Race, Police, and the Law
S1: This ad free podcast is part of your slate plus membership as a black woman and dean of a law school.
S2: The first dean of color at Boston University School of Law. I struggled with what message I should send to my students. I even wondered if I could send a message about the deaths of Rihanna, Taylor, a Marberry, George Floyd and Toni McDade, imagining the backlash when certain words came out of my black mouth.
S3: The Trump administration, under Attorney General Sessions and Barr, have abdicated the Justice Department’s responsibility in supporting and ensuring constitutional policing in communities in this country.
S4: Hi and welcome back to Amicus. This is Slate’s podcast about the courts and the law and yes, that thing we call the rule of law. I’m Dahlia Lithwick. I cover those things for the magazine. And it has been a deeply painful week in America with grief and horror at the killing of George Floyd in Minneapolis at the hands of the police and other killings around the country of black people by police officers.
S1: It’s resulted in protests and curfews and arrests and attacks on the press. It’s also been a really busy week for lawyers. What was having to read up on quartering soldiers and Posse Comitatus and the Insurrection Act? And no quarter orders and generalized presidential claims that protesters are all hooligans and looters who must be dominated if necessary by using military force domestically? On Monday afternoon, Donald Trump conscripted federal security forces to clear peaceful protesters from Lafayette Square so that he and his senior advisers could walk undisturbed from the White House to stand in front of St. John’s Church and wave a Bible aloft. That action has led to yet more protesters who are protesting abusive law enforcement. Ironically, in response to protests about abusive law enforcement, it’s also led to a lot of important conversations about racism and justice and persistent and invidious racism. Police reform, the role of the Justice Department and the law in either inflaming or addressing these problems later on in the show. Slate plus listeners are going to have a chance to catch up with our own Mark Joseph Stern about some action that took place at the U.S. Supreme Court last week, including a midnight decision in a case brought by churches who objected to state lockdown orders. We’re also going to talk to Vanita Gupta, who served in the Justice Department as head of the Civil Rights Division from 2014 to 2017 and focused a lot of her energy there on racialized policing. But before we do any of that, and by way of preface as the precursor and maybe guiding principle of today’s conversations, I wanted to check in with Angela on what she Willig. She is the dean and professor of law at Boston University School of Law. She’s a renowned legal scholar. She’s an expert in critical race theory, employment discrimination and family law. And some of you may remember her from our live show in Austin in 2018. Well, earlier this week, she posted a really remarkable open letter to her students talking about this moment in America and how she feels. And it seemed really important to talk about that with her. So, Angela, welcome back to the show. Thank you so much for having me back here. So so your letter is called The Fire. This time it’s posted on the B You website. We’ll post it with our show notes as well. And I wondered if maybe you would start by reading some of it for our listeners.
S5: Sure. So I am the mother of two black sons and one black daughter. I fear for their lives whenever they step outside. As a mother of black children, I both envy and resent the freedom with which mothers of white children parent. They never have to balance that delicate line between teaching their children how to ensure their survival after a police stop and crushing their spirit while doing so, because the very lesson derives from another that black lives are not valued in our society. Like so many black people in this country, I see my family and myself and George Floyd Marberry and Brianna Taylor because I know just like they do that our loved ones and even I could be next. And these feelings are exploding in what is already a difficult time. As a black woman and dean of a law school, the first dean of color at Boston University School of Law. I struggled with what message I should send to my students. I even wondered if I could send a message about the deaths of Rihanna, Taylor and Marbury. George Floyd and Tony McDaid imagining the backlash when certain words came out of my black mouth. I listened to friends and spoke with other black woman deans who felt equally silenced. All of us still cautioning each other against speaking out through a public message. All of us knew we could and would act more freely. Were we not black? Perhaps surprising to some of you, Racism regularly disempowers the seemingly powerful dean. And yet, if we feel powerless, imagine what it feels like for those not so economically or professionally privileged. But for me, once I thought specifically about what my law school self would have wanted actually needed to hear in this time, I knew not only that I had to write, but also what I must write. After telling his nephew that the boy’s father, Baldwin’s brother, was defeated long before he died because at the bottom of his heart, he really believe what white people said about him. Baldwin shared two sentences that I will share with you, my students with one mission. The message goes. You can only be destroyed by believing that you really are what the white world calls you. I tell you this because I love you. And please don’t ever forget that.
S1: I’ve read your letters so many times this week. One of the things that really struck me, first of all, is that I’m the mother of two teenage boys who swan around Crown Heights in Brooklyn, whose swan around Manhattan as though they own the place. And I guess I have just really. Recalled in reading what you’re saying, that the conversations I have had with them are utterly different from the conversations that you have with your kids. And more pointedly, Angela, I guess I am really struck by. The silences and, you know, you flag our silences and you also flag your own silence and how hard you had to struggle to even write this. And you are the dean of this unbelievably prestigious law school. And as you note, your students, you not think you are God, that they you have limitless, unbounded authority to say and do what you want. And I wondered if you could just maybe reflect for a minute on that struggle to not be silent and to speak knowing that there. Could be repercussions. What? What was the thinking around that? And. How do you feel now that you’ve said what you needed to say?
S6: There were a million things going through my mind. Part of it is, as the dean of the law school, I represent everyone in the law school when I represent the institution. And that’s a body of people who have a wide variety of views. And even as I look at the George FOID, what I perceive as the murder of George Floyd on tape and see no other way to view that tape, that there might be other people in my community, my larger community, including my alumni community, that would look at that tape and see it differently. So I’m expected to resist those kinds of broader statements. And then there’s also the sort of the myth that we tell ourselves in law that we’re supposed to be these completely neutral beings and that the law itself is completely neutral without recognizing the actors that wrote the laws that created it, without recognizing who was left out of the creation of those laws about recognizing how precedent reifies the exclusion of certain voices from the creation of case law and how it’s reifies the continued exclusion of particular perspectives because of people viewing their experiences as normative right and not being aware simply of what does it mean?
