Dahlia Lithwick's 'Lady Justice'

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. Well, the Supreme Court began hearing cases for its new term today, October 3rd at 10:00 AM. 1st Monday in October that's when they start. The court started with the first of two oral arguments as history was made as Judge Kentanji Brown Jackson took the bench for the first time. While we won't hear about the outcome of those cases until maybe mid-June or so, on the docket at this term are some cases that could have a big impact on education, voting rights, immigration, affirmative action.

If you thought last term was big because of abortion rights, well, I don't know if they can top that, but these things are huge. I've especially got my eye on the voting rights case, a couple of them. Joining me now to discuss the cases before the court this term, as well as her new book on the women who fought back on the Trump administration's policies, is Dahlia Lithwick, senior legal correspondent at Slate, host of their podcast, Amicus, and the new book is called Lady Justice: Women, the Law, and the Battle to Save America. Dahlia, always great to have you. Welcome back to WNYC.

Dahlia Lithwick: Thanks for having me back, Brian.

Brian Lehrer: Let's start before we get to the book with some of the cases before the Supreme Court this term, there's Merrill versus Milligan, which is, after the 2020 census, Alabama created a redistricting plan for its US House of Representatives seats with one district being majority Black. Several organizations challenged the map saying the state had packed Black voters into a single district illegally in violation of the Voting Rights Act. Uh-oh, the Supreme Court already undid part of the Voting Rights Act a few years ago. Is Alabama going after the rest?

Dahlia Lithwick: I think so. I think that's pretty clearly what's going to happen. As you said, this was a racial gerrymander, probably in violation of section two of the Voting Rights Act. Folks will recall that in Shelby County, the court did away with section five of the Voting Rights Acts.

Ostensibly, section two was left to enforce voting rights for racial gerrymanders, but the court took a whack at that two terms ago in Brnovich, and this feels like one last whack, and it's a pretty worrisome case, not only because the court has already weighed in in this case, but it really does suggest that, going forward, if you are minority voters and have been packed and cracked, as we see Black voters here in Alabama, you're really not going to have any federal remedy under the Voting Rights Act.

Brian Lehrer: Does this also have to do with the really threatening proposition that something that a state legislature does isn't even reviewable by the state courts under that state's constitution?

Dahlia Lithwick: You're exactly right. That's the other big, big voting rights case. It's called Moore versus Harper, and it also involves a gerrymander, in this case, a political gerrymander, and I think, Brian, it's safe to say it is the biggest case that nobody could quite wrap their head around because here the proposition is that the North Carolina legislature, having done another just shocking unconscionable gerrymander, gets a map from the state Supreme Court saying, "Nope, you got to do this. This is the way to do it," and they make exactly the claim you just announced, which is, "No, under the Federal Constitution, state legislatures have a plenary power to do essentially anything to do with elections."

That includes if they want to do vote purging, if they want to change the vote by mail policy, up to and including, and this is the really worrisome part, if they just decide that they want to throw out the slate of electors and put in a new bunch of electors, what we saw Donald Trump and John Eastman urging in the 2020 election in Wisconsin and in Georgia. Yes, if the court, which already has four justices who've signaled interest in this doctrine, if this independent state legislature doctrine is blessed by the court in Moore V. Harper, which is upcoming, then yes, you are going to have no way for a state Supreme Court under state constitutional law to do anything to check a state legislature.

Brian Lehrer: Yes, that's the one that really freaks me out, because if the Supreme Court upholds that idea in this case, then hello January 6th, as you were just saying, because it's the same theory that Trump wanted to use or may want to use in the future, or his party might, to allow legislatures to determine who gets the state's electoral votes, not an independent vote counting agency like the state secretaries of state, or, I wonder how far you think this could potentially go if the Supreme Court gives state legislature that power in voting cases.

Would the next steps be to say the whole judicial branch doesn't matter? Every state's state constitution doesn't matter if the legislature through the whims of a right-wing majority at that moment or something like that passes a law that runs counter to the state's own constitution that that would stand.

