June 7, 2022 • 31 mins
Sherrilyn Ifill still believes in the future. The famed civil rights attorney reflects on her time with the NAACP Legal Defense Fund (LCD) fighting against systemic racism in the courts. And she also has thoughts about the legitimacy crisis of the Supreme Court.
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Episode Transcript
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Speaker 1 (00:02):
Normally, when I opened this show, I have a recommendation
or to offer you and some thoughts, But today I
don't because yesterday, as of this recording, nineteen children and
two teachers were murdered in a val Day, Texas at
rob Elementary School. The gunman was eighteen years old, and
(00:24):
earlier in May he had bought two assault rifles. He
used one of them to go into the school and
commit an act of violence that we are all too
familiar with, because it has been less than two weeks
since another eighteen year old took an assault rifle and
assorted weapons and armor and went into a grocery store
(00:44):
in Buffalo, New York, and that one was racially motivated.
He looked for the blackest zip code in upstate New
York and wrote a manifesto, much of which was plagiarized,
all of which was incredibly racist. As usual in the
day after, politicians are offering their thoughts and their prayers,
(01:08):
they are horrified, etcetera, etcetera, etcetera, but we all know
that they're lying. They've been sitting on a bill since
March of that would mandate mandatory background checks for all
gun purchases and Republicans refused to allow this bill to
come to a vote. They refused to do the bare minimum.
(01:30):
You know, at some point you run out of words
because you've already said everything that could possibly be said.
You know that there is no amount of death, there
is no amount of suffering, no pictures of children that
will move politicians to actually do the right thing. We
also know that we can't afford despair and doing nothing.
(01:52):
So we are all left in an incredibly difficult position
of trying to figure out what to do to our
world a better place, to make our schools safer, to
allow children to no longer have to learn active shooter drills.
I certainly wish I had all the answers, but I don't.
(02:14):
But here with me today is someone who has a
lot of answer certainly, and has done a lot of
really important work in terms of trying to make the
world a better place. So from Luminary, this is the
Roxanne Gay Agenda, the Bad Feminist podcast of your Dreams.
I am Roxanne Gay, your favorite bad feminist. On the
(02:35):
Roxanne Gay Agenda, I talk about something that's on my mind,
and then I talk with someone interesting to find out
what's on their mind. And on this week's agenda, trying
to find a way forward. The world is always intruding
on us for one reason or another. But thankfully, when
those intrusions and pinge on the civil rights of black people,
the nub A c P is there and the Legal
(02:57):
Defense and Educational Fund is their sword. Third Good Marshall
was the founder of the LDF and its record of
accomplishments include winning the landmark case Brown versus the Board
of Education. They also represented Rosa Parks and Martin, Luther
King and Birmingham and the Selma Marchers. Since Third Good Marshall,
the LDF has been led by some heavy hitters, and
(03:20):
the most recent is Sherylyn Eiffel. She has been at
LDF since the eighties and she has led the organization
for the past decade. She's intimately and effectively involved in
issues of policy, accountability, mass incarceration, voting rights, housing, everywhere
black people have been harmed by systemic racism. She's a
(03:40):
frequent presence on cable news because she's excellent at explaining
complex legal issues, and she also just stepped down as
leader of the Legal Defense Funds. So I thought this
would be a good time to check in with her
not only about her career and the work she's doing,
but also about the perilous state of our democracy which
is under but like never before. Sherlyn Eifel, Welcome to
(04:03):
the Roxanne Gay Agenda. I'm absolutely thrilled to be here.
Thank you so much for having me else there. Heh,
You're more than welcome. So, you know, today is one
of those days that I think we have become all
too familiar with. How do you stay engaged and continue
to do the work you do knowing what we're up
against on so many different friends. You know, I have
(04:24):
my moments of absolute rage and you know, many despair. Um,
if we're functioning sentient human beings, then days like this
are incredibly hard. You feel like you can literally channel
the pain that those parents are feeling involved in Texas,
(04:44):
or that those family members are feeling in Buffalo. But
you know, you're at work today, and this is what
I do. You know, I get up and I go
to work every day if it doesn't have to be physically.
The work I do is to be a civil rights lawyer,
to fight for the full citizenship and dignity of black
(05:06):
people in this country. So no matter what happens. It's
very rare that I take a day off from work.
Some days it feels, you know, more joyous to be
at work, you know, and other days it doesn't. But
it's what I do. And so I will say I
do believe in the future. I just do. I know
(05:27):
that you always wanted to be a civil rights attorney,
and then you did become one, and you are one now.
So are you so single minded in all of your pursuits? No,
I'm I'm work is kind of my sweet spot and
I've never been unsure in that space. I do have
(05:49):
very particular talents. I think I have vision. It's where
I feel like all the cylinders that make up me
are firing. Empathy and humanity and communication and deep, deep
engagement in respect for history. And I remember when I
was raising my kids, you know, I was eternally wringing
my hands about whether, you know, I could be a
(06:10):
better mom. Moms who just seemed to be so together.
They had the schedule down pad, they always seemed cool
and collected, they always said the right clothes. They seem
to know things that I didn't know. And my best
friend in Baltimore said to me, you are a decathlete
in the decathlon, the the you know, for the running
(06:32):
portion of the decathlon. That's not the fastest runner in
the world, h right, But for somebody doing ten things
at once, you know, trust me, you're a decatholete like
you're maybe the best at doing the ten things that
you do at the same time, right. And I have
to say, it showed me out. It kind of calmed
me down, um, because yeah, you know, no, I'm not
(06:55):
the best at any one of those things likely, you know,
but I'm pretty damn good at all of them. That's
such a gift because I know that most especially women,
because so much of caretaking is within our you know,
purview for one reason or another. You know, when you
take on a position like leading the Legal Defense Fund,
(07:18):
you know what you're asking of the rest of the
people in your life. Did you accomplish what you wanted
to in your time with the Legal Defense Fund? And then, oh,
that must feel so good to know I did my job. Yes, yes,
you know, I honestly feel like I was given an
assignment that I thought of as a divine assignment. You know,
(07:40):
when Eric Garnett was killed that day, Yeah, I can't
breathe that was a real thing happening in real time.
