← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
John Roberts’ New Year Blame Game
01:07:01
The Chief chose to misappropriate some civil rights history for his end-of-year victimhood claiming.
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- [00:01]
Dahlia Lithwick
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- [00:30]
Sherrilyn Ifill
I GOT News for you is back for another season.
- [00:34]
Roy Wood Jr.
Roy Wood Jr. Amber Ruffin and Michael.
- [00:36]
Sherrilyn Ifill
Ian Black are finding the funny in the week's biggest stories. Have I got news for you. Return Saturday at 9 on CNN and stream next day on Max. This idea that critiquing the judicial system or judicial opinions is itself corrosive of the rule of law is a kind of through the looking glass, kind of bizarro world conception of lawyers are supposed to engage with the justice system.
- [01:09]
Dahlia Lithwick
Hi and welcome back to Amicus. This is Slate's podcast about the courts and the law and what used to be the law, and also about how we weather whatever is coming and how we move through it together under the color of really understanding what law means. I'm Dahlia Lithwick. From our family here at Slate, to you and yours, we we wish you a happy new year and we thank you for tuning in as we gingerly step into this new year, this new administration, and the same old Supreme Court. The same old Supreme Court is going to swing back into session next week with a huge TikTok case that Mark and I previewed a few weeks back, and we're going to be combing through the arguments in next week's show. But New Year's at Amicus wouldn't be New Year's at Amicus without my dear friend, the national treasure, our annual New Year's Prophet and Whisperer, Sherrilyn Ifill. Sherilyn is the inaugural Vernon E. Jordan Jr. Esq. Endowed Chair in Civil Rights at Howard University. Prior to that, she served as the seventh President and Director Counsel of the NAACP Legal Defense and Education Fund. As the Vernon Jordan Chair, Sherrilyn has launched a multidisciplinary center focused on promoting the vision and values articulated in the 14th Amendment of the Constitution, the central source of America's post Civil War identity. And I think it's become an Amicus tradition to invite Sherilyn onto this show in the New Year as a kind of control alt delete for the dispiriting, moldering sad face thinking about justice. Sherilyn is always able to somehow make her way through the dumpster fire of recent years without giving up hope, without losing sight of what really matters, and by reminding us how we are going to claw our way forward. This is a really rough time for all of us, but I wanna tell you that as a personal matter, I always turn to Cherilyn whenever I find myself either normalizing or minimizing that which is insane, or succumbing to a feeling of powerlessness in a really frightening world. Sherilyn, that was a hella windup, but welcome back.
- [03:25]
Sherrilyn Ifill
I love it. Keep it coming. I was hoping you would just keep.
- [03:29]
Dahlia Lithwick
Happy holidays to you and to your family and happy or whatever the ambiguous emoji is that we attach to it.
- [03:37]
Sherrilyn Ifill
2025 I love being here on New Year's. It's a way for me to set myself. I don't have the answers, but I'm happy to talk about how I'm thinking and just want to say also that your podcast and you and Mark Joseph Stern have been, you know, I listen to you in my car all the time and you know, there are ways that I hold myself steady. And I would just say for people who do this work, who believe in democracy, justice, who believe in the rule of law, make sure that amicus is part of your weekly listen seriously, because we need to hear one another and we need to hold the line. We're going to be pulled so far off of what we know to be true, what we know to be right, what we know to be ethical. And some of us have to be able to hold the line. And we do that by reinforcing one another in knowing what the truth.
- [04:32]
Dahlia Lithwick
I think I want to start, if it's okay with you, with the Chief Justice's little report on the state of the judiciary. It always drops silently on New Year's Eve. This was a kind of ode to self pity. He wants us to know that judges and justices feel very scared and this is a common refrain from him. We've been hearing this in the last couple of years, but I would love to hear your thoughts. Thoughts if you would, on in some sense the uncontroversial proposition that we shouldn't threaten and terrorize judges. But it kind of went way off the rails in terms of tone deafery this time.
- [05:14]
Sherrilyn Ifill
Yeah. So the year end report always makes my New Year's Eve special and it did not disappoint this time, it is obviously of a piece with an ongoing conversation that's been happening in which one or another of the justices, and now that Edith Jones on the Fifth Circuit Court of Appeals has joined in judges who are pushing back against the idea of legal scholars, professors, members of Congress, criticizing either their decisions, the processes of the Court promoting court reform, critiquing ethical issues on the court, critiquing the failure to complete financial disclosures and so forth, and packaging all of that as intimidation, as an effort to try and intimidate judges because those who are more progressive or liberal don't like the decisions, the substantive decisions of the conservative court or of conservative justices. And this strikes me as incredibly manipulative and really dishonest. We are supposed to improve every aspect of our democracy. We are supposed to critique aspects of how the President engages in the use of his power, which is why we have a thoroughgoing conversation about presidential pardons, for example. We are supposed to critique Congress about their conduct and their processes, which is why we have a thoroughgoing conversation about whether members of Congress should engage in stock trades. Right. And we are also supposed to have a thoroughgoing conversation, and perhaps even more so about the judiciary, because the rule of law is such a powerful pillar of any healthy democracy. And lawyers in particular, who are part of the profession that holds up the rule of law, have an obligation, I thought, to improve the system. And in fact, there are any number of preambles in our, you know, in our codes of conduct and so forth that talk about, you know, lawyers working for law reform and lawyers working to improve the system. That's actually part of our job. So the first thing is that to the extent it's directed at lawyers, it's so wildly off base. But what is most disturbing is the packaging of this as intimidation and the connection of it to the unfortunate cases of violent threats being made against judges. That is actually unconscionable. And it was probably most starkly presented by Edith Jones on the panel at the recent Federalist Society conference in which he tried to paint the scholarly work, and I would say even scholarly tweets, because Steve Bladek's tweets are considerably more scholarly than mine. Of Steve Bladek, a highly respected law professor at Georgetown who has written extensively about the court's emergency docket, has written a book about the shadow docket to suggest that this temperate, scholarly law professor is somehow responsible for violent threats that apparently have been issued against Judge Matthew Kaczmarek in Texas. And, you know, he was kind of ambushed at this Federalist Society conference. But, you know, I feel like the Chief justice report, by lumping together, you know, the idea of criticism and violence, kind of endorsed that presentation in a way that I find quite chilling. And I think it's meant to be chilling.
