In This Episode
Melissa interviews Dahlia Lithwick about her best-selling book Lady Justice: Women, the Law, and the Battle to Save America. They discuss overlooked women who shaped the legal system, complicity in judicial culture, the problem with clerkships, and what it means to actually participate in rebuilding a broken system. The conversation was originally a virtual New York University Birnbaum Women’s Leadership Network Book Talk in October 2022.
- Order Lady Justice: Women, the Law, and the Battle to Save America here (use code STRICT10 at check-out for 10% off!)
- Read more about Whole Woman’s Health v. Hellerstedt
- Watch this documentary about lawyer and activist Pauli Murray, an often under-credited legal pioneer of civil rights, racial justice and gender justice, and listen to Strict Scrutiny’s interview with the film makers
- Learn more about the International Refugee Assistance Project
Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when I argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.
Melissa Murray Hey there, Strict Scrutiny, super fans. This is Melissa Murray. We have got a fantastic episode for you today, a conversation with Dahlia Lithwick about her book, Lady Justice, Women, The Law and the Battle to Save America. Dahlia and I did this book Talk with the Birnbaum Women’s Leadership Network at NYU Law back in October, and I’m excited to share it with you today. Dahlia is the senior legal correspondent at Slate magazine and the host of the award winning podcast Amicus. Her work has appeared across many media outlets, including The New York Times, Harper’s, The New Yorker, The Washington Post, The New Republic, and other commentary. She’s the 2013 awardee of the National Magazine Award for her columns on the Affordable Care Act. Enjoy the show. Let’s talk about the book, because the last time we were in conversation together here at NYU, you were just beginning or sort of maybe the middle of the beginning of this book project. And you talked a little bit about it and previewed it, but it hadn’t really taken shape and it was a little inchoate. How did you finally settle on the format that the book now takes, which is to chronicle the lives of these very different women, all of whom are engaged in different struggles for justice, ultimately come together over this long period of time. That is actually a very short period of time. The four years of the Trump administration that although just four years really felt like a lifetime.
Dahlia Lithwick I think maybe the way to explain it, Melissa, is to explain the books that I didn’t write. So, you know, there were a couple of years in there where I had a book proposal about the three women justices at the time and then the four women justices. And I was really sort of trying to think about this very, very high level. Do women judges think differently about the law? And for reasons I know we’re going to talk about in a minute. First of all, I think with an end of three or four, you don’t want to essentially. So that was part of it. Part of it was that I was sort of staring down the barrel of what I felt was like a worrisome trend toward RBG hagiography, which you and I have discussed before, and we can talk about some more, but I just was very worried even. And that was in 2017, before she died. This complacency around RBG is doing all the work. So if I just get the tote bag and the T-shirt and the Advent candle, then it will all get done. And I and I was worried about that a little bit. Even then, I’m more worried about it now and then I think I really felt in the Trump years that what I was very interested in was all the ways in which women, in my view, kind of leapt into the fray, did the work, didn’t do a ton of workshopping, didn’t necessarily have a thousand people behind them, but just felt this vacuum and jumped in and more urgently that they won and they won kind of a lot. And we forget that. I think we sort of talk about the erosion of norms and, you know, the demise of the Justice Department and everything’s over. But in fact, Donald Trump was the losing president in history and he lost a lot and he lost in the courts in no small measure because a lot of women brought cases. And then I think he lost in Georgia because people like Stacey Abrams brought democracy. And so I think what I wanted to do was a little bit of a meditation on women and power and the law and the special relationship that I see there. And I know we’ll talk about that, but I also just wanted to flag all the wins and maybe I would just say after 2020, it became manifest to me that this wasn’t just going to be a book about history, it was going to be a book about the road forward, because I think a lot of the plays that we saw in a lot of the architecture of what some of the women in the book did are as relevant today as they were then. And so maybe I would end this answer by saying, you know, you can read there’s a chapter about Bridget of Mary and migrant teens on the border who were unable to leave their shelters to get abortions. One way to read that is, you know, yes, Bridget Amiri wins in the D.C. Circuit, but like we all lost after Dobbs, I read it as this is what a spectacular piece of lawyering can do and how to think about repurposing that and reimagining that for what is to come. Because I think it’s just too easy to say with this court and, you know, this election nihilism, it’s all over. I’m not prepared to say that.
Melissa Murray Okay. So you’ve anticipated basically almost all of my questions because, as you know, I am slightly prone to a little nihilism. And I guess I want you to convince me that this book isn’t just rose colored glasses, right? So you start off with the whole women’s health versus health. So this is the 2016 opinion written by the court. It’s a 5 to 3 decision written during that interregnum period where Justice Scalia had passed away but was not yet. By Neil Gorsuch. And before Donald Trump was actually president. So it seemed at the time when this decision was announced in June 2016 that Hillary Clinton might be president and that we would have a court with a progressive majority, whether that was Merrick Garland joining the fore or someone else. But it would be a progressive majority on the court. And obviously that didn’t happen. Is it the case here that these women that you chronicle, they won battles, but we’ve lost the war because at the end of this book, you end with Dobbs and you end with the 63 conservative supermajority that was made, a supermajority by a woman, by the introduction of Amy Coney Barrett. Did we win battles and lose this war?
