Sherrilyn Ifill (5:36)

Thank you, Dalia. I'm thrilled to be here always.

Dahlia Lithwick (5:39)

And I thought we could just start where you started in this newest substack. Is it too late? You talk about the Supreme Court, Texas gerrymanders, the cert grant on birthright citizenship, Trump's racist screed against Somali Americans, which I guess is amplified by a racist speech in Pennsylvan. And this is all performed, of course, in the key of racial hate. And you add to that the news that the Park Service has ended the practice of free admission to national parks on Martin Luther King Day on Juneteenth. But what added it June 14, President Trump's birthday, and Flag Day for free admission instead. One of the things I think we just struggle with every week on this show is the centrifugal forces of forest versus trees every week. And we try to understand the particulars of all these little things happening without losing sight of the big picture. Sometimes we succeed at that, sometimes we just don't. Your piece, I think, succeeded profoundly because of the focus on all of the things I just listed is an assault on the 14th Amendment. It's just really clear. And I think I wanted to start by asking you, and this both is just too elementary a question, but also it's thing. Why. Why is the 14th the thing around which everything else hinges?

Sherrilyn Ifill (7:08)

Yeah, you know, I was hesitating on whether I should frame it in that way because I thought, you know, oh, she, you know, runs a 14th amendment center. So, of course, you know, to a. To a hammer, everything's a nail. Right. But, you know, at the end of the day, I just don't. I'm not going to hide the ball anymore. And I think we are undercutting ourselves by making decisions about the sophistication of readers and listeners and ordinary Americans to understand the project that's unfolding. And so I think that far too many engage with the bits and pieces and not with the larger project. And the larger project is a very long project. The 14th Amendment essentially is the reset of this country after the Civil War. It is where the concept of equality shows up for the first time in our Constitution. It is the place where birthright citizenship is enshrined. It is the beginning of the possibility of multiracial democracy in this country. And it was intentionally created by the framers of the 14th Amendment, which includes those who were sitting in the room drafting, but also the many abolitionists and others who influenced them over the years to do this precise project and to give it constitutional dimension. Remember that the radical Republicans in Congress had attempted to do it statutorily. They had passed the Civil Rights act of 1866, which did a lot of things that the 14th Amendment does. It had a birthright citizenship provision. It had a provision that ensured that black people could make contracts and sit on juries and contract and lease and rent and so on and so forth. All the things they thought made up citizenship. They tried to kind of parse it out and put it in this statute. And of course, the statute was vetoed by Andrew Johnson, who was President Lincoln's vice president and then successor after Lincoln's assassination. And that made it clear to them that this was not something they could leave to chance. They couldn't leave it to the possibility that a president, for example, would decide that he didn't want this anymore or that successive Congresses might decide they didn't want it anymore. They decided, therefore, that it had to be enshrined in the Constitution. And the problem we have talking about it today is because there's been so little knowledge and education about this refounding of our country. I get in these, you know, fights about, you know, racial discrimination and equality and civil rights and all this stuff. And I just tell people what you're arguing with is the 14th amendment. You're not really arguing with me. You know, you're arguing against this refounding that you probably know nothing about. And so I think that's number one important. Number two, one of the reasons people don't know about it is because, of course, it was hijacked for a hundred years and only revived and resuscitated by the people, right? By the people, by the lawyers at the NAACP Legal Defense Fund, lawyers who had been raised under Jim Crow, who decided to challenge it. And what emerged from that was Brown versus Board of Education and the cases that come after it, and then the civil rights movement, and that was trying to give power to the refounding, to give truth to the 14th Amendment. So when people are resistant, I think, to many of these ideas, and when they hear politicians who are pressing against them, they need to understand what they're pressing against. When you have members of Trump's coterie who vilify the Civil Rights act of 1964, who clearly are trying to create a segregated America, when you have the president denigrating black people in a way that suggests that they are inferior, this is Precisely what the 14th Amendment meant to correct that there would be no tears, no racial caste in our country. So if you don't understand the whole project and its longevity, then it's very hard, I think, for ordinary people to understand the nature of the fight that we're in. And right now, I think it's important for people to understand that, because it's not going to be solved with one this or that thing. Right? And we need to understand the provenance of this resistance so that we can understand that it is real, because it's now so crude, people are noticing it. But frankly, this project has been going on for some time. It's Been deeply embedded in the legal system at the most elite levels. It's been embedded in many positions of the Republican Party and sometimes the Democratic Party.

Dahlia Lithwick (11:40)

Right.

Sherrilyn Ifill (11:41)

So, you know, I just think understanding that project and seeing it in the scope is not to disempower people, make people feel like it's too big to fail. It's that I think we have to demand more of ordinary Americans to understand the scope of and the nature of what we're fighting against and the struggles that have been going on in our country for, you know, over a hundred years and see ourselves as part of that mighty struggle.

Dahlia Lithwick (12:05)

What you're saying is really a useful jumping off point because we did a show just a couple weeks ago with Jed Purdy and David Posen about this really great piece that they had trying to name what this thing is. And I think what they said is a lot of people who are worried about what's happening to the rule of law right now get caught between, you know, either this is an authoritarian coup. Nothing like this has ever been attempted. You know, this is Viktor Orban, this is Hungary, or this has ever been thus. You know, the U.S. constitution was always flawed. And now we have those failures failing harder in some sense. And you write this in the piece so pointedly, the 14th Amendment only had a moment to breathe. You know, it really, really only had a moment. And then immediately post Brown, you know, immediately with affirmative action, then just triggers this enormous backlash. And so it's not only it has ever been thus, right? It has always been the way with a couple of great years in there, but it's not something we wrap ourselves in like the first Amendment, as you note in the piece. And it's partly because the ever been thus part of the conversation, the proof text is the 14th Amendment.

