Leah and Melissa introduce a new series on Project 2025, the Heritage Foundation’s deranged instruction manual for taking away all of our rights and making everyone’s lives worse. Then, the whole crew is together for a conversation with Dylan C. Penningroth about his book Before the Movement: The Hidden History of Black Civil Rights.

TRANSCRIPT

Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when an 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 Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts for this segment today. I’m Melissa Murray.

Leah Litman And I’m Leah Litman. So remember last episode when Kate and I mentioned our big summer break plans and the evergreen content we had queued up for you to give ourselves a bit of a break in July. Well, the universe was like lol because the legal culture never sleeps, especially not in an election year.

Melissa Murray So today, before we get to a wonderful conversation about an actually wonderful book that we recently read. So yes, that was a sub tweet of our recent episode with the ever delightful JVM in which we reviewed Josh Hawley’s book, manhood. Leaving that to the side before we get to that wonderful conversation about that actually wonderful book, Not Manhood, we have some newsy items that we wanted to cover, and a new segment that we wanted to introduce for the next few summer episodes. The new segment is going to be a multi-part series on project 2025. So Kris Jenner works hard, but the GOP works harder, and so do we. So that’s on tap for you. But obviously the really newsy items is that one of the recent attendees of the strict scrutiny live show in DC is now a candidate for president of the United States. So listeners, I don’t know what to say to you. Is this a coincidence? I think the not so dream big people. You can go in literally a month or two sitting in the audience to running for president of the United States. You heard it here.

Leah Litman This is the American dream.

Melissa Murray So, yes, Vice President Kamala Harris announced her candidacy for president of the United States after President Joe Biden announced that he would not seek reelection. So we’re first going to quickly debunk the suggestion that there is something wrong with the fact that Kamala Harris is now the presumptive nominee for the Democratic Party, and we’re also going to debunk any cockamamie theories that might be marshaled to keep her off the ballot in certain states. Like we said, Kris Jenner works hard, but the GOP works harder.

Leah Litman And then we will have our new segment, which builds on our recent habit of reading terrible, horrible, no good, very bad thing. So you don’t have to. That will be the multi-part series tentatively called WTF is project 2025? So over the next few episodes and then culminating in a big final episode, we’re going to go through the different parts of project 2025. We have read the fine print and we want to break down what’s in there. Project 2025 is, at bottom, a plan to use laws and regulations to advance a terrifying agenda just to do like weird, creepy shit. And in part for that reason, it has a lot of legalese and law terminology that we’re going to unpack because we want you to know what’s at stake, and we want you to be able to talk about that with other people as well. So maybe we’ll call this segment strict Scrutiny Hive on project 2025. But if you have better ideas, feel free to write in and suggest.

Melissa Murray Maybe project Fuckshit, I don’t know. Yeah. That works. It does. But before we talk about a real issue, the absolute insanity of project 2025, let’s talk first about a non-issue, which is the Democratic Party nominating someone other than Joe Biden to be its nominee for president in 2024. The reason why it’s no big deal for the Democrats to select someone other than Joe Biden as their nominee is because Joe Biden is not, and was not when he announced that he would not seek reelection, the actual Democratic nominee for president for 2024. So let me say that slower for those in the audience who are not childless cat ladies, Joe Biden was not and never had been the Dems official nominee for president for 2024. Obviously, he was the presumptive nominee as the incumbent president, but the Democratic Party had never officially nominated him for 2024. So therefore, it’s pretty easy and relatively straightforward for the Democratic Party to nominate someone else instead, because they have yet to actually nominate their candidate. There it is.

Leah Litman Indeed. By the time we sat down to record this episode, Vice President Harris already became what Joe Biden was the presumptive nominee. That’s because a majority of delegates to the Democratic convention said that they would back her. So bottom line is.

Melissa Murray That feels very democracy forward, like.

Leah Litman It is.

Melissa Murray Delegates actually doing that.

Leah Litman It is. Right. And like political leaders responding to the will of the people, it’s a big thing. So again, bottom line is political parties officially choose their nominees at the conventions. The Democrats have not had a convention yet, which means there are zero, I repeat, zero legal issues. With Joe Biden bowing out and endorsing Kamala Harris as the presumptive nominee and of. Sentence for various reasons. There has been a presumptive nominee going into most of the recent conventions for both parties. You know, that’s for a number of reasons. It’s expensive to prolong campaigns. It’s sometimes advantageous to select a nominee and coalesce around them. And there was a move to a primary system rather than a let’s just sort it out at the convention system. But parties have previously selected nominees at conventions.

Melissa Murray So you might be wondering what the fuck were the primaries for? Well, primaries are the process by which each party selects their delegates. If someone wins the primary, then those delegates in that state primary go in to the convention, presumptively voting for the person who won the primary in the state that the delegates represent. But this is a big but. Delegates don’t have to do that, especially if a candidate bows out. For example, if someone won an early primary but then suspended their campaign and bowed out, the delegates don’t have to vote for them. And that actually happens relatively frequently. Primaries are just a way of ensuring input from more people before the delegates actually registered their votes to choose the nominees at the convention.

Leah Litman And states set their own rules about who is listed as a candidate on the general election ballot. And the rules provide that after each recognized political party has had its convention or otherwise gone through the process of choosing a nominee, the parties transmit that information to the states so the major party’s nominee appears on the ballot. And again, Democrats haven’t had their convention or officially selected a nominee. So it’s still up to the Democratic Party to choose their nominee. And there are no deadlines that have passed for parties to identify their nominee who will appear on the ballot.

Melissa Murray So the Democrats could do a virtual roll call and select a nominee by August 7th, which avoids some potentially looming deadlines. But as we mentioned, Vice President Harris has already secured enough delegate pledges to be the presumptive nominee. And it’s been reported by the Associated Press in The New York Times that party officials plan to have the delegates cast their votes between August 1st and August 7th. So that sounds like all of this will be taken care of. And there’s literally no reason for you or Mike Johnson to worry.

Leah Litman At this point. You’re probably thinking, but wait, the Supreme Court does crazy shit all the time. Why wouldn’t the court force Biden to stay on the ballot? Well, one, there’s a 13th amendment to the Constitution which prohibits involuntary servitude. You cannot force someone to run for president if they decide not to.

Melissa Murray I just had the most amazing vision of Joe Biden. Like nobody knows the trail. Eyes like them trying to make Joe Biden run for president. You can’t do that. But again, you’re right. This is a court and a party that has never really been super excited to enforce the reconstruction amendments. So let’s just say that there may be other issues you’re worried about. So the issues about who can appear on the ballot and whether various state deadlines have been met, these are not necessarily questions for the Supreme Court, because they are actually state law issues that should be decided by state courts. Although I know Bush, for Gore was obviously one of those cases where state law issues that should have been decided by state courts were also in play. But again, zero state deadlines have passed here. So state law gives preferential treatment to candidates named by the two main political parties. And the Democratic Party has not yet exercised its option to select a candidate yet. We also think that the increased attention on the Supreme Court matters here. So the fact that so many people are looking at the court, possibly because of its incredibly insane immunity decision back at the beginning of July, potentially reduces the odds that the court decides to do another absolutely batshit crazy thing. So as we’ve discussed, the Supreme Court is not immunized from public opinion. It is actually very attentive to public opinion. And we saw this when the court dodged abortion rulings because the justices likely wanted to avoid having the court be an issue in the 2024 election. So with that recent history in mind, it’s very likely that after spending part of the term reinstating a plausibly disqualified candidate and immunizing him from future criminal liability, that would be Donald Trump. The court might reason that maybe there just aren’t five votes to block a qualified candidate like Vice President Harris from appearing on the ballot and forcing a candidate who has withdrawn. That would be Joe Biden to run and appear on the ballot. So all to say, we believe staying on the court’s neck is an important thing. And it’s especially important here.

