Jeffrey Toobin (3:41)

You said one of the reasons that you've turned to narrative museums, memorials is because the courts are not the refuge that they once were. And it seems especially appropriate to talk about that now because history is becoming a real battlefield. I mean, in August, the White House announced this sweeping review of Smithsonian exhibitions and collections on subjects just like what's in your museum in Montgomery. What's going on here? Why is history so important? And why have you turned your attention to it in such an extensive way?

Bryan Stevenson (4:20)

Well, I just think when we are honest about history, we learn things, we discover things, and we prepare for things differently. You know, I got involved in our work after I went to Johannesburg and saw the apartheid museum there. It blew me away because I'd never been in a museum that was so honest about the legacy of something so devastating. I went to Berlin, and being in Berlin, seeing a landscape where you can't go 200 meters without seeing a monument or a memorial dedicated to the victims of the Holocaust, there's this reckoning with history, and we now see Germany as a partner. They are not the villain that they were in the middle of the 20th century because of that reckoning. There are no Adolf Hitler statues in Berlin. There are no monuments to the perpetrators of the Holocaust. And I think that has liberated them, empowered them to create a new democracy that is trusted, respected, that is vibrant, that's growing. It doesn't mean that all the problems have been eliminated, but it does mean that they have recovered something really important, discover something important. We have not done that in this country. And I think our refusal to do that has left us vulnerable to precisely the kind of political manipulations that we're seeing today. And so we're trying to create that truth telling here. And I think some people misjudge it. They think, oh, you keep talking about slavery and lynching and segregation. You want to punish America for this history. And I have no interest in punishment. I'm talking about slavery, liberation and segregation because I want to liberate us from the burden that that history creates, that burden that still hangs over us, the fog that that history has created that no one is trying to address. We know that we can't go through life and care about someone and love someone and get strong and healthy if we're unwilling to acknowledge when we make mistakes, to repent for those, to apologize for those. And collectively, we have not done that in the United States.

Jeffrey Toobin (6:21)

Well, as I was walking through the museum, I kept thinking of Donald Trump's attitude towards history, which is celebratory. He says he wants schools, universities, museums to celebrate America, not focus on the Middle Passage, not focus on slavery, segregation. What's wrong with that? Why shouldn't America celebrate its history?

Bryan Stevenson (6:47)

Well, America should celebrate its history. There are lots of things about America that are worth celebrating, but it should also acknowledge the mistakes it's made. And I think the mistake with trying to whitewash history is that we just continue and sustain the problems that that history has created. The purpose of the museum is to create a world where the children of our children are no longer burdened by this history of racial bias, where there are no more presumptions of dangerousness and guilt that get to people based on their color, where everyone is free to live kind of a life of value and opportunity without restraint because of their color. And we won't get there if we don't address some of these harms. And this is the thing that makes this relevant for me. I'm the descendant of people who were enslaved. My great grandfather was enslaved in Caroline County, Virginia. And, you know, recently I've been talking about this. When I went to Harvard, the first day, they took us into those small orientation groups. And the orientation group leader asked, why are you in law school? And I remember sitting there, and the first four or five people in my group all talked about how they were the son or the daughter or the grandson or the granddaughter or the nephew or the niece of a lawyer. And I started to panic because I knew I wasn't related to a lawyer. I'd never even met a lawyer. And by the time they got to me, I felt so diminished that I just told a joke. I just tried to get out of there. And I remember calling my mom, saying, mom, I don't belong in this law school. And I had one of those beautiful mothers. My mom said, what are you talking about? You belong wherever you go. You go back and tell those students why you're in that law school. You're the smartest person in the world. You can do anything you want to do. A couple of weeks later, I did. I found a few of the students. And what I remember telling them is that I'm in this law school because my great grandfather was enslaved in Caroline county, Virginia. And despite enslavement, he had this hope of freedom. And even though it was illegal for enslaved people to learn to read or write, my great grandfather risked his life to learn to read because he had a hope of freedom. He had a hope in this country, despite being enslaved, that one day freedom would come. And so for me, the hopeful part of this story is the thing that we have to embrace. And when someone who's been held down stands up and triumphs, we all get excited. And that's the story of America. But it's not the story of America that we will understand if we don't talk about the hard parts.

