S1: This ad free podcast is part of your slate plus membership.
S2: Many of the signature rulings that we have seen to me go all the way back to Pauli notion of human dignity and human equality, an authentic selfhood.
S1: Hi and welcome to Amicus. This is Slate’s podcast about the courts and the law and the Supreme Court and the rule of law. And I’m Dahlia Lithwick, and I cover those things for Slate. Today’s show is part of our summer series, where we take a step back from the news cycle to talk a little bit about books you haven’t read yet, films you haven’t seen yet. And this week, we wanted to talk about one of the most seminal figures in the last century, civil rights battles for both racial and gender equality, polyamory. Later on in the show, Slate’s own Mark Joseph Stern will be joining us with the triumphant return of our Slate plus segment with very much to plow through as the court hands down shadow docket decision after shadow docket decision, particularly this week with two rather horrifying ones. But now to the main show. If Ruth Bader Ginsburg was known as the Thurgood Marshall of the gender equality movement. I don’t even know what to call Pauli Murray, who, believe it or not, I never even learned about in law school. Murray was both the Ginsburg and the marshal of the race and gender equality movements doing sit ins before there were sit ins refusing to move to the back of the bus. A decade before Rosa Parks, a law school paper that Murray wrote on Plessy vs. Ferguson, actually became part of the briefing in Brown v. Board of Education. It’s just that nobody told or credited Pauli Murray. OK, so now Murray is the subject of a new documentary. It’s called My Name Is Pauli Murray. It premiered at Sundance and will be released by Amazon this fall.
S3: My name is Pauli Murray, and my field of concentration has been on human rights. My whole personal history has been a struggle to meet standards of excellence in a society which has been dominated by the ideas that blacks were inherently inferior to whites and women were inherently inferior to men.
S1: Murray was far too complicated for any 20th century rubric to contain black, nonbinary, queer, feminist and civil rights pioneer. Murray was a poet, a teacher, a legal activist, a white shoe lawyer, ultimately an Episcopal priest. Murray hung out with Langston Hughes. James Baldwin had a 23 year friendship with Eleanor Roosevelt and helped Betty Friedan found the National Organization for Women. My name is Pauli. Murray was made by directors Betsy West and Julie Cohen. They made the documentary are bji. That helped catapult Justice Ginsburg into the super celebrity stratosphere. Betsy and Julie are joined with me today by Professor Patricia Bell-Scott, a consulting producer of my name is Pauli Murray and professor emerita of Women’s Studies and Human Development and Family Science at the University of Georgia. Her biography, The Firebrand and the First Lady Portrait of a Friendship Pauli Murray, Eleanor Roosevelt and the Struggle for Social Justice won the Lillian Smith Book Award. Julie Betsy. Professor Bell-Scott, welcome to the podcast. Thank you so much for being here.
S2: Thank you. Thank you so much. I don’t even
S1: think my introduction that I just gave, which had so many exclamation marks, begins to do Pauli Murray justice. I feel as though watching the film and doing some reading Pauli merde is like a where’s Waldo of the big major labor, racial gender movements in the last century. Except Pauli Murray did it a decade before anyone else thought of it, and not just in terms of activism, but actually constructing legal architecture. And I think if you add in Pauli Murray’s lifelong insistence that she was a man living in a woman’s body, pleading with doctors to hear her and help her, it’s clear to me that Pauli Murray was not in any category that the 20th century can contain. So Patricia. Can you help just set the table for listeners who have not heard yet of Pauli Murray? What the early life was, the education and all the ways in which these kind of weird constructed boundaries kept throwing up walls?
S2: Yes. I think when we try to decipher what resulted in this incredible person to whom we are all so we are all so indebted, we have to start with her childhood. Pauli Murray was a person who had tremendous sensitivity to injustice when she was a child. And I see I’m right now using the pronoun she because she presented as a female largely as a result of the pressures of social forces and political political issues in her life. However, she presented it as a female publicly, however privately and through all of her life. She would be someone we would describe now as someone who was gender queer, or we might say that she was gender nonbinary. And there is. A phrase that some people use that I truly think is appropriate when we think about her, in that she is someone who really takes a very expansive view of the human experience so that she sees herself as both male and female. Beyond beyond those boundaries, she was of mixed race, ancestry, ancestry. So she saw herself as beyond just male and female. So when I say she, I don’t necessarily mean she in the conventional sense, but I’m using that because that is how she wrote about herself. That is how she presented herself publicly and to people. We have to start with this childhood of a of a of a of of someone who at age six, launched her first protest against inequality over the dinner table when Aunt Pauline, who became Mary’s adoptive mother, was distributing the pancakes and Pauli was given one pancake and grandfather Robert was given three. And she looked at his plate and looked at her plate and decided that it was this was not fair. And so she turned to Aunt Pauline and said, Aunt Pauline, why do you give grandfather Robert three pancakes and me only one? Well, the adults at the table really had no answer that they were willing to share with this young woman. And even though it perhaps might have been a question that they had expected her to let lie, she didn’t. So that later, when she was at dinner, they were dinner guests at the home of of a prestigious family in the community, a black middle class family. And they were being served a meal in Pauli, who was tiny but always ravenous, said I’d like to have another helping of meat. Aunt Pauline said no, and then Pauli said, well, I still feel like I should have another helping of meat. And she insisted in finally Aunt Pauline said, Please excuse us to. The host took Pauli in another room, gave Pauli a spanking, and then when they returned to the dinner table. You would not be surprised to know that this child turned to her Aunt Pauline in the guess and said, I want another helping of meat. So what we saw was this. What you see in in this comes from Murray’s account of childhood. In her memoir, Some in a Weary Throat is is an insistence to not be silent in the face of injustice and of persistence and a determination to question power and authority, whether that authority be on the in the personhood of her older relatives who raised her or in the presence of the White House, Eleanor and Franklin Roosevelt, to whom she wrote hot letters protesting Jim Crow in the South. So early on, we see in Pauli Murray someone at a very young age, highly sensitive to injustice and very much determined to question it and to persist and accept the consequences, even if the consequences. In one case, as a child was a spanking
S1: and Betsy and Julie, I feel like I want to ask you that initial framing question that Patricia just brought up, which is the the pronouns, because it’s clear that throughout the film, different speakers are identifying Pauli Murray as they as she kind of trying to honor exactly this theme the Patricia just laid out that she referred to herself as her. How did you all choose to think about this question of pronouns and how it’s so precedes? It’s so out of time. I’m just wondering how you work that out for yourselves. Maybe Betsy. You want to go first?