Leah Litman This is also where state courts are important because state courts have the final say over these state law issues. And we don’t think the Michigan, Wisconsin, Pennsylvania courts are going to do anything bad. And again, there just aren’t any actual state law issues that have even been specifically identified or floated here. So basically, on the ballot issues, you can lean back, have a. Or just drink that juice straight out of the coconut. We have enough things to worry about without getting sidetracked. We also wanted to do a quick note on campaign finance issues. So the money that had been previously donated to the Biden Harris campaign can go to Vice President Harris, since her name is on those donations. That would be the Harris in Biden-Harris. For listeners who aren’t childless cat ladies, but in the event that someone.

Melissa Murray Textualism textualism.

Leah Litman In the event that someone else would have been the nominee, they couldn’t have access that money. Some Republican lawyers are making noises about, well, can Vice President Harris access the Biden Harris money? But every campaign finance expert from Campaign Legal Center, a member of the FEC, lawyers who can read have said the regulations allow people whose names are on the donations and committee to access the money. And even if, let’s say, some Republican lawyers filed a complaint with the Federal Election Commission, I think it’s unlikely that that would be resolved before the election. I don’t think that there’s a majority on the Federal Election Commission to do something insane. And going to the Federal Election Commission is how these cases are supposed to proceed, not by going to federal court and also for similar reasons, you know, as why I don’t think the court was.

Melissa Murray Sorry, Judge Kacsmaryk, we’re not going to be able to file this in Amarillo. Right.

Leah Litman And honestly, for similar reasons as why I don’t think the court will keep Biden on the ballot, I don’t see the court blocking Vice President Harris from using Biden-Harris money before the election.

Melissa Murray So we hope that little explainer is helpful for all of you in the hive, and all of you who are not in the K hive, but who are not yet members of the new super PAC lawyers who can read. But we invite you to join us because this reading is fundamental thing is really, really cool, and we encourage you to take part in it.

Leah Litman [AD]

Melissa Murray Anyway, moving on from those non-issues. Let’s talk about some real issues, because strict scrutiny is doing a deep, deep, deep dive on project 2025 again. Still a working title. Lots of different names. We’re going to workshop here. But first of all, before we even get to what we’re going to call this segment, we got to figure out what the F is. Project 2025. Well, project 2025 is a self-described presidential transition project. It was organized by the Heritage Foundation in conjunction with many other conservative organizations, including some recent mentions on this podcast the Alliance Defending Freedom, Americans United for life, the American Legislative Exchange Council, also known as Alec America First Legal, Stephen Miller’s organization, the NRA, Teneo, and Turning Point USA. Just to give you a sense of these organizations, America First, as I just said, is Stephen Miller’s organization. It also includes Jonathan Mitchell, who’s been very heavily involved in some of its legal initiatives. Jonathan Mitchell is the architect of SB eight, and also the individual who argued the disqualification case for Donald Trump before the Supreme Court. Alec is the organization that drafts legislation for Republican legislatures, and about two years ago, we did a summer episode with Grace Panetta, who’s now of the 19 that highlighted Alec’s role in trying to gin up interest in state legislatures for hosting a new constitutional convention that would float a whole bunch of new amendments to the United States Constitution. What could go wrong? Of course, ATF is the group behind the medication abortion case and a lot of anti LGBTQ litigation. Teneo, you might remember, is Leonard Leo’s organization that aims to control all of the levers of power in the United States and to basically make a federalist society for everything. Again, what could go wrong? In true Breaking Bad style, all of the conservative legal movement brain worms are getting together in an RV in the desert to cook up project 2025.

Leah Litman And here’s what they came up with. Project 2025 lays out a plan for the next Republican administration to immediately leverage all of the power of the federal government to advance Trump’s agenda. The introduction to the document describes it as, quote, the opening salvo and quote of the presidential transition project. It is, again, literally a plan for the weirdest people to do the weirdest shit and get their freak on in the federal government to use all of the massive powers of the federal government to pursue their deeply unpopular policies. Abortion bans. Contraception restrictions. Voting restrictions. Letting companies and corporations get off scot free, tax breaks for the wealthy, you name it. They laid out how they want to and plan to do it in just the first 180 days.

Melissa Murray And here’s a clip of Donald Trump explaining exactly what’s going on here.

Clip Because our country is going to hell. The critical job of institutions such as heritage is to lay the groundwork. And heritage does such an incredible job at that. And I’m telling you, with, with Kevin and the staff and I met so many of them that I took pictures with among the most handsome, beautiful people I’ve ever seen. I didn’t like that picture. If you could lose that picture, please, would you, Kevin? But this is a good no, he says I won’t do that. But this is a great group, and they’re going to lay the groundwork and detailed plans for exactly what our movement will do and what your movement will do when the American people give us a colossal mandate to save America. And that’s coming. That’s coming.

Melissa Murray Now, obviously, this was before candidate Trump recognized that authoritarianism is not a really good campaign platform for reaching moderate swing voters. And then subsequently, he disclaimed any knowledge of or involvement in project 2025. But again, Kris Jenner works hard, the GOP works harder, and we work harder than everyone else. We have the receipts. This shirt has Trump World’s fingerprints all over it. To it, there’s something like 100 plus Trump staffers and 200 plus Trump associates who are involved in the writing of project 2025. It is led by two former Trump administration officials Paul Danz, who was chief of staff at the Office of Personnel Management and serves as the director of project 2025, and Spencer Crichton, former special assistant to Donald Trump and now project 2025 associate director.

Leah Litman And while Donald Trump has sometimes remembered he should try to pretend he doesn’t know what project 2025 is, last week he called in to Fox News and was asked, what are your thoughts on project 2025? And let’s just play that clip here.

Clip You keep on tying you to project 2025, which is a 900 page, tune put out by the Heritage Foundation. What is your response to what’s in it, and what would you like to say about the role it’s playing in your campaign? It’s a group of. Very, very conservative people. They wrote a document that many of the points are fine.

Leah Litman So today, to get the fascist ball rolling, we’re breaking down the first part of project 2025 called, quote, taking the reins of government, end quote. But well, first note the foreword, which is a promise to America, and it was prepared by one Kevin Roberts. Kevin Roberts is president of the Heritage Foundation. He is also the guy who promised a bloodless revolution if the left allows it. If that sounds hyperbolic and terrifying and weird to you, sorry he actually said it. So here’s that clip.

