Bonus: Time to Celebrate Some Wins
Pauli Murray, Dahlia Lithwick: This ad free podcast is part of your Slate Plus membership. Hi, and welcome back to Amicus. This is Slate’s podcast about the courts and the law and the rule of law. I am Dahlia Lithwick. I write about those things for Slate magazine, and we are popping in with an extra episode for you this week, just for you, Slate Plus members. And it’s a dispatch from out on the road.
Pauli Murray, Dahlia Lithwick: I was in Los Angeles, California, over this past weekend to talk a little bit about my book, Lady Justice Women The Law in the Battle to Save America. And I was joined by Jessica Levinson in a conversation convened by Writer’s block presents the Beverly Hills Bar Association and the American Constitution Society at the Gloria Kaufman Performing Arts Center. Jessica is one of my most favorite court watchers. She is a professor at Loyola Law School. She’s a legal contributor for CBS News. She’s also a columnist for MSNBC. Our conversation covered a lot of what is in the book from lock her up to the Muslim ban to Dobbs. But we also followed those threads into a whole bunch of current events. So I’m just going to let Jessica take it away.
Speaker 2: All right. I’m not going to fangirl all night, but let me just say what a treat. And you talked about all of these inspiring women. And when I was deciding kind of what do I do with my life? Do I want to go to law school? You were one of the people that I read and I thought, okay, she just gets it. And somehow I stumbled into law school and this particular night and I want to actually begin with the book is selling out. I mean, it’s a bestseller. And I know a lot of people have asked a version of why did you write the book? And I’ve heard you answer that really eloquently, but I would like to ask maybe the flipside of that, which is why do you think that it’s landing so profoundly for so many people?
Pauli Murray, Dahlia Lithwick: I think that everything turned on Dobbs. I think when the Supreme Court reversed Roe in June, the book changed and people changed. And so I think maybe the the super crisp answer is that an awful lot of people. We’re just shocked, completely shocked by Dobbs and woke up in a country they did not recognize as the one that they had taken for granted. And I think for a lot of those people, maybe this book is partly an explanation and maybe more aspirationally, it’s a road map out.
Pauli Murray, Dahlia Lithwick: And then I think that the book changed the book. You know, I started writing it in 2017. It had to be massively rewritten. When Dobbs came down, I had about six days. The thing was already going to the printer, and I said, I got a I got to rewrite big swaths, which I did. You know, tears pouring down my eyes. But I think that for me, the book became, again, some version of it had been a book about sort of celebrating and lifting up all of the women, I think, who were remarkable in the Trump era. It became each of the chapters in some ways had become a canary in the coal mine chapter.
Pauli Murray, Dahlia Lithwick: And so whether you think about the treatment of refugees in Becca Heller’s chapter or you think about Bridget Amiri dealing with migrant teens at the border who were unable to terminate their pregnancies, suddenly everything felt like it wasn’t ancient history. It was very much predicting and foretelling things that were coming. And so I think both of those things happened at once.
Pauli Murray, Dahlia Lithwick: And it also meant that I had to spend the summer rethinking sort of how to talk about the book and how to frame the book, because I had really thought. And this changed a little with January six because it became clear that whatever I thought was over wasn’t over. But I really had to think very, very deeply about what the rule of law that those words that we use all the time, you and I, in our jobs, what it signal going forward. And that really I think both for people who were thinking about that question and me thinking about the book really flipped on a dime.
Speaker 2: The book begins and ends by really profiling heroines of the Trump resistance. And it’s a little kind of biography of a number of different women attorneys, a judge who really, I think are people where we can look at them and say, use the law. I want to ask you about a little bit later belief in institutions. You used political systems. And for me, the book really felt so effective because it profiled this woman. Did you ever think of doing it the other way? Like, I want to I want a chapter on voting rights. I want a chapter on the travel ban. And what I think makes the book so successful and different is that it’s telling those stories through each of these women.
Pauli Murray, Dahlia Lithwick: Every one of the chapters has a small eat your broccoli section. So, you know, there’s a little primer on First Amendment law and how to think about free speech in the Skokie March. Right. Every chapter has that. And I had originally written that as the introduction to every chapter and my absolutely scorchingly transcendently brilliant editor at Penguin and got off, who is just a legend in publishing, was like, Oh, no, no, no, no. Oh, no, no. We don’t start with the broccoli. Everybody knows the broccoli has to be kind of baked into the brownies. And so every single chapter had to get reconfigured because it was really important to me to do the thing you’re saying, which is to root every chapter in some piece of doctrine.
Pauli Murray, Dahlia Lithwick: I think that those of us who explain the courts have a massive burden of explanation that is really different from political reporters, and that if you don’t go back and say, actually these are the two religion provisions in the First Amendment and they’re on a collision course and they pull, then it’s very, very hard to do the work of explaining the issue.
Pauli Murray, Dahlia Lithwick: But at the same time, it was very clear to her that if you lead with that, you lose people. And I think that was right. And so maybe the the elegant response is that we know people love stories. Right? That was that’s I mean, stories and stories about the law are amazing. That’s why the Law and Order franchise has 86 iterations present.
Pauli Murray, Dahlia Lithwick: So I think that rooting it in these stories and also in these characters who are so different, not just, you know, we’ve got like a big law firm lawyer and we’ve got people who work for the ACLU and we have people who are organizers. It was really important for me that every second year law student could dream of being someone very different, but also that their orientation to this question of institutions and the rule of law and how I feel about the rule of law was so different that they all of them had kind of different levels of confidence. And I wanted to tell that story too, because, again, we’ve just landed ourselves in a moment where my particular confidence in the rule of law is not what it was a year ago.
Speaker 2: As you mention, these are very different women with very different views on the utility of the law and the rule of law.
Speaker 2: And we’re going to get into the specifics of talking about Vanita Gupta and Sally Yates. And I want to ask first a couple of bigger questions, which is. Was there anyone in the book, any of the woman profiled where you thought her background story doesn’t necessarily lead her to this moment of being one of the heroines of the resistance? Because a lot of them, to me, the way you made them come alive, their feels almost something like, yes, I can see it in this person. Do you think there’s any either from your perspective or their perspective, where they would have thought, God, I never thought I would have landed in a book called Lady Justice.
Pauli Murray, Dahlia Lithwick: First of all, every single one of the women in this book has written an email to me saying, What the hell were you thinking putting me in this book with these legends, Like every single one of them believes they don’t belong there, which I think goes to this larger point about who gets famous for for being a hero. Every single one of them is like, Thank you very much, but my chapter is insane and can you, like, take it out? Because I don’t belong here, which is a whole gender conversation of its own.
Speaker 2: I don’t mean that anyone wasn’t deserving. I just mean that some people, the moment happens and it doesn’t necessarily look like their life trajectory is coming to that moment.
Pauli Murray, Dahlia Lithwick: I think probably Becca surprised herself. So Becca Heller was, you know, the person who who had been doing this astounding entrepreneurial work on refugees before Donald Trump took office. And she was kind of a looked around at Yale Law School, couldn’t quite figure out why she was there, was doing refugee work, like kind of as a side hustle, probably, you know, unlicensed practice of law to boot.
