2021 Was a Direct Response to 2020

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S1: This ad free podcast is part of your slate plus membership.

S2: This is just our time, and the question is, are we good for it? I ask myself that question because I’m tired as hell. Every morning I wake up and I’m like, Yep, I’m in, you know, because we don’t have a choice.

S1: Hi and welcome back to Amicus, this is Slate’s podcast about the law and the courts. I’m Dahlia Lithwick. I cover those things for Slate and this is our New Year’s Day Amicus special. So from us to you and yours, happy 2020 to wishing you and everyone around you a happy, healthy, better. Year later on the show, slate plus members will get to hear me and Mark Joseph Stern rank our biggest jurisprudential hangovers from 2021. But there will be a moment, maybe too of joy in there, I promise. That segment is accessible only to Slate Plus members. Thank you for supporting the journalism that we do for this episode. We wanted to reflect on all that has changed just this past year, year two of a global pandemic, year one of the Biden administration, certainly year one of America’s casual new flirtation with armed insurrection. But we also wanted to think really broadly about the Trump era, the Obama years before that, the sweep of racial justice, reproductive freedom, voting rights, kind of everything. And the person we really wanted to talk to is a friend of this show. Sherrilyn Ifill Sherrilyn is president and director counsel of the NAACP Legal Defense and Educational Fund. She assumed that role in 2013. That was the year the court struck down a central component of the Voting Rights Act, and Sherrilyn has recently announced she’s going to be stepping down from that role this spring. She joined the Legal Defense Fund as an assistant counsel in 1988. She has taught at the University of Maryland School of Law for decades and her 2007 book On the Courthouse Lawn Confronting the legacy of Lynching in the 21st century reflects her lifelong engagement on issues of race and justice in American public life. She’s working on a new book about America’s ongoing embrace of white supremacy for Penguin, which is going to publish in 2023. So Sherrilyn Ifill. Happy New Year! Welcome back to “Amicus and thank you from us for your tenure at the nation’s leading civil rights legal organization. Welcome back to the show.

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S2: Thank you so much, Dahlia. It’s great to be with you and really, the privilege has been mine. I know that sounds corny, but honestly, it has been. A dream come true to lead LDF, an absolute dream come true.

S1: It feels like a lot has changed even in the less than a year in the months since you last appeared on the show. Sherrilyn We’ve had this drumbeat of vote suppression in battleground states. We’ve got a sense that racialized police violence in America continues almost unchecked. And I think this burgeoning quiet tolerance of citizen vigilantes from Kyle Rittenhouse to SB eight to the harassment of election officials and school board officials. And I wonder if just as a sort of framing Happy 2022 question, do you want to talk for just a minute about this arc of the moral universe? Is it bending in the right direction right now? Am I just flagging the really garbage things? What? What has happened even since we spoke last spring? That is arresting you right now?

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S2: Well, it’s interesting, Dahlia, because, you know, I had the opportunity to make such a presentation to Senator Manchin earlier in 2021. You know, kind of what has happened since the beginning of the summer of 2021 and I ran it down. I talked about the threats to election officials across dozens of states, the number of election officials who have resigned, the proliferation of additional voter suppression laws around the country. The Brnovich decision from the Supreme Court in July, which severely weakened Section two of the Voting Rights Act, which they promised us we could keep after the Shelby County case in 2013. You know, so actually, a lot has happened and the threats against secretaries of state, which many of them choose not to talk about very much, but it is happening for sure. And and so yes, all of those things have happened. But you asked me a question about the arc and and I want to say something about that that I think is important, particularly about why 2021, it felt so incredibly awful. I mean, obviously, you know, people say, well, it started with January six, and I have to then push back and correct you that it started with January 5th. On January 5th was the runoff election for the Senate in Georgia. And the result of the incredible mobilization engaged in by grassroots groups like the Black Voters Matter and the incredible work of organizations like LDF, the organization I lead and many others engaging in voter protection work and election protection work and collaborating with people like LeBron James to have more polling sites open and to recruit forty thousand poll workers in the middle of a pandemic. The result of that election when more people voted, was that Georgia elected the first black senator since Reconstruction and the first Jewish statewide officer ever. That was January 5th. OK. What we think about when we think about the beginning of 2021 is January 6th. And I understand why it was obviously a terrible, violent coup attempt threat to overthrow the presidential election. A clearly engagement at the highest levels in abetting or at least condoning this action. And we’re learning more every day about how far those tentacles went. But what we have to understand is that the manifestations that we saw in 2021 were all a response to 2020. And if you consider 2021 unhinged from 2020, you get very depressed, but you have to recognize it as a direct response to 2020. So what was it? A direct response to what we saw was in 2020, the highest voter turnout in any presidential election, no matter who you voted for. In the midst of a global pandemic. We had voters in the primary election in Fulton County, Georgia, waiting online for nine hours to vote at a time when the pandemic was hitting the black community incredibly hard. You had people standing online, black people standing on line for hours in Milwaukee in the primary. As you remember to vote at a time when the Supreme Court decided not to allow the very modest extension of absentee voting return dates. So you saw this incredible determination to vote. You saw that happen through November and you saw it happen on January 5th. Something happened on January 5th that doesn’t happen in that special election. Ninety four percent of the voters who voted in the November election voted in the special election. That doesn’t happen. So you had this incredible mobilization. What’s the other thing that happened in 2020? Millions of Americans of all races came out onto the streets to protest against police violence and racism because they were moved by seeing the torturous killing of a black man on a street in Minneapolis by a police officer who had his knee on his neck. And what was aroused within millions of people, including white people who had never protested before, was empathy was empathy and a sense of justice. So it should not surprise us that in 2021, what we saw immediately beyond even January six was the proliferation of voter suppression laws beginning in March in Georgia, and those laws were transparently directly targeted at 2020. That’s why a feature of the Georgia law is that you can’t give water, that it is a crime to give water to a person standing on line to vote. They also know that black voters stood on line for nine hours in Fulton County to vote. Why do you see the proliferation of laws about pro truth? And that prevent the teaching of any aspect of racial or gendered history that would make students feel discomfort or guilt because they saw the consequences of white people feeling empathy for racial injustice in that response to the killing of George Floyd, they saw the power of that. And their answer was to cut it off is to not allow our children to feel those things, to learn that history. I have said Dahlia in the sixth grade when I read The Diary of Anne Frank. I felt guilt. I am not German. I did not harm anyone but as a human being. I felt a sense of shame and guilt. This is what they want to cut off. So everything that they are doing and that they have done in 2021, that has made us feel that, oh my God, all is lost. Is a response to the power that was revealed in the midst of a global pandemic with the most authoritarian president we have ever had in office. In 2020, and that includes, by the way. The attack on the iconography of white supremacy in the Confederate monument protests, if you think that this wasn’t traumatic, seeing Robert E. Lee come down. If you think it wasn’t traumatic, seeing these statues taken from their exalted space and having people learn about the lost cause. So when you see all this protrude stuff happening, it’s in direct response to that. And sometimes when we isolate the response, we feel like it’s not going our way, that it’s not going to be progressive when in fact what they are doing. And I frequently hear the critique we’re too responsive. No, they’re responding to everything that we’ve seen over the past five or six years has been a response to what we have won in terms of culture, in terms of perspective about race in this country is there’s a reason it comes after the first black president. It is a response. We are not the ones responding. They’re the ones responding. And I think we have to keep that perspective in our head lest we feel impotent.

