0:00

You and Me Both is a production of

0:02

I Heart Radio. I'm

0:06

Hillary Clinton and this is You

0:08

and Me Both. Today we're

0:10

talking about our nation's courts,

0:13

and that's part of our ongoing look

0:15

at the state of our democracy on this season

0:17

of the podcast. On February,

0:21

President Biden announced his pick

0:23

to replace retiring Supreme Court

0:26

Justice Stephen Brier, who'd

0:28

been appointed by my husband. Justice

0:31

Brier leaves the Court at the end

0:33

of this term in June. I

0:36

was delighted that the President

0:38

nominated Judge Katangi

0:40

Brown Jackson. She's a

0:42

highly respected jurist with

0:44

impeccable credentials. Will

0:47

learn more about her as the confirmation

0:50

process begins, with hearing

0:52

set for later in March. Before

0:54

we get to all that, though, I think it's important

0:57

to take a moment to celebrate the

0:59

fact that Judge Jackson will

1:01

be the first African American

1:03

woman ever to serve on the highest

1:06

court in our land. And I'll take

1:08

every chance I can get to celebrate

1:11

some good news coming from the Supreme

1:13

Court, because, let's face it, lately,

1:15

it's been in short supply. If

1:19

any of us thought our judiciary would

1:21

protect us from assault on

1:23

our democracy, so much of

1:25

which we've witnessed over the past five

1:27

years. It's not a guarantee

1:30

at all that our Supreme Court will

1:32

stand up against the powerful

1:34

forces attempting to undermine

1:37

our democracy. Later,

1:39

we'll hear from Sherylyn Eiffel,

1:42

the outgoing president of the n double

1:44

a CP Legal Defense and Educational

1:47

Fund known as ldf Rylyn

1:50

will share her views on President

1:52

Biden's historic nomination and

1:55

our nation's larger fight for

1:57

civil and human rights. But

2:00

first I'm speaking with Dahlia

2:02

Lithwick. If anyone knows about

2:04

the Supreme Court, it's Dahlia. She's

2:07

been reporting on the Court for the

2:09

online magazine Slate since

2:14

she's also the host of Amicus,

2:16

Slate's podcast about the law

2:18

and the Supreme Court. You may

2:20

have seen her on Rachel Maddow or

2:23

CNN or The Daily Show

2:25

because she's a popular guest who

2:28

is so good at cutting through all

2:30

of the legal mumbo jumbo

2:32

to explain what's actually going

2:35

on at the Court and why it matters

2:37

to everybody. And she's

2:39

just finished writing a book that

2:41

I think is terrific. It's

2:44

called Lady Justice, Women,

2:46

The Law and the Battle to Save

2:49

America, and it's due out this fall.

2:52

Hello, Well, this is thrilling.

2:55

So let me first welcome you to the

2:57

podcast, Dahlia. It's such a treat

3:00

or me to have this chance to talk

3:02

with you, someone who I

3:04

really appreciate because of

3:06

your in depth and very

3:09

smart analysis of what's happening

3:11

in the law, what's happening in the courts, particularly

3:14

the Supreme Court. Let me start,

3:16

though not at the beginning exactly,

3:19

but to acquaint our

3:21

listeners with your background.

3:24

How did you end up

3:26

covering the law? Have you always

3:29

been interested in legal

3:31

cases, court cases and the like.

3:34

Well, so, first of all, Secretary Clinton,

3:36

this is just a huge enormous honor

3:38

and privilege, So thank you for having me. And

3:40

I think that the short, and it's going to sound

3:43

crituitous and pandery answer, is

3:45

Children's Defense Fund, which

3:48

you are familiar with. And I

3:50

was of a cohort. I

3:52

think in people who graduated in like

3:55

between nineteen eighty

3:57

nine and ninety two, all heard

3:59

Marian right Edelman give their commencement

4:02

speech, and all of us, like

4:04

Lemmings, decided we wanted to

4:06

do what she did. And so even

4:08

though my undergraduate was

4:11

entirely in literature, I didn't think of

4:13

myself as a lawyer at all. I

4:15

got it in my head that I needed

4:18

to go to law school and become a children's

4:20

advocacy lawyer. I

4:22

was terrible at law school. I dropped out after

4:25

my one l year. I wrote a fiery note

4:27

to the dean saying, this is a soulless

4:29

corporate place, and your monsters worked

4:31

at Children's Defense Fund, at which point they said, please

4:33

go back to law school. You're not used to us. So

4:36

I had to beg my way back in first rule

4:38

of lawyering, don't put it in writing to the dean.

4:41

And so then I just really was

4:43

enchanted with the possibility that law

4:46

could change the world for people. And then

4:48

when Slate magazine was being invented

4:51

in Uh, I

4:53

was lucky enough to cover first the Microsoft

4:55

trial for them and then the Supreme Court,

4:58

and so I think it was a little bit

5:00

of a sideways thing, but I

5:02

think it's always, as is the case

5:05

for so many people. In hindsight,

5:07

it makes perfect sense. I

5:09

love that story because, of course it resonates

5:12

with me on so many levels, being

5:14

someone else who was immediately

5:17

enamored of Mary and Wright Edelman when

5:19

I met her in my first year of law

5:22

school all those years ago, and

5:24

had the great privilege of working

5:26

for her at the Children's Defense Fund,

5:29

and she had a way

5:31

of really making the law seem

5:33

like it was a tool for

5:36

justice. So you and I

5:38

have a lot of you know, common

5:40

experiences, which may then lead us

5:42

to have some common apprehensions

5:45

and cotton views

5:48

about what's happening in our world.

5:51

And so let's look at the big picture.