Jeffrey Toobin (9:14)

Let's talk about some specifics. DEI diversity, equity and inclusion. In the early 20s, you had corporations, you had universities falling over each other to set up DEI to promote dei, hiring people to promote it. It's now become something that is so toxic that companies, universities, are running from it. What happened and what does that mean?

Bryan Stevenson (9:39)

Well, I don't think we ever did a very good job of understanding why we need dei. And this is the problem of trying to create a remedy without understanding the problem. For decades in this country, we had really qualified women and really qualified people of color being denied opportunities for leadership because they were women, because they were black, because they were brown. And that was unfair, it was wrong. And it held companies back because the best people weren't getting the jobs, because they didn't feel comfortable putting a woman in charge of that. And then we began to realize that not only was that not right and not fair to those women, it just wasn't smart. And so DEI was in an effort to remedy decades of excluding people based on gender, based on race. We should have said, we have failed to put the best people in the best positions. We have participated in the exclusion of women and people of color wrongly, even though they were more competent and more skilled. We didn't like doing that part. We just wanted to announce the new policy. And so when people got mad about the policy, didn't understand it was a remedy to a real problem, you had this kind of political reaction, and now that the politics have shifted, you see precisely that retreat. I was on a plane. A woman got on as a pilot of the plane, A black person got on as the co pilot. And I was literally sitting next to somebody who turned to me and said, oh my God, did you see who's flying this plane? It's a woman and a black person. Send it to me. And he said, we're going to be in such trouble. You know, they're not qualified. I said, if you knew anything about the history of aviation, if you knew anything about the history of corporate leadership, you would know that you're going to be piloted, probably by the most skillful pilot you've ever been on a plane before. Because to become a woman pilot at the end of the 20th century meant that you had to outperform the men. To become a pilot as a black, you had to outperform. You had to demonstrate more skills, more knowledge than you would have had to demonstrate if you were part of that favored group. And when we understand that, we realize that DEI wasn't giving opportunities to people who were less qualified. It was remedying the problems of denying opportunities to the most qualified. And so for me, that's why the truth telling becomes so important.

Jeffrey Toobin (11:53)

Let's talk about the legal work and unpack several of those subjects. Equal justice initiative is still an organization that goes to court all the time. What do you see in court that's different today, both from January and also from the time when you got out of law school and it started practicing?

Bryan Stevenson (12:14)

I think in the 1990s and the first part of the 21st century, if we went to court and we had the right evidence and we had the right legal claim, even if courts were resistant, they would be obligated to respond to enforce the law, and we had success. One of the issues that I spent a lot of time on the 90s was the exclusion of black people from capital trial juries. Throughout Most of the 20th century, black people didn't serve on juries, and a lot of prosecutors got very comfortable presenting cases to all white juries. When the Supreme Court in 1986 said, it's illegal to exclude people on the basis of race with peremptory strikes, these discretionary strikes, they were very resistant and found new ways to justify these exclusions. So we would go to court, show this evidence about how all of the black people were excluded, and the courts would grant relief. And that happened throughout the 90s. We won, like, 24, 25 reversals in death penalty cases because of racial bias. I think as we got into this century, there was this fatigue that began to take over. You saw courts becoming increasingly resistant to the idea that they were going to have to overcome once again, overturn a capital murder conviction because of intentional racial bias. And rather than scold prosecutors and push these institutions to comply with the law, they just started to raise the bar on what had to be established to win. There was growing resistance. And you could see the courts tolerating more racial bias in these cases, more extreme misconduct by police and prosecutors, looking for procedural reasons to not address these substantive constitutional violations, and that proceduralism was becoming a fence to keep the court from having to talk about really hard issues. And what I see today is more of that tolerance, more of that reluctance to uphold the rule of law, even when the consequences of not upholding the rule of law are pretty brutal, pretty tragic, and create a lot of suffering.

Jeffrey Toobin (14:27)

But it's not tolerance. It's embracing these violations, isn't it? I mean, one of the things that's so distinctive about Trump, especially in the Justice Department, is, you know, saying that we are not gonna worry about prosecutorial or police misconduct. We are not going to engage in the kind of defense of particularly criminal defendants. So it's not just tolerance. It's a complete 180, is it not?