S4: Sure. This was the subject of many, many discussions as we were putting the film together, because, as Patricia said publicly, Pauli was presenting as a woman referred to her self as she. And it was only in Pauli diaries and letters that we learned about the struggle that Pauli had to get doctors to recognize her Palis feeling that Pauli was a man and this was going on in the 30s and 40s when there was no language to describe what Pauli was experiencing. So in the film, we felt that the people who knew Pauli Pauli, his great grand niece, for example, and others friends, Ruth Bader Ginsburg knew Pauli as a woman, and they referred to Pauli as she. There are Pauli has in recent years, as the story of Poly’s nonbinary identity has come out, has become a beacon, I think, for the the trans world. And there are certainly people who refer to Pauli as they are. So we we made an effort to let people speak about Pauli in the way that they chose. And but to be sensitive about using the pronoun C she her to to aggressively, let’s put it that way.
S1: Julie, do you have something to add?
S5: Yeah, I mean, as Betsy says, it’s something that we discussed in detail as we were making the film, and that kind of shifted over time. You know, there is no Pauli, while absolutely seeking out hormone treatment in life, didn’t address the pronoun question like the pronoun question was not a question when Pauli was alive. So we’re kind of left a little bit to want to create a situation where we’re not being hurtful to today’s trans community, who men, many of whom identify with Pauli in such a way that the pronoun they or even he seems preferable. One thing that we actually were guided on by Chase Strangio, the ACLU trans rights lawyer, who himself is a trans man, said, you know, some people just use their name as their pronoun. That’s what he did to talk about Pauli. So that’s we we’ve tried to find a way to kind of follow that lead. Honestly, it’s surprising how difficult it is to use NUPE not to slip into a female pronoun for someone who you’ve perceived as a woman because of the way that Pauli, you know, self presented all throughout life. The fact that it’s so hard, I think is sort of fascinating in and of itself. So. I think we are fairly accepting of all kinds of different people’s choices on this question. Obviously, there’s no way to know what Pauli would have chosen if if Pauli had had the good fortune to be alive in a time when acceptance of a trans or non binary identity was even a possibility.
S1: And the other just big table setting question I had, and I guess this is for Julie and Betsy. What is the pivot from making a movie about Aaberg to making a movie about Pauli Murray like? Because it just is so striking that one is an icon larger than life known to all. There’s a coffee mug in every, you know, every cabinet. And then Pauli Murray, who but for dint of accident densa of stints of not having Amati to to push them forward just is almost completely unknown to history. And so you have these two people who by many metrics and I want to probe the ways in which they are profoundly different. One is larger than life. One is not in any way been given her place in life. And I’m trying to think about this as a question of sort of who gets famous in America, who gets credit in America. I think Patricia said this essentially important thing, which is Pauli Murray spent her life wanting to be seen and heard. And we didn’t give her that. And so I don’t exactly know what buried in there, what the question is. But it’s such an extraordinary move to go from somebody who almost by the end takes up too much space to somebody who doesn’t get any space at all. Julie, you’re nodding. So I feel like I should let you go first.
S5: OK, I’m nodding because I certainly agree with you. You know, it really actually, though, for Betsy and I it wasn’t exactly a pivot to go from RPG to Pauli Murree. It was a very straight line because it was RBG herself who put Polly’s name on a 1971 Supreme Court brief. The first one that RBG wrote, Reid vs. Reid and Pauli Murray did not specifically work on that case. However, previously in both a in both a law journal paper and even in a case that Pauli argued in federal court, Pauli had made the argument that the 14th Amendment, the equal protection clause, could be used to secure gender equality, just as it had been used to secure racial equality. This essentially was our BGS argument in Read v. Reed and that series of cases that we talk about in our film, RBG. And and Aaberg took the unusual position that like I actually I’m going to give credit where it’s due. RPG was absolutely aware. She she knew Pauli from having served together on the board of the ACLU. Actually, previously, they had briefly crossed paths at Paul Weiss, where our Betsy was a summer associate, when Pauli was full, full time, ongoing associate. And Aaberg had read Pauli legal work, and she just decided like, why would not give Pauli Murray deserved credit. Very unusual move for a Supreme Court litigator. But but RBG went for it.
S4: Yeah. I mean, this is Betsy to add to that. I feel that, yes, Aaberg was deservedly larger than life. And I think as Julie and I started to research Pauli Murray, we realized Pauli Murray should be larger than life. I mean, we’re just blown away by Pauli Murray’s story. All of the things that you mentioned at the beginning, all of the accomplishments, the ahead of the times ness of Pauli Murray, it just kind of went on and on. And so that it seemed like the logical conclusion to do a film about Pauli Murray. The other thing that animated us, I think, was the desire to have Pauli be seen and heard. And luckily for us, despite all the challenges in Pauly’s life, you know, economic challenges wasn’t, you know, all that well compensated for much of Pauli life, managed to save so much material. And so there’s a giant archive at the Schlesinger Library at Harvard. And that archive includes audio tapes of a series of interviews that were done with Pauli, most of them in the seventies. I think there were a few a little bit earlier. And also, we took our intern helped us track down an audiotape of Pauli reading a large portion of Poly’s autobiography. And when we heard Palis Voice. It was speaking to us like it had been left there for people to discover and to learn the story. Unfortunately, after Pauli was no longer here, but, you know, that’s what that was really our mission, to bring that story to life.
S1: And Patricia, I feel like you also, because your work was again in this relationship between Eleanor, Eleanor Roosevelt and Pauli Murray, this weird again, the same paradox of people who were fundamentally, deeply connected, deeply respectful, deeply transformational. One of them is an icon. The other one was really almost lost to history. And I guess I’m wondering if you have a theory of how it is possible that Pauli Murray moving in the circles she moved in, accomplishing what she accomplished, almost kind of slid through history’s fingers?
