Our Democracy in Crisis - Justice (Dahlia Lithwick & Sherrilyn Ifill) - You and Me Both with Hillary Clinton

Episode Transcript
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Speaker 1 (00:00):
You and Me Both is a production of I Heart Radio.
I'm Hillary Clinton and this is You and Me Both.
Today we're talking about our nation's courts, and that's part
of our ongoing look at the state of our democracy
on this season of the podcast. On February, President Biden

(00:22):
announced his pick to replace retiring Supreme Court Justice Stephen Brier,
who'd been appointed by my husband. Justice Brier leaves the
Court at the end of this term in June. I
was delighted that the President nominated Judge Katangi Brown Jackson.
She's a highly respected jurist with impeccable credentials. Will learn

(00:47):
more about her as the confirmation process begins, with hearing
set for later in March. Before we get to all that, though,
I think it's important to take a moment to celebrate
the fact that Judge Jackson will be the first African
American woman ever to serve on the highest court in
our land. And I'll take every chance I can get

(01:10):
to celebrate some good news coming from the Supreme Court, because,
let's face it, lately, it's been in short supply. If
any of us thought our judiciary would protect us from
assault on our democracy, so much of which we've witnessed
over the past five years. It's not a guarantee at
all that our Supreme Court will stand up against the

(01:34):
powerful forces attempting to undermine our democracy. Later, we'll hear
from Sherylyn Eiffel, the outgoing president of the n double
a CP Legal Defense and Educational Fund known as ldf
Rylyn will share her views on President Biden's historic nomination

(01:54):
and our nation's larger fight for civil and human rights.
But first I'm speaking with Dahlia Lithwick. If anyone knows
about the Supreme Court, it's Dahlia. She's been reporting on
the Court for the online magazine Slate since she's also
the host of Amicus, Slate's podcast about the law and

(02:19):
the Supreme Court. You may have seen her on Rachel
Maddow or CNN or The Daily Show because she's a
popular guest who is so good at cutting through all
of the legal mumbo jumbo to explain what's actually going
on at the Court and why it matters to everybody.
And she's just finished writing a book that I think

(02:42):
is terrific. It's called Lady Justice, Women, The Law and
the Battle to Save America, and it's due out this fall. Hello, Well,
this is thrilling. So let me first welcome you to
the podcast, Dahlia. It's such a treat or me to
have this chance to talk with you, someone who I

(03:04):
really appreciate because of your in depth and very smart
analysis of what's happening in the law, what's happening in
the courts, particularly the Supreme Court. Let me start, though
not at the beginning exactly, but to acquaint our listeners
with your background. How did you end up covering the law?

(03:27):
Have you always been interested in legal cases, court cases
and the like. Well, so, first of all, Secretary Clinton,
this is just a huge enormous honor and privilege, So
thank you for having me. And I think that the short,
and it's going to sound crituitous and pandery answer, is
Children's Defense Fund, which you are familiar with. And I

(03:50):
was of a cohort. I think in people who graduated
in like between nineteen eighty nine and ninety two, all
heard Marian right Edelman give their commencement speech, and all
of us, like Lemmings, decided we wanted to do what
she did. And so even though my undergraduate was entirely

(04:11):
in literature, I didn't think of myself as a lawyer
at all. I got it in my head that I
needed to go to law school and become a children's
advocacy lawyer. I was terrible at law school. I dropped
out after my one l year. I wrote a fiery
note to the dean saying, this is a soulless corporate place,
and your monsters worked at Children's Defense Fund, at which

(04:33):
point they said, please go back to law school. You're
not used to us. So I had to beg my
way back in first rule of lawyering, don't put it
in writing to the dean. And so then I just
really was enchanted with the possibility that law could change
the world for people. And then when Slate magazine was
being invented in Uh, I was lucky enough to cover

(04:54):
first the Microsoft trial for them and then the Supreme Court,
and so I think it was a little bit of
a sideways thing, but I think it's always, as is
the case for so many people. In hindsight, it makes
perfect sense. I love that story because, of course it
resonates with me on so many levels, being someone else

(05:15):
who was immediately enamored of Mary and Wright Edelman when
I met her in my first year of law school
all those years ago, and had the great privilege of
working for her at the Children's Defense Fund, and she
had a way of really making the law seem like
it was a tool for justice. So you and I

(05:38):
have a lot of you know, common experiences, which may
then lead us to have some common apprehensions and cotton
views about what's happening in our world. And so let's
look at the big picture. You know. One of the
long term strategies of those who want to turn the

(05:59):
clock back on the progress that has been made in
civil rights and human rights and women's rights and reigning
in unaccountable corporate power and so much else. Is this
uh takeover of the courts, something that has been a
goal for a very long time, aided and ambetted by

(06:20):
those who don't like the changes that we've seen in
our country in the last twenty years. And we see
the Supreme Court as really in the center of these
anti democratic battles. So let's get into that. This is
an important session for the Supreme Court. In the next

(06:42):
few months, we expect the Court to be ruling on
everything from reproductive rights to environmental protections to gun safety measures.
What are some of the biggest issues that you're following,
and then we'll go into a couple of them specifically.
I've been covering the Court for twenty years a little more,

(07:03):
and this will, without a doubt be the most singularly
important term of my career. It already is. We are
one year and change into a six three Republican supermajority
and the Court, which I naively thought going into the election,

(07:25):
would pump the brakes a little. I thought, they don't
want to reverse row in June going into elections, they
don't want to open the floodgates to open carry concealed
carry everywhere. Going into the election, those are wildly unpopular
positions if you look at the polls. I was wrong.