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S1: Sherrilyn, I love what you’re saying, and I love the language of Pro Truth because it gets to the heart of what I’ve been feeling even since the first impeachment, which is this has nothing to do with justice or law. This is a messaging war. Yes. And this is a messaging war that as long as you control the levers of media, it just doesn’t matter what happens. And you know, you know, as well as I do that The Washington Post sent spent six months in. I don’t know how many dozen reporters to produce this flawless tick tock of what happened on Jan. six, and it didn’t matter. But you’re saying it matters and you’re saying pro truth is about simply being loud and everywhere and saying things over and over. And I think it answers my next question for you, which is, you know, LDF was historically not about being loud and messaging. I think The Washington Post described it as LDF. Lawyers do the work. They don’t talk about it. You know, they leave the organizing in the campaigning to the media. LDF just sent lawyers into courtrooms, but you took a really different posture at LDF. I think that you really kind of vaulted over that notion that we just, you know, get in the courtroom and we win our cases because the judges and juries are white, which was originally the LDF posture. You are not just about winning cases, you are describing a massive messaging campaign.

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S2: Absolutely. Absolutely. I was intentional about that when I interviewed for the job. I told the board that that’s what I was going to do, that I had been a young LDF lawyer and I too had been raised with that idea and trained with that idea that we do our talking in the courtroom. And I remember even then. That I was like, really, because the other side seems like they’re talking everywhere. You know, this was around the time that the American Enterprise Institute was being created in the Heritage Foundation. It was a whole infrastructure and apparatus being created to carry the message of the right. And one of the things I saw from my years of teaching and teaching calmly in particular, was seeing the change of language. I remember using the various Facebooks and, you know, when I was a young lawyer litigating at LDF to describe affirmative action as reverse discrimination was such an insult it was so awful. And then I remembered one semester I was teaching using the rotunda casebook. And the section on affirmative action was called reverse discrimination. It had entered the lexicon in the mainstream because we had not fought back against the use of the language. Of course, we were doing the cases. But that’s different than allowing the other side to name and describe their initiatives in ways that are offensive and antithetical to the truth. And so I was very clear that I was coming back to LDF to lead LDF and that in addition to our four pillars education, economic justice, voting rights and criminal justice, that the narrative was going to be a pillar that would infuse everything that we did, that we were not going to allow ourselves our struggle, our demands to be defined by our opponents, that we were going to speak everywhere we could, that we were not going to be falsely modest about our hard work or our success, that we were going to build out our organizing capacity. We had organizers on staff, but they were only in the criminal justice area. I wanted to staff up our organizing department to make sure we were kept honest and to make sure that we were hearing directly from the community and that we weren’t kind of off just doing our own thing and that we would build a rapid response capacity. Because being a lawyer is a weird thing. You’re litigating a case, you know, you’re working on something that maybe happened five years ago. But, you know, every day there are new civil rights outrages, and you have to have a capacity to be responsive to what is happening today, and that is how we were able to be so quickly engaged in the issue around police violence, which we had worked on for decades. I mean, LDF Lidded litigated the Tennessee versus Garner case, which is kind of the seminal case involving, you know, whether police officers can shoot somebody in the back end. But but we needed a capacity to be able to speak in the moment into these issues, and that was extremely intentional.

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S1: This is going to be deeply adjacent to the question I just asked you and that you just answered, but I find myself thinking of you and LDF all the time now when I read Sonia Sotomayor. Every time I read a dissent from her focusing on the unseen, on the invisible, on the unnoticed, on the numbers on this world that you are describing kind of as pro truth, she’s kind of given up on persuading the court. I think she’s largely given up on persuading even her liberal colleagues. She is reaching out to some constituency. That is very much who you are both speaking for and speaking to. And it’s I can’t really think of that was what Justice Marshall did. I mean, it’s a really amazing it’s both sad Sherrilyn that we’ve come so far and reverted to that lone dissent and also really illuminates what it is she’s trying to do right now.

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S2: Yes, you need a chronicler of the truth. You know, everywhere, if you are in your academic institution, you know, if you are in your journalistic institution, if you were in the Supreme Court, there has to be a chronicle of the truth. And what I feel when I’m reading Justice Sotomayor’s opinions, because you know, what you can do is, you know, I’m a lawyer and I am proud. I always have been proud of being a lawyer and you know, I’m deeply concerned about the profession and who we are and our role in a democracy and upholding the rule of law and kind of super nerdy about that stuff. So you can convince yourself that. Maybe I’m overdoing it, you know, maybe I’m that can’t be what they mean when they say that. I read that part of the opinion and it just kind of really hit me on the crop. I mean, you know, you could see it this way and you could also see it this way, you know? And what I see Justice Sotomayor doing is telling us what you think you see is what you’re seeing. And since such an important part of maintaining. The control of white supremacy in American life is gaslighting is convincing you that what you see is not what you see. You know, I wrote about this extensively about about lynching and the kind of people would be like, Well, maybe it happened and maybe it didn’t. I think it happened in this county, but maybe it was the other county, you know? No, it was right here. I can tell you the year, you know, you were this age when it happened. You know, you do need the truth. And so I do see her speaking the truth. I do see her speaking in clearer and clearer terms about that truth. And the part that I think is important to remember Dahlia is that I’m sure it’s painful some. You know, because I think people feel like, oh, you know, everybody piles on, you know, on social media, get it, Justice Sotomayor, you know, she’s telling them, you know, she’s laying down the gauntlet. You know, I get it too. You know, you get the pats on the back for speaking truth to power. It’s painful. It’s painful to have to speak these truths. And I’m sure in the environment that she’s in, it can’t be pleasant. To be in and in that environment in which you are seeing a truth that your colleagues deny. Is happening, so I think we have to make space for that to say it was true for Justice Marshall that, you know, we to get disillusioned because, you know, Justice Marshall was again another person who also believed in the legal system and the rule of law, believed in the court, believed in the collegiality of the court and so on and so forth. It’s painful. And so I think that needs to be understood to understand she’s not just writing screeds. She’s making a very intentional decision. That is a weighty one. I’m sure for any justice to be able to speak this truth.

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S1: I think you’re probably one of the first people who said to me when folks were starting to say, you know, years ago, the courts just illegitimate, maybe we should work to delegitimize it. Hooray. You know, six people in 10 now, according to the recent polling, say the court is purely political. Hurray. The approval ratings are in the 40s, and you have always been the one in the midst of those conversations to say exactly what you just said, which is we need a functioning court. We have to litigate in front of that court. If, God forbid, the court has to decide the 2024 election, we do not want a court that the entire country has written off. And that just persistently plays in my head when I hear people exalting about the courts, you know, public opinion polling being in the toilet because I always hear your voice saying, there’s no Plan B. We don’t Plan B is the army like Plan B is not good, and I know you’ve just come off the Biden commission and I know that that issue of legitimacy was sort of the heart and soul of what, in some sense, how the entire commission got framed. And I know, you know, you’ve had quibbles along the way of how much to center that legitimacy problem. But I guess I just want you to walk me through why you know you. You served on that commission as a civil rights attorney because you really think for all the reasons I’ve just laid out, the delegitimizing in destroying the court doesn’t take us to a better place. Is that fair?