S2: Well, I think there are several factors involved. In fact, this your question reminds me of a question that I’ve heard over and over again from young people, particularly young law students who are almost in tears and sort of shaking their heads at me and said, how is it that I don’t know this? I’m angry that I don’t know this. I don’t know about this person. And I think there are several factors. First of all, you have I think we have to be mindful of the historical context in which she lived, in which people with her background, in her intellect, who presented as female and who were lawyers, found it very difficult to get her Pauli talked about not not being allowed or being discouraged from speaking in in classes and the sense to which professors said that there was there. There’s really no place for a woman in, as she presented at that time, as as a as an attorney or as a legal scholar. So I think some of it was the the restrictions in the oppressions that she felt as a as a as a person of color, as someone who identified as female in in many ways. We use the term often now, intersectionality, Pauli. Murray was the embodiment of that concept. She is a person who knew from personal and professional and in every way that one might imagine what restrictions are placed upon one because of race, class, gender and economic background. And she she was vulnerable in all of those areas. There are also some personal factors beyond just those having to do not only with the gender identity, but Pauli had an interesting personality. I feel fortunate in that I was able to interview several of her long term friends, and many of them talked about her brilliance, but how impatient she was. And so what that meant was that she may be in a meeting or in a situation where she presents really innovative ideas and the people in the room would be very impressed. But if Pauli thought that the people were boring, she would move right along. And what we end and leave the idea there, but not seek to to claim it. And so there’s a pattern of of particularly male colleagues, lawyers who would take her ideas and not bother to give her credit. And I’m sure there are many women and people who are marginalized in various settings who’ve had that experience. Pauli also, and this is related to her economic vulnerability. Over the course of her life, was never adequately compensated. And for a good portion of her life, suffered young life, suffered from malnutrition. So we end up with a person who is compromised in terms of her physical health, in addition to dealing with gender identity, conflict issues. And in addition to her impatience, she was someone who really didn’t care a whole lot for the hierarchy of institutions and. It’s within those hierarchies and the people who reside in them, that history is written. And so when people write the history, wrote the history of the NAACP and continue to do that because Pauli would offer her ideas, but not stay around to insist that that be part of the minutes, you know, is who who writes the minutes really shapes the the perception of what actually happened in so that her frustration with the hierarchies, her her her her general, just insistence on moving ahead often meant that she was not around to to claim credit for her ideas. So and and I also think the fact that she was more than a lawyer in many ways, I think there’s a there’s a clip in the film where someone is about to interview her, speaking to her, and they say something like, oh, we have a lawyer turned writer. And she says, no, I think you have it wrong. I’m actually a poet who became a writer so that her sense of being a creative person is something else that makes it really hard for some people to get a real sense of her personality. Because in her contributions, because Pauli is so huge in the film, we talk primarily about her as a as a as an activist and a lawyer, a human rights activist. But Pauli is huge as a creative writer. I mean, she is a person who, I argue set early precedent in her work. As a writer of family history and family memoir, but in her time, people didn’t know what to do with that work because the reviewers said it read like a novel. Now, what do we say now about what we consider to be the best memoirs? They are? They are their family stories that read like novels. So she was just she was a renaissance person. And she she was complex. She was huge. She regularly said to her friends and colleagues, you know, it is my quest to live an authentic life. I want to experience the wholeness of life. And for for Pauli, that meant moving forward on multiple terrains. And so she she just didn’t approach life in a narrow, straight line. And many people found it hard to to to believe and to process Patricia.
S1: I love what you just said, because you’ve preempted my ninth question, which is in all caps, ask about the poetry, because the poetry is kind of like the soundtrack of this film. And I think you have to just stop and sit for a minute with how exquisite her poems are, because, you know, I was watching it as a lawyer and as somebody who was really, really got very excited when we started talking about the 13th and 14th Amendments. But the poetry is it’s breathtaking. And it’s just I’m trying to imagine, you know, the the poems of Stephen Breyer, the poems of Antonin Scalia. Like we don’t think of them in those terms. And I guess I want to ask I guess this is for for Julie or Betsy, but it’s so clear that we are talking about somebody who is so outside the scope of I’m a worker bee and I really, really, you know, by the way, I, you know, wrote the spine of Brown v. Board years earlier and never got credit. But all these other lifetimes she’s lived, it’s almost as though by the time the civil rights movement catches up to her in the 60s, she’s moved on to the next thing you know, by the time sit ins have cut up to her, she’s moved on to the next thing. It’s just freakishly capacious, this this kind of imagination and worldview.
S4: This is Betsy. I think that at the beginning of putting the documentary together, Julie and our producer, Tulio Bridges, McMann and I were not intending to include as much poetry as wound up in the final film. It was really when our editor, Cinqué Northern, put together the sequence in the film about Polly’s childhood and then the the looming fear and backdrop of Pauli life where lynchings were on the rise. And, you know, it was such a devastating sequence. And then he and then he he edited together the poem about her experience of of slavery crush us, which of course, then ends with a kind of. But we will we will rise up, forgotten the exact words. But it’s so it was so moving that then we realized at various points in the film that it could be a good idea to include some of the the moments of Pauli poetry, because to us it did take it to another level, which was, you know, very profound.
S5: Yeah, this is Julie. Pauli actually said in some and we listen to that, given the choice of all of Pauli many identities, writer was actually the most the most important. And if it hadn’t been for one after another, after another obstacle that was placed, you know, along the path of life, like Pauli would have just been an artist and a writer and would have written this incredible poetry, memoirs, short stories, novels, journalism, because there were a number and, you know, taken photographs because Pauli was a very skilled still photographer. But, you know, when you’re being kept out of colleges and graduate schools and institutions, both because of your race and your gender or perceived gender, like, you sort of got to fight those things or when you’re having, you know, the struggles that so many people were having in terms of, you know, workers rights, because Pauli had a number of of jobs in the in in the circumstance, you know, particularly the 1930s, where workers were being treated horrendously and Pauli felt like there was really no choice but to join the labor movement, the civil rights movement, to not only join but be a part of forming. The women’s rights movement so that it actually takes away from your writing time, but if this is what Pauli was able to write, you know, with all of these things in, you know, standing as obstacles, like just like like imagine I mean, like I’m actually Pauli was relatively prolific even with all these other, you know, complete careers.
