Bonus: Time to Celebrate Some Wins

Summary

Amicus With Dahlia Lithwick: “Bonus: Time to Celebrate Some Wins”

Date: October 18, 2022
Host: Dahlia Lithwick
Guest: Jessica Levinson
Theme: Examining the “pendulum” of women’s rights in law, the evolution of equality, how rhetoric weaponizes the law, and the real-world consequences post-Dobbs.

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Episode Overview

This bonus episode of Amicus features a live-recorded, in-depth conversation between host Dahlia Lithwick and law professor Jessica Levinson. Together, they reflect on achievements and setbacks for women in the law, unpack the symbolic and real dangers of weaponizing legal rhetoric against women, and examine the current legal climate following the Supreme Court’s Dobbs decision overturning Roe v. Wade. The tone is urgent yet reflective, mixing hard truths with encouragement to keep fighting for progress.

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Key Discussion Points

1. The Pendulum of Progress for Women in Law

• Lithwick’s Perspective: She recounts how, only a couple years prior, she was optimistic about the state of gender equality in the legal profession:
  • “We are so close to complete equality. Look at us. You know, we're 50% of every law school class, and we're kind of clawing our way into the highest echelons at law firms and at law schools. And look at all the women deans of law schools in the last 10 years. I mean, it's breathtaking.” (03:03)
• Pendulum Analogy: She describes progress as non-linear — “every single major civil rights movement… is one step forward, one step back, two steps forward, one step sideways” (03:30).
• Current Moment: Lithwick observes a backlash, not only in gender rights but across civil rights: “Things that seemed certain 5, 10, 15 years ago are really, really, I think, destabilized.” (03:54)

2. The Law as a Double-Edged Sword

• Lithwick reflects on the contradictions faced by marginalized groups:
  • "The same legal processes and systems that were used to criminalize your behavior... are now the processes that make us free and equal..." (04:39)
• She references W.E.B. Du Bois' "double consciousness," comparing it to how women navigate being both recipients of progress and continued discrimination:
  • “We move through the world as two creatures, one the beneficiary of American exceptionalism and also the recipient of a long, long legal tradition that says you're nothing.” (05:00)
• Post-Dobbs, she stresses the threat goes beyond abortion:
  • "This isn't just about abortion, this is about miscarriages. This is about birth control, this is about pregnancy, this is about how we raise our children." (05:18)

3. Historical Context: The Role of Men in Legal Foundations

• Lithwick symbolically discusses her book’s pink cover:
  • "The law is very much a pink book that was written by men for men, and that the framers and the drafters... controlled every aspect of a woman's life for centuries, for millennia, were men." (04:07)

4. Law as Instrument of Oppression: “Lock Her Up”

• Jessica Levinson asks about the chant “Lock her up” and its evolution as a tool of oppression:
  • “Can you talk about how this 'Lock her up' chant is, one, a metaphor in the book, but two, how it really is, I think a through line through a lot of the stories.” (06:09)
• Lithwick traces its progression from “Iron my shirts” (seen as mere sexism) to “Lock her up” (a legalistic threat):
  • “‘Lock her up’ is really threatening. ...That's using the machinery of the law to incarcerate a woman, not ever for anything specific other than what, saying unpopular things?” (07:17)
• She lists how this chant extended well past Hillary Clinton, targeting Nancy Pelosi, AOC, and even Christine Blasey Ford after her Senate testimony.
• The metaphor becomes stark reality:
  • “Within weeks of the book shipping, women were being locked up in Alabama for fetal endangerment… Brittany Pullop locked up in Oklahoma for a miscarriage that the state determined was because of drug abuse. So now we're actually looking around at a country where women are going to be locked up.” (09:24)

5. From Law to Lawlessness

• Lithwick differentiates between giving up on legal systems and recognizing moments when the law is manipulated to become lawless, distinguishing hope from resignation:
  • “The object isn't to give up on the law... It's to say, no, this has now become lawless.” (10:40)

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Notable Quotes and Memorable Moments

• On the precariousness of progress:
  • “I just had that sense that we were inching up on the forever times. And clearly we're not.” — Dahlia Lithwick (03:13)
• On survivability of civil rights progress:
  • “Every single major civil rights movement in this country… is one step forward, one step back, two steps forward, one step sideways.” — Dahlia Lithwick (03:30)
• On the aftermath of Dobbs:
  • “If they can put us in jail for terminating a pregnancy, then my DNC that I had after a miscarriage is also on the table.” — Dahlia Lithwick (05:29)
• On historic misogyny:
  • “If you go back to Sir Matthew Hale, beloved burn some witches. Yeah, beloved witch burner of British history. And you're citing the views of people from centuries back, they thought women were either property or children.” — Dahlia Lithwick (05:50)
• On the weaponization of law:
  • “‘Lock her up’ went from being the sort of zeitgeist of, this is an inconvenient woman who doesn't know her place… to an actual state of affairs.” — Dahlia Lithwick (08:41)