- [08:55]
Dahlia Lithwick
Two things that are really important about what you're saying that I just want to tug at for one moment. And one is, you know, this is a court that can be so reckless about harms to others. This is a court that seems to not give a nanosecond's thought to actual violence to, you know, reproductive rights violence, to a woman whose stalker was terrorizing her. And there's the court kind of chuckling through oral argument. And so there is this kind of hyper protectiveness about its own safety that really chimes in a painful way when you layer it up against the almost total disregard for harms to people of color and minorities and women and trans youth. You know, no real self knowledge there from a chief justice that we used to think of as a fairly high EQ reader of the room. And I think the other thing that I would love you to talk more about is this, like, really cynical. He did it last year as well. Use of sort of the history of the civil rights movement to try to kind of co opt the notion that we very much like the brave judges, you know, who stood on the clifftops alone in the civil rights era and suffered the consequences. We are them now.
- [10:28]
Sherrilyn Ifill
We, we. We.
- [10:30]
Dahlia Lithwick
You say this in your substack, Sherilyn, and we'll link to it in the show notes. But I just think the level of cynicism here almost cannot be. It's not just Edith Jones and Judge Justice. This is the Chief justice of the United States embracing this notion that we are the real legacy of the civil rights heroes.
- [10:53]
Sherrilyn Ifill
It angers me, obviously, but I also often get a chuckle out of it because, you know, I sometimes think that so much of what we are seeing in our profession and among conservative judges and litigators is this kind of traumatic response to the heroism of the civil rights movement and the work of civil rights lawyers and the work of judges deciding civil rights cases. There's a traumatic response that has resulted in this effort to cloak themselves with the heroism of that period and to suggest that there is something equal about what they are doing to the courageous efforts of those who worked through the difficulty of trying to make this country a true democracy during the civil rights movement. So I always kind of chuckle because the trauma is so evident, but it also makes me angry because it is fundamentally ahistorical and untrue. So in his year end report, Chief Justice Roberts cites to Waties Waring. He cites to, you know, obviously, Chief Justice Earl Warren, both of whom received, you know, threats of violence against them for their civil rights decisions. And I just found myself deeply offended, particularly by the Waties Waring comparison, because Waties Waring was the scion of a old Charleston family who became a federal judge, and with his wife, his second wife, started on a path, as more and more civil rights cases came before him, of trying to learn about the history of race in this country. And he and his wife would read together every night. They would question each other. He was being exposed to a world he had never known. You know, he lived in the most attractive house, you know, on the main street. He was fully in Charleston society. And as he starts to learn, these cases are coming before him. And he is also doing what judges are supposed to do in litigation, which is learn from litigation. And he issues some decisions that are some of the most important in a number of civil rights cases, including his dissent in the Briggs vs. Elliott case, which was the South Carolina Brown case. And the court ruled against the plaintiffs against Thurgood Marshall in that case. But Judge Waring's dissent became the template for what became the majority decision in Brown vs Board of Education. And as a result of his civil rights decisions, he was certainly subject to violent attack. A bomb was thrown at his house one evening as he was home with his wife. But he was ostracized by the society that he had been a part of. So I emphasize this because it wasn't just that there were violent threats by racists. It is that the society of people of which he was a part, which was upper class Charleston society, his colleagues within the judiciary and so forth, ostracized him and his wife. They were socially dead. And as a result, he moved. He and his wife moved from Charlton, South Carolina, to New York, where he lived out the rest of his life. He never returned until he was buried. And I spoke at the dedication of the courthouse to Waties Waring. The name was changed. It had been named after Ernest Hollings, the senator from South Carolina. And with his consent, with Holling's consent, it was named after Waties Waring. And I was asked by Vernon Jordan to speak for him at that dedication of the courthouse. And the picture of the courthouse is included in the year end report. And the idea that we would be comparing Matthew Kaczmarek in Texas to Waties Waring or to Judge William Wayne justice, who was raised by Judge Edith Jones on that panel when she was kind of engaged in this tirade against Professor Vladek, who had written about the one judge district in Texas where conservative lawyers are filing their cases so they can appear before Judge Matthew Kaczmarek. And she said with triumph in her voice, what about Judge Justice? Referring to William Wayne justice, who civil rights litigants loved to appear before and would try to appear before during the 60s and 70s. He was appointed by President Johnson, and he's considered a champion by civil rights litigators. It's no comparison to Matthew Kaczmarek. First of all, the cases that were filed before Judge justice were filed in a district that was associated with the very claims that were being made. It wasn't just, you know, civil rights attorneys from all over the country with claims that were not connected to Texas filing their cases in Texas. Right, because that's what's happening with Kaczmarek. But secondly, the point of those civil rights era judges who we think of as kind of champions, is that they were in the small minority and it was most of the other judges who actually were abusing the system. I've said before that Thurgood Marshall, when he appeared, the first time he appeared before Judge Waties Waring, he said it was the first time he had ever been really able to try his case, that he had been able to put on all his evidence, that the judge actually listened to him, didn't run over him, and he said he was astonished that Judge Waring allowed him to litigate his case. So it wasn't that these judges were so extraordinary, justice and Waring, and that somehow civil rights litigators were manipulating the system. It was that most of the judges, Judge Cox, Judge Mize, so many of the other Southern judges would not give a fair hearing to civil rights claimants. You know, the judges who turned their back on Constance Baker Motley or who wouldn't say her name, those were the other judges in those districts. So to make that comparison somehow and to endorse it in this year end report, it's unfair. It's a distortion of that history. And it's once again an attempt to cloak oneself in the history of the civil rights movement. And of course, the worst example of this is, you know, Justice Alito saying that basically, you know, Dobbs overturning Roe is like Brown overturning Plessy. Like, you know, you can't just snatch from this history the snippets that you want to make your point and suggest that they are equivalent because they are not. And there are important differences that actually speak to our system. Our system is not always fair. It was not fair. Judge Cox, you know, who Constance Baker Motley called the most racist judge who ever sat on the federal bench. She herself, when she wrote that, by the way, was a federal judge in her memoir, but she had litigated before him. Was she not supposed to speak? So I just, you know, this idea that critiquing the judicial system or judicial opinions is itself corrosive of the rule of law is a kind of through the looking glass, kind of bizarro world conception of how lawyers are supposed to engage with the justice system.