S1: I actually want to follow up for one quick second. Julie, because it strikes me that, again, in contrast with Justice Ginsburg, who made again, she was between historic moments. Right. She it was too late for her to march. She didn’t want to march. Like by the time the women’s movement was taking off, she was almost outdated. She certainly wasn’t doing direct action. She wasn’t doing sit ins. Pauli Murray really, interestingly, was both a legal architect. And, you know, you have some sense that she she couldn’t even be contained by that. And so then she really is doing, you know, the sit ins. And I wonder if there’s some it’s really striking that years before Rosa Parks, she refuses to move to the back of the bus. She gets hauled off the bus and put in jail. She connects with the ACP. There’s a moment at which it looks like she could be the plaintiff and in the case just vaporises. It’s dismissed on other grounds. I wonder if there’s a way in which even when she’s trying to be visible by resisting injustice, sometimes she gets erased. It’s just such an interesting story that even when sometimes when she’s trying again to go back to Patricia is opening to just be seen and heard so frequently, you get the sense she doesn’t even get the merit of having protested these things.
S4: This is Betsy. I mean, I think, you know, the the bus arrest is such an interesting story because it starts out with Pauli and a friend just going down to visit Pauly’s family. And as Pauli says, we did not intend to protest these segregationist laws. But there are times when you just have no choice. Pauli saw the injustice being asked to go and sit in a broken seat when they were available seats. And and so Pauli was going to stand up for herself and for her friend. The dismissal of that case is kind of interesting. I mean, the resolution of the case, Thurgood Marshall was involved in defending her. There’s been some question about whether or not a Pauli and her friend were perceived to be too odd, perhaps to make a good test case. And it’s also the question of the the judge himself who who saw that maybe I don’t want to go there. So we dismissed the charges that would have given, you know, the NAACP grounds to take it, take it to a higher route. But, yes, that was a sort of missed opportunity. Pauli then went on to actively protest the segregation of restaurants near Howard University at Harvard Law School, which was another, you know, activism. And again, these things were covered in the black press, but they weren’t. Nobody else knew about them. You know, so many years before the movement gained the traction and and people started to pay attention. I don’t know if that’s because of the of of television, of the the pictures that we could see of the protesters in the 1960s. And we didn’t have that earlier. Or, you know, I’m sure that historians have many other factors for why these earlier protests. And Pauli wasn’t actually the only person doing this. There is evidence that that many African-Americans had refused to go to the back of the bus, had had had protested injustices. But these were they were sort of considered isolated incidents before the, I guess, the modern civil rights movement.
S2: This is Patricia of one of the things that impressed me when I as I followed the story of Pauli life as a lawyer, was that she reached the point where she was reviewing her career, reviewed her career as a Pauli, reviewed her career as a lawyer, and wrote in a journal that she had gotten to the point where she. Who is questioning how much of her time and energy she had put into being a lawyer, because not to say that she wasn’t very appreciative of all the strides they have been made, but she said that lawyers are focused primarily on the facts. And writers. Or poets. Which is which was the her dream with the dream job she she she preferred her identity was poets were focused on the truth. So as opposed to lawyers who were focused on facts. And if you read the collection of Pauli poetry, I think that is where she comes closest to expressing the fullness of her identity, because you do not have to read too closely to see her love of another person, presumably a woman. You don’t have to read too closely to see her disappointment in in in prior relationships. It’s all I think it’s all there. And it was in the creative writing where you see her working very seriously and diligently to the on the expression of issues of identity and feeling that the law. Is can can be a restraining force, and I think I think so often now about the fact that is Pauli moved into mid life, the the career or the job that she Covid it most was a position on the Supreme Court. Now, let me ask you, what do you think the court would be like if we could be so privileged to have a Pauli Murray? Associate justice, she very much wanted to and felt that she was qualified and deserved to be considered for such a post and wrote President Nixon and said, oh, when they were considering when there was a position open that she was ready and available, and that if he wanted to nominate a woman, that she was ready and available.
S1: Probably Nixon wasn’t her guy. Yeah. Yes.
S2: Yes. Yeah.
S1: We will before we leave that, two things that strike me Patricia. One is so amazing that she was talking about dignity as a constitutional right, protected in the 13th and 14th. I mean, that that was. Way before I started hearing Justice Kennedy and Justice Ginsburg talking about dignity, so there’s a way in which just as she just saw the inherent weakness in separate but equal, she was like, I’m not going to sit here and waste my time making equal facilities. This is about human dignity. There’s a way in which in all the ways that she’s ahead of her time, she really sees the Constitution as a document that is promoting equal dignity. Long before Oberg AFL, long before Justice Kennedy is writing it in. And it does seem to me that it’s another way in which she’s just so boundlessly ahead of her time.
S2: Absolutely so, so foundational so that many of the signature rulings that we have seen recently to me go all the way back to Pauli notion of human dignity and human equality, an authentic selfhood. So, yes, that undergirds brown, it undergirds the civil, the civil rights, the civil rights work of the 60s. And in her fight to ensure that Title seven, which would include sex as a category in that bill, she almost single handedly saved that by drafting a memorandum that was sent to every Congress person, to Attorney General Robert Kennedy. And she and a network of women activists got that memorandum to Lady Bird Johnson with the cover letter in which Pauli Mary said, you know, women are being discouraged from speaking out about this. But I want you to know that the bill without the Sixth Amendment in it would mean that only black men would have equal protection in that black women. And she was on edge until she got a note from Ladybirds Social secretary in which it said that the the that Lady Bird had shared the argument with her husband, President Johnson, and that and that the amendment would the bill would remain as as it was. So the other thing about Pauli, I’m going back to an earlier question you raised about her, about how her contributions are just not forefront in the forefront. And there’s another part of person, a personality that, you know, kind of it’s it’s confusing in the sense that here’s a person with these bold ideas, but temperamentally shy. An introvert in many ways, and, you know, she would call you out, but interpersonally shy, so that when now is formed, Pauli Murray was comfortable with the idea of Betty Friedan being the national spokesperson who represented the newly found National Organization for Women in and with the media and the larger community. So I think it is polymerase shyness, too, that has contributed somewhat to the extent that she is not identified with projects in organizations for which she clearly is one of the founders.