Dahlia Lithwick: That's essentially the posture of the North Carolina legislature in Moore. Essentially, what they are saying is, "We don't care that the state Supreme Court, under the state constitution says that we have violated the state constitution. There's no check on us. I think that amicus briefs in this case run the gamut. There are iterations of this theory that to use your constitutional parlance freak me out a little bit less, but yes, there are big, big swings, including John Eastman, again, who was the one who was pushing a version of this theory in 2021, that essentially say there is nothing the governor can do. There is nothing the State Supreme Court can do.

This is uncheckable, unreviewable power. I think you're exactly right. In some sense, this is January 6 with the imprimatur of black robes, and it really does stand rooted in almost no doctrine, almost no history. It's been magic up by a certain strain of conservative legal thinkers, but it doesn't stand solidly in any doctrine.

Brian Lehrer: Of course, the point of constitutions, one point of constitutions is to protect minority rights of all kinds. Because democracy doesn't just mean tyranny of the majority, tyranny of the 50% plus one, it means there are some underlying democratic norms that constitutions are supposed to protect in terms of protecting individuals from majority sentiments, in terms of protecting all kinds of groups of minorities, not just racial but certainly we have that particular dark history in this country of racial discrimination, but all kinds of political minorities from the tyranny of the majority.

If constitutions become sidelined by the US Supreme Court, of all things, well, that would really fundamentally change our country. Do you think that the court has any interest in holding up the power of the judicial branch in Alabama and North Carolina? Because it's the judicial branch, if it delegitimizes the judicial branch at the state level, then it, by implication, is saying, "Well, the Supreme Court itself shouldn't have power over the US Congress."

Dahlia Lithwick: If we were in normal times, Brian, I would tell you the answer to that is emphatically yes. That the court understands, not just that the Article three federal judiciary, but state supreme courts are essential to preserving the rule of law. There's a brief, in this case, an amicus brief in the one we're talking about Moore versus Harper, this independent state legislature case from all of the chief justices of all the state Supreme Courts who are not apt to involve themselves in this case, and certainly not to write this kind of brief, essentially making the argument that you're making about kneecapping state Supreme Courts.

I think we're in a very strange moment with the current Supreme Court where all of the breaking mechanisms that I could have thought of a year ago that would've inclined them to say, "Hey, this is really dangerous, both for the integrity and the reputation of courts themselves, or for the rule of law writ large." I see very little evidence that that is currently operative in how the Supreme Court is doing its business.

Brian Lehrer: Let's move on, taking a deep breath, to another big case that the Supreme Court is going to hear this term, Students for Fair Admissions versus Harvard, about whether colleges and universities can use race as a factor in admissions. This one, like Roe, tell me if I'm  exaggerating this, like Roe, challenges a very long precedent about how race can be used as a factor in college admissions that was established by the Supreme Court itself?

Dahlia Lithwick: Yes, that's exactly right. In fact, very recently, Justice Ruth Bader Ginsburg made comments to the effect that nobody's going to disturb this. This was a seminal decision in a case called Grutter v. Bollinger. The Court essentially said that you can use race as a factor in admissions in higher education because there is this demanding interest in diversity in the classroom. We thought that was settled 20 years ago, but here we are revisiting what everyone thought was settled precedent.

In some ways, I think your point is exactly correct, which is, this is very much like Roe, this is very much like some of the religion cases we saw last year. This is very much like the EPA case we saw last year, where we thought the doctrine was settled, that stare decisis meant something, and yet, the absence of Anthony Kennedy, who decided that case, Sandra Day O'Connor, and the stepping in of three Trump-appointed justices means that anything we thought was settled doctrine, even for purposes of going forward for schools figuring out their own admission policies, is now all tossed up in the air and up for grabs.

It's not just, as you say, a question about race, which is a big theme undergirding a lot of the cases this term, it's also, really, in a deep, existential way, a case about precedent and reversing precedent just because the composition of the Court has changed.

Brian Lehrer: Correct me if I'm wrong, but I heard that the plaintiffs are hanging their argument on Brown versus Board of Education of all things, which was, obviously, the landmark case that outlawed racial segregation in public schools. They're using Brown versus Board as the argument against affirmative action because they're saying, "The implication of Brown is that you can't take race into account in any way, including for inclusion."