Bryan Stevenson (14:55)

Well, in the last nine months, eight months, we have seen a complete rewrite of the legal order of what the moral order should be. And it is absolutely hostility to a lot of these basic rights. And you see that playing out in ways that are really just unprecedented. So this is the first time in my life I'm living at a time where the rule of law is not operating in a way to protect people who have been historically vulnerable, historically victimized by power and abuse, and, in fact, is being utilized in a way that will add to that abuse, add to that exclusion. And certainly, that's what you're seeing when the Department of Justice dismisses all of these lawsuits, when they're going to schools basically saying, we're against what's been going on, not just for the last five years, not the last eight years. We're against what's been going on for decades. And when you start analyzing that, what they're really talking about is since the civil rights movement. And so now you have a political agenda and a Department of justice that seems to want to overturn all that was gained during the civil rights era. We're talking about getting back to this pre1965 period when there was no remedy for those who felt victimized by Jim Crow and segregation and racial exclusion. And so, yes, what we're seeing today is radically different than even what I was seeing a decade ago.

Jeffrey Toobin (16:29)

Now, much of your work, especially the death penalty work, is in state courts, not federal courts. Does the attitude from Washington reverberate through the system? Do you see this hostility to the traditional civil rights agenda in the state courts as well?

Bryan Stevenson (16:46)

Oh, absolutely. And the Justice Department's role was always about managing, controlling, restraining states from engaging in the kind of behaviors that excluded marginalized and disenfranchised people. Most of it was in federal court, but it absolutely had implications for state courts. And so the judges in the state courts that refuse to enforce the federal law are no longer fearful that a federal court is going to overturn them. They're not worried that the U.S. supreme Court is going to undermine. So of course they're empowered to do things they haven't been empowered to do since the 1960s. And because the judges in the state courts are frequently elected in partisan elections, they're even less likely to risk enforcement of the rule of law, enforcement of the Constitution to do things that are unpopular, to do things that a lot of people are uncomfortable with. If anything, they're actually pushing an agenda to kind of maintain the south in the saddle. We want to overturn the ban on executing children. We want to overturn the ban on executing people convicted of non homicide offenses. And that's what they're saying when they introduce these laws into state legislatures now. And they know that the state courts will affirm that. And then the question's gonna go back to the U.S. supreme Court and other federal courts.

Jeffrey Toobin (18:08)

Well, let's talk about the Supreme Court, because that, you know, the great cry of the 60s was, well, we're gonna take this all the way to the Supreme Court. And Brown was 1954, and many of the Warren Court decisions, you know, throughout the 1960s, and even the Burger Court and even some of the Rehnquist Court, you saw a check on racial discrimination in all aspects of American life. How do you view the current United States Supreme Court as a place that you might want to bring your cases or not?

Bryan Stevenson (18:43)

Well, I don't think there's any question that the composition of the court right now makes it an institution that if you're trying to advance racial justice, if you're trying to advance human rights, if you're trying to advance protections for the rights of people who've been convicted of crimes or disfavored is not a very welcoming or hospitable place. I refuse to give up on the court as an institution that can make a difference, because I still believe that they're going to have to make some really hard decisions about how much are we going to permit this erosion of basic rights.

Jeffrey Toobin (19:23)

Tell me specifically, where are those stress points gonna be? What issues do you think are gonna be tough for even this conservative Supreme Court.

Bryan Stevenson (19:34)