Sherrilyn Ifill (13:21)

Well, I think also, Dalia, you know, I've been writing about this recently elsewhere that because we never considered. And when I say we, I just mean our mainstream dialogue and narrative about the civil rights movement or about Brown. Because we failed to talk about the civil rights movement as a democracy movement, which is what it was then. We failed to understand that the resistance to the civil rights movement, right, the closure of schools rather than integrate, the refusal to obey court orders that led to Cooper vs. Aaron, the Little Rock Nine case, right? All of the shenanigans, massive resistance, they weren't hiding, that they were resisting. What was that? That was then an anti democracy movement. And if we understood that that was an anti democracy movement, then we would understand that all the ways that that movement, that movement against equality and voting rights and so forth. If we understood it as an anti democracy movement, then we would understand all the ways in which we have coddled it, all the ways in which it has been accommodated in politics. You know, Ronald Reagan, the patron saint of Republicans, goes to Philadelphia, Mississippi, where civil rights workers Goodman, Cheney and Schwerner's bodies were found in an earthen dam to announce his candidacy for president. And his speech is focused on states rights and abolishing the Department of Education. He's the patron saint of, you know, mainstream Republicans.

Dahlia Lithwick (14:53)

Right.

Sherrilyn Ifill (14:54)

So, like, this has been going on for a while. It has reached its crudest form, and it has someone at their head who is willing to completely clear the tables. And it is now part of a global movement. But the point is we've had our own. The ground had already been softened. The civil rights movement was not like, let's get things for black people. It is the beginning of true democracy in this country. And the resistance to it was an anti democracy movement. And we haven't treated it that way. And so somebody came and gathered the threads of that anti democracy movement and combined it with all this other stuff that is really essential for us to talk about as well. And this is what we have. But perhaps when people say, how could we have unraveled so fast? Well, we have this thing that has been with us and that had not been vanquished and that had not been described appropriately. And that thing was used to expand this anti democracy movement into what we have today. So the question is, is it too late? I don't think so, but I do think that it is late. Not too late, but it is late. And we don't have time to play around with pretending this is something that it's not.

Dahlia Lithwick (16:08)

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Sherrilyn Ifill (19:13)

I think that the First Amendment for many of those people who decided to manipulate it, manipulate the idea of the First Amendment for their own ends. And I say the idea because of course Americans, you know, often speak in constitutional terms, we talk about our First Amendment rights and so forth. But you know, often people are wrong, you know, and the tech pros were like, they effectively said, you know, we have to leave this hateful stuff up on our platform. We have to leave up this voter disinformation because of the First Amendment. And of course the First Amendment is a protection against the government inhibiting your speech, not some guy who owns a platform. He can make whatever rules he wants. Right? But they didn't want to remove these odious posts because that's how they make money, by Clicks and so they instead grasped for the First Amendment and many people followed them right down the rabbit hole that, yes, yes, yes, this is all about First Amendment. And so it was a manipulation. It was a manipulation of the First Amendment, you know, and then there's just been this panic, panic at universities, but this idea of being canceled and so forth. Then we get a president who stands up last week and offers a screed against Somali Americans and says, you know, we don't want them here, they shouldn't be here. He is, you know, using the words of cancellation. You know, the President of the United States wants to cancel a group of people because he's decided they're garbage. This is a huge moment. And as you allude to, people have started to shrug at Trump's racism. But let me just say, to be clear, that the point of the Reconstruction Amendments was that black people would be full citizens, that we would not be seen as second tier citizens whose citizenship lies within the power at the whim of the president. And I think people failed to diagnose that moment. You know, oh, this is all about immigration. He's talking about Somali Americans. He's talking about Somali Americans, many of whom voted for him in Minnesota. He's talking about a Somali American congresswoman, and he's saying, I want them out. And there's no moral panic. Right. I don't see all the members of, you know, the Democratic Caucus in the House, her colleagues coming out to say, this is outrageous, standing on the steps of the Capitol. I don't see this being the subject of news stories, except as though it's just a personal attack and that there's some, like, beef between one congresswoman and the President. The President of the United States explained his desire. I mean, is there any greater cancellation than, you know, someone trying to take your citizenship from you? I don't know. The whole challenge to birthright citizenship is an effort to cancel the citizenship of children who are born here. And he was explicit later in the week about the people he wants to come. Why can't we get people from Norway? Why can't we get people from Sweden? Can the Danish send us a few people? We want white people. That's what he's saying. He has an immigration policy that favors white South Africans. So he is canceling black people or attempting to in real time. And that's not the language of the conversation that we're having. So we went crazy over this idea of the First Amendment. Don't get me started on the Second Amendment. But we get to the 14th Amendment. And there's just kind of, you know, that's black people talking, or that some, you know, a civil rights leader said this or that as opposed to a frontal assault on our Constitution. And this idea of Somehow reading the 14th Amendment out of the Constitution, treating it as though it's some illegitimate add on, is outrageous. As Eric Foner says, it is the most consequential addition to the Constitution since the Bill of Rights.