Pauli Murray, Dahlia Lithwick: And she realized, you know, which is something, by the way, that I realized when I was working with terminally ill kids between college and law school, that more than anything else, they just needed lawyers like more than doctors. They needed lawyers because they were navigating a completely Byzantine system of rules and laws, and they couldn’t access what they needed. It was why I went to law school, and Becca very much realized that refugees needed lawyers more than they needed anything. And so she did this kind of chillingly brilliant thing, which is to hook up student lawyers with big law firms doing pro-bono work to represent refugees. And lo and behold, if you had an attorney, you’re exponentially more likely to gain refugee status. And so she was doing that and building it out.
Pauli Murray, Dahlia Lithwick: And then the airport ban happened and suddenly she is just in the very middle of this massive national volunteer lawyer moment where people are rushing, as you may recall, to LAX and to SeaTac and to, you know, JFK, just to stand there at arrivals with a sign that says, you know, do you need a lawyer? And it was a singular moment for me as a journalist, because when do lawyers ever get to be like, you know.
Speaker 2: Welcome.
Pauli Murray, Dahlia Lithwick: I quoted the I think in SeaTac or maybe at SFO, the people outside the airport that first night were chanting, Let the lawyers in, let the lawyers in. And I was like, It’s such a crackup because your whole life, what you hear is keep the lawyers out. We hate you. And so it was such an amazing moment. And Beckett was just in the midst of it and was not at all, I think, prepared for that. And also was really faced with a lot of the women in this book faced, which is an establishment that told her that she was making a call.
Speaker 2: The dogs, Ah, don’t do it, don’t do it.
Pauli Murray, Dahlia Lithwick: You know, you’re making a mistake. The government has this under control. We have the all the NGOs were telling her she was making a mistake. So I think she’s the one who’s sort of the most improbable that she was young and she found herself in the midst of this. But, you know, Robby Kaplan, who brought the lawsuit in Charlottesville against the white supremacists and neo-Nazis, that march there in 2017, who is, you know, my age and certainly was at the top of her game as a litigator and an appellate attorney was told by absolutely everyone that that lawsuit was frivolous and it violated the First Amendment.
Pauli Murray, Dahlia Lithwick: And so I think almost everyone in the book and, you know, certainly Vanita Gupta, who was organizing around Brett Kavanaugh, was being told, you know, this is just a huge mistake to try to to stymie this nomination. So in a strange way, every single one of them was told no, and every single one of them really had doubts about going forward. And it’s hard to think of anyone, maybe Nina Perales, who’s just kind of a she’s just like a ninja. I mean, she’s just been doing what she’s been doing forever. So maybe she’s the one who didn’t surprise herself. But I think almost everyone else felt knocked off guard.
Speaker 2: And as you explain in each not to quote our governor for everybody in the audience, but in each case, they met that moment and people said no. And they said, but yes and not always all the time. But and Becca Heller, that I’m sure everybody in the audience remember. That first travel ban. And I remember it was it was teaching a group of law students and they had not done as well as they wanted the first year. And they were like, what are we doing here? And look what’s being done by the president, United States. And I remember we had this moment where I said the people in the airport are holding up signs that say, I’m a lawyer, not I graduated top 10% in my class. And it’s really powerful to be able to do that. And I think that’s what the book talks about, that women are.
Speaker 2: I think you’ve used this phrase on a knife edge when it comes to the law that the law gives and the law takes away. And you gave me this great shirt and I’ve heard you talk you talked about it in the book. I’ve heard you talk about it in interviews that women have a special relationship with the law seemingly because we know how to use it to gain so much more. And we’ve seen it taken away so quickly.
Speaker 2: Could you walk us through in a little bit more detail, you think, how that plays out, where we work for centuries? I mean, you start with that oral argument where there’s three women on the bench, whole women’s health, and it looks like abortion is just going to be etched in stone in the Constitution and it goes another way. So all along way of saying, could you talk to us again about the special relationship between women in the law? I think it’s.
Pauli Murray, Dahlia Lithwick: Something we’re sitting in now at this moment. And if you had asked me two years ago, I would have said kind of some version of what I said at whole women’s health at that argument in 2016, which is we are so close to complete equality. Look at us. You know, we’re 50% of every law school class and we’re, you know, kind of clawing our way into the highest echelons at law firms and at law schools. And look at all the women deans of law schools in the last ten years. I mean, it’s breathtaking. And so I just had that sense that we were inching up on the forever times. And clearly we’re not.
Pauli Murray, Dahlia Lithwick: And, you know, part of the answer, I think, Jessica, is it’s always been a pendulum, right? Every single major civil rights movement in this country and I would say worldwide is one step forward, one step back, two steps forward, one step sideways. And we happen to be, I think, in the epicenter of one of those not just on gender, but on race and on LGBTQ rights, you know, things that seemed certain five, ten, 15 years ago are really, really, I think, destabilized.
Pauli Murray, Dahlia Lithwick: So part of it is I think we’re in a pendulum swing, but part of it is this really complicated question, which is and it’s sort of the answer to why the book is pink, because you may have noticed it’s pink and that my family is wearing pink in the front row. And I think the book is pink because I’ve always said, you know, the law is very much a pink book that was written by men for men, and that the framers and the drafters of statutes and every single person that controlled every aspect of a woman’s life for centuries, for millennia, were men and women had to fight their way in to the doctrine. They had to fight their way into the Constitution. Right. That was a centuries long process.
Pauli Murray, Dahlia Lithwick: And I think what I wanted to say, and this is a sort of sideways answer, is that I think women, people of color, Native Americans, LGBTQ Americans all understand that it is an absolute double edged sword, that the same legal processes and systems that were used to criminalize your behavior, to diminish you, to take away power and freedom for centuries are now the processes that make us free and equal and give us dignity and autonomy. And I think in our memories, we know that.
Pauli Murray, Dahlia Lithwick: And so this goes a little bit to the sort of, I think, W.E.B. Dubois, you know, dualism that we move through the world as as two creatures, one the beneficiary of of American exceptionalism and also the recipient of a long, long legal tradition that says you’re nothing. And I think that women are really aware of that. And so maybe the best evidence I have of that is that Post dubs, I think it was women, and I know you were one of them and I was one of them on TV saying, this isn’t just about abortion, this is about miscarriages, this is about birth control, this is about pregnancy. This is about how we raise our children. And if they can put us in jail for terminating a pregnancy, then, you know, my decency that I had after a miscarriage is also on the table. And I think that’s just familiar.
Pauli Murray, Dahlia Lithwick: And maybe the last thing I would say. Is that I think when Justice Alito writes in his opinion that, you know, if you go back to Sir Matthew Hale beloved.
Speaker 2: Which some which.
Pauli Murray, Dahlia Lithwick: Is. Yeah, beloved, which burner of British history, and you’re citing the views of people from centuries back, they thought women were either property or children. It wasn’t just Matthew Hale. That was 50 years ago when you couldn’t have a credit card.
Speaker 2: When I teach marital property, we talk about that. And my students, luckily in some ways and unluckily in others, it doesn’t compute to them that that’s their grandparents or if they’re if they have much older parents, then because it feels like the beginning of your book, right? It feels like. But we’ve always had Equal Rights Day because my students walk into a room and expect that in a room of power there will probably be 50% women. And I think part of what we’re living in now is that that’s not a fait accompli.