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S2: Well, I guess I would say this because it wasn’t an easy decision to decide to serve on the commission, first of all, I don’t have the time. But I was prepared to make the time and I was keenly aware that, you know, everybody on the commission. You know, most of the people were former academics and I, you know, lead an organization that litigate before the court. So I it was tricky. But I strongly believe. That we should fight. For the court. Not for the individual justices before the court. I will not make it easy. I will not go quietly into that good night and say, you can have it. It’s all illegitimate. I won’t. I think we should fight for it. I think we should fight to have a justice is the kind of justice system that we think is really just. And I think we should fight to strengthen the court and all of our political institutions and certainly our our legal institutions, the rule of law is a key component of any healthy democracy. It just is. And as a result, lawyers are. Tasked with upholding the rule of law and have more power, perhaps than they deserve than we deserve. I’ve always believed that we are thrust into a leadership role that sometimes is undeserved, but that’s the way it goes. And it’s not just in this country that’s around the world. So for me, you know, and everybody’s got caught, everybody’s got a High Court. This is the one we got. And we need to figure out how to make it worthy of a healthy democracy that purports to lead globally. And that is at the top of protecting the rule of law in a country engaged in an experiment that no other country has taken on in this way. And certainly no other country has successfully accomplished. That’s the task. And so I’m not going to participate in throwing up my hands and saying, you know, and therefore there’s no court and we don’t pay attention to the court. No, no. I also believe as a civil rights leader and a black person, that there is no forum received. Seat, I mean, and. We have to show up everywhere. People who say, like, we’re just not going to vote, no, I don’t think that’s that’s the way, either. Listen, there’s a lot wrong with our political system. Do I think that therefore people should just say, you know what? It’s all corrupt, so I won’t vote. No, I actually don’t. I think that we have to participate and try to make that better. Every forum where power is exercise that will control the destiny of black people in this country, not to the exclusion of us engaging in our own imagination about what we want to build in and strengthening our own communities. But we don’t have the luxury of ceding any of these fora where we have the opportunity to protect, defend and expand the rights of the people that we represent. And the Supreme Court is, you know, is among them. So I wanted to join the commission in order to to play a role. And as I said at the last commission meeting, there were two things that were super, super important to me. One was. That I believe this is a process. However, we’re going to think about changes to the court. And I think people are legitimately thinking about a range of changes that don’t just have to do with expansion, in fact. I was actually quite interested in in many of the other aspects that we took up on the commission and the shadow docket and views on all that stuff and things I’ve been writing and talking about for quite some time because I think those are very important issues to those of us in practice before the court. So that seemed really important, and I was happy that the commission was prepared to take up some of those issues because it is all about legitimacy. And how do you make it better? There’s no workplace that’s not trying to be better. We just went through a whole strategic planning process at L.A. and other workplaces do the same and they have policy manuals and they’re updating things, and the High Court can’t be just free from any review. And the idea that some commissioners suggested that we might be taking a dig at them, that we were basically ourselves undermining the legitimacy of the court by suggesting changes is, in my view, just not. It’s just bunk. That’s just not what you do in a democracy. Every institution in the democracy has to either subject itself to rigorous review and change or be subjected to rigorous review and change. And I’ve been saying that about the legal profession, for example. The second reason I wanted to join was because I knew it would be as it must be, under the rules of FATCA as a commission that had disparate people with disparate views on it. And given what has happened the last five years in this country, I actually wanted to participate on a commission where we were united as lawyers in a sense of professional duty to see if we could have these hard conversations and create out of that something that we all could stand behind. That was extremely important to me. So I’m glad that I did it,

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S1: and I feel like maybe this connects up Sherrilyn your answer about being visible and being pro truth, because the last time you were on the show you talked before, it was cool to talk about the shadow docket, which happened this fall. You were saying exactly what you just said as a civil rights attorney. The only power I have is to create a record and for a district court judge to create a record. And that gets wiped out. And that really, really kind of resonated, I think, with a lot of listeners who couldn’t understand quite what the problem was. It seems to me that being visible criticizing the court has in some ways led to some changes, whether it was, you know, Justice Alito giving the speech about the shadow docket isn’t bad journalists or bad bracket that. But, you know, moving up SB eight to the merits docket off the shadow docket. It feels as though it’s not entirely a fanciful thing to say. The court actually responds when we are visible and critical and that that isn’t terrorism. We’re not in in any way trying to intimidate or terrorize the court. We’re just trying to be seen. And it feels like that’s a theme in what you’re telling me today is that we have an obligation. And by the way, the court response.

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S2: Yeah, and whether even if they don’t respond, we have an obligation to say, look, we are lawyers, and so we’re in this thing in this profession, and most people don’t understand what the components are, how it works or what, you know, as you said, what a shadow docket is or, you know. But but it’s our job to explain that, to explain to the public what the problem is, right? And what I was expressing in the last show is you got I give you the chance to be me because we have to explain to our clients right why a 192 page decision from a district court judge in Alabama in which our clients make this powerful testimony about why they can’t comply with Alabama’s absentee voting law that requires them to engage with all these people during the COVID pandemic, and they are black people who have particular disabilities. Why that gets wiped out. Why it doesn’t exist anymore. Why there could be a decision that quoted them saying my ancestors had to risk their lives to vote. I don’t think we should have to do that anymore. It’s quoted, right? And it just disappears. I think Justice Sotomayor for reviving it and for including it in her dissent. But we have to explain what happened to that thing, it’s just gone. So I’m inviting people to join me in thinking about the shadow docket in that way that we put a lot of work into preparing a case nonetheless during a pandemic. You know, my the lawyers at LDF are people to. Most of them have young children. They’ve been home schooling as well. They had to learn how to prepare witnesses, how to enter exhibits. They had to do all of that by Zoom. And quickly we shut down in March. Our first trial was in April. That was the trial involving. The Florida formerly incarcerated voting rights issue, we didn’t complain, we just did it. But what we had to figure out how to do it, and we did it and we made that presentation. And so we owe it to people to explain, well, what happened to that. It’s just it just evaporated into thin air, like it didn’t happen. So, yes, I’m going to speak to that, and yes, the court needs to understand. Because they are lawyers, they are part of a system, they’re not just these separate nine people that exist somewhere. They are part of the ecosystem of our profession and each of us have obligations that run up and down the profession, and they should be concerned about a process that does not allow people to feel heard. That does not allow people to understand decision making. That makes people feel a sense of disrespect, that it makes people feel that decisions have been made, perhaps too hastily. That disempowers the ability of lawyers to present their case as leaders of our profession. They should be concerned about that, and it’s our job to make that apparent to them because perhaps they don’t know. Some of them never practice. Some of them never represented marginalized communities. None of them ever practiced in a pandemic, you know, so like, it’s our job to make those things plain. And yes, I do think that there are occasions when they do respond because there are ways that they can be better. They are not perfect. And it doesn’t mean that you’re burning the whole building down to say here are the things you need to understand are deeply problematic and that you can do better. Now that’s separate and apart from the outcome, the decision making about the actual cases themselves, that’s about the process. And remember, I taught civil procedure for 20 years again, naively embracing the Robert Kovar line. That procedure is the blindfold of justice. I really believe that, you know? And so I do spend a lot of time thinking about the ways in which procedures inhibit a sense of fairness and justice.