Clip Let me speak about the radical left. You and I have both been parts of faculties and faculty Senate, and understand that the left has taken over our institutions. The reason that they are apoplectic right now, the reason that so many anchors on MSNBC, for example, are losing their minds daily is because our side is winning. And so I come full circle in this response and just want to encourage you with some substance that we are in the process of the second American Revolution, which will remain bloodless if the left allows it to be.

Leah Litman Now, Donald Trump’s vice president candidate, JD Vance, wrote the foreword to Kevin Roberts new book, which Vance describes as, quote, incredible, bold new vision for the future of conservatism in America, end quote. And this book also happens to be about taking back Washington to save America. That is the book’s title.

Melissa Murray I know we can’t read it, so you don’t have to. We already did Josh Hawley’s book, We Are Podcasters. You’re Not Saints. But what we did do so that you wouldn’t have to is we read the 900 pages of project 2025. So what do the aspiring leaders of this bloodless revolution outline in the introduction to project 2025? Well, according to Kevin, there are four pillars to project 2025. The first pillars to restore the family as the centerpiece of American life and protect our children. Imagine what that looks like. The second pillar is to dismantle the administrative state and return self-governance to the American people. Neil Gorsuch says, Chuck, third pillar is defend our nation’s sovereignty, borders and bounty against global threats. The fourth pillar is to secure our God given individual rights to live freely, what our Constitution calls the blessings of liberty. Clarence Thomas says. I think that begins and ends with the First and Second amendments. Check. So let’s dig into the details of how these some geniuses plan on advancing these four pillars. For example, what are the plans for restoring the family as the centerpiece of American life? Well, listeners, one step includes, quote, deleting the term sexual orientation and gender identity, diversity, equity and inclusion, gender, gender equality, gender equity, gender awareness, gender sensitive abortion, reproductive health, reproductive rights, and any other term that might be used to deprive Americans of their First Amendment rights out of every federal rule agency, regulation, contract, grant, regulation, and piece of legislation that exists now. I’m not exactly sure how they plan on deleting terms from legislation. This feels very anti-tax dualist to me. It’s also unclear how they’re going to spell opus de if they eliminate dei, but we really don’t think they thought all of this through. But it seems pretty chilling nonetheless.

Leah Litman Yes, because the other big part of their plan for, quote, restoring the family is taking away more of women’s bodily autonomy. And so the introduction proudly declares, quote, conservatives should gratefully celebrate the greatest pro-family win in a generation. Overturning Roe versus Wade, end quote, are pro-family, forcing mothers to plead for their lives and bleed out in emergency rooms. But the forward continues, quote, the Dobbs decision is just the beginning. Conservatives in the States and in Washington, including in the next conservative administration, should push as hard as possible to protect the unborn in every jurisdiction in America, in particular the next conservative timeout.

Melissa Murray Leah, I thought we had a state by state settlement with Dobbs, and each state could just do their own freak thing.

Leah Litman You know, it’s very interesting because despite having that quote, state by state settlement, there are proclamations about what they would like the next Republican administration to do. And Donald Trump has refused to say he would not sign a federal abortion ban. And to the contrary, his vice president candidate, JD Vance, has voiced support for penalizing people for traveling between states in order to get reproductive health care. But back to the foreword. It says, quote, the next conservative president should work with Congress to enact the most robust protections for the unborn. That. Congress will support while deploying existing federal powers to protect innocent life, end quote. This is them straight up admitting the plan is for a nationwide abortion ban by any means. There is no other way around it. They’re saying it right here, so please go talk to all of your white lady friends in the suburbs and inform them about this.

Melissa Murray A third prong of restoring families is I’m not even making this one up. A third prong of restoring families is banning pornography. And I just have to ask, what is with the obsession with pornography? Like, I mean, we hear more about pornography from Republicans than we do from any other sector of the general public. I mean, do you remember Josh Hawley talking about pornography in his questioning of Justice Jackson?

Leah Litman Oh, I do. I do.

Clip So you have nothing to add about about why these crimes, why these images, in your view, do not signal an especially heinous or egregious child pornography offense. That’s Hawkins, you say. And Cooper, I understand the government’s argument, but I don’t find them persuasive. The fact that there were prepubescent children, from the standpoint of characterizing this as an especially egregious child pornography offense, that’s page 58.

Leah Litman And how about their plans for advancing liberty, which is another pillar? Well, first, this pillar, it turns out, is a bit of a fakeout, since they explain that advancing liberty is actually not about letting people pursue happiness. No, really, they write, quote. When the founders spoke of pursuit of happiness, what they meant might be understood today as in essence, pursuit of blessedness. End quote. And so these anti freedom freaks continue. True liberty is about how, quote, our Constitution grants each of us the liberty to do not what we want, but what we ought. End quote. Side note this is literally the fucking opposite of liberty and freedom. They are describing a world where the government tells you how to live your life, who you can love, whether and when to bear children. And they say irony is dead. And these geniuses continue. Quote. This pursuit of the good life is found primarily in family, marriage, children, Thanksgiving dinners and the like. End quote the party of forced childbirth rears its head. This is a running theme throughout project 2025, which may be why it’s in the freaking intro.

Melissa Murray Let’s get into the plans for quote unquote seizing the reins of the federal government. That’s what this section of project 2025 is actually called. We didn’t even make that up. It’s literally the title. This is the part of project 2025 that lays out the plans to turn the federal government, including career civil service employees and agencies who historically have enjoyed some independence from the executive branch into Trump lackeys. So here’s the tea. First of all, project 2025 outlines plans for the Executive Office of the president, and these plans include Reinstituting administrative pay as you go policies PayGo. The PayGo system requires federal agencies choices to be budget neutral, which is to say that you don’t spend more than you actually have budgeted. You pay as you go. If you’re wondering how this might work, well, the Republican controlled House has a convenient document prepared. The document is called Understanding Administrative PayGo. In the document, the House Republicans criticize, among other things, the following Biden administration executive actions because they are, quote unquote, not budget neutral items. And for that reason, they believe that they ought to be precluded by PayGo going forward. What are these executive actions that are not budget neutral and should be eliminated? One student loan bailout to Medicaid expansion? Apparently freedom isn’t actually free, and that’s a problem.

Leah Litman So some of the biggest changes would happen in what they describe to central personnel agencies. And in this section, they lay out the plan to reclassify a bunch of civil servants working for the federal government as policymaking officials who could be hired or fired more at an administration’s or president’s whims. So civil servants are people hired under a political systems based on expertise and merit and whatnot. That is what project 2025 wants to get rid of. Because, as Joe Blue said in Arrested Development, I hear the jury’s still out on science. So eliminating a political expert public servants is what it means when the document approvingly notes how, quote, the Trump administration issued Executive Order 1395724 to make career professionals in positions that are not normally subject to change as a result of a presidential transition, an exception to the competitive hiring rules and examinations for career positions under a new schedule F end quote A new schedule F is basically a new schedule for flunkies. No competitive hiring rules and exams. Or retentions, just flunkies. And again, you don’t have to take our word for it. Like Trump’s vice president candidate has proposed the same. So J.D. Vance has called for the replacement of, quote, every civil servant and quote, with loyalists. He has also said he thinks Trump should, if he was giving him advice, quote, fire every single mid-level bureaucrat, every civil servant in the administrative state and quote, replace them with our people. That is what he has urged Donald Trump to do.