Speaker 2: And there’s another through line in the book. It’s a chant. I think I remember the first time I heard Lock Her Up and it was completely chilling. And you talk about it in the book and it’s the first time I remember it. It was then candidate Trump talking about then candidate Hillary Clinton in the 2016 election. And it was weaponising the law. And it becomes a metaphor throughout the book. Can you talk about how this lock her up chant is one, a metaphor in the book, but to how it really is? I think a through line, through a lot of the stories.
Pauli Murray, Dahlia Lithwick: I think that the move from Iron my shirts originally directed at Hillary Clinton to lock her up. We missed how pernicious that move was. We thought they were both kind of funny. Not we I mean, nobody here thought it was funny, but I think it was both seen as kind of the excessive zeal of a sexist crowd.
Pauli Murray, Dahlia Lithwick: But of course, iron my shirts is just kind of jerky, lock her up, is really threatening. And I think that when Lock her Up was not just directed at Hillary Clinton, I think I note in the book at some point it was directed at Nancy Pelosi. It was directed at AOC. After Christine Blasey Ford testified against Judge Kavanaugh, the crowds were chanting, Lock her up.
Pauli Murray, Dahlia Lithwick: And that’s really different. That’s using the machinery of the law to incarcerate a woman, not ever for anything specific other than what saying unpopular things, I guess in Hillary Clinton’s case, you know, for using that home server, which seems fairly benign in light of, you know, selling nuclear secrets. But I think that lock her up went from being the sort of zeit geist of this is an inconvenient woman who doesn’t know her place. How dare she run for president? Let’s put her in jail.
Pauli Murray, Dahlia Lithwick: And it wasn’t just the chanting. It was Donald Trump in a debate talking about having his attorney general investigate Hillary Clinton. And so once you’re talking about locking women up as a sort of rhetorical campaign matter, and then it’s starting to infiltrate every rally about every woman who is just kind of daring to run for office.
Pauli Murray, Dahlia Lithwick: And then, as you say, when the book ends, I mean, within weeks of of the book, shipping women were being locked up in Alabama for fetal endangerment. Right. They can’t get out of prison because the custodial system has determined they’re a danger to their babies. Women, Brittney, pull up locked up in Oklahoma for a miscarriage that the state determined was because of drug abuse. So now we’re actually looking around at a country where women are going to be locked up and that same kind of chanting that seemed rhetorical and kind of mean spirited and sexist is now moved from a threat to. An actual state of affairs.
Pauli Murray, Dahlia Lithwick: And so I think what I wanted to think about when I use it throughout the book is how, again, how quickly that happened. Right? I mean, it was it was annoying in 2016, but it didn’t feel genuine. And now I think it feels, oh, that could happen to me or someone I know. And when they say lock her up, they really do mean, you know, that somebody is going to overhear a woman in Texas talking about a sketchy miscarriage and telling the police and that’s she’s going to go to jail.
Pauli Murray, Dahlia Lithwick: And so I think maybe again, I wanted to a little bit use it as a meditation on. That double edged sword of the law is something that can make you free and something that can make you unfree, and also use it as a way to think about when law becomes lawless. The object isn’t to give up on the law. Right. The institution, the legal system. It’s to say, no, this has now become lawless. And that, I think, is a thing that, you know, when I was trying to think through, am I ready to give all this up and just, you know, do like watercolor, Because clearly the law.
Speaker 2: That’s always my pick to water watercolor.
Pauli Murray, Dahlia Lithwick: It’s big. Why? Well, because it’s so it’s so soothing.
Speaker 2: Because you just.
Pauli Murray, Dahlia Lithwick: Yeah, but I you know, I don’t know that watercolor makes us free. And I do think that, like, the law itself can. And so when I asked myself. Am I ready to give up and walk away? It’s really important to say, no, actually, this is lawless.
Speaker 2: But maybe at some point we could do both.
Pauli Murray, Dahlia Lithwick: I mean, I.
Speaker 2: Mean, I do so for my 40th birthday, thinking that I was a person who I’m not. I bought myself a very expensive watercolor set. And it’s set it sits as a monument to me, continuing to not understand who I am or what I do with my life.
Pauli Murray, Dahlia Lithwick: Oh, it’s a monument to you possibly stumbling into the things that you’re about to be having.
Speaker 2: Optimism and no artistic talent. You know, my parents would be the first to tell you, but the lock her up. I think the turn was fascinating because it went from no basis in the law. Right. Lock her up. For what? I don’t even know that it was the home server. It was that she was a senator and a secretary of state and a woman. And now there is a basis in law. Lock her up for that dubious miscarriage. Lock her up for fill in the blank. Now, the legal machinery actually is turning to do it. And I think that’s what you explain so clearly that that’s that’s the flip. It went from the slogan to a real policy and a real implementation.
Pauli Murray, Dahlia Lithwick: I’m interviewing. This is like the coolest thing. Not that this is the no, no, but I feel.
Speaker 2: Like it’s too late.
Pauli Murray, Dahlia Lithwick: That’s the second coolest thing I was doing this weekend after this is interviewing Margaret Atwood tomorrow, and it’s in San Francisco. You should all just get in your cars. But the thing that I am really struggling with is that she called this decades ago. Yeah. I mean, she, you know, so many things about The Handmaid’s Tale. My first question for her is going to be, are you indeed a time traveler? Because it’s so prescient. But I think that one of the things that’s so interesting is the is the arc of of The Handmaid’s Tale is this slow drip, drip, drip of the law being the thing that everybody just misses.
Pauli Murray, Dahlia Lithwick: Mrs.. Mrs.. Mrs.. Mrs.. Oh, and now we’re Handmaids. And I think that it’s that frogs in the pot thing. And I know you and I talk about this and think about this all the time, but one of the sort of exigencies of this era is not realizing we’ve crossed from lock her up as a rhetorical tool or a chant to, Oh, this is actually a legal policy that has its roots in the doctrine.
Speaker 2: It’s the papercut that you just end up bleeding out from ten years later. You never got hit, you never broke anything. Nothing was ever gushing. But suddenly you bled out and you didn’t even. Yeah. And you didn’t even see it happen. We really hope everybody is enjoying themselves and feeling the optimism in the room.
Pauli Murray, Dahlia Lithwick: You came up for a good time and we’re giving it to you. Yeah. I mean this. I will say this and because. Not because I think we have to be optimistic. We do. But I think one of the other three lines that I want to think about with you is that I keep watching these young women in Iran. Right. And they are on the streets. I mean, they are their bodies are on the streets. Right. And they’re like burning their headscarves and cutting off their hair. And it is an extraordinary moment. And I think that the difference between what’s happening there and what I’m trying to describe is that the power of law and politics is still ours. We don’t actually I’m going to say something provocative. We don’t actually answer to a bunch of clerics yet.
Speaker 2: Right.
Pauli Murray, Dahlia Lithwick: And I think that that matters. I think that there’s a huge distance between having to throw your body on the street. And I have all respect for the Women’s March and the, you know, movements in this country that have been about throwing your body on the streets. We actually have the ability to file lawsuits, Right? We have the ability to get all of those signatures on the ballot initiative in Michigan so that that they can codify Roe into their state constitution. We have the power to get people to do what women did in Kansas, which is push back. So those are the difference between having to use your body as a mechanism of last resort to gain power and to have the instrumentalities of the law.