Well, I mean, I think there are a whole set of issues that have been core to the American experience over the last half century. In my mind, America has progressed over the last 70 years, has evolved over the last 70 years in a positive direction because we dealt with the fundamental problems of disenfranchisement of black people and disfavored minorities. We have addressed or tried to address some of the excess of the politics of fear and anger that play out in our criminal legal system. And we have generally wanted to model a commitment to the rule of law, even when that's unpopular, even when there are forces that are saying, we would rather do this destructive thing than to protect people's rights. If a court says that states can do whatever they want to do to maintain political power to disenfranchise black and brown people, then that will take us back decades. It will fundamentally negate all of that progress. And I think this court's going to have to deal with our willingness to resist the politics of fear and anger. And by that, I mean when people allow themselves to be governed by fear and anger, they start to tolerate things that they wouldn't otherwise tolerate. After Pearl harbor, we rounded up all people of Japanese ancestry and we put them in camps. And I don't think that's something that anybody would have legitimated but for the fear and the anger that followed the Japanese invasion of Pearl Harbor. And the court could have said, no, that is completely inconsistent with the rule of law in this country. But they didn't do that. And we did something that I think is quite shameful. The court, I think, now would recognize that that was a bad decision. We've got people in Congress who are saying we should not have done that. But that's what happens when you give into the politics of fear and anger. And this court is going to have to adjudicate whether we're going to stay committed to the rule of law and basic constitutional rights, or allow those forces of fear and anger to prevail. There are people who are arguing that the court shouldn't have the authority to undermine these objectives of the president and the White House. And so that's going to be a fundamental question that this court is going to have to adjudicate that will shape the future of this country.

Jeffrey Toobin (22:03)

I mean, these are, in many respects, political issues. What do Democrats, who are obviously more sympathetic to the views that you express than Republicans are. What do they do? What do they say? That shifts the narrative and shifts votes in ways that would actually work.

Bryan Stevenson (22:23)

You know, in my mind, it's what do leaders say? Because I don't think, for me, the way forward is to get one political party to be more strategic, more savvy, more effective. I think it's about what do leaders say? And this goes to Republican leaders as well as Democratic leaders. I want people across the aisle to take a position on whether it's right to demonize a whole group of people. And this is one example. Haitians in Ohio are eating cats and dogs. It wasn't true. Yeah, Democrats are gonna talk about that. But I think the question is, what do leaders do when we are asked to tolerate that kind of bigotry, that kind of slandering, that kind of hatred? And I think, yes, there are things that the Democratic Party has to be savvy about, they have to be responsive to. But we're going to have to fundamentally decide, do we want to go back to pre1965America? Is that acceptable? Do we think when we say make America Great again, that the best era for America was in the 1970s, 1950s, the 1920s, before women had the right to vote, the 1850s. These are fundamental questions that everyone, I think every leader must be asked. And when they give their answers, we're going to then have to decide whether that's something we can embrace or not.

Jeffrey Toobin (23:44)

Final question. Brian. True or false? The arc of the moral universe is long, but it bends towards justice.

Bryan Stevenson (23:53)

I think it's true. I think it's true. It's dependent on a willingness of people, of course, to prioritize justice, to not tolerate injustice. But when I look at human history, it's hard for me to say that that's false. It's true. I mean, the fact is that you and I are having this conversation in a space occupied by the New York Times is, in and of itself evidence of that. Because I think about this all the time. The people who came before me would put on their Sunday best. They'd go places to protest and push for the right to vote. They'd get bloodied and battered and beaten. They'd have to go home, wipe the blood off, change their clothes, and go back and do it again. My generation has not had to do that in the same way. Future generations hopefully won't have to do that. And that just means that the struggle for justice is going to take on a new form. So I'm absolutely persuaded of the truth of that, despite the moment that we are in. I guess the good thing about getting older is that you Just get a broader perspective. In 1995, if you had said to me we were going to get to the point where the execution rate drops dramatically, where very few people were going to be sentenced to death, where 11 states were going to abolish the death penalty, that we were going to actually get to a period where this was more and more something that that states did not want to do, I couldn't see that I had to believe that. And I guess, you know, 15 years ago, if you had told me, oh, you're gonna operate a museum and a memorial and a park that deals with slavery and lynching and segregation, and hundreds of thousands of people are gonna come and you're gonna have to open restaurants and a hotel, I said, that's crazy. Not gonna believe that. And yet here I am. And I just, I think that quote is really about, do we believe that truth has the power to be resurrected even in the face of lies and triumph? And I guess I believe that in every aspect of my being, culturally, socially, politically, spiritually, that's what I've experienced. And the fact that there are difficult days, dark days, doesn't dissuade me of that.

Jeffrey Toobin (26:06)

Bryan Stevenson, thank you so much for joining us.

Bryan Stevenson (26:09)

Absolutely.

Podcast Host/Announcer (26:30)

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