Dahlia Lithwick Yes. Although I want to also stake the book in one other fact, which is going into that 2016 election. And you know this better than anyone, Melissa. We had a vacancy on the court. We had Mitch McConnell and Chuck Grassley vowing to hold it open. And in fact, john mccain and ted cruz campaigning openly for Senate, saying if Hillary Clinton wins this election, we will hold that seat open for four more years. Eight more years. And we had not just a vacancy but two octogenarians and one near octogenarian on the court. And we didn’t vote. We didn’t show up to vote on the court. And very few Democrats who campaigned for the Senate openly campaigned on the court. So I want to sort of like if we’re going to talk about losing the war, I want to take responsibility for all the ways in which progressives gave that away. And, you know, the data all bears this out by close to a 2 to 1 margin. People who thought the court was the most important voting issue broke for Donald Trump. So that was a complete failure of I don’t know what it was, a failure of organizing messaging, explaining to people that if you lose the court, you will lose everything. And that’s part of the reason we start at whole women’s health, because we were so close. That was an astounding moment, not just of having this astonishing opinion written, by the way, by Stephen Breyer, that really went beyond Casey in some ways and saw women as real people and saw the pretext of of the Texas clinic closures for what they were. And I want to be really clear that was ours to lose. And we lost it and we lost it out of sheer, I don’t know, screensaver around the court. We just didn’t think it mattered or we thought we were so certain that Clinton was going to win. So so that’s the first thing. And I think it’s important because I think we have to you know, we can fight. And I know you and I have had this fight every time we go on television until the cows come home about RBG failing to retire. But the fault was as much ours as voters as hers. That’s the first thing I think. The second thing is, and this is, you know, does go to your point. Listen, a lot of the wars that were won on immigration in the book on having a Justice Department that was independent and not in thrall to Donald Trump, We lost a lot of that, but a lot of it’s come back. And I think that a lot of it is material. Again, it’s easy to fault Biden for not fixing everything at a federal level, but I think we forget what he has done. And we should talk for a minute about his judicial nominations, which are a place that I think he’s shown an astonishing awareness of what Obama had kind of failed to do on his watch. So I want to both accept your point, which is there is a lot on the line. And I also want to say one of the things that the book does is we certainly start with lawsuits. I’m a legal journalist. I love lawsuits. Right. There’s nothing as fun as the tick tock of Brigitte Amiri or Robby Kaplan going into court. And we love law and order and as a culture, we like that arc. But the book ends with gerrymandering. I mean, it ends with MALDEF, it ends with Stacey Abrams, because you can win all the lawsuits in the world and lose the law. And that’s what you’re saying. And I think the end of the book, the last three chapters, are really like, for me, a critical about broadening the aperture, about what we think as women and law and democracy and constitutional democracy, and to start thinking really, really hard, not just about winning a bunch of lawsuits, but about Senate reform and Supreme Court reform and the Electoral College reform and all the parts of the system that are so rigged against women that we were almost overdetermined to lose the war. I don’t know if that’s fully responsive, Melissa, but I think it’s important.
Melissa Murray I think all of that is important. And I want to be very clear. I love the book. It’s an amazing book. And these stories are both really riveting in the way that you tell them, but also deeply inspirational. And it did stir my cold, dark heart and make me wonder if there was a spark of something that I, too could be Lady Justice and lead this movement. Let me back up a minute. You just mentioned the 2016 election and how so many of us failed to show up for the court, for justice, for democracy. The people who did show up pretty regularly, however, were black women. And I love that you began this book by invoking one of the most undersung people of color, Pauli Murray and Holly Murray. I think by today’s standard would be understood as gender non-conforming. And that’s not how Holly Murray identified at the time, and there probably wasn’t sufficient vernacular for them to do so. But can you say a little bit about your choice to begin the book with Polly Murray, someone whose work has seeded so much work on equality and injustice, but who has been so overwhelmingly overlooked by legal structures and the academy and and basically legal culture.