Pauli Murray, Dahlia Lithwick: And all these women who, by the way, are just badass lawyers who can do it, who can walk into a courtroom in Charlottesville and say, no, if Jeff Sessions in his Justice Department are not going to vindicate the rights of people who are the victims of racial and religious violence in Charlottesville, I will like that’s huge consequential power. And I think it’s really important. You know, we often feel like we’ve been like pushed all the way out of the equation. But like, as long as there is a woman in a blue book, in a yellow pad and we can still like file lawsuits, like we’re really not in the bodies in the streets place.
Speaker 2: Let’s talk about somebody specific who most people in the audience are not going to know about. I knew about only because I spent seven years in all girls schools. You know what I’m going to say? Polymeric Holly.
Pauli Murray, Dahlia Lithwick: Murray. And you know, we’ve got a tiny Polly Murray fan club here.
Speaker 2: Poly Murray, who gives us the roadmap for Brown v Board of Education, who gets a shout out from RBG, who says, I see you? Could you tell the rest of us who is Poly Murray and why does she begin our story?
Pauli Murray, Dahlia Lithwick: The book starts with Pauli Murray in some ways because I absolutely refuse to start with our BG because the book in many ways is trying to counter program. And I say this I am the luckiest girl in the world. I got to interview Justice Ginsburg, the last public interview that she did before the court locked down for COVID, which turned into the last interview on the record with Justice Ginsburg. I would have asked her very different questions if I’d have known what was coming. But so I loved interviewing her in my life. And I have, you know, the tea cup and also the coffee cup, also the mug. I have all the RPG swag.
Speaker 2: For the watercolours, sell for the dip, and.
Pauli Murray, Dahlia Lithwick: I have the earring anyway. So I don’t in any way want to diminish her force. But as you just heard Jessica say, it’s really important that every single time RBG was asked, she would namecheck all the people who came before every time, and she would namecheck Pauli Murray every single time she would say, I stand on the shoulders of giants, which, by the way, is what Tunji Brown Jackson said. When President Biden nominated her, you may recall, she said, I stand on the shoulders of Constance Baker Motley. I mean, there’s no way that any of these women would ever say, Look at me, I’m a star. They all said, I came up with this army of women who did this work and none of them got credit. And I’m going to do my best to give credit.
Pauli Murray, Dahlia Lithwick: And so I, in some sense wanted to honor the part of RBG that always wanted to honor the people who are forgotten by history. And so I didn’t want to do RBG hagiography in the book. I wanted to counterprogramming with who are the people that we don’t know about, that we don’t have the mugs and the coffee cups and the T-shirts because they were probably doing work that was as interesting, if not more so. It’s just that history forgot them.
Pauli Murray, Dahlia Lithwick: And I’m so utterly obsessed with Pauli Murray, and I can commend to you the documentary. My name is Pauli Murray that Julie Cohen and Betsy West did two years ago. It is an astonishing, astonishing piece of filmmaking. And right now I’m reading Polly Murray’s autobiography, a song in a Weary Throat, which is just like the most shattering thing that I’ve ever read by someone who constitutional history has forgotten. And I never read the words Polly Murray in all of my law school career.
Pauli Murray, Dahlia Lithwick: So that’s a long way of saying Who is Polly Murray? Polly Murray, Born in 1910 to parents who are black, although poorly, Murray’s mother was the descendant of slave owners on one side and slaves on the other. In North Carolina, Polly Murray cannot get into USC because Polly Murray is black, cannot get into Harvard Law School because Polly Murray is a woman. Holly Marie today would probably be considered gender nonconforming, did not believe that she was a woman.
Pauli Murray, Dahlia Lithwick: But every turn of Polly Murray’s life pen pals with Eleanor Roosevelt wrote, You know, Bill, now that like literally wrote chunks of what would become without credit the actual pleadings in Brown v board that Thurgood Marshall would use. And nobody ever told Polly Murray, Oh, by the way, we used your Howard Law school paper to be.
Pauli Murray, Dahlia Lithwick: The central argument in brown name appears nowhere on the briefs finds out years later, as you said, writes What becomes the sort of central idea that Ruth Bader Ginsburg will later use at the ACLU Women’s Rights Project to use the 14th Amendment for gender equality? At least are Biggie puts Pauline Murray’s name on the brief.
Pauli Murray, Dahlia Lithwick: But at every single turn in Polly Murray’s life, she’s kind of moved on to the next thing. And history is forgotten that Polly Murray refused to go to the back of the bus in Virginia long before anyone else did. Polly Murray was desegregating lunch counters in D.C. long before anyone else. And so how is it possible to go through an entire life, quite literally, like crafting out of. Little Rock Face of the Constitution. What is the world we all live in now? Under the 14th Amendment, as both under race and gender theory. And everyone forgot. And so this is incredible to me. And it’s a story about why it is that if you’re black and if you’re a woman, you get written out of history and other people get credit.
Pauli Murray, Dahlia Lithwick: But also, I think and maybe this goes to your sort of first point, which is you do the work anyway. You do the work. And Polymers wrote to Richard Nixon and said, you know, who should be the first woman on the Supreme Court? Me, because I’m amazing. And needless to say, Richard Nixon did not nominate Pauli Murray. But I just love Polly Murray as an avatar of someone who had all the ideas. Wrote it all down somehow got, you know, a judgment in a case that said you can’t have juries that have only white men on them. All of this happens and we forgot. And it’s fine. It’s fine because Polly Murray looks around at us from on high and was like, Oh, good. That’s that’s a Paul shape world and that’s enough.
Speaker 2: I think you did such a service to start to undress her from constitutional history. And my students asked me about her now, like, why didn’t we know? Why didn’t we talk about this in common law? Why wasn’t this you? And one of them rightly took me to task and said, You you talk to us about Thurgood Marshall. Why don’t you talk to us about her? So you you did a a a true public service in that case.
Pauli Murray, Dahlia Lithwick: The great lesson and if folks have been listening to Amicus this year, they know this is like we should have been listening to black women all along. And Polly Murray for me is the tip of the iceberg. This year I have become absolutely just full of just remorse and regret that I didn’t learn about Dorothy Roberts in law school. I didn’t learn about Peggy Cooper Davis in law school. I didn’t learn about Constance Baker Motley in law school. And so I just think when I said at the very beginning that people were surprised when Dobbs came down, I think what I meant was that white people were surprised. Yeah.
Pauli Murray, Dahlia Lithwick: And what I have learned and this is so important and it’s why I just want to, like, lift up what you just said about your students and Pauli Murray, that if we had been reading Black Women telling us Michelle Goodwin, Sherrilyn Ifill telling us for years that if you were a black woman in Mississippi or Tennessee or Alabama, you never really had a right to abortion. That was a paper, right the minute the Hyde Amendment. You never had a right to abortion if you were poor. If you were on a reservation. If you were, you know, an immigrant, you never had a right.
Pauli Murray, Dahlia Lithwick: And so I just I think one of the things that I have taken away from this past year is that people who were shocked by SB eight in Texas write the vigilante bill, people who were shocked by Dobbs kind of weren’t seeing what was happening to black women, particularly in the South, but not just in the South, in ways that have been going on for decades. And probably there was 5 minutes between Rowe and Hyde when they actually had a right to terminate a pregnancy.
