Throughout history, the judicial system has employed many more men than women. “Lady Justice: Women, the Law, and the Battle to Save America” tells the story of heroic women in law who, in the face of Trumpism and MAGA movements, have stepped up to fight injustice. Part biography and part analysis, the book, written by author, journalist and podcast host Dahlia Lithwick, profiles a variety of women lawyers, judges, and activists who have stood up against racism, sexism, and xenophobia. She joins WITHpod to discuss the impetus for writing the book, the urgency of this moment and why the future of our democracy greatly depends on a more inclusive legal system.
Note: This is a rough transcript — please excuse any typos.
Dahlia Lithwick: I think we tell a lot of stories about women in power, right? We like stories about the Women’s March. We like stories about all the women who were getting arrested, when Brett Kavanaugh was having his hearings. We talk about women in power, in some ways, the way we’re talking about women in Iran and power, right, which is you take to the streets, you put your body on the street, you imperil your life. And that’s an amazing story.
But I think that we forget that, like, there’s this whole toolbox in this country, which is that women are in the judiciary. And women are governors. And women are secretaries of state. And women are election officials. And so there is this beyond just talking kind of fancifully and reverently about women’s voices, like women have genuine power.
Chris Hayes: Hello and welcome to “Why Is This Happening?” with me, your host, Chris Hayes.
There’s a photo that I saw last week, I think it was, a really striking photo. And it was, I think, from the first day of the Supreme Court’s term, fall term of 2022-2023, that’s the day. Basically, I’ve said this before on the show, but if you’re in cable news and you’re trying to cover the court, you’re screwed because there’s nothing to show.
We literally have one image. It’s like the class photo they take on the first day of the term. It’s in front of the red curtain. They’re in their robes. And then we just pan the camera over it over and over and over. So every time that you’re talking about the court, that’s the visual. And it really hurts our ability to produce television around the court on purpose, like 100 percent on purpose.
They don’t want television produced about the court. They have continued streaming the arguments, which was something they started doing during COVID because they weren’t meeting in person and they were doing them telephonically. And now they’re doing that so that we have same-day audio, which is awesome. We played some of the same-day audio from one of the first arguments of the term.
But anyway, there were two photos. So there’s the big group class photo. And then there was the three liberal justices, including the new one, Ketanji Brown Jackson. And it was Sonia Sotomayor, Justice Elena Kagan and Ketanji Brown Jackson. And then they took one with Amy Coney Barrett, too.
It was like the lady justices, I guess, is sort of the theme there. And it is striking. There was some, I think, procedural petition on death penalty case in which the four of them all agreed recently. It might have been this Alabama case, it’s like, the details of which are like unfathomably awful, which we can get into.
But there was one recently where all four of them agreed. And it was like this historic moment when you’ve never had four women justices riding together, like literally in the history of the country. It has been not quite as bad as the presidency, but essentially an all-male institution for 98 percent of its life or 90 percent of its life as a court.
And it’s actually broader than that, like the law as a whole has been, like many institutions, a profoundly male-dominated one, in ways that have all sorts of profound ramifications for what the law is and what the law says. And one of the places you saw that was in the Dobb’s decision written by Samuel Alito, in which he says, “Well, we got this question about abortion in the Constitution, the 14th Amendment. We have to look back to the traditions of abortion and our traditions.”
And then you go through the traditions, and what do you find the traditions? They’re like, yeah, it’s all men. The tradition, there’s centuries of men writing about what women can do with their bodies.
And so it’s one of these things where you take a step back and you realize that feminist law or even just like law around gender, law done by women, with the perspective of what it would mean for women, or just non-men, in the sort of, like, formation of that concept as it’s been applied over the years, is just actually like a radically new thing. In the long sweep of the law, just real, like we’re in the real, real small sliver of the law, in which that’s the case.
At common law dates back centuries and centuries and centuries, the traditions that even now gets cited, as canon and common law, this is how an estate gets divvied up. Like, there were no women talking about how these things get — they were not allowed to be. And so here we have this thing called the law, which is a combination of a set of explicit decisions we’ve made as a unified people in a democratic fashion, and then the inheritances of a constitution that we had no real say over and which is functionally impossible to amend these days.
And then before that, centuries of tradition and accrued, like actual citable common law, like law that women just were completely, utterly excluded from. And so it’s in that context that Dahlia Lithwick, who’s one of my — well, I can’t say she’s my second favorite legal commentator, who I’ve been reading forever, and has this fantastic new book out. And it’s really fascinating because I’m not quite sure the right way to describe the genre of the book, which is part of what I enjoyed so much about it, which I read on a flight back from Copenhagen just the other day, it’s called “Lady Justice: Women, the Law, and the Battle to Save America.”
I guess the best way to describe it, it’s a set of profiles of women lawyers pursuing justice through the law. But it’s much more than that because it sort of interweaves some of her own stories. And also talks more broadly about the intersection of women law, and how radical and new the promise of that is, and how much weight there is bearing down against it. All of that is particularly, particularly acute at this moment, post Dobbs, as we are watching something happened in this country to a constitutional right that’s pretty rare, honestly, in the country.
I mean, the best you could say is that the 15th Amendment basically gives black people the right to vote in the country, the south takes it away. I mean, it’s really hard to go and find concrete examples of such a fundamental constitutional right being ripped back from people. And so this book is written about women fighting righteous legal fights in the context of a Donald Trump’s America and MAGA America, and the ascendancy of a certain view of gender and patriarchy.
And then at the end, Dobbs happens. And so, there is just this profound kind of like beautiful, keening, righteous rage and angst that fills the book, and fills Dahlias work, I think, particularly in the latter years. And so it’s my great, great pleasure to introduce my friend for many years, Dahlia Lithwick, author of “Lady Justice: Women, the Law, and the Battle to Save America.” Welcome.
Dahlia Lithwick: “You are my second favorite,” I don’t even know how to even parry that one. But it is great to be here. And I am humbled to be your absolute second favorite person, who is not the mother of your children. And I’m going to just take that as a win. And thank you, I actually feel like your little precis there really captured sort of the agita of what this project was sort of designed to be, and then what it became literally days before it shipped off to the printers.