Doesn't matter how big your docket is, how many cases
you're you're carrying, what policy matters you were involved in.
You have to meet that moment. But to speak to
that moment and you'll be able to explain that moment.
I understood the need to develop a kind of wrap
of response capacity. I understood the need to expand our
(08:03):
policy arm I knew that I wanted, because I had
come from twenty years as a law professor, that I
wanted to create an institute within LDF so we could
do our own research. I knew that I wanted to
have a management structure that had never existed before. It
had always been a super top down, one person at
the top. And the last board meeting, I pulled out
(08:23):
for the board and shared with them the first report
I had given them at our first annual board meeting.
I had accomplished everything I said I wanted to do,
and the most important thing, ross Anne was I described
in that memo that I was determined to move the
conversation and vision about civil rights work away from the
(08:48):
edges and into the center of the conversation about this
democracy m price work is not something that we do
over here to get things for black people. It actually
is about the health of your democracy. We actually have
a better lens to see the cracks in the foundation
of our democracy than maybe any others. And that was
(09:12):
that was one of my goals, was to re calibrate
where we sit in the conversation about this country. How
do we hold that center, because I know that that's
one of the most critical things that we can do
moving forward. And I think this applies frankly to all
civil rights like these are not just civil rights for
various groups. It actually ensures everyone has you know, life, liberty,
(09:35):
the pursuit of happiness. So how do we hold the center?
I think there are lots of elements to it, centering
the conversation about equality, for example, not allowing this country
to take for free what we have given it in
terms of its image of itself and its reputation. I
(09:56):
talk often about a case that um LBF one in
the Supreme Port in nineteen see. The case was argued
on behalf of a white woman, Idah Phillips, who was
challenging the then policy at Martin Marietta. Martin Marietta wouldn't
hire her because they did not hire women with preschool
aged children, And LDF argued and won that case in
(10:18):
the United States Supreme Court. Do you think that women
in corporate America who have preschool aged children are walking
around saying, you know, I owe this all to LDF
black lawyer Bill Robinson. They don't even know how that happened.
They couldn't even know that it took this black legacy
civil rights organization who recognized the importance of that equality principle,
represented a white woman and outlawed the policy of not
(10:43):
hiring women who have preschool aged children. So I know
that people don't even know how they're doing what they're
doing right now, and I'm determined to make sure that
generations going forward will know. I say this about the
civil rights movement All the time, we gave America the story,
you know that America's place of opportunity and equality and
so what you couldn't say that before, Yes, you couldn't.
(11:07):
I think a lot of people really hold onto that
narrative of America as this place of opportunity. Even yesterday,
in the immediate aftermath of the shooting, one of these
pundits said that as challenging as things can sometimes be
in this country, it is still by far the best
place in the world. And I was like, you know,
(11:28):
sometimes you see someone say some crazy stuff on Twitter
and you're like, that's really wild. Surely you didn't mean
that they're going to delete it. But he not only
kept that tweet up, he doubled and tripled down. And
it was interesting to see how pervasive this myth of
American exceptionalism is that in the wake of profound tragedy
and profound anger and grief, the best thing he could
(11:51):
say was We're still a great country. Do you find,
ever that you have to push back against that narrative
about an exceptionalism and how do you do so? All
the time? And I and I I pushed back against
it gleefully because I believe in the future I also
(12:11):
could have made millions of dollars, you know, absolutely, because
I believe in it. It gives me joy and pleasure
to feel like I am a part of making this
country better. I talk often about being having been inspired
by Barbara Jordan and during the Watergate hearings and hearing
seeing this black woman, impressive black woman with this voice
talk about Duck Constitution and how you know, I'm a
(12:35):
sucker for those things. And to be a lawyer is
to sign up in the possibilities of the legal system
to make change happen. Right, So I think of us
as profoundly optimistic people, you know, and that we're using
the available tools and apparatus to try to change the
country and make the country better. A day when nineteen
(12:56):
children are massacred in the classroom is a day when
we are operating below our ideal period. Doesn't matter what
you think of this country, that can't be like part
of the mix. And I got to be able to
have the courage to confront that. And I think that
problem is that this warped idea of what patriotism is.
Those of us who are you know, daughters and sons
(13:17):
of immigrants. We're always trying to honor the journey, you know,
and before us, who who you know, struggled and who
believed and who made sacrifices. We understand what the possibilities are.
But as I was saying earlier, we have also lived
as black Americans, and so we can see the flaws
and the craps and the foundation and guess what you
(13:39):
should want to have us share what we know, because
when the foundation crumbles, we're all gonna be under the rubble.
You think it's gonna just crumble on black people. I
would think the last few years would have helped Americans
understand that when this democracy unravels, the whole thing unraveled,
(14:01):
and we'll all be profoundly affected by it. It's not
going to be something that you can isolate yourself from. Which, unfortunately,
especially in a lot of the political rhetoric we've seen,
you get the distinct impression that they believe that these
are the problems of those people over there. Just like
in Louisiana the governor saying that our birth rate is
(14:23):
fine if you correct our population and exclude black women,
and you think, wow, thank you for saying the quiet
part out loud, Thank you out loud. There are significant
numbers of leaders in this country who are leaders, yes,
(14:43):
and they frankly would prefer we go back there. No
matter what they see, they are bound to see the
world as a segregated one. They haven't bought into the
idea that American nous is a thing that you can
have access to unless you are Christian. And why and
you know, whatever their things and what I what I
hear people have these kind of this kind of distress
(15:04):
about the change happening in the country. You know, you
know what you have a problem with. You don't actually
have a problem with me. You don't even have a
problem with black people. You have a problem with the
fourteenth Amendment to the Constitution because we actually reset this
country after the Civil War with the thirteenth a man
in which end of flavery. The fourteen Amendment, the first
line is about birthright citizenship and naturalized citizenship. The first
(15:29):
line of it created the America that you see today,
including all these people who want to tell you about
their great grandparents who came over from Italy or from
Poland or whatever in one generation. In one generation, you
were American because of the first line of the fourteenth
Amendment of the Constitution, which was actually created to make
sure that black people were citizens, oh for sure. And
(15:49):
you know, one of the things that's most interesting is
we see a lot of veneration of the Constitution, but
there's this very selected reading and interpretation. And then when
it comes to things like the Second Amendment, and I
would say also the First Amendment, the definition of it,
like the terms of those amendments shift based on political interests,
(16:12):
and you know, you think, wow, we know what it says.