Speaker 2: And it’s not just Roe, right. It’s the right to vote, too. You talk about this, the importance of the right to vote, how difficult it is to explain why things like redistricting matter. But to your point of, you know, now we hear so many white people say, I can’t believe I have to wait in line to vote. I can’t believe it’s so challenging. I can’t believe I have to get a voter I.D. I can’t believe I have to go to this polling place that’s far away. And I think a lot of black people are like, welcome to the existence that I’ve had for decades now. And you you make that point. And it’s the same kind of living on the knife’s edge of the law where we took so many things for granted. I mean, it takes me about 45 seconds to go to a polling place if I don’t just do it at home. And that’s not a given. And we’re about to see that.
Speaker 2: And that, I think, brings us to Vanita Gupta a little bit and the census and citizenship and the importance of counting all of us in order to draw lines so that we have true representation. So with all those fragmented words and thoughts, can you talk to us about.
Pauli Murray, Dahlia Lithwick: Vanita.
Speaker 2: Gupta, who she is and how and I think I’ve heard you say this as well, which is she shows, I think, the power of the law and in some ways the limits of the law as well.
Pauli Murray, Dahlia Lithwick: Well, Vineet is a really interesting character because she comes to the law. You know, she’s the child of of immigrants from India. She comes to the law as the quintessential outsider. Right. She she really makes herself known in this massive, massive lawsuit.
Pauli Murray, Dahlia Lithwick: She’s kind of a Becca Heller character because she kind of tumbles right out of law school into Tulia, Texas, had this insane drug bust in which one cop arrested, you know, two thirds of the town. Everyone was a person of color. He wrote, you know, his notes on his leg. The whole thing was just such a shocking miscarriage of justice. And then everybody in town is in jail. And it is so racially tainted that at some point, after years and years of Vinita working on this case, the whole bunch of them are pardoned and the whole case comes to represent, you know, an early iteration of racialized policing.
Pauli Murray, Dahlia Lithwick: And so she is doing this work and thinking and this is the sort of part of the answer to your question about systems, right? Because after Tulia, she writes a piece that is like, this isn’t the system working, this is the system broken. The system is what sends a crooked cop into a town to do a bunch of arrests on trumped up charges. And everybody’s happy to put people in jail because they’re people of color. Like, everything about that is broken. And so she’s thinking about sort of systemic overincarceration and prison reform and all this stuff, probably before the rest of us were thinking about it.
Pauli Murray, Dahlia Lithwick: And suddenly she gets a call from Eric Holder when he was Obama’s attorney general. He says, come work for me at the Justice Department. And she’s like, Well, but you’re the bad guys, right? I’ve been suing you my whole life. And she flips into this role of being an insider at the Justice Department, working on civil rights. And when I catch up with her for purposes of the book, she’s now working at that point at the Leadership Conference, which is this storied civil rights movement. And she’s again, on that theme of insight outside. You know, the system is broken, the system is working. And so she’s an amazing character. I quite deliberately put her at the center of the book because I wanted to think about here’s a person who both has seen every single way in which the legal system is utterly broken and also who just works to fix it because there’s no other choice. And so I love her as a character.
Pauli Murray, Dahlia Lithwick: I should note right now, she’s number three in the Merrick Garland Justice Department. So again, she’s vaulted from outsider to insider again. But I just think she’s another one of those people who’s really struggling with the fact that, you know, the criminal justice system is. Yeah, but, you know, on every single metric race, economic vulnerability on every single metric is broken. And yet she’s working in these incremental ways to fix it. And she, I think, is the person who says, look, at the end of the day, we got Brown v board, we got Obergefell, we got Roe and Casey. I mean, the law has given us glorious wins.
Pauli Murray, Dahlia Lithwick: And so I think that she is very emblematic of that struggle, that meta struggle we’re both talking about, which is when do you just say this entire system is working exactly as it was designed to do from the founding, which is treat women and people of color like they are lesser. And it’s working in every context, including voting. And also how would we fix it so that it could meet the aspiration and the dream that even the framers didn’t have for what real equality would look like. And I love her because she’s kind of dipping in and out of that consciousness and kind of comes away saying what I think Anita Hill comes away saying, which is this is the only game in town. We don’t have a backup plan. There’s no plan B.
Speaker 2: There’s so many people that I want to dip into at this point. But we just talked about voting. We talked about systems not working. We talked about, okay, then there’s nothing else to do but try and fix it. We’re not going to give up. And so I feel like the next person is probably Stacey Abrams to talk about her influence and how she went from being a failed candidate to a hugely successful organizer. And there were obviously other people who are important in voting rights, in organizing that you could have talked about you. I think it’s you have to talk about voting as the foundational thing.
Speaker 2: But could you talk a little bit more about, you know, how do we pick Stacey Abrams and how does she become a Lady Justice?
Pauli Murray, Dahlia Lithwick: So I love Stacey, the bookends with Stacey Abrams for a couple of reasons. One is she’s for my purpose is an amazing bookend to Polly Murray, who is a black woman who, you know, comes up with every door shut in her face, who manages somehow to reach, you know, the highest levels of achievement, even though she doesn’t get credit, but also because Polly Murray is a poet. And Polly Murray ends the last years of her life, just walks away from the law and becomes ordained in the Episcopal Church and is the first black woman ordained in the church, like Polly Murray is one of those polymaths who you just she could have water colored. I mean, what I’m saying is everything she touched, she did brilliantly.
Pauli Murray, Dahlia Lithwick: And Stacey Abrams, I love because Stacey Abrams writes romance novels and I love that kind of symmetry of these women who are not going to be confined by the box of you’re a lawyer and you wear sensible shoes and you have a briefcase and, you know, like, I love that they are too capacious to be held by what it is to be a woman lawyer. So that was quite deliberate and also quite deliberate to pair her against Sally Yates.
Pauli Murray, Dahlia Lithwick: Right. Because they’re both women from Georgia, except Sally Yates is a third generation lawyer and is at the Justice Department, has every institutional privilege and prerogative at her power. And here’s, you know, Stacey Abrams, who is, again, on the outside trying to get in. And so I wanted those to be a little bit in conversation. And I think that Stacey Abrams for me makes the same point that I wanted to suggest Vanita Gupta makes, which is you can win all the lawsuits in the world and lose everything. You can win and win and win in court. And if you’re not doing systems reform, you’re going to keep losing.
Pauli Murray, Dahlia Lithwick: And so by design, the last couple of chapters of the book are about voting rights and whether it’s Nina Perales am thinking about, you know, reapportionment and the census and making sure that one person, one vote as a principle is upheld, or Stacey Abrams, who is really fighting the scourge of voter suppression.
Pauli Murray, Dahlia Lithwick: I wanted to try to sort of say this isn’t a thing that, you know, it goes back to the like, don’t you know, we want the law and order ending. We want at the end of a lawsuit to think that justice is now irrevocably achieved and that we’ve got it forever. But it’s whole women’s health teaches us you can lose it.