Chris Hayes: I want to talk about that in a second. I should also note that you host a fantastic podcast about the court called Amicus. It’s all about the law and the Supreme Court. And she’s also an MSNBC contributor. So I want to talk about the book and I want to talk about access. But I actually just want to do, like, I first started reading you on the Supreme Court, I forget when you started writing about the Supreme Court, firstly. But I remember the first time I read a dispatch from you from the court.
And the Supreme Court presses a tiny group of people, there’s not that many, particularly before oral arguments or stream (ph), to physically go there. And you would turn around this just like hilarious, insightful, brilliant, but like really funny, bracing copy in, like, four hours after oral arguments. And Kate and I would read them, we’d be, like, “What? This is unbelievable. This is so good.”
And then I was, like, “Well, who is this person?” There’s like, “Oh, she’s a Canadian lawyer?” So I want to know first, like, what was your trajectory from where you were born, where you grew up to covering the court?
Dahlia Lithwick: My trajectory was, I was, in fact, born and raised in Canada. I’m a Canadian citizen. I went to undergrad in the United States. And I worked for a little while, at the end of college, for a couple of summers at Paul Newman’s camp for terminally ill kids and kids who had cancer and blood diseases. And I ended up co-writing a book about that after college.
And I became really aware, this is going to echo something that Becca Heller in the book says in her chapter, that these things that look like medical problems were, in fact, legal problems, and that every single kid that I had worked with, had this just thicket of insurance, medical, all the hurdles to getting the care that they needed, and that they needed lawyers.
And so I went to Stanford Law School, with an eye toward how could I help kids access a system that is meant to, in the freest best country in the world, dispense health care to children who are dying. And I basically worked at the Children’s Defense Fund for a while. I really loved it.
I clerked on the Ninth Circuit. I ended up, and this is the hilarious part of the story, working at a family law firm, doing divorce law in Reno, Nevada, different podcasts, unbelievable stories, and just realized I was the worst divorce attorney in the history of divorce attorneys.
Chris Hayes: Divorce lawyer in Reno.
Dahlia Lithwick: In Reno, right? I mean, I could quickly become your favorite actually, I’m going to say, legal podcaster.
Chris Hayes: Yeah. How did you end up as a divorce lawyer in Reno?
Dahlia Lithwick: Well, because I clerked for the then Chief Judge of the Ninth Circuit Court of Appeals in Reno.
Chris Hayes: Right.
Dahlia Lithwick: This is where I just copped to having like a tiny little gaming addiction by the end of that. I was like everybody at like Circus Circus be like, “Hey, Dahlia,” but that was just a tiny problem. See, I’m your favorite now. Anyway —
Chris Hayes: Yeah. Wow, that’s good.
Dahlia Lithwick: And so then I stuck around. And it was surprising to know when there’s a lot of divorce attorney action in Reno. I loved Lake Tahoe. I loved the mountains. So I was pretty set on staying there. But I was just really spectacularly awful at it. And so then I was just slightly lost and careening around, trying to figure out what to do next.
And a magazine called slate.com had just been invented by a genius called Michael Kinsley. And the Microsoft trial, which was, at the time, the trial of the century, the big antitrust trial was happening. And Michael Lewis, the inimitable, had covered it for Slate.
And then I think he kind of ambled off in a break. And they were looking for a human being to probably just keep the press pass warm while they found someone else to cover the trial. And so I just quite literally happened to be in the right foot on in D.C. when they were casting about, for somebody who knew enough about antitrust and operating systems to cover the trial.
And to be very clear, I knew neither antitrust nor operating systems. I was completely, you know, I had come through law school wanting to be children’s health advocate. And so I just went in and told jokes for the rest of that trial.
And the funny part of the story is, like, every Friday, I’d say to the overlords at Slate, “Do you guys think you want me to come back next week? I might buy a second suit.” They’d be like, “No. We’re going to get a real journalist to come in here.” So I just wore the same suit for three weeks and covered the trial.
And I was just very lucky, this is the slightly serious part of a very long answer, but it’s just very lucky that the Internet was only kind of being invented. There was no form yet for how to do legal journalism online. There was the ability to do ample linking and citation and things that were new.
And so when I moved over to the court, a few months later, I felt like I was able to think about the Supreme Court as another kind of new form of reporting that wasn’t necessarily bound by the norms of how you cover the court. And so that’s a very long answer to your question, but that is my journey.
Chris Hayes: No. That’s incredible. I mean, it’s interesting to encounter people who haven’t done “journalism” in quotation marks, and then back into it in some way, or end up doing it as a kind of adjacent thing. I sort of got into it intentionally after I graduated college, partially because I just found it, like, cool for someone to pay me to learn stuff.
And then it’s like, well, this is neat. It’s like the opposite of grad school where I would pay to learn, but then you pay me to learn. So let’s do this for a little bit longer. What was your feeling about that when you first started doing it at the trial? Did it feel like, “Oh, I like this, “or was it like, “Ah, I’ll do this for a little while?”
Dahlia Lithwick: I think it came more naturally to me than legal writing. I think I was not a great, you know, my moot court brief in law school was famously rewritten by my partner in 24 hours. Like I was not a great legal writer. And so for me to kind of go back to slightly more colloquial, informal, legal writing felt like breathing again.
And then I think I also was really struck by both at the trial and the Supreme Court press corps, the ways in which legal reporting felt very rarefied to me. It felt like it was being written by certain people for certain people. And in both contexts, I thought, and I still think this is the single most important beat in the world and it’s being farmed out to very, very smart people who take law and doctrine very seriously, but don’t necessarily think about institutions the way they should.
And so I felt right from the jump, that my job was going to be to make reporting about the court very accessible to all the moms at the bus stop who said to me, “I don’t really follow the Supreme Court.” And that sounds gendered, the dads at the bus stop were the same, that there was a Mrs. Wright in 2000. But that there was this urgently important institution, that by design, swathed itself in secrecy and made it almost impossible to cover.
And then was covered, more often than not, with a certain amount of reverence and exceeding to the terms that were insane of coverage, right? No recordings, no audio, no interviews, no access to the delegates. It seemed like an insane way for one of three branches of government to be covered. And in fact, that was the genesis of Amicus. The genesis of the podcast was entirely that in those years, the court was not providing audio. Audio would come down for the week on Friday.