Melissa Murray Let’s just spin this out for a second to see how it would work. Administrative law judges. So those are the folks who used to oversee securities law claims before Jacuzzi. They also oversee consumer finance claims, environmental claims, social security, and more. All of those folks would be replaced by Marjorie Taylor Greene types. That sounds great. That’s basically how the federal government runs itself into the ground. This sounds like an actual bag of dicks. I mean, literally about yes.

Leah Litman Yes, no. It’s like literally replacing experts, apolitical individuals with people who have like festival porta potties for brains and mouths.

Melissa Murray The framers of project 2025 also have some thoughts about the white House office and the Tldr here, at least part of it is that they seem to want to transform the white House counsel and the Department of Justice into more of a personal suite of lawyers for the president, a public defender’s office for the president, if you will.

Leah Litman Now, in fairness to them, the former guy does need a lot of lawyers who he won’t have to pay.

Melissa Murray That’s true. I don’t know if they were contemplating that specifically, but the report does read that quote. While the white House counsel does not serve as the president’s personal attorney in non-official matters, it is almost impossible to delineate exactly where an issue is strictly personal and has no bearing on the president’s official function. The white House counsel needs to be deeply committed both to the president’s agenda and to affording the president proactive counsel and zealous representation, end quote. I will note this whole fuckshit about how we can’t decide what’s personal and what’s official. That comes directly from a John Roberts opinion. Those Trump versus Vance, Trump versus Mays are cases where he’s like, hard to tell what’s personal and what’s political with the president. No like it’s a man, but it’s also an office. Oh.

Leah Litman Well, also the immunity ruling. Like, consider this alongside the Supreme Court’s recent immunity ruling in the Trump case. Like, this document is basically saying the president can ask white House counsel to do pretty much anything. And it will obviously be related in some way to a president’s official functions. And recall how the Supreme Court said the president can’t be prosecuted for anything falling within the outer perimeter of the president’s official duties. You know, like insert, evil genius. Laugh here. Like, this is how it all relates and it all comes together. Because project 2025 also plans to eliminate the current firewall between the white House and the Department of Justice in order to ensure that DOJ can do and will do more of the president’s bidding. And again, remember that in the immunity ruling, the Supreme Court said that any investigative or prosecutorial functions are things the president can’t be prosecuted for. So this is literally freeing the president to exert more control over the Department of Justice’s massive investigative and prosecutorial functions, for which the president would face no accountability. That is what, in plain English, this means. When project 2025 says, quote, the Office of White House counsel also serves as the primary gateway for communication between the white House and DOJ. Traditionally, both the white House counsel and attorney General have issued a memo requiring all contact between the two institutions to occur only between the Office of White House counsel and the Attorney General or Deputy Attorney General. The next administration should reexamine this policy, end quote. This is how Donald Trump would end federal investigations and prosecutions into him. This is how he would have ended the investigation into Russian interference in the election by exerting control and issuing directives to all of the lawyers within DOJ. They are claiming the power to do just that and announcing their plans to do so. This is how you get the white House directing DOJ to prosecute political enemies, media critics and more.

Melissa Murray So that’s basically how it begins with the framers of project 2025, quote unquote, taking the reins of government. The slow slide to fascism is off to a great start. So just chew on that for a little bit, listeners, and definitely share it with your friends. Next week we’re going to break down another aspect of project 2025. So you can kick the tires and really get to know what’s under the conservative hood. But for now, a little palate cleanser. We’ve got some content for you about things you actually do need to read, and that we actually enjoyed reading.

Leah Litman [AD]

Kate Shaw Today, we are delighted to bring you an interview with the author of a brilliant new book about an unexplored aspect of the history of efforts to secure civil rights. The book is by the great Dylan Penningroth, a professor of law and the Alexander F. And May T. Morrison Professor of History at UC Berkeley, where he specializes in African American history and U.S. socio legal history. Before joining the Berkeley faculty in 2015, Roth was on the faculty of the University of Virginia and Northwestern, and also served as a research professor at the American Bar Foundation.

Melissa Murray Penningroth’s first book, The Claims of Kinfolk African American Property and Community in the 19th Century, South, won a whole bunch of prizes, including the Avery Craven Prize from the Organization of American Historians. And that’s not the only prize that Dylan penned. And Roth has won. He’s gotten every imaginable award, but one that is particularly close to our hearts is the awarding of the MacArthur Foundation Genius Fellowship, because it just certifies, once again, something I already knew. Dylan C. Penningroth is a genius, and he’s the second genius we’ve had on the show. Is that right, ladies?

Leah Litman Second certified genius.

Melissa Murray Certified genius.

Leah Litman Recognized genius by the MacArthur Justice Foundation.

Melissa Murray I mean, we always have some geniuses on this show, but also in education. But this is actually actual geniuses.

Kate Shaw This is real.

Melissa Murray Exactly. So Dylan’s new book is called Before the Movement The Hidden History of Civil Rights, and it explores how ordinary black people used and thought about law in their daily lives, and how black legal activity and black legal thought helped shape American law and black social movements from the 1830s to the 1970s, well before the beginning of many of the conventional narratives about the use of law to secure black civil rights. So a very hearty, strict scrutiny. Welcome to you, Dylan C. Penningroth. It’s great to have you here.

Dylan C. Penningroth Thank you so much for having me.

Leah Litman And we should also say your new book is also prize winning, even though it is very recent, it has already been recognized with the Ellis Hawley Prize and the Merle Curti Social History Award. So this book has already won several awards, which is one of the reasons we’re so excited to have you on.

Dylan C. Penningroth Thank you so much for having me on the show. It’s been a real journey to write this book. You probably saw somewhere in the opening pages that it took me 20 years to write it, and we can talk later on about why it took so long. And what was it like to write such a book that took such a long time? But in any case, it is a joy to be finished with it and to be able to discuss it with you on this show.

Melissa Murray It’s a joy to read it. And I do remember when I first met you, you were working on this book and you’re so excited about it, and you worked on other things in the interim. But I know that this has been a labor of love for you, and it really comes across on the page.

Dylan C. Penningroth It really was. And I think one of the other things that probably comes across on the page is that it’s, it’s very personal in many places. I work in stories about my family. I was inspired in many ways by them. I actually brought relatives along, particularly my mother, to come with me and, and do some of the research with me. She she tagged along and we went and talked with older relatives, and she helped me think through some of the things. And in addition, I learned something about her experiences, both as a member of a family, a black family, during part of the period that I’m writing about. And as a law student, in at Penn Law School in the early 1970s. And so, you know, those are just some of the reasons why this book was a personal journey as well as an intellectual journey for me.

Kate Shaw And we do want to get to, you know, legal education. And you suggest that, you know, your mom really, she didn’t choose. She left law school after, I think, three semesters and found some of the profound limitations in the curriculum, maybe part of the reason that she departed. So we actually do. Obviously, we’re law professors, and we want to talk a little bit about some of the takeaways that the book provides with respect to legal education, but can we ask you to talk a little bit about the story of your great, great, great, I believe, uncle and his boat.