Dahlia Lithwick (22:57)

And is the answer that for all of those times in your life and my life when we heard, well, this is not who we are, about casual racism and casual sexism, the likes of which, as you said, the mask's off now? I mean, the kinds of language that is not just tolerated but celebrated is the answer, oh, this is exactly who we are, or at least who we've been or who we're comfortable dipping a toe into. I mean, the answer is that this was never fully, as you've suggested, metabolized and cherished part of the fabric. And so it's just extremely easy and at high velocities for the President to just sit there and be like, no, I'm super racist and sexist. And I'm just gonna say the quiet parts loud. And the reaction is muted because it turns out it's kind of always who we've been.

Sherrilyn Ifill (24:01)

I want to backtrack a little bit here, because I think one of the reasons that many of us feel somewhat grief stricken is that I know what lives in the DNA of this country, and certainly white supremacist ideology is part of that, but we'd done something. There was a civil rights movement, and there was a women's rights movement, you know, and there was an LGBTQ rights movement. And part of that movement was the decision about how we spoke to one another. Right. What words were no longer appropriate to say was recognizing and understanding this country from the perspective of different people, understanding you may have grown up using that word, but for LGBTQ people, this is what it means. And so you had to sit in the chair of another kind of American and make decisions in a vast multiracial democracy of 350 million people that we were going to find these ways to live with one another. And for some people, apparently, it was an intolerable burden. It was an intolerable burden to behave in a certain way towards women in the workplace. It was an intolerable burden not to be able to use whatever word you want for black people. It was an intolerable burden not to feel as though you will always be at the head of the line. And I think it had been somewhat contained. But for some people, that burden felt great. And along came. You know, I always call Trump an accelerant. Someone who said, you don't need to twist yourself into pretzels for all of this. You can just be who you are, and who you are is great. And if that means it's sexist, if that means it's racist, if that means you say terrible things, if that means you make clear that you don't care about anybody in this country but your people and people who look like you, that's fine. And so he removed that velvet rope, and there are tens of millions of Americans who are reveling in it. I've said before, Trump invites people to be their very worst self. And what I didn't know was that there were so many Americans who were just waiting for someone to say, yes, it's okay. The reason I pause is because I say we did achieve something. Those things were great achievements of democracy. The recognition, the norms that we established as a way of living together despite our many differences, recognizing our many differences, but finding pathways to live together as Americans in a democracy. I celebrate that, and we should celebrate that. It wasn't something that was strangling people or canceling people. Of course, there are examples where things went too far and you have to tack back, and all of that's true, but it was part of this project. And that's what I think Trump came to wreck, you know, along with the Chris Rufos and all the others and the Stephen Millers. And I think the reason many people feel so terrible is that we had actually achieved something. And by God, we should say that. We should say we were on a track to try and make it better. Doesn't mean we were getting rid of this thing that lives in our DNA. But it does mean we were taking responsibility for containing its worst excesses and for finding a pathway to be a democracy through it.

Dahlia Lithwick (27:27)

And that's your answer to the sort of purdy Posen. Ever been thus? No, it hasn't ever been thus because we have been fighting and building and clawing our way to something better.

Sherrilyn Ifill (27:36)

That's right.

Dahlia Lithwick (27:37)

And so this is a double blow, because a lot was achieved. And it just so happens that we have a lot of justices on the Supreme Court who came up, like, bitterly angry about the way we vote and about affirmative action and about a whole bunch of 14th Amendment based doctrine that was anathema. I wanna talk about the court for a minute, Sherrilyn, because the Other thing I think that you write in the piece that was just like one of those solar plexus moments that I sometimes have when I read you is the creed de cour about the propensity, the very human propensity, especially in crisis, to normalize and rationalize and temporize and to comfort the comfortable and to look for hope in norms and in institutions and in rationality. And I think that one of the things that you're trying to say is we just have this perpetual hope that something's going to come along and it's going to go back to 2010 or 2012, and that with enough time and even if it's pinching, someone else is going to come along, some institution is going to come along and, you know, put us in the DeLorean and we're going to go back. Because that's normal and rational, right? That is the world that we can't imagine ever losing. And I just wonder if you could talk for a minute about the ways in which American exceptionalism and the American normalization bias and the profound. Just to talk about the Supreme Court, American trust in institutions like the Supreme Court get us to the point where it's not that we don't see the fire, we can't even smell the smoke. And I think you are writing in this piece, everybody needs to be on full alert. But you and I both know not only are people not on full alert, I'm not sure what could put them on full alert.

Sherrilyn Ifill (29:32)