Pauli Murray, Dahlia Lithwick: And so I this is a little bit more broccoli, right? I think we have to understand that you can win lawsuits, but if you’re losing because of the Electoral College or a mal apportioned Senate or you’re losing. Because, you know, after more versus Harper this year, you know which we will you will really need bourbon but like if the Supreme Court in fact blesses the idea that state legislatures can simply have unfettered plenary control over absolutely every component of election law, then that’s another way you can just lose everything. And it doesn’t matter that 70 80% of the population doesn’t want something.
Pauli Murray, Dahlia Lithwick: And so the last chapters had to be about organizing, as you said, and that’s bodies on the streets. That’s registering voters. But it’s systems reform. It’s how do we think about weight? If we could have state independent commissions that are working on gerrymandering reform, if we could have, you know, a plan to fix the Electoral Count Act so that the Electoral Count Act cannot be weaponized to subvert the vote.
Pauli Murray, Dahlia Lithwick: So all of the last couple of chapters, I’m just going to say there’s a little broccoli, the broccoli to Browning ratio.
Speaker 2: No, but it’s like it’s sauteed, it’s charred, it’s got some garlic in it. It’s like it’s really good.
Pauli Murray, Dahlia Lithwick: It’s good broccoli. And I think California, we.
Speaker 2: Like, well, how about this? It’s massaged kale. It’s an L.A. crab. Yeah. Yeah. It’s like it’s not don’t eat that bullshit that they haven’t massage yet. It’s really. Yeah.
Pauli Murray, Dahlia Lithwick: Oh, it’s good. It’s massaged kale. That’s what I’m looking for. But I think it’s really it goes to this point that I and I know you’ve said it too. I’ve heard you say it, that people who are surprised by Dobbs Missed Systems because, you know, the system of losing the Supreme Court or the system of five that the six justices are appointed by presidents who lose the popular vote and nevertheless get to seat an Article three judge for all of time. Like all of those are systems problems and we have to think about them not as and there’s a lawsuit and it’s going to take two weeks.
Pauli Murray, Dahlia Lithwick: It’s going to be really satisfying.
Pauli Murray, Dahlia Lithwick: And maybe that’s a roundabout way of saying that when people say, and this is way like November, the word Movember makes me a little nervous because we can win the midterms when in 2024, none of these problems go away or get resolved unless you are sort of codifying and systematizing a machinery of democracy that is really democratic.
Speaker 2: Yes.
Pauli Murray, Dahlia Lithwick: They’re clapping for the kale.
Speaker 2: No, no, That was an I basically said words. Stacey Abrams, could you speak? And that was an excellent answer to that.
Speaker 2: And is there any chance that we could on Zoom Color when the independent state legislature doctrine case comes out just.
Pauli Murray, Dahlia Lithwick: Just to take the.
Speaker 2: Yeah, exactly.
Pauli Murray, Dahlia Lithwick: Yeah. No, it’s it was funny. I was on one of the shows over the weekend trying to explain the independent state legislature doctrine. And if people don’t know.
Speaker 2: Do you want to.
Pauli Murray, Dahlia Lithwick: You can ask it in the and it should I just explain what it is. Okay. I’m just going to explain it. Can I in? You’ll check me when I get it wrong. I mean, this is just essentially the case that nobody knows about that’s coming this term. And it is more or less a North Carolina gerrymander that North Carolina refuses. It’s an egregious, egregious political gerrymander. But the state of North Carolina told to redraw the maps to make them more fair comes at the court with this argument that actually there’s something called the independent state legislature.
Pauli Murray, Dahlia Lithwick: I’m not going to say doctrine, I’m going to say theory. And it actually is not a theory because it’s nowhere in the law. And it’s an argument that essentially legislatures, state legislatures have absolutely unshakable power to set election rules as they see fit. And the like most extreme version of this theory says not only can a state Supreme court, not under a state constitution, set aside election practices, but that in fact things like.
Pauli Murray, Dahlia Lithwick: Voter suppression, things like doing away with mail in ballots, things like, oh, I don’t know, sending a slate of fake electors to the Electoral College are all things that legislatures can do without anyone, including the governor or state courts, checking them. And there’s already four votes on the U.S. Supreme Court that have approved this theory in prior cases.
Pauli Murray, Dahlia Lithwick: So really, we just need one more justice to say this is okay. And if this isn’t and it’s so alarming and it’s also so hyper technical that by the time I explain it, even the like television host is usually like and I’m like, wake up, this is important, but it’s so technical and I think it’s going to be one of those things that when it comes down and completely changes the landscape, everyone’s going to say what? And so I’m trying to be the sort of Paul Revere. Like, this is coming. This is coming.
Speaker 2: Yeah. No, I mean, if anything, it wasn’t quite scary enough the way you described the take away. No, Scary. No, no, that was I got taken to task publicly for making it sound. I think as scary as it is, obviously a follow Dahlia for all of those updates and I think you’re going to write about it, you’re going to talk about on MSNBC, you’re going to have Amicus episodes, which, you know, I’m sure everybody has subscribe to. I listen religiously to figure out what’s happening in the world.
Speaker 2: And I think probably the last question is something that we’ve been circling around, which is faith in institutions by the women that you profile in the book. And I think maybe we had a slightly different or maybe I had a kind of misperception because I heard you say in the beginning they have very different relationships. The women who are profiled to faith in institutions by which I really mean like the rule of law, the ability to file lawsuits and get redress. If you know that you’re right under the law and the ability to use existing mechanisms to organize politically. So was there for you a theme or was it just a little bit all over the place for the women that you profiled? And it seemed to me that all of them had an initial, yes, we do use these institutions. This is what we have. This is what takes things away from us. But it’s our best shot.
Pauli Murray, Dahlia Lithwick: In light of the conversation we’ve just had, it will surprise you not one bit that I think I’m going to say. I came away with the sense that the white women are much more bought into and confident that the institutions of the law will ultimately be bent towards actual justice and actual equality. And that paradoxically, even though that’s true and I’m thinking of, you know, Becca Heller again, who is just such a fun character to write, she called the other day and said, Wow, I come off kind of prickly and weird. You really got me. Like she didn’t want it changed, but she does. And she actually just says, Look, the law is bullshit. I mean, she says, I’m using the master’s tools to take apart the master’s house. I have no confidence that the legal system is anything other completely sort of mired in power disparities and race disparities. And that’s what it is.
Pauli Murray, Dahlia Lithwick: But it’s, you know, if I can use the law to then and then it’s interesting because some of the people who are most subject to what, you know, you and I are describing, which is this capacity for cynicism are the ones who are of color, who say and Anita Hill, I think says it most elegantly, just says if we don’t have law, it’s chaos. And in chaos. The people who suffer most are the vulnerable people, and that means women and people of color.
Pauli Murray, Dahlia Lithwick: And so for for her, even though, you know, I think she’s seen it weaponized against women for her entire career doing this, she and Vinita and Nina Perales are the ones who come out saying, I think we’re getting there. And each of them says that. And each of them, I would say also notes parenthetically, that the Youngs are getting us there, that, you know, the generation that’s coming up that they are all in awe of is the thing that is going to push us into, you know, this aspirational world of equality and justice.
