Anita Hill on the Supreme Court’s Future
S1: This ad free podcast is part of your slate plus membership.
S2: Changing culture and structures at the same time is hard, but we make gains and they’re incremental and I get impatient and I worry too. But it doesn’t stop me from pushing.
S1: Hi there and welcome to Amicus, this is Slate’s podcast about the law and the rule of law and the Supreme Court of the Courts. I’m Dahlia Lithwick. I cover those things at Slate.com and we are in this interregnum between President Joe Biden’s announcement of Angie Brown Jackson as his nominee to sit on the U.S. Supreme
S3: Court and her confirmation hearings that are going to begin in just a bit over a week. We were trying to think about who are absolute dream pick would be to discuss this truly historic moment. And we just decided
S1: to take a flier and ask Anita Hill,
S3: who in so many, many ways is a trailblazer on big, big issues around race and
S1: justice and accountability and gender. And she said yes, and we’re going to be hearing from her in just a moment. Later on in the show, Slate Plus members are going to have access to our special extra bonus segment. And this week’s Amicus Plus segment is going to feature a conversation between Slate Senior Jurisprudence Editor Nicole Lewis. We’ve talked to her before and sleepless and of course, my wingman, Mark Joseph Stern, who covers the law for Slate, and they’re going to talk about all the things that are happening at the court that we couldn’t get to in the main show, including a shadow docket near miss for federal elections and a big unanimous decision in a case concerning the Armed Career Criminal Act that landed on Monday. But now Professor Anita Hill. So I guess I will just say that Anita Hill needs absolutely no introduction in 1991 as a young law professor. She testified that Supreme Court nominee Clarence Thomas had sexually harassed her when he was chair of the Equal Employment Opportunity Commission. That testimony changed. The course of history certainly changed my life. Since then, she has written multiple books, including her most recent book called Believing and her new podcast Getting even launched on March 4th. And as we think about what it means to seat the first black woman justice on the highest court in the land in American history, and what these upcoming confirmation hearings for Judge Jackson portend and what the composition of this court signals for racial justice, gender justice, justice generally in America, it is just such a treat and a pleasure to welcome Professor Hill to the show. So Anita I know I did not do you justice with that introduction. There’s lots to say, but I cannot tell you how thrilled I am, particularly this week to have you with us.
S2: And I’m very thrilled not only with the introduction, but of course I’m thrilled to be talking with you.
S1: So first, congratulations on both the book and the podcast, and I wondered if you can tell us if you can what it is you’re trying to surface with these new fora. I can remember, I think, the first time I ever interviewed you, which was a long time ago, I think you were kind of hoping that this whole sexual harassment in the workplace thing was not going to be perhaps your entire life’s work. And maybe even you were hoping that we’d be a little further along down the path. So tell me where you are now as compared to where you were in 1991 and maybe even where you hope. This moment for you, both with the podcast and the book will take us.
S2: Well, first of all, let me just say that I think we are farther along down the line in terms of sexual harassment and other kinds of gender violence. We are farther along in the sense that there’s greater awareness. Public awareness is really at an all time high, an awareness that the problem exists. Awareness that it’s pervasive. An awareness that it is causing immense harm. Now the thing that we have to do is to have the courage, if you will, but also the wherewithal to come up with solutions. And that requires structural change and structural change is hard to explain, let alone or to accomplish. So we have a lot of work to do. But the first step really is to get people to understand the seriousness of these issues and how it is impacting just about everybody in this country.
S1: And do you worry? I know you don’t worry, but maybe this is me projecting. I do worry that this happens in stutter steps, that there is awareness. And then there are backlashes that there are moments of amazing public salience and public commitment to the project. And then it seems to detonate in our faces and we get to these awful, awful I’m thinking of the lock her up moment around Christine Blasey Ford after she testified. And so I guess I don’t think this is a linear path. And I wonder if you think at this moment, we’re in one of those stages where we are progressing and learning or whether we seem to be slightly stalled out even in the backlash to the Kavanaugh conversation.
S2: You know, I understand that that, you know, one step forward, you know, two steps back or two steps forward, one step back. I mean, it’s not linear. You know, talk about the arc of a moral universe. I mean, I don’t even think of as moving like an arc. I think it moves more like a stair step. You know, you and the the risers, if you will, are, you know, at different elevations, depending on the time. Sometimes we really do surge forward. And I think that’s happened over the past 10 years. The surge forward, though, cannot be limited to awareness. That’s the problem. We got to get in there and really understand how these cultural ideas and assumptions that we make about the necessity for change are embedded in our structures. And so changing culture and structures at the same time is hard. But we make gains and they’re incremental and I get impatient and I worry too. But it doesn’t stop me from pushing. And I mean, that’s really the key. The other key is to realize that we now have a lot more people working on it. I mean, since 1991, not only have we developed a generation of educators that are devoted to this issue and researchers who are to devoted it, there are people in leadership in the U.S. Senate and who are devoted to this issue and in the House of Representatives. So we have made gains in that respect. People are talking about this issue, not enough. But the leaders are talking and thinking about these issues in terms of the laws and policies that need to be put in place. So we are beginning to have some of the things that need to come together to make the change. We even have, and I shouldn’t say this as though with some exception, but we we have leaders in business who are saying it’s time for a change because they understand that the problems in the workplace are really hampering their productivity. So I think there are all kinds of ways that we can think about why now is a different moment, even though I continue to worry that we need to change realizing that this is a different moment. You know, sort of helps me to control my anxiety.