Dylan C. Penningroth So that story that kicks off the book is about Jackson Holcomb. And as you say, he was my great, great great uncle. His son, Thomas Holcomb is, you know, a man I knew when I was very small. We used to chase rabbits together, back in the backyard. And, you know, when I was six years old, he died, and I went down to the funeral. So I knew him as kind of a connection to the South. And one of the things that you’ll see in the book is that the people I’m writing about have roots in the South, but are living in the North, and one of the things that connects them to the south is property. So a lot of the book’s about civil rights. And one of the civil rights that I talk about is property. And here I am, even at five years old, me looking back as an adult, thinking again about these experiences that I had when I was very small, thinking about the role of property in constructing family and remaking family. So that’s one theme in the book. The property story for me begins with a recording that my uncle, Thomas Holcomb made with my uncle, Craig Baskerville. And in that recording, Thomas Holcomb talks about his father, Jackson Holcomb, and how Jackson Holcomb owned a boat. So he says he had a boat. And during the closing days of the Civil War, general Lee soldiers. After losing the Battle of Richmond, they’re retreating through the woods and they end up somewhere near where Jackson Holcomb is living in Cumberland County, Virginia, and they come to the river Appomattox. He ferries them across in his boat, and when they get to the other side, they pay him. And you know, I’m looking back as an adult on this story, and I’m thinking that is a strange thing for heavily armed white men who are losing a battle to preserve slavery, to do for a man who is enslaved and who they have no legal obligation to. And that got me thinking. What is it about this world of slavery that I’m not getting? And what I ended up thinking is that there’s something about, this world that makes it perfectly normal, perfectly expected for a white person to pay an enslaved black person for services rendered. And that’s the world that I wanted to begin with.

Leah Litman So maybe we can zoom out and consider the book’s broader sweep. The book is called Before the Movement The Hidden History of Black Civil Rights, and that title kind of says, what we are going to be talking about, because the well-worn narrative is that the promise of reconstruction failed, leaving black people without civil rights laws until around the 1940s, when some brave lawyers ventured south, bent on changing the law and dismantling Jim Crow. But as you exhaustively document in the book, that is only part of the story, because there’s a lot that hasn’t been told, and in many ways that history has been hiding in plain sight, and the book uncovers much of it. So let’s, you know, also kind of start around where the book does with the complex relationship of many enslaved persons to the law. As the book makes clear, people without legal rights could and did still do legal things. So what does that mean? And you know what kinds of legal things?

Dylan C. Penningroth What I mean, when I talk about doing legal things is that I want to write about a world where slaves enjoy things called privileges. And in the world of the 1830s, 40s, 50s, privilege is actually meant something. I mean, you can see it in the Constitution. There’s a Privileges and Immunities Clause. And in that world, people had privileges as members of various kinds of communities. Some Congress people talked about the United States as an association of white men. And so this world of associations of various kinds of communities where people have legal privileges, which sometimes can be rights, that can be vindicated by a court. This is the world that slaves inhabit, and it’s connected intimately to the world that white Southerners inhabit. Again, this is one of the reasons why it’s not so surprising that the soldiers would pay Jackson Holkham, because they’re all participating in this same world and a world of where people are obeying the same legal logics that have to do with things like notice, displaying acknowledgment. How do people know what property is? How do you what do people mean when they make bargains? Slaves are participating in the same world. So just give an example. White people and enslaved people owned livestock. Through the same practical mechanisms. They put marks on the live stocks body, so they clip years on pigs that you know their brands. And there are a series of cases in the antebellum South where, white people challenged that and they say, well, you know, slaves can’t own pigs. And what the courts end up saying often is that indeed they can. But the meaning of owning has to be carefully demarcated. They can’t legally vindicate an individual right to own a pig. But the courts are very careful to say that indeed, slaves do own pigs, and they do own horses and cows and other things. And to say otherwise would be to destabilize the rights of white Southerners, who are, after all, are depending on and participating in the same system of Marx that stabilizes property ownership for everyone.

Kate Shaw Kind of the complexity of even the very notion of property ownership is, I think, one example of this sort of larger set of arguments about the complexity of law and the relationship even in, you know, in the antebellum South of black people to law. The discussion of Dred Scott, I thought, was really revelatory on that score. And I want to work your discussion into the way I teach Dred Scott the next time. But basically, you know, in that case, for our listeners, Roger Tawney infamously concludes in the case brought by Dred and Harriet Scott, who are suing for their freedom, that black people were not and could not be citizens of the United States. And Tony offers this highly selective reading of history to support his claim. And then in dissent, Justice Curtis says, look, actually, black people were considered citizens in various states at various times. And you suggest that the legal lives of black people in the 1850s, when Dred Scott was decided, and the 30s and 40s when you’re also writing about, were just much more complex and much more ambiguous than either Tawney or Curtis or really kind of dominant historical narratives have allowed or appreciated.

Dylan C. Penningroth No, that’s absolutely right. You know, one of the things that I wanted to get across in that discussion of Dred Scott is that both Tawney and the dissenters are putting forward a vision of slavery. That is essentially it sketches a binary between slavery and freedom, that there’s an absolute line, between slavery and freedom, that slavery and freedom are absolute opposites and that the the line between slavery and freedom is civil rights. So the right to sue and be sued, the right to make contract and the right to own property, that’s what makes you free. That’s what Tawney thinks. But that’s also what Benjamin Curtis thinks in dissent. And what I’m arguing is that that is much too simple. Both because enslaved people had privileges that were part of the same broad legal understandings that anchored white people’s rights. And because the world of freedom that comes after the end of slavery, as we know from the legal realist, is shot through with all sorts of forms of coercion. Right? A contract is, you know, back by the force of the state. And so to say that there is this sharp distinction, this sharp binary opposition between slavery and freedom to me. You know, when I look at the history of this line of thinking, it really is a profoundly conservative way of thinking. And that in turn, to me, sort of complicates some, some versions of progressive argument. So, for example, the 1619 project, which also, I think subscribes to this idea that there’s a sharp binary between slavery and freedom. That’s very important to that way of thinking about history, but it really does kind of concede way too much to what is essentially a conservative mid-19th century conception of what those categories mean.

Melissa Murray One big part of the story Dylan relates to what you just said in response to Cade, and I think that part of the story is the sort of conventional narrative which argues that public law has been the principal vehicle for vindicating civil rights, and in particular, the civil rights of black people. But what your book opens up is that, in fact, well before the civil rights movement and for a very long time, black people have actually been relying on private law and specifically the law of contracts to vindicate their rights. But this aspect of civil rights kind of falls out of the picture, perhaps because it isn’t public law, it’s private law. And we don’t ordinarily think of private law and certainly not contracts as racialized. Why not? Like, why has that part fallen out? Is it because private law is necessarily private to some degree, and these are sort of individualized agreements made between different people for the specific things that they want and doesn’t have broad public applicability. But what makes this sequestered from our traditional understanding of civil rights?

