Amy Coney Barrett Is Following in the Footsteps of John Roberts

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S1: This is the waves. This is the way, this is the way. This is the way. This is the way. This is the waves.

S2: Welcome to The Waves, Slate’s podcast about gender, feminism and the Supreme Court. Every episode, you get a new pair of feminists to talk about the thing we can’t get off our minds. And today you’ve got me Mark Joseph Stern, a staff writer for Slate, covering courts in the law

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S3: and media Lithwick. I am a senior editor at Slate and I cover the courts.

S2: Today, we’re talking about Amy Coney Barrett first term, which just wrapped up this month just as Barret’s notoriously replaced Ruth Bader Ginsburg on the court, solidifying a six to three conservative majority. And today we’ll be talking about what impact her votes had on the cases that the court decided and also the cases that the court chose not to decide.

S3: You know, I’m sitting with two things and it’s sort of interesting to me. One, last October, November, you and I were running around houses on fire, houses on fire. She’s going to do all these dreadful things. And to now we’re sitting in the midst of a raft of mainstream media views that turned out to be really moderate and temperate and centrist and maybe not all that different from RBG after all. So maybe just in terms of table setting, were we wrong then or are we wrong now?

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S2: I don’t think we’re wrong at all.

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S3: Let’s recall at Justice Barrett, then Judge Barrett’s confirmation hearings that Senate Democrats chose to make it about the Affordable Care Act. And so what we saw right, was days and days and days of Senate Democrats holding up huge posters of children who were going to be thrown off their health insurance because of Justice Barrett. And that didn’t materialize for reasons we’re going to talk about in a minute. The Affordable Care Act was not struck down. But I do think there is this problem with hindsight and foresight. In other words, the choice to say we’re going to litigate Amy Coney Barrett its possible impact on the court before she’s on the court really does, I think, occlude what the real conversation was. And to we spent a lot of time talking about Roe and it didn’t materialize because there was no abortion case on the docket. I just think the point let’s make this as a sort of leaping off point. A lot of the things that are allowing people to say right now, look how shockingly temperate and moderate and centrist Justice Barrett is, are because either the kinds of things we’ve been worried about all along, Barrett on guns, Barrett on abortion, Barrett on dismantling the administrative state didn’t really happen this year. Oh, by the way, they might happen next year. And two, because some of the things that we used as templates Amy Coney Barrett is gunning for health insurance actually didn’t happen. Is that fair?

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S2: I think so, absolutely. I think it’s important to step back and say that she has been on the bench for about nine months. Right. She may well be at the Supreme Court for the next 30 years. And so the fact that we are all racing to take in a few data bites and conclude that she is one way or another, that is our problem. That is our desire to craft a narrative right out of the gate. She has decades to build her legacy and to await the big cases to come before her. She doesn’t need to reach out and grab every single one. And so the fact that she had a somewhat limited buffet of options this term does not mean that in the future she will not swing far to the right and drag the court with her. So I’m very glad that you teed that up for us, and I really am looking forward to getting into it. But before we do, we have a brief word from our sponsors. So Dahlia, let’s talk about that confirmation hearing back in October, a somewhat traumatic time, Justice Ginsburg had just died. The election was right around the corner. And as you noted, Democrats chose to make it all about the Affordable Care Act and say, well, if this individual is confirmed, she could take away health care from tens of millions of people, including all of these wonderful children and individuals who are so deserving of health care. And I’m curious, looking back now, what do you make of that strategy, of that introduction of Amy Coney Barrett to the world by Democrats?

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S3: Yeah, I’ve been really thinking about that, Mark. And I think in some sense it goes to that predictive foresight and hindsight. In other words, the Democrats made a choice. They didn’t quite know how to attack Judge Barett. They knew, we should note that from her confirmation hearings for her job at the 7th Circuit, the federal appeals court where she had sat for three years, they couldn’t touch a lot of the issues that were at the heart of what they were really worried about. Right. Which is her religious views and what she’s written about the right to abortion generally, but also just things that surfaced during the confirmation hearings about how early and often she was saying things like life begins at conception and how really involved she was both in a judicial project, to say that starry decisis or precedent just doesn’t matter. So there’s that that she just doesn’t have a lot of qualms about reversing cases. So they weren’t willing to talk about how she thought about precedent. Also, she she wouldn’t answer. They weren’t really willing to say. How does your view about reproductive freedom and reproductive rights braid into the way you think about your job as a jurist? She had explicitly written about that. Right. We know that she has put that into evidence before. Dems didn’t want to touch that either. And that combined with the fact that she simply wouldn’t answer questions. I mean, questions like very fundamental questions about can the president stop the election, you know, fundamental questions about things that are totally orthogonal to her own job as a justice. And so I think all of that meant that Dems were sort of boxed in, that they chose to make this about the Affordable Care Act because they wanted it to be a kitchen table objection to Barritt that everybody could understand. It’s not complicated. I don’t have to explain Section two of the Voting Rights Act. I can just say she’s taking your health care away. But in the end, the fact that that didn’t materialize, the fact that she happily signed on with the seven to two majority that kicked away the Affordable Care Act case, I think made the Dems look a little dumb.