And I believe that the Second Amendment is twenty seven
words and there's nowhere in there doesn't say that you
shouldn't be means tested or have a background check, or
that perhaps certain types of weapons, you know, like basic
things like I mean, because they were talking about muskets
and it took a hell of a lot of effort
(16:34):
to fire even one bullet, and so sure, go ahead,
own one. I can outrun that. And so now the
Supreme Court is adjudicating a lot of the issues that
affect our very lives, and it purports to not be
a political institution. Do you think it's appropriate for the
Supreme Court to act like it's not a political institution
(16:56):
when frankly, the people who even sit on it are
political appoint I don't. I don't agree with the fact
that you can suddenly turn yourself into this impartial thing overnight, right,
But I do believe it is again a constitutional imperative.
Do process requires that you have that you face an
impartial tribunal, So you are constitutionally entitled to have your
(17:18):
case adjudicated by an impartial decision maker, jury, or judge.
Then you have to ask yourself, well, what does impartiality
looks like. It means that I am open, even if
I have thoughts, I am open to hearing what the
evidence is, or in the case of the Spreme Court,
reading the briefs and hearing the arguments and being open
to the arguments. It means that I'm so wedded to
(17:40):
that that I'm gonna write an opinion describing why I
reached the conclusion I reached, because that opinion helps keep
me honest, because I have to be able to create
a logical narrative that explains, in accordance with the law,
why I reached the decision I reach. And so we
(18:00):
want justices to write their opinions so that they actually
have to adhere to a logical and defensible narrative that
we can see. These are all elements of impartiality. The
other element of impartiality is that not only are you
required to be impartial as a judge, but you must
(18:22):
also have the appearance of impartiality. That's uder for life.
Whether a judge is refused from a case, right, they're
they're perfectly impartial. They're like a you know, wonderful person,
but the plaintiff is their cousin. Right, There are all
kinds of ways in which you might think that the
(18:43):
impartiality of a particular jurist m is impune. And I
think that's the place where we're in trouble at this moment,
where we have tossed out the appearance of impartiality standard,
at least on the Supreme Court, and then it gets
very hard Roxanne for them not to look a little mounds. Yeah,
I agree. I've been really thinking quite a lot, like
(19:05):
many people about the Supreme Court in recent weeks, because
of the leak decision on overturning Roe v. Wade with
the case in Mississippi, and of course as we look
at the Second Amendment case that they are currently contemplating
with regard to carry permits in New York. Uh. You know,
they have quite a lot of power, and at the
(19:25):
same time, there's a lot of handwringing because of the
leak of the draft and the fact that so many
people are so incensed about you know, literally more than
half of the population's bodily autonomy being taken from them.
You know, there are people that are implying on both
sides of the aisle, that the Court is facing a
crisis of confidence and that people are losing faith in
(19:46):
the court. Though I think if you ask different kinds
of people, the faith in the courts was never there.
So do you think that there is a crisis of
confidence in the courts or should wed? And I know
they're trying to say that there isn't. And I mean,
I'll just give two examples really from these past few
weeks for months, let's talk about the you know, the
(20:07):
Mississippi case and the Texas case. The Texas case that
really basically sets up you know, your neighbors to themselves
sue you, you know, for for trying to get an abortion,
basically creating a bounty for women's seking abortion and those
who would help them. That clearly violates ro versus Wade.
So the fact that the Court would allow that law
(20:29):
to go forward. Let's let's assume the Court is planning
to overturn Roe versus Wade in the Jobs Mississippi case,
which now we know haven't seen the lead opinion that
they are, but the Texas case came to them last
fall and they haven't yet decided the Jobs case, and
so Roll Versus Wade remains good law, and what's good law?
(20:49):
Then I think we've not spent enough time on the
absolute scandal of the Supreme Court essentially allowing a state
to vi elate the constitutional rights of half the population
and by doing so, invite other states to do the same.
(21:09):
That is shocking when we talk about respect for the court.
The court has to respect itself. Don't mock your own
precedent Roll versus Wade, which is still the law of
the land. That you basically allowed a state to violate
that constitutional principle and basically invited other states to do
so by not stopping it, and that means that you
(21:32):
are a participant in the members of the public not
respecting the Court's precedents because you didn't respect them. It's
incredibly corrosive of the legitimacy of the Court, and so
they have to take responsibility for those things and and
acknowledge them instead of making everyone feel like we are
(21:54):
imagining the fact that they are undercutting their own legitimacy
by sort of saying, we know this is the law,
but go ahead and break it. Go ahead and break it.
Go ahead and break it. We're gonna get around to
it anyway sometime next So why don't you go ahead
and start breaking it? Now? What in the hell where
did we learn that? What law school is that taught in?
What is going on? And then to have various members
(22:16):
come out and give these speeches that you know, somehow
they are being bullied. We can't even make you adhere
to a code of ethics. So you're not being bullied.
You're the most powerful institution in this country. Thank you
have power since Marbury versus Madison to say what the
law is. That's huge in the most powerful country in
the world. So stop number one, but number two, stop
(22:38):
with the gas lighting, like don't don't, don't play these games.
You're doing that by not respecting your own precedent. So
I think there are things like that that really bear
some really really serious conversation and examination that something's off
the rails there, that they were not able and that
the leadership was not able to say, well, listen, whatever,
(22:59):
we're gonn dude, this is not how we do it.
We are the United States Supreme Court President matters and
and and to have abandoned that seems to me incredibly reckless.
In not two, the Spring Court of course, issued one
of the worst decisions, in my view, in the history
of the United States, Spring Courts Shelby County versus Folder,
(23:19):
which is a decision that UM undermined the key provision
of the Voting Rights Act, which actually set off this
wave of voter suppression that we've been seeing since then.