S7: What’s my what’s my experience of the experience of other African-Americans with the experience of poor people, with experience of a wide variety of people who are usually voiceless in our society.
S6: And so just really struggling with that. And yet just thinking about all those who. Including my own students who are feeling voiceless, who are, I think, probably asking themselves the same question that I was asking is what’s the point of my being in this position if I can’t speak? And and ultimately, that was what pushed me to speak. You know, what’s the point of my being in this position and being a black woman and having people lord it if I’m going to be silent in the same way that perhaps a white man would be silent in this position. And it didn’t make sense. And whatever the repercussions were, I was I was fully, fully open to them and would be fine with an absolute welcome them. So it was more important to speak and was more important to acknowledge and to to also to let people know. Not only that this is something that affected all African-Americans, is expected to be affected. All people that this is something that they should be upset about and that it happens all the time. And and. I guess one thing I want to say is I think one of the things that you worry about when you’re in these positions is that you get used as a sort of an example of why racism doesn’t exist anymore. You see, we have a black teen. You know, it’s things aren’t as bad as they used to be. You know, there’s no more racism or there’s a lot less racism. And I didn’t you know, I didn’t want to be used in that way either. I didn’t want whether whether it was conscious or not. And so I felt like that was also a really important reason to speak. And I’m not sure if I’m explaining myself well, but it was all all these things were going through my mind. So if you just fell for all those reasons to support and not be silent, it’s important to speak for my students and particularly my black students who I knew were in a lot of pain. Was it important to speak so that people who were not aware that people my position were feeling the way I was feeling, knew how I was feeling, that people knew that I feared for my own children? People know that people with my education and my standing in my and my now class background are also suffer harassment from the police. All those things are really important for everyone to understand.
S1: So the other thing that really struck me. There’s so many things that struck me about your letter. One of the things that really struck me, Angela, was the intimacy of it, that you talked about your kids and you talked about your fear and my God. I think I went through three years of law school without ever hearing anybody talk, certainly about their children. Certainly I never heard a one woman person on the faculty talk intimately about being a mother. It’s one of the things I think I hated about law school. Is this oracular? You know, Lang DeLeon world of professors are perfect and their brains in vats. And I think that’s also a form of vulnerability for again, for a woman, for a black woman to be really human in a law school context that thrives on a kind of frosti notion that the law is what it is. And we are just it’s careful personalist stewards. And I wondered what. That vulnerability on your part. What you wanted to hear back and what you have heard back, have people been vulnerable to you in responding to this?
S6: My first and foremost hope was that I was hoping that my, my my students of color would feel, seeing if they would feel like someone acknowledge and recognize the experience, that students who were angry would feel like someone said what what they were thinking and that people who. Wanted to be pushed to look inward. But what they were pushed to look inward. And I’ve got nothing but really, really positive reception. I think, you know, when you say this, too. I mean, one of the things that people at the same law school is that one of the things we all learn thinking like a lawyer is, you know, you won’t say I feel anymore. We only about what you think, you know. And one of those things that’s one of the students responded was that it was refreshing to see someone talk about their feelings and that that was important to hadn’t had that be reminded that that was part of being a lawyer, as far as having a feeling and part of being an effective lawyers is having the ability to feel. And I’ve got nothing of a positive reception from students of color feeling, seeing white students who are allies feeling, seeing and feeling good about being pushed to look inward. People appreciating the fact that I was willing to be vulnerable. I think it’s always people appreciate when people who are in positions of power make themselves vulnerable as well. I didn’t know what to expect, to be honest. But I mean that definitely the people I was wanted to be seen, felt seen and and they felt like that voice was given to what they were experiencing and thinking and feeling and believing. And so I was glad that I am really glad that I wrote that statement and I could. I felt an immediate. Difference once that once I sent the letter out to my students. I was just feeling it was it was just hanging over me. And as I was writing it and rewriting, rewriting, I just felt awful. You know, just sick almost. And I once I sent it out, I felt better. Right. And. And so that was a lesson for me to write about silence and the way in which silent can do harm to you. So it was a good lesson for me as well.
S1: I think that one of the themes, even in preparing this show, even in thinking about your letter, is imagination and failures of imagination. And I could never have imagined a law school dean modeling pain and compassion and suffering and modeling, speaking into the void. And as you say, I think imagination and compassion and dignity, all those things that you write about are hived out of legal thinking, because that’s not how lawyers are supposed to think. And I I’m really struck by I think I sent this to you this morning, this letter that the Washington Supreme Court published, that I. I shouldn’t be surprised, but it was beyond anything I could have imagined. It signed by the entire Washington state Supreme Court and again, Will posted in the show notes. But this recognition is judges the role we’ve played in devaluing black lives. Talking about what the court has done with its precedent, talking about systemic inequality, lack of financial resources. We must recognize that this is not how a justice system must operate. Too often in the legal profession, we feel bound by tradition the way things have always been. We must remember even the most venerable precedent must be struck down when it is incorrect and harmful. In my lifetime, maybe I’m just so limited in imagination, Angela. I can’t imagine courts acting to take responsibility like that. And I wonder if really that’s all your letter was asking is B in this conversation with me. Those of you in the law who cannot imagine what it is that you have done. I mean, see a world separate from the world that is constructed in law school. Yeah.
S6: It’s then you that letter letters. Incredible. You know, it is powerful and it gives me hope in a way that, you know, was hard to imagine even just a few days ago. Right. That, you know, there’s so many ways and so many of us for so long have been talking about the ways in which law facilitates and justice. Right. And to have a Supreme Court of a state basically acknowledge that and to say that there is work that has to be done by the court and courts to undo that is is really unbelievable, as you said. And you. Absolutely. Yes, that is part of what I was hoping to say, is part of what I and so many people have been saying in our scholarship for so long. And it’s unbelievable. And I and I really hope I mean, Massachusetts Supreme Court should just support also wrote a very powerful letter to. And if we can have more courts acknowledging that and we see more changes in a case law, that could create real change. I hope that this results and and we’ll change. It’s hard. You know, you don’t want to almost believe it because so often you think, well, maybe this results and you’ll change and then things go back to the same situation. But I’m I’m hopeful that this moment might be different.