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S2: You I think it’s worth noting that Dems did touch the religion issue during Barrett’s confirmation hearing to the 7th Circuit, to the lower court. And it was like an electric fence and they got electrified. Right. Dianne Feinstein said the dogma lives loudly within you. And celebrity of the right was born. There were mugs and shirts and headbands you could buy. That said, the dog lives loudly within you. She became Amy Coney Barrett became a kind of hero to the right because she was supposedly persecuted for her religious beliefs, for belonging to a religious organization called People of Praise. Some commentators ask questions about and immediately the White House and its allies framed all of that as anti Catholic animus. Right until a few years later, by the time she was there for a job interview for the Supreme Court. Democrats had been so scarred by that. I think that they really would not touch it with a ten foot pole, as you noted. And that did leave them boxed in. And I guess they made the choice. Let’s talk about health care, because like you said, it’s not complicated. And also it doesn’t raise these fraught issues the way that abortion, reproductive freedom does. We don’t have to get into the whole question of anti Catholic animus, and no one will be able to accuse us of hating her because she’s Catholic. Of course, conservatives did still accuse Democrats of hating her because she’s Catholic, but that’s just completely unavoidable.

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S3: Let’s put a name on that. That was Josh Hawley setting up the confirmation hearings to say Democrats are going to ask about Griswold versus Connecticut. And that’s a dog whistle about how much they hate religious people. Right. That was explicitly shot across the bow.

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S2: And what Holly did, I think, was scummy. But I think it was also relatively canny because it worked and scare Democrats away from asking hard questions. So all they asked about was health care. And I guess we should get into the ACA case this term. Essentially, this was a I think, a really frivolous, ridiculous case where the state of Texas, joined by a bunch of other conservative states, argued that the entire. The Affordable Care Act became unconstitutional after Congress zeroed out the penalty for people who don’t purchase health insurance. We don’t need to get into the details because I think just a brief description illustrates why it’s such a nutty theory. And I will say at the time, I was harshly critical of Democrats for seizing on this case, because I said, look, this is a ridiculous case. And the mere fact that total partisan hacks in the lower courts have embraced Texas’s theory does not mean that this is going to get five votes on the Supreme Court. And my fear was she would, you know, say, OK, this is too nutty for me. I’m just going to kick this case to the road. And then Republicans would jump up and dance around and say, hey, Democrats, you accuse this woman of being out to kill the Affordable Care Act. But guess what? She had the opportunity and she didn’t. So she must be moderates. And that just that framing feels totally wrong to me. But it’s the inevitable result of Democrats using the ACA case as the litmus test for Amy Coney Barrett radicalness this term.

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S3: I think you and I agree. In a lot of the big blockbuster cases, including the Affordable Care Act, the court decided not to decide. They navigated through. And we’ll talk about Fulton in a minute. They what really navigated through choppy waters, not by doing liberal things, but by doing close to nothing. And that is the bulge at the center of the court right now. That is Barritt and Cavnar and the chief justice saying we’re smart enough to realize that if we came out the chute with guns blazing, overturning everything, radically reinterpreting the law, striking down the ACA, granting massive massive privileges to religious dissenters to violate civil rights laws, the American public would have been like, maybe we really need a court commission that would do something and expand the court. So I just think they are savvy and they are careful watchers and they have a long game. Alito, Thomas, sometimes Gorsuch not so much. That’s what we’re looking at, not at a bunch of liberals at the center of the court.