Prior thirteen, almost all of the states in the South,
as well as other directed boroughs in New York and
counties in California, New Hampshire and so forth, had to
submit any voting changes that they wanted to make to
(23:40):
a federal authority for approval to make sure that it
doesn't discriminate against black, Latino Asian American Native American voters.
This was the core provision of the Voting Rights Act
of nine, which you know has been called the crown
jewel of civil rights statutes. Right. So Justice Robertson in
the majority opinion pretty much guts that and out there's
(24:00):
no preclearance formula. That is, you know, no jurisdictions have
to submit changes. They can just make them right. So
all these states go crazy, and that's what we've seen happen.
But what the report said and that Shelby decision was
but you still have this other provision of the Voting
Rights Act, Section two, and Section two is the provision
we use um to sue for voting practices that are discriminatory.
(24:21):
And they said, you still got that tool, right, great,
And so we've been bringing Section two cases and winning
a bunch of them, challenged voter i d laws on
the Section two. Courts have found that that some of
these laws were passed to intentionally discriminate, and so forth.
Last summer, the court size the case is called Bernovitch
versus Democratic Party of Arizona, And in that case, the
(24:42):
writer of the decision is Justice Alito, And anyone who
hands the pen to Justice Alito to write a case
involving a civil rights statute knows what they're doing. And
Justice Alito essentially rewrites the standards for how Section two
cases are to be assessed. And he does it in
the middle of the fact that we're litigating all these
Section two cases challenging these voter suppression laws. Basically, this
(25:06):
Supreme Court that's supposed to want to be so restrained,
that believes only in the text and the original intent,
decides to just right themselves how they think these cases
should be evaluated UM and power grab basically over what
Congress said was the appropriate set of standards that should
be used. That's a powerful moment. And I wrote a
(25:30):
piece that was in the New York Review of Books
a couple of weeks ago about the relationship between what
the Court is doing around abortion uh and what the
Court's doing around voting, and in particular, in the draft
opinion UM Justice Alito's statement that you know, women are
not without political power. We now return this issue to
(25:50):
the states, where all women can exercise their electoral power
and decide themselves whether they want this Abortion Act is
to go forward. And so I wrote about the intense
cynicism of that right of pretending that you're not aiding
and abetting the restrictions on the right to vote for
(26:12):
black and Latino women right while you're saying women have
political power. The cynicism of that is unreal. It's kind
of staggering when you think about it. It is so
here you are actively diminishing uh, leaving the door opened
for the diminishment of of the voting strength of black
(26:32):
women and Latino women. And then you're gonna say in
Dobbs women, you know, and so the poor center of
my pieces, to which women is justice of letal referring
when he says not without political power, now, I leave
it all in your hands. So there's some some real
cynical stuff happening that also undermines a sense of confidence
that this is all on the up and up, you know.
(26:54):
Speaking of politics, Democrats, though not Biden, have floated the
idea of expanding the court beyond nine justices. It's been
done several times before throughout history. Do you think that
that is a legitimate way of approaching some of the
issues that we're facing with such a profoundly unbalanced court.
So I was asked to join president by the Supreme
(27:16):
Court Commission, and I did join it. I was the
only person actively leading in organization that litigates before the Court,
and I did it because I think that this conversation
is not for bolting, is the point, right. I didn't
um stake out my views on that particular issue, but
(27:37):
it is perfectly appropriate to have a conversation about the
size of the court, about court ethics, about court recusal.
That is not bullying the court. You know, court does
not and I've been saying this over and over again,
it does not sit above our democracy, it sits within it.
It may be at the top of the food chain,
(27:58):
but it's still under the covering of our democracy. And
Congress has the power to regulate the size of the court.
Nine is not magic. You know, We've had six member
court before. I would remind people that we had an
eight member court after Justice Scalia passed away, and Mitch
(28:18):
McConnell and the Republicans were prepared to keep the Court
that way. And I think there's something kind of weird
right about deciding that one political party can decide how
many members are on the Supreme Court. At one point
we had seven members on the Court, as I recalled
for a brief period of time, and the idea that
having this conversation is an assault on the court or
should compel us to flutch our pearls. I joined the
(28:40):
commission because I thought, Wow, we're doing an actual piece
of scholarly work, and this is how it should be
done in stages um. The conversation should happen in places
that are not just political spaces. It was a bipartisan commission.
There were disagreements among you know, members, right, and I
thought that's great. We should be having this kind of
conversation and if that's what it comes to and that's
(29:03):
what Congress decides, that will be what Congress decides. And
people should stop pretending that it means the end of
the republic when people were perfectly prepared to accept one
political party deciding that we would have eight members until
they controlled the presidency again, and they were open about it.
They were like loud, they were quite open. And if
you know people who you can google it. And the
(29:25):
more the court, members of the court, I won't say
the court, I'll say members of the court come out
and offer these truculent speeches about how they're being bullied,
and we won't. I mean, I have to be honest.
I'm I'm kind of a sucker for a little bit
of mystery about it makes them sound silly. Yeah, it's like,
just just speak to us from the court, from the bench.
We don't need to know all your thoughts. Yeah, really, honestly,
(29:49):
it only makes it worse. We see, things can be improved,
including in ethics, including in as I was just discussing
the appearance of impartiality. They can improve, just like everyone.
And when they stop making these speeches suggesting that they
think they are above critique or above improvement. That actually
serves to further underpet confidence in the court, because it
(30:09):
is alarming. That is not the speech of leaders in
a democracy. Sherilyn Eiffeel, you are forced to be reckoned with.
Thank you so much for joining me on The Rock
Sande Gay Agenda. Well, first of all, I just want
to say how glad I am that I had to
be on this show, and I'm so sorry that such
a tragedy has occurred. And then we've didn't talk about
pop culture because yes, that would be That's my dream,
(30:32):
That's all I ever really want to talk about, and
every time something happens, I'm like, y times, I got you.
We will have that conversation and it will be great.
You can keep up with me and the podcast on
social media on Twitter at r k and Instagram at
Roxanne by four. Our email is Rosanne Day Agenda at
(30:52):
gmail dot com from Luminary the Rock. Sane Day Agenda
is produced by Curtis Fox. Our researchers Yes send you Mareno,
and production support is provided by Caitlin Adams and Meg Pillow.