Pauli Murray, Dahlia Lithwick: And so I think I very much initially sort of identified with the Becca Heller view that, you know, if I had been taught to play the cello, I might be writing a book about cello players. But the law is what we have. And so that’s. What this is and really did, I think listen very carefully to the voices of, you know, Sherrilyn Ifill and Carol Anderson and these women who, if anyone, is entitled to be very, very cynical about the law is them. And yet they’re the ones who just really look around and say, we’ve come a really long way. And that’s because of the law.
Pauli Murray, Dahlia Lithwick: I think of Bryan Stevenson. I mean, I just think of how many people in the face of wanting to give up, just go to work the next day and say, I think we’re going to win this time. And so I think I came out much less hopeless or much, much less despairing because the voices of the people who were apt to take me into despair were the ones who are, without a doubt, like time after time, say. I think it’s I think it’s turning.
Speaker 2: I think that’s a perfect note to end on a Dahlia, obviously. Before Q&A, Dahlia obviously does not need a moderator. And you? I learned a lot, even though I had thought up until this point. I listened to everything you said about Lady Justice in preparation of this conversation. The book really is for those of you who haven’t been able to read it, I mean it. There is a reason that you’re just a phenomenal storyteller. It comes all of these people come to life and their stories and the importance of what they’re talking about executive power, voting rights, citizenship, reproductive rights. I purposely skipped over the chapter dealing with the teenage refugee who needed to and was entitled to get an abortion because it’s just so hard to discuss. And I’m sure there will be Q&A about where we’re going in terms of reproductive choice as well.
Pauli Murray, Dahlia Lithwick: Here, here is a microphone. There’s another one.
Robin Abraham: On this side. Speaking of reproductive choices, I wondered what your thoughts were and whether you think they could be successful. These lawsuits being brought forth by churches and synagogues, not evangelical, that by denying abortion rights, you’re denying their religious freedom, Right? The satanic church in Idaho, the synagogue in Florida. I think it’s it’s interesting to watch this and see get turned on its head. And I wondered if you could speak to that.
Pauli Murray, Dahlia Lithwick: The Florida suit worries me because I’m not sure that anyone there has standing. I think that there’s a Kentucky suit that just got filed this week where there actually might be a credible standing kind of way in, I think and this is a longer conversation, but I think that I was astonished that there wasn’t a lawsuit challenging SB eight in Texas on this ground a year ago. I just think that it’s really interesting to see a. Progressive.
Pauli Murray, Dahlia Lithwick: Religious groups, how slowly they’ve been to taking up these claims and just the complete asymmetry between sort of people who are willing to challenge what are clearly I mean, I hope people know that Dobbs is religiously inflected in every single way. It’s not a religiously neutral read. And yet Jessica will probably agree with me that we in the press have a very hard time describing it as such. And if you describe it as religiously inflected, you really get, I think, blowback.
Pauli Murray, Dahlia Lithwick: And so I think part of that refusal to talk really openly and explicitly about the religious violence on on Dobbs has really been kind of trickled into the response to Dobbs. In other words, I think it’s been very, very groups have been very, very late to come online and say, wait, this is clearly a religious violation of many, many faiths.
Pauli Murray, Dahlia Lithwick: At the GW National Council for Jewish Women brief in Dobbs is superb, their amicus brief, because they kind of go through not just sort of the Jewish halachic, you know, questions around abortion, but they go through every faith. I mean, it was an amazing, meticulous detailing of how many faiths don’t agree that life begins at conception or in soul mate or whatever the marker is. But I think that the conversation on this, not just that the lawsuits have been slow to come, but that just the discourse has been really, really lacking. Am I being uncharitable?
Speaker 2: No, not at all. I’m just not chiming in because I know who we’re here to hear from. I think that’s exactly right.
Pauli Murray, Dahlia Lithwick: Yeah. So in other words, I think that those are plausible lawsuits. And I also, you know, worry about where they end up at the Supreme Court. And maybe just a coda to that is that one of the things that’s been really interesting this fall is Yeshiva University objecting to LGBTQ clubs using, you know, arguments that have been made by the religious right. There was a lawsuit filed in New York just two weeks ago by Orthodox Jews who are claiming they want to be able to use guns to bring guns to their synagogues in violation of the governor’s orders about what kind of places can be gun free in New York.
Pauli Murray, Dahlia Lithwick: So I think one of the really interesting things that we have not talked about much in, again, the sort of larger public discourse is the ways in which. For many, many decades, Jewish groups were either on the left or silent.
Pauli Murray, Dahlia Lithwick: And there has been a real uptick, I think, in Orthodox Jewish groups signing on with kind of conservative groups and and with really like if you read nothing else, there’s an orthodox Jewish brief in Dobbs that makes in sole meant argument like makes Catholic arguments under color of like this being a Jewish analysis. So I think that the fracturing of the sort of Jewish legal advocacy in this country is something that has happened in like the last ten years. And I again, I don’t think we’ve paid nearly enough attention to it.
Robin Abraham: Hi, my name is Robin Abraham. I’m a New York licensed attorney, and I had the privilege of clerking for two federal judges, a Levin Circuit Court justice and the privilege of impeaching former federal Judge Alcee Hastings. So my question is regarding what you’ve touched on about the weaponization of the courts. I’d like you to how should I say. Enlighten us on where you see this going, because as a New York attorney who put shows on television regarding atrocious cases against professional women, I can name them like three right off the top of my head that are ongoing because of the fact that these women attempted to protect their children. They’ve been jailed, their homes, their assets have been stolen.
Robin Abraham: There is a former federal prosecutor named Katherine Carson off whose children home and assets have been taken and she’s illegal, have been put in jail because her ex-husband said so. So what I’m seeing as an attorney who had the privilege of clerking for excellent judges, as my justice, Susan Bloch, taught me, that the law is only as good as the judge who presides over the case. So who’s judging the other judges?
Pauli Murray, Dahlia Lithwick: There is material in the book, a lot of me judiciary material, and we didn’t talk about it. But I would just say this, and I know there’s kind of there’s two things happening in your question, but I want to talk about the judges. And I guess I would just start by saying, you know, when Jessica and I were talking about systems reforms, one of the things that I put at the top of the tree is having binding judicial ethics rules, having them enforced. There’s a lot of talk right now about having binding ethics rules on the Supreme Court justices. But the fact is there’s been MeToo cases in the federal judiciary, as you just noted, and in the state, judiciaries that are not policed at all. And I would recommend to folks.
Pauli Murray, Dahlia Lithwick: Joan Biskupic, incredible reporting about the numbers of harassment and assault and just grievous judicial misconduct, all of which never get never get investigated, and also that we live in a system in which judges can step down and collect their lifetime pensions and there will never be an investigation.
Pauli Murray, Dahlia Lithwick: So I think under kind of underlying, what you’re saying is that we have a massive problem in the judiciary itself and we don’t have mechanisms to fix it. And that we had a moment in 2017 when even Chief Justice John Roberts said, I’m prioritizing this issue. It was in his state of the judiciary speech that that year we have to root out, you know, root and branch, get rid of judicial abuse. And almost none of the reforms that have happened have even begun to touch the problem.