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S2: Now, with all of this that we’ve said, I think there’s one big exception, and that’s the covid religious liberty case. That’s right. Because in some ways, one of the most major decisions the court issued this term, one of the biggest breaks from precedent was a shadow docket decision that blocked these California restrictions on houses of worship during covid lockdown. And that, oddly enough, changed the law of religious liberty more than Foltyn versus Philadelphia, which was a normal case decided in the normal way.

S3: Let’s lay out what the shadow docket is.

S2: Yeah, so so we all know the normal Supreme Court cases where there’s tons of briefing and they hold oral arguments and we all read about it and get excited. And then the justices retreat into their cone of silence. And a few months later, they issue a decision. And we know how every single justice voted. And there’s opinions and majority opinions and concurrences and dissents and all that. That is the normal docket. Now, we are talking about these shadow docket, which is a totally separate thing, which are these cases that come to the court on an emergency posture where the parties below are saying this is really, really urgent. We can’t wait for the normal process. It takes too long. There’s not nearly full briefing, right. Minimal briefing. There’s no oral arguments. And the Supreme Court issues an order or sometimes an actual ruling where we don’t always know how every justice voted, where the majority opinion is quite often unsigned, where we have to guess to figure out which five justices actually made up the majority of the court. It’s all done, as the name suggests, in the shadows. And this is how every single covid religious liberty decision came down as a shadow docket order. You know, these were the cases where before Barrett joined, they all went five four against the churches, the Supreme Court, with Roberts joining the four liberals continually said, we are not going to change the rules for churches. States have broad authority to protect public health, and we are not going to change the rules sitting in our closed courthouse here in D.C. And then when Barrett replaced Ginsburg, everything flipped and the decision started going five to four, sometimes six to three, in favor of the houses of worship, blocking covid restrictions with the liberals and sometimes Chief Justice Roberts dissenting. And this all culminated in the decision of Tandyn vs. Newsom, where the Supreme Court really changed the game of religious liberty thanks to Amy Coney Barrett vote. She was the fifth vote. It was a five to four decision. And here the Supreme Court said that any time there’s an exception to any law, if there is an exemption or an accommodation for any kind of secular purpose or person or business or organization, that same exemption has to be given to religious organizations and religious people and religious businesses. So if a bike shop can. Stay open during covid than a church has to be able to stay open to, and it doesn’t matter that people are in and out of a bike shop in two minutes and people linger in churches for hours singing because the secular exemption exists, the religious exemption has to exist, too. And that precedent shattering five to four unsigned decision came down to the shadow docket and received relatively little coverage, I think, because it was so abnormal and did not follow the normal protocol that we’re used to when we’re talking about Supreme Court decisions.

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S3: That’s right. Our friend Steve Vladeck has written a lot about the shadow docket for us at Slate, and he noted that this was probably the most consequential religious liberty decision that was made since 1990 at the Supreme Court and that, oh, it happened in the shadows in an unreasoned order without, as you say, a briefing, without argument, without real reasoning at the part of the court that explained to lower courts what the rule was. We just saw the rule change, as you said. Now, any state or municipality that puts into, in effect, a lockdown order in an existential global pandemic, if they make an exemption for nail salons or bike shops, the exemption goes to churches, too. And that is profoundly, I think, without getting into the weeds of employment division and religious liberty cases. But I think it is a profound upending of how religious liberty has been analyzed at the court. And it happened with nobody noticing. And a lot of what happened in the shadows this year was so, so, so consequential and profound. And because it just slipped out in late night orders, the press didn’t necessarily give it the attention it needed and the court kind of ignored it when the court analyzed fault. And they act as though they hadn’t already fundamentally altered the rules of religious liberty

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S2: and radically altering those rules in a shadow docket five to four decision is not something a moderate would do. Right. So that alone, that data point alone should be proof enough to put to bed the canard that Amy Coney Barrett is a moderate, no, no moderate, no judge with a genuine moderate bent would ever manipulate a court’s rules, really break a court’s rules to effect such a radical shift. And yet that’s what Barrett did. And we know she was the fifth vote here because even Chief Justice Roberts was genuinely a good friend to religious freedom and even religious exemptions. He dissented from from Tandan, from the decision we’re talking about. And I noticed in so many of these end of the term wrap up, he says, when journalists were giving their breakdown of how divided the court was and how unanimous the court was, they excluded shadow docket decisions. So they say, oh, there were so few, five to four decisions, but that’s only in the normal cases. These shadow docket cases were quite frequently five to four. But because they aren’t being factored into the stats, nobody notices them. And the end of term RAPPA pieces create the false impression, the false narrative that the court is more unanimous and more in agreement on major, major issues than it actually is. So we’re going to take a break here. But if you like what you’re hearing and you want to hear more from Dahlia and myself on another topic, check out our Slate plus segment, Gateway Feminism, where today Dahlia and I will talk about one thing that helped make us feminists. I will be talking about the Berenstain Bears Dahlia. What will you be talking about?