Chris Hayes: Right.
Dahlia Lithwick: And I just said, “We’re just going to put audio in people’s earbuds on Saturday morning because they need to hear this.” So it’s completely subversive and antagonistic. But I think that it just seemed to me and it’s a longer conversation, Chris, that one of the problems we have covering the court as a series of cases is that we really miss both what’s happening to the court and what’s happening to doctrine across time.
And this term, I know you and I have talked about the independent state legislature doctrine a little bit, but it just seems that teeing up this particular term as, and then there’s an affirmative action case, and then there is a case about water rights.
Like, that’s actually not the story this term. And so I think right from the beginning, I felt like I wanted to tell a different kind of story in a different way. And that partly because it was the Internet, partly because I could use comedy, partly because there was nobody to put me in the naughty girl chair because I’d already gotten my press pass. But I think, like, in a lot of ways, it felt that we couldn’t keep covering the court the way like Tony Lewis had done it.
Chris Hayes: Yeah. And I think that was always what was, I mean, when I first started reading you, the court was such an incredible breath of fresh air because it was irreverent and was funny, which is a really important skill and you’re a very, very funny writer. But also, yes, less hemmed in by the, you know, I mean, all of it, right, the robes, that they’re sitting up there in the high, the big marble columns, like, it’s all in, whether people understand it or not, who were attached to institution, I think John Roberts very much does, you know, it’s like, I was just in the Vatican this summer, it’s a performance of authority.
It’s like the church, the priest is up there and he’s in robes, and you go through the church and the columns. And like, that’s all there for a reason, which is to say these people up here have a certain authority that is different from the people at the plain lower and they hand down. It’s not explicitly like divine ex cathedra insights. But that is what the performance of the institution works.
And it’s very effective when you go to that building, to say, because all of that together really does work to make you feel a sense of reverent (ph).
Dahlia Lithwick: And it’s funny because when you go to any other country in the world, and you tell them both how the court is constructed and how it deals with the press and the public, and how Americans feel about the court, they laugh like their coffee out, they laugh their cappuccinos out their noses because they cannot believe that we agree to this bargain, where they tell us their oracles, and we say, “Awesome. Thank you, Oracles.”
Chris Hayes: Right.
Dahlia Lithwick: And I remember teaching in Jerusalem. I’ve taught classes in other places. And you start to explain, like, why is it that for years and years and years, when you got the transcript, it didn’t identify which justice was asking a question? I mean, the transcripts, if you go back and read them, the justices are not named. They’re just the court, as though they’re just fungible brains. And like, when you try to explain that this is the same exact ethos that let John Roberts say, “We’re just not doing audio. We’re just not. You’ll get it on Friday.”
And when you explain that to anyone who isn’t an American, that they’re like doling out to us the little tiny bits of public-facing. It’s the part of the problem with the shadow docket, right? And that we’re just like, “Oh, okay, well, I guess they just decide a whole bunch of super important cases about Remain in Mexico and SB 8, and the eviction moratorium and COVID.” And they do it in three sentences on the shadow docket. But you know, they’re the boss of us.
And so I think it’s a very strange and it’s sort of at the heart of this fight we’re now having, where John Roberts and Sam Alito are mad at us for not revering the court according to the old bargains. And Elena Kagan is like walking around being, like, “This thing is addled.” And we have to pick aside now.
Chris Hayes: Right. How did the idea for the book first come about?
Dahlia Lithwick: I think the genesis of the book, when I started it was like 2017. And I had this idea in my head, which I still have in my head, despite Dobbs, that I think we tell a lot of stories about women in power, right? We like stories about the Women’s March. We like stories about all the women who were getting arrested, when Brett Kavanaugh was having his hearings.
We talk about women in power in some ways, the way we’re talking about women in Iran and power, right, which is you take to the streets, you put your body on the street, you imperil your life. And that’s an amazing story. But I think that we forget that, like, there’s this whole toolbox in this country, which is that women are in the judiciary. And women are governors. And women are secretaries of state. And women are election officials.
And so there is this beyond just talking kind of fancifully and reverently about women’s voices. Like, women have genuine power. And they have these hyper technical, your wife is one of them, highly specialized skill set that allows them to do magical things with power. And so one of the things I was really struck by is the number of women who rushed into that confused void when Trump first took office, and how many of them were women, and how many of them were great at their job.
And maybe most importantly, Trump was then losing as president in American history and the court, like, he was terrible. And his loss record and his administration’s loss record was phenomenal. And that’s in part because he surrounded himself with shoddy lawyers who forgot to take the Administrative Procedures Act into account. But partly, it’s because there were amazing people on the other side, doing incredible work.
Chris Hayes: Yes.
Dahlia Lithwick: And I think I wanted to say that, like, it’s really easy to get into this headspace, particularly post-January 6th, where it’s just like all is lost, everything is broken. The law is an instrument of abuse and pain, and always will be. And I want to tell a story that’s a little bit more hopeful that I actually think the law vindicated itself pretty admirably in the Trump years, and I think with the exception of what we’re seeing now with the court.
But I think time after time after time, including an attempt to steal the 2020 election, the law vindicated itself really, really well and fully. And so I just think, as we’re all giving up on institutions, Chris, and I know this is a complicated matter, but I think giving up on the institution of the legal system and the rule of law, we do at our peril. And so I think this book is a love letter to the idea that this thing is both the instrument of our oppression, as you said, for centuries.
It’s also the instrument of freedom and dignity and equality, and like leaning into that second piece, I think is our best hope.
Chris Hayes: Totally. I find that very moving actually. I have goosebumps because I think it’s easy to lose sight of that. And the book is compelling, those first few chapters after the introduction, which are both about that moment, the 2017 moment of, like, “Oh, my God, are we going to just go quietly into some authoritarian nightmare?”
And it was, like, “No, we are not.” And there’s two people that you profile, Sally Yates, who probably rings a bell to our listeners, but it’s worth you talking about her, and then Becca Heller. And Sally Yates, who was one of the first lawyers to just be, like, no to the travel ban. And then Becca Heller, who is one of the lawyers on the ground in that amazing footage, which to this day, I think of people showing up at the airports when they announced the travel ban and it’s chaos.