5:53

You know. One of the long

5:55

term strategies of

5:57

those who want to turn the clock back on

6:00

the progress that has been made in civil

6:02

rights and human rights and women's rights

6:04

and reigning in unaccountable

6:07

corporate power and so much else.

6:10

Is this uh takeover

6:13

of the courts, something that has been

6:16

a goal for a very long time,

6:19

aided and ambetted by those

6:21

who don't like the changes

6:23

that we've seen in our country

6:25

in the last twenty years.

6:28

And we see the Supreme Court

6:31

as really in the center of

6:33

these anti democratic

6:36

battles. So let's get into

6:38

that. This is an important session

6:40

for the Supreme Court. In the next few months,

6:43

we expect the Court to be ruling

6:45

on everything from reproductive

6:47

rights to environmental protections

6:50

to gun safety measures.

6:53

What are some of the biggest issues that you're

6:55

following, and then we'll go into a couple of them

6:57

specifically. I've

6:59

been covering the Court for twenty years

7:01

a little more, and this

7:04

will, without a doubt be the

7:06

most singularly important

7:08

term of my career. It already is. We

7:12

are one year and change

7:14

into a six three Republican

7:17

supermajority and

7:19

the Court, which I

7:21

naively thought going into

7:23

the election, would

7:27

pump the brakes a little. I thought, they

7:29

don't want to reverse row in June

7:32

going into elections,

7:34

they don't want to open the floodgates

7:36

to open carry concealed

7:38

carry everywhere. Going into

7:40

the election, those are wildly

7:42

unpopular positions if you look at

7:44

the polls. I was wrong. I

7:46

thought break pumping was going

7:49

to be the order of

7:51

the day, in no small part because I thought Chief

7:53

Justice John Roberts was in charge of the Court. He's

7:56

not. This is a six three

7:58

super majority in when which to

8:00

the extent that he peels off and votes

8:03

with the Liberals, he's still on the losing

8:05

side. So we

8:07

are looking at a world that is unrecognizable

8:10

from the Court of even one year ago. And

8:13

I'm not sure we've integrated

8:16

that into how we think about the Court,

8:19

and I'm not sure the what

8:21

I would call Professor Leah

8:24

Littman has called it the hashtag

8:26

yolo you only live once wing

8:29

of the Court, which is Clarence Thomas and Samuel

8:31

Alito and Neil Gorsich. They're

8:33

doing the opposite of pumping the brakes. They

8:36

are all in. They are all in

8:38

for, as you noted, expanding gun rights.

8:40

They're all in for, I think,

8:43

doing away with reproductive freedom.

8:45

And I think this may be the term we see that

8:47

they are all in for dismantling

8:50

the administrative state, pretty much

8:52

kneecapping agencies that

8:56

set the policies that we all live

8:58

under, which guest impact

9:00

environmental in a significant way. They

9:03

are all in for a really

9:05

radical project of expanding

9:07

religious liberty and what that means. And

9:11

every one of those issues is on the docket everyone.

9:14

So I guess this is a long way

9:16

of saying most of the terms

9:19

that I've covered, we'd have a big affirmative action

9:21

case. Maybe we'd have a big affirmative

9:23

action case and an

9:25

abortion case. But to have everything

9:28

every hot button case is

9:30

extraordinary. And so I guess

9:33

maybe the flip of your question is

9:35

what isn't the Court deciding

9:37

this term? I think this is going

9:39

to happen at record lightning speeds

9:41

in an election year, and the

9:44

Court's sense of its own immunity

9:46

from any consequences in an election

9:48

year is one of the things that is

9:51

most terrifying and chilling to me right now.

9:54

Well, if you think about it, as

9:56

you rightly said, so many of the positions

9:58

that they are promoting and intend

10:01

to put into decisions,

10:04

either by reversing past

10:06

precedent like Roe v. Wade or expanding

10:09

what I view as a questionable precedent,

10:12

such as in gun rights under the Second

10:14

Amendment and so much else, is

10:17

an agenda that is very popular

10:20

with the far right of the

10:22

Republican Party in our country,

10:24

and that is who they are serving. Remember,

10:27

you know, some people say, is this the Roberts Court,

10:30

Is this the Trump Court? I think it's the Federalist

10:32

Society Court. And the Federalist

10:34

Society has had a very

10:37

clear agenda for as long as they've been around,

10:40

and I have obviously followed

10:42

them closely, to reverse

10:45

and it's a reversal

10:47

of advances that they view

10:50

as undermining the

10:53

kind of America that they want to

10:55

see a return to a

10:58

patriarchy, a return to keeping

11:01

people who have opposing

11:03

views in their place, and that's

11:05

what we're now watching. So

11:07

let's start with reproductive rights. This

11:10

may be an unfair question, Dali, but where

11:12

do you think the court will

11:14

land. It's got two major cases,

11:17

one coming out of Texas, which we've heard

11:19

a lot about, one coming out of Mississippi,

11:22

which we haven't heard as much about. What

11:24

do you think is likely the

11:27

outcome here? That Texas

11:29

case, that's s B eight, which

11:32

is the law that the

11:34

Court allowed to go into effect at

11:36

the beginning of September, which means ten

11:39

of the people of childbearing age

11:42

in this country have not been able to

11:44

have an abortion in Texas. That

11:46

is extraordinary. The Court simply allowed

11:49

the state of Texas to nullify Roe v.

11:51

Wade Um, and

11:53

it was done through this tricky scheme, this

11:56

enforcement mechanism, where they just

11:58

put this eight week abortion and ban into

12:00

effect. Usually, uh,

12:03

if you want to stop an eight week

12:05

or twelve week or fifteen week ban, there's somebody

12:07

to sue, some state actor to sue.

12:09

But in Texas they cleverly said

12:11

no state actor is allowed to enforce this

12:13

ban this band will be enforced by

12:16

what I think you and I could only call vigilantes.