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S3: I’m going to be talking about Pauli Murray.

S2: A few months ago, I was talking to Mary Ziggler about Amy Coney Barrett, Mary Zeigler’s, a fantastic professor of law at Florida State University. She covers abortion law and abortion history. And she told me that she thinks Amy Coney Barrett wants to be perceived as a serious intellectual, that Amy Coney Barrett doesn’t want to be perceived as a sort of instrumental transactional vote, that Republicans sort of crammed onto the court at the last minute to further their agenda, that she is a really brilliant person who wants to be perceived as an independent, neutral, thoughtful institutionalist. And for that reason, she wasn’t going to be in a rush to affect her own agenda, which would include probably ending the right to an abortion. Now, Mary said that to me just a few weeks before the Supreme Court took up a case that is a direct challenge to Roe versus Wade, which the court will hear next term and may well use to end the constitutional right to abortion with Amy Coney Barrett vote as potentially the decisive one. But I still think that Mary was on to something there, and this has really informed my own view. I do think that Barack cares about how she’s perceived, unlike somebody like Sam Alito or Neil Gorsuch, who truly do not care how the press and the public think about them. I do think that Barrett wants to be seen as the kind of professorial, thoughtful, maybe understated but quietly brilliant jurist. I don’t know, though, if that’s the person we’ve seen in action over the last nine months on the bench. And I’m very curious what you think.

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S3: I do think that what was seen as resounding statesmanship and centrism was Barrett’s decision to write a concurrence in what ended up being a nine zero decision that looked as though, hey, the court’s not making any definitive claims about this balancing of religious liberty. On the one hand, civil rights on the other. It looked like that was happening. And what Barrett got fitted for was the centrist, moderate concurrence she wrote saying, I’m not going to overturn a decades old precedent. That’s what she did. She got fitted, as you’ve been saying throughout, for not doing the thing that people thought she was going to do. And then instead of saying, well, OK, a is you’re saying, why was that strategic? And B, did she effectively do that in the shadow docket? Anyway, in the covid cases, we’re just sitting here saying, man, she’s no different from RBG. And I think that is a function of as we’ve said from the beginning, you know, the way we do confirmation hearings, unfortunately, on both sides is a lot of sort of sky is falling projections about what’s going to happen. And when that doesn’t materialize, it’s like, hey, maybe she really is for the adoptive same sex parents in this case, which is like absolutely, materially not true. But I think that there is a very, very cartoonish sense still going into next term when abortion, as you say, is on the chopping block, that if Amy Coney Barrett doesn’t write the sentence, Roe v. Wade is overturned, she will have been a moderate. And that’s just the way we construct the narrative around the court. And I think you and I have said and I started by saying this, this is a person who doesn’t believe in precedent, doesn’t believe that Roe was correctly decided, has said this much, has said this should go to the states to decide, doesn’t isn’t willing to say Griswold versus Connecticut is super precedent and binding. She doesn’t have to write the sentence or Roe v. Wade is unconstitutional and herein overturned in order for abortion to be fundamentally inaccessible in the many, many states where there is only one clinic. And so I think that we’ve just yet again set this up as a game that she can only win. And then when she does the tiniest feints to hay today in Fulton, I’m not overturning a 1990 case that we say like man, she loves those adoptive same sex parents in Philadelphia.