S1: And before we leave the law, I want to give Betsy or Julie or both of you a chance to just talk about this arc, because I think Patricia sort of laid out she gets really interested in the law. She feels that this is the vehicle for bringing about, you know, massive social change, as we’ve suggested now a couple of times. Her name is on the brief in Reed V Reed. She ends up, although totally uncredited, doing some of the work that becomes the foundation of Brown v. Board. All of this happens. And she she presumably could find a life in the law. And yet in the end, and this is I can’t help but contrast her to our big Aaberg lashes herself to institutions. She lashes herself to the ACLU. She then lashes herself to the federal appeals court and then the Supreme Court. There’s a way in which and I guess I’m just so curious about this. I think Patricia makes this point that Pauli gets really frustrated with institutions that aren’t moving fast enough, that are blinkered, that are just not getting it done quickly enough. And I can’t help but want, again, either Betsy or Julie for you to walk me through this counterfactual where if she had stuck with some institution, if she had just said, I rise and fall either with the courts or the universities or some institution, that this might have been an easier road for her, or if just the institution of the law itself in the end wasn’t enough for her the way it was enough for our BJI.
S5: Yeah, this is Julie. I mean, I think the easy road was really not of much interest to Pauli Murree. I think, you know, that’s sort of at the premise of all this. Pauli said on a number of occasions that that Pauli was super interested in being at the vanguard of all kinds of different movements once others joined in and wanted to take up that fight. Then Pauli was ready to move on to the next thing. I mean, we love the moment in our film where Eleanor Holmes Norton, who was a classmate of Pauli when Pauli was getting doctorate at Yale Law School, and Eleanor Holmes Norton was a PhD student. You know, Eleanor Holmes Norton and some of the other black Yale law students were out there, you know, fighting for civil rights as people were in the 1960s and Pauli at that, by that point, really was most interested in talking about feminism and which was, you know, not a known not a very well known concept in the early sixties. And basically, Eleanor Holmes Norton just said, we were all like, what are you what are you talking about? Pauli, you know, Pauli liked to liked being way ahead of the curve and was willing to do that, maybe at the expense of becoming a central figure in a movement that Pauli stuck with over a course of decades. I mean, there’s a great moment where Pauli says, I like to think that I have lived and will live more to see my lost causes found. So even if it wasn’t Pauli that was going to drag something over the finish line, if Pauli started something and then it moved forward. You know, with or without Pauli, then that’s still a victory.
S4: I mean, there’s I think that Patricia captured this, but there’s a restlessness to Pauli Murray. And you see that that always pushing, always going to the next thing finally gets to Paul Weiss has a measure of stability, meets a partner, and yet is not satisfied with being a corporate lawyer that, you know, and then just gives it all up to go and explore what is going on in Africa with some of the independence movements in Africa and then return to the United States and is, you know, on to feminism now. And then finally, the the move that surprised polies, friends and. Family the most after the death of Polly’s partner, Renae, turns to religion, turns to spirituality, and people just cannot believe the Pauli is going to go to theLa, you know, in her 60s, basically go to theology school and become an Episcopal priest. It’s just unfathomable. But to Pauli, in a way, it made sense because it’s like she had exhausted what she could do with the law and felt that the spiritual satisfaction of ministering to people would would be more important.
S2: I would like to add just a couple of things, and that is that it’s important for us to remember that the opportunities are BGI had were not. Available to Pauli, so our BGI did get into into Harvard, Pauli was denied after Pauli got the masters of law from UC Berkeley. And after she got the doctorate from Yale, she very much wanted to become a law professor. She did not have that opportunity, never had that opportunity here. When she finally returned from Africa and finished the law degree, the doctorate in in law Erde at Yale. She she you know, she she took she finally got a job in a university teaching, but she never got to teach law full time. She taught law part time at Boston University. So her because of her restlessness, she she was always moving forward. But there were doors that were closed to her. And so she was not willing to to to to keep waiting and agitating to to get the doors completely open. She cracked the door in our BJI and other women and other people of color were eventually able to to walk through. So we cannot forget, you know, the limitations placed upon her by the strictures of the time.
S1: That’s so important. And I’m so glad you said it, because I think in some sense, even when she lashed herself to institutions, they let her down. I mean, I think, you know, her her attempting to get tenure at Brandeis. It’s an extraordinary set of stories of no matter what she did, it wasn’t good enough. I also just want to point out, in all my years of this podcast, my husband, the sculptor, has never handed me a note, but he handed me a note as I was taping. It says Pauli Murray was an artist, not an institutionalist. And so that, you know, when when we think about RBG, as somebody who put the friendship with Scalia, put the institution of the law, put all her anger, stuffed it in a box, never burned a bridge, never, ever turned her back on an ally. She was an institutionalist. We are living in a moment where we have such grievous doubts about institutions and institutionalism. I almost wonder if that’s why Pauli Murray is having a moment, because the compromises one has to make for institutions are starting to feel like they don’t necessarily pay off. I’m going to ask just one last question before I let you go, although I want you all to know that I’ve got about 30 more that I would love to ask, but but I feel like we should talk a little bit about just Pauli Murray’s kind of pain and brokenness, because it is so pervasive through the movie that, you know, Pauli is imploring physicians for help, is imploring somebody to sort of see and understand how sad she is and, you know, how difficult it is. And at the same time, I think at the end, you get some sense that that is healed when she finds the church. And that, as Patricia says, there’s something about that turn to God and to to spirituality. I love at the end of the film where you get the sense that she becomes a listener and not a talker. And I wonder if there’s some guidance in there for any of you about what it is that she needed and what it is that the law failed to give her that. Toward the end of her life, she got by kind of turning inward and turning upward.
S5: Wow. You know, I think like in many ways, Pauli felt like the law was just too small and that the big questions of like seeking justice and seeking neighbors that love and respect one another and the dignity that all human beings deserve. Like, in the end, are those really legal questions or are they spiritual questions? Of course, this wasn’t coming out of the blue at all. Pauli was very much raised in the church and had such a deep closeness to the aunt who was actually an adoptive mother, Aunt Pauline, that that sort of placed Pauli in a deep sense of strength. And even though I mean, pain is right, I’m not sure I’m going along with brokenness, though, because Pauli was pretty unbreakable. There was a lot that happened throughout Pauli life that could have just crushed Pauli right in half. And that’s just never quite what happened.