I am Rosann Gay, your favorite bad feminist. Thank you
for listening.
Normally, when I opened this show, I have a recommendation
or to offer you and some thoughts, But today I
don't because yesterday, as of this recording, nineteen children and
two teachers were murdered in a val Day, Texas at
rob Elementary School. The gunman was eighteen years old, and
(00:24):
earlier in May he had bought two assault rifles. He
used one of them to go into the school and
commit an act of violence that we are all too
familiar with, because it has been less than two weeks
since another eighteen year old took an assault rifle and
assorted weapons and armor and went into a grocery store
(00:44):
in Buffalo, New York, and that one was racially motivated.
He looked for the blackest zip code in upstate New
York and wrote a manifesto, much of which was plagiarized,
all of which was incredibly racist. As usual in the
day after, politicians are offering their thoughts and their prayers,
(01:08):
they are horrified, etcetera, etcetera, etcetera, but we all know
that they're lying. They've been sitting on a bill since
March of that would mandate mandatory background checks for all
gun purchases and Republicans refused to allow this bill to
come to a vote. They refused to do the bare minimum.
(01:30):
You know, at some point you run out of words
because you've already said everything that could possibly be said.
You know that there is no amount of death, there
is no amount of suffering, no pictures of children that
will move politicians to actually do the right thing. We
also know that we can't afford despair and doing nothing.
(01:52):
So we are all left in an incredibly difficult position
of trying to figure out what to do to our
world a better place, to make our schools safer, to
allow children to no longer have to learn active shooter drills.
I certainly wish I had all the answers, but I don't.
(02:14):
But here with me today is someone who has a
lot of answer certainly, and has done a lot of
really important work in terms of trying to make the
world a better place. So from Luminary, this is the
Roxanne Gay Agenda, the Bad Feminist podcast of your Dreams.
I am Roxanne Gay, your favorite bad feminist. On the
(02:35):
Roxanne Gay Agenda, I talk about something that's on my mind,
and then I talk with someone interesting to find out
what's on their mind. And on this week's agenda, trying
to find a way forward. The world is always intruding
on us for one reason or another. But thankfully, when
those intrusions and pinge on the civil rights of black people,
the nub A c P is there and the Legal
(02:57):
Defense and Educational Fund is their sword. Third Good Marshall
was the founder of the LDF and its record of
accomplishments include winning the landmark case Brown versus the Board
of Education. They also represented Rosa Parks and Martin, Luther
King and Birmingham and the Selma Marchers. Since Third Good Marshall,
the LDF has been led by some heavy hitters, and
(03:20):
the most recent is Sherylyn Eiffel. She has been at
LDF since the eighties and she has led the organization
for the past decade. She's intimately and effectively involved in
issues of policy, accountability, mass incarceration, voting rights, housing, everywhere
black people have been harmed by systemic racism. She's a
(03:40):
frequent presence on cable news because she's excellent at explaining
complex legal issues, and she also just stepped down as
leader of the Legal Defense Funds. So I thought this
would be a good time to check in with her
not only about her career and the work she's doing,
but also about the perilous state of our democracy which
is under but like never before. Sherlyn Eifel, Welcome to
(04:03):
the Roxanne Gay Agenda. I'm absolutely thrilled to be here.
Thank you so much for having me else there. Heh,
You're more than welcome. So, you know, today is one
of those days that I think we have become all
too familiar with. How do you stay engaged and continue
to do the work you do knowing what we're up
against on so many different friends. You know, I have
(04:24):
my moments of absolute rage and you know, many despair. Um,
if we're functioning sentient human beings, then days like this
are incredibly hard. You feel like you can literally channel
the pain that those parents are feeling involved in Texas,
(04:44):
or that those family members are feeling in Buffalo. But
you know, you're at work today, and this is what
I do. You know, I get up and I go
to work every day if it doesn't have to be physically.
The work I do is to be a civil rights lawyer,
to fight for the full citizenship and dignity of black
(05:06):
people in this country. So no matter what happens. It's
very rare that I take a day off from work.
Some days it feels, you know, more joyous to be
at work, you know, and other days it doesn't. But
it's what I do. And so I will say I
do believe in the future. I just do. I know
(05:27):
that you always wanted to be a civil rights attorney,
and then you did become one, and you are one now.
So are you so single minded in all of your pursuits? No,
I'm I'm work is kind of my sweet spot and
I've never been unsure in that space. I do have
(05:49):
very particular talents. I think I have vision. It's where
I feel like all the cylinders that make up me
are firing. Empathy and humanity and communication and deep, deep
engagement in respect for history. And I remember when I
was raising my kids, you know, I was eternally wringing
my hands about whether, you know, I could be a
(06:10):
better mom. Moms who just seemed to be so together.
They had the schedule down pad, they always seemed cool
and collected, they always said the right clothes. They seem
to know things that I didn't know. And my best
friend in Baltimore said to me, you are a decathlete
in the decathlon, the the you know, for the running
(06:32):
portion of the decathlon. That's not the fastest runner in
the world, h right, But for somebody doing ten things
at once, you know, trust me, you're a decatholete like
you're maybe the best at doing the ten things that
you do at the same time, right. And I have
to say, it showed me out. It kind of calmed
me down, um, because yeah, you know, no, I'm not
(06:55):
the best at any one of those things likely, you know,
but I'm pretty damn good at all of them. That's
such a gift because I know that most especially women,
because so much of caretaking is within our you know,
purview for one reason or another. You know, when you
take on a position like leading the Legal Defense Fund,
(07:18):
you know what you're asking of the rest of the
people in your life. Did you accomplish what you wanted
to in your time with the Legal Defense Fund? And then, oh,
that must feel so good to know I did my job. Yes, yes,
you know, I honestly feel like I was given an
assignment that I thought of as a divine assignment. You know,
(07:40):
when Eric Garnett was killed that day, Yeah, I can't
breathe that was a real thing happening in real time.
Doesn't matter how big your docket is, how many cases
you're you're carrying, what policy matters you were involved in.