Dahlia Lithwick So here’s where I’m going to do the gratuitous pandering portion of the show so everybody can cover their ears. But so much of this investigation and interrogation of the role of black women in constitutional democracy is a function of my friendship with Melissa murray. We. Got a class together at UVA. And Melissa introduced a whole ton of polyamory material into the syllabus. And at the same time, I was reading and thinking about Dorothy Roberts, and I was thinking about Melissa was one of the people who brought Cooper Davis to my attention. And so I think I want to start by saying that the utter failure here is law schools that don’t teach some of the material that you’re talking about and don’t surface it and don’t think that it counts as part of the canon. And so at every turn, I really do credit people like Melissa, people like Michele Goodwin, who were very, very diligent about saying, Oh, you think you’re reading this for the first time. Here’s here’s something from 30 years ago where a black woman scholar wrote this. And by the way, the book is out of print, and that happens quite a lot. So I want to start by saying that that was why it was really essential to me to root this book in polyamory and to have the introduction start from a place of and I know I say this a lot post. DOBBS but this is something Professor Catherine Frank said to me know in the time period between SB eight and Dobbs, which is if you were a black woman in Tennessee or Mississippi, you never had a right to an abortion. And, you know, Roe and Casey were paper rights, and the Hyde Amendment took away and clinic closure. And that for all that we can talk about the women who, you know, as one stood up after Dobbs and said, what just happened? If you were a black woman, you knew that that did not just happen. It had happened always and was continuing to happen. And I think that that leveling is really, really important. And I think and I don’t say that from a place of pride, because I was one of the people who just also didn’t fully understand. Stuff that, you know, Melissa and Michelle and Dorothy Roberts were writing about and thinking about in terms of substantive due process and bodily autonomy and the 14th Amendment. So I want to start by saying that it was really important to me over the last year and a half. As Dobbs and S.B. eight rolled to understand the real story, not the story I learned in law school about blah, blah, blah, and, you know, Penumbra is in emanations. And the whole thing, even from the most generous telling of Roe v Wade, was profoundly disrespectful of what was being done in all of those reproductive rights cases. So that that’s the start. And then I guess the other answer is polyamory is amazing. Everybody should watch the documentary. My name is Pauli Murray, because that was another really foundational text for me, understanding that Polly Murray was desegregating lunch counters before anyone else was poly. Murray refused to move to the back of the bus before anyone else did. Poly Murray, unbeknownst to Pauli Murray, writes, What becomes the the pleadings the briefing in Brown V board and doesn’t get credit and doesn’t even know the Poly Murray doesn’t get credit until years later. Poly Murray is credited by Ruth Bader Ginsburg in some of the first briefing around using the 14th Amendment to protect women. At least RBG puts Poly Murray on the brief. But I think that Poly Murray is this where’s Waldo of not just civil rights and racial justice, but gender justice and by defying every single category, not quite black, not quite white, doesn’t get into undergraduate school because of race, doesn’t get into law school of choice because of color, as you said, gender. Non-binary. Completely, completely confounding every single classification we have. And just parenthetically, Melissa, the part I love is that you writes a note to Richard Nixon saying, you know, who who should be the first woman on the Supreme Court? Me, you know, was just writing to Eleanor Roosevelt was everywhere. And history has all but erased Polly Murray. Yale College just named a residential college after her a few years ago. So I want to start from the place that this is a woman’s story, that we’re not John Adams, we’re not The Jeffersons and the Madison’s who get all the credit. Women have been in the shadows, clawing into the Constitution, trying to be visible and frequently erased, and frequently in groups and frequently of color and get no credit. And so for me, I start with Polly Murray, both to make all the points I just said to you about how sadly blinkered constitutional history is and how white and male it is, but also to make a point about how I think women do activism, which is really profoundly different. And I wanted this book to be about people that not everyone had heard of and not everybody relates with and not everybody even agrees with. But to see that this is actually how women make change.
Melissa Murray It’s such a terrific point, and I’m so glad you started with polyamory for all of the reasons you said. I mean, this person’s a powerhouse that really did not get the credit that was due to them during the course of their life. But I also want to say thank you for acknowledging our fantastic NYU colleague, Peggy Cooper Davis, whose work I think is the most important work for this moment. Think Peggy, for her entire career, has been telling us that the 14th Amendment does speak to questions of bodily autonomy as a textual matter because it is an anti slavery amendment. And part of slavery was not being able to control your labor, not being able to control your body, not behaving, not being able to control your family. And so thank you for mentioning Peggy, because it is my profound honor and delight to be her colleague here at NYU. People haven’t heard of Polly Murray. They also haven’t heard of the second woman in the book, and that’s Becca Heller, who as a Yale law student, started a refugee project, a refugee assistance project at Yale Law School that became ground zero for dealing with the travel ban in 2017, when the Trump administration began the first of several iterations of that effort to limit the immigration of individuals from Muslim countries around the world. So how did you learn about Becca Heller, and what’s the lesson that our audience, so many of whom are students, can take from the example of Becca Heller.