12:18

Anybody can report the

12:20

uber driver, the religious

12:23

counselor the cousin who

12:25

drives you to an appointment, and there's no state

12:27

action and nobody to sue. So there was nobody

12:29

for abortion. But let me just stop for a

12:31

second. There is state action. The vigilante

12:33

gets. Yes, the vigilante

12:36

gets ten thousand dollars as far as I

12:38

understand that state money. Amazingly,

12:41

this issue of who can

12:43

be sued is the question, the

12:45

only question that the Supreme Court weighed

12:47

in on. They waited in on it. Uh,

12:50

you may recall on the shadow docket,

12:52

which means that they handed down a secret order in

12:54

the middle of the night, unsigned, unreasoned,

12:56

simply one paragraph saying Texas

12:59

can go ahead and do this. That happened in September,

13:02

partly in response to massive

13:04

public blowback. And this goes to I

13:06

think the court listens when the public is

13:08

furious. They moved it to the merits

13:11

docket. They actually heard these arguments,

13:14

and then they came back with the same answer. This is

13:16

perfectly fine. The only people

13:18

who can be sued, the only state actors,

13:20

as you say, who are implicated in

13:22

this scheme are a handful of licensing

13:24

officials. The providers can go ahead

13:27

and sue them because they have

13:29

the power to shut down clinics. That

13:31

suit, by the way, has gone to the Fifth

13:34

Circuit Court of Appeals, one of the most

13:36

conservative federal appellate courts,

13:38

and the Fifth Circuit has

13:40

somehow sent that to the Texas Supreme

13:43

Court for more findings. And

13:45

I think it's just worth comparing, for one

13:47

little second. When there were COVID

13:49

restrictions last year that kept people,

13:51

for instance, from praying, the

13:53

court made decisions overnight. Here

13:55

we have the opposite. This can take

13:58

years as far as the court concerned.

14:00

There's no urgency here. So that's Texas.

14:03

And then, as you said, the second cases, Dobbs,

14:05

this is a Mississippi fifteen week band.

14:08

Again, it's explicitly unconstitutional

14:11

viability, which is the benchmark

14:13

that has been agreed upon by the courts

14:16

for decades, UH is set at twenty

14:18

four weeks. Mississippi simply

14:21

stuck a arrow into

14:23

the heart of that said we're going to go with the fifteen

14:25

week band. Come go ahead and sue us. And

14:28

that was argued this fall

14:30

at the Supreme Court, and at that argument

14:32

we don't have an answer. We may not get

14:34

an answer in Dabbs. Until June

14:37

it became manifestly clear that that

14:39

six three supermajority is not

14:42

just prepared to chip away at Roe

14:44

v. Wade, which is what we used to say, They're

14:46

prepared to overturn it out right. Yeah,

14:48

that's what I think too, That's exactly what

14:50

I think. I think it's gone, and

14:53

I think in overturning it.

14:55

The only hope that

14:58

one can have is that

15:01

they will somehow overturn

15:03

it based on Dobbs and not SPA

15:06

Texas, because this precedent

15:08

for vigilante um is just so

15:11

frightening for the rule of law, for

15:13

anything that we believe represents

15:17

order due process.

15:20

But when Rowe is overturned or

15:23

so totally viscerated

15:25

that it basically doesn't exist anymore,

15:28

what do you expect to see at the state level. Well,

15:31

so this is also grim news. Twenty

15:34

six states already

15:36

are threatening to outlaw

15:38

abortion altogether if

15:41

Rowe is overturned. I'm a little

15:43

bit worried about what comes after that.

15:46

And there's two pieces of that that are worth

15:48

thinking through one is the

15:52

precedent that gave us Roe v. Wade.

15:55

When the Court ridicules

15:57

that and and they have ridiculed

16:00

the majority. What they don't,

16:02

I think, fully appreciate is that it's not

16:04

just abortion. It is, as

16:07

you know, the right to contraception

16:09

in Griswold between married people, and

16:11

that bucket of

16:14

privacy, family integrity,

16:18

autonomy, bodily autonomy, all

16:20

the stuff that gave us sodomy loss.

16:23

That's exactly it's it's

16:25

the whole structure that was built on

16:28

substance d process, but also a

16:30

right to privacy is

16:32

the foundation for so

16:35

much of what we have seen in

16:37

the past thirty years develop,

16:40

as you know, rights that women

16:42

and men can claim.

16:45

And it's hard to

16:47

know how radical this Supreme

16:49

Court is. I think a couple of members truly

16:51

are radical. And I wouldn't

16:54

put it past Thomas and Alito

16:56

too, you know, go after gay

16:58

marriage, go after reception.

17:01

I wouldn't put it past them at all, because

17:04

they're true believers. Now what I can't

17:06

figure out is are they true believers for

17:09

religious reasons? Are they true believers

17:11

for you know, a broader right

17:14

wing agenda that they believe

17:16

is where the country should go back to.

17:19

This is not clear to me, But the fact is

17:21

they are true believers, yes,

17:24

And I think in some sense we

17:26

can talk about how wildly pro business

17:29

anti worker this majority is.

17:32

We can talk about religious liberty

17:34

and abortion or opposition

17:37

to lgbt Q rights.

17:39

Uh, we can talk about voting. It almost

17:42

doesn't matter, you know, whether it's

17:44

a business imperative or

17:46

uh, you know, kind of hot button culture

17:49

question. The fact is they're all in for all of

17:51

them, and it may shift. And

17:53

I think, you know, here's where I say the thing that always

17:56

makes people's heart stop, which

17:58

is Brett Kavanaugh is now the media

18:00

justice on the court. Yeah, that's that's

18:02

terrifying. He is one of the most conservative

18:05

jurists. Yeah, but he's an opportunistic

18:08

conservative. He he's somebody

18:10

who you know, decided out

18:13

of Yale law school and being a country

18:15

club Republican that he

18:17

was, you know, going to go whichever way

18:19

the wind was blowing to try, you know,

18:21

to become a federal judge, and the strongest

18:24

wind was coming from the right. So there he is.