S1: I want to ask you one other maybe framing question, which is I’m always struck by the ways in which. There feels like there’s this unfortunate switcheroo where we talk about sexual harassment, we talk about workplace discrimination, we can talk about all sorts of race and gender issues, and it always feels as though we’re having a conversation in this feelings space, right? You hurt my feelings. I was sad. I was offended. You were assaulted. You know, that’s so I’m sorry. The whole sorry thing. I know you more than anyone have strong, strong things to say about the I’m sorry, a piece of this, but I guess I’m also fascinated when I talk to you or when I read You are here, you speak because you don’t operate in the feeling space. You always operate in the systems place. You always since I’ve heard you speak, talk in terms of systems, formal structures, policies. Very clear and coherent architecture. That is the farthest thing from feelings, and it’s just so interesting to me, and I really noticed this after the Christine Blasey Ford testimony that it was almost as though we were watching a split screen where she was allowed to have all these feelings. And then all these Susan Collins speeches about their sorrow, about her feelings and how sad that she was sad. And none of it changes anything. And I’m always struck by the way in which you don’t really actually have a tremendous interest in talking about sadness and sorrow and suffering and pain. Your interest is just like, let’s get some structures in place so this stuff doesn’t keep happening. And I always just feel like I want to ask you that question of how is it that we got into a world all these years, even after you had your experience in 1991, where men get processes and women get feelings?
S2: You know, I think that is part of clearly part of the issue that somehow there’s this presumption that all this is about is hurt feelings for women and even in the early sexual harassment cases, you know, you heard courts saying, you know, it’s too bad this is happening, but you know, they’ll get over it, basically. And I know that the feelings matter to me. I mean, I’ve heard from thousands of people who have been harmed and are deeply saddened about it. But we cannot stop with pacifying people by saying, I’m sorry this happened to you. We need to be saying it’s time to do something about it so that it doesn’t happen again to you and it doesn’t happen to somebody else, the next generation of people. That’s what you know, people ask, What do you want your legacy to be and what my legacy to be that we change so that we don’t pass this on to another generation. And so that to me, is important. We want to be able to treat the trauma that people experience. We want to be able for people to understand that their feelings are real and deep and meaningful. But I have talked to so many people who have those feelings and they are looking for ways to take care of themselves, but they’re looking for our leadership and our systems to take care of the problems in the way that they need to be taken care of. You know, you had asked me earlier about why all of this? Why the podcast, why the book? Why the op ed pieces? You know, I grew up in a home. My mother was born in 1911 and she had 13 children. I’m the youngest. So, you know, I saw a generation, maybe two generations in terms of her lifetime, of not having a voice, not having a platform. And I have a platform. I have an opportunity to talk. It didn’t come through what I would have liked for it to come through, but I got here. And so I want the podcast to be able to reach an different audience, frankly, about how we can really begin to fulfill the meaningfulness of. What equality is about and how we can get beyond this stagnation that I think we’re failing in terms of equality. So yes, gender violence is about equality, discrimination in education and in the workplace, it’s about equality. But we need to have a very expansive mindset when we start to think about all we will need in this country to ensure that another generation experiences a much fuller and much more robust sense of what equality is. And I’m trying to bring those ideas to the front of people’s minds. I think it’s a way of not only informing people, but encouraging people who are saying, why aren’t we farther along? And that’s a real question. And I think we’re not farther along because we are not thinking expansively enough about what we need to get even in this country.
S1: It’s such a great Segway to my question about this nomination, which is. It ticks every box you just mentioned in terms of equality and in terms of justice and in terms of moving forward and progress. I mean, this is by any metric, an extraordinary moment. And yet it’s already bogging down in. I just think incredibly fatuous conversation about, you know, Joe Biden and affirmative action and quote unquote lesser black women and all of the ways that Judge Jackson, who we just keep saying the same thing over again, has every single qualification that John Roberts had plus years on the bench. And still, it’s not enough. And I guess I wonder what you see when you look at the discourse around this nomination and around this really singular nominee, what parts of it do you feel are heartening and bolstering and moving us forward? And what parts feel like they are just dumb, vestigial conversations that I cannot still believe we’re having in America in 2022?
S2: Well, you know, you raise so many good points. But let me just start with this idea that Joe Biden announced I will select a black woman for the Supreme Court. And there was this hue and cry about, Oh, this is affirmative action or preferential treatment or reverse discrimination. I mean, that’s part of the rhetoric right now, right? Any effort to achieve equality or full representation or justice is distorted to become something evil or bad. In fact, I think Joe Biden was saying out loud what other presidents were thinking, but keeping to themselves because we knew they were kind of nominate a white man or we knew they were going to nominate a white woman. So why not just say it out loud and get to the point of what we really need in this country, especially on the judiciary? And that is that we need better representation. You know, people think about this nomination and they think, Well, you know, she’ll probably be a liberal. And what’s it matter? It’s still talking about a court that is overwhelmingly conservative in terms of votes. But there’s more to judging than. The specific outcome in a case, and the Supreme Court has an opportunity to really articulate to the public the reasoning behind these outcomes, what the thinking is that goes into these conclusions and to articulate and many of their opinions what the impact of their decisions are. And I think the public wants that. They also put it in a majority opinion or a dissent. They want to know how the judges got to the decisions and how it’s going to impact people. And I’m really excited that Judge Jackson has said that she thinks about how the law impacts people because the public needs to know that now, you know, confidence in the Supreme Court has been declining since 1991, and we need something that can restore that. I think we have that in a Judge Jackson. We have it in a Sotomayor. We have it in Elena Kagan. We have that in many ways that possibility of getting people to understand that this court is about them in their lives. So I’m just very grateful for this moment because. It is an opportunity for us to have an open discussion about the direction that this court is taking in a country that is increasingly diverse, where the perspectives of people who are here and will be affected by the law need more and more to be represented. They can’t be presumed to be what they were 100 years ago, and we have the chance maybe not to get the court they are right now. But to start the conversation about where we as a people think the court should be.