Dahlia Lithwick Well, the first thing about Becca is, and I think Becca would be the first person to say this is the least conforming, the least institutionalist. Like very plainly says in my interview with her, like. The law has been the mechanism for oppression always, and it always will be. I’m just using the master’s tools to dismantle the master’s house like no allusions, and her chapter is quite deliberately set next to Sally Yates, who is such an institutionalist, who is such a sort of believer in the sort of Frank Capra film version of what lawyers are and do. And so I wanted them to be in some ways in conversation with each other, both because they were both reacting to the travel ban, but also I think because I want law students to see themselves in really different characters. Not everybody is going to value back. Ella’s just like, you know, I was just sitting around and I just decided that refuges needed lawyers, so I just made a thing. That’s how Beckett does it. And I think the other thing that I loved about her chapter is that it’s really a very young woman, right? Like Sally Yates is is after a long and storied career in the Justice Department, talking about the rule of law. And then Becca in her chapter is just barely out of law school, has created this organization with another law student at some point realizes they may be illegally practicing law without a license and have to be supervised by faculty at Yale and just has the kind of genius idea, having done some work with refugees, that if a refugee has an attorney, as with all problems. Right. I realize this working with children who had medical needs, if you have an attorney, you are exponentially more likely to get good outcomes. And she essentially said, Why don’t I just match up young lawyers or law students with big firms with refugees and have them do what are pretty simple pro forma filings to help refugees gain access. And this predated the travel ban. And so I love this sort of entrepreneurial, ingenious, you know, again, not sitting around workshopping, just suddenly building a thing that is absolutely materially affecting the way refugees get access to justice. So that’s part of it. But then also, I love that as the travel ban comes down and Becca had a sense that there were going to be people stepping onto planes who had sold all their earthly goods in Iraq, who had no other place to go, who were some of them joining spouses, some of them joining family would get on those planes and land and have nowhere to go. And that that was coming. And she essentially mobilized this army of lawyers and law students and more or less with a lot of, again, institutionalists pooh poohing and saying like, hold back, hold back. You know, this isn’t the right thing to do, more or less created what I think of as the airport revolution, which is just freaking lawyers showing up at Dulles and showing up at Sea-Tac and showing up at LAX and showing up at every airport, not even knowing who who the refugees were coming off the planes, but just holding up signs saying like, I will be your attorney and holding up signs in like push do in Arabic and, you know, unbelievable generosity. And so I also love the story, Melissa, to be completely candid, because I just hate that everybody thinks that lawyers are all kind of grifters and thieves. For me, the lawyers were the superheroes that day, that week. And again, I would have loved to see a little more of that. But for me, it was Becca’s deep, deep appreciation. And this really is a through line in the book that there’s one thing to say, like, women are angry and women are using their voices, and that’s an essential piece of that and that we’re seeing in Iran. And it moves mountains, but women with like highly specialized, with Tequila’s command of the law and the rule of law can also make huge change. And I think that we can’t in that one sense, we’re not women in Iran. We have so many skilled practitioners who are doing this work and who still get to walk into courtrooms and who still get to be judges. And that hasn’t gone away. And I think that, you know, we can talk about the ways in which I think the rule of law can be used to harm women. We’ve learned that post jobs. But for me, I think the idea of this army of lawyers with their like blue books in one hand and their yellow pad and the other just surging into the vacuum when there were no lawyers present is a story I think we should be telling, you know, around the midterms and around the 2024 election, because lawyers, we know this, we’re magic, but we have to show up.
Melissa Murray So lawyers did show up. Also, people who showed up were judges that you talk about, you mentioned, and Donnelly, who is a district court judge out in Brooklyn, who was one of the judges who enjoined the Trump travel ban, at least the first iteration of it. And there were others throughout the country that took a stand. And there was a real narrative for a while about how the judiciary, the third branch, was stepping up to stop this executive and the Congress that was working in tandem with them. But then there’s another chapter in the book that I think talks a little bit about the darker side of the judiciary. And so there are two chapters that dive into what in 2017 became known as the MeToo movement. And both of the chapters involve, in some respect, members of the judiciary. And I know that these episodes really do resonate with law students, particularly those who are thinking about clerking for a judge for a year or two. And so you note that Lee Littman, who is my colleague, co-host of Strict Scrutiny, the creator of strict scrutiny, she’s talked about the notion that those who’ve done the most rigorous and systemic thinking about the culture of silence that surrounds the legal profession, and in particular the silence and omerta that surrounds clerkships, have been law students. They’ve done the most work here. Can you tell us a little bit about this chapter where you talk about Leah and Diva, how it relates to the next chapter in which you discuss both Christine Blasey Ford and Anita Hill and this idea that sometimes the people we turn to to uphold justice are in the shadows perpetrating injustices.
Dahlia Lithwick And I should note, I guess for folks who haven’t read that these are also deeply personal chapters, because along with Leah, I was one of the people who wrote about Alex because I didn’t see them on the Ninth Circuit Court of Appeal and and some of his conduct. And I think Lee and I and Diva and, you know, Heidi Bond and a lot of people who Emily Murphy but amazing women academics and law students who said everybody knew this everybody knew that there was a life tenured judge on the ninth Circuit who for decades, decades had showed porn to clerks and had been.
Melissa Murray Can I interrupt for a minute? I read this chapter, and it struck me that literally when I was at Berkeley, I saw Alex Kozinski a fair amount because of the Ninth Circuit. But the last time I saw Alex Kozinski before he stepped down in 2018, was here at NYU in the fall of 2017 where he was teaching a seminar. And I saw him in the hallway and he was with none other than then. Judge Now Justice Brett Kavanaugh, who is a guest speaker in his course. So, I mean, when you talk about this open secret and yet all of these benefits continued to flow, they were flowing here, too.