(07:46):
I thought break pumping was going to be the order
of the day, in no small part because I thought
Chief Justice John Roberts was in charge of the Court.
He's not. This is a six three super majority in
when which to the extent that he peels off and
votes with the Liberals, he's still on the losing side.

(08:06):
So we are looking at a world that is unrecognizable
from the Court of even one year ago. And I'm
not sure we've integrated that into how we think about
the Court, and I'm not sure the what I would
call Professor Leah Littman has called it the hashtag yolo

(08:27):
you only live once wing of the Court, which is
Clarence Thomas and Samuel Alito and Neil Gorsich. They're doing
the opposite of pumping the brakes. They are all in.
They are all in for, as you noted, expanding gun rights.
They're all in for, I think, doing away with reproductive freedom.
And I think this may be the term we see

(08:47):
that they are all in for dismantling the administrative state,
pretty much kneecapping agencies that set the policies that we
all live under, which guest impact environmental in a significant way.
They are all in for a really radical project of

(09:07):
expanding religious liberty and what that means. And every one
of those issues is on the docket everyone. So I
guess this is a long way of saying most of
the terms that I've covered, we'd have a big affirmative
action case. Maybe we'd have a big affirmative action case
and an abortion case. But to have everything every hot

(09:29):
button case is extraordinary. And so I guess maybe the
flip of your question is what isn't the Court deciding
this term? I think this is going to happen at
record lightning speeds in an election year, and the Court's
sense of its own immunity from any consequences in an
election year is one of the things that is most

(09:51):
terrifying and chilling to me right now. Well, if you
think about it, as you rightly said, so many of
the positions that they are promoting and intend to put
into decisions, either by reversing past precedent like Roe v.
Wade or expanding what I view as a questionable precedent,

(10:12):
such as in gun rights under the Second Amendment and
so much else, is an agenda that is very popular
with the far right of the Republican Party in our country,
and that is who they are serving. Remember, you know,
some people say, is this the Roberts Court, Is this
the Trump Court? I think it's the Federalist Society Court.

(10:34):
And the Federalist Society has had a very clear agenda
for as long as they've been around, and I have
obviously followed them closely, to reverse and it's a reversal
of advances that they view as undermining the kind of
America that they want to see a return to a patriarchy,

(10:59):
a return to keeping people who have opposing views in
their place, and that's what we're now watching. So let's
start with reproductive rights. This may be an unfair question, Dali,
but where do you think the court will land. It's
got two major cases, one coming out of Texas, which

(11:19):
we've heard a lot about, one coming out of Mississippi,
which we haven't heard as much about. What do you
think is likely the outcome here? That Texas case, that's
s B eight, which is the law that the Court
allowed to go into effect at the beginning of September,
which means ten of the people of childbearing age in

(11:42):
this country have not been able to have an abortion
in Texas. That is extraordinary. The Court simply allowed the
state of Texas to nullify Roe v. Wade Um, and
it was done through this tricky scheme, this enforcement mechanism,
where they just put this eight week abortion and ban
into effect. Usually, uh, if you want to stop an

(12:04):
eight week or twelve week or fifteen week ban, there's
somebody to sue, some state actor to sue. But in
Texas they cleverly said no state actor is allowed to
enforce this ban this band will be enforced by what
I think you and I could only call vigilantes. Anybody
can report the uber driver, the religious counselor the cousin

(12:24):
who drives you to an appointment, and there's no state
action and nobody to sue. So there was nobody for abortion.
But let me just stop for a second. There is
state action. The vigilante gets. Yes, the vigilante gets ten
thousand dollars as far as I understand that state money. Amazingly,
this issue of who can be sued is the question,

(12:45):
the only question that the Supreme Court weighed in on.
They waited in on it. Uh, you may recall on
the shadow docket, which means that they handed down a
secret order in the middle of the night, unsigned, unreasoned,
simply one paragraph saying Texas can go ahead and do this.
That happened in September, partly in response to massive public blowback.

(13:05):
And this goes to I think the court listens when
the public is furious. They moved it to the merits docket.
They actually heard these arguments, and then they came back
with the same answer. This is perfectly fine. The only
people who can be sued, the only state actors, as
you say, who are implicated in this scheme are a
handful of licensing officials. The providers can go ahead and

(13:27):
sue them because they have the power to shut down clinics.
That suit, by the way, has gone to the Fifth
Circuit Court of Appeals, one of the most conservative federal
appellate courts, and the Fifth Circuit has somehow sent that
to the Texas Supreme Court for more findings. And I
think it's just worth comparing, for one little second. When

(13:48):
there were COVID restrictions last year that kept people, for instance,
from praying, the court made decisions overnight. Here we have
the opposite. This can take years as far as the
court concerned. There's no urgency here. So that's Texas. And then,
as you said, the second cases, Dobbs, this is a
Mississippi fifteen week band. Again, it's explicitly unconstitutional viability, which

(14:12):
is the benchmark that has been agreed upon by the
courts for decades, UH is set at twenty four weeks.
Mississippi simply stuck a arrow into the heart of that
said we're going to go with the fifteen week band.
Come go ahead and sue us. And that was argued
this fall at the Supreme Court, and at that argument

(14:32):
we don't have an answer. We may not get an
answer in Dabbs. Until June it became manifestly clear that
that six three supermajority is not just prepared to chip
away at Roe v. Wade, which is what we used
to say, They're prepared to overturn it out right. Yeah,
that's what I think too, That's exactly what I think.
I think it's gone, and I think in overturning it.