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S2: Yeah. So, OK, so let’s flesh out the case so this makes more sense. Right. So Foltyn versus Philadelphia is a case about a Catholic social services agency that participates in Philadelphia’s foster care system and specifically here works to screen and certify prospective foster parents to tell the city, hey, these folks will be good parents. They check all these boxes they should be able to foster. And this agency refuses to work with same sex couples. They don’t like them. They don’t believe in their marriage and so on. They say we will not screen our certified same sex couples. The city of Philadelphia says, OK, well, the problem here is that by turning away prospective foster parents, you would be shrinking the pool. All of loving homes in which children can be placed, so we are going to let your contract expire and not give you more taxpayer dollars to discriminate against same sex couples. And in fact, it’s our policy. It’s our rule. It’s our law that all of our contractors have to treat LGBTQ people equally. The Supreme Court comes in and says, actually, no, Philadelphia violated the free exercise clause when it ended this contract, but did so on a really bizarre, kind of flimsy, narrow basis at the Supreme Court by a six to three vote said that, in fact, the city had a lot of discretion to waive non-discrimination policies even if it didn’t exercise that discretion. And so this nondiscrimination rule wasn’t really generally applicable. And so, in short, the city didn’t have a truly compelling interest in enforcing it. That was a dodge, as everyone recognized. And I do think, you know, the Barrett concurrence in this case may be the most important opinion of them. All right. Because they’re joined by Cavnar and in part by Stephen Breyer. Write separately to say, yeah, I’m going along with the majority. I don’t love this precedent that’s not so protective of religious liberty, a decision called Employment Division vs. Smith from 1990. You know, I’m not in love with that decision. I don’t know that it’s right, but I’m not willing to overturn it yet. I’m not sure what to replace it with. And because of that brief decision, which I did think was somewhat scholarly and cited to various scholarly articles and, you know, certainly sounded like something a professor would say that drew a lot of attention to her. And like you said, Dahlia made a lot of people applaud on the left and say, hey, it’s not the apocalypse yet, but she’s got at least like 30 more years to either change her mind or take a different route to get to where conservatives want to go. And in fact, she may have already begun to do that using these shadow cases. So it’s not clear to me if her concurrence really mattered or whether she was kind of playing everybody and managed to help craft a narrative in classic John Roberts style to make her conservatism seemed like centrism.

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S3: Part of my ongoing beef with Supreme Court coverage is it is so personality driven, the personalities of the justices and whether that was the cult of arbitrary ride the tote bag application of how we think about feminism and progressive activism, or the attempt on the right to co-opt the cult of RBG for Justice Berrett, I think part of the retired Justice Breyer thing, again, puts way too much importance on individuals as opposed to systemic change. Right. Like things that you can do that are probably in the long term, if this is indeed a long game, a decades long game, as you point out, much more effective than harassing individual jurists off the court. But I think part of the problem also is that it elides really complicated questions like voting. And so maybe let’s end on voting only because all the focus on her Barritt and Cavenagh are these centrists, after all, I think distracts so profoundly from what just happened to voting rights. And just to tee it up, I will say this is another thing that was happening in the shadow docket long before we got to burn. Davich We were seeing orders that were changing, really, really changing doctrinal positions. They didn’t necessarily command five votes and change the outcome of the twenty twenty election. But we were seeing feints at fundamentally changing how states can oversee their own elections happening on the shadow docket. And then the term ends with, I think, two incredibly consequential decisions, both six three, by the way, that really in a systems way that cannot be Lasch to any one justice or their personality or their face on a t shirt, really, really, I think, imperils the project of democracy, right?

S2: Absolutely. You’ve got all six justices in Bernadette v. DNC, the big case of the term, really gutting the Voting Rights Act and sort of neutering this decades old law that prohibits any voting restriction, that results in disproportionate disenfranchisement of racial minorities. So the six conservative justices take this revolutionary law that was supposed to stamp out the last vestiges of Jim Crow and prevent states from passing any kind of voter suppression measure that has a disparate impact on racial minorities and turns it into nothing. Right flattens this law. And mere symbolism creates this multifactor test that has no relationship to the text of the law and just manipulates it to ensure that lower courts will uphold essential. All restrictions on the franchise under what remains of the Voting Rights Act and berrett join that opinion in full and Cavnar joined that opinion in full. They didn’t write anything else. They didn’t have any concerns or qualifications. And yet, despite casting the fifth and sixth votes, they got almost no attention. Right. That was not oh, look at these two justices dragging the court far to the right. It was an aberration in an otherwise agreeable term, which strikes me as a fundamentally wrong way to think about a decision that constitutes an attack on the one right that is preservative of all other rights.

