66. ‘Lady Justice:’ Dahlia Lithwick on the Women Saving America

With Guests:

  • Dahlia Lithwick: Dahlia Lithwick is a lawyer, writer and journalist. She writes about the courts and law for Slate, and hosts the popular podcast “Amicus.” Her new book Lady Justice: Women, the Law, and the Battle to Save America, out September 2022, tackles the story of the women lawyers at the heart of our nation’s ongoing battle to save democracy.

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In this Episode:

In this episode of On The Issues, lawyer and writer Dahlia Lithwick returns to our show for an intimate conversation with Dr. Michele Goodwin about the Supreme Court, her career, and new book, Lady Justice: Women, the Law, and the Battle to Save America. They dive deep about the women saving America and why Dahlia Lithwick says she “quit the Court” after the confirmation of Justice Brett Kavanaugh to the Supreme Court. 

Have a topic you’d like us to delve into, a guest recommendationor just want to say hi? Drop us a line at ontheissues@msmagazine.com.

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Transcript:

00:00:11 

Michele Goodwin:

Welcome to On the Issues with Michele Goodwin. Today, I’m going to be joined by Dahlia Lithwick. She is the Senior Legal Correspondent at Slate. You also know her as the host of the podcast Amicus, as well as a news and politics analyst at MSNBC. We’re going to be talking about her book Lady Justice: Women, the Law, and the Battle to Save America. We do this interview in two parts because it was just simply too good to let go. 

Dahlia, I want to know what inspired you to become a journalist in the first place, a story teller. 

00:01:06 

Dahlia Lithwick:

You want the real answer?

00:01:08 

Michele Goodwin:

Yeah. I want the real…Yeah. Give us the secret to the audience. 

00:01:13 

Dahlia Lithwick:

I mean, the real answer quite candidly is that I was the worst lawyer in the world. After my clerkship, I did a year and a bit clerking at a law firm, and I was doing…wait for it…I was in Reno, Nevada, and I was doing divorce law, and I often say if my first job had been doing something like…you know, that really worked for me, I might have kept doing it, but it was just so painful, kind of, being involved in…and this always sounds like I’m trash talking family lawyers, and I’m not because they are extraordinary, and I met some of the best people I will ever know…but I felt as though I was bickering over the Tupperware a lot. You know, like it was just lose, lose. Who gets to put the kid in t-ball. Who gets to put the kid in soccer. You know, she cut the kid’s bangs. What? You know, and I just felt like for me it was just very hard. Actually, in some ways, it goes to some of your questions about, you know, the law and how we think about families and marriage and children. 

So, I quite literally was at loose ends. I had a JD. I wasn’t sure what I wanted to do, and I, absolutely by happenstance, was in Washington, DC, just as Slate Magazine was getting started. Online journalism had just gotten started, and I was offered a chance to cover the Microsoft trial for Slate, which I had never heard of. I didn’t know what the Microsoft trial was about. I didn’t take antitrust, and I just kind of ambled into the court room and covered it the way I might cover…you know, a visiting Martian might cover it. That was what launched me into it. I mean, it was just a series of coincidences. Although I do tell law students, like, don’t stay in a job you don’t love because a better thing might come around, but I think probably the answer is I’ve always been a story teller. I’ve always been a writer, and law, for me at least, was something I was more interested in watching and thinking about than in participating in. 

00:03:30 

Michele Goodwin:

So, there was this kind of serendipity in some ways that brought you to this space, and then did you feel early on that there was any kind of jostling of elbows? Because so much of early journalism, and then journalism that relates to law, is pretty much male- dominant, including and around that time, or did you begin to see shifts taking place? Maybe because reality is now we have parity in law schools with women equaling or sometimes even exceeding the number of men in law schools, but that historically has been a male-dominant space in journalism. So, how did you make a space for yourself? 

00:04:17 

Dahlia Lithwick:

You know, it’s so interesting, Michele. I’ve talked to Linda Greenhouse about this because I think, with few exceptions, the Supreme Court press beat, even when I came on in 1999, was really dominated by women. If you think about when I came to the Court, you know, the kind of A plus plus team was and still is in some ways…you know, Nina Totenberg, Joan Biskupic, Marcia Coyle, Jan Crawford. Who am I missing? I mean, it was just…there was nobody who…

00:04:56 

Michele Goodwin:

Is there any irony with that? 

00:04:57 

Dahlia Lithwick:

Well, I have theories for it. 

00:05:00 

Michele Goodwin:

Okay. Share. 