You have to meet that moment. But to speak to
that moment and you'll be able to explain that moment.
I understood the need to develop a kind of wrap
of response capacity. I understood the need to expand our
(08:03):
policy arm I knew that I wanted, because I had
come from twenty years as a law professor, that I
wanted to create an institute within LDF so we could
do our own research. I knew that I wanted to
have a management structure that had never existed before. It
had always been a super top down, one person at
the top. And the last board meeting, I pulled out
(08:23):
for the board and shared with them the first report
I had given them at our first annual board meeting.
I had accomplished everything I said I wanted to do,
and the most important thing, ross Anne was I described
in that memo that I was determined to move the
conversation and vision about civil rights work away from the
(08:48):
edges and into the center of the conversation about this
democracy m price work is not something that we do
over here to get things for black people. It actually
is about the health of your democracy. We actually have
a better lens to see the cracks in the foundation
of our democracy than maybe any others. And that was
(09:12):
that was one of my goals, was to re calibrate
where we sit in the conversation about this country. How
do we hold that center, because I know that that's
one of the most critical things that we can do
moving forward. And I think this applies frankly to all
civil rights like these are not just civil rights for
various groups. It actually ensures everyone has you know, life, liberty,
(09:35):
the pursuit of happiness. So how do we hold the center?
I think there are lots of elements to it, centering
the conversation about equality, for example, not allowing this country
to take for free what we have given it in
terms of its image of itself and its reputation. I
(09:56):
talk often about a case that um LBF one in
the Supreme Port in nineteen see. The case was argued
on behalf of a white woman, Idah Phillips, who was
challenging the then policy at Martin Marietta. Martin Marietta wouldn't
hire her because they did not hire women with preschool
aged children, And LDF argued and won that case in
(10:18):
the United States Supreme Court. Do you think that women
in corporate America who have preschool aged children are walking
around saying, you know, I owe this all to LDF
black lawyer Bill Robinson. They don't even know how that happened.
They couldn't even know that it took this black legacy
civil rights organization who recognized the importance of that equality principle,
represented a white woman and outlawed the policy of not
(10:43):
hiring women who have preschool aged children. So I know
that people don't even know how they're doing what they're
doing right now, and I'm determined to make sure that
generations going forward will know. I say this about the
civil rights movement All the time, we gave America the story,
you know that America's place of opportunity and equality and
so what you couldn't say that before, Yes, you couldn't.
(11:07):
I think a lot of people really hold onto that
narrative of America as this place of opportunity. Even yesterday,
in the immediate aftermath of the shooting, one of these
pundits said that as challenging as things can sometimes be
in this country, it is still by far the best
place in the world. And I was like, you know,
(11:28):
sometimes you see someone say some crazy stuff on Twitter
and you're like, that's really wild. Surely you didn't mean
that they're going to delete it. But he not only
kept that tweet up, he doubled and tripled down. And
it was interesting to see how pervasive this myth of
American exceptionalism is that in the wake of profound tragedy
and profound anger and grief, the best thing he could
(11:51):
say was We're still a great country. Do you find,
ever that you have to push back against that narrative
about an exceptionalism and how do you do so? All
the time? And I and I I pushed back against
it gleefully because I believe in the future I also
(12:11):
could have made millions of dollars, you know, absolutely, because
I believe in it. It gives me joy and pleasure
to feel like I am a part of making this
country better. I talk often about being having been inspired
by Barbara Jordan and during the Watergate hearings and hearing
seeing this black woman, impressive black woman with this voice
talk about Duck Constitution and how you know, I'm a
(12:35):
sucker for those things. And to be a lawyer is
to sign up in the possibilities of the legal system
to make change happen. Right, So I think of us
as profoundly optimistic people, you know, and that we're using
the available tools and apparatus to try to change the
country and make the country better. A day when nineteen
(12:56):
children are massacred in the classroom is a day when
we are operating below our ideal period. Doesn't matter what
you think of this country, that can't be like part
of the mix. And I got to be able to
have the courage to confront that. And I think that
problem is that this warped idea of what patriotism is.
Those of us who are you know, daughters and sons
(13:17):
of immigrants. We're always trying to honor the journey, you know,
and before us, who who you know, struggled and who
believed and who made sacrifices. We understand what the possibilities are.
But as I was saying earlier, we have also lived
as black Americans, and so we can see the flaws
and the craps and the foundation and guess what you
(13:39):
should want to have us share what we know, because
when the foundation crumbles, we're all gonna be under the rubble.
You think it's gonna just crumble on black people. I
would think the last few years would have helped Americans
understand that when this democracy unravels, the whole thing unraveled,
(14:01):
and we'll all be profoundly affected by it. It's not
going to be something that you can isolate yourself from. Which, unfortunately,
especially in a lot of the political rhetoric we've seen,
you get the distinct impression that they believe that these
are the problems of those people over there. Just like
in Louisiana the governor saying that our birth rate is
(14:23):
fine if you correct our population and exclude black women,
and you think, wow, thank you for saying the quiet
part out loud, Thank you out loud. There are significant
numbers of leaders in this country who are leaders, yes,
(14:43):
and they frankly would prefer we go back there. No
matter what they see, they are bound to see the
world as a segregated one. They haven't bought into the
idea that American nous is a thing that you can
have access to unless you are Christian. And why and
you know, whatever their things and what I what I
hear people have these kind of this kind of distress
(15:04):
about the change happening in the country. You know, you
know what you have a problem with. You don't actually
have a problem with me. You don't even have a
problem with black people. You have a problem with the
fourteenth Amendment to the Constitution because we actually reset this
country after the Civil War with the thirteenth a man
in which end of flavery. The fourteen Amendment, the first
line is about birthright citizenship and naturalized citizenship. The first
(15:29):
line of it created the America that you see today,
including all these people who want to tell you about
their great grandparents who came over from Italy or from
Poland or whatever in one generation. In one generation, you
were American because of the first line of the fourteenth
Amendment of the Constitution, which was actually created to make
sure that black people were citizens, oh for sure. And
(15:49):
you know, one of the things that's most interesting is
we see a lot of veneration of the Constitution, but
there's this very selected reading and interpretation. And then when
it comes to things like the Second Amendment, and I
would say also the First Amendment, the definition of it,
like the terms of those amendments shift based on political interests,
(16:12):
and you know, you think, wow, we know what it says.