Dahlia Lithwick: It's a theme that goes not just through these cases but through some of the voting rights cases, the Indian Child Welfare Act, which is also being challenged. That through-line you've just described is this command now from conservative legal movement that we be race-neutral, utterly and perfectly race-blind on every issue. That means wiping away the very reason we have the 14th Amendment, the reason we have the Voting Rights Act. All of this work was done to, in effect, create a more fair, to address centuries of historic racial oppression.

Now the argument is being advanced that that itself is discrimination on the basis of race. It is a through-line through a whole bunch of these cases. Maybe we're stopping to say that one of the chief architects of this argument that the Constitution demands even when we're going to try to fix and account for crippling, crippling efforts to raise up one race over another, even that, says Chief Justice John Roberts, the Court's moderate, probably left moderate justice now, his argument in a line of case is that the way we get beyond race is to get beyond race, and that demands perfect neutrality even when we are trying to repair historic wrongs.

Brian Lehrer: Let me do one more coming to the Supreme Court this term, and then I promise, we'll get to your book in some detail. A same-sex marriage case is coming up, 303 Creative LLC v. Elenis I think it's called. This is a little bit like that cakemaker's case with the cakebaker who didn't want to bake a cake for a same-sex wedding. In this case, it's the owner of a graphic design firm in Colorado called 303 Creative LLC, which wants to start making wedding websites, but the owner opposes same-sex marriage and wants to post her religious objections on her website.

I think people could post their opinions on their websites, but rather than claiming religious liberty in refusing to serve same-sex clients, she's claiming the right to free expression under the First Amendment, free speech. Is this novel?

Dahlia Lithwick: No, I think this is exactly the follow-on to that Masterpiece Cakeshop case that you described that involved the baker. This also is a case that comes out of Colorado, and Colorado, which has a public accommodations law that prohibits discrimination on the basis of a whole bunch of things, including LGBTQ status. People will recall, Masterpiece Cakeshop was kind of a whiff by the Supreme Court. They didn't decide squarely on the issue. They said that they didn't like some language that some folks had used, and they sent it back.

The Court didn't squarely decide whether a religious objector can trump public accommodations law, in that case, for a cakebaker, in this case, for somebody who is the owner of 303 Creative, a web design company. You're exactly right. This is pushing that issue again, saying, "We're going to just pump the accelerator and force this issue before the Court." It's also, we're saying that Lorie Smith, who is the artist in question, actually hasn't yet had somebody seek her services. Nothing has actually happened yet, she just anticipatorily wants the Court to protect and privilege her right to free speech over the rights of possible, hypothetical LGBTQ customers.

Brian Lehrer: There are other cases we could get into. It's, obviously, listeners, who've been listening to this last stretch of conversation, going to be another momentous term at the United States Supreme Court. Dahlia Lithwick, who covers it for Slate, is one of the great Supreme Court watchers of our time. She also does the Amicus podcast for Slate, and she's written a book, Lady Justice: Women, the Law, and the Battle to Save America.

You open the book with not a contemporary woman lawyer but one who passed away in 1985. You call Pauli Murray the most important woman lawyer few people know about. As you ask in the book, why does a book about women and the law open with someone nearly forgotten by both?

Dahlia Lithwick: I think there's two answers to that, Brian. One is that I want people to be as obsessed with Pauli Murray as I have become. Listeners should quickly, quickly download the amazing documentary My Name is Pauli Murray because I think that the fact that Pauli Murray has been lost to history, I learned nothing about Pauli Murray in law school, is emblematic of the problem that I want to posit in this book, which is, we get too obsessed with one or two famous saviors.

We all are waiting for RBG 2.0 to come and save us. We all thought Bob Mueller was going to save us. We all think Merrick Garland's going to save us. I start the book with Pauli Murray because so much of the work, particularly for women and by women, is done in some obscurity, is done by groups of people, often Black women, like Pauli Murray, who also, by the way, self-identified as a man trapped in a woman's body. There was no language for that, I think, in Pauli Murray's lifetime. We now can clearly say Pauli Murray probably would've wanted to be a they.

For my purposes, I start the book with Pauli Murray because Pauli Murray refused to move to the back of the bus before Rosa Parks. Pauli Murray wrote what became the brief in Brown v. Board, never credited for it, the brief that won in Brown v. Board. Pauli Murray did seminal work on the 14th Amendment and gender equality that Ruth Bader Ginsburg ended up using, but I love the fact that women's progress, as I write in the book, is often done by women in obscurity clawing into the rockface of the Constitution their own stories and own histories. They may not get famous for it, but I think they changed the world.