S1: I guess maybe I keep landing at the notion that the folks who are going to change it is your students who read it, who read what you wrote, your kids, my kids, and that things that look like letters to us. Your letter, the letter from the Massachusetts court, from the Washington court that actually is an agent of change if our kids read it and take it to heart. So I guess I just want to thank you so much for your time, for your work. I know you’ve. I was just reading your your article on Brown and how it perpetuated white supremacy. I think that we all have a lot of reading to do this weekend. And I thank you for being with us and letting us be in this conversation with you. Thank you for having the conversation.
S6: I agree with you. These these these these protesters are are really phenomenal. And I’ve seen some real courage and real things. And during these protests that have. They have given me life and they have shown me that the possibilities for real, real structural change. So hopefully I. I hope it happens.
S1: Angela, on what she Willig is Dean and professor of law at Boston University’s School of Law. She is a renowned legal scholar and expert in critical race theory, employment discrimination and family law. And she joined us to talk about the letter she wrote to her students. Take good care, Angela. Thank you for being with us. Thank you very much. Thank you. We want to turn now to Vanita Gupta. She served in the Obama Justice Department as head of the Civil Rights Division from 2014 till 2017. She focused on a lot of issues, including voting rights and also racialized policing. Vernita now serves as president and chief executive of the Leadership Conference on Civil and Human Rights. That is a storied and amazing coalition that over the years has grown from an assembly of 30 civil and human rights organizations at its founding to more than 200 civil rights groups today. Vernita, one of the conversations I really wanted to have today of all days, lies right at the intersection of all the work you do, thinking about justice, civil rights and the police, and also thinking about the role of the Justice Department in both creating and solving for some of these problems. Welcome to the podcast.
S8: I am so thrilled to be here, Dalia. Thank you for inviting me to be on.
S1: Can we maybe start? I think it’s a sort of a wonky place to start, but can you just walk us through the Civil Rights Division? What it does, what you did there, what your priorities were in the time that you headed it up from 2014 to 2017 in the Obama era?
S8: Yeah. When I was at the Justice Department, I came in about two months after Michael Brown had been killed in Ferguson and the Justice Department had just opened up a pattern and practice investigation into the Ferguson Police Department. And as you’ll recall, the country was on the streets over the policing issues. Michael Brown was killed just a month after Eric Garner had been killed in New York. And a police violence. The issues around race and justice and public safety were occupying the nation at that time. And the kind of ramifications and the concerns about these issues were nationwide. And so I came in and I was at the Justice Department heading up the civil rights division for just under two and a half years. And I would say that the policing issues were the most central kind of issues that I dealt with at the Justice Department every week that I was there. It seemed that there was a video that was going viral of an act of police violence. We were being called in to departments that were really had longstanding issues of lack of trust, of systemic problems around use of force and discriminatory policing. So these were issues that I spent a lot of time working on during my time. We were enforcing 15 consent decrees in police departments across the country. We had had opened investigations into the Baltimore PD, Chicago PD. And so these issues were very, very much front of mind, not only for me as the head of the Civil Rights Division, but for the two attorneys generals that I worked with and for President Obama, who after Ferguson really took upon, took it upon himself very personally to engage launching the 21st century policing task force and so much more.
S1: And just for our non-legal listeners, can you just walk us through the terms of art pattern and practice and consent decree?
S8: Yes. So in 1994, after the Rodney King beating and the unrest in Los Angeles, Congress passed a law that gave the Justice Department and the Civil Rights Division, in particular, the mandate to investigate systemic problems of unconstitutional policing in police departments. It is a tool that has been used very judiciously at the Justice Department in a country of 18000 police departments to have an administration like the Obama administration investigate 25. You can see how judicious the tool was that we were using. But what what this looks like is that no single incident would compel the Justice Department to open an investigation. It took usually. Patterns of unconstitutional policing issues coming to our attention, whether it was because community members were giving us data, whether it was because there were a series of high profile incidents. But that trigger would be there would be any number of triggers. And the Justice Department then would open an investigation and a team of lawyers and investigators at the Civil Rights Division would then spend practically live in these cities spending anywhere, usually from about six to 12 months, interviewing hundreds of community residents, hundreds of police officers, combing through every document and record about their training manuals and records, about stops, searches and arrests. Looking at accountability system, supervision systems and really very kind of tailored to the problems in that local police department. And then would come up with a findings report and the findings report would lay out the picture of what was found in this police department after this thorough investigation. And the Justice Department, if they made a found finding of unconstitutional policing, would then work with the jurisdiction to negotiate a settlement agreement that was that would be filed with a federal court. That’s called a consent decree. It would be filed with a federal court overseen by an independent monitor. And the consent decrees typically last several years. I would say on average, there are about five years. They really compel culture change, policy change, practice change with an aim to make a police department, have constitutional systems, have self-correcting mechanisms and rebuild trust with their communities.
S1: And can you just talk for a minute about the ways in which I know if we don’t have all day, but the ways in which the Jeff Sessions and now Bill Barr Justice Department have rolled back some of the reforms that you tried to effectuate on your watch.
S3: Yeah. Where do I start? So I’ll just say in a nutshell that the Trump administration, under Attorney General Sessions and Barr, have abdicated the Justice Department’s responsibility in supporting and ensuring constitutional policing in communities in this country, not just through walking away from the tool that the Civil Rights Division has through this pattern and practice investigation jurisdiction. But actually, on any number of fronts, they have not opened a single pattern and practice investigation into a police department except on one with a very narrow issue out of Springfield, Massachusetts. The issue I don’t even remember, it’s a pretty staggering record of inaction. And through rhetoric, they. Well, I would say there were also other actions that they took. They largely dismantled the kind of collaborative reform program that was being operated by the community oriented policing services component at the Justice Department. They withdrew a lot of memos and guidances that had been that we had issued to support community police trust and constitutional policing. And then I would say they you know, Jeff Sessions on his way out after Trump fired him. The last action that he did at the Justice Department was to slap a memo onto the civil rights division that made it almost impossible for the division to obtain consent decrees, not just in the policing context, but across the board. And that was really a gutting of the most impactful tool that the Civil Rights Division has to correct systemic civil rights violations. And so and then you have the rhetoric. You had Bill Barr most recently on in a speech, I think just a couple of months ago, talking about how, you know, if you want to criticize the police, you may not receive police protection. That kind of rhetoric is so incredibly irresponsible and just heightens the kind of divide polarization us versus them warrior versus guardian mentality that for so many years we were trying to overcome not just at the Justice Department, but even among law enforcement leaders and community leaders that were seeking a different path forward.