Dylan C. Penningroth That’s a great question. And you know, one way that I have sometimes thought about this book is as an effort to desegregate the law curriculum. I think that the meaning of civil rights changed over time. Eric Foner back in 1970, brought to our attention the fact that in the 1850s, 1840s, civil rights to most Americans fell as one of three categories of rights. So you have political rights. You know, the right to hold office, the right to vote. You have social rights, which is basically anything that white people don’t want to do with black people. So that includes things like marrying across the color line, going to school with black children. It’s sort of this catchall, for things that white people don’t like. But then in the middle you have this thing called civil rights. And Abraham Lincoln. Latches onto this idea that civil rights are the political argument that’s going to carry them to the white House, and it works. Civil rights are the positive rights that protect natural rights, life, liberty, pursuit of happiness. Civil rights translate as property contract and the right to sue and be sued. Those are not off limits to black people. So the traditional story, I think, focuses on the social rights and on the political rights. But we haven’t really thought as much about civil rights and those civil rights as I mentioned a bit ago. They have largely to do with what today we associate what we call private law, and because we haven’t focused as much on those, we’ve tended to assume that black people were completely alienated from law, that the courthouse, the county courthouse where the southern sheriff was standing with his, you know, his truncheon, the courthouse doors were locked to African-Americans. That is absolutely true when it comes to voting rights. It would be an insane thing in Mississippi to go and try to register to vote in 1900. It would be an insane thing to try and marry across the color line in most parts of Mississippi in 1900, but it is perfectly normal for black people to go to the courthouse in Holly Springs or in Cumberland County, Virginia and register a deed convey property to someone else. Indeed, one of the reasons why it’s so unremarkable for black people to go and do these things in the realm of civil rights is because. Although sometimes they’re suing white people. Most of the time they’re working at relationships with other black people. So why does this matter? Again. As I said, I think of this book in part as an effort to try and desegregate American law, or at least the way that we traditionally think about American law. So, for example, I want to argue that contract and property, which I think sometimes implicitly get presented in the law school curriculum as white, they’re sort of coded white because race is sort of assumed to be absent from these, from these case books, but they are in fact not white. There are black people in the pages, even of the case books. And indeed, black people participated in the making of American contract law. And then, conversely, black people are not the special favorites of the law. So you think about anti affirmative action arguments, those, you know, those sorts of arguments go all the way back to the civil rights cases of 1883, where Justice Bradley says, you know, at some point you have to stop running the 13th amendment arguments to the ground. Black people have to stop being the special favorites of the law. And my point here is simply, they’ve never been the special favorites of the law, but they’ve always been in the law.

Kate Shaw And I think that’s actually a good segue to ask you a little bit about the research for the book, because when you say that, it actually turns out that if you’re looking in, you know, the sort of recording of deeds and the other records that sort of constitute the body of American law and legal history, whether or not that body of law is reflected in the law school case books. And I do want to get back to that in a little bit. But first, like, there’s just a tremendous wealth of, you know, you talked about the two decade long effort that this book reflects. What was that research undertaking like how where did you look and what did you find in sort of putting together the primary sources that resulted in this book?

Dylan C. Penningroth It was an amazing experience. It was also very challenging. So I look at a lot of different kinds of sources, including things like church sermons, church minutes, diaries, many of the usual sources. Of course, I also look at appellate legal records. But, you know, in a sense, the heart and soul of the book is county court records. And so I went to a couple of dozen, in fact, county courthouses. And I would get in a rental car. It’s always a Chevy Malibu. Some of you, if you’ve rented, you know, you go to Hertz and it’s always the same car. And so I would get in this rental car and I’d drive to the center of town, and I would ask to go in the back and look at the dockets. I would say, basically, do you have any old records? If they let me in the back, I would pull down these dockets or order books. These are heavy, but 10 pounds each, leather bound, volumes. And on them is a register of all the cases that have come before the circuit court for that county for a given period of time, and I would sample every and case to cover a year. And I did that for decades. 1872, 82, 92 and so forth, because I wanted to get a statistical portrait and basically answer the question, did black people go to local courts? You know, is the traditional narrative correct? That they weren’t there? They are almost never identified by race in the actual local court records. The thing that I wanted to get across is that it poses both practical difficulties. Right? I’m in these courthouses and I want to write African-American history, and I don’t know who’s black. That’s kind of a problem, right? But then the other part is just this analytical mystery. Like, why aren’t they marked as black? I mean, the the water fountains up front are marked white and colored. At that time. There’s a Confederate soldier on the front lawn of almost every courthouse in the South that I went to. There are other kinds of records, one shelf away that are there, segregated by race. You have white divorce registers, marriage registers, colored ones. But here, as in the deed books, in these civil case dockets and in the newspapers. They’re almost never marked by race. And I found that remarkable. And so there’s this whole story that I wanted to think about, like why not? And so. Once I had collected names and eventually we collected 14,000 cases, so about 28,000 names. I brought them back my research assistants and I looked them up in Ancestry.com. So this is the part, you know, it’s not about the swabs, the DNA swabs. This is the part where you punch in names into the US census database, and you can identify it that way. Who’s black? So of those 14,000 cases that we looked at, we found about 1500 that involved black people as plaintiffs. And so that gave me sort of a static statistical picture showing that black people actually were there. They were actually active in courts, local courts, doing things with their civil rights. Again, they’re not pursuing the vote. They’re not looking at social rights. They’re pursuing these civil rights. Then I went back to the courthouses and I read the cases. And from those cases, I began to put together stories. Because so many of these cases involve intimate relations, they involve community relations. They’re stories about black churches, about black families. Often they were quite emotional. So one answer to your question, what was it like doing this research? It was, you know, in many instances, it brought tears to my eyes hearing people’s stories, what people said in court. And then I guess the last thing I’ll say about it, it it sometimes got kind of gnarly because these records are not particularly well maintained. Sometimes I found myself clambering, you know, in dimly lit warehouses, sometimes, you know, following one of the county clerks climbing on top of these piles of record books to find the ones that we wanted. Sometimes they’re infested with vermin or insects. So there’s a there’s a certain amount of patience that one has to have, but also a certain amount of kind of intestinal fortitude that sometimes you need to get into these things and actually do them. But I guess my main takeaway is there there that, you know, anyone can do this research. There is a world of history, black history, Asian American history, histories of ordinary people acting in the world using law. And it’s right down the street in your local county courthouse. People should use them.

Leah Litman Yeah. It also requires intestinal fortitude to listen to Supreme Court arguments. So I can relate, at least in that respect.

Dylan C. Penningroth Absolutely.

Kate Shaw Yeah. And I mean, you’re sort of challenging binaries throughout. And there is something maybe instructive about the fact that of all the records, these what you describe as these, even if we didn’t conventionally think of them as, you know, the documentary history of the exercise of civil rights in local courthouses, like it’s they were and this was an exercise in which, like both black and white and other litigants are participating in and they were not marked. It’s so interesting. It’s just like there are all of these ways in which you’re both shattering binaries. And I found the book just this incredibly, like a deep meditation on the nature not just of a category like civil rights or the relationship between freedom and slavery, but the nature of law as well. And I think that sort of meditation is woven throughout the book.

Leah Litman And maybe we could contrast that deep archival study and engagement with the, fly by night history we have seen on display in some incredibly high stakes cases at the Supreme Court. And just the last couple of terms, you know, Dobbs, the case overruling row, the gun case. Bruen the affirmative action case, students for Fair admissions. I could go on. But episodes are necessarily time limited.

