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“Lady Justice”: Dahlia Lithwick on Women Who Used the Law to Fight Racism, Sexism Under Trump & Won

StorySeptember 28, 2022
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We speak with Dahlia Lithwick, who covers the courts and the law for Slate, about women who fought the racism, sexism and xenophobia of Trump’s presidency. She profiles many of them in her new book, “Lady Justice: Women, the Law, and the Battle to Save America.” “Law is slow and takes a long time, but at its best, it really can make us all freer and safer and restore dignity to those that have been harmed,” says Lithwick.

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Transcript
This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now! I’m Amy Goodman, with Juan González.

On Monday, the Supreme Court will begin a new term. This comes as fallout continues to grow from the court overturning Roe v. Wade in June. Since then, at least 14 states have imposed bans on abortion.

We’re spending the rest of the hour with Dahlia Lithwick, who covers the courts and the law for Slate, hosts the podcast Amicus. Her new book is just out, Lady Justice: Women, the Law, and the Battle to Save America.

So, Dahlia, if you can talk about — well, I mean, we’re seeing state after state ban abortion. The latest is Arizona, unless something happened this morning. But you actually are holding out hope, by documenting a resistance movement of women all over this country who are fighting back. Lay out Lady Justice.

DAHLIA LITHWICK: So, first of all, thanks for having me, Amy.

I think that I would say that it’s really easy to look at everything that’s happened in this country through the lens of just politics. And if you look at, for instance, what’s happening in Iran, that’s a political problem. But we have legal power. We have massive legal power. And the book sort of starts at the beginning of the Trump administration with one massive win after another, that don’t always get recognized.

And so, what I want — kind of, I think, what I wanted to do was say, let’s look at this through the lens of the courts and the law; let’s look at it through the lens of all of the victories we don’t always celebrate, that happened both in the Trump era and after; and let’s lash ourselves to the power of the justice system, which, stipulated, it’s worrisome right now, but it’s not nothing.

JUAN GONZÁLEZ: Well, you profile many women in the book. You begin with Sally Yates, who’s forgotten by most people already, but she was the acting attorney general and agreed to stay on as interim head of the Justice Department after Trump was inaugurated. She refused to sign off on his travel ban and was sent packing.

DAHLIA LITHWICK: That’s right, Juan. I mean, the book starts with Sally Yates, both because she stood for the rule of law, she stood up to the Justice Department, she refused to put the imprimatur of the Justice Department on the travel ban or to defend it. She thought it was lawless. She thought it was full of religious animus against Muslims. And she really just said no. And she was the first of many, many lawyers, I think, who refused to bend the law to Trump’s will.

And so, the book starts with Sally Yates, and it arcs toward people like Vanita Gupta, who was the head of the Leadership Conference, and ends on Stacey Abrams in Georgia, who at that point wasn’t just using court cases, was really using a massive amalgam of women, largely women of color, to get out the vote, to register voters, to challenge vote suppression laws. In a sense, I think the book arcs from the one lone hero that is Sally Yates, who needs to be held up and celebrated, and lands on everyday women just going out there. We saw it in Michigan a few weeks ago, getting a ballot initiative on the ballot to protect abortion rights.

So, I think I want to make the claim that every single woman and every single ally of people who are worried about women’s rights can do this. It doesn’t have to be Sally Gates. It doesn’t have to be at the Justice Department. But it has to happen really soon.

AMY GOODMAN: And, you know, you talk about Sally Yates, because — well, you make the point that many people after the Trump administration are writing books. They’re talking about how they disagreed with him, though they stayed. Yates did something different, when, to her shock, she gets this text from — whatever, like many people do, from The New York Times or whatever — that Trump is imposing a Muslim ban, so early on in his administration. What did she do as acting attorney general?

DAHLIA LITHWICK: I mean, she just very quickly — first of all, she had been in the White House that day. Nobody told her the Muslim ban was coming. Nobody vetted it through the Justice Department or through many other cabinet agencies that should have had a look at it. She gets it in her car as she’s going to the airport, the way the rest of us found out about the Muslim ban. And she essentially scrambled a team of her highest lawyers at DOJ, and they workshopped over the weekend whether they could defend it. And then she essentially gave a statement, saying, “I cannot in good conscience send my lawyers out into court representing the Department of Justice, which is meant to be independent from the president, and defend this.” And you’re right: She was summarily fired. She knew she would be.