00:05:00 

Dahlia Lithwick:

I know this is going to sound like I’m maligning the men. There are amazing men on the beat, but…

00:05:06 

Michele Goodwin:

No. No. No. It will just sound like theory. It will be theory. 

00:05:08 

Dahlia Lithwick:

My theory was and is it’s a great beat for women. You get your summer off which really matters. Right? You’re not like digging in dumpsters. This is not a scoopy beat. This is not a beat where you have to get to the front of the pack like Helen Thomas and get a question in. I mean, the White House beat was very male-dominated at the time, but you’re not going to get a scoop or a quote or anything. You’re just watching oral argument, and maybe the last thing I will say is that this was a beat where…and this is going to sound very gendered, but I actually think it’s true. If you read the red briefs, if you read the blue briefs, if you read the green briefs, if you prepare before argument, you are great at this. It really rewards diligent, careful, hard work and preparation, and because very few of those people, certainly at the time, were trying to be TV stars or pundits or you know, Twitter mavens. They just wanted to report on what happened at the court. It was so well suited to…and I would go so far as to say if you were a mother, which I literally had my…I mean, I almost went into labor in the Rehnquist Court…but it was a great beat for…you know, you were done by five. Unless somebody died, you’d never work nights and weekends, and so, I think in a strange way, it was an almost perfect beat, and I also think that it was a beat where because what is rewarded generally is just careful, meticulous legal analysis in a sense. I always think of, you know, how Justice Ginsburg used to always say, you know, if you do the violin tryouts behind a curtain, you know, and you’re not putting gender into the equation, women do really well. It was like that because we were just…I think women were just suited to do excellent work, and so, that’s my theory. I don’t know if it’s a good one, but I never felt anything other than that I was on a beat that rewarded women, and in fact, where women shone. 

00:07:18 

Michele Goodwin:

It’s also very interesting in that, right, because most people don’t know that…what you’ve just shared. So, on one hand, it’s women predominantly who are doing this coverage, and this is how we’re coming to understand what’s happening at the Supreme Court. It’s being published by Slate, Wash Po, New York Times, other publications, but the people who are actually getting the opportunity to argue at the Court, you’re covering a lot of men, and you’re covering Justices who are at that time almost all male with the exception of having Justice Ruth Bader Ginsburg on the Court, and O’Connor is still there at that time, at the beginning. 

00:08:04 

Dahlia Lithwick:

And it’s funny. One of the things that led me to this book…to writing Lady Justice…was almost compulsive observing over years and years what the difference between those two women Justices and the men Justices were and also the difference between the two of them. Because it was so…it was such a formative time for me, Michele, and I had this natural experiment that I was witnessing in front of my eyes, and I’m sure you remember there was work that was being done at the time, sort of serious academic work, about whether, you know, O’Connor and Ginsburg had a kind of different mode of judging that was rooted in Carol Gilligan’s work, how women think and judge and their moral reasoning, and so, some of my earliest pieces…I think I wrote a piece for Elle Magazine…about whether the women Justices had a sort of unique moral universe. So, I thought about this compulsively, and perhaps, that really was the seeds of this work, but I absolutely can say that there have been moments in my career, for instance when Ginsburg became the only woman on the bench, after years of being one of two, how much that shifted the way she conducted herself at argument, how much responsibility she felt all of a sudden because she had never been the only…that was O’Connor’s job…and you remember I always tell the story of the Savana Redding strip-search case where, you know, this is a teenager who’s being strip-searched for drugs in her school without notice or consent, without advising her parents, and the school like touches her body and makes her shake out her bra, and the oral arguments…

00:09:46 

Michele Goodwin:

It was a horrific case. I mean, it was just chilling, right? This young girl…right. Yeah. 

00:09:54 

Dahlia Lithwick:

But the oral argument…go back and read the transcript, Michele, because the male Justices kind of started as like kind of a Porky’s style…

00:10:03

Justice Scalia (recording):

People have been known to secrete contraband in bodily cavities. What is the principle under which you would allow a strip-search but disallow a cavity search? 

00:10:22

Speaker (recording):

The principle, your Honor, is that the common experience with school children, as school officials have a relation to school children, is such that they might hide things and they do hide things in and under their clothing.

00:10:35

Justice Ginsburg (recording):

Was there prior experience in this particular school? Were there prior occasions on which students had been strip-searched and contraband found? 

00:10:49

Speaker (recording):

Your Honor, I don’t know, and that’s not in the record, but I can tell you that that would not be the threshold requirement under this Court’s prior rulings to justify the search.