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Important Segments and Timestamps

• 00:02 — Introduction to the episode and Slate Plus membership pitch
• 01:32 — Jessica Levinson’s question about women’s relationship with the law
• 03:03 — Lithwick on perceived progress and the "pendulum" analogy
• 04:07 — Discussion about the law's gendered origins and its symbolism
• 05:18 — The broad legal threats to women post-Dobbs
• 05:50 — Historical citation of Matthew Hale and the law’s foundation in misogyny
• 06:09 — Levinson on “Lock her up”—metaphor and real-world danger
• 07:17 — Lithwick tracing the escalation from rhetoric to carceral reality
• 09:24 — Examples of women locked up post-Dobbs
• 10:40 — Reflection: law as double-edged, resistance to resignation

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Conclusion

This episode captures a pivotal moment for women’s rights and legal equality, blending historical insight with present-day urgency. Lithwick and Levinson’s dialogue renders visible how wins are never guaranteed, how legal rhetoric shapes lived realities, and why the fight for justice demands both vigilance and hope. The conversation is candid, incisive, and deeply resonant for anyone seeking to understand the current crossroads of law, gender, and power in America.

Transcript

[A]

Hi, and welcome to Amicus, Slate's podcast about the Supreme Court, the law, and the rule of law. I'm Dahlia Lithwick, and I have a special announcement for you today. For a limited time, you can get six months of slate plus for just $29, and that is 50% off. As a member, you will get no ads on any of our podcasts, unlimited reading on the Slate site, and member exclusive episodes and segments from our show and other shows, Slow Burn and Political Gabfest. Slate's podcasts cover major news events, from elections to social issues to historic Supreme Court decisions. Our shows also discuss what makes a song a smash, analyze what's going viral, and decode deep cultural mysteries. If we've become a part of your listening routine, we ask that you support our work by joining Slate Plus. Sign up for Slate plus [e-mail] amicusplus to access all of Slate's content and to support our work. Again, that's just $29 for six months through October 28th. So sign up [e-mail] amicusplus and just by way of a case in point, plus members can right now access an extra bonus episode from Amicus. It's a conversation that I had with one of my favorite court watchers, Jessica Levinson, taped live in Los Angeles this past weekend. And here's a taste of that conversation.

[B]

Could you talk to us again about the special relationship between women and the law?

[A]

I think it's something we're sitting in now at this moment. And if you had asked me two years ago, I would have said kind of some version of what I said at Whole Women's Health at that argument in 2016, which is, we are so close to complete equality. Look at us. You know, we're 50% of every law school class, and we're kind of clawing our way into the highest echelons at law firms and at law schools. And look at all the women deans of law schools in the last 10 years. I mean, it's breathtaking. And so I just had that sense that we were inching up on the forever times. And clearly we're not. And part of the answer, I think, Jessica, is it's always been a pendulum, right? Every single single major civil rights movement in this country, and I would say worldwide, is one step forward, one step back, two steps forward, one step sideways. And we happen to be, I think, in the epicenter of one of those, not just on gender, but on race and on LGBTQ rights. You know, things that seemed certain 5 10, 15 years ago are really, really, I think, destabilized. So part of it is, I think we're in a pendulum swing. But part of it is this really complicated question which is, and it's sort of the answer to why the book is pink, because you may have noticed it's pink and that my family is wearing pink in the front row. And I think the book is pink because I've always said, you know, the law is very much a pink book that was written by men for men, and that the framers and the drafters of statutes and every single person that, that controlled every aspect of a woman's life for centuries, for millennia, were men. And women had to fight their way in to the doctrine. They had to fight their way into the Constitution. Right. That was a centuries long process. And I think what I wanted to say, and this is a sort of sideways answer, is that I think women, people of color, Native Americans, LGBTQ Americans all understand that it is an absolute double edged sword that the same legal processes and systems that were used to criminalize your behavior, to diminish you, to take away power and freedom for centuries are now the processes that make us free and equal and give us dignity and autonomy. And I think in our memories we know that. And so this goes a little bit to the sort of, I think, W.E.B. du Bois, you know, dualism that we move through the world as two creatures, one the beneficiary of American exceptionalism and also the recipient of a long, long legal tradition that says you're nothing. And I think that women are really aware of that. And so maybe the best evidence I have of that is that post. Dobbs. I think it was women, and I know you were one of them. And I was one of them on TV saying, this isn't just about abortion, this is about miscarriages. This is about birth control, this is about pregnancy, this is about how we raise our children. And if they can put us in jail for terminating a pregnancy, then my DNC that I had after a miscarriage is also on the table. And I think that's just familiar. And maybe the last thing I would say is that I think when Justice Alito writes in his opinion that if you go back to Sir Matthew Hale, beloved burn some witches. Yeah, Beloved witch burner of British history. And you're citing the views of people from centuries back, they thought women were either property or children. It wasn't just Matthew hale. That was 50 years ago when you couldn't have a credit card.