Brian Lehrer: The first contemporary woman lawyer you write about in the book is Sally Yates, a name some of our listeners will remember, the Acting Attorney General of the United States at the time, who, during her brief tenure staying on with the Trump administration after Obama, refused to sign off on the Muslim travel ban. You write that she was the first casualty in Donald Trump's war on the constitution. Take us back to January 2017 and tell us why you put it that way.

Dahlia Lithwick: I love Sally Yates as an avatar of standing up for not just the rule of law, which she did, but standing up for the Justice Department as an institution. The book so very firmly roots itself in people who protect institutions because I think that it's very easy to be nihilist and cynical  about institutions. I start with Sally Yates because she was supposed to be the acting attorney general until Jeff Sessions was confirmed and seated.

She thought it was going to be pretty low-key, not a very intense time. Then without getting a chance to see it, Sally Yates found out about the travel ban that excluded travel from majority Muslim countries the way we all did, on our phones. Had no idea it was coming. Then having thought really carefully about whether she would let the imprimatur of the Justice Department go into court and defend the ban, she determined, "I can't." She thought it was rooted in religious animus, that it violated due process. She made a statement to that effect and was summarily fired.

I use Sally Yates both as emblematic of the ways in which I think a lot of women were very quick to say, "I'm going to stand for the rule of law and I'm not going to get folded into this administration and weaponized to do whatever it wants." Maybe more urgently, because I think a lot more people should have done what Sally Yates did rather than wait to get fired or become best-selling authors who reveal afterwards that they really had questions.

I like that she just took it and took the blow and became, in my view, a singular and all too rare example of somebody who just said, "I am not going to let the rule of law crumble on my watch.

Brian Lehrer: Sally Yates. Moving on, as the Supreme Court hears the argument for the Alabama redistricting case that we were talking about before, you write about Stacey Abrams in your book, who rose to national prominence, of course, for her efforts to protect the voting rights for Georgians. As you write, may well have been what won the Senate for Democrats in 2020. Of course, Stacey Abrams was not on the ballot for the Senate in 2020. Tell us why you featured her in this book on women in the law.

Dahlia Lithwick: I love the bookend of opening with Sally Yates, who's a white woman from Georgia who's very much an establishment figure. The book ends with Stacy Abrams, a Black woman, also in Georgia, who's been working, in many senses, outside the system to organize, to register voters, to get them to understand that this is a team effort. I end with Stacey Abrams because I think that one of the things I realized as I worked my way through this book is that you can win all the lawsuits in the world, but if you're not organizing, if you're not doing fundamentally what I think of as democracy repair work, you're going to end up losing.

Stacey Abrams closes the book because I think she is someone, while a meticulous lawyer, also just took a look at systems failures long before any of us had names for some of the voter suppression she dealt with in her own gubernatorial run efforts by the state to close minority precincts or to do other things to purge voter off the voter roles.

I think that she gave a name to it and a face to it before a lot of us knew it was coming. For me, I closed with her because she's doing with this army of Black and brown women and people across the country who have really, just by the force of her personality and her argument, come to recognize that it's not just one lawsuit and it's not just one election. That this is deep system reform that is going to take decades. Again, that it involves Stacey Abrams, who is always careful to say, "It's not me. I am an avatar for tens of thousands of women who are doing the work." That's precisely the place I think we need to be going into the midterms and beyond.

Brian Lehrer: In that chapter, you write, maybe even more conceptually, one of the things women bring to the law is the capacity to see outside the hermetically sealed story of the law itself. What do you mean by that?

Dahlia Lithwick: I think that one of the things that I've learned, and I know you and I have been talking about this for 20 years since I've been covering the court, is that I think that women occupy this interesting position of being both insiders and outsiders in the law. They are invisible to the founding documents, they're invisible to the 14th Amendment, they are invisible as Justice Alito approved in his draft opinion in Dobbs, they're invisible to some members of this court. The reality of their lives and their medical experience, their economic experience, it's just not there.