S1: So, Vernita, I want to turn to George Floyd and to bring on a tailor and to Eric Garner and Michael Brown and and and this extra judicial police, you know, ending of black lives didn’t start this week. In Minneapolis, you published a piece in The Washington Post this week about what a federal investigation into Minneapolis would look like if it were done correctly. Can you just walk us through what you think needs to happen to kind of correct. The damage that has been sort of engraved so deeply that it feels as though it’s immutable.
S8: So let me break down the one area that I didn’t talk about of what the Justice Department has in its tools is criminal accountability. The Justice Department has the ability to prosecute police officers for violating federal criminal law. But it has a very narrow single statute that it can use to do this, which this this law requires the highest proving the highest criminal intent standard requires proving not only that the force that was used was unreasonable, but that the officer involved knew that his or her act violated the law. But did it anyway. And it may sound like not a big deal, but actually the burden that that establishes for a federal prosecutor to prove is incredibly high. And so there have been a lot of high-Profile cases where the Justice Department has not prosecuted because the evidence couldn’t meet that threshold standard. And I will say in this case that the facts around Mr. Floyds death, the multiple camera views in broad daylight, the three officers on his body, one on his neck for several minutes. The fact that he was already restrained in handcuffs. There was no physical provocation, saying that he can’t breathe repeatedly in deep distress and other witnesses pleading with officers. All of that and the fact that his own chief said that this was never a trained maneuver. All of this would lead me to believe that this is actually a case that the feds could prosecute and could obtain a conviction in. And I can’t say that with very much confidence about most cases. And that’s a travesty in and of itself. I’m jumping probably ahead, but this is one of the reasons why for the leadership conference and for many, many groups right now, there is a call for Congress to actually give federal prosecutors a expanded charging option of being able to reach cases where the officer acted recklessly. And we’ve got to expand this jurisdiction. I want to go to a related issue around this, which is that, you know, for too long in this country, police officers have been able to act with impunity in killing black men and women because the law, frankly, is just insufficient. And not only is the law insufficient, we’ve got problems around whether district attorney’s offices are independent enough from police departments. Since police officers are their investigators. We’ve got problems with the limitations, for example, of of the federal law or the Justice Department. But we also have implicit bias of jurors that, in fact, the and make it very hard to obtain convictions. There have been instances where things have been caught on video and juries just despite that, what they see on the video and all the facts that are known have not convicted like in the film Landow Castiel case. So there’s a lot of layers of problems here. But criminal accountability. Wow. While so crucially important to restoring anyone’s faith in the legal system, especially for black communities and communities of color, while it’s crucially important, it isn’t sufficient to being able to address some of these really grave systemic issues that that need to be addressed. And that was that’s why the Civil Rights Division has the pattern, private practice jurisdiction. But ultimately, I have really come to understand that the Justice Department’s interventions and police reform is itself a limited strategy, because I actually do not believe that we can reform policing in America by just reforming the policies and practices and even the cultures in police departments. We have a problem of hyper criminalization in this country, not new, not started in the last few years, but has been we’ve been saddled with this, you know, ever for the last 50 years where we have criminalized a lot of different things, especially in communities of color, where there’s increased police presence, increased interactions between police and residents for things that would never happen in your neighborhood or, frankly, mine. And we need to understand that that has been accompanied with a divestment in education and jobs in public transportation and housing and health care. And so. The confluence of the pandemic of Koven 19, which has laid bare structural racism and inequity and the confluence of structural racism in policing and Mr. Floyds death is come together in this way that is really kind of established, the degree to which we aren’t going to solve the problems of policing until we understand that we have over invested in a criminalization infrastructure and under invested in other kinds of investments that communities of color need so badly.
S1: And Vernita, you started to dip into this. But but let’s get it on the table. Can you explain just for listeners what the leadership conference is, how long it’s been around? And I mean, it’s just an amazing collective of organizations. Can you sort of lay out the mandate?
S8: The Leadership Conference on Civil and Human Rights is in its 17th year. We were founded in 1950 by Jewish and African-American labor leaders who came together really out of the theory that the fight for civil rights couldn’t be won by one group alone but needed to be waged in coalition. It started out, as you said, as a smaller collection of organizations that were really fighting for the Voting Rights Act has helped Dr. King organize the March on Washington in 1963. Every major piece of federal civil rights legislation has in some way been shepherded, crafted through the leadership conference. And over in recent times, we have now become a staff of over 100 people. We have over 220 national, civil and human rights organizations and we both push out actual program. And we also kind of help bring together groups are a force multiplier to develop and sync up strategies across our organizations, across our communities, so we can be more effective and more strategic in specific campaigns to win. And it happened that because probably of my background when I came into the leadership conference after stepping down from the Justice Department, I wanted to create a policing program that could, in the void of a Justice Department that was really cared about these issues and cared about the communities most in contact with the police, that we could actually be a resource for continuing the conversation around police reform. And last year, we issued a really extensive guide and toolkit that I was so proud. This week, President Obama lifted it up himself. But a guide called New Era of Public Safety that dug into all of the research and best practices that came out of our consent to create the Justice Department consent decrees the research out of the Justice Department’s civil rights organizations, law enforcement. We had law enforcement vetted to progressive law enforcement. And it’s really to take into the next level what the 21st Century Policing Task Force put together. And we have been working on these issues and are now in quick order. After Mr. Floyds death brought together over four hundred and thirty organizations, along with an eight point platform for what Congress needs to do immediately. There’s a lot more work beyond these eight points immediately to take up things like banning chokeholds, creating a national registry of police misconduct so that officers who cycle in and out of law enforcement with long disciplinary records are actually detected in the hiring process, expanding the federal charging option to include a recklessness standard and the like. And so that’s some of the work that we are able to do because we really do have that kind of ability to bring groups together around a particular agenda as we’re fighting for justice in communities across the country.