It’s chaos on the flights. It’s chaos everywhere. It’s chaos with the U.S. government. People don’t know if they can get off the plane, onto planes. And these lawyers just show up around the country, places like JFK to be, like, holding signs, saying like, “We’ll represent you.” So those two are the ones that really captured that moment the most. Tell me a little bit about each of those stories.
Dahlia Lithwick: I love them as bookends because you can’t look at Sally Yates and people probably remember, she was the acting Attorney General. She really thought she was just cooling her heels for a couple of weeks until Jeff Sessions was confirmed and seated. And so she really thought, “You know, I’m just going to sit here and hold,” before she found out about the travel ban the way you and I did, on her phone. Like, nobody vetted it with the DOJ.
She was in Don McGahn’s Office on another matter, by the way, Michael Flynn. Nobody said to her, “Oh, we’re going to pass this unconstitutional, unlawful ban in a couple of minutes. Maybe someone at DOJ should sign up.” And why I love starting with her is it goes to what we just said about institutions. She is the institutionalist institution.
And she was kind of a lifer at DOJ, when she inherited the mantle. I keep saying she kind of talks like a Frank Capra character, like just lofty, lofty ideas about the separation of the Justice Department and the administration, and the need for the rule of law above all things. And then I love pairing her with Becca Heller, who’s like very young, very scrappy, essentially looks around when she’s a student at Yale Law School and is like, “You know what would help refugees? Lawyers.”
And just builds and then scales this amazing enterprise IRAP, that essentially gives refugees seeking to enter the United States, just pro bono representation. And it’s a brilliant model. But Becca was really young and finds herself, as you say, just surrounded by a bunch of volunteer lawyers at the airport as the travel ban comes down. She knew it was coming. And she really scrambled to get folks to sign up.
And then you just have this amazing spectacle of attorneys like trying to, with translators, speaking like Pashto (ph) and Arabic, trying to help folks who were embedded with our forces in Iraq, trying to help them enter the country. And I love, you know, Becca is basically the (inaudible) in some ways, because she’s, like, “The law is just a bunch of BS. It’s not a system that has ever redounded to the benefit of women, of minorities, of people of color. But I’m using the Masters tool to take apart the Masters House, and that’s the extent of it.”
And yet here we have Becca who is just like shrugging emoji law, and Sally Yates who is like the law is the finest accomplishment of human democratic thinking, and they’re both doing the same thing, right, in the same moment. They’re both working to uphold the rule of law, to help people. And so I love that they represent two totally antithetical approaches to how you think about your place in the legal system and how much you believe in it.
And I guess that, to me, that was both a high watermark and then a mark we never had again, both because Sally Yates ends up getting summarily fired when she says very, very publicly, she’s not going to enforce the travel ban. She says it violates the First Amendment religion clauses. It violates due process. She’s not going to do it, and she gets fired.
And she stands very much as an emblem of what should have happened a lot more, people taking a stand and saying, “I will not do this unlawful thing.” And I don’t mean, Rex Tillerson, after the fact, saying it. I mean, in the moment saying —
Chris Hayes: Well, what a lot of them did was maybe they said something in a meeting, like, “Oh, that doesn’t seem like a good idea,” and they wrote a book about it later.
Dahlia Lithwick: Right.
Chris Hayes: But Sally Yates was, like, “No, absolutely not,” publicly, “No, this violates the U.S. Constitution that I’ve been sworn to uphold and defend.”
Dahlia Lithwick: And there should have been a hundred of them, and a lot fewer books.
Chris Hayes: Yes.
Dahlia Lithwick: And then I think the other side of that same coin is that all of these lawyers who understood in their bones, Chris, what rule of law means and what unlawful means, and what it means to come to the country with a visa in your hand that you were promised. You sold all your worldly belongings in Afghanistan and Iraq and you’re here.
And then the government is saying, “Oh, no, sorry, you have to go back to some other country. Best of luck to you, hope you don’t die.” That lawyers swarmed the airports and said, “I do trust in the states. Like, I do divorce law. I don’t know what I’m doing, but I’m going to help this person, make sure that they can enter the country.”
And both of those things, for me, you said goosebumps, like those are both goosebumps stories for me, because I think they both point in very different directions to what it means to fight for the rule of law.
Chris Hayes: More of our conversation after this quick break.
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Chris Hayes: I think that what happens through the course of this book, because you have these people coming from very different places, is that, to me, you’re sketching out the contours more broadly, of what a kind of like healthy, small democratic legal resistance to the threat looks like. And it’s people with different politics. I mean, I know a lot of young radical liars who sound like Rebecca Heller. I know a lot of institutionalists who are sort of liberals, you know, not in a sort of old-fashioned sense, if that make sense, that I think like Sally Yates is probably.
And both parts of that coalition were vital and are vital to basically uniting against the threats that are posed by the forces. And a lot of times, that discourse, and those inherent internal and real ideological conflicts between those different visions of the law as a kind of, like, not really redeemable entity that’s essentially handed to us by the powers of capital and authoritarian, and by the powers of capital or patriarchy, or whatever, those who have power, and those who view it as like the guardrails that keep us living in a free society, you need people from both of those perspectives to join forces, to fight to keep the thing going or it collapses. And that was my big takeaway from those two chapters back-to-back off the top.
Dahlia Lithwick: I love what you’re saying, it’s really crystallizing for me one of the themes that I was, you know, this whole issue of whether the law is going to be the thing that holds us down or lifts us up, like, weaved through the book and I probe it with Vanita Gupta and with the Anita Hill, and all the women that I interviewed. And they all land in different places, which I kind of love. As you said, you can have the same kind of basic aspirations and be very, very disaffected with the law.
But one of the things that I really wanted to play with as well, in addition to that tension, was the idea of law and imagination. And law, you know, if you’re doing it right, Thurgood Marshall looks around and says, “Holy cow, let’s try this,” right? And then we get Brown v. Board. Ruth Bader Ginsburg looks around and says, “Hmm, let’s try this.” And we get a series of incredibly important 14th Amendment gender wins.