- [17:53]
Dahlia Lithwick
More in a moment with Sherilyn Ifill. This show is sponsored by BetterHelp. Is there some part of your personal story you've been wanting to revise in 2025? Every January brings 365 blank pages just waiting to be filled. Life isn't about resolutions that fade by February. It's about picking up your pen and becoming the author of your own life. And therapy can help you write new chapters and create the meaningful story you deserve to live. If you're thinking of starting therapy, give BetterHelp a try. It's fully online, making therapy more accessible, affordable and convenient. BetterHelp has a diverse network of more than 30,000 credentialed therapists with a wide range of specialties. Just fill out a brief questionnaire to get matched with a licensed therapist, and if you feel like your matched therapist isn't the right one for you, you can easily switch therapists anytime at no extra cost. Visit betterhelp.comamicus today to get 10% off your first month. That's BetterHelp. H E L p.comamicus.
- [19:04]
Sherrilyn Ifill
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Dahlia Lithwick
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Dahlia Lithwick
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Sherrilyn Ifill
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- [19:27]
Dahlia Lithwick
Let's return now to my conversation with Sherrilyn Ifill. It's so interesting because this is the same Chief Justice Roberts who is never above calling other judges partisan or political right. Whether it's Obergefell right they're being partisan and political when he out the liberal members of the court because he says they're politicizing the court in their dissent. So it's such A fascinating thing to again, sort of want to cloak yourself in dispassionate neutrality and at the same time say, oh, all these biased people, they're all biased. I am, you know, the one true shining light of objectivity. The other piece of cynicism I just have to flag here because it really rankles after the immunity decision to the extent that the immunity decision is a one time only Donald Trump decision. Right. I mean, it is clearly saying, and Donald Trump has interpreted to mean, and we'll talk about this in a minute, that whatever he does that is criminal is fine. Now, it's fascinating to see that by some transitive theory of the three branches of government, quite literally, John Roberts is sort of making the argument that whatever it is, that I think is what the judiciary is and it's just the sort of narcissism or self regard at work here, which is I'm having these feelings, I'm having this experience and therefore I can extrapolate it to a theory of the entire Article 3 judiciary. I mean, you've just immunized Donald Trump and now you are immunizing yourself as a judiciary. You know, you're already the most powerful branch. Now you're immunizing yourself from criticism. And it is such a Trumpy atonal move from somebody who, as I said, we used to describe as kind of much more adept at understanding how a message would land. This is the Trumpiest move I've seen from him next to the immunity decision, which was the Trumpiest decision I've ever seen from him.