S1: Anita, do you have the sense I don’t know if this is me being Pollyanna ish, although I’ve never been accused of being Pollyanna ish, but that that the conversation has slightly shifted away from the few bad apples narrative to systemic reform. I feel as though the number of police reform proposals that I’m hearing, sort of systemic reforms like the ones you’re talking about, I’m hearing, you know, defund the police altogether, renegotiate all police union contracts and all qualified immunity. I mean, I’m hearing big systemic, some of them possibly beyond your sense of of what you want to achieve. But but am I right that this feels as though there seems to be a public understanding that this is just not one or two racist cops?
S8: Yes, absolute. I mean, you know, I think that even Ferguson helped trigger that, I think Black Lives Matter really set the tenor for our conversation about some of the more structural, systemic issues. But I think what’s happened is there are, you know, these cycles over and over again of an outrageous case, a terrible case of tragedy, followed by outrage, followed by reforms, but ones that don’t stick. I mean, I will say Congress rarely takes up policing issues. It’s been many years since Congress has taken up a bill on policing. And so this is, you know, that the notion of reaching for bigger solutions. Mr. Floyds, death was awful and terrible at it. They as awful as could be. Also landing at a time, as I said, where the country is in a crisis, a massive economic recession. A real sense of unequal opportunity that we will be saddled with for a long time where, you know, amid this global pandemic and this real realization, even on the eve of an election, that we cannot be reaching for Band-Aid solutions or tinkering at the edges, that we there is no return to normal, that this incident has so galvanized the country at a time. And I mean, I don’t think the reaction, the militarized reaction of the president has helped things at all. But it is forcing a much bigger conversation without one of our eight points. Dalia, since this is a, you know, some of the legal ones listening, we understand this is to end qualified immunity. There is a real sense that there’s been the law has protected officers from being from from accountability in myriad ways and qualified immunity is one of them.
S9: But I also think there’s a broader conversation to have. And when you look at city budgets, why such a high percentage of these budgets are focused on policing at the expense of housing and education and other positive investments in their communities. And I think that that is something that policymakers are really going to have to confront in a way that hasn’t been confronted in a long time. And so you saw on Wednesday that Marikar city made an announcement that would reduce the LAPD budget and with the goal of reinvesting those saved dollars in a health and education and other interventions in communities. And frankly, that isn’t a conversation that was happening a few years ago. But there is a lot of demand for this now. And I think it’s emanating out of a recognition that you not only have to reform policing on the inside of departments, and that’s the systemic part that needs to happen. But also, you have to address the kind of skewed priorities and distorted priorities and distorted public spending that we’ve had as a nation in communities of color for so long.
S1: Vernita, I need to give you the chance to talk a little bit about the flip of this coin, which is, you know, we’re seeing peaceful protesters have their masks yanked down and pepper sprayed just to make sure it works. We are seeing peaceful protesters, you know, assaulted with rubber bullets and tear gas. That van, we’re told, is not teargas at the same time. You have to be blind not to notice, you know, armed white militiamen walking down the streets of Fish Town, you know, taking selfies in Philadelphia, armed white militiamen taking over the Michigan State House and police standing by. And I think part of this conversation has to be that the police also tolerate an immense amount of lawlessness and violent and threatening behavior if it comes from white men with guns.
S8: Yeah, I mean, there’s been a lot of talk of, you know, those images that we all saw in Michigan outside of the state house with armed white militia, you know, yelling at the police and there being no response whatsoever versus the response to protesters here. Now, look, you know, there was there was violence. There were property that was damaged and set on fire. And and nobody is saying that that should be, you know, allowed or just kind of watched and witnessed. But the treatment of peaceful protesters being treated this way with military, but by with military force on the ground, with with this mishmash of federal agents that aren’t wearing ID and have no training in how to manage mass protests. This is scary. I mean, this is the the the the act of dispersing, you know, violently a crowd that was peacefully protesting outside of the church. This is the stuff that fascists do. And I have to say, you and I have talked about this over the years and, you know, watching the boiling of the frog and the melting of our democracy, I think that these images and what’s happening right now is absolutely frightening against a backdrop of an administration that has attacked, you know, fundamental democratic norms and the rule of law repeatedly. We’re going into an election cycle. We have been already, you know, a civil rights lawyers really deeply concerned about the level of which voter suppression is being weaponized for partisan gain. We need to fight for a fair election where fighting disinformation on Facebook and there, you know, the company’s own inaction in helping to promote the messages of inciting incitement of violence with the looters and shooters posts and the posts about, you know, the lying posts about how mail in ballots are illegal and the like. I mean, this is a really tense and scary time for the country. And we have to protect people and make sure that they are safe from harm. And I mean, the irony, as you said, rightfully in your opening, is that, you know, more and more people are being called to protest in this moment out of the reaction of the president and the attorney general in kind of militarizing the streets. It’s only doubling down on the underlying message that protesters are are trying to get across. But I think that we have a lot of work to do now. And I know that it’s easy to sit in despair. But I just despair is not going to save lives and despair is not going to make change. And so now we have to honor what the protesters are doing, honor the anger we are feeling, honor the pain, especially in black communities right now, and make sure that we don’t just go to the old solutions. It won’t be enough to just return to the Obama era solutions that we were driving towards. We need to be bolder than that in this moment. Out of a recognition of how much work we have to do. But we’ve got to be action oriented and demand action from our leaders that are in positions of power to make change.
