Amicus with Dahlia Lithwick | “#MeToo in the Courts”

Episode Date: December 23, 2017
Host: Dahlia Lithwick
Guests: Heidi Bond, Emily Murphy, Leah Litman, and Mark Joseph Stern

Episode Overview

This episode explores the impact of the #MeToo movement within the U.S. legal profession, focusing specifically on the judiciary and the culture of judicial clerkships. In the wake of allegations against Judge Alex Kozinski, Dahlia Lithwick hosts in-depth conversations with three legal professionals—Heidi Bond, Emily Murphy, and Leah Litman—who share experiences, analyze systemic flaws, and discuss reforms. The episode also reviews significant Supreme Court developments of 2017 and previews the year ahead with journalist Mark Joseph Stern.

Key Discussion Points & Insights

1. The Culture and Power Dynamics of Judicial Clerkships

[03:06–10:40] Dahlia Lithwick & Heidi Bond

• Unique Structure of Clerkships:
  Heidi Bond draws parallels between judicial clerkships and academic apprenticeship models, emphasizing the intense dependency and power imbalance inherent in the relationship.
  “When you have a judge and the clerk, the clerks assist the judge in researching the cases that come before them, writing bench memos... Clerks function as sort of additional hands, bodies, minds for the judge to assist them in their duties.” (Heidi Bond, [03:35])

• Feeder Judges and Career Trajectories:
  Discussion of “feeder judges,” who routinely place clerks at the Supreme Court, and the rigorous, career-defining nature of these positions.
  “The Supreme Court clerkship, that's the golden ticket in our world, right?” (Dahlia Lithwick, [07:11])

• Clerkship Pressures and Risk Aversion:
  Heidi Bond describes risk aversion among lawyers and how leaving the traditional path is rare but can lead to personal fulfillment:
  “Lawyers are so risk averse that stepping off the path is terrifying. And then each of the folks I've talked to has said, oh no, my life is vastly better now.” (Dahlia Lithwick, [09:46])

2. Structural Barriers to Reporting Harassment

[10:40–14:49] Heidi Bond

• Lack of Safe, Graduated Reporting Procedures:
  Bond details the absence of effective structures for clerks to report harassment, noting that current complaint mechanisms are "nuclear options" that can put a young lawyer’s entire career in jeopardy. “The only procedure that's available now is to hire some sort of a misconduct hearing...most clerks would find it almost impossible to do so.” (Heidi Bond, [10:40])

  • Suggests introducing graduated responses, more transparency (e.g., attrition statistics per judge), and better support at law schools.

• On the Power of ‘No’:
  “You have leverage...all the arguments about why clerkships are good for your career are also arguments about why they can be bad for your career. And you should really consider whether you might not be better off saying, okay, well, I'm going to go work somewhere for a year and then apply for clerkships again... It is okay to not do everything in the exact perfect Order that people say.” (Heidi Bond, [13:34])

3. Confidentiality as Both Necessity and Weapon

[14:24–16:31]

• Bond notes that clerk confidentiality agreements exist for sound reasons (e.g., preserving judicial integrity), but are too easily weaponized against victims of harassment.
• “If somebody says, well, this confidentiality rule means that I can do whatever I want to you in chambers, and you can never speak about it, that's clearly not right either.” (Heidi Bond, [14:49])
• Recommends explicitly excluding harassment from confidentiality rules—a change made to the Law Clerk Handbook in December 2017.

4. Prospects for Change in the Judiciary

[16:31–19:31]

• Federal Judicial Center updated the Law Clerk Handbook to encourage reporting of harassment.
• Chief Justice Roberts called for a review of judicial employee protections.
• Bond is cautiously optimistic:
  “I hope that people were able to see that we have a process problem here and not just an outcome problem. I hope that people understand that...it is just unfathomable that there is only one person who is engaged in behavior that's inappropriate.” (Heidi Bond, [17:35])

5. Coming Forward: Risks, Support & the Anita Hill Comparison

[20:09–26:34] Emily Murphy & Leah Litman

• Both Murphy and Litman explain why they felt able to speak publicly, acknowledging the insulating effect of their academic positions and the critical support of mentors and institutions.

  • “I am now part of a faculty. I am not practicing law...and to that extent feel somewhat insulated from potential for retaliation.” (Emily Murphy, [21:17])
  • “I was fortunate in coming second in that I did not have to be the first person to put my name on an allegation of sexual harassment...it was easier in a lot of ways for me because of what Emily and Heidi Bond had done. And you too, Dalia.” (Leah Litman, [22:13])

• Comparing #MeToo with Anita Hill’s 1991 experience, the panel reflects on what has and hasn’t changed:

  • Greater support due to increased (though insufficient) female leadership roles.
  • Persistent lack of “parity” and systemic inequalities.