Dahlia Lithwick It’s funny, Eric Segal tweeted out that chapter last week and said something that I was really grateful to hear, even though I didn’t hear it enough in 2017 and 2018, which was we all knew we all invited him. We you know, there were instances with law students that were reported. No one did anything. And it’s a way of saying I was really grateful that he said it, because it was a way of saying everyone was complicit. Everyone who knew and didn’t do anything or waited for someone else to do something was complicit. And here’s the paradox, Melissa. And I know you and I have spoken about this, but I think it’s important. You know, I didn’t I knew for a long time and I didn’t say anything for a very long time. And I benefited as much as anybody from being on panels and getting invited to private briefings. And I also didn’t come forward. And when I finally ended up writing, largely because Heidi Bond and Emily Murphy had been named in The Washington Post and he had disparaged Heidi, and I felt that they were both younger than me. And if I had done something 20 years ago, they wouldn’t have suffered what they did suffer. But when I wrote my piece, which was before a next tranche of women came forward, and then he stepped down. My piece was about complicity. It wasn’t about me, me telling the judge, and it got coded in the law world on Twitter World is a MeToo piece, and what I was interested in is the thing that Leah and Diva have been writing about and Kathy Khoo and other people, which is this is a culture problem. This is not a MeToo problem. And maybe I would just end with this, and it’s really hard to write about it all these years later, knowing that the layers of the world and the Olivia Warrens of the world and the women who have come out and talked about meaningful reform in the judiciary, that hasn’t really happened to the degree that I think all of us would seek. But those people have the second job, which is doing MeToo, judicial reform, none of them. Of the time. None of them have particularly the desire to minor in judicial reform. And it’s very, very unfair in some sense for all of the people who send Leah or Diva or Liv Warren that a girl email saying like, thank you so, so much for stepping up. We all knew about this. Let me tell you my story. But who are really, really relieved that someone else is doing the work? And I think that was the root of your question. And it was one of the reasons that when I first wrote about this, it was really important to me not to write about MeToo, but to write about systems of open secrets.
Melissa Murray Why wasn’t the fact of workplace sadism by itself enough to warrant some kind of sanction and censure from the Academy? Why did it have to not only be this terrible workplace environment, but also one laced with the prospect of sexual impropriety before someone did something? And and I think about what law schools can do. And then I also think about what could the Supreme Court have done? Alex Kozinski would not have been so powerful if Supreme Court justices had not taken his clerks. And the same could be said for Stephen Rinehart. There was an easy way to minimize his influence and to censure him, which would be to stop taking his clerks.
Dahlia Lithwick Part of the answer to this is it is utterly insane. The entire clerkship system, the clerkship industrial complex term is bonkers, and we could talk all day about how we don’t teach medicine the way we taught medicine 150 years ago. Why are we still present company excepted? But, you know, just doing an immense amount of like dumb Lang DeLeon legal education that doesn’t correspond to what lawyers actually do. Like, there’s so much that is broken both about the legal academy and about the clerkship system, which made perfect sense 150 years ago when your clerk was literally a clerk, you know, who would like, take out his pen and write things. And that was what it was. Now it’s just a, I think, the world’s largest unhealthy fraternity. And it is the sort of obsession, single minded obsession at elite law schools in ways that I think are just utterly destructive. And the idea that students I mean, I’ve written about Yale 100 times, but that students arrive on campus like determined to get a clerkship and to curry favor with the right person on the faculty, and then to get the right clerkship and then to curry favor with the judge so that you can then be in a launch pad like this is not a healthy system and we don’t do a lot of other things this way. But the legal system, which is, by the way, like assigned to adjudicate facts, to do you know, to do investigation and determination of what happened is still being run as though it is this kind of rarefied pipeline to the gods in the sky on Olympus and signaling to law students that they should tolerate absolutely anything in service of that objective. And maybe the other piece of that is, you know, in the intervening years I’ve done I can’t tell you how many briefings I’ve done with federal judges on MeToo stuff, and they genuinely keep coming back to the claim that will put my clerks are my family, this is my family. And what happens in chambers stays in chambers. And we need this secrecy and we need to have this pledge of fealty and like, they’re my kids. And you just want to say, do you know what else happens in families like rampant abuse? And it’s not an adequate answer for judges to say, well, this is what my clerkship was like, so this is what it must be. And I think one of the things that again and this is all credit to, you know, Leah and Diva and the people who are working on it is to dismantle the notion that because it has ever been thus and thus is a recipe for abuse, it should always be this. And it’s crazy, but that doesn’t change very readily.