(14:55):
The only hope that one can have is that they
will somehow overturn it based on Dobbs and not SPA Texas,
because this precedent for vigilante um is just so frightening
for the rule of law, for anything that we believe

(15:16):
represents order due process. But when Rowe is overturned or
so totally viscerated that it basically doesn't exist anymore, what
do you expect to see at the state level. Well,
so this is also grim news. Twenty six states already

(15:36):
are threatening to outlaw abortion altogether if Rowe is overturned.
I'm a little bit worried about what comes after that.
And there's two pieces of that that are worth thinking
through one is the precedent that gave us Roe v. Wade.
When the Court ridicules that and and they have ridiculed

(16:00):
the majority. What they don't, I think, fully appreciate is
that it's not just abortion. It is, as you know,
the right to contraception in Griswold between married people, and
that bucket of privacy, family integrity, autonomy, bodily autonomy, all

(16:20):
the stuff that gave us sodomy loss. That's exactly it's
it's the whole structure that was built on substance d process,
but also a right to privacy is the foundation for
so much of what we have seen in the past
thirty years develop, as you know, rights that women and

(16:43):
men can claim. And it's hard to know how radical
this Supreme Court is. I think a couple of members
truly are radical. And I wouldn't put it past Thomas
and Alito too, you know, go after gay marriage, go
after reception. I wouldn't put it past them at all,

(17:03):
because they're true believers. Now what I can't figure out
is are they true believers for religious reasons? Are they
true believers for you know, a broader right wing agenda
that they believe is where the country should go back to.
This is not clear to me, But the fact is
they are true believers, yes, And I think in some

(17:25):
sense we can talk about how wildly pro business anti
worker this majority is. We can talk about religious liberty
and abortion or opposition to lgbt Q rights. Uh, we
can talk about voting. It almost doesn't matter, you know,
whether it's a business imperative or uh, you know, kind

(17:47):
of hot button culture question. The fact is they're all
in for all of them, and it may shift. And
I think, you know, here's where I say the thing
that always makes people's heart stop, which is Brett Kavanaugh
is now the media justice on the court. Yeah, that's
that's terrifying. He is one of the most conservative jurists. Yeah,
but he's an opportunistic conservative. He he's somebody who you know,

(18:11):
decided out of Yale law school and being a country
club Republican that he was, you know, going to go
whichever way the wind was blowing to try, you know,
to become a federal judge, and the strongest wind was
coming from the right. So there he is. But I
don't want to run out of time before we get
to another terrifying issue. I hope that our our listeners

(18:33):
are not listening to this before they go to bed.
That's all I can say. We're taking a quick break.
Stay with us. Look, the issue of gun control is

(18:54):
on the docket. Can you explain the case in front
of the court right now? Because this is crazy, Dahlia.
I thought the Heller decision, which is the decision that
blew open the Second Amendment, turning it from a well
regulated militia amendment to an individual right no matter where,

(19:15):
who or how I thought that was so phony, but
nevertheless it was decided and became president. Now they just
can't find enough reasons to let people who are eager
to get a hold of guns get them. Yeah, this
this is another place where the Supreme Court took baby

(19:38):
steps because they could afford to take baby steps. And
once the Supreme Court in Heller, as you say, out
of whole cloth, invented this individual right to bear arms
in the home to protect yourself. And there is ample
history that shows that that was just a completely wrongheaded,
veristic readings results oriented at slutely. And then we waited,

(20:02):
and we waited, and the court kept getting gun cases
that wanted to expand that right and because Anthony Kennedy
for so many years, as you know, was the swing vote,
they could never get enough justices to agree that they
should expand Heller. The minute, Amy Coney barrett Is stated
on the court the court was like, you know what,

(20:22):
we're all in. Let's do it. We've got the votes. Now.
This is a seemingly trivial it's a New York licensing regulation,
but it opens the floodgates if the Court were to
say that this licensing regulation that says you essentially need
to show some cause for being able to carry your
gun out of your home. At oral argument, it was

(20:44):
truly on skates on stilts performance of the love of guns.
Trump's all the idea that we heard from the conservative
wing of the court that somehow we are all hobby
old when the state doesn't let us carry guns on
the subway. Sam Alito wants, I just I mean, I

(21:06):
find this, so what are they talking about? It goes
to just to to finish the answer. It certainly appears
after oral arguments that the Court is going to absolutely
allow for massive amounts of carrying of arms everywhere, again
wildly in violation of all polling numbers which say that

(21:29):
nobody wants people to be able to carry everywhere and anywhere.
We witness the results of that every single day in
this country. But I think that it goes to something
you said about vigilantism. I think that two things happened
in that argument that were for me, god smacking and
didn't get enough attention. One, as I suggested, was just
as Alito feeling unbelievable empathy and compassion for the poor

(21:54):
office worker in Manhattan who has to travel by subway
at night and doesn't have a gun, and the idea
that his life is better if he can shoot people
on the subway, and the idea twinned with that that
the licensing officials in New York are somehow part of
a nefarious plot that the Deep States the deep state

(22:16):
deep state, and that they willy nilly give guns to
some people but not others. It's very reminiscent of how
Justice Gorsuch was talking about the Governor of New York
and her really nefarious plot to get people vaccinated. And
so I think that there's a real thread here that

(22:38):
if at the risk of making all the people who
are listening at night need another melatonin, I think the
thread to pull on is that they have evinced such
mistrust of government itself that the cops can't keep you safe,
that the governors of the states want to shut down
your church services and COVID all of that, And so

(23:00):
I think I just want folks to sort of try
to pull these strands together because it sounds so wonky
in ductrinal, but deep deeply embedded in this is a
mistrust of state actors and a notion that we are
all just out to protect ourselves. And I find that
so absolutely terrifying. I find this all reminiscent of a

(23:25):
kind of wild West dream that somehow, you know, we're
going back to when men were men and women were
their helpmates, and the strong guy with the gun protected everybody,
and you know, the government was messing in your life.
They were trying to, you know, take your land and
give it to settlers instead of letting you keep your