6. Meritocracy Myths and Systemic Inequality in Law

[26:34–33:11]

• Murphy describes the “boys club” and the upbringing of women to be complicit in toxic meritocracy: “That is actually still meritocracy and you can hang, you can be tough with the guys. And, you know, it's been a personal reckoning to realize that that's not true.” (Emily Murphy, [26:34])

• Litman speaks to the collective action problem: incidents in isolation don’t seem severe, which discourages reporting—allowing the problem to persist systemically. “But I also think another part of the problem is it's a collective action problem...everyone is okay making it someone else's problem. But I think that's not an acceptable solution...it is all of our problem.” (Leah Litman, [31:53])

7. Real or Cosmetic Reform?

[33:11–36:26]

• Discussing recent reforms (handbook amendments, Chief Justice’s review, open letters), Litman notes that positive steps often result from grassroots efforts by affected women, risking superficial solutions unless men in positions of power also take responsibility. “We run the risk of not doing enough...so long as we leave it to the group of people who have been most burdened by harassment to...drive the solutions.” (Leah Litman, [33:58])

8. Addressing the “Pence Rule” and Redistributing Responsibility

[36:26–41:55]

• Murphy and Litman warn against men responding to #MeToo by simply avoiding or excluding women (the “Pence Rule”), arguing that men must instead reflect and change behaviors, and share the burden of reform. “You now must bear the burden of thinking about what you say or how you present yourself...that burden is fair to redistribute because women have been doing that in the professional workplace forever.” (Emily Murphy, [36:47]) “It is men who have benefited from a system that has been weighted toward them...they should think about whether what they are saying or doing is making it more difficult for women to do their work...” (Leah Litman, [39:18])

• Both mention the importance of male allies in validating women’s experiences and shifting the conversation's legitimacy.

9. Is #MeToo a Satisfactory Process?

[41:55–47:40]

• The #MeToo movement is described as a “second-best process”—an imperfect but effective means of accountability in the absence of reliable institutional remedies. “MeToo is a process. It's a partial and incomplete process.” (Leah Litman, [44:12])
  • Both warn that media attention and cultural change are necessary to spark institutional reform, but due process cannot be neglected.

Memorable Quotes & Moments

• On the Power Imbalance:
  “The graduate advisor pays your salary, determines what you work on, decides if you can publish a paper, decides if you can graduate. And there are similarly abusive stories...”
  —Heidi Bond, [03:35]

• On Breaking from the Clerkship Path:
  “Lawyers are so risk averse that stepping off the path is terrifying. And then each of the folks I've talked to has said, oh no, my life is vastly better now.”
  —Dahlia Lithwick, [09:46]

• On Confidentiality as a Weapon:
  “If somebody says, well, this confidentiality rule means that I can do whatever I want to you in chambers, and you can never speak about it, that's clearly not right either.”
  —Heidi Bond, [14:49]

• On Structural Solutions:
  “You have leverage... It is okay to say no. And if people tell you it's not okay to say no, I would question whether those people had your best interests at heart.”
  —Heidi Bond, [13:34]

• On the Importance of Male Allies:
  “When men step in...the conversation is taken in a new, more positive direction. It is much more hard to dismiss women's concerns when a man or two is willing to validate them.”
  —Leah Litman, [39:18]

• On Collective Action:
  “It's a collective action problem. Some of these incidents in isolation might not seem...worth raising a fuss about. But I think that's not an acceptable solution...it is all of our problem.”
  —Leah Litman, [31:53]

Timestamps for Key Segments

• Start & Introduction: [00:15]
• Discussion of Clerkship Culture & Feeder Judges: [03:06–10:40]
• Structural Barriers & Procedural Gaps: [10:40–14:49]
• Confidentiality as a Double-Edged Sword: [14:24–16:31]
• Recent Policy Changes & Prospects for Reform: [16:31–19:31]
• Guests on Coming Forward & Risks: [20:09–26:34]
• Meritocracy Myths/Collective Action: [26:34–33:11]
• Real or Cosmetic Reform: [33:11–36:26]
• “Pence Rule” & Male Responsibility: [36:26–41:55]
• Is #MeToo a Process? Due Process vs. Culture: [41:55–47:40]

Supreme Court & Legal Developments: 2017 & Beyond

With Mark Joseph Stern
[49:16–61:54]

• Review of major 2017 SCOTUS decisions: Trinity Lutheran (church/state funding), free speech cases, Trump-era abortion access restrictions, and the growing tension between religious freedom and civil rights.
• Preview of 2018: Focuses on gerrymandering cases, continued litigation over abortion and transgender rights, and anticipated Supreme Court decisions that may radically restrict the power of public sector unions (Janus case).
• Reasons for cautious optimism: Potential for the court to address extreme partisan gerrymandering and restore some balance to U.S. democracy.

Conclusion

This episode weaves personal experiences with hard legal analysis, highlighting not only the failings of the court system to protect its most vulnerable but also the way forward—requiring not only new procedures but a deep cultural shift. All speakers agree: real change depends on broad-based involvement, sustained attention, and a willingness to challenge both formal structures and informal power arrangements within the law.