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S1: Sherrilyn, I I want to give you a chance to talk about voting, partly because it’s one of the things you think about, most partly because if you and I are descriptively correct that we are in a messaging war. It sometimes feels as though we’re fighting the last war. We’re not talking about vote suppression bills anymore. We’re talking about elections subversion. We’re talking about throwing power to state legislatures. We’re talking about limiting the power of local election officials. All of that in tandem with what you opened with, which is kind of a campaign of terrorizing state election officials. And I guess I wanted to give you a moment to just talk about. The extent to which folks may not quite appreciate that we’re not just talking about throwing out absentee ballots anymore, we’re talking about what feels like the architecture of something much more profound. And I guess if you can talk a little bit about a whether we’re catching that. I’m sure the media is failing to fully catch that. And B, what you’re thinking about it. LDF in terms of really big election subversion, which is profoundly different from voting rights.

S2: So, you know, Dahlia, you mentioned at the top that I’m writing this book about America’s embrace of white supremacy. That’s actually kind of in some ways, not just what the book’s about. It is it is a book about the stalking horse of white supremacy, because what we are seeing at this moment, you’re quite right that things have accelerated. But the signs are always there, and it is whatever is happening to marginalized communities. And so you’re right that we may be fighting the last fight, but this is a lesson worth learning. There was not a lot of interest when the target was black communities in the south, in red states, not in swing states. Right. And I joined LDF as a voting rights attorney in 1988. So obviously not a new problem, right? There hasn’t been a lot of focus on it. And what always happens is that what has been workshop on the minority community is accelerated and transformed for a larger power grab. So I want to first acknowledge that because I’m not willing to allow the media, political leaders or anyone else to bypass the fact that we were ringing the damn alarm bell for more than a decade. Those of us who sat at panels having to deal with Hans von Spakovsky over the last 15, maybe 20 years talking about voter fraud, right, and the proliferation of voter fraud. You know, we’re pretty pissed, OK, because we tried to explain that this illusion was quite deliberate and was a deliberate misinformation campaign to give them license to do whatever they wanted to do to the election system so that I want to make sure I laid that foundation first. But you are absolutely right. What has now become clear is that having been allowed to create the platform and the apparatus of voter suppression targeted at minority communities, that apparatus was in place, including the the myth of voter fraud, right, which had been workshopped and developed to limit voting for the communities I represent now was as one justice said in Korematsu, lying about like a loaded weapon ready to be used for this ultimate power grab. And that is what we have seen happening. And you’re right, it is an effort to subvert democracy at its very core. Elections are inconvenient. It is once again a response to 2020. It turns out that we do mobilize. It turns out that we do know how to vote. It turns out that we can, that we do have passion and enthusiasm, all the things the media likes to say. That’s not true about progressive people. They don’t vote. They don’t turn out. They don’t do this. They don’t do that. Actually, we do what we did. And the only answer now, because now the demographics suggest that they will not be able to control the outcome of elections without significant help is to hijack the very election system itself. Right. And that’s why I keep referring to January 5th. That was more traumatic for them than I think people recognize. And the only way to win that, there’s a reason why this starts in Georgia. The only way to win is to hijack the system itself. What Trump then did and this has been his greatest threat to our democracy, is that he has demonstrated that you can do whatever you want and people will generally be too shocked to stop. That in general, people will be too shocked to stop you and say what you’re going to do and say it out loud and people won’t think that there’s something wrong with it. And he has removed the velvet rope. That, you know, used to separate what you could do from what you couldn’t do. But that begins with the Supreme Court in the Shelby County case, because it was the Shelby County case that basically removed the apparatus and infrastructure, that a bipartisan Congress recognized in 1965 and again in 1982 and again in 2006 would be necessary. To hold our democracy, I always refer to the language and section in the in the Senate report, the Section five of the Voting Rights Act in 1965, in which the Senate report they say that the purpose of Section five and the pre-clearance provisions was to address not only discrimination happening contemporaneously, but what they called ingenious forms of discrimination that would happen in the future. Even they knew in 1965 that they would that particularly southern states would continue that white supremacy was going to keep coming up with new methods. That’s why when Justice Alito writes the Brnovich decision. Well, this isn’t something they ever thought about. Now let’s talk about whether it was in position that they knew the senators knew the people who are responsible for actually writing statutes, not the Supreme Court. They knew and they deliberately created an apparatus that would get at those future, ingenious forms of discrimination. Listen. Not even in 1964 had they thought you couldn’t give water to somebody standing on line, right? It took us getting to 20 20 for that Jim right to to come up in the south. But they knew they wanted to protect against whatever might be those methods.

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S1: Sherrilyn. I think I want to land where you started, which is on empathy because it feels like when we’re scrabbling around for our superpowers right now, you are really holding fast to something that I think matters. And I’m thinking of a speech you gave in 2020 when you describe, you know, the country as being in a perilous moment. And then you said that Dr. King would talk about forcing the tension to the surface and that under the surface, beneath the veneer of civility. This has always been there. Yes. And I love that as emblematic of so much of the work that you’ve been trying to do, which is say, this has always been us. Now we can all see it. That’s what you’re talking about in terms of the George Floyd protests. It’s also, I think, what you’re talking about in terms of how we vote. It is certainly what Carol Anderson has talked about with us in terms of how voting has always looked like this if you are a person of color. This is what gun rights always look like if you are a person of color. And what I want to sort of challenge you to to to lead us into the new year with and there is no one better to do. It is that it feels to me sometimes as though the last few years what has really fallen away is some of the capacity for empathy. As you said, we’re exhausted. We are homeschooling our kids. I am, as it turns out, really spectacularly bad at long division. What do we do when we just feel like we’re in a blender and the capacity? And as you say, teachers who are trying to teach this material are not just being told that by law, they may not, but terrorized in their classrooms. Help me think through where we find it and where we build it.