[B]

When I teach marital property, we talk about that and my students, luckily, in some ways and unluckily in others, it doesn't compute to them that that's their grandparents or if they have much older parents then. Because it feels like the beginning of your book, right? It feels like. But we've always had equal rights because my students walk into a room and expect that in a room of power, there will probably be 50% women. And I think part of what we're living in now is that that's not a fait accompli. And there's another through line in the book. It's a chant. I think I remember the first time I heard Lock her Up and it was completely chilling. And you talk about it in the book, and it's the first time I remember it. It was then candidate Trump talking about then candidate Hillary Clinton in the 2016 election, and it was weaponizing the law. And it becomes a metaphor throughout the book. Can you talk about how this Lock her up chant is, one, a metaphor in the book, but two, how it really is, I think a through line through a lot of the stories.

[A]

I think that the move from Iron My Shirts originally directed at Hillary Clinton to Lock her up. We missed how pernicious that move was. We thought they were both kind of funny. Not we. I mean, nobody here thought it was funny, but I think it was both seen as kind of the excessive zeal of a sexist crowd. But of course, Iron My Shirts is just kind of jerky. Lock her up is really threatening. And I think that when Lock her up was not just directed at Hillary Clinton, I think I note in the book, at some point it was directed at Nancy Pelosi. It was directed at aoc. After Christine Blasey Ford testified against Judge Kavanaugh, the crowds were chanting Lock her up. And that's really different. That's using the machinery of the law to incarcerate a woman, not ever for anything specific other than what, saying unpopular things. I guess, in Hillary Clinton's case for using that home server, which seems fairly benign in light of selling nuclear secrets. But I think that Lock her up went from being the sort of zeitgeist of, this is an inconvenient woman who doesn't know her place. How dare she run for president. Let's put her in jail. And it wasn't just the chanting. It was Donald Trump in a debate talking about having his attorney general investigate Hillary Clinton. And so once you're talking about locking women up as a sort of rhetorical campaign matter, and then it's starting to infiltrate every rally about every woman who is just kind of daring to run for office. And then, as you say, when the book ends, I mean, within weeks of the book shipping, women were being locked up in Alabama for fetal endangerment. Right. They can't get out of prison because the custodial system has determined they are a danger to their babies. Women, Brittany Pullop locked up in Oklahoma for a miscarriage that the state determined was because of drug abuse. So now we're actually looking around at a country where women are going to be locked up. And that same kind of chanting that seemed rhetorical and kind of mean spirited and sexist is now moved from a threat to an actual state of affairs. And so I think what I wanted to think about when I use it throughout the book is how, again, how quickly that happened. Right? I mean, it was annoying in 2016, but it didn't feel genuine. And now I think it feels, oh, that could happen to me or someone I know. And when they say lock her up, they really do mean, you know, that somebody is going to overhear a woman in Texas talking about a sketchy miscarriage and telling the police and that's she's going to go to jail. And so I think maybe again, I wanted to a little bit use it as a meditation on that double edged sword of the law, as something that can make you free and something that can make you unfree. And also use it as a way to think about when law becomes lawless. The object isn't to give up on the law, right? The institution, the legal system. It's to say, no, this has now become lawless. And that I think is a thing that, you know, when I was trying to think through, am I ready to give all this up and just, you know, do like watercolor? Because clearly the law, that's always my pick, too.

[B]

Watercolor.

[A]

Watercolor. It's baking water. Well, because it's so soothing.

[B]

It's so soothing because you just.

[A]

Yeah, but, you know, I don't know that watercolor makes us free. And I do think that, like, the law itself can. And so when I asked myself, am I ready to give up and walk away, it's really important to say no, actually, this is lawless. Sign up for Slate plus now at slate.com amicusplus to access all Slate's content and to support our work. It's just $29 for six months through October 28th. So sign up [e-mail] amicusplus.