And you’re also right, Amy — I think it’s an important point: There should have been hundreds of Sally Yateses. There should have been people quitting their jobs rather than enforcing, you know, the migrant abortion seekers who were not allowed to get abortions, rather than enforcing family separation. A lot of people quit quietly, and a lot of people, as you said, wrote books. To me, Sally Yates was kind of the high watermark of somebody who publicly just said no.

AMY GOODMAN: So, you also profile Pauli Murray, who is not known by many, hugely influential. I mean, from Thurgood Marshall to Ruth Bader Ginsburg, they talked about her being seminal for civil rights law. She died way before Trump, or I’d say, at this point, they would have been “they.” This is a clip from the recent documentary My Name Is Pauli Murray, featuring never-before-seen footage and audio recordings of Pauli Murray in their own words.

INTERVIEWER: Can I take some close-ups of you without your glasses?

PAULI MURRAY: Mm-hmm. [dog barks] Lie down. Sit down. Lie down. Lie down.

INTERVIEWER: Wonderful.

PAULI MURRAY: He has to be in everything. My name is Pauli Murray, and my field of concentration has been human rights. My whole personal history has been a struggle to meet standards of excellence in a society which has been dominated by the ideas that Blacks were inherently inferior to whites and women were inherently inferior to men.

AMY GOODMAN: A clip from My Name Is Pauli Murray, directed by Julie Cohen and Betsy West. Dahlia Lithwick, why you feel that Pauli Murray was so critical to cover in your book?

DAHLIA LITHWICK: It was so important for me, Amy, to start with Pauli Murray for exactly the reasons you said. Both Thurgood Marshall and Ruth Bader Ginsburg were open about the fact that they stood on the shoulders of Pauli Murray. And Pauli Murray, as you just saw, was not just sort of Black and had doors closed their entire life because of it, a woman and had doors closed her entire life because of it, but also was very, very strongly of the view that she was a man trapped in a woman’s body, before there was language for that or any cultural understanding of that.

And the reason I’m obsessed with Pauli Murray, and folks should run out and see the documentary, is because in some ways this book is not just a meditation on these astonishing women lawyers who I think saved the republic and continue to do so, but because it’s a meditation on who gets famous and who gets credit. And it’s very, very much a story of people who can toil away in the vineyards for decades.

Pauli Murray wrote what became the Bible of desegregation for Thurgood Marshall. Pauli Murray wrote what became the spine of Brown v. Board, never got credit. Pauli Murray wrote what became the sort of central theory of gender equality that Ruth Bader Ginsburg used — at least Justice Ginsburg, then as an attorney, credited Murray’s work. But with almost no credit, no recognition, did so much to kind of, out of the rock face of constitutional history, claw what we think of as modern equality, both for race and gender.

And I wanted the book to start with Pauli Murray as a way of saying that the hagiography, the sort of love for, the tote bags and the memes for Ruth Bader Ginsburg, the belief that only Ruth Bader Ginsburg could save us, is so wrongheaded, because there’s a lot of people who don’t get famous, who work for decades and don’t get credit. They’re the people I think we should be lifting up. And so, for me, the book starts with Pauli Murray as a meditation on this “great man” theory of justice, that Bob Mueller is going to save us, and Adam Schiff is going to save us. I just disagree. I think we’re going to save us, and it requires looking around at the Pauli Murrays all around us.

JUAN GONZÁLEZ: And could you talk about the chapter you wrote on Judge Alex Kozinski and Leah Litman, a law professor at the University of California, Irvine, and others who spoke out about Kozinski’s alleged sexual harassment at the time when he was on the powerful 9th Circuit Court of Appeals?

DAHLIA LITHWICK: Yeah, this was a very painful chapter to write, Juan. But it was important to me, if I was covering the Trump era, to also talk about the #MeToo and the judiciary. And that obviously swept in not just Judge Kozinski but also Judge Brett Kavanaugh and allegations about him.