Melissa Murray It’s kind of staggering that the thing that people like Liv Warren and Diva Shaw and Leah Lipman are asking for is to treat a clerkship like a job with h.R. And a reporting structure that you can go to that will work not wordlessly. You put your complaints in and they go into the ether. And yet this is, I think, endemic in the legal profession, the veneration of judges, the reification of clerkships. And this idea that you have to be silent and accept poor treatment as the cost of admission. And I think that bears most heavily on those who come to law school without networks and for whom a clerkship is a very quick way to become part of a network. And so I just I want to put that out there. The back part of the book, which is so optimistic and so important, pivots away from. Lady Justice and the courts to democratic organizing. And as you note in the book, it takes real cheek for the Supreme Court to write an opinion like Dobbs saying that it’s going to return abortion to the states in the democratic process, when in fact, over the last ten years it has systematically dismantled and distorted the democratic process so that it’s more difficult for people to register their preferences at the ballot box. So how do we recognizing that the infrastructure of democracy has been so distorted actually work so that we can codify wins through the democratic process? How can we win again?
Dahlia Lithwick I mean, I think part of the answer, Melissa, is sort of what I said when we started talking about Dorothy Roberts and Peggy Cooper Davis, which is part of the way that we win, is we realize this whole thing has been a grift all along. Right. That we’ve been sort of like swanning around saying we’re the freest, most equal. You know, we have all the rights because women got credit cards and that every possible threat to it would never happen right again. All the women who were just gobsmacked by SB eight and then again by Dobbs in some sense weren’t living in the world that you lived in. And I quote Anita Hill in the book saying, you know, one of the things I realized post-Trump is that I am living under a different sky. And when men say to me, like, the sky isn’t falling, you’re hysterical. They actually reside under a different sky. And so I think there’s a real utility in people walking around saying the Electoral College does what now? You know, the mal apportioned Senate misrepresents who now. How is it possible that I thought this was something representing a democracy and in fact, like we are completely tethered to the vestiges of something that was anything but. Right. And so part of my answer is the simple understanding that as long as there is an Electoral College, as long as there is a mal apportioned Senate, as long as the Electoral Count Act can be subverted in order to subvert democracy like none of us are safe and we think we are, but we’re not. So part of it is little learning. And one of the things I wanted this book to do was the thing that, you know, I’ve known Melissa long enough to know that after 2016, every event I did, someone would put up their hand and say, But what about the Hatch Act? You know, like because we were learning about the Hatch Act. So that’s something, right? We’re learning things and we’re learning about the Emoluments Clause. And I think that’s a big start is to understand that it’s just not enough to go out and vote every four years. Then the other piece of it, and this is really essential, and it’s why I end with gerrymandering and Nina Perales, and it’s why I end with Stacey Abrams, is understanding that you can win lawsuits and win lawsuits and win lawsuits and still lose, which is where you started your questions. And that that is going to require the kind of work that Stacey Abrams is doing, which is reckoning with voter suppression, with election subversion, you know, reckoning with all of the forces of nihilism that are working right now. Right. We’ve got Donald Trump saying the 2024 election doesn’t even need to be run because it’s already been stolen. So in the face of that, in the face of like utter nihilism and January six, your question is the right question, which is does the rule of law still intrude on that? And my answer is, and you’ve heard me say it before, we don’t have another choice, right? Like, we cannot do this through like interpretive dance or like flower arranging. Like the only thing we have is street fighting and we’re going to be bad street fighters, at least I am. And so, like, I’m going to fight for the thing that I think women are phenomenal at. And I completely stipulate that it does feel as though it’s very late to be having conversations about redlining, and it’s very late to have conversations about education and funding of education. But if one of the things we can do in conversations like the one you and I are having is say it’s not enough to be like, Yay, Sally Yates, yay. You know, for Fiona Hill, like that’s not participatory. And participatory means that if Stacey Abrams tells me that, like, everyone’s going to go and get this ballot initiative on the ballot in Michigan and women do it, that’s a freaking win. That’s a huge win. And so I want the book to land in a place where we go from Lady Justice solitary like Holder up of the of the scales to Lady Justice. You said, Melissa like I don’t know if I’m Lady Justice, but like your voice on your podcast, your voice on the news, empowering other women to say, Oh crap, it’s not going to be enough to just like vote in the election. We got to register voters or. We got to get this thing on the ballot or I have to run for like my school board or I have to make sure that election officials are safe. That’s where we have to land because the other stuff is just too ephemeral. And that’s the sad lesson, right? All this just is stuff that you and I spent our lives learning. And teaching is ephemeral, but it’s also everything.
Melissa Murray We have such a great audience and they’ve put amazing questions into this chat, so I’m going to take a couple of them now for you. Dahlia. So an audience member from Ann Arbor, Michigan, asks, How can women avoid the double bind of trying to raise concerns, warning signs, while also being depicted as hysterical for doing so, versus trying to get people to understand that the stakes of the election in the near term elections are going to be really consequential. How much work needs to be done to get people to see how scary things actually are without tipping over into hysteria? I think this is basically a Cassandra question and how can you tell people what’s going to happen so that they believe you and do something about it? And, you know, I ask this question for myself, like in 2018, I stood before Congress and said, Brett Kavanaugh is a reliable vote to overturn Roe versus Wade. And the person next to me said I was hysterical. I was right. And unlike conversations with my husband, I take no pleasure in being right about this. But I was right.