Well, I think things are unraveling pretty fast and people will get on full alert. The only question is, when they get on full alert, will it be too late? Right. So that's why I'm saying you might want to do it now. And I've been guilty of this as well, right? Not ringing the alarm bell with sufficient urgency. I think this is something that lawyers do all the time because we're used to finding the little interstices and figuring out how to move within these spaces so that we can get where we wanna go and so that we can make change. And I was trained in that tradition, right, of just, you know, you find a way and you find a pathway. But all of that presumes the legitimacy of the framework, right? I'm not a nihilist. I actually always do have hope. And I think one of the reasons why I feel so clear in this moment is that I have no desire to return to 2010. I have no desire to return to the 80s. I've been a civil rights lawyer for 35 years. The 80s were a nightmare. You know, what are we returning to? I don't have a dream time. You know, people say, oh, I just, you know, when Obama was president, I was like, well, I mean, you know, really? Because, like most of the videos you've seen of police killing unarmed black men, right, was. That was in the second Obama administration. That was Eric Garner, that was Ferguson, that was Walter Scott running in that park. That was all of. You know, we had someone who was trying to work on it, for sure. But in terms of the state of this country, if you've been doing the work that I've been doing, you're always invested in the future. So for me, the way that I have excitement and hope in this time is that as this whole thing begins to unravel is the opportunity to create something new. And this is where the 14th amendment is so helpful for me, because it's one of the biggest moments of creating something new in this country. And so I use it as inspiration, not only as its very words and provisions and guarantees, but also that we have the right and the obligation to refound our country when it goes astray. That's what those young kids in college during the civil rights movement did. They did a version of refounding. So I don't want to suggest that I don't feel hope for the future. I do. I feel quite hopeful. But I do feel that what will interfere with the ability for us to do that reset is pretending that all we need to do is just make some incremental changes to get us back to 2010. Like, if that's what you're thinking. I think what has been laid bare is that that ain't it, that we have some serious structural problems. We have a Supreme Court that is, you know, as a litigator, I don't know how anyone can purport to pretend that they know what the rules are. You know, we have a Supreme Court that not only, you know, has the power to say what the law is, pursuant to Chief Justice John Marshall in Marbury vs Madison, but they've now decided that they have the power to say what the facts are. And that has never been part of. Of our system of adjudication and litigation, assigning factual findings to the Supreme Court. No, that is for trial courts, for district courts. And we are seeing a majority on the Supreme Court that, with regularity, swats away the findings of the district court. That is the power of the district court, because they are closer to the conflict. They can evaluate the credibility of the witnesses. They're Seeing the exhibits, the documents, all of it is playing out in real time. It's not theater, theoretical for them. And now we have a Supreme Court that months later will swat away a two week trial and the findings of fact, over 160 pages by a district court that is real and structural and it should not be dependent on the personnel of the court. So we should be thinking about like what needs to happen. And I, you know, here wanna confess that I was slow on the take also. I just think many of us have been. I sat on that Supreme Court commission last year on, I think it was on MLK Day. I wrote something about like, can we all start admitting, can we begin by admitting where we went wrong? I haven't heard one mainstream media journalist, the ones who insisted that, you know, maybe Trump wasn't racist and the ones who said this is not about racism. Or the ones who said, you know, John Roberts is an institutionalist or Kavanaugh is not going to be so bad or anybody who said any of the things, can anyone stand up, a person of prominence in those fields, can any business person stand up and say, we didn't know that our entire system would be hijacked. We didn't know that we would have to sell away parts of our company to the United States government. We who have said we don't want socialism and stood against all kinds of progressive policies which they claimed was socialism. And now the President can claim 5% of intel for the government and there's not a peep.

Dahlia Lithwick (34:45)

Let's pause now to hear from some of our sponsors. Today's show is brought to you by Vanguard. For all the financial advisors out there, let's talk bonds for a minute. Capturing value in fixed income is not always easy. But Vanguard bonds are institutional quality, which means top grade products. Across the board. Vanguard sets the standard for what dependable investing should look like. Vanguard's Lineup includes over 80 bond funds that are actively managed by a 200 person global team of sector specialists, analysts and traders. Their long standing establishment and scale allows them to invest across all kinds of sectors, maturities and geographies. Which means they can spot and act on opportunities that others might miss. So if you're looking to give your clients consistent results year in and year out, go see the record for yourself@vanguard.com audio that's vanguard.com audio all investing is subject to risk. Vanguard Market Marketing Corporation Distributor.

Sherrilyn Ifill (35:52)

Courage is the new currency in this country. I'm Skye Perryman, President and CEO of Democracy Forward, where our team of lawyers is fighting in court. Every day for you, for your rights and for our democracy. The Trump Vance administration wants us to be exhausted and divided. But when people come together and speak out, courage becomes contagious and that is how change happens. We've already won cases to defend people and communities, all free of charge. But ahead of 2026, we need you beside us. Join the movement@democracyforward.org.

Dahlia Lithwick (36:23)

We are going to head back to my conversation with Sheryl and Ifill about the anti democratic assaults on our laws and our courts and how deeply rooted this is in a project to control alt delete, the second founding in the civil rights era. We're going to do that in a moment. But before we do, Mark Joseph Stern is here for a cameo. Oh my God, you're real. Mark, what's coming up in our amicus bonus segment today?

Sherrilyn Ifill (36:48)

Oh my gosh, Dalia. So much to talk about. First, the unhinged arguments in Trump v. Slaughter, which is a case essentially about whether Trump can fire whoever he wants and really just required the court's so called originalists to jettison text and history in the most flagrant ways. Then we have the campaign finance case that we previewed on the show last week. We'll talk about how those arguments went. Spoiler alert. Predictably. And finally, on Thursday, a judge ordered that Kilmar Abrego Garcia be released from custody immediately. And the government then hatched a new scheme to detain him once again. Will the Trump administration ever accept that they cannot continue to lawlessly hound this man? We'll discuss.

Dahlia Lithwick (37:37)

We will discuss if you would like to join the amicus plusketeers and also support the work that we do. Hop on this special offer that is only running through the end of this year.

Sherrilyn Ifill (37:50)

50% off a year's slate plus subscription.

Dahlia Lithwick (37:53)

Go to slate.com amicusplus and Mark, what's the promo code?

Sherrilyn Ifill (37:58)

Amicus50. That's a M I C U S50. We're also putting these details in the show notes this week.

Dahlia Lithwick (38:06)

And if you join right now, you still have time to get involved with our end of the year members Only episodes.