00:10:58

Justice Ginsburg (recording):

But I thought your answer to Justice Scalia was in the school’s experience children do hide contraband in their underwear, but not in their body cavities. 

00:11:13

Dahlia Lithwick: 

Laugh out loud. Ha ha ha. This is just, you know, the way it is, and they are joking about was she searched from the outside in or the inside out, and they thought this was like the stuff of 80s comedy, and at one point, Justice Breyer started talking about how it was just like being at gym class.

00:11:30

Justice Breyer (recording):

Aren’t there things here that are a little extreme? I mean, if she’s to be believed then she was really naked, and the school administrators deny that, but you have to take her side of the facts. So, taking her side of the facts, why couldn’t the school administrators just do what they said they did? That is, you leave her in her underwear, tell her go shake her underwear. No reason to do any more than that, or if she’s really embarrassed about that say go put on a swimming suit. You know, shake the swimming suit. No problem. People see you on the beach all the time. Or call your mother. I mean, you know, we can think of a number of things that seem a lot less restrictive than her version of what went on here. 

00:12:18

Speaker (recording):

In the record, your Honor, she did have her underpants on and her brassiere.

00:12:21

Justice Breyer (recording):

Yeah, but she says in the record that they went further and required her to be partly naked beyond just her underwear. 

00:12:30

Speaker (recording):

I suppose you could say that on any strip-search, couldn’t you? There’s never a need for a strip-search. You can always give the suspected felon…here, change into this suit, and then we haven’t adopted some such rule, have we? 

00:12:46

Speaker (recording):

No, your Honor. 

00:12:48

Justice Breyer (recording):

I’m trying to work out why is this a major thing to say strip down to your underclothes which children do when they change for gym. They do fairly frequently, and there are only two women there. How bad is this? Underclothes? That’s what I’m trying to get at. I’m asking you because I don’t know. So, what am I supposed to do? In my experience, when I was 8 to 10 or 12 years old, you know, we did take off our clothes once a day. We changed for gym. Okay? And in my experience too, people did sometimes stick things in my underwear. Not my underwear. Whatever. I was the one who did it. I don’t know. I mean, I don’t think it’s beyond human experience. It’s not beyond human experience. 

00:13:36

Speaker (recording):

But the not beyond human experience…

00:13:40

Dahlia Lithwick:

Then he, unfortunately for Justice Breyer, said something about how people used to stick stuff down his shorts at gym, and people were just laughing uproariously, and Justice Ginsburg…

00:13:50 

Michele Goodwin:

And there you are. 

00:13:50 

Dahlia Lithwick:

Justice Ginsburg and the women who were watching had the reaction you’re having, which is what the ever loving…and the men were just like yucking it up, and Justice Ginsburg is just like stop. Stop. 

00:14:05

Justice Ginsburg (recording):

One thing should be clarified. I don’t think there’s any dispute what was done in the case of both of these girls. It wasn’t just that they were stripped to their underwear. They were asked to shake their bra out, to stretch the top of their pants and shake that out. There’s no factual dispute about that, is there? 

00:14:33

Dahlia Lithwick:

Not only was she horrified, and she said it…the women walked into the press room, and if you go back and look at the accounts…and somebody needs to write about this because I don’t have the time…but it was Linda. It was Nina. It was Joan. I mean, the people who wrote the next morning…this is insane…were all women. I did too. My piece was horrified, and it was Justice Ginsburg who circled back while the case was pending, which she never did, and gave an interview to Joan where she said the men have no idea. They do not share like women’s sensibilities. She essentially said to Joan there needs to be a second woman on the Court. This is not okay. 

By the way, the happy ending is that a lot of the men flipped, you know, and ended up changing, you know, what seemed to be going out of that argument…that it was going to…that the school district would prevail…most of the men flipped, which is always…I think Justice Ginsburg once told me, you know, it was kind of proof that this could be contagious. You know, susceptibilities and sensitivities. But it was one of those moments where the fact that the press corps was so full of strong women to call that out as it was happening, not only changed the outcome of the case, and not only made Justice Ginsburg feel as though she wasn’t being gaslit or hysterical, but that this was appalling. That’s a real frame that I actually think about a lot, even as I worked on the book, that part of the reason we have to do this book is that these guys had no ill intentions, I don’t think. I just think they had no clue that being strip-searched as a 14-year-old girl is not like being in gym class.