Dahlia Lithwick The window of Schadenfreude post Dobbs was not nearly as long as I thought I’d get like three months of just being like I told you that for months. And it was about 4 seconds of saying, you know, because we have the same experience I had when SBA was approved by the Supreme Court a year ago, I had Michelle Goodwin and Rebecca Traister on the podcast, and all three of us said, this is the end, right? If the court is going to let Texas nullify Roe, there’s no point in even hearing dubs. And the reader mail was astonishing. It was astonishing. You’re all hysterical. I turn to your show for critical legal analysis, and this is just women setting themselves on fire. And I had the same experience you did, which is I thought it would be much more gratifying to say I told you so, except, P.S. women are in jail in Alabama because the state doesn’t think that they can be released and not threaten their pregnancies. Right. So I think two things. And it is, I think the existential question and it’s really interesting because it is a question I posed to Vanita Gupta in the book. It’s a question I posed to Anita Hill in the book because I really wanted their answer to this, because I’m struggling myself. And both Anita and I would say Anita Hill, but also Sally Yates. Also, Stacey Abrams has a very constructed like I’m not going to be called hysterical under any set of facts, and I’ve pressed that with them. I think that part of the answer is we have to do the thing that RBG did, which is see ourselves as translators and ambassadors. And I know that makes us all crazy that RBG in the 1960s and seventies had to argue to panels of all male judge by referencing male inequality and male suffering in order to get benefits. But that’s part of the work. I hate to say it because the law centers men and maleness and whiteness, and that’s what it does. So I think part of it is just accepting that we have a little bit of a role in explaining and a burden of having to do additional explaining. And I’m sorry because it’s maddening when the sky is falling, but that’s part of it. I think that in some sense Dumbs does a lot of the work for us. I think that for a lot of men who going into Dobbs and I’ve said this before, good allies who are mostly just really excited that this was going to get women out for the midterms and didn’t fully understand the absolutely catastrophic medical and criminal implications have really had the summer to sit with. Oh, wait, So a woman has to bleed out until, you know, Texas is going to send in emergency care or, you know, the young woman in Arizona who has rheumatoid arthritis, who can’t get methotrexate. We found out this weekend, which is, you know, keeping her from crippling, debilitating pain because it’s seen as an abortifacient. I think that some of the work that we have seen in the wake of Dobbs about miscarriage is being investigated, about a DMC like I had after a miscarriage would now be something that they would investigate. Like that’s really real to a lot of people. And so I think bracket the part of it that is it is no fun to be called hysterical, and it’s even less fun to be right after you’ve been called hysterical because that’s just what it is. And I don’t have a great prescription for that. But what I will say is that I think we have come a very long way since June. And it’s why we saw what we saw in Kansas, why what we saw in Michigan. It’s why we saw what we saw in the special election in New York. I think a lot of fathers and men who thought this was a transactional thing, getting women out to vote are realizing what their own families, their own daughters, their own wives have looked like. And that’s not trivial. It’s maddening that it comes to that, but it’s not a trivial win.
Melissa Murray So another listener would like to know, since the Supreme Court is broken, do you think the systematic structure of currying favor for a coveted clerkship will fade away if the younger generations decide not to pursue clerkships? Will this even be something we’re thinking about, or will clerkships possibly become just vehicles for conservative students? Because only conservative students will apply? And it’s worth noting, just given the landscape and the numbers right now, there probably is actually way more demand from progressive students for clerkships and fewer clerkships for them, whereas there are quite a number of conservative clerkships and maybe not enough conservative law students to fill them. So what do you think about the possibility, like we just like sort of cancel clerkships? What will happen?
Dahlia Lithwick I mean, I think for the reasons you just laid out, there will always be people who seek clerkships. Mark Joseph Stern, my colleague at Slate, did an amazing piece where he. Canvased constitutional law professors around the country and ask them essentially, how are you teaching law? Given that, what was in your casebook one year ago is no longer the law? And one of the things that he ends on that is really heartening to me, which goes directly I think to this question, is that the professors are doing this for their students, that they realize that in some sense some of the magical thinking that we all had in law school about balls and strikes and doctrine and immutable stare decisis is gone, and that for students, rather than experiencing that as a just like catastrophic loss, students are really realizing what I think is the underpinning of the book, which is the thing that’s making you anxious. Melissa Which is okay, then I guess I better melt this thing down and build something better and stronger that can be used to effectuate actual justice and equality and dignity. And one of the things that I think is really inspiring about Mark’s piece and that I hope is a little bit of a theme in the book, is seeing that the people who are quickest to pivot away from magical thinking is students. And so I think if law students look around and say, you know what chance of me getting a Kagan clerkship, just yeah, this decreased exponentially like opportunity to go do amazing Becca Heller style. I’m going to make something up. I’m going to do something incredible. I’m going to see a void and move in, I think just ratchets up. And I have seen so much energy from law students this summer who instead of saying, I’m quitting law school, I’m going to become like an orthodontist. Have said instead like, oh, wait, this thing can be manipulated and used. Well, then I guess I better be a part of manipulating it to achieve actual justice. And so it’s a slightly, you know, dispiriting answer, which is clerkships were always insane. And the 30 people who clerk at the court were never the 30 best, smartest people in America. They were people who went to Harvard and Yale and clerked for feeder judges. And we knew that like the whole thing, I’m sorry to say. And I clerked on the Ninth Circuit and I loved it. But it’s a racket and it’s great and it benefits a handful of people. But if we replace the idea of the Supreme Court clerkship as an end in itself with doing justice as an end in itself, I genuinely believe we could change everything. And so for me, if the scales have fallen off even a little bit, and if young law students can say, Where do I sign up to be a lawyer for a refugee, who needs my help, then, like, I don’t think we’ve lost a whole heck of a lot. There will always be people who want to clerk, but I think that doing justice is a lot more exigent and in fact, a lot more meaningful.