S1: And I want you to weigh in on this, because this is something that really I do feel like you carry this in all your thinking about the courts and the law, which is there’s a really not very smart take, which is, oh, Democrats are mad at the court. They don’t like the outcomes. That’s why they talk about packing the court. That’s why they talk about the shadow docket and legitimacy, and that it’s really important for progressives to tear down the legitimacy of the court because they just don’t like the results. And you are the antithesis of even that cartoon about somebody who thinks about the court you have, I don’t think, any interest in the court losing legitimacy. I don’t think you have any interest in having a court that decides the 2024 election and only four people abide by it. I mean, I think you are firmly in the camp that it is in everyone’s interest to have a legitimate court. And I think that that is such a knife edge to be on to both have descriptive critiques of how the court is deciding cases right now. And at the same time, be 100 percent in the tank for a court that the public can abide by and accede to its legitimacy. And I just want to give you a second to talk about it, because when I think of people who could have for very long time just slung their arms up and said, You know what? Yeah, the court sucks. I’m going to be a dentist. Like, you’re on that list. Maybe not a dentist, but certainly not to continue working in this lane of thinking about law and justice. And so I guess I want to give you an opportunity to respond to this critique. That is, you’re just trying to trash the court because you don’t like the outcomes. That is not what you are talking about.
S2: Well, it absolutely is. It’s not what I’m talking about. And maybe it’s because, you know, I’m a I’m a teacher. Maybe that’s so much part of my profession. I critique my students all the time, and it’s not because I want them to fail. It’s because I want them to flourish. And so that is why I critique the court and I see the direction that it’s headed in the public esteem. And I realized that if we cannot have confidence in the court, we can’t have confidence in the law. That doesn’t mean that the law needs to stay the same or the way it’s enforced is appropriate. But it does mean that there has to be something that people can count on to having integrity, to being true, to reflecting the public interest. And for me, that is the law. I and politicians rotate as presidents rotate. But the Supreme Court is established the way it is to provide some kind of anchor. So, for example, you know, when it comes to my confidence in the court, I am not naive. I know that the court has made some colossally bad decisions that have impacted my life. I mean, I don’t have to go back to Plessy versus Ferguson when they said separate but equal is completely fine in this country. But you know, that’s one place where we all and I think most people could agree that was a wrong decision by the court. So I know that the court can make mistakes. It’s not flawless, but in the end, I believe that the court and the legal system is in the best position to provide the kind of integrity and the kind of structure that can move us toward a greater country, a greater society and can influence all of our systems in that same direction.
S1: I think I want to ask you another version of the question I asked you about how sometimes women are relegated to having feelings. And this version is I’m a little bit mindful of the fact that we are about to have assuming that Judge Jackson is confirmed. A court in which we have for the first time in history. Let’s stipulate for women, that’s extraordinary. And for the first time in history, three women who will persistently be writing dissents and they will be, I imagine, in the in the voice of what we get from Elena Kagan. You know, absolute fury in Brnovich on voting rights on Sunday. Sonia Sotomayor absolute fury on police misconduct. Absolute fury on race discrimination. And 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. And it feels to me as though I guess I wanted to hear your thoughts on what it means that we are going to have this in some sense, historic court with real at least close to gender parity and that there is a just a depressing fear I have that the women are going to be relegated to the land of feelings, ball dissent, upset and fury again. And I just wonder is somebody who thinks about race and gender the way you do what it signals that we are going to have three justices dissenting, all of whom are women?
S2: 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 are, it’s all about logic, it’s not about their feelings. It’s just, you know, it’s 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, you know, that touchy feely women kind of think they are clear, brilliant thinkers. And I think, Hey, 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 that there is no emotion behind what they’re saying. 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 his 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.
S1: So, first of all, Anita, thank you, I’ve never enjoyed being checked and corrected more than that is just such an important it’s a really, really unimportant corrective that, you know, 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 reason than principle. And you’re quite right. That’s completely my bad to even begin to dip into that.
S2: I don’t think it’s so bad. I think you’re reflecting what will be the assessment of those opinions. And it seemed, you know, it seemed 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, right?
S1: And I think that’s why in a deep way, when Ruth Bader Ginsburg became the Notorious R.B.G, in a sense, it was when she allowed herself principally in dissent. I think, to really reflect. I am deeply dismayed. This is ridiculous, you know, skim milk marriage, whatever it is that she was doing and saying that suddenly didn’t sound dispassionate and logical, and as though she had come from the planet Vulcan, right? She really let herself inhabit her own experience 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 just absolutely wringing her hands because things are going askew and we’re moving backwards in her view. It doesn’t just resonate because it’s quote unquote 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.