(23:46):
cattle on it. I mean, this is the mindset. Sadly,
we are running out of time because I could literally
talk to you for hours, as you could tell Dalia,
But let me ask you this, what could just an
everyday citizen do about any of this? I think there
are two things and one of them seems fanciful, but
I'm going to say it anyway. Um, after SP eight

(24:08):
was allowed to go into law, and I would talk
to women's groups, who, really, I think I couldn't believe
how quickly the world had changed under their feet. One
of the things that I started to tell them was
my sort of Yellowstone Park theory of the Supreme Court,
which is essentially, when you go camping at some of

(24:29):
the national parks, the rangers tell you that if you
meet a bear, you have to be larger than you are,
which violates all laws of time and space and physics.
But what I think it means is you just have
to just appear huge. And I do think that being
larger than you are does have some effects on the Court.
That one of the reasons the Court thinks it can

(24:51):
get away with changing religious liberty roles on the shadow
docket or taking away abortion for ten percent of the
child bearing population on the shadow docket is because they
think we don't care. And I think that bear theory,
which is oh hell now, is why the Court agreed
to hear s B eight on the Merits docket. I

(25:12):
think they pull back sometimes, and I think that thirty
eight percent approval rating that they started this term with
the lowest since polling began. On the court, that matters,
and I think that we have to be big. The
other thing is, and this is I know, a whole
other podcast, but it's just democracy reform. It's the incredibly

(25:34):
boring work of filibuster reform. We have a malaportion Senate
that doesn't represent millions of people. We have an electoral
college you know better than anyone, doesn't represent millions of people.
We have a system of democracy set up to take
power away from majorities and give them to minorities. And

(25:57):
and this is the part that is in my lane.
We have a fring court that consistently blesses that the
court itself is putting a thumb on the scale of
minority rule, certain minority Let's be clear, seminority rule, We're
not talking about people of minority races or ethnicities, or
religions or points of view. We're talking about a hardcore

(26:20):
right wing minority. Correction accepted, enthusiastically seconded. And I think
we have on our side not organized around the courts.
We're still kind of asleep. I mean, we're still not
paying attention but let me end on a hopeful note, Dahlia,
because I always try to circle back to that is

(26:40):
there any good news in terms of legal decisions or
actions that you can point to. So my book is
in some sense an answer to the millions of women
whose heart's just broke when with Bader against or died

(27:00):
and who just felt, you know, who is our gladiator
for women in the law, And they're right, but they're
so wrong because there are so many women, thousands running
around making democracy work. And I actually think women are
spectacularly well suited for this legal work. As you know,

(27:23):
there is something about this is going to hurt your heart,
but the threat of lock her up that is really
salient for women because we understand in a way that
I think a lot of people don't, that we live
on the knife edge that law gave us rights and
law wants to, as you said, turned back the clock

(27:43):
and turn us into channel. And so the women who
have organized, whether it's Stacy Abrams, whether it's Fanita Gupta,
Becca Heller at the Airport's the day after the travel ban,
Robbie Kaplan and Karen Dunn fighting the Charlotte's film Nazis,
I could go on. These women, I gotta tell you,

(28:05):
they rocked my world, and they don't give up, and
so I guess I just end. It's interesting. My New
Year's podcast on Amaricus was with Carlyn Eiffel, who is
I'm sure for you too. I'm going to talk to
her to a north Star, and she reminded me that
if you are black or brown, or a woman, if

(28:26):
you are poor, if you are disabled, this was always
your America. There's a story we like to tell, but
it was always standing in line to vote, it was
always having your voter ide rejected. It was always having
to travel to some clinic hundreds of miles away. And
so now I guess we all live there, all of us, yes, right,

(28:49):
and we have to, you know, not only support those
on the front lines doing this work, as you rightly
point out, but the many millions and millions of women
whose voices names we may not know, but who deserve our,
you know, support in every way we can politically and legally. Well, Dahlia,
I cannot thank you enough for talking with me. Um.

(29:12):
You and I are in vigorous agreement about what's going
on in the world, and I think also in vigorous
agreement that we can't give up, we can't walk away,
no matter how tired we are. And maybe I could
just say, I think for really a lot of us,
we might not have gone to law school if we
hadn't seen what you were doing. We might not be
doing the work of protecting children if we hadn't seen

(29:33):
what you were doing fighting about healthcare, seeing what you
were doing, and I think we have to just recognize
the amazing, awesome power all around us and just not
give up. To read and hear more from Dahlia, go
to slate dot com, where you'll find her frequent court

(29:57):
reports and her podcast Amicus. We'll be back right after
this quick break. Even before Dahlia name checked Marylyn Eifel

(30:18):
at the end of our conversation, I knew I wanted
to hear from her for this episode. For nearly a decade,
Sherilyn served as the President and Director Council of the
n double a CP Legal Defense and Educational Fund called LDF.
Before that, she was a law professor for many years

(30:39):
at the University of Maryland, and I have to say
I envy the students who had the privilege of studying
with her, because she can make a clear and compelling
case for just about anything. Last year, Sherylyn was named
one of Times one most Influential People of the Year,
and around that time she announced she would be leaving

(31:02):
her position at the LDF this spring. I am so
delighted to welcome to the podcast Marylyn Eiffel. Hey, Marylyn, Hi,
how are you. I'm excellent, I'm so happy to see you.
Let me start with um one of the big piece
of news. There's so much news happening it's hard to

(31:22):
keep track of it all. But you know, obviously, with
Justice Brier announcing he's retiring from the Supreme Court at
the end of the term. On February, President Biden announced
that he would nominate Judge Katangi Brown Jackson. So I
wanted to ask, do you know her? What do you
think of this pick? Well, thank you so much, first