Melissa Murray That’s a terrific answer. And again, create a core to our law students to use their skills in all kinds of terrific ways. Can we talk about the court as an institution? And again, I’m loathe to do this because I don’t want to contribute to the veneration of the court. But one of the questions is sort of asking this question about what can be done to save the court. Right. We’ve had over the last couple of weeks various justices weighing in about the legitimacy of the institution on which they said maybe expressing incredulity that the institution is undergoing questions about its legitimacy. We also have the wife of a sitting Supreme Court justice testifying before the January six Select Committee. Is this the moment to break faith with the Supreme Court as an institution like it is the Supreme Court irreparably broken? How could it be fixed if it can be fixed? What are the mechanisms? And if there are mechanisms, why isn’t anyone using them?
Dahlia Lithwick Yeah, I mean, I think this is back to the answer about street fighting. For me, if there were a second best alternative to the Supreme Court, that wasn’t, by the way, just as mired in money and power as electoral politics, which we’ve talked about, how those can be fixed, then I would be for whatever that second system is, there isn’t. Right. And I think that one of the misapprehensions that you get from Chief Justice Roberts or Sam Alito when they’re batting back against people talking about the illegitimacy of the court is, oh, we just don’t like the opinions. Right. Or these opinions aren’t popular. Well, what do you think about Brown v Board? And I just think that’s such a profound mischaracterization of the brokenness of the court. The court isn’t broken because unpopular opinions have come down. The court has been producing unpopular opinions since the day it can be. The court is unpopular or deemed illegitimate because there’s no such thing as starry decisis anymore. Because there’s no such thing as doctrine, because the idea of the do as little as you can with with the fewest ripple effects as you can has been just cast aside. And because the court is. Taking cases that are not properly before it and deciding issues on the shadow docket. I mean, we can go on and as you said, in addition to all that, we have justices who are completely untethered from the ethics requirement to at least appear objective. And so I’m not having a lot of patience for being scolded by Justices Alito and Roberts about the legitimacy question, because I think they fail to understand what has delegitimized the court, which is their own conduct. That said, there are a lot of things that can be done. And just a year ago, we saw an amazing blue ribbon commission that was convened by President Biden. It’s been a lot of time not just talking about court packing, but about term limits and jurisdiction stripping and ethics reforms and transparency. And so, again, you know, I said before, in terms of democracy reform, what I’ll say in terms of court reform, which is smart people are working on this stuff, we choose to ignore it at our peril. We choose to say, oh, this is just fanciful. No one can ever put a bill into effect that would ensure that you could have every president could have two judicial appointments, and this thing could be fair. Oh, wait, there is just such a bill that has been introduced. So I think a lot of it goes to your very end of your question, which is why aren’t we talking and thinking about this as though it’s achievable? Why do we make the choice to just be in a hostage situation? I think because we’ve been really, really acculturated to thinking that the court is magic and the court is perfect and the court has turned on us. None of that is true. The court was never magic. It was never perfect. With the exception of about like six good minutes in the 1960s and seventies, the court has always been a revanchist conservative institution, and we’ve always bounced back. So I think that you have to choose to be kind of under your captor and believe that there’s nothing that can be done. But very, very smart. Good people are working very, very hard on court reform in a way that I think is worth paying attention to and looking at.
Melissa Murray Thanks so much to Dahlia Lithwick for this rich conversation and to the Birnbaum Women’s Leadership Network at NYU Law for hosting. The book is Lady Justice Women The Law and the Battle to Save America. And remember, if you order it at Bookshop.org and use our code strict ten. At checkout, you can save 10%. That’s Strict10 at checkout at bookshop.org. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Littman, me, Melissa Murray and Kate Shaw. It’s produced and edited by Melody Rowell with Audio Engineering by Kyle Seglin. Music by Eddie Cooper. And production support from Ashley Mizuho, Marco Martinez, Sandy Girard and Ari Schwartz, and digital support from Amelia Montooth. Thanks so much for listening.