S2: Well, Justice Sotomayor is a perfect example of dealing with dissonance, if you will. I mean, she is a former prosecutor, but she is also very clear that she wants the criminal justice system to be responsible. She’s not, you know, 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 really important for us to really value the fact that she is dealing not only from her perspective as a prosecutor, but she is addressing the issues as a person who is a member of the bar and who is seeking justice across the board.
S1: And when we turn to what you’re buckling in and expecting from Tunji 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. She, 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 that I wish you would give us a moment of your thoughts on is this notion that. She had to recuse because she was biased straight, because there’s a built in bias to being a black woman. That means that you cannot sit and judge fairly. And I think, you know, we’ve seen it in other contexts. We’ve seen litigants try to get gay judges to recuse right in in in LGBTQ rights cases. Give me your thoughts on this question of judicial objectivity and the conversation around race and gender, and that no matter what you achieve in the world, you’re always biased because of who you are.
S2: Well, the presumption is that, you know, because of your skin color, because of your biology, your anatomy, there is a built in bias. And even worse part of that presumption is that if you are 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, in that presumption is some built-in prejudice. And so 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. But the question is, have you actually assessed your own bias? And understand that in fact, you bring a perspective and understand how that that perspective can be valuable in some instances, in other instances can actually be harmful to the judicial process. But if we allow white male judges to just presume their objectivity, then we are not getting the best judges because the best judges will be constantly questioning their objectivity and testing it. 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 not recognize that objectivity, it’s not owned only by white males, then 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 allows them to think very clearly about what the law is, as well as to think about what the outcomes will be and what the impact will be. All of those things are very difficult. All of that juggling isn’t 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 with that perspective. She’s able to understand other perspectives, a perspective of the accused as well as the prosecutors in cases.
S1: 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 achievement, or do you think we are hurtling toward yet another confirmation hearing that gets in the loop of the wise Latina woman conversation we had around Sonia Sotomayor?
S2: Yes. Well, that all depends on the week. Who is the way is the way the Senate Judiciary Committee. Perhaps we will have some of this conversation in front of the public during the testimony that will be brought in, including not only by Judge Jackson, her testimony, 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 that conversation can take place and will go as directly to the public as the hearings themselves. And it is for us, whether it’s in media or commentary or reporting. However, to make sure that 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.
S1: And does that? Lead you to think, and I know you have a lot of feelings about the confirmation process and both. The failings in the process you were involved in and then the failings, I remember your op ed saying, here’s how to fix it before Christine Blasey Ford testifies and none of your fixes. None of your fixes, in my view, were taken seriously. But the process writ large feels to me very much like television and spectacle and soundbites and puffery and just pretty toxic performance art. And I know you and I both feel this is not the way you give. Article three 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 this is 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. That just feels as though, you know, there’s a part of me that just wants to wrap. Judge Jackson and Bubble Wrap and maybe, you know, give her a bourbon and wish her the best, but it’s going to be terrible because it’s always terrible. And I guess 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.
S2: 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 don’t rise above 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 show 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. 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 to 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 and committee members minds on. Why this nomination is important to the people of this country, 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. You know, predict no basis for denying Judge Jackson’s position a position on the Supreme Court.
S1: Anita, I think I want to end by talking about what we started with, which is both the podcast and believing or a moment in time where, as you know, we’ve made really tremendous progress. If nothing else, we haven’t fixed the systems around, you know, sexual harassment in the workplace, you know, sexual violence all the ways. And you I’ve heard you talk about this so often it’s endemic. It’s everywhere, it’s in the military, it’s in the academy. It’s we just need to be very mindful of the fact that this is not one offs that we hear about when we hear about Hollywood or where when we hear about the judiciary. But as you’ve noted, awareness has really changed and I’m really struck by something you said, I guess in your podcast talking to Marc Lamont Hill, talking about equality and you said we’re still operating within a 1964 version of equality. And I guess I’m really curious what a 2022 version of equality is. In other words, when you think about. I know you resisted the word arc of the moral universe, but when you think of the arc. Where do you see it going? What? What’s the yellow brick road for Anita Hill? What are we shooting for? If it’s not these battered, broken systems that aren’t great?
S2: Well, first of all, I’m looking for us to move to an understanding that the issue of inequality is layered. You can’t simply say, OK, we’re going to admit people into colleges and universities, and once we admit them or give them an opportunity to be admitted, then we have achieved educational equality. And I’ll use example of issues of sexual harassment. We have begun to admit women into college programs in record numbers, but what we haven’t dealt with is the fact that their educational lives and experiences can be completely derailed by sexual assault on campuses. That happens to one in every three women and is higher in various identity communities, even beyond the one in three. So we haven’t achieved equality. We seem to be content with just opening the doors and letting people in and not paying any attention to the experiences that they have, that our detractors from a true equality. So that’s where I want us to be right now. The 1960s version of equality would be, well, we’ll give them opportunity, will admit people, and we don’t have to pay attention to what happens to them after that. And that’s where I think we we need to be moving. What is going on inside those institutions once they arrive, that prevents reaching true equity, true equality, true fairness. So that’s my example of where I think we should be by 2022. There are other examples, whether it’s workplace examples or the framework was set by a 1964 act passed with bipartisan support. Not sure what happened today, but it did at the time, but that was just the beginning of our understanding of what equality would and could be in this country, and we need to move to a deeper understanding.