00:16:19 

Michele Goodwin:

In some ways then what we have is if we’ve got this is your learning ground, right? This is the milieu in which you grow up as a journalist, essentially after law school, but growing up as a journalist. Rubbing elbows, right, with Nina, Joan, others. That’s really where this is happening, taking shape, and this is what’s cultivating then how you are coming to interpret how the law is working. Would you say that that’s right, or how the law…how it works, how it functions, is coming through specifically this work as a journalist at the Court? 

00:17:00 

Dahlia Lithwick:

I think that’s right, and I also think I was very aware very early on that there were too few female oral advocates, and this is a conversation now we’re really having. This is something that SCOTUSblog now track, how few women argue in front of the Court, and that they are different with women oral advocates. At the time, I thought some of the Justices were quite shocking in their treatment of women who were arguing cases in front of them, and so, it was…maybe this is the way to say it. You know, I graduated from law school at a moment when women really did have parity. I really did think, you know, the world was our oyster. I had not experienced a tremendous amount of sexism that I clocked when I was at law school, and so in a weird way, the Court wasn’t just a proving ground, it was a kind of natural experiment in like oh, we haven’t come nearly as far as I thought we had. Well, that’s interesting. 

00:18:01 

Michele Goodwin:

Well, what’s interesting about that is that that is actually coming from sitting in the Court and seeing the Justices themselves. What could be more powerful in terms of a level setting that, no, actually we haven’t come that far. What I thought was actually isn’t because if these are the individuals that govern the law of the land, and they can joke about what’s happening with a girl and her body being searched against her will in that kind of way and not even check themselves. They need a woman on the Court to check themselves and journalists. Then I imagine that that in and of itself is its own kind of shocking awakening. 

00:18:47 

Dahlia Lithwick:

You know, I was also covering the Court when, you know, Chief Justice Rehnquist, who had been a reliable, not just conservative, but I think we could agree arch-conservative when he came onto the Court, who now would be seen as center left of the Court, but you know, when he wrote his opinion in the Family Medical Leave Act case and shocked everybody by writing this incredibly solicitous, nuanced opinion about what it’s like to try to be taking care of a loved one while also juggling, and it turns out he had a back story because he was watching his daughter doing that juggle and was kind of awakened to how difficult it is for a single mom to parent, and he writes this opinion that does not look like anything that the Justice Rehnquist that came onto the Court right, and Justice Ginsburg used to tell that as a kind of story of…I think she…her husband briefly thought she ghost wrote it for him, I think, is the story she would tell, and she used to tell it as a story of, you know, what I’m calling the contagion of understanding this in the best possible way, that a lot of men…and we’ve all heard it, right…every single Justice from Scalia to Kennedy to O’Connor used to say sitting in conference with Thurgood Marshall changed my life because he would tell his stories about what it was like to be…like have to sneak in the back door of the court house, right, or to have your life threatened as you’re driving out of some town, and that never happened to Justice Scalia. That never happened to Justice Kennedy. Whether or not they changed their ultimate views on the doctrine because of it, it changed everything for them. I think that that kind of sense that this isn’t all men do this, and all women do this, and all men think this…I mean, we have to have women on the Court only for representation or legitimacy. I don’t think so. I think we forget that in the intimacy of the conference room, O’Connor and Ginsburg changed the way Rehnquist thought about women and families, and that at the end of his career, he carved that into the doctrine, and that’s not nothing. 

00:21:04 

Michele Goodwin:

It’s certainly not nothing. 

00:21:05 

Dahlia Lithwick:

Particularly to polarize the moment when, you know, nobody is listening to anyone. Nobody can learn anything. She held that out as like one of her highest achievements. That she could help him see that he didn’t know what he didn’t know. 

00:21:18 

Michele Goodwin:

Well, it’s also interesting the intimacies that precede the Court. O’Connor and Rehnquist at Stanford years and years earlier, his crush on her years and years earlier, but for you as really a kind of sociologist of the law and a sociologist of the observation of all of this as a journalist provides such an important blend for the work done with this incredibly important book which we will turn to now. 

00:22:06 

Michele Goodwin:

So, I am so pleased to be holding in my hand Lady Justice: Women, the Law, and the Battle to Save America by Dahlia Lithwick. Dahlia, tell our audience about why you wrote this book. 