And I think that we are so moribund in this moment of we workshop everything, we think about everything, we message everything. Robbie Kaplan and Karen Dunn, when they brought the lawsuit that I talk about in the Charlottesville chapter, everybody told them they were wrong. On the one hand, we’re in this pincer thing where they thought that the Jeff Sessions’ Justice Department should do an investigation and a prosecution because this was clearly Charlottesville. People were maimed and killed as a result of race-based violence.
And nobody was stepping up to do it. So they’re, like, “Fine, we will be the shadow. Justice Department will do it.” But then groups on the left were coming at them and saying, “Oh, this is free speech. This is classic Skokie parade.” And I think that what you’re describing is let that pincer, on the one hand, what fails to step in. On the other hand, all of the imperatives to say, “Don’t do this thing. This is not a thing that the law should do.” Then what falls away is kind of creativity, and imagination, and analogy.
Chris Hayes: Right.
Dahlia Lithwick: And I love that Robbie and Karen, when they do this lawsuit in Charlottesville, they dust off the KKK Act, right? They’re, like, “Here’s a thing that nobody has used in a really long time to vindicate the rights of people who are harmed in essentially what is a race riot.” And they win and they get this, like, multimillion dollar judgment and nobody pays attention, and we all move on.
So I think what you are describing is a failure of almost imagination and a failure of analogy that really does force us into the prison of, “Well, the law won’t let us do that.” And I think that in different ways, whether it’s Brigitte Amiri, or Nina Perales at MALDEF, all of these women were not prepared to be told the law doesn’t let you do that. They’re, like, “The law, in my mind, lets me do that.”
Chris Hayes: Right.
Dahlia Lithwick: And then they win.
Chris Hayes: That’s such a great point. And they are vindicated, too. I mean, that’s why the book is inspiring to me. And also like, I mean, it’s a delight to read. But it’s also fun in a weird way, because it’s a lot of stories, yeah, of people who see things a certain way and are largely vindicated by the courts for seeing that. And let’s take a second on the Robbie Kaplan Karen Dunn chapter.
Charlottesville, I mean, first of all, it’s fascinating, that case and their theory of the case. But it’s also very near and dear to your heart because you were a longtime Charlottesville resident, and you were there during the violence there. Just tell me a little bit about how significant it is in your understanding of this period that we’re in.
Dahlia Lithwick: I think that anybody who lived through August of 2017 in Charlottesville was utterly unsurprised by January 6th of 2021, I would start there. I think that so many of the markers of, ‘We knew this is coming. Law enforcement knew this was coming, who failed to show up,’ how did the systems buckle? Why is it that when largely white men take it upon themselves to perform racial and anti-Semitic violence, it’s seen as a parade? And when Black Lives Matter protesters stand quietly in a park, they are seen as a menace.
Chris Hayes: Yeah.
Dahlia Lithwick: So I just think there’s a lot of themes that Charlottesville, for me, should have made us much more cognizant of. And anyone who was surprised by January 6th and this Charlottesville, and I say by the same token, anyone who is surprised by Dobbs, missed SB 8 in Texas. And I think one of the things we need to think about is why we, in the media, are constantly surprised by things that we’ve already seen play out on a smaller scale before.
And just on the personal piece of it, I mean, Charlottesville is where my children were born. There is one synagogue that attempts to cater to every iteration of practice. It was where my children, they don’t like this story, had their circumcisions. It was the tiny little town that was the center of our life for almost two decades. And then you had people marching around saying, “Blood and soil, get back into the ovens,” terrorizing the black neighborhoods, making threats.
And the other thing I guess, I would say about Charlottesville is even August wasn’t a surprise, because we had a Klan March. We had a Proud Boy March. We had another torch-lit march that spring. These things become national stories for 10 minutes, and then we move on without connecting the dots. I guess this was my point about how we cover the court, too. But all of the strains were there.
And yeah, I think I say in the book that my younger son who was, I think, 13 or 14 at that time, faced with the question of do we go on the streets and fight Nazis? Is that our thing now? Are we supposed to go punch them in the mouth, or are we supposed to hide in our basement and hope they fly back to Ohio where they came from? And my son at 14 said the saddest thing, which was a big theme in the book, which I think actually Merrick Garland is struggling with right now, which is if you pay attention to these folks, they win because they want attention.
Chris Hayes: Yeah.
Dahlia Lithwick: If you ignore them, they win. And I don’t know how to solve for that problem. But I think Robbie and Karen, at minimum, made people pay for that problem.
Chris Hayes: We’ll be right back after we take this quick break.
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Chris Hayes: That line by your son is a very profound one. And in some ways, like, it’s the challenge of the era. For me, I mean, that’s what I wrestle with all day, every day, since Donald Trump came down the escalator.
Dahlia Lithwick: And we don’t know what to do. Every minute we give him attention, feeds everything that is bad, not just about him, but his progeny. But ignoring Donald Trump proves not to have worked either.
Chris Hayes: Right. Yeah. And the other thing is that attention, this is what I thought was interesting about the suit that Karen Dunn and Robbie Kaplan undertaken, I should say, full disclosure, Karen Dunn is a personal friend, that the only tool I have is attention. That’s the thing I can do. I mean, I’m writing a book about this now, so I’m thinking about it all the time. But that’s what I have, and that’s what I have developed a kind of craft and skill at, is holding people’s attention and directing it in places.
I can’t do anything else, like cover something. Well, literally, what I have is like a flashlight, like the light beam of attention, I can shine it on stuff. And that might have some effect. But what do you do when you’ve got the paradox that your son says. And the law in this case seems a very useful way out of the paradox, because what they do is they’re like, “We are suing you under the KKK Act because you have done precisely what that Act was designed to punish and stop.”
And so talk a little bit just about their sort of novel use of this reconstruction era law, not novel, actually the opposite of novel, it’s literally what the law was written for. But the imagination to use it, I thought, was remarkable.
Dahlia Lithwick: And I love that word “imagination” because I think it’s a piece of what I’m describing, which is there’s always something. And you know who’s really good at finding it? The folks who have just cooked up the independent state legislature doctrine, like, it turns out that the other side —
Chris Hayes: Yeah, or SB 8.