S2: I’m thinking of it in one of the responses she gave, one of. Her friends who. And there’s a couple of people in the in the film who when they’re asked, you know, if they knew that she was on her way to the priesthood or they knew how that she would become a priest. And, you know, many of them say no. And I when I interviewed her friends, several of them said to me, I had no idea. And their major concern was here. She was resigning this named professorship at Brandeis to to go into the go into the seminary at a time when the church had not decided whether or not the church had not voted to ordain women when Pauli entered the seminary. And she said to this friend, you know, I think the missing element is theological. And she was thinking about issues of dignity. She was talking about issues of dignity and justice. She wasn’t she was she was saying that the law was important, but that the missing element in her life was theological. So and is Julie just say it, religion being a Episcopal alien was very much part of Pauli Mary’s core. She was like sixth or seventh generation Episcopalian. So this was a very deep part of of of who she was. And it it it is my sense that it was in later years in later life, there Pauli Mary felt that there was acceptance on the part. I mean, there were people along the way who had always been accepting of Aunt Pauline was just incredible. Aunt Pauli referred to Pauli as my boy girl. Eleanor Roosevelt was accepting I never discovered any letters, the correspondence between them that suggested that there was a discussion about sexuality or or gender identity. But I had this strong sense that Eleanor knew who Pauli was, and Pauli knew that Eleanor knew who she was. And she just felt tremendous acceptance. And that relationship became a surrogate mother daughter relationship that was very important to to a Pauli Mary’s sense of well-being. So this sense of finding community in acceptance in others became became it was pronounced as in in mid and later life in. And so I guess I feel that the decision to move into the ministry was evidence of her healing and her desire to be as her niece is a listener in support of the healing of others, which I think is important. You know,
S4: this is Betsy. Just one thing to add. When you start to make a film, you don’t know what discoveries you’re going to make. And one of the most amazing discoveries was something that Julie found in the messenger library that had been sort of misfiled. It wasn’t with the Pauli Murray collection, but it was an interview that a young woman had done, a woman named Lynn Conroy putting together a feminist syllabus and interviewed Pauli Murray in Polly’s Priest Collar, sitting at the desk, working at the typewriter. And we were, of course, thrilled to have this video. We had a lot of audio tapes, but to have video, the thing about it that is to me was so wonderful, in addition to seeing Pauli relationship with one of Palis beloved dogs who keeps, you know, barking and shaking down to count down Roy and but was was Pauli smile. And it was just a beautiful, beautiful. One just welcoming, fantastic smile and you know, we used it throughout the film to give a sense of who this person was, and certainly at that point, Pauli seems happy.
S1: I am so, so glad you said that, Betsy, because I also was so struck by that beatific smile. It just was really quite visceral. How this is somebody who had really found peace. The film is my name is Pauli Murray. It premiered at Sundance. It will be released by Amazon this fall. It was made by directors Betsy West and Julie Cohen, who made the phenomenal pathbreaking documentary Ardbeg. And Professor Patricia Bell-Scott was a consulting producer on the film. She is professor emerita of Women’s Studies and Human Development and family science at the University of Georgia. Her biography, The Firebrand and the First Lady Portrait of a Friendship Pauli Murray, Eleanor Roosevelt and the Struggle for Social Justice won the Lillian Smith Book Award. I cannot thank the three of you enough both for your time today, but also really for helping excavate and bring to life something that Patricia said it best. I cannot believe how angry I am that nobody told me about this in law school. Thank you so, so much for joining us today.
S2: Thank. Thank you.
S5: Q Thanks, Dahlia.
S1: Hi, and welcome to our Slate plus listeners. Thank you always for supporting the magazine. And welcome to the bonus section that has been quiet this summer, because the court was at least theoretically between terms. But the court has been very busy, actually, especially this week. And so we have dragged the incomparable Mark Joseph Stern back into action a little early to help figure out what the ever loving is going on. Mark, we are so sorry to bring you back into action. Thank you for being here.
S6: It’s my pleasure. Waltz down the red carpet with cameras flashing into the slate. Plus, VIP room and its shadow rocket time.
S1: It’s AlWe every day shadowed Acade. Let’s jump right in and maybe start with Thursday night’s news. That was the eviction moratorium decision. You’ve been waiting all week for that to come down. Tell us what the court did and tell us why the court did it.
S6: Yeah, so this decision was probably inevitable, right. As we all remember, the eviction moratorium was set to expire at the end of July. The court had said by a five to four vote that it wasn’t going to block it in June. But that fifth vote, Brett Kavanaugh, basically said, hey, I think it’s illegal, but because it’s expiring soon, I’m not going to step in now. Biden let it expire for a couple of days, but some heroic actions by Corey Bush and other progressives persuaded him and the CDC to issue a new, narrower eviction moratorium that still covers most of the country. That teed up this battle and this rather inevitable finale where by a six to three vote, the Supreme Court issued a major shadow docket opinion, not just an order, but a full blown decision. Those still unsigned, holding that the current eviction moratorium is illegal, that it is not authorized by Congress, that the balance of equity is strongly favors the poor. Landlords shed a tear for all of those sweet mom and pop landlords who just want to evict families from their homes during Covid. You know, and definitely doesn’t favor the millions of Americans who are now going to be kicked out of their houses and placed at risk of Covid. And all three liberals dissented. And that’s that the eviction moratorium is over. Thanks to the Supreme Court, there’s virtually no chance that Congress will authorize a new one. And so this chapter of America’s Covid response is over. And we’re going to see a lot more people who are living without housing or living in congregate housing or crossing state lines, potentially with Covid to find housing, thanks to six conservative justices on the Supreme Court.
S1: And you said millions, and that’s no lie. That’s the number that I read as well. And I guess worth in case people live under rocks, just pointing out this is as Covid surges all over the south.
S6: And this is a point that Justice Breyer makes in his dissent, which I thought was a pretty effective dissent. Breyer isn’t always as barbed as Justice Sotomayor Kagan, but he actually included a graph where he showed that Covid, the Delta wave, is surging across the south and also across much of the country and made the. Pretty sharp point. That last time this case came to the court, the landlords who are arguing against the moratorium said, hey, look, Covid is falling away, Covid isn’t a problem anymore. You know, if the wave is ending, it’s over. And so you guys got to let us kick out our tenants. Well, a couple of months later, here we are. And the predictions there were dead wrong. Covid is surging once again. It is way worse than it was last time. And yet, according to the conservative majority, that just doesn’t matter because the rights and interests of landlords so overwhelmingly outweigh the rights and interests of everybody else.
S1: And Mark, you and I were talking just before we started taping about the silver lining. To the extent that there’s an ostensible silver lining, which is that the court doesn’t use this case to end the shadow docket to make any definitive declarations about Biden’s presidential authority. So we’re supposed to be like, well, we dodged a bullet because at least there isn’t some new law of executive power made. That feels like a pretty tarnished silver lining.
