about the confirmation process and both the failings in the process you were involved in, and then the future failings? I remember your op-ed saying “here’s how to fix it before Christine Blasey Ford testifies,” and none of your fixes were taken seriously. But the process writ large feels to me very much like television and spectacle and sound bites and puffery and pretty toxic performance art.

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And I know you and I both feel this is not the way you give Article III lifetime tenure to the nine justices who will decide the law of the land for decades. But do you have a sense of things we—and I am now using “we” to mean all of us—could do to take some of the oxygen out of a process that just feels like a wood chipper on both sides? There’s a part of me that just wants to wrap Judge Jackson in bubble wrap and maybe give her a bourbon and wish her the best. I wonder if you have thoughts about what could be done. Or is it just a reflection of the culture, the moment, the polarization, this is how we roll now?

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Hill: Yeah. I think one of the words you didn’t use when you talked about the theater was that it’s political theater and it’s politics that aren’t elevated enough to see the court as something that in this country needs to be protected from the politics. We’re not there at this moment. And I think the evidence of that came very quickly even before Justice Jackson was named. There was evidence that this was going to be political theater. All of the accusations about preferential treatment and reverse discrimination just showed that they were going to start throwing political bombs to derail this nomination process. So we’re already coming into this with that in the background.

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I think if we could, if I had a correction, it would be to keep in mind two things: one, the sanctity and integrity of the court; and two, the need for the public to understand the importance of this body to their lives. The third piece of advice would be to save the politics for elections. I don’t have any doubt that they’re going to ignore those three things, just as they ignored my advice on how to handle Christine Blasey Ford’s testimony, but if we can start to get our senators’, the committee members’ minds on why this nomination is important to the people of this country, and why the court is important to the people of this country, and how it can become a moment where we rise above politics, if we can get there, I think that we will have a hearing that will be fulfilling. And I think there will be absolutely no basis, if I have to predict, no basis for denying Judge Jackson a position on the Supreme Court.

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Lithwick: A lot of folks who listen to this podcast are feeling a little dispirited. That was probably the understatement of my lifetime, but they’re feeling as though we’re not moving in the direction you’re describing, and we’re not even moving in the direction of fulfilling that 1964 promise. Tell me what it means to you, in the arc of your lifetime, to see the first Black woman elevated to the U.S. Supreme Court, and maybe tell the young women particularly who listen to this show and are just trying to figure out how this all is going to work out what this really, truly singular moment in your life history and the history of the country means to you.

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Hill: Well, in that sense, I would like to not only speak to them, but I’d also like to speak to the senators who are going to be vetting her. This is a crucial moment. We have been telling our young people that if they do all the right things, if they do the things that Judge Jackson has done, they go to school, get good grades, be on Law Review, clerk with a Supreme Court justice, spend time doing public defense work, all of those things we say are the things that you do to prepare you to have whatever you want in life, then we have to acknowledge that in this process, that’s what we should be looking for. And that’s what our young people want and need to see: that we have actually been telling them the truth when we say you can be whatever you want to be if you do the right things to get there.

If we take a detour and reject Judge Jackson, then I think we will have reason for our young people to be discouraged. And they should be discouraged. But I also like to tell young women in particular that this one decision does not determine the direction that the country will take. That to me is a lesson of 1991, because after 1991 and what happened with me after 2018, what happened with Christine Blasey Ford, the country could have said, “OK, these issues no longer matter. We’re going to continue to allow people to be left out of the conversation. We’re going to continue to allow abuse.” But we didn’t. We saw this as a moment to disrupt a whole lot of myths and lies and to try to get to the truth of our experiences. And whatever happens with the Jackson confirmation hearing, I have every confidence that we will continue to look for ways to get to equality.

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