Melissa Murray It’s so weird to actually have history done by historians. It seems so much more comprehensive and fact based.

Leah Litman So I guess, like Dylan, what does a historian like you make of this?

Dylan C. Penningroth Turn the historical turn on the Supreme Court?

Leah Litman Well, air quotes history. You know, historical turn at the Supreme Court.

Melissa Murray Are nine historians in robes.

Leah Litman History adjacent.

Dylan C. Penningroth History adjacent.

Melissa Murray History-esque.

Leah Litman Right.

Dylan C. Penningroth Alternative history facts. Yeah. What do I make of it? Gosh. I think it’s highly problematic. I think that, you know, if you’re going to make historical arguments, you should first learn some history. And, you know, I think spicy tea. I mean, I think that what, you know, it’s not surprising. It’s tendentious. They’re, they’re going into, you know, they’re selecting the versions of history that they can find in the available sources or in, you know, scholarship to support points that they already know they want to make.

Melissa Murray So, Dylan, are you suggesting that the deployment of history may not necessarily be neutral and objective, but actually ideological and outcome driven?

Dylan C. Penningroth I might be shading in that direction.

Melissa Murray As an historian.

Dylan C. Penningroth As an historian. Exactly, exactly.

Kate Shaw Well, so maybe because the book obviously spans a ton of history, I want to make sure that we’re sort of marching sort of in the same way the book does. So you have, as we’ve been talking about, these rich descriptions of badly neglected eras. And then the. Book arrives at the movement right the beginning of what we think of today as the civil rights era. Although you’re obviously challenging that sort of limited way in which we’ve traditionally understood that kind of descriptor. But one question, which is, how did the work of black lawyers representing black clients in ordinary commercial and contract and property disputes from, say, like the 1890s to the 1940s or 50s, shape what would become civil rights lawyering, because that’s part of the story you tell.

Dylan C. Penningroth No, it’s a great question. Here I’m building partly on the work of Ken Mack at Harvard. Black lawyers in, you know, the period from the 1870s to the 1890s. We’re actually making the good living in many parts of the South, and they were making a good living doing what I think they refer to as bread and butter cases. And then in the 1880s and 1990s, white southern lawyers drive them out of the legal profession. And they do it, I think, in part because they want the business that black clients are bringing, those black lawyers, they want to take the business away from black lawyers, specifically the business of black clients. And so there’s this long period from the 1890s through the 1930s and 40s, where black lawyers there, they’ve been largely driven out of the profession in the South. There are some hanging on in northern cities, and those are the lawyers who tend to become involved with civil rights litigation in the 1920s and 30s and 40s. Now, what civil rights litigation means at that time is really kind of up for grabs, right? As recently, Boston, Ken Mac and others have shown. You know, they’re really thinking of a whole range of different sorts of claims that one can make at law. What I wanted to bring to the table is to just show how much of. Bread and butter. Work was still going on in black lawyers offices, number one, and how much that work resembled what most white lawyers were doing. And so that helped me to explain two phenomena. One. It helps explain why white lawyers, including some of the most racist people you can imagine, people like James Eastland from Mississippi. Why would men like them represent black clients? And I think part of the answer is when they think of the claims that black people are bringing, they’re not thinking of desegregation. That’s in fact, not what black clients are bringing to them. They’re bringing tort cases, you know, accident cases, property line partitions, those sorts of things. So it’s perfectly fine in James Eastland mine to take a case like that from black client. But for black lawyers, it poses a different kind of difficulty, because as we move into the 1950s and 60s, black lawyers, at least sort of the public meaning of black lawyer ness, is moving toward an idea of civil rights that is about anti-discrimination law and that is imbued with this idea of sacredness, that is, that a black lawyer is representing the interests of a collectively, a collectivity that we might call the race. Sometimes they even say representing the race, right. So they’re there to represent a much broader set of interests than the interests of any one client. That that movement begins in the 1912. And it sort of lays out that marker early on. Dubois does like we’re we’re not here to represent individual black clients, but rather the interests of the race.

Melissa Murray Well, can I can I touch on that for a minute? So there’s a really interesting undercurrent in the book that you highlight a couple of times. Black women are a big part of this story. They are the majority members of many of these community institutions that fuel this movement before the movement. But there’s a way in which the, I guess, professionalization of the movement, to a certain degree cuts them out and really front lines black men. So can you talk about some of the gender dynamics of all of this?

Dylan C. Penningroth There. The gender dynamics operate in many different strands of the book. One of them, you touched on the organizational the professionalization of civil rights activism. Absolutely. And, you know, many other historians, you know, a movement historians have documented and talked about this. One of the things that I’m trying to add along that to mention is the degree to which the corporatization of civil rights organizations aids and abets that kind of sidelining of black women. There’s also another way in which black women get sidelined from almost the very beginning, which is in one of the biggest us, you know, black collectivity going back to the 1790s. And that is the black church. And so you have these black churches that begin forming during slavery, and they really kind of have an opportunity to blossom during the 1860s, 70s and 80s. And many of them choose to become corporations. And so one of the things that comes from that is the churches. By becoming incorporated, they gained certain kinds of powers. But they also gain certain kinds of relationships between leaders and members. So as you mentioned mid ago, most of the members of black churches were women. But most of the leaders, in fact, the leaders were almost exclusively men. And so when black churches become legal entities, the leaders are granted certain powers delegated by the state. They’re the ones who have rights under the prevailing law. So then that raises the question do the members of the church who are predominantly women, do they have rights or do they only have privileges? And the courts consistently say that members of a church corporation only have privileges. And that’s one of sort of the underlying, you know, reasons that enables black men to continually overrule, override the wishes of black women. But one of the interesting things, too, is that black women, they do find ways to assert their power. And one of them is by taking on what are seen as minor church offices like the Clark Church. Clark. So one of my mom’s best friends was actually the church clerk at South Orange, Baptist First Baptist Church, where my mom grew up. And Lula Blackmon was the church secretary. Clark. So she was the one in charge of counting the votes, counting the members. So she could kind of have, you know, a kind of discretion when it came to deciding whether a meeting had the requisite quorum or how the vote first got counted or who was eligible to vote. And so, black women, they have this subtle kind of authority, the other way in which black women assert their authority, pushing back against this sort of patriarchal black church and black corporate institutions is that they take the rhetoric of civil rights, the sacred struggle that black ministers are putting forward, and they turn it back on to the black ministers themselves. So this is one wonderful anecdote where a woman named for Anita Winbush, who is a member of an AME church in Washington, D.C., the bishop wants to replace the local minister at that church, and she basically threatens to hold a march on the bishop’s house. She invokes the march on Washington, says, do you remember the march on Washington from a few years ago? In 1963? You told us all to go march on Washington for our civil rights. Well, now we’re organizing a march on your house to keep the minister that we prefer the march on on the Bishop’s house of 1966. So this is ways that black women find in the interstices of male dominated power structures within these black associations that I think are really important to bring out as well.