- [21:40]
Sherrilyn Ifill
You know, but that helps in a way because I think this was an unfortunate move. You really show your hand when you have power and you use that power to try to keep others from questioning you. And that's the moment that we are compelled to face on one side with Trump. But I think this year end report and the ongoing conversation that's been happening not only at the Federalist Society panel, but Justice Alito's speech a couple years ago at Notre Dame and all the ways in which there's been this pushback against criticism, even as more revelations come out about more gifts to Justice Thomas and so on and so forth, is really not to focus on them and their distortions or narcissism, but to focus on what we're going to do about it and how we're going to conduct ourselves. Because there obviously is an attempt to ensure that whatever they are going to do over the next year or two, and they've really done quite a bit already, will happen without our pushback, that we will become fearful of criticizing them, or we will feel that we are somehow crossing some Rubicon by engaging in responsible criticism of cases, of opinions, or of the structural system, or by calling for court reform, or by calling for an expansion of the court, that this is somehow going to be framed as kind of traitorous conduct to the rule of law. And so if we can see that that's the framing, then that means we have to decide who we're going to be in this moment, as that increasingly becomes the line that a certain set of judges are setting up for us. You will recall during Trump's campaign, he said, have you heard how people are talking about Supreme Court Justice? They should be jailed for that. Trump suggested jail for people who are criticizing the court. So it's helpful for us to know that that is also part of the set of tactics that are going to be used in the coming years. I think many of us are well aware of Trump's other tactics as it relates to the legislature, as it relates to protests, as it relates to state governors. There are all kinds of ways in which power is going to be wielded to try to minimize the growth of resistance to it. And I think what the chief justice has done with this year end report is also trying to get out ahead of what he fears will be ongoing critiques. I completely agree with everything that he said about violence and about actual threats to the judiciary. It's unconscionable. I have spoken out against it. You know, I was one of the people railing against Congress for the length of time it took to pass legislation to protect judges after Judge Salas's a federal district judge in New Jersey after her son was killed at her home. It is absolutely unconscionable and dangerous to the rule of law. That is true intimidation and utterly unacceptable. And I have no problem with the Chief justice of the United States using his year end report to speak out against that. Those who would commit violence against the court, however, are probably not reading the Chief Justice's year end report. That's not really who the report's targeted at. And I think we can all agree that there should not be violence against judges. So I don't think that was really the point. So that's low hanging fruit, and that's obvious. And I have no problem, and I don't think any of us have any problem speaking out against that issue. But what I think the attempt is is to tamp down what has been a set of very important, I think, and powerful critiques of how the court has conducted itself. And he is the leader of the court. And maybe he's feeling it personally. He should, because he's the leader and the manager. And what so disappointed me in this, Dalia, is that he could have, in one line, simply said, as he did at the end, that judges have to, of course, behave in such a way that the public has confidence. And he could have said, and for that reason, I will be personally appealing to my colleagues and to, you know, judges in federal courts throughout the country that we redouble our efforts to conduct ourselves in such a way as to ensure that we earn the public's confidence. It could have been one sentence that would have been a signal to us that he's heard the legitimate critiques. Right. And that for those who have not cleaned their houses, they need to do so. The truth is that financial disclosures, many of them, were not made by Justice Thomas and were not made by Justice Alito, and they have had to supplement their report. And more revelations have come out even after the supplement. That's undeniable. Those are facts. That's not a broadside attack, and they need to clean it up. So I just think he could have done that. And his refusal to do that speaks volumes about the line that he's drawing and that they are drawing and that others in the federal judiciary who will follow his example are drawing that suggest that critiques of the court are somehow corrosive of the rule of law.
- [27:12]
Dahlia Lithwick
So, Sherrilyn, you've maybe just given us one framework to think about what's different and what to be fearful of. And I think it's a useful one, which is when power is trying to use its own power to quell criticism. That's a tell.
- [27:28]
Sherrilyn Ifill
It is.
- [27:29]
Dahlia Lithwick
Be really mindful of that. That's Elon Musk. Right? That's Donald Trump. That's Kash Patel. Right. We should be really aware that that is exactly this move. It's a kind of perfect segue, something else. But it's the filing that was submitted last week by Donald Trump's lawyer, John Sauer, in the TikTok case. And I don't think we need to go deep in the weeds of the merits on that case. We'll do it on another show. But I think we can at minimum acknowledge that this is a filing. It's not on either side of the case. It's not seeking relief that the court can grant, per Steve Vladic, who's gonna get name checked a lot in this show. This is a pleading that just kind of represents that as a function of Donald Trump. Right Again, the one right only president. His past and future awesomeness. He should just be given an opportunity to jump into this case and do an unspecified awesome future deal in the unspecified awesome future. I did a dramatic reading of it last week. It is the weirdest filing in. It's not the thing that a future SG Files. It's a tongue bath. And it is so weird, Sherilyn, because I think when I try to sort of measure how far we've come from 2017 till today, this is a kind of really creepy avatar for the kinds of arguments that are gonna be made. And I think you wrote about it at the time. This is just like empty and sycophantic. This is the opposite of what we young lawyers to see. And I'd love for you to speak for a minute. You know, it was easy to bat this away as just silly. It was silly. It was comic. This is really dark.
- [29:21]
Sherrilyn Ifill
Yeah. I didn't just ignore it because, you know, what young lawyers are going to learn is what wins. You know, it's worth remembering that John Sauer is the lawyer who argued Trump's immunity case in the Supreme Court. And one, he is a successful Supreme Court litigator. And it seems to me that someone at that level, one expects to be a very experienced and bright lawyer that one could emulate. And so to read this filing is chilling in a way. I mean, in the filing where he talks about Trump's. Trump's superior negotiation skills, he is the only one. You know, it's Trump's line, I'm the only one who can. Who can do it. Right. He's the only one who can solve this with his awesome negotiation skills. Right. None of which we have any evidence of. But that's neither here nor there. The purpose of the filing was simply to do that, was simply to offer up this encomium to Trump and to just put him in the mix and to suggest to the court that he should always be in the mix. That's what I took the filing to be. Just remember, don't do anything until we were sure of what Trump wants to do. And I really worry about, just as a matter of our profession, when these kinds of filings are accepted and perhaps not commented upon by judges or justices, that this will spread, that people will think that this is an appropriate way to litigate, that if you are trying to appeal to a Judge Ho or to a Justice Alito or to an Eileen Cannon, that you can make these kinds of arguments that are Law free, not substantive, but offer up tribute to the king. This is corrosive of our very profession. Nancy Gertner, our mutual friend and former federal judge and amazing woman and badass, wrote a couple weeks ago about it'll have to be the judges. And I think she's absolutely right that when judges receive this. So to talk about, what should people do going forward, this is not about what side you fall on of the issue, whether you were appointed by a Democrat or a Republican. When you get a filing like this in a consequential case in the Supreme Court or in a federal district court or in a federal court of appeals, I think it's important for judges to point out. Right. That this filing added nothing to the deliberations. Right. You know, appeared to simply be, you know, an empty tribute to the president, who's not a party in this case. Right. To say something, to indicate that this is not how we advocate, this is not advocacy. I don't know that judges and justices will do that. That's what worries me. But I would love to see that happen, because otherwise, if this becomes a way, or perceived as a way of persuading judges, lawyers want to win, lawyers want to win, and if this becomes seen as the way to do it, we will degrade this very profession into one in which, you know, saying the appropriate words of tribute take the place of actual advocacy.