(31:44):
of all, Secretary Clinton for having me on the show.
I'm absolutely thrilled. And yes, this has been a really
interesting period. Obviously, President Biden had pledged that he would
um nominate a black woman for an available seat on
the Supreme Court. And I have to say, you know,
I'm a political watcher and a court watcher and had

(32:04):
prepared myself for the announcement. Um, but I think, like
particularly many other black women, I was just deeply moved
in the moment of the announcement, you know, watching Judge
Jackson and to see her standing before the first you know,
black woman vice president, and uh, it was it was
a powerful moment. I know her record, I don't know

(32:25):
her personally. I feel very comfortable saying her her record
is extremely moderate. Um So I have been endlessly amused
by the claims that she has some radical left uh nominee.
I mean, obviously, I'm a civil rights lawyer. I like
my judges to the left. But she certainly obviously has
all of the qualifications and is well experienced and prepared. Well,

(32:49):
that's certainly is my perception from having read everything I
could about her. And you know, let me point out
that you are in a unique position to not on
evaluate a Supreme Court nominee, but really the state of
our justice system and in particular the Supreme Court. You know,
I'd be curious who or how did you become so

(33:13):
dedicated to defending our democracy to try and to make
it work for everybody? Does that come from your upbringing,
your family? And I have to mention your cousin was
the wonderful Gwen Eiffel, who educated us, entertained and informed us.
I had the privilege of being interviewed and meeting with
her numerous times. Did something happen in the kind of

(33:37):
extended Eiffel family that really equipped you to be a
warrior for justice and democracy? Well, you know, um, Secretary Clinton.
We we were raised I call service the family business.
We were raised with a very intense kind of gaze
on the world around us, and certainly were raised with

(33:57):
a very political lens. We came from very a very
humble background. Both of our dads their brothers, and we're brothers,
and we're immigrants, and um, you know, I think they
had some of the immigrants sense of um possibility in
this country and and really love for the possibilities of
this country. We grew up watching the news every night.

(34:18):
There were three newspapers in my home, you know, at
all times. And that was fun for us. I mean,
I've I've watched every presidential convention since I was a
quite a little girl at that time. But I remember,
and we would be excited when it was coming. It
wasn't like, oh my god, get the kids to con
We loved it. And you know, my father kept a

(34:39):
narration going at all times, particularly watching the news, you know,
kind of critiquing what they were saying. Um. He was
very into, you know, racial equality and issues of inequality.
He worked as a social worker up in Harlem. Um.
And so we just had that lens and I really
wanted to have some role. I imagined, you know, that

(35:02):
I could do something in in particularly in civil rights,
because I've seen so many documentaries and it seemed such
an exciting and noble work. Uh. And then you know,
I will say like many young black girls, and certainly
was true for me. Uh, the Watergate hearings were really
really powerful. Now, I don't want you to think that
some eight year old girl was like, oh, yeah, the

(35:23):
water Gate here is I I know, you know, it
was the only thing on TV. And know in those
days you didn't have five channels. So UM. I remember
I have many sisters, but my two sisters who were
at home with us, um, and we would have been
watching what we call the stories or the soaps. Uh
in those days. I was too young for that too.
But in any case, they weren't on because the water

(35:44):
Gate here is were wall to wall on every channel,
so there was nothing else to watch, so we ended
up watching it and that was where I had the
opportunity to see Barbara Jordan's and I've never really seen
anyone quite like her, you know, a black woman with
that measure of power in that kind of sphere where
she was exercising it. And most important for me was

(36:05):
the power of her voice and a certain moral authority
that you just could not deny. And I loved it.
And so that's been my commitment in my my entire life.
And I'm endlessly committed to the possibilities of this country.
You know, I'm in the unique position of many black
people who see the deep flaws of this democracy, the deep,

(36:29):
deep flaws, and yet who are committed to working to
make it better. And I think the moment we're in now,
Secretary Clinton, is a really powerful and important one. It's
the time where I think so much that people like
me have seen and been talking about for decades is
being exposed to the larger public. The deep fishers of inequality,

(36:49):
the ongoing embrace of white supremacy, all of these things
didn't just spring from nowhere, and they didn't they weren't
ushered in by former President in Trump. They have been there,
and we have not tended to them and confronted them
forthrightly and recognized how threatening they are to the integrity
of our democracy. I could not agree more with you, Carolyn,

(37:13):
and I just want to build off of your story.
It's not enough to say you've been standing up for
social justice. You've been standing up for civil rights and
voting rights. You've been standing up for America. That's how
I view your work. So talk to me and our
our listeners about how as someone on the front lines,

(37:37):
as a litigator, a law professor, as the head and
director of the Double a CP Legal Defense Fund for
the last now nearly I guess ten years, you see
where we are when it comes to social justice and
the courts, and in particular voting rights. I think Secretary Clint,
you hit the nail on the head, which is one

(37:57):
of the challenges we have face, which I think is
kind of coming home to roost at this moment, is
that the work that I've devoted my life too has
largely been seen by the mainstream political realm and by
certainly by the mainstream media as a kind of a

(38:17):
side show. I don't. I don't mean that as a
in a derogatory way, but but but not part of
the center of conversations about American democracy, about American politics
and so forth. It's kind of there's the black vote
over here, there's this thing that maybe happens in the South,
and it's been treated as something collateral to the central

(38:38):
story about this country. Um. And this has been endlessly
frustrating for me. One of the things I was determined
to do when I took over the LEA the leadership
of the Legal Defense Fund in two thousand and thirteen
was to center the work of civil rights in the
conversation about American democracy. And I remember I did the
commencement address at my my alma mater and why you