Sherrilyn Ifill (38:13)

Happy holidays and thank you. Thank you, thank you for your support, truly. We cannot do it without you.

Dahlia Lithwick (38:19)

We mean it, y'. All. We cannot do it without you. Let's return now to my conversation with Sherrilyn Ifill. See you on the other side, Mark.

Sherrilyn Ifill (38:28)

See you there. Dahlia.

Dahlia Lithwick (38:36)

Sherrilyn, it's funny because I feel like you are the person who's been saying for years they're erasing the district court record. If you had a theme song on this show, it's. I don't. What is a. What is a trial lawyer to do? Right. What is a civil rights attorney to do if they're just erasing the findings of facts and making stuff up? But I think you're tilting at something that really is a profound shift this year, and we've been calling it out. But it's not just that they're making up their own facts. It's that a. It's happening on the shadow docket, not showing their work, scolding lower court judges for not applying the invisible ink rules that are, you know, producers on the shadow docket. And then I just have to stop and say, Humphrey's executor this week was a startling and arresting moment for me. When you start to hear. I mean, put aside originalism, that's gone. There's not even a pretense of text in history. But the actual idea that, like. Well, you know, since agencies don't look like they did 100 years ago, I guess we don't have to think about them the same way. I mean, this is. It is so strange to see serious people pretending to be doing serious work in this serious place, and all pretense of intellectual seriousness has fallen away and, you know, again, feelings Ball. Yes. It's just, how does, you know, executive power make me feel today? But deeply, deeply uncommitted to any of the principles that were laid out in which people like you and I as institutionalists took a lot of solace. Right. And so I think that part of what is so challenging about this moment, and again, I think it's running through your piece, is that by the time most Americans get around to the point that they can say the sentence, oh, Amy, Coney Barrett's not gonna save us. Brett Kavanaugh's not gonna save us, it's all going to be too late. I mean, we are so, so committed to the principle that they are originalists, that they are textualists, that they care about precedent. What precedent? It's gone. This is. Now, choose your own ending. Every argument. And I don't know how we make that argument to an America that is still, more or less, Dobbs notwithstanding, committed to the proposition that the U.S. supreme Court is going to save us in the end.

Sherrilyn Ifill (41:09)

The irony of it is, Dalia, that the US Supreme Court got this reputation and the confidence of the American public after Brown. That's why I've said, as much as this court is hollowing out Brown, they'll never overturn It. Because that actually is how they got the reputation, certainly among black people, you know, for many decades, of being the people who are going to come to your rescue, take it all the way to the Supreme Court, you know, until this shift started to happen with the Burger court in the 80s. I think, to answer your question, though, Dalia, the reason I wrote the piece is like, it is a plea to the people who have the biggest microphones to actually help Americans understand the moment that we're in so that we will understand what we have to do. And so what bothers me, therefore, is when journalists, when business leaders, when faith leaders, when everyone who's got a microphone, who is tamping down this moment on the theory that we've been here before, and, you know, even within my own community, like, there is something very sinister that is happening, and it is looped into a global network. And I want people to understand and therefore to understand it. You know, me writing on my sub stack is, you know, whatever, but I just think that it is not enough to counter the headwinds of those who have the greatest platforms, who are still speaking and behaving in a way that suggests that this is something easily solved or this is kind of how it goes, or you can just do this for a couple of years. If you are watching the videos of people being chased by masked figures who claim to be federal agents, but we don't know, and who are kidnapping people and throwing them in vans and doing this to American citizens and holding them, the danger is just there. It is apparent. But the more we treat it as though this is just Trumpism, this is Trump 2.0, you know, and all the little things that we say to tamp down the alarm, I think is really profoundly problematic. And so my plea is to those in the best position to be able to reach people and teach people. And what I say in the piece, Dalian, I feel, you know, compelled to say this because so much of what is happening is about pulling on that thread that exists within the fabric, the foundational fabric of our country of white supremacist ideology that makes people not talk about it even more. The people who have the greatest microphones, frankly, don't know very much about race or racism or the history of. Of it in this country. And they want to be experts, and so they play to their expertise. And these are also the people who have said, we talk about race too much. We talk about identity too much. We're scaring people off with that. You know, everything's not race, and all of the things that they say. So I think that's part of it is like, we've also made it kind of illegitimate to talk about racism. It means it's almost like you're being soft, you're being anti intellectual. You're not doing the rigorous work of politics if you're talking about race, when in fact, race is threaded through every institutional structure of this country and we have someone who is exploiting it every day. It's not that I'm talking about race. It's that he just stood up the other day and said, we want the Danes, the Swedes, you know, and the Norwegians. We don't want people. And now he finally used the words that he claimed he hadn't said in that meeting about shithole countries. He actually used the words the other night, meaning that he did say it in 2018, as Dick Durbin reported out from that meeting. And you had people like Tom Cotton, who was in the meeting, saying, he didn't say it, he did say it. He did say it in 2018. So that's the point, is that we're being told that it's kind of illegitimate to keep talking about race when we're confronting a tsunami of a movement that uses racism as the stalking course. It is the lore that brought so many people in to this movement. So helping people understand that that's the bait they're using. The bait that says, yeah, I'm not sure that those people are qualified. Right. Yeah. All of that stuff that just lives in this country that's being used as the bait for this smash and grab, for this power grab. And I don't think we're doing this country any favors by steering people away from that realization.