- [33:00]
Dahlia Lithwick
It's such an important footnote to the conversation we've been having both on this show and sort of in the public conversation about obeying in advance. And the reason I love that piece that Judge Gertner wrote with Joel Cohen in the New York Times that you're referencing is because it was a sort of clarion call to judges. Be really mindful that you could obey. You know, you think this is business as usual. You could be subject to this for all of the reasons that you're saying, not just that young lawyers in the profession are going to obey in advance, but that you may not see this in yourself. And then it's just a really interesting kind of roadmap to. This is all the stuff that could happen. These are the implications. I loved the concreteness of it. Right. Because it forces you as a jurist to think about, oh, wow, yeah, that could happen. That could happen. It does raise the question for me. And you and I talk about this every time I think you come on the show and I keep hearing you say, nothing is going to change in the next four years unless lawyers and law firms and big law and bar associations and corporate lawyers really step up. And you said that in 2016. You've been saying it for a long time. It feels to me, Tell me if I'm wrong, Sherilyn, that an awful lot of those entities that were kind of like last time around are even more this time around. They seem awfully content to just sort of slip into the Trump world theory of, you know, it wasn't that bad last time or, you know, it's good for, good for my investments, or if it were really bad, someone would be doing something. So am I wrong in saying that our profession seems even more asleep at the switch than it might have been back in 2016?
- [34:57]
Sherrilyn Ifill
Yeah. I think that it's okay for us to admit that we've suffered some body blows that have taken the wind out of many. Right. I think the Section 3 14th Amendment case decided by the Supreme Court that Trump could not be removed from the ballot, I think the immunity case was mind blowing, essentially immunizing the president's actions and ensuring that there would be no accountability at the top for January 6th. I think the outcome of this election, which I think many did not expect, many feared. So I think that everyone's a little bit had the wind knocked out of the. So I want to be charitable, you know, and say I get it right. And I, too, have had to pause and a number of us have just kind of withdrawn for a minute to collect our thoughts, to collect our spirits, to prepare ourselves. And I think that's the right thing to do. In fact, I have counseled people to do that because it's, it's going to get, it's going to get crazy quick and it's going to be fast. And then I think, you know, some of the cabinets, nominees that have been announced, like all of this has suggested that, wow, this is going to be crazy town in ways that it was not even in 2016. So I want to be charitable about that. At the same time, one of the things I think is troubling about what I'm hearing is, well, he won. And I, I, you know, there are certain things in a democracy that are not subject to plebiscite. Right. The rule of law is one of them. You know, if, if everyone votes against the rule of law, do we just not have it? Just. I don't, you know, it's, it's kind of like, so I've, I've often been, you know, just kind of wrestling with this, you know, as people see the outcome of the election. I say, well, this is what the American people say they wanted and of course, that's not necessarily true. We all understand misinformation, disinformation, people believing things that are not true, people not being aware because of our information, wormholes of information that they should have known because of lies, because we know all of that is true. And that's all gonna shake out, I think, over the next few years, of what did people think they were voting for? But that's not really the point. If you conducted a plebiscite in 1954, probably the majority of Americans would not have voted to end segregation. In 1967 would not have voted in favor of interracial marriage. These are not things that. Well, that's what the people want, is the answer. And I think we have a difficulty in our country because so much of our public narrative and discussion, including among lawyers and in our profession, is framed in partisan context. And so people think it's just like, well, if you are on this side, then it's this, and if you're on that side, then it's that. And see both sides. This is what I was railing against in 2016 and 2018 and 2020. And again, it's like, do we understand what are the core irreducible principles that hold us together as lawyers and as a profession? And to the extent we don't, this leads to the unraveling and the timidity that you were referring to, because if you believe in the rule of law, then it hardly matters which side. It's that there are some things that are just unconscionable to get back to the Supreme Court. Again, it's one of the things that I just don't understand about, you know, the criticisms of the Court. Do people think it's okay for people to give millions of dollars in gifts to Supreme Court justices and have them not be reported? I mean, what does that have to do with a partisan? If that were true of Justice Kagan, I would think it was wrong. I mean, I don't understand how that's a partisan issue, except that it seems to be the Republican appointed justices who have most likely been the recipients. Like, what's going on? And this is where our profession fails. I'm very happy to sit on this ABA Committee co chaired by Jeh Johnson and Judge Ludig on democracy. Right. Because I do think that it's so important for our profession to grab hold of core principles of democracy that are not defined in partisan terms and to believe that there are principles that are not defined in partisan terms. And one of the reasons I like law is because I always believed that I had the fair shot because the rules were supposed to be the same for both sides. And if you just tell me what the rules are, then I'm going to work the rules and I'm going to make my case. And then I cannot get in chambers with the judge and make the judge decide my way. But what I can do in open court is present my case in such a way. What I can do is write my briefs in such a way that when the judge takes them back into chambers, that I have the best shot at that case, at winning that case. And these are the irreducible principles that we should be fighting for. And I just think that we apparently are not ready in our profession for that hearty discussion. And that Federalist Society panel was an example for me, where you had a federal judge who is speaking in a way that was completely intemperate, a kind of poorly sourced argument against someone who I think everyone recognizes as a responsible scholar, you know, in a room full of people who's kind of attacking him with the recognition that he cannot respond in kind. Why? Because one of the irreducible principles is how we talk to judges. Right. Is that I'm not going to, you know, drag, first of all, Steve Baladek wouldn't, but I'm not going to drag a federal judge, you know, a federal appellate judge at a legal conference. So I just think part of what I saw there was just like that was so over the line. And our conservative colleagues should have lined up to say that as well. Right. And I've heard conservative colleagues say that she didn't do a great job of making the case, you know, which is true, but that's very different than saying that was completely unacceptable and over the line. So I think part of what we're facing, Dalia, as we recover from the body blows of the next few months, is how to engage with our colleagues around what is appropriate and what is not, what is right and what is wrong. What is your obligation as a lawyer and what is not your obligation? What are you allowed to ignore and what are you not allowed to ignore? And I try to remind lawyers that we've had injustice in our profession before, that lawyers and judges did not speak out about out, you know, and we have injustice running through our legal system. I say all the time, you know, every week you open the paper, someone's been released from jail after 20, 30, 40 years for a crime they didn't commit. Like, we got a lot of problems in our legal system. So we're standing up on some soapbox saying that we don't have any obligation to say anything is to me just a non starter. So we know all of that is true. That is within the context of our unhealthy democracy. But to the extent we have real fresh threats to the remnants of the democracy, that we do have the idea that lawyers are going to play no role or that we're going to figure out how to profit from this chaos I think is very, very frightening. And so I think we have to push. That's why I think we have to be talking and we have to set a standard. And our colleagues have to understand what we expect of them. Our colleagues in this profession have to understand what we expect of them.