(39:02):
law School, and I said that civil rights work is
democracy maintenance work. Do not let anyone tell you that
this work is somehow off to the side. We are
the ones who have the courage to look without rose
colored glasses at the flaws in our democracy. And how

(39:22):
do you how do you diagnose the health of your democracy?
You look at how it works or doesn't work in
the lives of those who are at the margins and
those who are at the bottom. It doesn't matter whether
democracy is working for people who have every advantage right it.
I mean, it matters, but it doesn't tell you whether
the democracy is healthy or not. You have to look

(39:43):
in the difficult places. You have to look at how
democracy works in the lives of the people that I represent,
and that will tell you whether it's healthy or not,
and will reveal to you what the flaws are. And
to the extent you think that those flaws, you know,
it's like it's like your house. This is how the
the analogy I've always used is about the foundations of
your house. Obviously, if there are huge cracks in the foundation,

(40:08):
it matters, and you may even see it and be
alerted to it very quickly, and you will immediately bring
in the emergency crews. But what about the small cracks
that accumulate and produce fundamental structural failure. That's what we see.
We're the early warning system. Still, voter suppression didn't just
start happening a few years ago. I joined LDF as

(40:32):
a young lawyer, as a voting rights litigator. So how
is it I was able to never have a dearth
of work, you know, fighting to protect the right of
black people to vote in the South, doing cases in Texas,
in Arkansas, in Louisiana and so on and so forth.

(40:53):
How is that possible? So it is the failure to
recognize that this has been a deep flaw that now
has encompassed the entire country. And as I have been saying,
what America has to wake up and understand is that
what is workshopped on those who are most marginalized ultimately

(41:17):
will come for the entire republic. Exactly. That's such an
important point, Sherlyn. I mean when you were talking about
the foundation, the image that popped into my head is
now we have literally people around the foundation of your
house with sledgehammers. They are beating in every way they
can imagine the foundation of our democracy. And I was

(41:41):
in the Senate when we voted nine to nothing to
reauthorize the Voting Rights Act. It was then signed into
law by President George W. Bush. We had no idea
when we did at on a bipartisan basis that the

(42:03):
Supreme Court under John Roberts would decide forget the Congress,
forget the evidence and the facts. We don't need some
of this enforcement stuff anymore. Can you explain the impact
that dismantling the underlying protections by the Supreme Court had

(42:25):
on your work and the in effect green light it
gave to state and local officials across the country. Well,
I love that you said green light because, as I remember,
just a day after the decision, I think it was
the Secretary of State of Florida said we're free and
clear now. And and two hours after the decision, the
Texas story in general, you know, and and the Texas

(42:48):
officials indicated their plan to pass a voter I D
law that they had been unable to get pre cleared
under section five several years earlier. And preclearance means that
under the law that was asked if there had been
a history of racial discrimination or ethnic or some other
kind of discrimination, but principally language minority, last minority, and

(43:11):
racial principally racial, that states had to say, okay, we
want to do this, and the Justice Department could say,
wait a minute, that violates the law, right, yeah, And
let's take that back to why we needed this structure, right. So,
and remember the Voting Rights Act has many different components.
The part we're talking about is the part under section five,
and it is the reason why the Voting Rights Act

(43:32):
has been described as the most um, consequential and successful
civil rights statute of the big three civil rights statutes
you know, passed in the in the nineteen sixties, because
it is the only one that came up with a
mechanism for getting at discrimination before it happened. Exactly. So,
the jurisdictions that were covered by this formula, jurisdictions with

(43:52):
this history of discrimination, if they wanted to make a
voting change, would have to submit it to a federal
authority in order to get that change pre cleared. And
those federal authorities would do would be to evaluate and
assess whether the planned and the proposed change had a
negative effect on voting rights or the voting strength of
the Black community, or the Latino community as it or
Asian American communities as you would have it, And that

(44:15):
evaluation would happen with input from the community. LDF and
other organizations would weigh in. Then they would either preclear
it Department of Justice, which is allowed it to go forward,
or they might ask for additional information, or they might
object to the change. So that was the infrastructure that
had been in place since nineteen when John Roberts and

(44:35):
the majority of the Supreme Court in two thousand and
thirteen decided to uh strike down that preclearance formula, essentially
on the theory that things had changed, that we should
no longer be branding the South with this label, as
though they were somehow more that the Southern states are
more racist in some way than states in the North.

(44:55):
In fact, that was kind of the question that John
Roberts continuously asked, do you believe counts that the South
is more racist than the North? Of course, the preclearance
formula didn't just cover the South. It covered the Southern States,
It covered, most of the day, all the states of
the old Confederacy, but it also covered three boroughs of
New York City, It covered counties in California and New
Hampshire and other places as well. When they lifted that,

(45:18):
it's important to know what that majority did. They not
only supplanted their judgment for senators and the three House
members that had reauthorized the Act in two thousand six,
which is enough of a power grab to be alarming.
And I say power grab quite literally because when you

(45:39):
read the fourteenth and fifteenth Amendment, the enforcement clauses of
those amendments give to Congress the power to ensure that
the protections of the Fourteenth Amendment, which guarants guarantees equal
protection of laws, and the fifteenth Amendment to the Constitution,
which protects against a voting discrimination based on race, Congress
is empowered to ensure their guarantees. So they supplanted not

(46:02):
only the judgment of Senators and House members in two
thousand six, but every Congress that reauthorized it, and the
Congress in nineteen who recognized the importance of the preclearance formula.
They said in the Senate report that accompanied the Act,
they wanted to get at voting discrimination that was happening