S1: And before I say goodbye. A lot of folks who listen to this podcast are feeling a little dispirited. That was probably the understatement of my lifetime, but they are 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 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, in the history of the country means to you.
S2: 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 that 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 that 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. And 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 thing 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. Well, it certainly doesn’t determine the direction the country. Can take. That, to me is the lesson of 1991, because after 1991 and what happened with me after twenty eighteen and 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.
S1: Anita Hill needs no introduction, but if you have not read her most recent book, believing you need to read it and if you are not listening to her brand new podcast, Getting Even. You need to be listening. And in all things, at least in my life as first a law student, a young law clerk and later briefly terrible attorney and journalist, Anita Hill has been a really amazing lodestar for me, not just on this question of if we fix systems, we can get there and it is painstaking and boring and technical. And still we do it. But also on this much, much larger question of having faith that if we fix systems, it’s going to be better for all of us. I cannot thank you enough Anita for giving us your time, and I will look forward really, really to the next spectacular thing you do. Thank you for joining us.
S2: Oh, it’s been a pleasure, as always, to talk with you.
S1: It is Women’s History Month, and so it feels just very, very apt that we are featuring two huge figures in recent women’s history. On today’s show now, you just heard from Professor Hill, but I also wanted to play you a clip from a really great conversation I had on another podcast that dropped this past week. I had the immense honor of being on Hillary Clinton’s podcast, You and Me Both. And Beyond, confirming that we both got into the law because of Marian Wright Edelman. We talked about this big giant Supreme Court term that we’re in the midst of and what it might mean. And I wanted to play you a snippet of our conversation where we turn to abortion and the likelihood that the current national standard for reproductive freedom in the United States. Roe v. Wade is probably gone, either by way of the Texas ban in SB eight or the Mississippi 15 week ban argued in the Dobbs case, that has yet to be decided.
S4: I think it’s gone. And I think in overturning it, the only hope that one can have is that they will somehow overturn it based on Dobbs and not SBA Texas, because there’s precedent for vigilantism is just so frightening for the rule of law, for anything that we believe represents order and due process. But when Roe is overturned or so totally eviscerated that it basically doesn’t exist anymore. What do you expect to see at the state level?
S1: Well, so this is also grim news. 26 states already are threatening to outlaw abortion altogether if Roe is overturned. I’m a little bit worried about what comes after that. And there’s two pieces of that that are worth thinking through.
S4: One is the
S1: precedent that gave us Roe v. Wade when the court ridicules that and they have ridiculed it the majority. What they do, I think fully appreciate is that it’s not just abortion. It is, as you know, the right to contraception in Griswold between married people and that bucket of privacy, family integrity, autonomy, bodily autonomy, all the stuff that gave us also
S4: sodomy law, sodomy. Well, that’s exactly it’s the whole structure that was built on some same due process, but also a right to privacy is the foundation for so much of what we have seen in the past 30 years. Develop, as, you know, rights that women and men can claim, and it’s hard to know how radical this Supreme Court is. I think a couple of members truly are radical, and I wouldn’t put it past Thomas and Alito to, you know, go after gay marriage, go after contraception. I wouldn’t put it past them at all because they’re true believers. Now, what I can’t figure out is, are they true believers for religious reasons? Are they true believers for, you know, a broader right wing agenda that they believe is where the country should go back to? This is not clear to me, but the fact is they are true believers.
S1: Yes, and I think in some sense we can talk about how wildly pro-business anti-worker this majority is. We can talk about religious liberty and abortion or opposition to LGBTQ rights. We can talk about voting. It almost doesn’t matter. You know, whether it’s a business imperative or, you know, kind of. Hot button culture question, the fact is they’re all in for all of them, and it may shift. And I think, you know, here’s where I say the thing that always makes people’s hearts stop, which is Brett Kavanaugh is now the median justice on the court.
S4: Yeah, that’s that’s terrifying. He is one
S1: of the most conservative jurists.
S4: Yeah, but he’s an opportunistic conservative. He he’s somebody who, you know, decided out of Yale Law School and being a country club Republican that he was, you know, going to go whichever way the wind was blowing to try, you know, to become a federal judge and the strongest wind was coming from the right. So there he is. But I don’t want to run out of time before we get to another terrifying issue. I hope that our our listeners are not listening to this before they go to bed. That’s all I can say.
S1: We also talked about the guns cases and we talked about voting, so it was a great conversation. You should have a listen. And I was incredibly honored to be on Secretary Clinton’s show. And I should also note that Sherrilyn Ifill, dear friend of Amicus, also appeared on the same show and was incredible talking as she always does about empathy, about racism and about the right to vote.
S4: We’re now at everyone’s favorite part of the show. It’s often my favorite part of the show. Although Mark, you’re following Professor Anita Hill this week, so there is that, but I’m delighted and a little daunted to be stepping into Dahlia as recording closet for the Plus segment this week. I’m Nicole Lewis, I’m the senior editor of Jurisprudence here at Slate, and I’m joined by Slate senior writer Mark Joseph Stern, who covers the courts and the law and so much more for us. Hey, Mark. Hi Nicole.
S5: How are you doing?