S6: Exactly right. Exactly right. So so the eviction moratorium that the CDC issued, which, by the way, the CDC first issued under Trump at Trump’s directions, and by the way, Congress expressly cited and approved in legislation and extended in its late 2020 Covid package. This moratorium was based on a super broad grant of power that was embedded in this law from the 1940s that essentially said the CDC can take very dramatic action to limit or stop the spread of a contagious disease in between states. And the moratorium really closely tracked this law. Anyone who wanted to claim a right not to be evicted had to certify that, you know, they would go unhoused or be desperate for housing if they were kicked out, that they would risk traveling across state lines, that they might bring Covid with them. But nonetheless, the Supreme Court sort of narrowed this statute and said, well, the way we read this statute is really just about like the government fumigating apartments. It’s not about giving the CDC this very broad authority to limit the spread of disease. Now, that’s a reading that a lower court expressly rejected. The D.C. Circuit said, no, that’s not right. This is very broad. The dissenters agreed with that analysis. But the facts that the Supreme Court simply narrowed the statute is in a way kind of a relief, because the alternative would have been some kind of big doctrinal move, maybe even a kind of constitutional ruling where the conservatives said, you know, the the Congress doesn’t have authority to give the president this sweeping power. Congress cannot delegate this kind of really broad authority to the president. So even if the statute says what a lot of folks think it says, that would make it unconstitutional. The court didn’t say that it step back from the from the brink and just gave a very narrow reading without invoking the Constitution. And in these rather dark days for the Supreme Court, I guess we have to call that a win, because the conservatives didn’t do a lot of doctrinal mischief that could have meddled with a whole lot of other laws that grant similarly broad power to other agencies.
S1: I want to turn to the other very, very inscrutable shadow docket decision. You and I wrote about it earlier this week, and that is the remain in Mexico policy, as it’s called. Can you talk for a minute about this as a kind of a thorny case to explain, but can you talk about what the court did? And I would say why it did it. But as we both know, we don’t know what the court’s logic was for remain in Mexico.
S6: Right. Got to love the shadow docket. So this one, in a sense to me, is even more disturbing. It might not have as devastating an impact on humans, though. It will certainly have many victims. But this was a gross abuse of the Supreme Court’s power, because what we’re talking about here is a single federal judge in Texas appointed by Donald Trump, issuing this bizarro order requiring the Biden administration to revive a policy that Trump himself abandoned in March of twenty. This is the remain in Mexico policy. Right. That forced the vast majority of asylum seekers to wait in these awful violent, unsanitary tent cities on the Mexican side of the border while they awaited their asylum. Hearings in the US are single handedly responsible for many, many murders, kidnappings, assaults, these poor migrants are forced to wait in the most brutal conditions imaginable. Trump suspended it in in 2020 and sort of superseded it with different Covid related border restrictions. When Biden came into office, he formally suspended it in June. His Department of Homeland Security formally repealed it. It seemed like all of this was pretty straightforward, right? This program had been dormant for like 16 months, and Biden did not agree with it. And also several lower courts had found that it was actually illegal, that it violated our federal laws. And yet this lone federal judge in Texas took a look at it at the request of Texas and Missouri and said, I’m going to revive this program. I’m going to force the Biden administration to revive remain in Mexico, which has not been in effect since March of 2020, and fully implement it within one week, one week. Now, this was a policy that required extensive diplomatic negotiations with the government of Mexico, because despite what this Trump judge might think, the United States does not have the authority to just unilaterally tell Mexico, you have to keep thousands more migrants in your borders because we’re rejecting our own treaty obligations. That requires negotiations, this Trump judge said. Well, I don’t believe that it requires negotiations. I’m going to take control of this particular aspect of foreign policy and simply force U.S. officials to figure out how to do this in the span of a week. Really radical decision just directly contradicts decades, if not centuries, of Supreme Court precedent, saying that the judiciary should defer to the executive on foreign policy. Kind of a hostile takeover by one judge of the executive’s own foreign policy decisions. And yet in an unsigned six to three order, the Supreme Court allowed this deranged judge’s decision to take effect. And as we speak today, there are frenzied Biden administration, top level officials forced into diplomatic negotiations with the government of Mexico, pleading with them to hold thousands of more migrants on their side of the border because one demented judge told them to.
S1: And it’s worth saying a couple of things that I think we flagged when we wrote about this, you and I. One is that the determination was made. The court ostensibly makes the determination that it was the memo that rescinded remain in Mexico that was arbitrary and capricious, although nobody knows why. And we’re told in the same order, three sentences order that as long as the Biden administration is in good faith, when they try to reinstate this policy, they’ll be OK. But nobody knows what good faith looks like.
S6: Right. And, you know, I saw a lot of folks, largely bad faith trolls saying that, oh, well, this order just flows naturally from the Supreme Court’s decision on Dacca last year when when the Supreme Court by a five to four vote, blocked Trump’s effort to rescind stocka and start deporting Dreamers. And I just think that’s so off base for a couple of reasons. I mean, most obviously, allowing Dreamers to stay in this country does not affect foreign policy in the way that forcing these negotiations with Mexico does. But also, in the talk of decision, the chief justice laid out exactly what the Trump administration did wrong in trying to repeal Dacca and exactly what it could do next time to make sure it would do it correctly, really went through almost line by line and said, here’s where you errored and here’s what you need to fix next time to repeal Dacca. And this time around, this order that the Supreme Court issued three sentences, like you said, and just had these vague citations to the Dacca decision saying, oh, well, based on this precedent, what what the Biden administration is doing is arbitrary and capricious. How are Biden officials supposed to know how to fix this memo and rescind this policy correctly and lawfully when the Supreme Court refuses to give them guidance? I mean, we should we should note here that the court’s conservatives repeatedly set aside nationwide injunctions against Trump’s immigration policies. Right. Over and over again, Trump would try to implement some crazy immigration policy. A federal judge would block it. The Supreme Court’s conservatives would step in and say, actually, you can enact this policy now. So here not only did the Supreme Court’s conservatives change their position and say totally fine for a single federal judge to issue a nationwide injunction against the president’s policies on Namik. GRATION but they wouldn’t tell the president what to do next time to get it right. So it really feels like a Cold War between the Supreme Court and Biden is getting hot here. And this feels to me like the conservative justices really thumbing their nose at Joe Biden and saying, see what we can do when you underestimate us, see how we can screw with you when you don’t take us seriously. We’re not just going to force you to revive this program at the at the direction of a single judge. We’re not even going to tell you how you can fix the problem. And so you’re going to end up back here on your knees begging us for permission. And we might not give it to you next time either.