Pauli Murray, Dahlia Lithwick: And, you know, some of the the federal circuits are putting in better reporting mechanisms, you know, clerks. Now, we’re told like, you know, you’re not a piece of meat. I guess that’s an improvement from when I was clerking. But the problems are endemic, and I think that a lot of it goes to and this is a sort of broader answer, a culture in the legal move, in the legal, not just the judicial profession, but I think the legal profession writ large, that is still really archaic. You know, it’s a culture that is still very old boys. Very boys will be boys. And, you know, I can’t tell you how many judges I’ve talked to about MeToo in the judiciary who have just said to me, well, there’s a simple answer. I’ll just never hire another woman clerk. And I mean, that’s not in 1804. That’s in, you know, the this millennium.
Pauli Murray, Dahlia Lithwick: So I think we have a huge problem. But I also think and I mentioned. It’s in the book, but I’ll say it out loud. There are women I’m thinking of Leah Lippman. I’m thinking of Diva Shar. I’m thinking about Emily Murphy. There are women who do nothing but this, and they work on it all the time. Uncompensated. They have made it their, you know, sort of life’s work to try to bring these reforms about. But this is another one of those places, I really think, where a massive public attention and outcry to how is it possible that a judicial branch that is tasked with investigating and finding facts can’t police itself? And it can’t it just can’t do it?
Speaker 2: All I would add is that I unfortunately, we did not get to that in a really important chunk in the book where you talk about the judiciary and the problems of accountability. And I, I clerked in the federal judiciary and I never had any problems because I just clerked for a wonderful man. But that’s not guaranteed. And and if that hadn’t been the case, I know exactly what would have happened, which is we don’t we would not at that point have said anything. I mean, you very bravely spoke out, and that’s a big part of the book. But there is such a culture of protecting the judges and protecting your career because it’s difficult to say something.
Pauli Murray, Dahlia Lithwick: And we’re at the five year anniversary of MeToo. And it’s really like there is, I think, a big ongoing public conversation about what that achieved and did it set us back. And one of the things that I’m reflecting on in the book, and I’ll say as well, is that, you know, MeToo was not a legal movement. It was a cultural movement, it was a media movement, and it brought about no meaningful legal change.
Speaker 2: The only thing I will say, having taught now for ten years, it did, in my perception, bring about meaningful change for what my female law students expect out of their. Educational and work experiences. I really do think for them it really did change the conversation for what we’re allowed to talk about and not just allowed to talk about, but almost now have a responsibility to say.
Robin Abraham: My question is really about a little bit more on the fact that the Supreme Court is basically, as it currently stands, an illegitimate part of our system. And the the damage done over the during the previous administration of stacking the courts with corrupt and incompetent judges up and down. How bad of a generational, you know, impact is that going to. Is that going to be not just for these fights that we’re engaged in right now, but for, you know, for grandchildren to come for generations to come? It really it it keeps me up.
Pauli Murray, Dahlia Lithwick: I mean, I think it keeps us up, keeps our kids embraces. So that’s good, I think. Neither Dalia nor Jessica’s children currently wear braces. I think that we should stop and celebrate some wins because that’s a one of the themes of the book. I think if you look at yesterday, whether it’s the Supreme Court batting away the crackpot attempt to set aside the 11th Circuit’s judgment, I think the Alex Jones verdict was astounding. I think I mean, we have had win after win after win after win in the last couple of weeks. Indiana court setting aside its abortion ban. So I think one thing we have to do is really stop and say it feels like we’re losing all the time and we’re not, in fact, losing all the time. We’re winning a lot.
Pauli Murray, Dahlia Lithwick: And I also think huge credit to President Biden. And it does not get enough credit, which is he has done a monster job on his judicial picks. And not only has he, you know, poured new judges into the Article three system, but they are the most representative, you know, across race and gender and every other measure, the most diverse picks we’ve ever seen. And I think that matters. He’s been kind of a wizard on that and doesn’t get credit. So in terms of rebalancing the courts, I think that’s happening.
Pauli Murray, Dahlia Lithwick: And then I think at the sort of like the guts of your question is we are going to be living under the thumb of Donald Trump’s nominees for, you know, the foreseeable future. And that’s chilling. And I think, you know, one of the things I’ve been saying the last two weeks in my Supreme Court previews is that I think we are making a catastrophic error covering the court as cases. Oh, we’ll talk about affirmative action and then we’ll talk about, you know, the Clean Water Act. And we can’t talk about the cases because there’s no doctrine. You know, the court is aberrational and we have to talk about it that way and not game the cases, because that’s the way we used to do it, isn’t it? Totally in apposite to what has to happen now?
Pauli Murray, Dahlia Lithwick: And I again, I regretfully say I think we in the press corps are just doing the kind of, you know, the the win loss columns. And I think it’s a huge mistake. But I think that the good news is this very, very smart people who sat on President Biden’s blue ribbon panel for structural court reform put forward a whole bunch of really great ideas. In addition to adding seats, they talked about term limits. They talked about jurisdiction stripping. They talked about a whole bunch of and ethics, ethics, ethics and transparency. All this is good.
Pauli Murray, Dahlia Lithwick: So my feeling is very much the way I feel about most other things is, as we said in the book, which is now it’s on us. President Biden is not, I think, going to enact any of those reforms. But I think that very, very good members of Congress in the Senate have put forth bills to really enact structural court reforms. And if we think this is a sort of way outside the norm of like this is a wackadoo proposition, then that’s on us. I think that a lot of people, including myself, who never would have talked about adding seats to the court five years ago, are on board and are talking about it. And very like people like Larry Tribe and, you know, people like the most surprising people have come round on this.
Pauli Murray, Dahlia Lithwick: So then I think the question is, what are we doing about this? And if there are really good bills, which there are that only have six or seven people supporting them, then what are we doing to lift that up? And so I think in a sense and maybe this I’ll stick the landing or not, but I think the corollary to RBG is going to save us is I’m really mad at RBG because she didn’t quit. And that is the totality of my activism around the court is just to like, relitigate in my heart how angry I am at her. And my point in both cases is that those are passive, passive ways of thinking about the court.
Pauli Murray, Dahlia Lithwick: There is a very active way of thinking about the court, which is the court works for us. We could snap up the toilets and turn off the lights tomorrow if we wanted to. It has no army, it has no budget. So in some sense, the failure to talk about this as though it is achievable and meaningful is 100% not our biggest fault. It is our fault. And so I would just urge people who feel like we are just in this hostage situation to ask themselves why they are not thinking seriously and advocating seriously for meaningful structural reform, because I think that we are just in thrall to this idea that it can’t be done. And the only reason it can’t be done is because we don’t want to do it.
Pauli Murray, Dahlia Lithwick: Brianna Jessica Levinson is a law professor at Loyola Law School, a legal contributor for CBS News and a columnist for MSNBC. We were in conversation last Friday at the Gloria Coffman Performing Arts Center. Thank you. To Writer’s BLOCK presents to the Beverly Hills Bar Association and to the American Constitution Society for co-sponsoring this amazing event. That is a wrap for this episode of Amicus.
Pauli Murray, Dahlia Lithwick: Thank you so much for listening and thank you so much for your letters and your comments and your questions. You can always keep in touch at Amicus at Slate.com. Today’s show was produced by Sarah Burningham. Alicia montgomery is vice president of Audio, and Ben Richmond is senior director of operations for podcasts. Slate. We’ll be back with another episode of Amicus this weekend. Until then, take good care.