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S2: So, you know, Dahlia, I think the first thing is that we have to acknowledge and receive how exhausted we are. We made it through. Essentially an authoritarian presidency. That none of us were prepared for. And and we did make it through and we showed up. Those of us who believe in democracy showed up. So powerfully. Over those four, four years, I we’ve never even we didn’t have a minute because of January six to actually acknowledge what we had done. That we kept this democracy alive. And we just haven’t had a chance to do that assessment. And so that’s part of our exhaustion is we feel like we’re just working, working, working and we haven’t taken a moment to recognize how bad ass we really were. There were many who were not. There were many aspects of our government and life and profession that did not hold themselves in glory. But there were enough of us to hold the thing together. So that’s powerful, and we need a minute to acknowledge that and apparently not going to get one. We’re going to have to just keep going. But that doesn’t mean that that we don’t individually get to rest. I’m really a believer in this. I did something I’ve never done before. In March, I closed LDF for a week. You know, it wasn’t big, he wasn’t anybody’s vacation time. We just need to take it on the chin. We’re just too tired. And, you know, we had to keep going, and so we just shut the office. And if you could, you know, some people couldn’t take it because they had a litigation matter would have you got five days and you had to take them by April 30th. Everybody’s got a rest. So I believe in that. I believe in catching your breath. But I also believe that going back to the surfacing of the tension, the only way we are truly going to transform this country is if we face and confront. What is true about it? And that’s the book I’m writing. Those of us who live or work with communities and people who live at the margins and at the bottom have been have had a bird’s eye view of the cracks in the foundation of American democracy. Listen to us. And let’s find the way to rebuild that foundation, not to just repair it and spackle, but to rebuild. And I don’t even want to say rebuild because some just need to be built that were never built properly. We have a chance to make the country that we wanted. We are crying the blues because, you know, life’s been around for 80 years. So when was when more things great, you know, 20 years ago, 30 years ago, 40 years ago? Of course, we are in a different because democracy itself is threatened and we have an obligation to fight for it. But we have an obligation to fight for the world that we always wanted. Not the one that we were struggling against for decades. So this is also an opportunity. And what we have to sit with Dahlia is it doesn’t feel good. It feels awful to have the tension surface because you have to look in the eye of the country that you live in. And you have to sit where we sit and you have to see how awful many aspects of our country are. Even as there are aspects that are beautiful and worth fighting for, so we have to get comfortable with the discomfort. And this is our moment. You know, the civil rights movement lasted 10 years, maybe 15. If you take it all the way from Brown, let’s say, to 1968, that’s 14 years. You did it feel good, did it feel good when those kids were blown up in the church in Birmingham? Did it feel good? You know, we love these heroic stories and these pictures walking across the bridge and it’s so really I mean, the whole thing started because Jimmy Lee Jackson was killed by a law enforcement officer. Did it feel good? The amount of people who were beaten and who were terrorized? It didn’t. It didn’t. But they created out of it something beautiful and powerful. And what we hoped was enduring. Now it’s our turn. So we’re in year five. OK, well, maybe it’s 14. You know, maybe 15. But you know, this is this is our time and we’re doing it for those kids who your kids who may not be adept at long division because they were home schooled, but who sure will be adept at empathy and democracy and humanity and public goods and participation and engagement and science that that’s what we’re doing it for and we’re doing it for their kids. So this is just our time, and the question is, are we good for it? You know, are we are we good for it? I ask myself that question because I’m tired as hell, but I every morning I wake up and I’m like, Yup, I’m in. You know, because we don’t have a choice. I guess we do have a choice, but only if we have decided that we would like to live in an authoritarian regime. I would not. I would not like to live in a place where elections don’t matter. I would not like to live in apartheid South Africa. So we fight.

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S1: Sherrilyn Ifill has been the seventh president and director counsel of the NAACP Legal Defense and Educational Fund. She is stepping down this spring, and she’s working on a new book for Penguin Random House, which will publish in 2023. She has also been just a north star and just beacon for me personally. Sherrilyn there is no one I wanted to ring in 2022 with more than yourself. Thank you for your time. Thank you for your work.

S2: Thank you for what you do. Dahlia This platform is just, oh my goodness, it saves me many a week. So thank you so much and happy

S1: to be here. Happy New Year! So here we are. Mark Joseph Stern Dahlia Lithwick Backstage New Year’s Day Year in review. I got nothing. Mark. Happy New Year!

S3: Hey, happy New Year! This one is going to be a good one, right? That’s what everyone is forecasting.

S1: I think it’s going to really be. Maybe 2022 is really shaping up to be. Wait for it, huh? Awesome.

S3: OK, so very convincing.

S1: Let’s. I thought in our time together. Sherrilyn Ifill, having just told us on the main show that things are going to be hard, we might look back at 2021 and just think about some of the highlights, the lowlights, what we’ve learned. What’s changed. And it seems to me that when I think about our conversations every two weeks for the last year, one of the things that has really changed is our conversations about the U.S. Supreme Court. Then in the course of one year, we are no longer entertaining fencer for three three three caught. Not that you and I were ever doing a lot of three through three court, but you know, Kavanaugh Barrett as pumping the brakes. Maybe this is a seven year plan. Maybe it’s a 12 year plan. That’s changed, right? I think we’re now at the point where we can say with some confidence, it’s a six three court, except for when it’s a five four court and Barrett and Kavanaugh are presented really differently last winter than they are presenting right now.

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S3: Yeah, absolutely. The mask is off. They’ve shown their cards. There are five justices eager to make the ultra conservative Republican revolution happen as fast as possible, and I think it’s worth noting that a few of those judges, Thomas and Alito, were on the court when Scalia died and set back a lot of big jurisprudential moves by several years, including busting up public sector unions. You know, that goal ended up being pushed back by two years because of Scalia’s death. And so I think if we see Thomas as kind of the ringleader of this new ultra conservative five justice majority, he understands the cost of waiting and the cost of going slow. And he seems to be pumping the gas. And I do not see Kavanaugh and Barrett tapping the brakes in any kind of meaningful way anymore.

S1: One big thing, Marc, that you and I were talking about in the late winter, early spring of 2021 was the shadow docket, and that also really exploded as a news story, at least in the mainstream press around September, when we saw a bunch of shadow docket orders and then pushback specifically from Justice Alito, who said we were making it all up and overreacting. But I wonder if you have some sense that that big national kerfuffle and scrutiny around the court doing these late night, unsigned, inscrutable orders and then saying they had some precedential value? If that conversation kind of happening in the light as the court term opened has meant that the shadow docket at least has calmed down in the intervening months.

S3: I think it has calmed down a bit. I think that some of the justices were probably a tad spooked by the public backlash, though perhaps they’ve recognized sense that Congress can bark, but it can’t really bite. And no matter how many hearings Democrats hold, they’re not going to pass a bill reining in the shadow docket. But I also think that the SB eight saga the whole arc of the Texas abortion ban showed the Conservatives and showed the world that the Supreme Court can be just as insidious and hawkish and gas lady in the bright light of day. As it can be in the shadows, right, because we had the court in early September allowed the Texas vigilante abortion ban to take effect. Huge amount of outcry. Backlash Suddenly, the court seems to kind of spin on its heels. Say, OK, we’ll schedule these cases for arguments will issue a real decision. And what does that decision say? Pretty much what that original shadow docket order said, in more words with more gaslighting. So I think, you know, the shadow docket kerfuffle might be seen in the future, less as a defining moment of like court procedure and more as an indicator, a red flag, a warning of what’s coming. And once the justices dip their toes in the water and realize they’ve got away with it, it was time for them to just leap in.

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S1: So Mark, this brings me to another big conversation you and I were having in the fall and winter of last year, and that is just voting rights. And I think there’s a story that we like to tell about the 2020 election and the months that followed, which is, hey, the court could have intervened. Donald Trump was certainly counting on the court, intervening the more we learn about the Jan. six conspirators and the legal architecture of it, the more it’s clear that they hoped the court was going to step in. The court opted not to step in. One story that’s told is, Well, this shows that the court really held as an institution that it saw that it was losing battle and didn’t want to get involved in the 2020 election. You’ve been tracking voting rights long before and long after the 2020 election. I think your view is probably more nuanced than the grandiose notion that the court system just really held. And that’s the Supreme Court took a strong, strong stand in favor of rule of law and the sanctity of the vote in 2020. It’s trickier than that, right?