- [43:00]
Dahlia Lithwick
We're going to take a short break. What makes a great pair of glasses at Warby Parker? It's all the invisible extras without the extra cost. Their designer quality frames start at $95 including prescription lenses plus scratch resistant, smudge resistant and anti reflective coatings and UV protection and free adjustments for life. To find your next pair of glasses, sunglasses or contact lenses, or to find the Warby Parker store nearest you, head over to warbyparker.com that's warbyparker.com I'm Leon.
- [43:34]
Roy Wood Jr.
Nayfak and I'm the host of Slow Burn Watergate. Before I started working on this show, everything I knew about Watergate came from the movie all the President's Magic. Do you remember how it ends? Woodward and Bernstein are sitting at their typewriters clacking away. And then there's this rapid montage of newspaper stories about campaign aides and White House officials getting convicted of crimes, about audio tapes coming out that prove Nixon's involvement in the COVID up. The last story we see is Nixon resigns. It takes a little over a minute in the movie. In real life, it took about two years.
- [44:07]
Sherrilyn Ifill
Five men were arrested, arrested early Saturday while trying to install eavesdropping equipment. It's known as the Watergate Incident.
- [44:14]
Roy Wood Jr.
What was it like to experience those two years in real time? What were people thinking and feeling as the break in at Democratic Party headquarters went from a weird little caper to a constitutional crisis that brought down the President? The downfall of Richard Nixon was stranger, wilder and more exciting than you can imagine. Over the course of eight episodes, this show is going to capture what it was like like to live through the greatest political scandal of the 20th century. With today's headlines once again full of corruption, collusion and dirty tricks, it's time for another look at the gate that started it all. Subscribe to Slow Burn now, wherever you get your podcasts.
- [44:52]
Dahlia Lithwick
And we are back with Sherilyn Ifill. I feel like as we're sort of rounding third on our irreducible principles, I also think one of the places you always take us back to, and I'm gonna ask you to do it again, is facts. Because it's not just the primacy of the rules, it's the facts. And one of the refrains that we cite to constantly is the Sherrilyn Ifill rule that says, is this how we practice law now? I mean, this is the thing that you keep raising. And I think facts are a place as much as rules, as much as the conduct that everything felt like it started sliding away when facts became preferences, negotiable, debatable. And I would just love for you to give a quick, quick precis of a really strong piece you actually posted in Slate recently about Justice Alito and the ways that he was using and distorting the factual record in the gender affirming care case. It was just heard at the court because until you wrote it, I confess, I listened to arguments, didn't quite catch the degree to which that's just become standard operating procedure for him.