18:27

But I don't want to run out of time before

18:29

we get to another terrifying issue. I

18:31

hope that our our listeners

18:33

are not listening to this before they go

18:35

to bed. That's all I can say. We're

18:40

taking a quick break. Stay with us. Look,

18:52

the issue of gun control

18:54

is on the docket. Can you explain

18:56

the case in front of the court right now?

18:59

Because this is crazy,

19:01

Dahlia. I thought

19:03

the Heller decision, which is the decision that

19:06

blew open the Second Amendment, turning

19:08

it from a well

19:10

regulated militia amendment to

19:12

an individual right no matter where,

19:15

who or how I thought that

19:17

was so phony, but nevertheless

19:20

it was decided and became

19:22

president. Now they just can't

19:25

find enough reasons to let people

19:27

who are eager to get

19:30

a hold of guns get them.

19:32

Yeah, this this is another place

19:34

where the Supreme Court

19:37

took baby steps because they could afford

19:39

to take baby steps. And once

19:41

the Supreme Court in Heller, as you say,

19:44

out of whole cloth, invented

19:46

this individual right to bear

19:49

arms in the home to protect yourself.

19:51

And there is ample history

19:53

that shows that that was just a completely

19:55

wrongheaded, veristic

19:58

readings results oriented at slutely.

20:01

And then we waited, and we waited, and the court

20:03

kept getting gun cases that wanted to

20:05

expand that right and because Anthony

20:08

Kennedy for so many years, as you know,

20:10

was the swing vote, they could never

20:12

get enough justices to agree

20:14

that they should expand Heller. The

20:17

minute, Amy Coney barrett Is stated

20:19

on the court the court was

20:21

like, you know what, we're all in. Let's do it. We've got

20:24

the votes. Now. This is a seemingly

20:26

trivial it's a New York licensing regulation,

20:30

but it opens the floodgates

20:32

if the Court were to say that

20:34

this licensing regulation that says

20:36

you essentially need to show some cause for

20:39

being able to carry your gun out of your

20:41

home. At oral argument, it

20:44

was truly on

20:46

skates on stilts performance

20:49

of the love of guns. Trump's

20:51

all the idea that

20:53

we heard from the conservative wing of the

20:55

court that somehow

20:58

we are all hobby old when

21:00

the state doesn't let us carry

21:02

guns on the subway. Sam Alito

21:04

wants, I just I mean, I find this,

21:07

so what are they talking

21:09

about? It goes to just to

21:11

to finish the answer. It certainly

21:13

appears after oral arguments

21:16

that the Court is going to absolutely

21:20

allow for massive amounts

21:22

of carrying of arms everywhere,

21:25

again wildly in violation of

21:27

all polling numbers which say

21:29

that nobody wants people to

21:31

be able to carry everywhere and anywhere.

21:34

We witness the results of that every single

21:36

day in this country. But I

21:38

think that it goes to something you said

21:40

about vigilantism. I think

21:42

that two things happened in that argument that were

21:45

for me, god smacking and didn't get enough attention.

21:47

One, as I suggested, was just

21:49

as Alito feeling unbelievable

21:51

empathy and compassion for

21:53

the poor office worker in Manhattan

21:56

who has to travel by subway at night and

21:58

doesn't have a gun, and the idea

22:00

that his life is better if

22:03

he can shoot people on the subway,

22:06

and the idea twinned with

22:08

that that the licensing officials

22:10

in New York are somehow part

22:12

of a nefarious plot that

22:15

the Deep States the deep state deep

22:17

state, and that they

22:19

willy nilly give guns to some

22:21

people but not others. It's very

22:24

reminiscent of how Justice

22:26

Gorsuch was talking about

22:28

the Governor of New York and her

22:31

really nefarious plot to get

22:33

people vaccinated. And

22:35

so I think that there's a real thread

22:37

here that if at the risk of making

22:39

all the people who are listening at night need

22:42

another melatonin, I think the thread

22:44

to pull on is that they have

22:47

evinced such mistrust of

22:49

government itself that the

22:51

cops can't keep you safe, that

22:53

the governors of the states want to shut

22:56

down your church services and COVID

22:58

all of that, And so I think

23:00

I just want folks to sort of try

23:03

to pull these strands together because it sounds

23:05

so wonky in ductrinal, but

23:08

deep deeply embedded in this

23:10

is a mistrust of state actors

23:13

and a notion that we are all

23:15

just out to protect ourselves.