S3: Yeah, it’s much trickier. It’s much worse than that. And as we’ve discussed on this show, I mean, the fundamental problem is one of framing and comparisons because, you know, if I filed a lawsuit saying that my beautiful dog, Lucy says that Joe Biden lost the election and that the Constitution requires every state legislature to appoint their electors to Donald Trump. And I filed that at the Supreme Court of the United States, and it was turned down. No one would say, Hey, look, the Supreme Court turned down this attempt to reverse the outcome of the election and give Donald Trump a second term. They’re so moderate, they’re so independent, they’re so principled. The lawsuits that were filed to try to overturn the election were equally frivolous, and I want to be clear about this not almost as frivolous or in the same vein as claiming that my dog says that the Constitution requires that Joe Biden win the election. They were on that level. They were outrageous, ridiculous, stupid, embarrassing, humiliating nonsense about the ghost of Hugo Chavez, you know, inhabiting voting machines in Georgia and secretly flipping votes. They were ridiculous to the extreme, and the Supreme Court had absolutely no choice but to turn them down. The Supreme Court and the lower courts were never going to entertain these absurd suits. And yet, when the Supreme Court in the lower courts turned them down, the judges behind them, including Trump nominees, got resounding applause in the mainstream press. Got a huge amount of praise. Were were praised by even some liberals as kind of evenhanded and independent. And for the last year, we’ve been hearing this narrative that because the Supreme Court didn’t overturn the 2020 election, it must be a neutral arbiter of law. That is such nonsense if we look at what’s happening on the ground. The Supreme Court gutted section two of the Voting Rights Act after dismantling Section five. It’s basically impossible to prove that a voter suppression law is a legally racist under the Voting Rights Act now. That was the Brnovich decision. The court over and over again prevented judges from making voting easier, even just a little bit easier in light of the pandemic. Four justices on the court endorsed a radical and far reaching theory that state legislatures have loan power over federal elections and that state courts, governors, secretaries of state election boards, all of them are powerless to regulate elections, which is basically just kind of a blank check for state legislatures to hand elections to Republicans. And the court is teeing up a lot more to come, I fear, particularly with regard to this independent state legislature doctrine. I think that the Supreme Court is preparing to allow state legislatures to steal the presidential election in 2024 by just appointing their electors to the Republican, presumably Trump. They’ve already set the table for that. The feast is coming, so I think the narrative about the core and voting rights has been all wrong for the most part, and it is very dispiriting to me that we’re sitting here entering a new year. And if you ask your average person on the street, they would probably say, Oh, well, the Supreme Court didn’t flip the 2020 election, so we can we can trust them to be good guys.

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S1: Yeah. And I think it’s important for folks who are not watching elections and the machinations around elections to really make the point that we are seeing the groundwork laid for exactly that kind of 2024 intervention by the court. In other words, as we all sit here and say, Hey, the systems held, we are seeing state election officials hounded out of office. We are seeing neutral state officers stepping down and replaced by really partisan new election officials. And we’re seeing states passing laws that shovel powers to state legislatures and all that is happening kind of to reverse engineer what you’re describing as a push to entrench the power to oversee elections in the states. And that’s all happening, and we’re not really fighting that on the ground.

S3: No, we’re not doing anything about it. If you if by we, you mean people who believe in democracy and pretty basic tenets like one person, one vote and fair access to the ballot, there’s not a lot of Democratic pushback against this stuff. Now I want to be clear when Democrats win try factors in states they have been promoting and expanding voting rights in really meaningful ways. Look at Virginia. Before Republicans took back part of the government, Democrats really dramatically expanded access to the vote. And guess what happens? A lot more Republicans ended up voting and Republicans won the election. So anyone who claims that Democrats are trying to rig elections for themselves should just look at the results in Virginia. To see that expansion of voting rights is not a partisan issue, or at least it shouldn’t be. It’s not something that unilaterally helps Democrats and hurts Republicans when more people vote. Often, Republicans end up winning. But yeah, Democrats are not pushing for secretaries of state to stay in office and continue to fight crazy Trump’s claims of voter fraud. They’re not trying to hold the line on election boards and canvassing boards, and all of these little tiny commissions and bodies that actually do the bread and butter of tabulating ballots and making sure elections are run correctly. And in the meantime, we have these courts that are basically trying to abolish those election boards and, you know, claim that the state legislature and only the state legislature can decide who votes and, more importantly, who won the vote. And I think if this all sounds kind of confusing, maybe that’s the point. The goal here could be to muddy the waters to a sufficient extent that if there’s a close election, the federal courts and the Supreme Court could say, Well, you know, Georgia didn’t really follow the rules written by the state legislature. The County Election Board changed them at the last minute. So we’re just going to kick this to the state legislature or bless the state legislatures decision to to call Trump the winner. Those are the kind of futures that I think you and I are seeing in our nightmares. And it’s not something that it seems like the Democratic Party is particularly upset about or focused on.

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S1: And before we move away from this, I wonder if you see a through line in the past year in the rise of what I’m calling vigilantism, but maybe that’s. To phrase freighted a word, but certainly the language of everyone is a law unto themselves, and you can trace that to the Kyle Rittenhouse verdict. You can certainly trace it to the architecture of the SB eight law, but it feels that also the Jan. six insurrectionists who just felt that they had a green light to storm the capital. And I wonder if. I guess what I’m getting to is if we’re seeing a massive distrust of systems, a massive distrust of government, a mistrust of election results, I mean, if that’s the chaos you’re describing that it seems inevitably and tragically that the court and its willingness to put more guns in more hands by this July is linked up with that and that this rise in citizenry that feels that it can take the law into its own hands would be terrifying. But it’s much more than terrifying if they have guns in their hands when they take the law into their own hands and in my being despairing, or is there no connection there?

S3: I think there’s a connection. I think it’s somewhat abstract if you can kind of tease it out in different ways. One way to look at it is that the conservative legal movement has broadly adopted a kind of fair-weather libertarianism where conservative judges, conservative lawyers, conservative politicians who are all part of the same blob these days and working toward the same goals. They distrust government, but only when government is trying to promote a common good right. So if the government is trying to diminish violence on the subways and in the streets. This strand of thinking will say Absolutely not everybody needs to have guns. But if the government is trying to, you know, ban abortion, then this strain says, we’ll step back. You know, we got to let them try to do what they want to do. You know, this is the will of the people expressing itself when the will of the people expresses itself by trying to protect communities from mass shootings. Well, that’s just too damn bad. That’s not something that the people get to do, but when the will of the people want to protect. I don’t know unborn lives. By forcing women to carry their rapists pregnancies to term, then that’s a legitimate aim for government. And I think this kind of inconsistent, hypocritical view of what government can and cannot do is becoming entrenched in our courts, and it’s manifesting itself in a very explicit way in these COVID decisions, where you have mostly Trump judges issuing these increasingly anti-vax decisions that not only say the government has no power to require people to get vaccinated or to require that employers have their workers vaccinated, but that actually the vaccines don’t even work, that the vaccines are dangerous, that they’re useless, that they don’t prevent transmission, that you know, they fade away too quickly to have any impact. We are seeing these claims being pushed into judicial opinions, and I think that the takeaway from that is it’s every person for themselves. It’s you decide what you want to do. You know, maybe you should go buy a gun and go to a riot and shoot people. Maybe you should refuse to get vaccinated and refuse to wear a mask and go out and do whatever the hell you want. Maybe, you know you decide, because that’s what real liberty means. Is you making decisions by yourself that might imperil many other people, but their lives are discounted and just don’t matter. And that’s the kind of philosophy that I see rising to the top of the federal courts these days. And so I think vigilantism is one way to put it. It’s just a complete diminishment and erasure of the common good of common interests in favor of a kind of extreme and selective individual liberty that promotes violent and selfish resolutions of conflicts over the kind of democratic compromise that has prevailed in the past.