S1: And I just want to say, we did a couple shows around this and we definitely talked about conditions in the camps and the humanitarian. Just the utter, utter failure of these camps in terms of disease and violence, rape, kidnapping. This is I just want to pair it again with the eviction moratorium, an absolute blind eye to massive, massive human suffering. As you say, dismissed early in a couple sentences. Is it relevant? I guess it is that Donald Trump’s first action is first major action when he comes in is the so-called Muslim ban. And now we see, you know, what the recision of remain in Mexico is one of the very first things that Joe Biden did informally and then formally in June. I wonder if there’s a through line here, Mark, about the ways that immigration continues to be the hot button issue, the defining American question, who can stay, who can go, who we allow in, who we don’t? And even in the midst of Covid, the idea that the court would be so cavalier as to reinstate a program and a couple of sentences without explaining why or how it does feel like in some sense, the more things change, the more they stay the same.
S6: Yeah. So I think there’s a practical component and a symbolic component. Right. So practically speaking, immigration is one thing the president has a lot of power over. Right, because there are these really broad statutes that give him sweeping authority to decide who can enter the country on what terms. And both Trump and Biden have read them very differently. Right. Trump tried to let no one in. Biden is trying to get more people in, though not nearly enough, in my view, and the view of many congressional Democrats. And so there’s a lot of political football with immigration at the start of each new administration. And then all the way through it, we saw with Obama. Right, with both Dacca and Dopa and other programs, you know, the courts continually tinkering and interfering with those. So partly this is just the low hanging fruit for an activist judiciary to plock if it really wants to mess with the president. But then there’s also this symbolic component where immigration, like you said, is a fundamental aspect of governance and of nation. Right. And I think Trump said this in a really toxic way quite frequently, like if we don’t have borders, we don’t have a country. I think Biden approaches it in a much more empathetic way, that we have a moral obligation or responsibility to let in individuals seeking asylum, individual seeking a better life. And the Supreme Court has now, I think, taken sides in that sort of symbolic debates. And I think a deeply meaningful debate when we’re talking about what the United States is and what it stands for. You know, under Trump, the Supreme Court over and over again, green lighted these draconian restrictions on who is allowed into the country, greenlighted these awful policies and programs that forced these migrants into devastating violent conditions. And now under Biden, you know, Biden is trying to let in more individuals. Biden is trying to ease up on these restrictions. And the Supreme Court won’t let him. The Supreme Court is saying, actually, you have to keep these people out. You have to keep implementing these Trump programs because we’re the boss, we’re the deciders, and they have just taken a side here and it’s Trump side. And I think, you know, we can talk all we want about how the Supreme Court’s an apolitical institution. The Supreme Court’s not partisan. But I think with regard to this particular aspect of governance, the court is very clearly political and it has adopted the politics of the Republican Party under Trump on the question of immigration.
S1: That’s so smart. And I just want to flag for listeners. According to Steve Vladeck numbers, he teaches law at the University of Texas. He. Closely watches the shadow docket, the Trump administration filed 41 emergency applications in its four years, as opposed to just eight in the six years before under George Bush and Obama. That’s a twentyfold increase in the use of the shadow docket. And when Trump was filing those emergency orders 28 times, the court granted him the relief he wanted. And as we’ve said, a lot of those were in immigration matters. So I think it’s just a marriage here of this anti-immigration status that the court really has lashed itself to, as you just said, Mark, and the use of the shadow docket, just exponential increases in the use of the shadow docket and the ways in which the court was apt to say yes to Donald Trump and noted Joe Biden.
S6: Yeah. And just one sort of tag on that. It’s unfortunate to me that we’re sitting here sort of debating the merits of these policies and these laws as though this were just a regular old debate over, you know, who has the better reading of the text or the Constitution. Right, because that’s the trick of the shadow docket. This isn’t the debate we’re supposed to be having. Right. The debate we’re supposed to be having is whether it is so overwhelmingly and demonstrably clear that one side is right and one side is wrong under the legally accepted standards that have governed our law, not whether one argument is better than the other, but whether one argument is so overwhelmingly better than the other that no reasonable jurist could possibly side with that other losing argument. But all of those technicalities and procedural details fall away. The Supreme Court’s conservatives know that they know they can get away with just ignoring these really heightened standards that they’re supposed to meet when issuing a shadow docket decision. And so this this whole this whole surge of shadow docket cases has turned into regular old Supreme Court stuff. But instead of full oral arguments, full briefing and months to decide, it’s no oral arguments fly by night, minimal briefings and a short unsigned decision issued at 10:00 p.m. And I just think that’s not how a court is supposed to act. That is a kind of a fundamentally political intervention in American governance. And it’s something that just to beat this this dead horse, like something Congress can change and needs to change if we want to stop the the conservative justices from turning their court into a kind of super Senate.
S1: And you and I have said this before, Mark, but it’s worth saying, again, the court is making determinations now about what constitutes an emergency. And it turns out that the court just thinks a lot of emergencies are emergencies. And that’s part of the problem, too.
S6: Right. Right.
S1: Mark Joseph Stern writes about the Supreme Court, the law, state courts, all the things here at Slate. And it is always, always a pleasure. We’ve missed you this summer, my friend. I’m sorry. It’s under slightly grim circumstances.
S6: They don’t seem to get much better. But let’s hope that when full time, regular SCOTUS season starts up, we’ll find at least one happy thing to talk about, even if it’s just Breyer retiring.
S1: And that is a wrap for this episode of Amicus, thank you so, so much for listening in and thank you for your letters and your comments and your feedback and questions. You can always keep in touch at Amicus at Slate dot com, or you can find us at Facebook dot com slash Amicus podcast. And if you can, please do rate us and leave a review on whatever platform you may be listening on. Today’s show was produced by Sarah Burningham. We had research help from Daniel Maloof. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. And June Thomas is senior managing producer of Slate podcast. We will be back with another episode of Amicus in two short weeks.