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S3: Yeah. And I think I think that very last thing you said is the thing that I would ask listeners to take away from this conversation, which is the kinds of cases that got an immense amount of attention this year, the swearing cheerleader. Right. As you said, the Affordable Care Act, that turned into nothing. The kinds of cases that got much less attention because they were wonky and technical are cases that came out on party lines that further gutted union power. In one case that, as you said, further eviscerated what’s left of the Voting Rights Act. And I would commend to people, if you do nothing else this week, read Elena Kagan’s dissent in Brunswick. It is from a really exceptional writer, a piece of, I think, the finest judicial craft I’ve seen in a long time, and this shadow docket that is chipping away at the right to vote, but not doing it in a way that seems like it’s going to be salient until we all think about voting again in 2022. So this is, I think, the disconnect that Mark and I are sort of when we are still willing to say, as we were back in November, the sky is falling. It’s because these incredibly technical, wonky, I still don’t fully understand all the ramifications of changing the test for Section two in the Voting Rights Act, even after podcasting with you about it, Mark, last week. I think this is the kind of stuff that is going to have the effect of making it harder to vote if you’re Native American in Arizona, of making it harder to vote if you’re black in Georgia, of making it harder to vote if you’re Hispanic, if you’re Latino in Texas. And that’s the kind of stuff that we should be focusing attention on, not whether or not Amy Coney Barrett can write moderate centrist opinion when she wants to. So I guess I just think this thing that you just said, Mark, that this is the right that is protective of all other rights was my big takeaway from this term, which is gutting voting rights, particularly when we have the filibuster still killing voting reform in the Senate, and particularly when it seems to me as though meaningful court reform is not going to happen. Killing voting rights is a way of making all that other stuff go away.

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S1: You’re way, way, way, way, way with.

S2: Before we head out, we want to give some recommendations and Dahlia, I’m curious, what are you loving right now?

S3: So this is going to sound corny, but I just want to root it in the fact that I am somehow on my fifth rental home in four years and just completely as so, so many of our listeners are still upside down in this interregnum between covid and having my kids go out into the world. The thing that, believe it or not, has been giving me sanity the last couple of weeks is my gorgeous Supreme Court women Mug that I got from resistance by design. And I know it’s just ridiculous to shill for a company that makes the Mug with the faces of the four Supreme Court female justices. This was the one actually it came out before Justice Ginsburg died and also before Amy Coney Barrett, who was on the court. But somehow that has been giving me life and I’ll just say resistance by design partners with a whole bunch of amazing, amazing, amazing projects, including a whole bunch of voting rights projects. You all probably saw that vote mask that was everywhere last fall. That’s their work. But portions of the the money from the sales of these things go to all sorts of good projects that help teach people really wacky, complicated things like what gerrymandering is. So I am a big, big fan of my Mug. And I have to say, particularly in the last week, Mark, as you and I have been staggering around, hollow eyed and completely crazy about the state of the Supreme Court, my little funny Mug with the faces of the first four women on the Supreme Court has been giving me life. What’s your thing, Mark? What’s your recommendation?

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S2: Well, I guess keeping loosely with this theme, I’m going to recommend an awesome tank top that I got recently that has the DC flag on it. And it says Douglas Commonwealth, which is the name that the District of Columbia will have when it does become the fifty first state, because I’m choosing optimism here. It will stay DC, but it will be Douglas Commonwealth instead of the District of Columbia. As a proud Washingtonian, I feel it’s important to both sort of flaunt my support for statehood, but also normalize the idea of statehood, because a lot of Republicans, I think, exploit the fact that we’re also used to a 50 star flag. By the way, there’s a 51 star flag flying outside my house right now. They say, oh, how could it possibly be a state? That sounds so weird, Douglas Commonwealth, who couldn’t even pronounce that? Well, I can and I’m proud to show it off on. My dog walks around the neighborhood and I got this shirt from a company called DC Statehood Gifts in Apparel. You know, the name is what it is. They’ve got a ton of stuff online. That’s all in keeping with the statehood theme. And I definitely encourage everyone to go normalize Douglas Commonwealth, which will be our first date.

S3: Mark, if there’s a through line here, it has to be me. Walking around in my gerrymanders sucks by resistance, by design, and you walking around in your in your DC statehood T-shirt. I think maybe the through line here is friends purchase apparel that makes people ask hard questions about what the hell you’re wearing.

S2: That’s our show this week. The Waves is produced by Sheena Roth.

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S3: Susan Matthews is our editorial director with June Thomas providing oversight and moral support.