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S1: And there’s maybe one more strand to break into this, and then we’ll talk directly about the COVID cases that are racing to the court. But that has to be religion. And I think one of the big themes of 20 21 that you and I have come back to is the ways in which religious liberty is massively expanded. In some part because it happened on the shadow docket, we didn’t entirely clock it and in some part because it happened on the shadow docket. We don’t entirely know what it means. Stay tuned. But that religious liberty is getting braided into this theory of the case that you’ve just laid out about self-help and mistrust of government. And I’m really mindful of the language in the COVID cases. Not just of some of Trump judges who really believe that religious animus is somehow leading state public health officials and governors to seek to vaccinate people, that there is a religious threat here that. Initially, when you just look at this as a public health question makes no sense, but it’s been threaded through all along that COVID was going to be bound out with a sense of religious liberty initially in terms of the limits on people gathering. But now religious liberty claims that are being made around COVID. And I wonder where we put the prong of this that is religion in your kind of schema that you’ve laid out of how we think about freedom now.

S3: I think religion, ironically, which is often in practice about promoting some kind of collective good, is being deployed as a weapon in the courts to demand atomistic individual liberty at any cost. And I think a great example here, as we’ve written about, are the Gorsuch opinions arguing that vaccine mandates for health care workers are unconstitutional if they lack a religious exemption. And essentially, while downplaying the risk of COVID, which all of these opinions do, claiming that it doesn’t really matter if religious objectors going unvaccinated makes the pandemic worse. It doesn’t really matter if the state can’t meet its vaccination targets by allowing religious objections. You know, at the end of the day, an individual’s personal belief that God won’t let them get vaccinated has to prevail over all other considerations. And Gorsuch makes this point by comparing vaccine objectors to schoolchildren in the 1940s who were Jehovah’s Witnesses and didn’t want to say the Pledge of Allegiance and comparing those as a kind of one to one analogy and saying, just as we recognize that those children had a right not to say the pledge back then, today we should recognize that religious objectors have a right not to seek the vaccine and not even acknowledging that refusing to say the pledge harms no one while refusing to take a vaccine can literally kill patients. Because we’re talking about health care workers in these cases, it’s not a broad mandate. It’s specifically about people who are working in hospitals. And so I think that just shows how again, to Gorsuch and Co, the individual’s belief trumps everything else. It prevails over all other interests. No, none of those people matter. None of none of the lives that could be saved by this mandate matters. Or the only thing that matters is that the individual who says God won’t let me get vaccinated can keep her job and refuse to get vaccinated and pass on COVID to her patients. Because that’s what God wants, and that’s what the First Amendment requires.

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S1: And maybe before you lay out the COVID cases that the court is poised to hear, it’s worth saying that the Gorsuch dissent that you and I wrote about a few weeks ago commended the agreement only of Clarence Thomas and Samuel Alito. It’s not clear that there are four or five justices who are willing to kind of posit that this is strictly a religious liberty question with some ancillary public health issues. Do we think we get to four or five in the coming weeks and months?

S3: Well, you know, I’ve been dividing these vaccine cases into two different buckets, and I’m a little bit more optimistic for one bucket than the other. So for the religious liberty objections, I am somewhat optimistic, cautiously so because Kavanaugh and Barrett and certainly not Roberts, none of them have signed on to these insane dissents that that Gorsuch has been issuing. And so that suggests to me that at a bare minimum, there are a few conservatives who aren’t ready to dive into this idea that one person’s religious beliefs prevail over everyone else’s interests and not getting COVID. But for these other vaccine cases, the second bucket which involved federal mandates, I’m really worried about those. And there are two cases pending at the Supreme Court right now. One involves Biden’s employer vaccine mandate, which requires employers of more than 100 people to either require vaccines or weekly testing, and then another that requires Medicare and Medicaid providers to impose vaccine mandates quite broadly. Both of those those mandates are before the Supreme Court. They’ve been challenged. They’ve been attacked in the lower courts by kind of manic Trump judges, who once again did not even consider the benefits of these policies. It’s pretty extraordinary how they just erase all possible upsides of vaccine mandates. And I don’t know how the court’s going to rule, but I am very worried that the court will seize on these cases to destroy the administrative state and to destroy federal regulations, and to say that while Congress didn’t allow this and so we’re not going to allow it and to read public. Health statutes really, really narrowly the way they did in the CDC eviction moratorium case and seize upon these to really limit Biden’s ability to fight COVID with the tools at his disposal. So that is frightening. Not quite as frightening as saying anyone can refuse a vaccine because God told them to. But still pretty alarming, and we’ll have really bad downstream consequences for this pandemic.

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S1: So it’s pick your poison. We’re either going to see a continuing contraction of the power of the administrative state or a continuing expansion of religious liberty, depending on which of your two buckets you’re looking at. But both of them are very, very long term projects that we certainly, I think, can agree that five and maybe six of the current justices on the court are at least in principle on board with some version of either of those two ideas.

S3: Yes, and in a perverse way, COVID has accelerated the takeover of those beliefs in the federal court because it’s given Trump judges so many new vehicles to impose those beliefs in that ideology and to enshrine it into law. Because, you know, lawmakers are using whatever tools they have at their disposal to try to stop COVID. That gives Trump judges an opportunity to take away those tools and say, Actually, you can’t use these now, you can’t use these ever. And that is what really frightens me.

S1: Let’s talk about some good news, which is the breakneck pace at which Biden is seeding judges a very, very impressive numbers being clocked. And I think huge plaudits on the diversity, the work experience, diversity, the real effort to see judges who not only look like America but also have more than one kind of resumé. What’s your feeling about what I think is a really substantial effort on the part of the Biden administration to see judges quickly and effectively?