Dahlia Lithwick (45:48)

So, ultimately, Sherrilyn, your take in this week's substack and so often when you and I talk is like, yeah, we're kind of a little late. And also, as you said, it's never too late. It is not too late. And that is a really tricky line to straddle. I've been reading a ton about the French Resistance lately, and that the waking up moment really is the moment when it's not the moment when everybody hates this. Like, we're statistically at the moment where Americans are starting to realize something's really wrong. The waking up moment is when you say, oh, crap, it's on me to do something about it. And there is. And you note this in the piece, and I always feel this is my New Year's gift to listeners that. That your take will always be. There is an enormous quantity of stuff that every single person can and should be doing. And moreover, that if you're sitting around and waiting for Amy Coney Barrett to fix it, like, it really will be too late very soon. And I'd love to just hear a How you sit in that tension on that seam that I've just laid out, because it's very pinchy for me. And then I just want to hear how both as a lawyer and as an advocate and as a teacher, you are telling people what that list of these are the things. These are the things. I know you've written it a hundred times, but tell it to us again.

Sherrilyn Ifill (47:16)

Well, for my students, I teach a 14th Amendment seminar, and I run programming at the center that just tries to teach them about this moment of the refounding. And the whole premise of the course is that we are all founders and framers of the next iteration of American democracy, which is sit in the power seat. Don't see yourself as a bystander to what this democracy is going to be. So that's what I do from my students and try to give them an understanding of the law and how it can be used and how it can be deployed and where its weaknesses are and so forth. For us ordinary civilians who are out here, there are so many things to do. One of the things I said after the election, so I just wanna first acknowledge that this past November's election was huge. And it shows that people get it, they're ready to do things. And of voting is the thing that people feel, I think, most comfortable doing. And that, we understand, is very critical because it is a way of gaining power. And there's no way to overcome this without power. Of course, there are all kinds of power, but there's no way to overcome this without political power. And so what we saw with people coming out in last November's election was incredibly powerful and important. The flipping of seats and so forth was wonderful. So voting, sure. But here's the thing. You know, primary elections are happening in just a few months. And so when people talk about voting, there's a November conversation that disturbs me because it's not a November conversation. Primary elections are in the spring, which means if you're thinking about running for something, you know, your filing deadlines may be now, they may be December 20th, they may be January 15th. So if you're planning to run for something and you can go to that wonderful website of that organization, runforsomething.org, you need to figure out in your community, do I want to Sit on the school board. Do I want to be on this commission or that commission? And if you do get moving, it's time to get moving right now. So that's one. The second thing. I have said this for some time that we are in the lame duck session of many official offices, whether it's your school board or your. So it's great that, you know, there were all these seats that were flipped in the November election, but the old guard is still in office. And this is usually the time when lots of shenanigans happen in the lame duck, where school boards will start passing rules and ordinances because they know they're about to lose power to the newly elected folks. Where county commissions create rules governing zoning or what can happen in their community, where state legislatures create rules and adopt maps and do all kinds of things because they know they're not going to have the same level of power next year. So for those who are not monitoring, right. You know, if you thought, oh, yeah, great, we did the election next year, it's gonna be great, but you're not going to the school board meetings, you're not going to the meetings of the public service commission. You're not going to see this is when they do the shenanigans, right. Right before they leave office. So again, there's always something like right now to be doing, and so we should be doing that as well. Every call for a protest, every call for a boycott, you should be looking out for these things. These are all the tools. You don't have to do every single one. But whatever is the next one, you gotta decide you're gonna do something. And, you know, I heard so many people pooh, poohing the Black Friday boycotts and saying that's not gonna do anything. And, you know, it took wonderful people like civil rights attorney Cliff Albright to remind people, you know, how long the Montgomery bus boycott, it was a year. You know, and I remind people all the time that, you know, the Montgomery bus boycott and Rosa Parks refusing to give up her seat and that whole effort that ended up going to the Supreme Court and so forth was not to lead to the Civil Rights act of 1964. No one was talking about that. They were trying to desegregate the buses in Montgomery. You know, it was like a very targeted thing. And so I just think when people say, you know, what's that gonna do? It's because they want this silver bullet, they want this deus ex machina to come in and solve the whole thing. And that's not going to happen. It's gonna be a million incremental things that we do in our own communities, that we do to raise consciousness that we do to keep one another alive and going. Look at how many people have lost their jobs and are losing their jobs. So if mutual aid is your thing, that's what you need to be doing, right? So there's something to be doing in this process of trying to get ourselves to a place where we can get our land legs. That's when you're talking about November's election where maybe you get the Democrats get the House back so that we have have some check on this runaway power, maybe the Senate, who knows right where we can really then begin the work of like refounding. But that doesn't happen without all these other little steps. And so I just ask people to understand this project is a huge, huge wave that has been a long time in the making and therefore it's gonna take huge sacrifice from each and every one of us to do this work. And we should not allow ourselves, our enthusiasm or our energy, even our alarm, to be tamped down by people telling us that somehow, in the normal course of things, the ship is going to right itself.