S4: Hanging in there, you know?
S5: Absolutely. I think it’s a pretty tough follow up when Anita Hill, a bonafide American hero, came right before you. But we’re going to do our best to have some fun and run down all of the crazy stuff that SCOTUS did or did not do this week.
S4: That’s right. And I think if anyone could pull it off market, it’s you. So here we
S5: go. You’re too kind.
S4: Let’s start with the shadow docket. What happened regarding federal elections? A rather kind of didn’t happen in the truly awful way that it could have.
S5: Yeah. So this is a pretty big development for democracy and election law, because the Supreme Court considered this week two cases that involve something called the independent state legislature doctrine. And I can hear and see you like fading away into boredom already, because that’s a very tedious name for a very dangerous and radical and terrifying idea, which is that state legislatures have basically total control over federal elections. So races for the Senate, races for Congress, races for the president, and there’s almost nothing that say a state judiciary or perhaps even a governor can do to alter or oversee election laws in a state. And so here we see a clash between this doctrine, which, for the record, has never been endorsed by the Supreme Court. This is a kind of radical idea pushed by far right conservative scholars. We see a clash between this and some redistricting litigation in Pennsylvania, in North Carolina. So Pennsylvania and North Carolina both have Republican controlled legislatures and Democratic controlled state Supreme Courts. Both Republican controlled legislatures passed really bad gerrymanders for the new congressional maps, and both state Supreme Court struck down those maps or redid the maps, redrew the maps in the case of Pennsylvania to make them fair and comply with the state constitution. And so the Republican controlled Legislature said, You know what? We don’t think you’re allowed to do that state courts, because in our view, we have total control over redistricting. State courts don’t get even a little bit of input into redistricting. And so we get to draw these maps, not you, and appealed their cases to the Supreme Court now. It was kind of a mixed bag at the Supreme Court. What basically ended up happening is that by a six to three vote, the court turned away this North Carolina case. But Justice Kavanaugh indicated in a concurrence that he would be willing to adopt this pretty radical idea in the future. So this was more of a reprieve than like a final settlement of the issue. And then in the Pennsylvania case, by a nine zero vote, the justices turned it away. And that’s basically because it’s so close to elections in Pennsylvania. And there’s no back up map that if the Supreme Court intervened at this stage, it would have to have At-Large elections for all of its members of Congress, which has not happened in. Albania since the 18th century, so that’s not a step that the Supreme Court was willing to take, but it does look like there are four votes in the future to maybe adopt this doctrine and take state courts out of redistricting altogether forever.
S4: Can you give us a tiny little sneak peak of the history of where did this independent state legislature doctrine? Does it have anything to do with the way that, you know, conservatives and far right folks are attempting to undermine elections and say that the 2020 election was a fraud and all wrong? Just where did this idea come from?
S5: Yes, it absolutely does so. So if you look at the Constitution and the elections clause says that either Congress or state legislatures get to regulate federal elections, the time, place and manner of federal elections now for basically ever courts have red state legislature to mean state legislature as a creature of a state constitution and therefore required to operate within the limits of the state constitution that created it. So, for instance, in Pennsylvania, the same state constitution that creates the Legislature says that all elections must be free and fair, and the state Supreme Court has long interpreted that to mean that every vote must count equally or as equally as possible. And so the Pennsylvania Supreme Court has said, Well, you know, it’s not a free and fair election if it turns out that the races have been rigged ahead of time by extreme gerrymandering. So in recent years, a bunch of Federalist Society scholars have realized, I think that Republicans control a lot of state legislatures. You know, just because of a variety of factors, including gerrymandering and self sorting among Republicans and Democrats, Republicans control significantly more state legislatures than Democrats. And they realized that if they could persuade the U.S. Supreme Court to adopt this idea that state legislatures have just absolute control over federal elections, that they could probably throw a lot more elections to Republican candidates because they wouldn’t have to worry about state Supreme Court stepping in and modifying the rules. And we’re talking about this in the context of redistricting, but it can come up in any kind of voting rights dispute. So before the 2020 election, for instance, the Pennsylvania Supreme Court extended the deadline by which mail ballots had to be received. Because, as you may recall, there were all kinds of problems with the Postal Service at that time, and the state hadn’t sent out the ballots early enough, and the Legislature at that time tried to step in and say, No, no, no, we get to decide which balance, not the state courts. And you know, I think that if you kind of apply this doctrine the way that Republicans and conservative lawyers want it to be applied, it means not only that Republicans get to draw a lot more gerrymanders and suppress a lot more votes, but that in the 2024 presidential election, the popular vote of each state might not matter that much because in a place like North Carolina, where, say, the Legislature is Republican, but the vote goes to a Democrat just in this hypothetical, the Legislature can say, Well, we don’t agree with this vote and we are the Legislature, and we’re the ones who get to decide how this election is run and what the outcome is. So we’re going to overturn the will of the people and assign our electors to the Republican. And that’s what Trump was arguing for in 2020. That’s what he wanted Georgia and Arizona to do. His his allies in the Justice Department actually wrote up letters drafts that he wanted to send to state legislative leaders, urging them to adopt this principle and to reassign their electoral votes to Trump. So this is not just about kind of marginal cases involving a few gerrymanders or a few mail ballots. This is really about whether the people of a state still get to decide who wins races for Congress and the presidency, or if the state legislature has total authority to throw the race in one direction or the other.