S3: I mean, all gold stars here, right? I think we have to say that amidst the gloom, this has been an extraordinary bright spot. Biden has gotten 40 federal judges confirmed in his first year, which is more than any president since Reagan. Unfortunately, unlike Reagan, he hasn’t had a chance to appoint a Supreme Court justice that may well change in the coming months. But but as you said, you know, the faces of these judges, their backgrounds, their experiences, all of that is so dramatically different from the past. So 75 percent of Biden’s nominees are women, 65 percent of them are people of color. He has nominated the first Muslim-American federal judge, the first openly LGBTQ woman to serve on a Federal Circuit Court. The first black woman to serve on the Ninth Circuit. We could go on and on with these superlatives. A huge number of these judges have a background, either as public defenders or as consumer advocates or as civil rights advocates. The kind of people who really work to make equal justice an actual a goal and a reality, rather than an abstraction that will never achieve. I just have nothing but praise with regard to the people he has nominated and gotten confirmed. I will add one little footnote here, which is that when you look at the people who are getting on this list, civil rights people, voting rights people, you know, the bread and butter of the progressive legal movement. You notice a big absence and that is reproductive rights advocates. And I think that’s a huge problem for a couple of reasons. I mean, one is just it would be great to have reproductive rights advocates on the court bringing their experience and their knowledge and wisdom on this issue to the federal judiciary, but also with court nominations, a party kind of helps to guide the new, younger generation of lawyers into careers, right? The party tells the new generation. If you focus on this issue, you may end up on a path that culminates in a federal judgeship or at a bare minimum. Your work will be rewarded, and it won’t be an impediment to you getting a federal judgeship. But right now, it certainly would look to me if I were starting off like advocating for abortion rights is an impediment to getting nominated even by a Democratic president, and that is a problem because there is a huge asymmetry here. Trump repeatedly nominated judges who said that abortion was an abomination who compared Roe v. Wade to Dred Scott, who said that ending abortion was basically their number one goal in life. And they got elevated to the bench. So people who hate abortion, they were incentivized for four years to keep fighting reproductive rights as much as possible. Now Biden’s in office, and we don’t really see Democrats encouraging and rewarding repair rights advocates on the other side of the issue. So that’s just my one sort of caveat. I think that that might change. When the legislative agenda is completed or falls away and and the Senate focuses more on judges, maybe Schumer just doesn’t want to be having these fights when he’s still trying to pass major legislative packages. But there have got to be some real repro rights champions on the upcoming list of nominations or a new generation of lawyers will internalize the lesson that advocating for bodily autonomy is a poison pill for the federal judiciary.

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S1: And it’s so interesting because that’s the same asymmetry that has played out over so many of our conversations about reproductive rights this fall mark, where it’s hard to imagine any other right that could have been stripped away from about 10 percent of the population, as we’ve now seen on over 100 days in Texas. And it just treat it as a kind of third rail. Oh, well, you know, I guess the women’s groups will handle this, and it does feel like that enthusiasm gap or attention gap or serious sober reflection gap that you’re describing in the Biden judiciary also feels like it’s been really manifest in the response to what has been a catastrophic stripping away of rights. If you think that the reproductive rights of 10 percent of the population really matter.

S3: Yeah, it’s appalling. It’s a third rail. Democrats are facilitating bad faith Republican efforts to keep it that way. And we can only hope that the New Year brings a change in in the backgrounds of some of these nominees.

S1: And now mark speed round of all the incredibly gruesome topics we’ve just discussed. So that’s voting religious liberty, guns crazed vigilantism and the end of the administrative state. What is the thing that keeps you up at night?

S3: It’s got to be reproductive rights, I think, and the looming end of Roe v. Wade. But I just want to say one thing about this that’s maybe not completely nihilistic, which is the Supreme Court’s almost certainly going to overturn Roe. Half of the states will ban abortion by the end of this coming year, by the end of 2022. We have no idea how that will affect American politics. No idea anyone who claims they know is lying to you. This will be a hydrogen bomb in the middle of the American political arena of such a scale that we may we may have never seen it before. I mean, it’s something completely new. The abortion war is the politics on abortion have changed. So fundamentally since Roe, we’re flying blind here could be great for Democrats, could be great for Republicans, could be great for democracy, it could be terrible for democracy, could rile people up, could put them to sleep. We just don’t know what’s going to happen. And I think that uncertainty should be at least a very, very small silver lining in the horror of what’s to come. That this issue that has remained so oddly stable for so long is about to get disrupted and flipped on its head in a really terrifying way. Maybe that will be an opportunity for some really great people and some really inspirational leaders to emerge and guide us to a better place.

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S1: I agree. Mark, I think that we have no idea how this is going to land. And I think that the fact that you and I have written a thousand pieces over the years saying the court would not do this before a 2022 election and the court seems poised to do it before 2022. Elections suggests that the court thinks it’s going to be a big net and that’ll be interesting for my Hangover purposes. I think the thing that I continue to worry about is the increased. Language of vigilantism of self-help, and I really noticed that when brew in the gun rights case was argued, not just the deep solicitude the Justice Alito evinced for that poor, poor office cleaner going home on the subway unarmed the solicitude. By the way, there was totally absence absent in any discussion of the poor, poor pregnant people in Texas who could not terminate a pregnancy. But I also really noticed the snark around government licensing officials who only give gun permits to millionaires and rock stars or whatever it was. And I thought, we’ve come a really long way from Heller. The what was the path breaking gun case where the bad guys were, the people who wanted to kill you, who wanted to break into your home and kill you more and more? I’m hearing language from the court suggesting that the bad guys are state actors and whether it’s the governor of New York who wants people to get vaccinated, or whether it’s the guy who gives out gun permits in upstate New York, who’s a bad actor. I really worry that this language, this really poisonous language of the government, is coming to take away your rights and freedoms when that’s coming from inside the house, when it’s coming from inside the court and the court is blessing that language that feels like it is setting the stage for more and more and more Jan. six type interventions. And that scares my face off.

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S3: I’m terrified to now. I can’t feel my face.

S1: It’s the Hangover mark. It’s the Hangover.

S3: Oh, I’ve got such a Hangover from twenty twenty one. And they say the only thing that cures a hangover is more alcohol. So maybe the only thing that’ll cure our twenty twenty one Hangover is more bad news in twenty twenty two

S1: womp, womp, womp, womp. Wow. Mark, is there anything else we need to talk about?

S3: You know, we could keep going all day, but I think that we should just enjoy our new year for now. Revel in the new opportunities and possibilities. Try to block out the fresh hell that’s almost certainly around the corner for a few days and just hope that Stephen Breyer has one one brain cell left that is able to give him good, rational advice and block out his ego for a few moments so he can think about what the country and the Republic need to survive. And that is his retirement.

S1: And maybe this is as good a place as any mark since we are here with our slate plus listeners who have really, really done yeoman’s work supporting the writing that you and I do all year round. And so maybe to end on a slightly happier note to just say to our listeners, Thank you for being with us on every show and thank you for supporting the journalism we do. Mark and I are so, so, so, so grateful that so very many of you want to ring in 2020, too, with us knowing that we’re a little a little grumpy, but that the work that we do matters to you. So thank you

S3: seriously. Slate Plus members are the best people we are so grateful for for you and your support and your questions and your emails, and just everything that you do for us and for Slate. We are really, really appreciative and you are always the bright spot for us in the sea of gloom. So thank you. Thank you. Thank you.

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S1: Thank you. Thank you. Thank you. Have a happy 22, mark. Thank you as ever for being with us.

S3: Thanks, Dahlia.

S1: And that is a wrap for this New Year’s Day episode of Amicus Happy 2022. Thank you so much for listening, and thank you so much for your letters and your questions and your thoughts. You can always keep in touch at Amicus, at Slate.com, or you can find us at Facebook.com slash Amicus podcast. Today’s show was produced by Sara Burningham. Gabriel Roth is Editorial Director. Alicia Montgomery is executive producer, and June Thomas is senior managing producer of Slate Podcast. We’ll be back with another episode of “Amicus in two short weeks. Till then, take good care of your health. Happy New Year!

S4: And hang on in there.