00:22:24

Dahlia Lithwick:

Well, I think why I wrote this book has changed quite honestly, Michele. When I started, I think I just wanted…I started really in the depths of the Trump era, and I felt as though everyone was despondent and depressed, and they weren’t seeing what I was seeing, which is this immense talent and energy that women who latch themselves to the law were able to effectuate unbelievable change in the world, and I just felt like as I looked around…and I mean it literally started with the lawyers who showed up at the airports to protest the travel ban, overwhelmingly women, the judges who were ruling on the travel ban, overwhelmingly women, and I just had this sense that women were really deeply engaged from day one, and that not just the lawyers, but I was noticing when I was doing speeches at that time, 2016-2017, it was women who were throwing up their hands and saying explain the Emoluments Clause to me, explain the Hatch Act to me… this seems wrong…help me with the law. I started to sense there was something really powerful there. I started to write the book, and then, of course, you know, we got to 2020. We got to 2022. You and I this past year have been on the journey of SB 8 and Dobbs together in some of the worst moments, and now I feel really intensely that this is the only way we’re going to get out, this power of women organizing law, democracy, voting, all of it, and so, for me, I think I started to write it maybe to cheer myself up, and now, I think it’s to cheer us all up because we’ve got to move. 

00:24:13

Michele Goodwin:

Well, you know, I’m having flashbacks to our being together in the wake of Texas SB 8. My getting off of a train and getting into what seemed like a booth in a hotel, so that we could go on air to talk about that horror. You know, I noticed that with the book you start off with a poem by Pauli Murray. What could be more fitting? Freedom is a dream. Haunting as amber wine, or worlds remembered out of time. Not Eden’s gate, but freedom lures us down a trail of skulls where men forever crush the dreamers, never the dream. Oh my gosh. 

00:24:55

Dahlia Lithwick:

Right? 

00:24:57

Michele Goodwin:

Yeah. Right. You know, I’m noticing chapter by chapter, they are anchored by the vision of, connected to, really powerful influential badass women from her to Christine Blasey Ford, and Anita Hill to voting in Georgia, Stacey Abrams as a game changer. Why did you anchor chapters throughout the book…abortion at the border, Brigitte Amiri, our good friend at ACLU, the litigator. What inspired you to sort of anchor these connected with influential women? 

00:25:41

Dahlia Lithwick:

Partly I think because I wanted to tell good stories. First and foremost, I’m a journalist. I had covered these cases, and so a big part of it was look, I covered the pregnant teens at the border. I fell in love with Brigitte the way everyone else did. I covered the travel ban. I fell in love with Becca Heller the way everyone else did. I lived in Charlottesville in 2017. I covered Robbie Kaplan in that Charlottesville lawsuit, and so part of it was this is my skill. I can tell stories, right? And I think that people really love stories about the law, about the trials and travails and ultimate successes, and so, at the most simple level, these were just great narratives to share. Then I think…and this is a big theme in the book…we need heroes, and that in some ways…and I know you and I have talked about this…we live in this like RBG-shaped hole in the popular culture, and we invest too much in her and not enough in her. We think she’s everything, which is not right, and now, we think, oh, now that she’s gone, we’re just screwed. Both of those things are descriptively incorrect. So, one of the things I really wanted to do was to sort of tell the story of what I’ve come to call the Ruth Baby Ginsburgs. You know, these women, these 3.0s and 4.0s all of whom are doing in their work exactly what RBG did in her life in the most small seed conservative way sometimes, right? They are not fighting on the street. They are just doing law, meticulously and ably and bravely.  

So, I think so much of it was wanting to tell the women out there who feel lost, like they are sitting with their RBG mug, and they’re like but it’s over, that like hell no. They are all around you. In fact, you might be one of them. You probably are. You, Michele, definitely are, and that we have to kind of put aside the hagiography and put aside the loss and mourning and lift up the people who do the work. 

And maybe the very last thing I’ll say is that I anchor the chapters in these women because I want every law student who reads this book to see themselves in one or another of these protagonists. So not everybody is going to be a big corporate lawyer like Robbie Kaplan, and that’s fine. Not everybody is going to start their own project like IRAP, like Becca Heller, and that’s fine. Not everybody is going to be the acting Attorney General of the United States like Sally Yates, and that’s fine. But to be able to see a whole array of choices, approaches…each of these characters are so different…and to say oh, hey, I could do this work too. That was also really important to me. 

00:28:26

Michele Goodwin:

Well, you know, it’s important when you think about it. I’m so glad that you wrote this book. It’s such an important, beautifully, beautifully written book. I’m so happy to just see Pauli Murray lifted off the pages, which gets to your point about Ruth Bader Ginsburg, such an important person in our iconography on the Court and whatnot, and yet there were predecessors, and to focus just around Ruth Bader Ginsburg then ignores and obscures all of the women beforehand including Pauli Murray, her predecessor at the ACLU, and who really laid the foundation for both civil rights related to women in equality and also racial justice. It makes me think as well about how it was the Supreme Court itself that upheld laws barring women from becoming attorneys, so this is coming full circle. So, what…turn to her too in Chapter 8 where you begin with talking about when I first started covering the U.S. Supreme Court, it was 1999, and you had never been in the building before.