23:17

And I find that so absolutely

23:20

terrifying. I find this

23:22

all reminiscent

23:24

of a kind of wild West

23:26

dream that somehow,

23:29

you know, we're going back to when men were men

23:31

and women were their helpmates, and the

23:34

strong guy with the gun protected

23:36

everybody, and you know, the government

23:39

was messing in your life. They were trying

23:41

to, you know, take your land and give

23:43

it to settlers instead of letting you keep

23:46

your cattle on it. I mean, this

23:48

is the mindset. Sadly,

23:50

we are running out of time because I could literally talk to

23:52

you for hours, as you could tell Dalia, But let

23:54

me ask you this, what could just

23:57

an everyday citizen do about

23:59

any of this? I think there are

24:01

two things and one of them seems

24:03

fanciful, but I'm going to say it anyway. Um,

24:07

after SP eight was allowed to go

24:09

into law, and I would talk

24:12

to women's groups, who, really, I think

24:14

I couldn't believe how quickly the world

24:16

had changed under their feet. One

24:18

of the things that I started to tell them

24:21

was my sort of Yellowstone

24:23

Park theory of the Supreme Court,

24:26

which is essentially, when you go camping at

24:28

some of the national parks, the rangers

24:31

tell you that if you meet a bear, you have to be larger

24:33

than you are, which violates

24:35

all laws of time and space and physics. But

24:38

what I think it means is you just have

24:40

to just appear huge. And

24:43

I do think that being larger

24:45

than you are does have

24:47

some effects on the Court. That one of

24:49

the reasons the Court thinks it

24:51

can get away with changing religious

24:53

liberty roles on the shadow docket or

24:56

taking away abortion for ten

24:58

percent of the child bearing population

25:00

on the shadow docket is because they think we don't

25:02

care. And I think that bear

25:05

theory, which is oh

25:07

hell now, is why the Court

25:09

agreed to hear s B eight on the Merits

25:12

docket. I think they pull back sometimes,

25:14

and I think that thirty

25:16

eight percent approval rating

25:18

that they started this term with the

25:20

lowest since polling began. On the

25:22

court, that matters, and I think

25:25

that we have to be big. The

25:27

other thing is, and this is I know, a whole other

25:29

podcast, but it's just democracy reform.

25:32

It's the incredibly boring

25:35

work of filibuster reform.

25:37

We have a malaportion Senate that

25:39

doesn't represent millions of people.

25:42

We have an electoral college you know better

25:44

than anyone, doesn't represent millions

25:47

of people. We have a

25:49

system of democracy set

25:51

up to take power away

25:54

from majorities and give them to minorities.

25:56

And and this is the part that is in my

25:58

lane. We have a fring court that consistently

26:01

blesses that the court itself

26:04

is putting a thumb on the scale of minority

26:06

rule, certain minority Let's

26:08

be clear, seminority rule, We're not

26:10

talking about people of minority races

26:13

or ethnicities, or religions

26:15

or points of view. We're talking about

26:19

a hardcore right wing

26:21

minority. Correction accepted,

26:24

enthusiastically seconded. And I

26:26

think we have on our

26:28

side not organized around the courts.

26:31

We're still kind of asleep. I mean, we're

26:33

still not paying attention but let

26:35

me end on a hopeful note, Dahlia, because

26:37

I always try to circle back to that

26:40

is there any good news in

26:43

terms of legal

26:46

decisions or actions that

26:48

you can point to. So

26:50

my book is in some

26:53

sense an answer to the

26:56

millions of women whose heart's

26:58

just broke when with Bader against or died

27:00

and who just felt, you

27:03

know, who is our gladiator for women

27:05

in the law, And they're

27:07

right, but they're so wrong because there are

27:09

so many women, thousands

27:12

running around making democracy

27:15

work. And I actually

27:17

think women are spectacularly

27:19

well suited for this legal work. As

27:22

you know, there is something about

27:25

this is going to hurt your heart, but the

27:27

threat of lock her up that

27:30

is really salient for women because

27:32

we understand in a way that I think a lot

27:35

of people don't, that we live on the

27:37

knife edge that law gave us

27:39

rights and law wants to, as

27:41

you said, turned back the clock and turn

27:44

us into channel. And

27:46

so the women who have

27:49

organized, whether it's Stacy Abrams,

27:52

whether it's Fanita Gupta, Becca

27:54

Heller at the Airport's the day

27:56

after the travel ban, Robbie Kaplan

27:58

and Karen Dunn fighting the Charlotte's film

28:00

Nazis, I could go on. These

28:03

women, I gotta tell you, they

28:05

rocked my world, and they

28:07

don't give up, and so I guess I just

28:10

end. It's interesting. My New

28:12

Year's podcast on Amaricus was with Carlyn

28:15

Eiffel, who is I'm sure

28:17

for you too. I'm going to talk to her to a

28:19

north Star, and she

28:21

reminded me that if you are

28:23

black or brown, or a woman, if

28:26

you are poor, if you are disabled,

28:29

this was always your America. There's

28:32

a story we like to tell, but

28:34

it was always standing in line

28:36

to vote, it was always

28:39

having your voter ide rejected.

28:41

It was always having to travel to some

28:43

clinic hundreds of miles away. And so

28:46

now I guess we all live there, all

28:48

of us, yes, right, and we have to,

28:50

you know, not only support those on the front

28:53

lines doing this work, as you rightly

28:55

point out, but the many millions and

28:57

millions of women whose voices

29:00

names we may not know, but who deserve

29:02

our, you know, support in

29:04

every way we can politically and legally.

29:07

Well, Dahlia, I cannot thank you

29:09

enough for talking with me. Um.

29:12

You and I are in vigorous agreement

29:14

about what's going on in the world, and

29:17

I think also in vigorous agreement that we can't

29:19

give up, we can't walk away, no matter how tired

29:21

we are. And maybe I could just say,

29:23

I think for really a lot of us, we

29:26

might not have gone to law school if we hadn't seen

29:28

what you were doing. We might not be doing

29:31

the work of protecting children if we hadn't

29:33

seen what you were doing fighting about

29:35

healthcare, seeing what you were doing, and I think

29:39

we have to just recognize

29:41

the amazing, awesome power all around

29:44

us and just not give up. To

29:50

read and hear more from Dahlia, go

29:53

to slate dot com,

29:55

where you'll find her frequent court reports

29:57

and her podcast Amicus.

30:01

We'll be back right after this quick

30:03

break. Even

30:15

before Dahlia name checked Marylyn

30:18

Eifel at the end of our conversation,

30:20

I knew I wanted to hear from her

30:23

for this episode. For nearly

30:25

a decade, Sherilyn served

30:27

as the President and Director Council

30:29

of the n double a CP Legal Defense

30:32

and Educational Fund called LDF.