There's something, to me, that's really profound about being both inside the system insofar as it has controlled every aspect of women's lives for hundreds of years. Whether they could vote, whether they could have a credit card, whether they could work behind the bar in one famous Supreme Court case, and yet they had no say in it. Their best hope was to try to influence their partners, their husbands, their fathers to try to move the law in their direction.

I think that that insider-outsider quality of both knowing that we reap all of the immense benefits of equality and dignity, all of the work that came from the suffragettes, that came from RBG and that still come from women who are working on reproductive justice, but also that it can be weaponized against us really quickly. In that the chanting lock her up that we heard directed at Hillary Clinton in 2016, which was then directed at AOC, then directed at Nancy Pelosi, then directed at Christine Blasey Ford is now being directed at women in Alabama, in Oklahoma, in Texas, who are under threat of being jailed for miscarriages or fetal endangerment.

I think what I want to say is that women are uniquely vulnerable to having the law used against them and also uniquely def and good and masterful at using the law to lift up all women. It's not to say-- I hate the essentializing that there are not men or other people, non-binary people, other minorities who live in that same insider-outsider status. It is just to say that I think women feel in their bones that the law can either be the thing that saves us and gives us dignity, or that quite literally locks us up and takes away our freedom.

Brian Lehrer: We've got a few minutes left with legal writer and podcaster Dahlia Lithwick from Slate. Her new book is Lady Justice: Women, the Law, and the Battle to Save America. I noticed that you write about how a prominent constitutional law professor, unnamed, asked you why you would waste time and credibility writing a pink book about the law. Would you classify this as a pink book about the law, and what would you say to that prominent constitutional law professor?

Dahlia Lithwick: I think my argument in the book-- and to be clear, I should say, for folks who haven't seen it, it is emphatically a pink book. I really wanted it to be pink. That I say in the book that the law itself has always been a pink book about the law. It's just that women didn't get to write it and that every single aspect of how women lived their lives, how they worked, how they voted, how they earned, every part of that is, in some sense, a book about the law written by men, largely for men.

I think this is a book about women writing themselves into the story of the law. We really see that today at the Supreme Court as Ketanji Brown Jackson joins the court. I think that what I want to say is, it is certainly not a book that is only for women. It is a book, I think, that is really a necessary corrective to the fact that the law determines every part of a women's life. It isn't until recent decades that we got to write some of that book.

Brian Lehrer: To close, let me go back to one thing you referred to in an earlier answer. Read something you write to that effect in the book. You wrote, "We spent too many of the Trump years believing that Robert Mueller, then Adam Schiff, then Jamie Raskin, and then someone else would single-handedly save us in a blaze of cowboyish heroism. In so doing, we often lost track of the everyday heroes in our midst."

We're in the blue northeast here with most of our listeners, and many of our democratic listeners over the years have voiced their dismay of the justice system and why it hasn't been able to stop Trump then and even now that he's out of office. I'm curious what you hope your book will highlight in that respect. If we should be more optimistic about justice in the respect of being pro-democracy, then we are.

Dahlia Lithwick: I mean my slightly dispiriting answer, and maybe this goes back to the spooky conversation we had up top about the independent state legislature doctrine is that there isn't a second thing, there isn't something that isn't the rule of law and the courts. I fear that if the rule of law falls away, if the justice system falls away, then we're left fighting on the streets. I can't be for that.

I guess the other coda to that, and maybe the deep answer to your question is that I think we forget how many wins we've had. Every single chapter of this book is about a really signaling important win that it's easy to gloss over and say, "Oh, God, it's taking so long with Merrick Garland. Why isn't this working? The law is too slow." I think we forget to celebrate our wins and to understand that those wins may take a long time, they may happen in obscurity. I just don't think there's a plan B other than the rule of law. I'm willing to lash myself to plan A with the belief that if good people each pick up an oar and row, we can still prevail using the rule of law.

Brian Lehrer: I can't even believe we're having this conversation, is there an alternative to the rule of law in the United States? There we leave it with Dahlia Lithwick, senior legal correspondent at Slate, host of their podcast, Amicus. The new book is Lady Justice: Women, the Law, and the Battle to Save America. Dahlia, thank you so much.

Dahlia Lithwick: Thank you for having me.

 

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