00:29:32

Dahlia Lithwick:

I’m so old. 

00:29:34

Michele Goodwin:

No. No. No. But the funny thing…well, it’s not funny…turn the page, and you say that this is a story about why in 2018 I quit the Court, and it too has become a place in a book about women and the law. So, you start with the Court, and then you quit the Court. Why did you quit the Court? 

00:29:53

Dahlia Lithwick:

I mean, I just sat through the Kavanaugh hearings…I mean, in the room when Dr. Ford was testifying, in the room when Judge Kavanaugh was testifying…and I write about it in the book because I think many, many, many women experienced that event on TV. I experienced it, and by the way, they were destroyed. I cannot tell you, Michele, how many women in putting together this book…but also now just in the last week starting to get ready to launch it…how many women were traumatized to their souls by that performance, and I felt a couple of things. One is that it was visceral hearing him shouting, hearing him insulting and screaming at Senator Klobuchar, hearing him threatening that we would all reap the whirlwind, right? It was visceral. It was visceral seeing Dr. Ford give the most compelling testimony she could possibly have given. Everyone in the room believed her, including on the Republican side where they would not look in her eyes. Then we just erased her and forgot her and moved on. The next day, you know, we were like calling him Justice Kavanaugh, and he was on the Court. The Senate had voted. There had been no investigation. I guess I want to say that I faced a version of the same almost existential question, which is how long can I serve around this institution and normalize it and call him Justice Kavanaugh and write my Supreme Court dispatches and say Justice Kavanaugh wittily asked this when something really fundamental is wrong. I know every con law professor I’ve spoken to by the way in the last year has said I don’t know how to stand up in front of my students and say this is the 2nd Amendment. I don’t know how to explain the 14th Amendment anymore. So, one of the interesting things is that when I wrote the piece in 2018 saying I’m not going back into the building…I will cover it from outside or do something else, but I can’t go in there and report on it as though the institution isn’t broken…the number of professors who wrote to me and said I feel the same way about teaching law, and that was, you know, in 2018. 

00:32:16

Michele Goodwin:

And here we are in 2022, right? 

00:32:18

Dahlia Lithwick:

I don’t know the answer, and it’s so much worse. I don’t know the answer. In fact, I’d be curious to know what you think the answer is about how you continue to sort of serve in, minister, steward an institution that feels like it is so fundamentally corroded that your participation in it legitimizes it. So, for me, that was the answer. I can do a lot of things, but I can’t keep going back and reporting on this like, you know, a beat reporter. 

00:32:47

Michele Goodwin:

What about for those that say that it’s so urgent, and it’s so necessary? That you’re needed in the room. How do you respond to that? To those that say, well, yes, people have been broken before, but your voice is so critical to the moment. I mean, it’s not as if you don’t still engage, right? You’ve just decided to not be in the building. 

00:33:08

Dahlia Lithwick:

I think I decided and wrote this…it’s not, I think, in the book, but I did write it in the piece which was essentially a resignation letter. That my beat was not going to be the Supreme Court anymore because I didn’t know what that meant. My beat was going to become justice. That’s how I squared it for myself, and to be sure, I should just close the circle and say when I got notes from constitutional law professors after I posted that thing…you’re right. I’m not teaching con law anymore…my response was like oh, hell, no. You can’t quit. I’m quitting. Like we need law students to learn from you, and so, I’m still ambivalent about the message it sends, but I felt that for myself, and this was very personal, that I owed it to Dr. Ford to give her the respect of saying the world may have just shrugged and said, oh, I believe you and move on. The same they said I believe you to Anita Hill and move on. But I’m not prepared to just walk in there and say Justice Clarence Thomas, Justice Brett Kavanaugh, as though there is no stain on that or no questions around it. It just felt that it dishonored the work that she had done. 

00:34:21

Michele Goodwin:

So, what’s so powerful about the book is that you do offer a lens into the sheroes of these times. They exist. They’ve been leading movements. They’ve been fighting back, even when the law has not been on their side, even when society has not been on their side. That is something incredibly powerful, and yet we find ourselves in a time in which it’s still daunting that the fight is necessary. Do you ever feel…I mean, I was going to ask… do you ever feel like giving up? Some might say that the transition that you made about the Court was one version of it, but it seems to me that we’re still stuck in a loop urging people to understand it just shouldn’t be this way. I think even about how we understand discrimination and the law and the state. If the state is discriminating against someone who happens to be a person of color, they must show a compelling reason for doing so. It’s held to a standard of strict scrutiny. That’s not the case with women. A state can just decide it’s going to discriminate against women, and so long as it has an okay reason for doing so, a so-so reason for doing so, then it’s okay, and it seems to me that we still haven’t contested yet all of the full spaces where we have normalized the pornography of pain for women or of women. 