S2: If you like the show, be sure to subscribe rate and review wherever you get your podcasts. And please consider supporting the show by joining Slate. Plus, members get benefits like zero ads on any Slate podcast and bonus content of shows like this one. It’s only one dollar for the first month. To learn more, go to Slate dot com forward, slash the waves plus.

S3: We’d also love to hear from you. Email us at the waves at Slate Dotcom.

S2: The waves will be back next week. Different hosts, different topics. Same time in place with. OK, so now it’s time for the gloriously plus segment, which is Gateway Feminism, where we’re talking about the stuff defined broadly that led us on our feminist journeys. And I think that we’ve got a real high brow, low brow divide between us here. So I’m going to start with the low brow, the very low brow, which is the Berenstain Bears, specifically mama bear in the Berenstain Bears. So I read a lot of these books as a child and my parents read them to me. And when I was very young, I think I was about four or five. I asked, why does Mama Bear never get to have any fun? Why do all of Mama Bear family members get to go on these journeys and learn lessons and experience, joy and excitement and grow as bears while Mama Bear just toils away in the kitchen wearing her frumpy Amish outfit, doing nothing except occasionally scolding her family members, having to be relegated to the family nag. And I remember my parents admirably explained to me that Mama Bear was really a victim of pre feminist times and that the patriarchy had oppressed her and limited her options and locked her into this role. That was not really one of her choosing and that this was something to to look out for both in popular culture and in real life, to see the way that mothers are stereotyped as mere frumpy nag’s who don’t get to be part of the journey or the narrative or the excitement of life. And that really opened my eyes as as a young person. And I do think that it was one of the gateways that led to my feminist consciousness. So Dahlia, let’s let’s go. Henao now.

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S3: I mean, I actually in a very strange and improbable way, we did not coordinate our testimony, but in an improbable way. I actually think we are both talking about nearly invisible feminist heroines or feminist heroines that history perhaps forgot. And so in that sense, they are kind of chunked together. My feminist real feminist inflection point in this past six or seven months has been Pauli Murray, who should be, I think you’d agree, mark a household name, particularly not just, I’m going to say, among law students and lawyers, but I think should be a household name for everybody who thinks about Harriet Tubman and Thurgood Marshall and Ruth Bader Ginsburg, because Pauli Murray weirdly got there before almost anybody on so many sort of not just seminal moments in civil rights, but movements in civil rights. So just in brief, she helped co-found now the National Organization for Women in 1966. She was arrested in Virginia for refusing to move to the back of the bus 15 years before Rosa Parks was arrested. Her law school paper on the 13th and 14th Amendment was used totally uncredited by the NAACP when they litigated Brown v. Board, at least Ruth Bader Ginsburg, when she argued a pathbreaking women’s rights case at the ACLU in 1971, credited Pauli Murray, whose 1965 law review article had been the framework for it. Pauli Marie is this absolutely epic character Mark. She’s a queer, gender nonconforming attorney. She pursued relationships with women in Washington at the heart of the civil rights movement. I think she represented everything that everybody wanted to be and yet nobody’s heard of her. And so part of the reason I’m totally obsessed with her right now is a new film that came out at Sundance this year, but I think is going to be streamed on prime video in October. Twenty twenty one by Amazon. It is a documentary called My Name is Pauli Murray, directed by Betsy West and Julie Coen, who we all may remember from the RBG film that they partnered on this fact of Murray as I think just a pathbreaking radical, not just activist, not just protester, but intellectual architect of equality and dignity that has been all but forgotten. I mean, Mark, I didn’t learn about her in law school. I didn’t learn about her in law school. And so I think for me, not only has really reading her and thinking about her and I interviewed the directors for an amicus that’ll come out over the summer. But engaging with this has really surfaced. This question. It’s a little bit your mama Berenstain bear question, but it is who does history remember and who does history forget? And why and what it means to be a pathbreaking feminist in every single way, that for some reason or other slips through the fingers of history and I hope listeners know more about her than I have just shared. But if you don’t, I commend to you like a couple of hours of sitting down and reading in addition to everything else I just cited. Poet. Oh, my God. Heartbreakingly beautiful poetry

S2: that is so beautiful. Absolutely. And, you know, as you mentioned, restoring her her legacy and her reputation among feminists today was one of Justice Ginsburg’s goals in life. And so everyone who’s who’s, you know, toting around and ragbag or Mug or what have you do the work and read a Pauli Murray brief because it will blow you away. And I, I couldn’t concur more Dahlia.