Dahlia Lithwick: Yeah.
Chris Hayes: What if you can’t find a person to enjoin?
Dahlia Lithwick: Yeah.
Chris Hayes: What if we outsource the bounty to private citizens, and now there’s on a state actor that you can sue? So —
Dahlia Lithwick: Right. It’s what is and what could be. And I think that we are not always fantastic on what could be. And if we think about the huge leaps of progress, I mean, the book, I know we’ll get to this in a second, but the book starts with Pauli Murray, who is the architect of what could be. And I just think, like, that’s a failure. So in effect, Robbie and Karen looked around and they realized that there is going to be no reckoning.
And so, they do dust off a KKK Act, which really was intended to punish people, as you say, post-
Reconstruction, who made plans and put together conspiracies to commit acts of racial violence. And if that was the intention, then that was the thing that could be in a civil suit, punished. And I think that a lot of people, as I said, we’re very, very wedded to the idea that what the organizers of Unite the Right did in Charlottesville was just free speech, that it was no different from the Nazi protesters in Skokie, Illinois, who just wanted to have a Nazi riot.
Chris Hayes: Let me just say that for folks who don’t know, that the Nazi March in Skokie, which is a very predominantly Jewish community, or a heavily Jewish community with many actual Holocaust survivors —
Dahlia Lithwick: Survivors.
Chris Hayes: — when this March happened back in, I believe, the 1970s, ends up being a kind of landmark free speech case. The ACLU represents the Nazis. They say its First Amendment protected speech, for them to peaceably assemble in this place, even though it’s massively traumatic to the residence there. And they win. And it’s an important landmark free speech case.
Dahlia Lithwick: And also, I think that the judge who analyzed, there was a case that came up in Charlottesville about the permit for the march. And in the days before the march, when it became manifest that the park that they were going to protest at was too small and it needed to be moved, and this judge analyzed it almost exclusively as a speech event and said, “I can’t move it because they need to be near these Confederate monuments that they are trying to protect.”
And the utter failure to reckon with what happens when you’re bringing bats, and you’re bringing spikes, and you’re wearing body armor, and some of you are bringing guns, and it stops being a Skokie analysis. It starts being a violence analysis. And so, Skokie actually, again, that failure of imagination, we knew what was coming long before it came.
And what Robbie and Karen did that was really I think masterful, was both, they got access to the Discord chats. They were able to show that this was months in the making, that people were planning right down to how you hit counter protesters with your car, which ends up happening and killing Heather Heyer who was an anti-racist protester, who was on the streets that day. But the extent to which they were planning to make it look like, “Oh, Antifa started it. We are just here in our Gap khakis and our shirts.” I mean, the whole thing was engineered to be racial violence.
And maybe the other thing that was very interesting about the trial that I think didn’t get enough attention at that time was how to connect, and Deborah Lipstadt testified to this really, really amazingly, the sort of anti-Semitism and the language of “back into the ovens” and “blood and soil” to the unbelievable anti-Black racism, and how that is connected to great replacement theory and what all that means.
I think that Professor Lipstadt’s testimony in that trial is something we should all study because it really helps understand what it is that Tucker Carlson is peddling. But the failure to reckon with that and to understand how those two things are connected in Charlottesville and around the country, how they were connected on January 6th, is again a failure of imagination.
And so I love the trial marches (ph) because they ended up getting this massive judgment that may never be paid. But they also, I think, did this incredible job of explaining what the current moment of racial hatred, racial violence, the connection between anti-Semitism and massive anti-Black racism, and anti-immigrant sentiment, what all that means, and all we needed to do was read the transcript, but we kind of blinked and missed it.
Chris Hayes: Deborah Lipstadt is a scholar of anti-Semitism. She has been a guest on WITHpod, actually. We’ve talked about it. She has a sort of special role in the Biden administration as a kind of lead, sort of point person on global anti-Semitism, domestic anti-Semitism.
You mentioned Pauli Murray, who is an amazing example of imagination and seeing entire horizons that no one else is seeing. And the book does start with her. So I want you to, because people may not be familiar with her, she’s a fascinating figure who I think was not surfaced or not focused on in the history of a lot of the really important sort of left liberal justice movement, civil rights movements, until recently when I think she’s starting to get the due that she deserves.
Dahlia Lithwick: And I will say one of the best podcasts about this was Strict Scrutiny, did an amazing deep dive. There’s a —
Chris Hayes: Yeah. That’s how I learned about it.
Dahlia Lithwick: Yeah. There’s a documentary that, folks, I really commend to people, called, “My Name is Pauli Murray” by Julie Cohen and Betsy West, that I think tried to do the surfacing that, how did I get through three years of law school and nobody told me about Pauli Murray? And I think I am certainly not alone.
And I think, for me, Pauli Murray is an avatar for — the thing you said at the very beginning that I loved, Chris, which is so many people for so many years did so much work in, like, the just straight-up rock face of a constitutional and statutory system that was designed to make life terrible for women and people of color, for indigenous people, for migrants. That’s what it did, and it did it really well.
And in the face of centuries of that, when you have no power inside the system because you’re not allowed to, you have these characters on the outside who are doing, like carving out of a rock face. No, but like I belong in this system. This system should protect me, too. And Pauli Murray is all of those people.
And Pauli Murray, not only, I mean, I’m obsessed, I should say Pauli Murray was very, very much probably today would consider themselves of “them” and would say gender nonconforming, or certainly felt throughout their lifetime, to be a man trapped in a woman’s body.
But so before her time, in every facet of constitutional history, that Pauli Murray, in 1944 at Howard University Law School because no other law school will let her in because she’s black, does a paper that becomes, oh, the beating heart of the Brown v. Board filing that Thurgood Marshall files, and which by the way, Pauli Murray finds out years later, “Oh, whoops, we used your paper and your name is not on it.”