00:35:46

Dahlia Lithwick:

I love what you’re saying, Michele, and I have two responses. One is…this is just going to sound like gratuitous pandering, but I’m going to say it anyway. I have learned so much from you since…I mean, years ago when I blurbed your book, you know, you really helped me embrace the work of Dorothy Roberts. You know, I learned so much from Peggy Cooper Davis. You know, this is…I cannot say how unconscionable it is that I didn’t learn some of this work in law school, and let’s put that aside because one of the things that I’ve learned…and you really can hear it in my podcast this year, which has changed…that if you were a Black woman, this was always your life. And whether it’s Carol Anderson in the book essentially saying, you know, you’re so shocked you have to stand in line for six hours in Georgia? Let me tell you what it’s like to vote when you’re Black, right? And…sorry, I’m having a little brain melt here…and Professor Katherine Franke, who after SB 8 said to me, you think Black women in Alabama could get an abortion? That was a paper right. This was always such if you were a woman of color, and so, I think one of the things…and it’s one of the reasons that the book starts with Sally Yates and ends with Stacey Abrams and this cadre of Black and brown women who are doing this work…because I think we have to just understand that, you know, we use the sort of language of canaries in the coal mine, but the truth is like no, it’s always been this way, and now white women are experiencing it, and they are shocked. Shocked that they can’t vote and shocked that they can’t get the morning after pill, and that’s always been the case and probably here, we should just say that Dorothy Roberts is absolutely telling us where it’s going next. So, I think part of the question you’re asking is what do we do when the law which is…you know, you and I are in love with the law, right? We’re not cellists. 

00:37:55

Michele Goodwin:

Oh. Yeah. We get excited by the law. This is…

00:38:02

Dahlia Lithwick:

This is our instrument. I think that throughout the book…and it appears in several places…I sort of ask different people, you know, what do you do when you’re in love with your captor, right? Like this institution that has treated you like garbage for most of history, and certainly most of recent history, and I think different people answer it differently, Michele. Becca Heller is like what? It’s the only thing we have, but it’s ridiculous. I’m using the master’s tools to destroy the master’s house. Vanita Gupta is much different. She really feels that yes, this has been a system of oppression and injustice for women, as you say, women of color almost unstopped…

00:38:43

Michele Goodwin:

Since the beginning…we’re talking about colonialization, kidnapping, sex trafficking, labor trafficking to use the terms of the day. 

00:38:54

Dahlia Lithwick:

Again, it’s ever been thus, but then Vanita’s answer is it’s always…it’s also been, you know, an engine of desegregation and of lofty achievement and of equality and dignity and humanity, and I absolutely understand what you’re asking. It’s not as though I don’t ask myself this, and that anxiety, by the way, pervades the book. My flat out answer to you, and it’s a little bit the answer that Sherrylin Ifill has given me in the past year is we don’t have anything else. There isn’t a back up system, right? If we don’t have law, then it’s power and violence, and I cannot sign up for that project. 

00:39:34

Michele Goodwin:

What’s interesting is it is such an incredibly powerful tool, and it’s a powerful tool that women have invested in deeply, mightily. Women of color have invested in mightily and deeply, and in fact, when I think about those who’ve helped to make our Constitution become real, as much as there is the lofty sentiment around our framers and this important work that was done with the Constitution, I think about Black women in Birmingham, Alabama being beaten over the head because they are demanding a right to vote. They are demanding equality. They are demanding desegregation. They are pointing to the Constitution and saying this is what the Constitution demands and holds. It’s mothers like Ruby Bridges’s mother who’s wiling to say my six-year-old will show you what the Constitution is all about, right? It’s the kids that integrated Central High School in Little Rock, Arkansas to show…I’m going to show you exactly what the 14th Amendment looks like and stands for, even if we have to stand down a mob of thousands literally. Your book deals so beautifully and elegantly with those tensions. It doesn’t hold any kind of punches, and yet at the same time, it shows those arcs towards justice. 