And this was just one of those stories where, because I had clerked on the 9th Circuit Appeals Court, I knew that it had been an open secret on that court that Alex Kozinski, for a time the chief judge, a brilliant visionary writer and thinker about the law — but it was an open secret how he treated his law clerks and young women, that he showed his clerks porn, that he said inappropriate things. And this went on for decades, and nobody did anything about it. And in 2017, finally a few women came forward, and they said, “We’ve kept this secret long enough.” One of them was Heidi Bond. One of them was Emily Murphy. Eventually, Leah Litman, as you said, came forward and said she had also faced inappropriate behavior and comments from him.

And it’s a chapter in which I talk about the fact that I had, A, seen the inappropriate behavior myself when I was a clerk; B, kept that secret for decades; and, C, that I really used it as a launchpad to think about complicity, what it means not just that the federal judiciary did nothing for decades, but that all of us kept the secret because Judge Kozinski was a feeder judge. If you clerked for him, you ended up at the Supreme Court. And so I wanted that chapter to stand for the proposition that all of us, all of us, including people in the press, like myself, who kept that secret for decades, are really part of the problem here, and we have to ask ourselves why we’re willing to subordinate the truth to having access to power.

JUAN GONZÁLEZ: And you mentioned Justice Brett Kavanaugh. You also wrote about Christine Blasey Ford, who had accused him of inappropriate behavior, and also Anita Hill.

DAHLIA LITHWICK: Yeah. I mean, I wanted to have the center of the book be some reflections on #MeToo, on the ways that it worked, on the ways that it didn’t work, on the ways in which it is substituted for having meaningful investigations and due process. And so I really wanted to think about Christine Blasey Ford as an avatar for the proposition that people believed her. I was in the room when she testified. I don’t think anyone in the room thought she was lying. But nevertheless, Judge Kavanaugh was elevated to the Supreme Court and went on, this spring, to be a vote to overturn Roe. And so I think we disserved both Dr. Ford, who took, I think, a huge risk, and I think we served Judge Kavanaugh by not having any meaningful investigation. And so, what was the point of all of that, other than, I think, to have this kind of public forum, that was not a formal legal process, and then step over Dr. Ford and say, “Oh, well, bygones”? And now we are, you know, locked into a Supreme Court, probably for decades, that will be disrespectful of women’s rights.

AMY GOODMAN: We just have a minute, but you also of profiled Stacey Abrams and Roberta Kaplan. Why?

DAHLIA LITHWICK: Again, I wanted to have a Black woman, a white woman, somebody who was at a big law firm, somebody who was an organizer. I think I just want every young person in the country who’s going to law school to see something of themselves in one or another of these heroes.

AMY GOODMAN: And Roberta Kaplan, for people who may not know, the attorney who took on the KKK, the far right in Charlottesville, where you lived for so many years. In fact, you were pivotal to her coming down here and suing them.

DAHLIA LITHWICK: Robbie Kaplan is an example of somebody who filed a lawsuit in 2017 that didn’t go to trial until 2021, but got a massive $26 million judgment against white supremacists and Nazis in Charlottesville. It’s another, for me, story about how the law is slow and takes a long time, but, at its best, it really can make us all freer and safer and restore dignity to those who have been harmed.

AMY GOODMAN: Dahlia Lithwick, we thank you so much for being with us, covering the courts and the law for Slate, hosting the podcast Amicus. Her new book is just out. It’s called Lady Justice: Women, the Law, and the Battle to Save America.

That does it for our show. Democracy Now! is currently accepting applications for two full-time jobs: an associate digital editor, as well as a people and culture manager. You can learn more at democracynow.org.

Democracy Now! produced with Renée Feltz, Mike Burke, Deena Guzder, Messiah Rhodes, Nermeen Shaikh, María Taracena, Tami Woronoff, Charina Nadura. I’m Amy Goodman, with Juan González.

The original content of this program is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. Please attribute legal copies of this work to democracynow.org. Some of the work(s) that this program incorporates, however, may be separately licensed. For further information or additional permissions, contact us.

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