Pauli Murray is credited in a seminal case that Ruth Bader Ginsburg brought to use the 14th Amendment to vindicate gender equality. At least, RBG has the good grace to put Pauli Murray’s name on the brief, but Pauli Murray was not co-counsel. And so Pauli Murray is doing all this stuff before anyone has thought of it or done it. And by the time people are getting credit, Pauli Murray has moved on to the next thing. And I love it as a story both about who’s visible, who’s famous, who gets credit, who gets the throw pillows and the mugs.
And also a story about particularly that thing you just said, which is this is a moment ago, that women couldn’t have credit cards, that women couldn’t own their own property, that women, if they weren’t married, they were considered under the law to be the property of their father. I mean, it’s astounding that that happened so quickly.
And I think we both are asleep about that, that it just happened. If Sam Alito wants to say, “Oh, well, no girls in the Constitution,” it’s really easy to do that. And also that because women were bricked — are you laughing because no girls in the Constitution —
Chris Hayes: This is a funny one.
Dahlia Lithwick: — is a funny precis of Dobbs? Well, witches, witches are, in fact, everywhere and nowhere in the Dobbs opinion.
Chris Hayes: No girls in the Constitution.
Dahlia Lithwick: No girls allowed. Bad, bad girls. But I think, like, women had to fight their way in, as did people of color. And that didn’t happen very long ago. And as I said, anybody who’s super surprised at what’s happening to the Voting Rights Act, at what’s going to happen to affirmative action, what happened in Dobbs, kind of missed the part that this was brand new. We’ve only really existed for a couple of minutes.
Chris Hayes: Right. That’s right. Yeah. Yeah, I mean, I say this all the time in the podcasts, so regular listeners of the show are probably sick of it. But this is why, to me, why I’m so obsessed with Reconstruction, and why I talk about it all the time and think about it all the time, and invoke it is because it’s the big step forward, step back, that gets sort of written out of the history we all get. So that you can understand it, like, rights can be fought for effectively and won, and then taken away, and things can be rolled back.
And the irony here, of course, is that the 14th Amendment is the fulcrum of the, basically, second founding of an actual pluralist, multiracial, inclusive democracy. And that’s the one that comes out of the reconstruction, and that’s why every fight that we have, including Dobbs, run through it. And I think that that brings us to the Dobbs’ point, I mean, how much of the book was done when Dobbs leaked? I mean, obviously, that’s the first flare signal that this is probably going to happen.
Dahlia Lithwick: It was largely done. I have to say it was clear to me, I think, from oral argument in Dobbs, that this was not going to end well. And it was not even going to end well in, like, a small bore way. It was going to end very badly. But I just kept saying to myself, at minimum, Alito is going to fix his draft because this is riddled with historical errors, and women are utterly invisible, and he just can’t possibly let this go out unedited.
And so I, in that sense, got a little rope-a-dope because I kept saying it can’t be this ugly and final. And then it was, with some ugly pokes at the concurrence and the dissent in lieu of fixing the history. So it was almost entirely done. And I had to rewrite just in a few days post Dobbs. This is everybody, every writer’s nightmare. I had to rewrite the entire introduction and the abortion chapter, and the epilogue, to reckon with it.
And you’re right, I think it does, in some sense, feel like a book that is otherwise pretty triumphal. It’s struggling to find triumph here, although I did feel as though I wanted the book to be a playbook for going forward. One other beat that I will say on Dobbs, Chris, which I know you’ve heard me say before, but I became obsessed, in addition to becoming obsessed with Pauli Murray in recent years, I became obsessed with Dorothy Roberts, with Peggy Cooper Davis, with Carol Anderson, a whole bunch of black women law professors who had told us this was coming all along.
And so, one of the things that I really noticed and I felt this so acutely during the Ketanji Brown Jackson hearings, and it goes exactly to your point about the 14th Amendment, is that every single Democrat in that Senate confirmation hearing, seeded the ground completely of, “Oh, I guess that this is an invented right. I guess there is no meaningful, substantive due process, bodily autonomy, privacy, right in the Constitution.”
And so then when you hear Marsha Blackburn saying, “Oh, there’s no such thing,” you know, when you hear Senator John Kennedy say, “This is a right to privacy and bodily autonomy. And it’s in Obergefell and it’s in Griswold. And it means nothing, and it’s made up of, like, whipped cream and bubblegum,” and we gave that away, and that’s wrong. I mean, it’s descriptively not, in fact, the case, if you look at all of the reporting around what the 13th, 14th, and 15th Amendments were supposed to guarantee.
And so I think I just want to say, for me, we give that story away, the actual story of what the Reconstruction Amendments mean, and then it’s gone. And then instead of standing there and saying, after Dobbs, “Oh, wait, no, the 14th amendment was meant to remediate the unbearable suffering of having your children taken away from you, of having your body as a woman used to produce economic units.”
Chris Hayes: Yeah.
Dahlia Lithwick: All of that is there, and we gave it away. And so I think two weeks ago, when Ketanji Brown Jackson started actually reading the reports of what the 14th Amendment —
Chris Hayes. So good.
Dahlia Lithwick: — was meant to do, I think that, again, and it’s not just a failure of imagination that we’ve been talking about, but a failure to own our own text and history. It’s just such a catastrophic misfire.
And Dobbs, for me, is the sort of either high water or low water moment of failing to tell a story of what it meant when we said in the 14th Amendment, “No, actually, you can’t tell somebody that their children aren’t their children, their body isn’t their body, they cannot raise their children the way they want, they cannot marry the person of their choice.”
That’s Loving versus Virginia. That’s Griswold. That’s Roe. That’s Casey. That’s Obergefell. We gave all that away. And then Clarence Thomas walked up and said, “You know what, this stuff can all be taken away.”
Chris Hayes: This, to me, is so important, in some ways, some of the most important, I think, developments. And it is encouraging to see, I think there is a real amazing intellectual moment now around precisely this question. And to see it coming from the bench and Ketanji Brown Jackson saying, Alabama, the lawyer for Alabama, which has limited the number of black majority districts in a state, he’s got kind of two arguments, a kind of strong case and weak case.
But the strong case is we can’t just look at race when we’re carving up these districts, which is just a facially ludicrous thing to say, with a straight face, for anyone that spent any time reading about Reconstruction. But you’re right, the whole history has been given away. The 13th, 14th, 15th Amendments are radical texts. They are radical texts written by radicals in radical situations, full stop.