(46:23):
in the moment, but they also said it was designed
to get at and I'm quoting now ingenious methods that
might be adopted in the future, which means that the
Congress understood that the efforts of white supremacists to suppress
the votes of black people was not going to go away,

(46:43):
that it was likely to do what racism always does,
its shape shifts and it emerges differently. In nineteen voter
I D wasn't the issue. Even the racist segregationists in
nineteen sixty four hadn't thought of what Georgia has now
thought of, which is that you can't provide water to
someone standing online. These are the ingenious methods, however, that

(47:08):
they anticipated would be created in the future, and they
created an infrastructure in the statute to ensure that black
voters were protected against what they suspected and knew would
be the future methods of voter suppression. So that's what
happened in and it is why after we saw this

(47:29):
profusion of voter suppression laws happening not only throughout the
South but also in places that had never been covered
by Section five, said hey, hey, now we can do
this too, right, because the preclearance structure actually sent a
message to the entire country about what practices were discriminatory
and what practices were not so removing. It actually ended

(47:53):
up metastasizing voter suppression into something that now encompasses the
whole country and can utilized in order to suppress the
votes of racial minorities, elderly students, disabled people, any pockitive
voters that you think maybe contrary to your ability to

(48:14):
exercise power. And right now it is the Republicans who
are at the state and local level using these tactics
to enact restrictive laws that LDF is litigating in multiple
courts in Florida and Georgia and Texas. But it is
an uphill battle. So it's a very emboldened and in
my view, reckless Supreme Court, and it is taking advantage

(48:37):
of the political deadlock that has made Congress not able
to correct this decision. And the Court knows it can
take advantage of that because nothing's gonna happen. We'll be
right back. Let's really unpack this, Sherilyn, because the people

(49:08):
that were put on the court under Bush and Trump,
We're very clear about their job. They were on a mission,
weren't they, And their mission is to side with those partisan, ideological, religious, corporate,

(49:29):
financial interests that have a very different view of our country.
And I feel very strongly that it will sadly get
worse despite the best efforts of the LDF and others
who are standing in the breach. Well, I I can't
co sign that because we continue to litigate before the court.

(49:51):
You know, we've we've got certain petitions pending and cases
on the docket for next year. But what I can
say that I think it's important is that the court
also has to function in a way that serves democracy.
Core and critical, as you know around the world, to
any truly functioning and healthy democracy is the rule of law,

(50:13):
a functioning justice system. Um. And one of the things
that it's most disturbing to me, and you know that
I'm actually thinking about quite a bit as I leave
l DF, is the ways in which we have to
be honest about what are the flaws in our justice
system and how important they are. Once again, these are
the cracks that have to be examined and that have

(50:33):
to be fixed. And the Supreme Court is not does
not sit outside of our need to evaluate and review
the strength of our democratic structures. They don't sit above
and on top of our democracy. They are part of
our democracy. It's one of the reasons Secretary Clinton why
I joined President Biden's Supreme Court Commission, which was a

(50:55):
difficult decision to take. I knew how the commission had
been described and framed. Then, as I said, we litigate
before the court, and people have, you know, concerns about
whether the commission was designed to you know, address court
packing and so forth. Ultimately I decided to do it,
and I was the only person on the commission. Uh,
you know who leads an organization that litigates before the Court.
Most of the folks were, you know, academics of some kind.

(51:18):
Because I wanted to make sure that our voice was heard.
I wanted to be part of that conversation. And I
say this because it's not just the Supreme Court, it's
our profession in general, and those who are the leaders
of our profession who actually often lack this lens of
understanding the kind of litigation that we do at the
Legal Defense Fund, the kind of people that we represent,

(51:39):
and how these academic discussions about aspects of even Supreme
Court practice actually affect real people. Uh So, I do
think there's work to do, and it's and the Supreme
Court has got to be part of that work. We
have a right to ask questions about recusal practice on
the Supreme Court. We have a right to demand a
deep financial disclosure. We have the right to ask these

(52:03):
questions because the Supreme Court is a critical aspect of
our democratic infrastructure, just as we have the right to
ask that Congress members not trade stocks, or whatever are
the ways in which we want to address it in
the legislature, and whatever are the ways we want to
address the executive and what kinds of ways in which
we want to hold the president accountable. That's all part
of the democratic infrastructure, and our job as citizens is

(52:27):
to push and to demand that changes be made that
strengthen those elements of our infrastructure. And anyone who thinks
they are above it, whether it's President Trump, or whether
it's the Supreme Court or whether it is the Senate,
they're they're missing the concept. You know they are they
were either appointed and confirmed or elected to serve democracy. Well,

(52:52):
I could not agree more with you, And I think
that's an incredibly powerful description about why every buddy should
care about open debate and argument about what matters and
how best to come together to make our democracy work.
And I know you're writing a book now, Sherylyn, about

(53:13):
how our nation's embrace of white supremacy has impacted our
courts and of course beyond our courts, our country. And
I want you to explain why you're writing this book
at this time, and how, just as with your legal work,
this is for everybody. This is not just for Black
Americans or Brown Americans or Asian Americans. This is for everybody,

(53:38):
and talking about white supremacy should not be seen as
an attack on white people so much as a wake
up call about what's at stake in this fight. We
are engaged in to preserve our democracy for everybody. Okay,
so let me see if I can really do this succinctly,
because that's a whole show, you know you just described,

(54:01):
and yes, and it's really really, really important for people
to understand. There are so many allies in this work.
You know, the head of the Legal Defense Fund for
many years was Jack Greenberg. We have always had incredible
allies in the white community, in the Latino community, the
Asian American community, who have worked with us. And honestly,