And I believe that the Second Amendment is twenty seven
words and there's nowhere in there doesn't say that you
shouldn't be means tested or have a background check, or
that perhaps certain types of weapons, you know, like basic
things like I mean, because they were talking about muskets
and it took a hell of a lot of effort
(16:34):
to fire even one bullet, and so sure, go ahead,
own one. I can outrun that. And so now the
Supreme Court is adjudicating a lot of the issues that
affect our very lives, and it purports to not be
a political institution. Do you think it's appropriate for the
Supreme Court to act like it's not a political institution
(16:56):
when frankly, the people who even sit on it are
political appoint I don't. I don't agree with the fact
that you can suddenly turn yourself into this impartial thing overnight, right,
But I do believe it is again a constitutional imperative.
Do process requires that you have that you face an
impartial tribunal, So you are constitutionally entitled to have your
(17:18):
case adjudicated by an impartial decision maker, jury, or judge.
Then you have to ask yourself, well, what does impartiality
looks like. It means that I am open, even if
I have thoughts, I am open to hearing what the
evidence is, or in the case of the Spreme Court,
reading the briefs and hearing the arguments and being open
to the arguments. It means that I'm so wedded to
(17:40):
that that I'm gonna write an opinion describing why I
reached the conclusion I reached, because that opinion helps keep
me honest, because I have to be able to create
a logical narrative that explains, in accordance with the law,
why I reached the decision I reach. And so we
(18:00):
want justices to write their opinions so that they actually
have to adhere to a logical and defensible narrative that
we can see. These are all elements of impartiality. The
other element of impartiality is that not only are you
required to be impartial as a judge, but you must
(18:22):
also have the appearance of impartiality. That's uder for life.
Whether a judge is refused from a case, right, they're
they're perfectly impartial. They're like a you know, wonderful person,
but the plaintiff is their cousin. Right, There are all
kinds of ways in which you might think that the
(18:43):
impartiality of a particular jurist m is impune. And I
think that's the place where we're in trouble at this moment,
where we have tossed out the appearance of impartiality standard,
at least on the Supreme Court, and then it gets
very hard Roxanne for them not to look a little mounds. Yeah,
I agree. I've been really thinking quite a lot, like
(19:05):
many people about the Supreme Court in recent weeks, because
of the leak decision on overturning Roe v. Wade with
the case in Mississippi, and of course as we look
at the Second Amendment case that they are currently contemplating
with regard to carry permits in New York. Uh. You know,
they have quite a lot of power, and at the
(19:25):
same time, there's a lot of handwringing because of the
leak of the draft and the fact that so many
people are so incensed about you know, literally more than
half of the population's bodily autonomy being taken from them.
You know, there are people that are implying on both
sides of the aisle, that the Court is facing a
crisis of confidence and that people are losing faith in
(19:46):
the court. Though I think if you ask different kinds
of people, the faith in the courts was never there.
So do you think that there is a crisis of
confidence in the courts or should wed? And I know
they're trying to say that there isn't. And I mean,
I'll just give two examples really from these past few
weeks for months, let's talk about the you know, the
(20:07):
Mississippi case and the Texas case. The Texas case that
really basically sets up you know, your neighbors to themselves
sue you, you know, for for trying to get an abortion,
basically creating a bounty for women's seking abortion and those
who would help them. That clearly violates ro versus Wade.
So the fact that the Court would allow that law
(20:29):
to go forward. Let's let's assume the Court is planning
to overturn Roe versus Wade in the Jobs Mississippi case,
which now we know haven't seen the lead opinion that
they are, but the Texas case came to them last
fall and they haven't yet decided the Jobs case, and
so Roll Versus Wade remains good law, and what's good law?
(20:49):
Then I think we've not spent enough time on the
absolute scandal of the Supreme Court essentially allowing a state
to vi elate the constitutional rights of half the population
and by doing so, invite other states to do the same.
(21:09):
That is shocking when we talk about respect for the court.
The court has to respect itself. Don't mock your own
precedent Roll versus Wade, which is still the law of
the land. That you basically allowed a state to violate
that constitutional principle and basically invited other states to do
so by not stopping it, and that means that you
(21:32):
are a participant in the members of the public not
respecting the Court's precedents because you didn't respect them. It's
incredibly corrosive of the legitimacy of the Court, and so
they have to take responsibility for those things and and
acknowledge them instead of making everyone feel like we are
(21:54):
imagining the fact that they are undercutting their own legitimacy
by sort of saying, we know this is the law,
but go ahead and break it. Go ahead and break it.
Go ahead and break it. We're gonna get around to
it anyway sometime next So why don't you go ahead
and start breaking it? Now? What in the hell where
did we learn that? What law school is that taught in?
What is going on? And then to have various members
(22:16):
come out and give these speeches that you know, somehow
they are being bullied. We can't even make you adhere
to a code of ethics. So you're not being bullied.
You're the most powerful institution in this country. Thank you
have power since Marbury versus Madison to say what the
law is. That's huge in the most powerful country in
the world. So stop number one, but number two, stop
(22:38):
with the gas lighting, like don't don't, don't play these games.
You're doing that by not respecting your own precedent. So
I think there are things like that that really bear
some really really serious conversation and examination that something's off
the rails there, that they were not able and that
the leadership was not able to say, well, listen, whatever,
(22:59):
we're gonn dude, this is not how we do it.
We are the United States Supreme Court President matters and
and and to have abandoned that seems to me incredibly reckless.
In not two, the Spring Court of course, issued one
of the worst decisions, in my view, in the history
of the United States, Spring Courts Shelby County versus Folder,
(23:19):
which is a decision that UM undermined the key provision
of the Voting Rights Act, which actually set off this
wave of voter suppression that we've been seeing since then.
Prior thirteen, almost all of the states in the South,
as well as other directed boroughs in New York and
counties in California, New Hampshire and so forth, had to
submit any voting changes that they wanted to make to
(23:40):
a federal authority for approval to make sure that it
doesn't discriminate against black, Latino Asian American Native American voters.