That’s just the historical plain truth of it. Now, it’s always complicated. There were people more radical than the people writing those texts. And there were people, they were all fighting with each other about everything. And there’s not like one true actual meaning. But if you’re going to say like, okay, again, to go back to the notion of an original public meaning, which itself is, like, not clear to me the way that we should be doing their jurisprudence anyway, but that radical moment has been erased.
And you’re right, that the constitutional ramifications are profound. And now, it does feel like to talk maybe in the conversation on a note of hope, I do feel like that is being reclaimed, that Ketanji Brown Jackson moment really felt revolutionary to me. I mean, I don’t think I’ve ever encountered that before, to someone be like, “Oh, wait, you guys love to talk about what the founders were up to. What do you think the “founders,” I’m putting air quotes, of the 14th Amendment were into?
What was their deal? Like, just for someone to raise that, it just never happens. And it’s, like, wait a second, this is the text that we’re all fighting for at every battle we have. Like, thank you for just stating this. So it feels, to me, like there is a new front being opened that wasn’t there before, because there is now an understanding that we did give away this history and tradition of what the vision of the Reconstruction Amendments was for multiracial, pluralistic democracy that is being reclaimed.
Dahlia Lithwick: I think that’s right. And I think it goes to the other side is really good at naming things, right? And so, they’re like, “We’re originalist, and you make stuff up. And we are humble and minimalists. And you guys are big swing. We are strict construction.” Like, every soundbite which has been workshop to it, all sounds really compelling. Every one of those has been flipped on its head now, right?
Chris Hayes: Completely flipped. Totally flipped.
Dahlia Lithwick: We’re not minimalists. We’re not for states’ rights. We’re for states’ rights until we’re not for states’ rights. Like, we’re for text and meaning until we’re not. And like, for her to call it out and just be like, “Okay, you want to do text and history? Here’s a little text and history, not a race blind amendment.” Boom.
Chris Hayes: On the minimalist thing, Kate had to, like, explain to me, we were in a car ride the other day, we were like talking about some stuffs, picking your brain about the courtroom. And she had to, like, explain to me that the big sort of religious liberty case, which is a web designer, who doesn’t want to design websites for same-sex marriages, doesn’t have a web design business and hasn’t ever —
Dahlia Lithwick: Refused service. Yes.
Chris Hayes: — been refused service. It’s completely fabricated. There’s literally no injury. There’s nothing. It’s nothing. And it’s a Supreme Court case. And it just violates every single last bit of rhetoric around judicial restraint and even just like actual legal questions standing, that this woman who doesn’t have, there’s no injury. Nothing has happened. Basically, nothing has happened. And she’s going to get a Supreme Court hearing because the court wants to find in her favor because they want to keep whittling away at rights and carving out larger and larger religious exemptions.
But just the actual facts of it are so insane when you hear it, that like you can’t believe that it’s a Supreme Court case.
Dahlia Lithwick: Right. Well, Coach Kennedy, who wanted only to get reinstated in his job and to prey (ph) on the 50, never took his job back. Never. He just goes around giving speeches. Let me make one sort of substantive and I think hopeful point, just because I think you are making a substantive and hopeful point, and I want to just tug on it for one last beat.
And I think that part of it is that we just can’t keep covering cases as, like, “This is the story about a web designer. Like, we’ll fly over there and we’ll interview her. And like, we’re going to be like really solicitous of her religious objections.” Like, this is not the way to cover an institution that is at present, aberrational.
And we have to cover it not as like, “And then we’re going to fly out and like look at the Harvard affirmative action.” Like, this is not the way to do it. And we have to really reinvent how we think about the institution and how we cover it. And I don’t have great ideas of how to do it, but I know that, like, covering it as a series of cases rooted in doctrine is just like laugh out loud, funny. There is no doctrine, and the cases are not the point. So that’s the first thing.
The second thing is I totally want to lift up something you just said, which is everybody could now listen to oral argument, right? You don’t have to wait until Amicus on Saturday morning to hear Ketanji Brown Jackson in your headphones, because the court is allowing us to listen in to somebody who was descended from slaves on both sides, talk about the Reconstruction Amendment and what it meant, what that abolitionists wrote into those reports.
I really think we’re at a moment in which people understand both what the court is doing and the ways it is gaslighting. And I think this is an amazing opportunity for people like you and me —
Chris Hayes: Yeah, agreed.
Dahlia Lithwick: — to keep saying the things that we are like, “Oh, my god, I’m so bored of talking about the Reconstruction Amendments.” But you know what, like, I really think we are at a moment in which folks are starting to understand that the court is not a bunch of oracles in the sky, that Donald Trump’s justices were bought and sold by Mitch McConnell and Leonard Leo, that $1.6 billion from one donor to Leonard Leo, not just to seat justices, but to take some Supreme Courts with it. Like, all of that is really, I think, on the table now.
And our job and it’s a hard job because we both started by copping to the fact that we kind of like rule of law, is to both prop up like the dream and aspiration of these institutions at their best, and to also like understand that people really want to engage in the ways in which those institutions are flawed by design, but fixable.
Chris Hayes: I totally agree. Dahlia Lithwick is author of “Lady Justice: Women, the Law, and the Battle to Save America.” She’s senior editor at Slate, where she also hosts Amicus, a podcast all about the law and the Supreme Court justices who interpret it. She’s an MSNBC contributor. She’s a friend. She is a model of public intellectual and journalist, and someone I’ve just admired for a very, very long time. And it’s wonderful to have you on the podcast.
Dahlia Lithwick: Thank you for allowing girls. Girls are allowed on this podcast, not in the Constitution.
Chris Hayes: Yeah, not in the Constitution, but on this podcast, which departs from our history and tradition.
Dahlia Lithwick: Burn the witch. Burn the witch. Yeah, okay, excellent. Thank you very much for having me, Chris. This was amazing.
Chris Hayes: All right.
Dahlia Lithwick: Thank you.
Chris Hayes: Thank you. Once again, my great thanks to Dahlia Lithwick, she’s great. I was going to say she’s the best. She’s the second best. I said that in the opening.
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