- [46:15]
Sherrilyn Ifill
Yeah, it's really disturbing. So again, you know, I always say I love procedure because the rules are protection or can be protection. And you know as well as I do, you know that we have a system where you move up and down the ladder, right? You start out in your trial court, you go to your court of appeals, you maybe go to the Supreme Court, and there are rules that bind the scope of conduct and responsibility of judges at each of those levels. Right. And that the trial judge is where you make the factual arguments and the court makes factual findings. And that's kind of, you know, especially for civil rights litigators who are bringing cases that are often disfavored, not believed. Right? We have to actually prove our case. So that's why trials are so important to us, right? We have the chance to actually prove that this thing that our clients experienced, that they said happened, happened. And we put forth the witnesses and we put forth the documents, we put forth the photographs and the testimony and everything to prove that that's true. A judge trial judge then issues findings of fact and conclusions of law. And when the case gets to the court of appeals, the court of appeals doesn't have to defer to the trial court on the law because the court of appeals judges are perceived as knowing the law better than trial court judges. But on Fact they have to defer because the trial judge was there. And that's their expertise, is hearing facts and sifting the evidence and judging the credibility of witnesses. And of course, when the case gets to the Supreme Court, it comes with the record. The record is the trial court record, right. And of course, the appellate court decision and briefs and so on and so forth. But the Supreme Court is not a trial court. It is not a court that receives factual information. It is bound by the record that was created below. And so in the Scremetti case, the gender affirming care case, when Solicitor General Elizabeth Prelogger is arguing against the Tennessee law that would ban gender affirming care, Justice Alito starts now, I'm not seeing the argument. I was not there in the courtroom, so I can't tell if he's shuffling, but it sounds like he's shuffling papers, like he's got, he's got some things he's going through. And he starts referring to reports, the cast report and other reports that have been issued in Great Britain, and I think Sweden was one of the other countries. And he talks about Great Britain recently having decided to pause all gender affirming care for minors. And Elizabeth Prelogar responds beautifully and excellently, as she always does, and points out several times that these reports recently came out, came out after the trial. They were not before the trial judge. They're not part of the record. We cannot introduce factual evidence in Supreme Court oral argument. But Alito persists and almost suggests that she has engaged in some sleight of hand in her brief by not including these reports when they were not part of the record in the case. And of course, as an aside, it's of course ironic to hear Justice Alito pouring through this information from Europe when he has been one of the stalwarts who believe that we have really nothing to learn from foreign jurisdictions when we decide cases in our courts. But in any case, he's violating a principle right, which is that we cannot introduce new factual evidence. You're bound by the factual record that was before the trial judge. That is the basis upon which the trial judge made the decision. He wasn't asking, should we remand this case case to the trial judge so that the trial judge can now receive this information from foreign experiences? He's asking her, right, what should we do now that Britain has decided this right. And that this report came out in England and in Sweden? And again, is this how we litigate now? Is this what we're doing, is that we can bring factual Evidence that was never introduced below to the Supreme Court and have the Supreme Court use it as part of their decision making and have them press you at the lectern about evidence that never appeared in the court below. And this is not the first time it's happened. It's happened in other cases as well. But we should note it once again, this is not a partisan issue. This is not whether you are for gender affirming care for minors or against gender affirming care for minors. It is whether you are forced the principles that we all learned in law school and that we are still teaching in law school, which is that the trial court is the finder of fact and that factual evidence cannot be introduced in the court of Appeals or, God forbid, in the United States Supreme Court. And yet I did not hear my colleagues in the profession saying, hey, that crosses a line. That's not in the case. And you cannot expect justices or the Solicitor General on the fly to bat back and forth about an unvetted report that has not been reviewed, that has not been authenticated, that has not been subject to cross examination by expert witnesses and so forth. But that's what happened. And it was almost like the argument was only about gender affirming care, and it was about gender affirming care. But it was also about this other thing, which is like, when it's not going your way, do you get to just ad hoc bring in stuff at the highest level and treat it as though it is on par and on level with the findings made by child court judges? And I've been saying for some time, I wonder, where's the district court rebellion? I think district courts have been stepped all over by the Supreme Court by the willingness to ignore the factual record, to distort the factual record, you know, to say in the Bremerton case, these prayers, these private prayers that the coach was apparently engaging in far away from the crowd, when we have this picture of the prayer happening right in the middle of the field, the kind of ignoring of the record in the affirmative action cases, Trial judges have to mark off weeks in their schedules to litigate many of these very complicated cases and then issue these 100 plus page findings of fact and conclusions of law. And when the Supreme Court just treats it like it's, you know, they can do, quote, unquote, their own research, I would just assume that it would be creating some feelings of concern among district court judges.
- [52:42]
Dahlia Lithwick
Yeah, it goes to what judges can do. What we talked about earlier, which, by.
- [52:49]
Sherrilyn Ifill
The way, is the end of Chief Justice Roberts report. I'm gonna say the exact line. He says, we judges must stay in our assigned areas of responsibility and do our level best to handle those responsibilities fairly well. Your assigned level as an appellate judge is not to introduce new factual information that you just happen to read at oral argument.
- [53:11]
Dahlia Lithwick
Correct. And your assigned level as a district court judge is to fight for the facts as you found them. Can we end with Pauli Murray for one quick moment? Because I know that you feel about Pauli Murray poems the way I feel. And right after the election, in your substack, you lifted up civil rights activist and poet and architect of the world we live in. Pauli Murray, you lifted up a poem from 1939 called to the Oppressors, and you quoted we shall endure to steal your senses in that lonely twilight of your winter's grief. It was such a powerful sub stack, Sherrilyn, and it was clearly, you know, we have been here before. We know what to do. You advocated, I think you offered such guidance in that moment. And here we are a couple weeks later about, you know, give money to homeless shelters and teach your children to write incursive. But I would love just to close on what I think was your overarching message, which is, and so many threads of that have been woven into this conversation, which is that we don't give up and we keep records and we learn to be active bystanders and we don't let other people tell us that we're losing or that we're breaking the system. We demand of our local officials that they do their jobs. And I just wonder if here we are really, I think, on the brink of something that could be unthinkably horrible compared to what we've been through in our lifetimes, yours and mine. And I just wonder what you are telling listeners who are, as you say, the victims of body blows. A little bruised, a little numb, a little tempted, just Netflix or Screensave for the next couple of years. What are you telling people that this work of showing up for the rule of law is going to look like for the next week and the next month and the next couple of years?