(54:23):
it is only when we all are working together that
we're going to be able to strengthen this democracy. So
I am not having a conversation again that is a
niche conversation for one group of people. Let me give
you an example. After the video was released of the
murder of George Floyd, we saw the largest civil rights

(54:45):
demonstrations this country has ever seen. People came out of
their homes in the midst of a global pandemic because
they were moved by what they saw. These were multi
racial marches in all fift dates of people saying this
cannot be the country that I am associated with. We

(55:06):
cannot allow an officer of the state to kneel on
this man's neck for nine minutes and feel himself so emboldened,
feel so much that he will have impunity, that his
hands are in his pocket and he's staring at the camera.
It was a powerful moment, incredibly powerful. Was more than

(55:26):
a moment, it was it was months of protest. We
shouldn't lose sight of how powerful that was. I can
tell you that those who are arrayed in opposition to
justice and equality have not lost sight of it. What
they saw that day is part of what undergirds the
current movement that you're seeing around the country right now,
Secretary Clinton. That they are framing as an anti critical

(55:50):
race theory movement, but that when you read the statutes
that are being enacted in state after state and introduced
in state after state, they are outlawing the teaching of
material that they say will cause discomfort. This is these
are the actual words in the statute, guilt or anguish

(56:11):
on account of race or sex. Why do I say
this is a response because they saw the power of empathy,
They saw the power of white people seeing something that
is unconscionable. The same thing that white people who were
watching judgment at Nuremberg on CBS in felt when there

(56:35):
was breaking news and it was the images from the
Edmund Pettis Bridge, that these moments in which what wakes
up in all of us is our shared humanity, is
incredibly dangerous. And so what they don't want is to
have their children learning about the truth of the history
of racism and white supremacy, of the struggle for justice

(56:57):
in this country, of what has happened in terms of
gender inequality, of lgbt Q inequality, because they don't want
in their children the awakening of that empathy. And I
am sure, Secretary Clinton, that you and all of the
listeners who are listening today can remember moments as young
children when that empathy was woken up in us that

(57:21):
have forever shaped us as human beings. I was speaking
last night about being in the sixth grade and reading
the diary of Anne Frank, in which I can tell
you I felt guilt, I felt anguish, I felt discomfort,
not because I had done anything, but as a human
being seeing what could happen to other human beings and
connecting with this girl who was the same age as me.

(57:42):
So what they're trying to shut down is that feeling,
because that's the power. And I would never bother to
just write a book cataloging grievances. What I am writing
about is how white supremacy is so sticky you can
attach anything to it that undermines us. She could interfere
and conducted disinformation campaign in the election because of the

(58:07):
ongoing existence of racism and racial discrimination. They could exploit
those divisions, as they did if you read the Muller Report,
by targeting particular populations and voters to produce the result
that they wanted. They were able to exploit it because
of the existing weakness of racism and white supremacy in

(58:28):
this country. And that's what we have to understand. I
wrote a piece several years ago in the in the
Washington Post in which I described racism as a national
security vulnerability. Is it is absolutely that because it is
such a part of us, it is such a part
of this country's foundation, and it lies around so conveniently

(58:50):
and can be picked up and attached to almost anything.
The problem is that we have considered racism this issue
of kind of personal worthiness or not, whether you are
a good person, whether you have racism in your heart,
and so on and so forth. That's not what I'm
talking about. I'm talking about the structural and ongoing reality

(59:11):
of white supremacy and it's deployment by those who seek power,
by those who are greedy, by those who want to
divide us, And to help us understand that unless we
are able to confront this with some courage, it will
continue to be a national security vulnerability that others outside

(59:31):
the country can use, but it will also exploit us internally,
and we have to be courageous enough to confront it.
Black people confronted every day. And I'm asking all of
us who care. I'm not writing this book for Tucker Carlson.
I'm assuming I'm talking to people who care about democracy
and justice right to share with them this thing that

(59:52):
people are so afraid to talk about, but that in
fact has this inordinate and disproportionate power to ultimately destroy
whoa Sherylynne hurry up and write the book. Well, yeah,
I mean your description of the effort to literally deny, undermine,

(01:00:13):
eliminate empathy really strikes a chord with me. I cannot
thank you enough, and I just wish you the very
best as you get onto the next chapter of your
extraordinary life of service. Thank you, Marylyn, Thank you so much.
It was an honor. Keep an eye on shery Lynn.

(01:00:37):
I know she's going to keep making an essential contribution
to protecting, explaining, and strengthening our democracy. Now, before we go,
I want to let you know we've got plans for
a future episode where I answer questions again from listeners
and look, whether it's about the courts or politics, or

(01:01:00):
be writing a political thriller or comedy, I don't care.
I'm excited for you to send us your questions right
to You and Me Both pod at gmail dot com.
And who knows, I might just read your question on
the show You and Me Both is brought to you

(01:01:22):
by I Heart Radio. We're produced by Julie Subran, Kathleen
Russo and Rob Russo, with help from Huma Aberdeen, Oscar Flores,
Lindsay Hoffman, Brianna Johnson, Nick Merrill, Laura Olan, Lona Vel Moro,
and Benita Zaman. Our engineer is Zack McNeice and original

(01:01:45):
music is by Forrest Gray. If you like You and
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(01:02:06):
Thanks for listening and I'll see you next week. M

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Our Democracy in Crisis - Justice (Dahlia Lithwick & Sherrilyn Ifill)

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Hillary Clinton

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.css-14f5ked{margin:0;word-break:break-word;display:-webkit-box;-webkit-box-orient:vertical;box-orient:vertical;-webkit-line-clamp:2;overflow:hidden;}Our Democracy in Crisis - Justice (Dahlia Lithwick & Sherrilyn Ifill)