So, as we begin to wrap up, and really, we could do this for hours at end, and I’m so happy we’re going to be doing it across the country with this book because it’s fabulous, and it’s a privilege to be with you, so I’m wondering what the future holds. You talk about that in the book, but I’d love to hear you talk about it to our listeners. What is the silver lining? What should we be reaching for, and where did you get it from with regard to the book in terms of the inspiration for what comes next? 

00:41:28

Dahlia Lithwick:

The short answer, Michele, is that there is a reason the last three chapters are about voting, right? Right down to, you know, Nina Perales doing the sort of nitty gritty algorithms of gerrymandering and redistricting because I think what comes next is voting and systems reform. And one of the reasons again, the book starts with trials…trials, trials, we love trials. We like Law and Order. We like shows about trials. We don’t watch a lot of TV shows about like gerrymandering and about, you know, how you do apportionment, but part of what I wanted to do is take us from the highs and lows of watching a trial to really deep systems work. I know, again, you and I talk about this all the time. You can win all the trials in the world, but if you can’t figure out what to do with the malapperationed Senate, if you have a juristocracy of nine unelected judges who are just telling you what’s what, if you have an electoral college that is fundamentally racist in a vestige of a system of fundamental inequality…all of those things need to be repaired. 

So, I talk about voting a lot because I really believe, and this is sort of why Stacey Abrams ends the book, but you just can’t win lawsuits. You have to change structures and systems and processes, and I think the answer about what’s next is, my god, we’re living it. It’s Roe-vember, right? It’s Kansas. It’s Michigan. It’s the special election in New York. It’s Alaska. It’s women who are not lawyers, by the way, but who really understand in their bones that we are on the precipice of losing democracy and of losing the rule of law as a thing that protects women, and I posit in the book. I don’t know if it’s true that women do have a special relationship with the law because it’s been weaponized against them for so long, but it’s also, I guess to go back to Vanita, the instrument of our survival and our thriving. It’s a knife edge. We live on that scene at this moment, and like you said, there are women who are in jail in Alabama right now because they are pregnant, and the government wants them to not use drugs. There are women who are in jail in Oklahoma…right, we know this. This is going to continue. So, I think my answer to you is that for every woman who looked around after Dobbs and said this isn’t just about abortion, this is about miscarriages, this is about IVF, this is about criminalizing pregnancy loss, this is about putting my body in jail because you want me to give birth in a way that you deem appropriate, and women see that, and they feel that, and they are organizing, and they are mad. 

So, my answer about the future is this is hard, boring systems work. No one is ever going to make a Netflix movie about fixing the Electoral Count Act, but this is the stuff we have to get done, and if women do it…and Michele, they are doing it…they are going to do it, and we have to lift up the women who are doing it. That’s why these women are in the book. I think we can change the world, but holy cow, the clock is ticking. 

00:44:42

Michele Goodwin:

The clock is ticking, and Dahlia Lithwick, it is such an incredible honor and pleasure and privilege to be with you always and to be holding your book in my hand and to read the stories that you tell in this book lifting up the importance of the rule of law and democracy, so that we can understand how it threads together across all of these areas. Thank you so much, Dahlia. 

00:45:09

Dahlia Lithwick:

Michele, thank you. I wanted to say again you have really, really been like a north star for me in so many of these areas. There’s a lot of your voice in my headphones when I’m typing this book, so thank you very, very much for your work. 

00:45:25

Michele Goodwin:

Thank you, Dahlia.

Guests and listeners, that’s it for today’s episode of On the Issues with Michele Goodwin at Ms. Magazine. I want to thank each of you for tuning in for the full story and engaging with us. We hope you’ll join us again for our next episode, where you know we’ll be reporting, rebelling, and telling it just like it is. For more information about what we discussed today, head to MsMagazine.com and be sure to subscribe, and if you believe, as we do, that women’s voices matter, that equality for all persons cannot be delayed, and that rebuilding America and being unbought and unbossed and reclaiming our time are important, then be sure to rate, review, and subscribe to On the Issues with Michele Goodwin at Ms. Magazine in Apple Podcasts, Spotify, iHeartRadio, Google Podcast, Stitcher, wherever it is that you receive your podcast. 

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This has been your host, Michele Goodwin, reporting, rebelling, and telling it just like it is. On the Issues with Michele Goodwin is a Ms. Magazine joint production. Michele Goodwin and Kathy Spillar are our executive producers. Our producers for this episode are Roxy Szal, Oliver Haug, and also Allison Whelan. Our social media content producer is Sophia Panigrahi. The creative vision behind our work includes art and design by Brandi Phipps, editing by Will Alvarez and Natalie Holland, and music by Chris J. Lee.