S1: Vernita, I’m so glad you talked about what I see as the fundamental horror of, you know, Bill Barr conscripting some, you know, military entity that answers to the Justice Department. Unclear that people have legible ID. It feels different to me. Do you have some way of. Bribing how you feel about the former Justice Department that you left behind and what’s happened? I mean, what do you. Is it fixable? Is this is this redeemable? Can we get it back? The Justice Department, with all of its norms and its courtesies and it’s kind of unwritten views of the world.
S8: Or is it forever broken? No, I’m I’m a civil rights advocate. I have a deep and profound well of hope about these things. I think that the abyss that they have fallen into is deeper than I could possibly imagine. But clearly, I had a failure of imagination when it came to this administration. But I think it is rebuild a bill. I think it’s going to be really hard. I think people’s faith in government and the justice systems, legal systems has been really corroded in profound ways. What I don’t want and we have seen too often is that when there’s an opportunity to rebuild, reinvest, you know, deal with long standing attacks on democratic norms and the like. There’s this desire to pretend like the prior, you know, years didn’t happen and to try to retain to return to some quaint sense of normal. And I think there’s going to need to be some bold steps that we take as a country in order to actually do the kind of rebuilding that will be required in the Justice Department. When I think about the way the Justice Department is organized and the ways in which the Justice Department kind of tries to approach policing or the ways in which the Justice Department has dealt with precedent. All of so many of these norms has been torn down in this administration. And it’s going to require some, I think, creative and bold thinking to not just try to return to like the pre Trump days, but to try to. Now we’ve seen what the failure of our imagination can yield. What do we do to shore up? Our institutions are democratic norms and to rush to protect those who have been most vulnerable because of the attacks in this administration? These are not abstract principles, just that we’re fighting for these. These attacks have had a real impact in real communities. And so being able to bring that kind of thinking and courage, because a lot of us, when you work in institutions, you become kind of an institutionalist. Being able to see outside of the bounds of what we thought was possible in order to not return to this place, I think is going to be really important.
S1: It’s really important what you’re saying. It’s something I know you live. I’ve been at enough of your events that I know this is the work that you long before we got to this week in America that you’ve been really thinking about. You’ve given me, at least, and I hope our listeners just a ton to think about. Vanita Gupta served in the Justice Department as head of the Civil Rights Division. One of her focuses there was on racialized policing. She is now the president and CEO of the Leadership Conference on Civil and Human Rights. Vernita. Like I said, I know you’re crazy busy, but thank you.
S8: Thank you so much for having me, Dalia. And I’m really glad I could do it. And beyond with you.
S1: And now we arrive at what has become for many people who write in the very favorite part of this show. And that is check in on the courts with Slate’s wonderful Mark Joseph Stern. It’s great to have you back, Mark. How are you?
S10: A true honor. I am so happy to be here blocks from the White House where Black Lives Matter has just been painted on the streets. I’m happy to talk about all of the ways that the Supreme Court is totally out of tune with this moment to or occasionally actually does the right thing and gives us one fewer reason to worry at night.
S1: Yeah, let’s do that one first. I think that the probably the big Supreme Court story this week was the midnight order a week ago, kind of in the dark of night. We get a five four batting away of a pair of challenges that came from churches. And I think the reason you would put this in your do the right thing column is because they batted away the challenge. Do you wanna talk about it a little?
S10: Yeah. So this was a challenge to California’s stay at home order, which currently imposes restrictions on all kinds of businesses and houses of worship. One of the rules is that houses of worship have to operate at either a 25 percent capacity or 100 people, whichever is less. And the church, a Pentecostal church, challenged this, said this is a violation of our First Amendment rights. The Ninth Circuit said, no, it’s not. Went up to the Supreme Court and by a five to four decision, the Supreme Court turned away the challenge with Chief Justice John Roberts joining the liberals naturally and Roberts writing a very interesting opinion that really kind of put the kibosh on all of these legal challenges to corona virus related restrictions. And Brett Kavanaugh writing in dissent, basically accusing California of engaging in rank grotesque religious discrimination and sort of suggesting that the chief justice just doesn’t really care about religious liberty as much as good old Brett Kavanaugh does.
S1: And to put this in the larger context of conversations, you and I have had time and time and time again. I think it’s important to see that the rift in some sense between the chief justice and Brett Kavanaugh really turns on this question of Brett Kavanaugh genuinely seems to believe that churches are being singled out for hostility and antipathy by the governors and that churches are really being put upon in ways that other similar entities are not. And one of the ways he does that is by comparing churches to dissimilar entities.
S10: Right. So Cavanaugh says, well, look, California is letting supermarkets and cannabis dispensaries operate at a higher capacity than churches. And that’s proof of religious discrimination that’s against the Constitution. And what Roberts wrote and I think Linda Greenhouse in The New York Times is correct to say, Roberts seemed to write as a direct response to Kavanaugh. Roberts said, look, you’re using the wrong comparator here. California imposes the same restrictions on churches that it does on concert halls, on movie theaters, on these kinds of entities where lots of people gather together, speak or sing very loudly in close proximity indoors. And we federal judges are not epidemiologists. We really aren’t here to second guess whether concerts and churches are similar when it comes to the risk of spreading the corona virus. And it is really our duty to defer to the democratically elected leaders who decided in consultation with scientists that churches need to operate at the same capacity as movie theaters and concerts and the like. And so you basically have a dispute between Canon Roberts where Kavanaugh sees religious discrimination everywhere he looks, it’s hiding under the bed. It’s in the cupboard, it’s in the freezer. It’s everywhere, just waiting to jump out and suppress the religious liberty of our good Christian Americans. And Roberts is saying, come on, dude, take a take the Al on this one. This isn’t religious discrimination. This is California doing its best work to try to stop people from getting a disease, a virus that we know nothing about that has already killed one hundred thousand Americans.