S4: In other words, this could be voter suppression on a truly massive scale.
S5: Exactly right. I mean, when we talk about voter suppression, we’re usually talking about a few hundred or a few thousand ballots that can’t be cast because of, say, a draconian voter ID rule or a terrible mail ballot deadline. That’s too early and bunch of ballots come in too late and they’re thrown out. But here you could be talking about millions or even tens of millions of votes being essentially nullified by a state legislature after they’re cast because the state legislature decides that it doesn’t like who the voters picked. And I think it’s important to think about that as a kind of voter suppression because it takes you away from the more abstract elements of this doctrine, which is very like wrapped up in legal fees and brings you to. The practical consequences, which again, I think would be really scary.
S4: And so for now, it sounds like this was a win. But there’s some bad news buried in it. And can you tell us a little bit about that?
S5: Yeah, that’s right. So we have three justices in this North Carolina case Alito, Thomas and Gorsuch fully embracing the independent state legislature doctrine and saying that the Supreme Court, the U.S. Supreme Court, should throw out these fair maps drawn by the North Carolina courts and replace them with this extreme partisan gerrymander drawn by North Carolina Republicans in the Legislature. Kavanaugh says I’m not willing to go there yet because we’re too close to the election, but I probably will in the future. Chief Justice John Roberts and Amy Coney Barrett don’t write anything. They don’t speak, but we can deduce that they voted with the Liberals to toss out this this challenge. So I think, you know, Vox’s Ian Millhiser wrote this great piece that said, basically, the fate of democracy is in Amy Coney Barrett’s hands. Tragically, I think that’s correct, because it looks like the Chief Justice isn’t willing to go all the way here. And so the big question is whether Amy Coney Barrett will sort of rip up all of her originalist and textualist credentials and embrace this really kind of a historical and ridiculous doctrine to just rig a bunch of races for Republicans.
S4: So we’re all just until then, staying tuned.
S5: Just stay tuned. That’s all we can do. And you know, all this stuff happened to the shadow docket, right? So nobody even knows if it counts. We don’t know if that counts as precedent. It’s all very mysterious. So we just have to wait to see if the court takes up one or both of these cases next term. And then that’s when the landslide will happen. For now, we’re just starting to count, right?
S4: And so we’ll be right back here if and when that does happen and discussing the implications on the fallout,
S5: screaming about it, lighting our hair on fire, running naked in the streets.
S4: All that. Yeah, yeah, absolutely. And so there was a big unanimous decision on Monday. What was that about and why does it matter?
S5: So this was, I think, a decision that showed the Supreme Court at its best because it was a case that did not really involve politics. It did not really require any kind of partisanship or motivated reasoning to decide it was just a straightforward case about criminal sentencing. But it came out the right way, which was a bit of a surprise to me because this is a case about a law called the Armed Career Criminal Acts, which I’ll call Acker. And ACCA is this awful, awful law that was passed in the 1980s. That is basically a three strikes law that says if you’ve been convicted of three violent felonies on three separate occasions and then you’re found illegally possessing a gun, you must be sentenced from 15 years to life in prison. So it increases the sentence exponentially from something like two years to 15 to life, right? And the Supreme Court has struggled to apply AHCA for many years because it has a great deal of ambiguous language. And this case is a terrific example because remember to qualify for this sentence enhancement, you have to have committed three felonies on three previous occasions. The guy in this case, whose name is wooden, he committed one crime in the past. He broke into a self-storage unit and he started robbing the units one by one, breaking through the drywall of each unit to get to the next one, right? So the question was, is that one occasion that included sort of like 10 separate offenses within it? Or is that 10 occasions, one for each individual storage unit that he robbed? This is like a dispute that only a lawyer could love, but I do kind of love it. And the lower courts at the behest of federal prosecutors decided that each little storage unit that Mr. Wooden broke into all those years ago, each of those was a separate occasion under this federal statute. And so he committed not just three prior felonies on on different occasions, but 10. And instead of sentencing him to about 21 months in prison, the court ended up sentencing him to about 16 years in prison because of this interpretation of the law. So, you know, words matter a great deal. This is also a good illustration of why statutory interpretation is so important. And here are all nine justices actually agreed that the lower courts got it wrong and the prosecutors got it wrong, and that no regular speaker of the English language would say that breaking into one storage unit building and then 10 units within that building counts as 10 occasions under the. Law, that’s clearly just one occasion like a wedding has a lot of discrete events within it. There’s the vows, there’s the conga line, there’s the dancing, whatever, but it is still one occasion. That’s an example that Elena Kagan used in her majority opinion. And so I just I love this case, frankly, because I think it shows that when you don’t have any deep like political issues undergirding a case, when it’s just a question of how, how should we best apply the text of this law? The justices can act like real judges, and the Supreme Court can act like a real court and not just make stuff up out of whole cloth, but apply the terms fairly and honestly to the individuals before them. And again, a nine 00 decision. Unanimous? Not a single dissent. There was some disagreement on the margins about the exact reasoning. But this is a case that I would assign to like first year law students who are feeling cynical about the law to tell them, you know, on occasion, this stuff actually does work the way it’s supposed to. And these justices don’t always act like junior varsity politicians in robes.
S4: So the definition of crime spree remains unchanged. For now, it’s just one. That’s right. So does this tell us anything about what it takes to get to nine on this court? We know how to get to five and often to six, but nine seems kind of elusive.