30:35

Before that, she was a law professor

30:38

for many years at the University

30:40

of Maryland, and I have to say I

30:43

envy the students who had the privilege of studying

30:45

with her, because she can make

30:47

a clear and compelling

30:50

case for just about anything.

30:53

Last year, Sherylyn was named one of

30:55

Times one most Influential

30:58

People of the Year, and around that

31:00

time she announced she would be leaving her

31:02

position at the LDF this spring.

31:05

I am so delighted

31:07

to welcome to the podcast Marylyn

31:10

Eiffel. Hey, Marylyn,

31:13

Hi, how are you. I'm excellent, I'm

31:15

so happy to see you. Let me start

31:18

with um one of the big piece

31:20

of news. There's so much news happening it's hard

31:22

to keep track of it all. But you know, obviously,

31:25

with Justice Brier announcing he's

31:27

retiring from the Supreme Court

31:29

at the end of the term. On February,

31:33

President Biden announced that he

31:35

would nominate Judge Katangi

31:37

Brown Jackson. So I wanted

31:39

to ask, do you know her? What do you think of this

31:42

pick? Well, thank you so much, first of all,

31:44

Secretary Clinton for having me on the show. I'm absolutely

31:46

thrilled. And yes, this has been

31:48

a really interesting period. Obviously, President

31:51

Biden had pledged that he

31:53

would um nominate a black

31:55

woman for an available seat on the Supreme

31:57

Court. And I have

32:00

to say, you know, I'm a political watcher

32:02

and a court watcher and had

32:04

prepared myself for the announcement. Um,

32:07

but I think, like particularly many

32:09

other black women, I was just deeply

32:11

moved in the moment of the announcement,

32:14

you know, watching Judge Jackson

32:17

and to see her standing before the first you know,

32:19

black woman vice president, and

32:21

uh, it was it was a powerful moment. I

32:24

know her record, I don't know her personally.

32:26

I feel very comfortable saying her her record

32:29

is extremely moderate. Um

32:31

So I have been endlessly amused

32:33

by the claims that she has some radical

32:36

left uh nominee. I

32:38

mean, obviously, I'm a civil rights lawyer. I like

32:40

my judges to the left. But

32:43

she certainly obviously has all of the qualifications

32:46

and is well experienced and prepared. Well,

32:49

that's certainly is my perception

32:51

from having read everything I could about

32:53

her. And you know, let me point out

32:56

that you are in a unique position

32:58

to not on evaluate

33:01

a Supreme Court nominee, but really the

33:03

state of our justice system and

33:05

in particular the Supreme Court. You

33:07

know, I'd be curious who

33:10

or how did you become

33:13

so dedicated to defending

33:15

our democracy to try and to make it work

33:18

for everybody? Does that come from

33:20

your upbringing, your family? And I have to mention

33:22

your cousin was the wonderful Gwen Eiffel,

33:25

who educated us,

33:28

entertained and informed us. I had the

33:30

privilege of being interviewed

33:32

and meeting with her numerous times.

33:35

Did something happen in the kind of extended

33:37

Eiffel family that really equipped you

33:39

to be a warrior for justice

33:41

and democracy? Well, you know, um,

33:44

Secretary Clinton. We we were raised

33:46

I call service the family business. We

33:49

were raised with a very intense

33:52

kind of gaze on the world

33:54

around us, and certainly were raised

33:57

with a very political lens. We

33:59

came from very a very humble background. Both

34:01

of our dads their brothers, and we're brothers,

34:04

and we're immigrants, and um,

34:07

you know, I think they had some of the immigrants

34:09

sense of um possibility

34:12

in this country and and really love for

34:14

the possibilities of this country. We grew up

34:16

watching the news every night. There were three

34:19

newspapers in my home, you

34:21

know, at all times. And that

34:24

was fun for us. I mean, I've I've watched

34:26

every presidential convention since

34:29

I was a quite a little girl at that time. But

34:32

I remember, and we would be excited

34:34

when it was coming. It wasn't like, oh my god, get the

34:36

kids to con We loved it. And

34:38

you know, my father kept a narration going at

34:40

all times, particularly watching the news,

34:43

you know, kind of critiquing what they were saying.

34:46

Um. He was very into, you

34:48

know, racial equality and issues of inequality.

34:51

He worked as a social worker up

34:53

in Harlem. Um. And so we just had

34:55

that lens and I really

34:58

wanted to have some

35:00

role. I imagined, you know,

35:02

that I could do something in in particularly

35:04

in civil rights, because I've seen so many documentaries

35:07

and it seemed such an exciting

35:09

and noble work. Uh.

35:11

And then you know, I will say like many

35:14

young black girls, and certainly was true for me. Uh,

35:17

the Watergate hearings were

35:19

really really powerful. Now, I don't want

35:21

you to think that some eight year old girl was like, oh, yeah,

35:23

the water Gate here is I I know, you

35:26

know, it was the only thing on TV. And

35:28

know in those days you didn't have five channels. So

35:31

UM. I remember I have many sisters,

35:33

but my two sisters who were at home with

35:35

us, um, and we would have been

35:37

watching what we call the stories or

35:39

the soaps. Uh in those days. I was too young

35:41

for that too. But in any case, they weren't on

35:43

because the water Gate here is were wall to wall on

35:46

every channel, so there was nothing else to watch,

35:48

so we ended up watching it and that was

35:50

where I had the opportunity to see Barbara

35:52

Jordan's and I've never really

35:55

seen anyone quite

35:57

like her, you know, a black woman with

35:59

that measure of power

36:01

in that kind of sphere where she was exercising

36:04

it. And most important for me was the power of her

36:06

voice and a certain moral

36:09

authority that you

36:11

just could not deny. And I

36:13

loved it. And so that's been my commitment

36:15

in my my entire life. And I'm

36:18

endlessly committed to the possibilities

36:20

of this country. You know, I'm in the unique

36:22

position of many black people who see

36:26

the deep flaws of this democracy,

36:29

the deep, deep flaws, and yet who

36:31

are committed to working to

36:33

make it better. And I think the moment we're in now, Secretary

36:35

Clinton, is a really powerful and important

36:37

one. It's the time where I

36:39

think so much that people

36:42

like me have seen and been talking about for decades

36:44

is being exposed to the larger public.