This was the core provision of the Voting Rights Act
of nine, which you know has been called the crown
jewel of civil rights statutes. Right. So Justice Robertson in
the majority opinion pretty much guts that and out there's
(24:00):
no preclearance formula. That is, you know, no jurisdictions have
to submit changes. They can just make them right. So
all these states go crazy, and that's what we've seen happen.
But what the report said and that Shelby decision was
but you still have this other provision of the Voting
Rights Act, Section two, and Section two is the provision
we use um to sue for voting practices that are discriminatory.
(24:21):
And they said, you still got that tool, right, great,
And so we've been bringing Section two cases and winning
a bunch of them, challenged voter i d laws on
the Section two. Courts have found that that some of
these laws were passed to intentionally discriminate, and so forth.
Last summer, the court size the case is called Bernovitch
versus Democratic Party of Arizona, And in that case, the
(24:42):
writer of the decision is Justice Alito, And anyone who
hands the pen to Justice Alito to write a case
involving a civil rights statute knows what they're doing. And
Justice Alito essentially rewrites the standards for how Section two
cases are to be assessed. And he does it in
the middle of the fact that we're litigating all these
Section two cases challenging these voter suppression laws. Basically, this
(25:06):
Supreme Court that's supposed to want to be so restrained,
that believes only in the text and the original intent,
decides to just right themselves how they think these cases
should be evaluated UM and power grab basically over what
Congress said was the appropriate set of standards that should
be used. That's a powerful moment. And I wrote a
(25:30):
piece that was in the New York Review of Books
a couple of weeks ago about the relationship between what
the Court is doing around abortion uh and what the
Court's doing around voting, and in particular, in the draft
opinion UM Justice Alito's statement that you know, women are
not without political power. We now return this issue to
(25:50):
the states, where all women can exercise their electoral power
and decide themselves whether they want this Abortion Act is
to go forward. And so I wrote about the intense
cynicism of that right of pretending that you're not aiding
and abetting the restrictions on the right to vote for
(26:12):
black and Latino women right while you're saying women have
political power. The cynicism of that is unreal. It's kind
of staggering when you think about it. It is so
here you are actively diminishing uh, leaving the door opened
for the diminishment of of the voting strength of black
(26:32):
women and Latino women. And then you're gonna say in
Dobbs women, you know, and so the poor center of
my pieces, to which women is justice of letal referring
when he says not without political power, now, I leave
it all in your hands. So there's some some real
cynical stuff happening that also undermines a sense of confidence
that this is all on the up and up, you know.
(26:54):
Speaking of politics, Democrats, though not Biden, have floated the
idea of expanding the court beyond nine justices. It's been
done several times before throughout history. Do you think that
that is a legitimate way of approaching some of the
issues that we're facing with such a profoundly unbalanced court.
So I was asked to join president by the Supreme
(27:16):
Court Commission, and I did join it. I was the
only person actively leading in organization that litigates before the Court,
and I did it because I think that this conversation
is not for bolting, is the point, right. I didn't
um stake out my views on that particular issue, but
(27:37):
it is perfectly appropriate to have a conversation about the
size of the court, about court ethics, about court recusal.
That is not bullying the court. You know, court does
not and I've been saying this over and over again,
it does not sit above our democracy, it sits within it.
It may be at the top of the food chain,
(27:58):
but it's still under the covering of our democracy. And
Congress has the power to regulate the size of the court.
Nine is not magic. You know, We've had six member
court before. I would remind people that we had an
eight member court after Justice Scalia passed away, and Mitch
(28:18):
McConnell and the Republicans were prepared to keep the Court
that way. And I think there's something kind of weird
right about deciding that one political party can decide how
many members are on the Supreme Court. At one point
we had seven members on the Court, as I recalled
for a brief period of time, and the idea that
having this conversation is an assault on the court or
should compel us to flutch our pearls. I joined the
(28:40):
commission because I thought, Wow, we're doing an actual piece
of scholarly work, and this is how it should be
done in stages um. The conversation should happen in places
that are not just political spaces. It was a bipartisan commission.
There were disagreements among you know, members, right, and I
thought that's great. We should be having this kind of
conversation and if that's what it comes to and that's
(29:03):
what Congress decides, that will be what Congress decides. And
people should stop pretending that it means the end of
the republic when people were perfectly prepared to accept one
political party deciding that we would have eight members until
they controlled the presidency again, and they were open about it.
They were like loud, they were quite open. And if
you know people who you can google it. And the
(29:25):
more the court, members of the court, I won't say
the court, I'll say members of the court come out
and offer these truculent speeches about how they're being bullied,
and we won't. I mean, I have to be honest.
I'm I'm kind of a sucker for a little bit
of mystery about it makes them sound silly. Yeah, it's like,
just just speak to us from the court, from the bench.
We don't need to know all your thoughts. Yeah, really, honestly,
(29:49):
it only makes it worse. We see, things can be improved,
including in ethics, including in as I was just discussing
the appearance of impartiality. They can improve, just like everyone.
And when they stop making these speeches suggesting that they
think they are above critique or above improvement. That actually
serves to further underpet confidence in the court, because it
(30:09):
is alarming. That is not the speech of leaders in
a democracy. Sherilyn Eiffeel, you are forced to be reckoned with.
Thank you so much for joining me on The Rock
Sande Gay Agenda. Well, first of all, I just want
to say how glad I am that I had to
be on this show, and I'm so sorry that such
a tragedy has occurred. And then we've didn't talk about
pop culture because yes, that would be That's my dream,
(30:32):
That's all I ever really want to talk about, and
every time something happens, I'm like, y times, I got you.
We will have that conversation and it will be great.
You can keep up with me and the podcast on
social media on Twitter at r k and Instagram at
Roxanne by four. Our email is Rosanne Day Agenda at
(30:52):
gmail dot com from Luminary the Rock. Sane Day Agenda
is produced by Curtis Fox. Our researchers Yes send you Mareno,
and production support is provided by Caitlin Adams and Meg Pillow.
I am Rosann Gay, your favorite bad feminist. Thank you
for listening.
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