Dahlia Lithwick (52:27)

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Sherrilyn Ifill (53:35)

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Dahlia Lithwick (54:12)

Sherlyn, I want to end by asking you to maybe do my homework for me. I've been trying to write a piece all week about the gains that feel invisible because we don't know what winning feels like anymore. And I think that there are a lot of places where, you know, the court has changed the rules, right? And the rules of evidence have changed, as you noted, findings of fact have changed. All the things you have taught me over the years about what it is to be a civil rights attorney in a civil rights case and what winning looks like. And I keep thinking about the fact that when we throw up our hands and say we're losing, we're not losing. They're just moving the goalpost and changing the rules. And that becomes its own muscle, right? It gets easier and easier to change the rules if people haven't yet, as you noted, quite caught up to the fact that we're not losing. They're losing. It's just that we have very structured ideas about what a win feels like, particularly in the long term. And so I'm trying to think about how to frame this idea that in some sense, the more of the Halligan stuff and the Haba stuff and the failing to indict Tish James a second time, I mean, this is all emblematic of losing. And I think that the problem is we take that to the nihilism bank, right? We take it to the, like, lol, nothing matters bank. And I think what you're trying to say is we're not losing like they're losing. It's just that the rules keep changing. And we have to somehow understand that the rules that we grew up with, in terms of how we think about voting and how we think about law and how we think about success and progress, those rules have been set aside. And I, I. You always remind me, this is planting season. This is not the time to think about winning the way we used to think about winning, right? We're not gonna win at the court for a long time. But what do you. When it feels like we keep losing, nothing matters. They're just gonna rig the next election.

Sherrilyn Ifill (56:30)

You know, the shift is already happening. Dalia, I'll give you a very concrete way to think about it. You and I were just talking about the power of the Supreme Court, the reputation of the Supreme Court, the desire of people to have, you know, the court, you know, change its ways and suddenly see the light and recognize that they are, are hastening the end of democracy and so on and so forth. And people always say to me, the courts are not the answer because, you know, the Supreme Court is clearly on the Trump train. And I always say there are thousands of courts. You've been trained to think that you only have to pay attention to the Supreme Court. And even in these cases where they're like countermanding the district courts and so forth, I think one of the greatest things to have happened over the last few years is the strengthening and the muscularity of these district courts, because it matters. For all the reasons that I have said in the past, the district courts do do fact finding and the facts don't disappear. Right. We actually know, right? Because we've, you know, it's take for example, the January 6th folks who were convicted of violent offenses. Trump pardoned them. Doesn't mean that we didn't see what happened and that they were not duly convicted of what they did. And so there's a way in which I think fundamentally our brains are shifting. Like the power that the Supreme Court had over our imagination has actually been kind of destroyed. I think we know the names of district court judges that people wouldn't even know who was thinking about these judges before. And now people can see the work that they're doing, can see how courageous they have been, can see how insistent they have been on the rule of law. That young man who was flown to Sicat, you know, Kilmar Abregu, and the work of the court in making the Justice Department come in, making them bring him back, making them not send him away again, just making them explain themselves. All of this that we have seen, we know all of this because of the work of courts. And so for me, there's winning and there's winning. Yeah, there's the ultimate win when it gets to the Supreme Court. But the Supreme Court is being weakened by the fact that these other courts are actually showing what it looks like to stand by the rule of law and to make the Department of Justice stand by the rule of law, no matter who the president is. And these judges are the ones catching the threat right to their lives. And they are standing flat footed, 10 toes down, doing their job. That's just an example of how, like, winning in law for people like you and me is always about, like, the Supreme Court. But like, as I've said, I always feel like if I win at the district court, like, that is incredibly powerful because that means that record has been affirmed. And I think the Supreme Court knows that too. That's why they're trying to wipe out the work of district courts, because they know how powerful it is. You can't change that. That's the reality. So I think thinking about winning is a little bit different. All of these cases that we see, you know, the Letitia James and so forth, these are important wins. This administration is being exposed, and people are uncertain whether to make common cause with it. Now, the part we have to watch out for, Dalia, including in our profession, is that that people have taken such extreme positions in service of this administration, including these murders on the high seas, and therefore are so afraid that if things change, they will be subjected to prosecution, to disbarment, and so on and so forth, that they are even more invested in keeping this going. Right, because the other side looks dismal for them. Trump will fly off into the sunset because the Supreme Court has said he's immune.

Dahlia Lithwick (60:30)

Right.

Sherrilyn Ifill (60:31)

But they don't have his immunity, even though they act like they do. And so that means they're digging in even harder to hold at bay the possibility of accountability. And therefore, that means if they're digging in harder, we have to dig in harder. We have to dig in harder, too, because they are incentivized in a very specific and personal way to keep this party going. Because for them, there is accountability on the other end of it. So we have to dig in as well and understand that when you see Trump talking to 200 people in Pennsylvania this past week, that's a win. I mean, he said terrible things, but he was in front of 200 people. However they do the camera angles, that's the truth. This was not a 5,000 or a 50,000 person rally or a 15,000 person rally. That's what he did could safely get. So we have to recognize that it's having an effect. And the poll numbers matter. Like his popularity, it certainly matters, but it matters tactically because it creates wedges between him and other Republican candidates who are on the ballot. Every single House member is on the ballot next year. So whatever decisions they make, they are going to have to face the music of voters next year, and they know that. Which means they're in a different position than Trump is in. Trump is, you know, until 2028. He thinks beyond, but he's in till 2028. So their worries are different than his worries. And that's what makes his poll numbers being in the tank so important, because the more we can drive wedges between them, the better. So I think there are all kinds of things that are happening at the same time. And that we have to be prepared to exploit in this moment in order to create the conditions in which we can get power. But we can't take our foot off the gas because the election of November was great. No, we have to stay on the gas, and we can stagger this. I know people are saying, I'm exhausted. I'm exhausted, too. You can't do it 24 7. You can't do it every week. But if we're all doing it, we don't have to all do it at the same. The same thing at the same time. And we can stagger it out, but we've got to recognize that collectively, we have to keep the pressure on. And when people tell you that we should jettison black people or trans people or whoever, they're saying is the latest group of people who make it inconvenient to get power, understand this historical project, that there was a project to ensure that we could be one country after we had been fractured in the Civil War, and that that's the project we're working on. Not the project of figuring out who gets to be outside the circle. That's not the project. The project is how can we all be in the circle in a country that is remarkably diverse, that is remarkably huge in terms of land mass, that doesn't have a national religion, that doesn't have one place that most of the people come from. None of that. We're doing something very specific. And so once we start drawing circles around citizens and circles around the people who belong and the people who we're prepared to advocate, we have given up on the project of the second founding of this country.