36:47

The deep fishers of inequality,

36:49

the ongoing embrace of white supremacy,

36:52

all of these things didn't just

36:55

spring from nowhere, and they didn't they weren't

36:57

ushered in by former

36:59

President in Trump. They have been there,

37:02

and we have not tended to them and

37:04

confronted them forthrightly and recognized

37:07

how threatening they are to the integrity of

37:09

our democracy. I could not agree

37:11

more with you, Carolyn, and I just

37:14

want to build off of your

37:16

story. It's not enough to

37:18

say you've been standing up for social justice.

37:20

You've been standing up for civil rights

37:22

and voting rights. You've been standing up

37:24

for America. That's how

37:27

I view your work. So

37:30

talk to me and our our

37:32

listeners about how

37:35

as someone on the front lines, as a

37:37

litigator, a law professor, as

37:40

the head and director of the Double

37:42

a CP Legal Defense Fund for the last now

37:44

nearly I guess ten years, you

37:47

see where we are when it comes

37:49

to social justice and the courts, and in

37:51

particular voting rights. I

37:54

think Secretary Clint, you hit the nail on the head,

37:56

which is one of the challenges

37:59

we have face, which I think is kind

38:01

of coming home to roost at this moment, is

38:04

that the work that I've devoted

38:06

my life too has largely

38:09

been seen by the mainstream

38:12

political realm and

38:14

by certainly by the mainstream media as

38:16

a kind of a side show. I don't. I don't

38:18

mean that as a in a derogatory

38:21

way, but but but not part of the center

38:23

of conversations about American

38:26

democracy, about American

38:28

politics and so forth. It's kind of there's

38:30

the black vote over here, there's this thing

38:32

that maybe happens in the South, and

38:35

it's been treated as something collateral

38:37

to the central story about this country.

38:40

Um. And this has been endlessly frustrating for me.

38:43

One of the things I was determined to do when I took

38:45

over the LEA the leadership of the Legal Defense

38:47

Fund in two thousand and thirteen was to center

38:50

the work of civil rights in the

38:53

conversation about American democracy.

38:56

And I remember I did the commencement

38:58

address at my my

39:00

alma mater and why you law School, and

39:03

I said that civil rights work is democracy

39:06

maintenance work. Do not

39:08

let anyone tell you that this work is

39:10

somehow off to the side. We

39:13

are the ones who have the courage

39:15

to look without rose

39:18

colored glasses at the

39:20

flaws in our democracy. And how do

39:22

you how do you diagnose the health

39:24

of your democracy? You look at how it

39:26

works or doesn't work in the

39:28

lives of those who are at the margins

39:30

and those who are at the bottom. It doesn't

39:33

matter whether democracy is working

39:35

for people who have every advantage

39:38

right it. I mean, it matters, but it doesn't tell

39:40

you whether the democracy is healthy or not. You

39:43

have to look in the difficult places.

39:45

You have to look at how democracy works

39:47

in the lives of the people that I represent, and

39:50

that will tell you whether it's healthy

39:52

or not, and will reveal to you what

39:55

the flaws are. And to the extent you

39:57

think that those flaws, you know,

39:59

it's like it's like your house. This is how the

40:01

the analogy I've always used is about the foundations

40:03

of your house. Obviously,

40:05

if there are huge cracks in the foundation,

40:08

it matters, and you may even see it and

40:11

be alerted to it very quickly, and you will

40:13

immediately bring in the emergency crews. But

40:15

what about the small cracks that accumulate

40:19

and produce fundamental structural

40:21

failure. That's what we see.

40:23

We're the early warning system.

40:26

Still, voter suppression didn't

40:28

just start happening a

40:30

few years ago. I joined LDF

40:32

as a young lawyer, as

40:35

a voting rights litigator. So

40:37

how is it I was able to never

40:40

have a dearth of work, you

40:42

know, fighting to protect the

40:45

right of black people to vote in the

40:47

South, doing cases in Texas,

40:49

in Arkansas, in Louisiana and

40:51

so on and so forth. How is that possible?

40:54

So it is the failure

40:57

to recognize that

41:00

this has been a deep flaw

41:03

that now has encompassed

41:05

the entire country. And as I have been

41:07

saying, what America

41:09

has to wake up and understand is that what is workshopped

41:12

on those who are most marginalized

41:16

ultimately will come for the entire

41:18

republic. Exactly. That's

41:21

such an important point, Sherlyn. I mean when

41:23

you were talking about the foundation,

41:26

the image that popped into my head is now

41:28

we have literally people around the

41:30

foundation of your house with sledgehammers.

41:33

They are beating in

41:35

every way they can imagine the

41:38

foundation of our democracy. And

41:40

I was in the Senate when we

41:43

voted nine to nothing

41:47

to reauthorize the

41:49

Voting Rights Act. It was then

41:51

signed into law by President

41:54

George W. Bush.

41:57

We had no idea when

41:59

we did at on a bipartisan basis

42:02

that the Supreme Court

42:05

under John Roberts would

42:07

decide forget the Congress,

42:10

forget the evidence and the facts.