S1: And that Linda Greenhouse piece you referenced starts from a kind of improbable place. She says, Mark, the fact that there were four votes for the cabinet position, although Alito doesn’t join that written opinion. That actually terrifies her in part because she says, I actually thought Cavenagh was trying to position himself closer to the chief justice and not as part of this right wing bloc, but also, I think the fact that there are four votes for something that should have been an easy, easy, easy case puts the I was going to say the fear of God into I think sense sends chills up and down her spine, and rightly so, because, first of all, I think this case demonstrates that any plaintiff who runs to the court screaming religious liberty is going to start with at least four votes, which is very disturbing because these cases are quite tricky and difficult and sort of fact bound.
S10: And the fact that anyone can go to the Supreme Court if they’re a Christian and say my freedoms being suppressed and get four votes off the bat, there’s a problem that’s like that’s a little bit too much bias toward that class of plaintiffs. But I would add something that I don’t think Linda necessarily got into too deeply, which is that Brett Kavanaugh’s opinion was just factually misleading. And I think extremely dishonest because this case is all about facts. OK. This case is all about whether in terms of spreading a virus. Churches are more like concerts or more like supermarkets. Right. And I think California was probably correct to say they’re more like concerts because with churches, people come in, they gather, they congregate, they spend a lot of time there. They sing. They talk to each other. And none of that is going on in a supermarket. People go in, they go out. They try to shop as quickly as they can, especially now. And Kavanagh just didn’t engage with that at all. Kavanaugh didn’t even acknowledge that California is treating churches exactly how it’s treating similar entities like concerts. And for him to just kind of ignore facts that are inconvenient for his thesis suggest that he is very much a results oriented judge who is going to mangle and manipulate the facts and the law to get where he wants to be politically.
S1: And before we leave this subject, I want to tether what you just said to a theme we’ve seen a couple of times on this show and something you’ve written about, which is there seems to be boom litigation in these religious liberty cases that are based on predicate facts that don’t exist. So, for instance, the Little Sisters case was all rooted in this imagined threat to the Little Sisters who actually were not going to be impacted by that case. You’ve written about other cases where judges I’m thinking of, of James Hoe, I’m thinking of Justin Walker, invent this religious hate and then construct an opinion around it. But the thing that is said to have happened didn’t actually occur.
S10: So I think that’s absolutely correct. And I think there’s two related things going on here. First of all, I think all the judges you just named Kavanaugh, how Walker all Trump appointee is right. I think that they have a vested interest in crafting a narrative of widespread discrimination against pious, devout Christians. They are working very hard to develop through their jurisprudence a kind of storyline about how there is extreme hostility toward Christians who simply want to practice their faith. And these judges will literally make up facts to to try to further that story. And I think the reason they’re doing that is because these judges once courts to see Christians as a persecuted minority and they want churches and Christians to get all of the constitutional benefits that come with being a persecuted minority. Right. Heightened scrutiny in the courts. You know, a higher bar when the government wants to take action restricting your freedoms. They they want the courts to treat churches and religious people and specifically Christians the way that they treat, say, black people who are facing active religious hostility from the government. And I think that they will stop at nothing to craft that narrative. I think this is something that Justice Alito has been encouraging, as well as Justice Thomas further very long time on the Supreme Court to to basically take the automatic position that if a church or a religious person is claiming discrimination, they should win and they should automatically win because they are the victims of such widespread persecution, unless the government can come in and provide a really, really good reason for what it’s doing. And I think that is probably inspired in part by the battle for marriage equality. I think that the plaintiffs in the marriage equality cases who are seeking a right to marry their same sex partners, did an excellent job framing these cases as state hostility toward gay people, states animus toward the equal dignity of gay people. And that was a a story that Justice Kennedy and the Supreme Court bought. And so I think now we see another group of people, very religious Christians, who want to sort of borrow that tactic, that strategy, and get the kind of winds in courts that they weren’t getting as gay people’s rights were ascendant in the judiciary.
S1: I wonder a little bit if it was an error, this labeling of some workers in services as essential during Cauvin and some as inessential, I know an awful lot of religious leaders really bristle, Mark, at being told that what they did was inessential in the moment. And I feel like a little bit of this was. An unforced error in trying to think about religion the way you think about supermarkets and nurses, because I suspect if you are operating a house of worship or if you are very devoted to a house of worship, being told that it is not an essential service must have been in that moment experienced as a slap in the face.
S10: Yeah, I agree. And I actually think that some leaders, including Democratic leaders, have made this worse. For instance, Bill de Blasio, mayor of New York, has said, well, basically I don’t view religious services as essential, but I do view protests against police brutality as essential. And frankly, you know, even though I strongly support those protests, those aren’t the kind of distinctions between speech and assembly that are worthwhile in speech and assembly that can be suppressed that state actors are supposed to be making. And so I do think it was a huge mistake to draw this stark divide between essential and non-essential workers and start imposing these restrictions on churches and basically telling churches and religious leaders who are not as important as grocery store clerks. There are there had to have been a better way to do it. And I guess we’re playing Monday morning quarterback a bit, but it’s it only made it easier for these churches to come into court and claim discrimination against them.
S1: So let’s pivot from there to another wholly fabricated crisis. And that is vote by mail. The newest bête noir of certainly Donald Trump. Bill Barr and one of your favorite judges. So let’s talk just briefly. I think when we did the election meltdown series this winter, we didn’t realize how essential vote by mail might become. Assuming there’s a second covered wave in the fall. And because it. Really was at the center of the Wisconsin kerfuffle around voting in the primary. It has become somehow. On the ground, the thing that must be defeated. So I guess we can start with Donald Trump, who’s now just tweeting without any evidence that voting by mail is subject to fraud. And then segue way to Bill Barr, who gave an interview implying that foreign countries are getting sacks of mail in ballots and intervening in the election. And that brings us to your friend in mine, James. Yeah. You and talk about him.