S5: Yeah, I mean, I think that’s a great question. One that every Supreme Court litigator is now asking. There’s a real feather in your cap when you win nine 00 at the Supreme Court. Very hard to do in a case with any kind of political valence, but I think that this court is uniquely skeptical of government power and for different reasons on different sides of the court. So the Liberals are broadly skeptical of state restrictions on individual liberty, but generally OK with, like, you know, federal regulations of, say, health and safety and air pollution, whatever. Think about the vaccine mandate cases. The justices are OK with that stuff on the left, but they’re more skeptical of like a really harsh prison sentence on the right side of the court. The justices are very skeptical of pretty much all regulations, especially federal regulations about like the environment, labor, vaccines. And they they do, I think, have a bit more sympathy for prosecutors, like a little bit more of a soft spot for like, you know, the tough on crime ideas that perverted our criminal justice system for so long. But even then, they’re not as bad as some previous conservatives. So I think about, like Chief Justice William Rehnquist. Rehnquist was just like pro prosecutor all the time. He did not like criminal defendants. I don’t think any of the current justices, with maybe the exception of Alito, are so openly biased toward prosecutors. Now, Alito really does hate criminal defendants. But even in a case like this where it’s so obvious that prosecutors got it wrong. Alito has to admit that, OK, this guy does not deserve a six year prison sentence. So I think if you want to get a unanimous vote at this court, you have to find a case and a theory of that case that can bridge the divide between the left and right flanks and bring them together on one thing that they all agree on. If even if it’s for different reasons and here that is a profound skepticism of the federal government’s power to restrict the most basic kind of individual liberty on the basis of a very ambiguous and poorly written statute.
S4: So it’s that tiny little spot in the middle of the Venn diagram where liberalism and libertarianism kind of unite.
S5: Yes, exactly. And even tinier spot where whatever Alito is because he’s not a libertarian or a liberal or I mean, he’s just like a Republican. I still say he is clearly the worst justice. I don’t think that Barrett, Kavanaugh or Gorsuch are nearly as partisan as he is. But even here, like if you have to get out the microscope to find that overlap in the Venn diagram, but it really does exist. And that’s where Alito is and that’s where the court was in this case. And I just think that’s kind of a magical moment that we should all commemorate before this term devolves into partisan squabbling for the rest of the summer.
S4: Absolutely. We got to take the wins where we go. And finally, tell me more about the crazy judges who may be trying to interfere with the military and threatening national security.
S5: You know, I’m obsessed with this story. I’m so obsessed with this story because I just I know that hypocrisy policing doesn’t work. It doesn’t matter. But like for years, conservative lawyers and judges have been telling us that courts like cannot interfere with the military at all. We heard this during the Guantanamo cases. We heard this during the Don’t Ask, Don’t Tell era. We heard this when Trump reimposed a ban on trans service members, conservative judges and lawyers said over and over again, Look, there’s just nothing the judiciary can do. The judiciary has to defer to the commander in chief, the president, when it comes to personnel matters. And now now that there are members of the military refusing to get the COVID vaccine in direct violation of the commander in chief’s orders, conservative judges are interfering with the military, and several different conservative judges have now issued injunctions and restraining orders prohibiting the armed forces from requiring members to get vaccinated. And one judge in Florida, his name is Stephen Merida. He’s a George H.W. appointee. He has issued a very sweeping restraining order that requires the Navy to keep this commanding officer in charge of a warship, a destroyer with about 320 crew members. Even though this commanding officer refuses to get vaccinated and has demonstrated a grievous pattern of insubordination and defiance of lawful orders, and recklessly exposed about 60 of his crew members to COVID last year because he refused to get tested despite showing all of the symptoms rather severely. So this guy is nuts. I think we can fairly say he is like totally insubordinate. He will not follow orders. But he has obtained a court order requiring the Navy to keep him in charge of this warship as $1.8 billion guided missile destroyer because, according to the judge, even reassigning him to a different post would violate his religious liberty. That’s where we are in this case. It’s totally gonzo. I really did not think I would see the day that we have conservative judges interfering directly with naval operations, but that’s where we are. And I think it just goes to show, like all of these grand theories of executive power, that the conservative legal movement latches on to under Republican presidents, it disappears. The moment a Democrat enters the White House and it all goes away, it’s just like on sabbatical. And then the moment a Republican re-enters the White House, we will once again hear why every single court has to defer to him forever on everything. Wow.
S4: It’s sort of just I would say it’s unbelievable. But given the state of things right now, I’m like par for the course, it seems.
S5: Exactly. It’s hard to be shocked by things that crazy judges do these days.
S4: Mark Joseph Stern covers the courts and law, and so much more for Slate Mark. Thanks for coming on and and breaking all this down for us.
S5: Truly, my pleasure, Nicole. Thank you.
S3: And that’s going to be a wrap for this episode of Amicus. Thank you so much for listening in, and thank you so much for your letters and your questions and your comments. You can always keep in touch with us at Amicus, at Slate.com, or you can find us at Facebook.com slash Amicus podcast. Today’s show was produced by Sara Burningham. Alicia Montgomery is executive producer and June Thomas is senior managing producer of Slate Podcast. And we will be back with another episode of Amicus in two short weeks. Until then, hang on in there.