Leah Litman So one story in the book is how various actors have long dealt with race opportunistically, you know, up and down the legal process, and you bring this out in some of the cases in the book, including buyers versus railroad, a famous contract case involving mental anguish that I’ll ask you to talk about in a second. But we are in a moment where this is also something we have noted about the current Supreme Court. It’s opportunistic and selective and misleading, you know, references to race and racial justice. And it’s in part for that reason that we are in a moment of understandable and I think, correct skepticism about the court as an institution. And to be clear, I think we want and need more of that. But there’s also a danger in giving way to complete nihilism about the law. And the book is in some ways a powerful reminder that even as actors are selectively using race up and down the legal system, for centuries black people have been drawing on the law and its potential. So I guess, could you elaborate on the erasure of race from famous contract cases like buyer’s and then maybe gesture? If there are contemporary takeaways about what we can learn about black people drawing on the law? In order to get at some of the reactions to what is happening with the contemporary court.

Dylan C. Penningroth Now, it’s a great question. You know, I say that race. Was brought in and erased out opportunistically. I don’t think that this was done, systematically to disempower black people. I think that actors up and down the legal process from the trial court to the Supreme Court were. Not just erasing race, but sometimes bringing it in to serve their own purposes. So sometimes they would put it in, they would actually put race. They would ask litigants questions like, are you a black man? Are you a colored man? They want to get it in the record, obviously, because they know that at the appellate level, the judge won’t be there to see it. They think it’s a material fact. But then at the next level, you know, the judge or the reporter or, LexisNexis, they strip it back out. And so there’s this way in which different legal actors are putting it in and taking it out for their own purposes. There’s a temptation, I think, to think of the world of civil rights as being number one colorblind. Number two that it should be colorblind. And number three, that. And I think this is where the court’s conservatives may be going on this. Is that that’s all we need. That we don’t need anti-discrimination law, that all we really need are these basic civil rights that Abraham Lincoln and the Republicans put forward in the 1850s. But that’s simply that flies in the face of history, number one, because we know that court actors were putting them in and out. And number two, because we know that. When it comes to property and contract, the haves almost always come out ahead that the people who start with a bigger pile of chips, who can last longer, who can hold out longer, who can, you know, throw up frivolous motions to dismiss like Donald Trump did for years before he was ever hauled in front of this court. You know, stiffing contractors who are suing him for, you know, contractual obligations that he just declined to pay because he could. He’s one of the haves. And there’s a history to that. And the reason that it’s not adequate to say that this is a story that supports the idea that colorblindness is desirable, or even that it existed historically in law, is because black people were disproportionately among the have nots. And so they usually came out on the short end of the stick. So the fact that they’re in court litigate and that they’re exercising their civil rights does not mean that they were truly free.

Melissa Murray Can I follow up on something you said that I thought was really profound and important for the conversation? This idea that your book makes very clear is that colorblindness is constructed in a lot of ways. It’s not that it’s a natural state. The courts actually read color out of a lot of these cases, as part of the marginalization of those who are among the have nots. And I want to pivot to maybe a different context where there are similar power dynamics or lack of power, between different groups. And this question of color blinding or color blindness really comes to the fore. And I’m thinking specifically about legal education. You’ve already alluded to this in your discussion of your mother’s experience at Penn Law School, where she matriculated and then withdrew. You suggest in the book that part of her disaffection from law school was in not being able to see herself in the canon and in the curriculum. And as you note in the book, that’s a choice. The stripping of color from contracts is a construction. It’s not an inevitability, and it’s certainly not natural, because there are these black litigants who are at the heart of a lot of cases that don’t make it into case books. And they’re even in these cases that do make it into the case book, but we just don’t know what their color is. And, you know, Walker Thomas is the exception, as you note. What are the implications of the story that you tell for the law school curriculum, for professors and casebook authors who have a real thumb on the scale for how the canon and the curriculum is shaped, and how black students or any student of color receives it.

Dylan C. Penningroth That’s exactly where I think. The shape of the law school curriculum matters. Part of the argument that I want to make has to do with. Being true to the actual meaning of the case. So for example, there’s a case called Wolf versus Marlton that I talk about briefly in the book, but more in an article that I published separately in Pen Law Review. And there is a case where a white couple, you know, they’re buying a house, they want to get out of the contract to purchase the house, and they essentially put forward a threat to the builder saying, if you don’t let us out of this contract, then we will make it impossible for you to sell any more property in this part of new Jersey. The threat was clearly a threat to resell the house to a black family, and the new Jersey Supreme Court even said that. But as the case then moves into the Restatement Second of Contracts, that threat gets elided. They don’t just erase race, they erase other facts about the case. They turn it into a case that involves a threat to build a noxious factory on the property. And so now you know, the meaning of the case has been transformed. And so, in a way, I think what’s at stake here is, a question about what do we think is a material fact? How do we exclude or include certain facts about a case? Why do we think that, that it’s relevant to talk about the, the, the the nature of the use of the property and not the identity of the property owner in this case? I think that’s one way in which the stakes are high, but another way. And this goes back to think about my mom is, you know, what do we expect our law students to think about law if we’re teaching the students implicitly? That contract is a white subject, that it’s just sort of this white cathedral built by white men for white people, and that it traces back to 13th century England. You know, what are we really doing here? If we now know that it involves numerous cases involving black people, that some of its theorization, you know, going down through the 1970s involved hypotheticals about slavery and slaves. You know, I think once we sort of examined that intellectual history and we see black people in the cases that we are teaching students, I think that we have to think differently about how we teach contract law. I mean, in a way, there I talked earlier about desegregating the law school curriculum. And I guess what I mean by that is we should stop implying to students that race only matters or only exists in certain weeks of constitutional law, certain weeks of criminal law. Certainly it’s a civil procedure, right? And one case in contract law where you talk for 20 minutes about Williams versus Walker Thomas, it’s much more than that. And it’s not just in cases that are explicitly about race, quote unquote. It’s also in cases that are not about race, but which involve people thinking through key concepts in contract, key theories of contract, through black bodies, through ideas about slavery and freedom. That’s where I think we really need to redirect our attention in the teaching of private law.

Kate Shaw It’s such an important and profound challenge to everyone who think seriously about teaching law students and about the law just generally. And the book really is truly a tour de force. Dylan. So we want to thank you so much for coming on Strict Scrutiny to talk to us about it. It was a real pleasure to have you.

Dylan C. Penningroth Thank you so much for having me.

Kate Shaw Once again. Listeners. The book is called Before the Movement The Hidden History of Civil Rights. It is available everywhere books are sold, including one of our favorites, Bookshop.org run, don’t walk to check it out. And once again, Dylan, great thanks for being with us.

Dylan C. Penningroth Thank you.

Leah Litman [AD]

Leah Litman Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Litman, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell with help from Bill Pollock. Michael Goldsmith is our associate producer. Our interns this summer are Hannah Saraf and Tess O’Donahue. Audio support from Kyle Seglin and Charlotte Landes. And music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production and thanks to our digital team, Phoebe Bradford and Joe Matoski. Subscribe to Strict Scrutiny on YouTube to catch full episodes, you can find us at youtube.com. Slash at Strict Scrutiny podcast. And if you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.