Dahlia Lithwick (63:46)

You've just given me three holiday gifts, and one of them is, and I think this is so important, this notion that we need to stop confusing the fact that they will not accept losing with the idea that we can't win, because those are two very different things and we can win. The other thing you're saying that I just think is so important, and it includes the shithole countries comment includes what district courts are finding. It includes, as you say, you know, videos that capture what is really happening. Making things visible is part of our job. Making things visible in the face of lies and that courts do that every day. Lawyers do that every day. Good journalists do that every day. And your law students do that every day. Like making things visible is a piece of winning even in the face of being gaslit.

Sherrilyn Ifill (64:38)

Just think about the Kavanaugh stops, you know, Justice Kavanaugh issues that concurring opinion that he did not have to issue in the Nome case. And this is a case that was brought by United States citizens, Latino citizens, who talked about being caught up in this. And he says, it's all fine. It's just a minor inconvenience. They just ask you for something, and then they let you go on your way. And he issues this decision in the midst of this barrage of videos that we're seeing in real time. Right? And brilliantly named Kavanaugh stops by Anil Kalan. But this is now his legacy. This is now his legacy because of ordinary people posting videos. So everyone has something to do. We don't see those videos of these kidnappings because of CBS News. We see them because of ordinary Americans who come out of their house with their phones to bear witness to the kidnapping of their neighbors and then posting it on some social media platform who are out there and who can say, yes, that person said they are a citizen. Yes, they ran over this person's foot. Yes, they left this child crying. That is a part of a really powerful civic response that is essential in this moment. So everyone has something that they can do.

Dahlia Lithwick (65:55)

And maybe the last thing that I am taking from what you're saying is that it is habituated and very easy to say, oh, I'll just take a tiny side of racism, homophobia, misogyny with my cheaper eggs. Like, it's just. That's been it since the founding. And what you're saying, and it's really, really important, is to say, that is not the assignment. The assignment is not to carve out who gets to not matter so that America can be American again. And even though that sits comfortably for a lot of people for the reasons you articulated at the top of the show, that's not gonna get us where we need to go.

Sherrilyn Ifill (66:45)

No, no, not if we want to be a democracy.

Dahlia Lithwick (66:48)

Sherrilyn, as ever, you are my absolute favorite New Year's guest, even when it's not yet New Year's. Sherrilyn Ifill is a civil rights lawyer and founding director of the 14th Amendment center for Law and Democracy at the Howard University School of Law. Before that, she served as president and director, counsel of the NAACP Legal Defense and Educational Fund. Her newsletter, always superb, titled Cherilyn's Newsletter, can be found on substack. And if you do nothing else for me, listeners read this past week's missive reminding us that it is not too late. Thank you, Sherylin.

Sherrilyn Ifill (67:28)

Thank you, Dalia.

Dahlia Lithwick (67:30)

And that's all for this episode. Thank you so much for listening. Our Amicus plus bonus episode is coming up right after this one. If you aren't if you aren't a Slate plus member yet, but you'd like to join me and Mark Joseph Stern for our weekly conversations about the Supreme Court. Between now and the end of the year, you can get 50% off a 12 month slate plus subscription by going to slate.com amicus plus and entering the promo code amicus50. That's am I c u s50. Our brand new bonus episode is available for you to listen to right now. And thank you so much for your letters and your questions. Keep them coming. We are reachable by email@amicuslate.com you can find us@facebook.com Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube or rate us and review us on Apple Podcasts. Sara Burningham is Amicus's Senior producer. Our producer is Patrick Patrick Fort. Hilary Fry is Slate's Editor in chief, Susan Matthews is Executive editor, Mia Lobel is executive producer of Slate Podcasts and Ben Richmond is our Senior Director of Operations. We'll be back with another episode of Amicus next week.

Sherrilyn Ifill (68:51)

Courage is the new currency in this country. I'm Skye Perryman, President and CEO of Democracy Forward, where our team of lawyers is fighting in court every day day for you, for your rights, and for our democracy. The Trump Vance administration wants us to be exhausted and divided, but when people come together and speak out, courage becomes contagious. And that is how change happens. We've already won cases to defend people and communities, all free of charge. But ahead of 2026, we need you beside us. Join the movement@democracyforward.org hey, Ryan Reynolds here wishing you a very happy half off holiday because right now Mint Mo is offering you the gift of 50% off unlimited. To be clear, that's half price, not half the service. Mint is still premium unlimited wireless for a great price. So that means a half day. Yeah. Give it a try@mintmobile.com Switch upfront payment.

Dahlia Lithwick (69:44)

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Sherrilyn Ifill (69:48)

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Dahlia Lithwick (69:49)

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