S10: Oh, goodness. So, I mean, James Hoh is probably the Trump iest of Trump judges. He is on the 5th Circuit, which is the most conservative court now. By far, it’s quite radical in its conservatism, just openly flouts liberal precedent from the Supreme Court. James Hoh is leading that charge and he wrote this bizarre opinion on Thursday in which he basically claimed that vote by mail is rife with fraud, that it is totally unsecure, that it is a recipe for election fraud and theft, and that the courts, therefore have no business ordering any kind of expansion of vote by mail because doing so would put the very legitimacy of an election at risk because it’s so open to fraud and tampering. And of course, that’s totally false, right? This is all nonsense. I mean, there have been a few instances of fraud involving absentee balloting. Most notoriously in North Carolina. Right. But it’s worth noting that North Carolina passed a suite of restrictions on vote by mail after that whole controversy, and none of them would have stopped the fraud that actually happened there. So we now have the entire Republican leadership, which includes a lot of Trump judges like James Hoh speaking out against vote by mail, claiming that it’s terrible and that we should repeal it. And even in a pandemic, people should be forced to vote in person. And I think this is just tactically a disaster for Republicans because every single potential swing state in this country already has no excuse. Absentee voting, which means you can request a mail in ballots from the government for no reason or any reason you want and send it back. And that’s it. Georgia, Arizona, Florida, Wisconsin. Every potential swing state already has vote by mail for everyone. And so the only thing that Trump and Barr and Ho are really going to be able to do is dissuade Republican voters from using vote by mail, even in those states where they can by making it something poisonous, by making it another another part of the culture war. And if people don’t use vote by mail, if Republicans don’t use vote by mail, they’re going to be less likely to cast a ballot at all, because we know that if people don’t cast early ballots, things can happen on Election Day. There’s an emergency, a health crisis they forget. And so it seems quite counter-productive to me to have all of these Republicans basically telling their voters, don’t use this awesome, super convenient. Right, that you have to support me instead, drag yourself out to a poll on Election Day and risk contracting a deadly infection just to vote for me.
S1: And to codas to that, I think both worth flagging, one is not only is there no good data that vote by mail is inherently susceptible to fraud. There’s also good data to suggest it helps Republicans. So suppression of it I know you’ve just said a version of this, but the idea that we’re going to suppress vote by mail and thus circumscribe the franchise for Democrats. There’s just no evidence that that’s the case. The other thing, I guess, that’s worth saying is that the whole point of this exercise is just to seed the ground for dealing atomizing. The election come what may. And this is part of a long, long. It started before the 2016 election when Donald Trump was claiming vote fraud before we were talking about mail in ballots, when we were talking about in-person vote fraud. This is just really seeding the ground for claims in 2020, November that the whole election was illegitimate.
S10: Absolutely. You can already see it now that Trump tweet that says, oh, I didn’t really lose Florida because there were millions of mail in ballots that were tampered with and given to Joe Biden or whatever. That’s undoubtedly going to happen. And we just all need to brace ourselves for it. This is a separate conversation, right? How to avoid a Trump coup for an illegitimate second term. But I will add just one last coda, if I may, which is that Donald Trump is not a resident of Manhattan any longer. He has formally declared himself to be a resident of Florida. As such, he plans to take advantage of Florida’s generous vote by mail laws. However, when he first attempted to register to vote in Florida, he provided the wrong address on his forum. He provided the White House this his legal address. That is a third degree felony in Florida, and it is a felony for which people have been prosecuted in the past. So when we’re talking about people who commit voter fraud, the first on our list should be Donald Trump.
S1: Mark, before I let you go, let’s do 30 seconds on what has happened this week in D.C.. What is happening around the country, what we are seeing. D.C. has become in a really profound way, a football in almost everybody’s weird cause play there. We’re gonna march in troops. We’re going to. Now, Mike Lee is talking about quartering soldiers. Oh, what’s it like on the ground in Washington, D.C. this week? You have really, I think, somehow been placed at the epicenter. And I know you were walking around the protests and reporting on it. What are you seeing around you in terms of. Constitutional norms, constitutional presumptions, constitutional throw pillows that we’ve assumed, but maybe are not quite what we believe them to be.
S10: Yeah. So a couple of things. I mean, first of all, I’ve watched as the protest area is made smaller and smaller. Right. People were peacefully assembling by the White House and this various array of security forces that pushed them farther and farther back. Closing off a quintessential public forum are roads and sidewalks near a government building from free expression and free assembly, which is quite distressing. But mostly what I’ve been seeing is protesters who are extremely peaceful, who are actually keeping the peace by ejecting anyone who who threatens any kind of violence or even rowdiness and who feel a little confused as to why they are facing off against a massive number of troops in cammo and riot gear, and some of whom have not even been identified with a particular federal agency and refused to give their name. They look like some kind of paramilitary death squad from from Central America. And it’s it’s just quite surreal to see all of these peaceful protesters saying all we want is our constitutional rights. When I went down there, everyone I spoke to talked about we want our First Amendment rights. We want to speak freely. We want to assemble freely. And then you have this massively suppressive response, not just Trump gassing some protesters, but police everywhere and very intimidating ways. And it just feels like that if there are any true patriots here, it is the protesters. They are the ones who are standing up for their constitutional rights. And it is the federal government that is trying to put them down and stop this peaceful uprising. So it’s it’s it’s an interesting moment for the First Amendment. I know you and I have spoken a great deal about how conservative justices have weaponized free speech. That is undoubtedly a problem. But at times like this, I am certainly very grateful for that. Right. Because these protesters have been absolutely valiant and they’ve been really fearless in the face of a very clear and brazen effort by Donald Trump to intimidate them into silence.
S1: Marc Stern covers the Supreme Court, the state courts, the judiciary. So much else for Slate. Mark, thank you very, very much. Be safe this weekend.
S10: YouTube. Thanks so much, Dalia.
S4: And that is a wrap for this episode of Amicus. Thank you so much for listening in. Thank you so much for your letters and your questions and your thoughts and your feedback and your support. You can always keep in touch at Amica, said Slate dot com. Or you can find us at Facebook dot com slash amicus podcast. Today’s show was produced by Sara Berninger. Gabriel Roth is editorial director of Slate podcast. Alicia Montgomery is executive producer of Slate podcasts. And June Thomas is senior managing producer of Slate podcasts. And we will be back with another episode of Anarchist’s in two short weeks. Until then, hang on in there and we will, too.