- [55:30]
Sherrilyn Ifill
What sustains me is recognizing the work of lawyers who were litigating in a place and time that looked as bad as what we are facing. And that's why I repeat and think it's important for people to remember that in this country we do have experience with authoritarian regimes because that is what existed in the American south for the first half of the 20th century. And we weren't doing nothing. You know, it wasn't as though there was Plessy versus Ferguson in 1896 and then there was Brown in 1954. That's not what happened. What happened is that people were planting in that period. And that's why I refer to this as planting time. We want to live in the harvest. We all do. Because for many of us, our lives were made possible by the harvest that we received from those who planted before us, who opened the doors for women, who opened doors for black people, who opened doors for disabled people, who created conditions that allowed us to attend universities, we attend, marry who we married, live where we live. Those things might not have been possible for many of us due to race, gender, socioeconomic status prior to the second half of the 20th century. And because we grew up in that period, only know that we think it's always supposed to be harvest. We think it's only supposed to be great stuff happening. And we keep moving forward. And maybe we're the first generation who believes that life is the harvest. But those who came before, who lived in planting times, know that it's different. And so I spend a lot of time looking at what people were doing in the first half of the 20th century, when people were doing the things that produced the conditions that allowed for the incredibly dynamic, powerful democracy push of the civil rights movement and the women's movement and so forth that made our lives possible. And what they were doing is they were showing up and they were litigating and they were fighting. They were creating organized local groups to put together challenges. They were creating conditions for the protection of people and to help the material condition of people who needed it. And they were sowing all of that into a system that was unfair, that was often brutal, that was violent, in which there were consequences for what they did. But, boy, what they did, what we experienced, would not have been possible without the planting of those people. And so I refer people to that period. For whatever you're interested in, if you're interested in the women's movement, if you're interested in the civil rights movement, or you're interested in racial discrimination, if you're interested in the explosion of democracy and even of our profession, if we think about. About right to counsel and all the things that happen that we take for granted as part of our profession. The seeds were planted by those who were doing the work in that period. What Charles Hamilton Houston was doing in the 1930s and Thurgood Marshall was doing in the 1930s. The challenges they were making around jury discrimination and the challenges they were making around segregation and what they were enduring in the courthouse in terms of segregation, what people were doing in building up the first black labor union, the sleeping car porters, the men who rode the rails and carried information back and forth as a result, would often have black newspapers with them. So people in the south would learn what was going on when their dads came back home. And those men and women, the women's auxiliary of the sleeping car porters, if you talk to many and look at the history of many of the civil rights leaders that you know of, of from the 60s, those were their parents and their grandparents, right? And they were able to raise their children because of those jobs and because of that labor union and the fraternities and the sororities. So I think it's important to do, get involved in your local groups and your civic groups to do the work where you can for lawyers to continue to show up and set a standard, to make a record. You know, I'm able to study that period because people made records, because they made records. And you can review those records and you can see what happened. They wrote letters, you know, I have a book of letters that Thurgood Marshall wrote that, like, blow my mind, you know, of just, like, what was going on. And we need to do that. You know, we need to be printing things down from the Internet. Have you noticed how little you can find on Google? You know, stories you know, you read? At some point you thought you'd go back to it, and suddenly you can't find it. You know, we have a job to do because it's not just all about us. It's about the future that we want to create in this country. And I wish that we could be in the harvest period, but I fear that that is not for us at this moment. And lastly, I would say, because I don't believe that this period will last forever, that we are ill prepared for creating the democracy that we want, want. And that's what this period is about. This is an intense period of study where we should be trying things out. As you know, president biden was successful in nominating many and having confirmed many judges on our federal courts. Well, what are we serving up to them? Do we have any new theories or ideas? What are they supposed to do? What are they supposed to do but sit in those positions? Unless we provide them with something that allows them to see the law another way, with fresh arguments, with new theories and perspectives, with compelling cases. Those of us who championed and even fought for the appointment of new judges from different backgrounds to the bench. We owe it to them to give them something to work with and so to check out now, it seems to me it's just completely unacceptable trouble. We've got to lay the foundation for that democracy that we want to create and that I believe will be created. And I'm as frustrated as the next guy that it's not right now. But it doesn't mean that we don't have a very important and powerful job to do. And future generations will not look back kindly on us. If we decided to pack up our marbles and go home and watch Netflix, we can do that, too. We can relax when we have to. We have to, to hold our mental health and our physical health and our joy, our capacity for joy. But we do have work to do. We have to do it.
- [62:27]
Dahlia Lithwick
Sherrilyn Ifill is the inaugural Vernon E. Jordan Jr. Esq. Endowed Chair in Civil Rights at Howard University. Before that, she served as the seventh president and director counsel of the NAACP Legal Defense and Educational Fund. And if there is planting to be done, Sherilyn, there is absolutely nobody I want to be in the planting with more than you. I'm so grateful today and all days this year and all years for the light you shine on what really feels like it will be a challenging road ahead. But it's the road. We have to be on it. Thank you so much.
- [63:07]
Sherrilyn Ifill
Thank you, Dalia Foreign.
- [63:13]
Dahlia Lithwick
That'S all for this episode. Thank you so much for listening in. And thank you so much for your letters and your questions and your comments. You can keep in touch with us@amicuslate.com or you can find us@facebook.com Amicus Podcast I'm going to head over to the cigar bar that is Amicus Plus. I'm going there right now and I'm going to meet Mark Joseph Stern, my jurisprudence comrade in arms over there. He and I are going to respond to the response to our Dear Jurisprudence segment on the fears of a Trump third term that set off a little bit of a take fest on Blue sky last week. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify, or you can visit slate.com amicusplus to get access wherever you listen. That episode is available for you to listen to right now and we'll see you over there. Sara Burningham is Amicus's senior producer. Our producer is Patrick Fort, Alicia Montgomery is vice president of audio at Slate, Susan Matthews is Slate's executive editor, and Ben Richmond is our senior director of operations. We'll be back with another episode of Amicus next week.