42:12

We don't need some of this enforcement

42:14

stuff anymore. Can you explain the

42:17

impact that dismantling

42:21

the underlying protections by

42:23

the Supreme Court had

42:25

on your work and the in effect

42:28

green light it gave to

42:31

state and local officials across

42:33

the country. Well, I love that you said green

42:35

light because, as I remember, just a

42:38

day after the decision, I think it was the Secretary

42:40

of State of Florida said we're free and clear now.

42:42

And and two hours after the decision, the

42:45

Texas story in general, you know, and and the

42:47

Texas officials indicated their plan

42:50

to pass a voter

42:52

I D law that they had been unable

42:54

to get pre cleared under section five several

42:56

years earlier. And preclearance means that under

42:59

the law that was asked if

43:01

there had been a history of racial

43:05

discrimination or ethnic or

43:07

some other kind of discrimination, but principally

43:10

language minority, last minority, and racial

43:12

principally racial, that states

43:14

had to say, okay, we want to do this, and

43:16

the Justice Department could say, wait

43:18

a minute, that violates the law, right, yeah,

43:21

And let's take that back to why we needed

43:23

this structure, right. So, and remember

43:25

the Voting Rights Act has many different components.

43:27

The part we're talking about is the part under section

43:29

five, and it is the reason why

43:31

the Voting Rights Act has been described as

43:33

the most um, consequential

43:35

and successful civil rights statute of

43:37

the big three civil rights statutes you know, passed

43:40

in the in the nineteen sixties, because

43:42

it is the only one that came up

43:44

with a mechanism for getting at

43:46

discrimination before it happened. Exactly.

43:49

So, the jurisdictions that were covered by

43:51

this formula, jurisdictions with this history of discrimination,

43:53

if they wanted to make a voting change, would have to submit

43:56

it to a federal authority in order to get

43:58

that change pre cleared. And those

44:00

federal authorities would do would be to evaluate

44:02

and assess whether the planned and the

44:05

proposed change had a negative effect

44:07

on voting rights or the voting strength of

44:10

the Black community, or the Latino community as it

44:12

or Asian American communities as you would have it,

44:14

And that evaluation would

44:16

happen with input from the community. LDF

44:19

and other organizations would weigh in. Then

44:21

they would either preclear it Department of Justice,

44:23

which is allowed it to go forward, or they might

44:25

ask for additional information, or they

44:27

might object to the change. So that was

44:30

the infrastructure that had been in place since nineteen

44:34

when John Roberts and the majority

44:36

of the Supreme Court in two thousand and thirteen decided

44:38

to uh strike down that preclearance

44:41

formula, essentially on the theory that

44:43

things had changed, that we should

44:45

no longer be branding the South

44:48

with this label, as though

44:50

they were somehow more that the Southern

44:52

states are more racist in some way than

44:54

states in the North. In fact, that was kind of the question

44:57

that John Roberts continuously asked, do

44:59

you believe counts that the South

45:01

is more racist than the North? Of course, the

45:03

preclearance formula didn't just cover the

45:05

South. It covered the Southern States,

45:07

It covered, most of the day, all the states of the

45:09

old Confederacy, but it also covered three

45:11

boroughs of New York City, It covered counties

45:14

in California and New Hampshire and other

45:16

places as well. When they lifted

45:18

that, it's important to know what that

45:20

majority did. They not only

45:23

supplanted their judgment for

45:27

senators and the three House

45:29

members that had reauthorized the Act in two thousand

45:32

six, which is enough of a power

45:34

grab to be alarming. And I say power

45:36

grab quite literally because

45:39

when you read the fourteenth and fifteenth Amendment,

45:42

the enforcement clauses of those amendments

45:44

give to Congress the power

45:47

to ensure that the protections

45:49

of the Fourteenth Amendment, which guarants guarantees equal

45:51

protection of laws, and the fifteenth Amendment to

45:53

the Constitution, which protects

45:55

against a voting discrimination based on

45:57

race, Congress is empowered to

46:00

ensure their guarantees. So they supplanted

46:02

not only the judgment of

46:05

Senators and House members in

46:07

two thousand six, but every Congress

46:09

that reauthorized it, and the Congress in nineteen

46:12

who recognized the importance of the preclearance

46:15

formula. They said in the Senate

46:17

report that accompanied the Act, they

46:19

wanted to get at voting discrimination

46:22

that was happening in the moment, but

46:24

they also said it was designed

46:26

to get at and I'm quoting now ingenious

46:29

methods that might be adopted

46:32

in the future, which means

46:34

that the Congress understood

46:37

that the efforts of white supremacists

46:39

to suppress the votes of black

46:41

people was not going to go away, that

46:43

it was likely to do what

46:45

racism always does, its shape

46:48

shifts and it emerges

46:50

differently. In nineteen voter

46:53

I D wasn't the issue. Even

46:55

the racist segregationists in

46:57

nineteen sixty four hadn't thought of what Georgia

47:00

has now thought of, which is that you can't provide water

47:02

to someone standing online.

47:05

These are the ingenious methods,

47:07

however, that they anticipated would

47:10

be created in the future, and they created

47:12

an infrastructure in the statute to

47:15

ensure that black voters were protected

47:17

against what they suspected and knew

47:20

would be the future methods

47:22

of voter suppression. So that's what

47:24

happened in and it is why

47:27

after we saw

47:29

this profusion of voter suppression

47:32

laws happening not only throughout

47:34

the South but also in places that had never

47:36

been covered by Section five, said

47:39

hey, hey, now we can do this too,

47:41

right, because the preclearance structure

47:43

actually sent a message to

47:45

the entire country about what practices

47:48

were discriminatory and what practices were not

47:50

so removing. It actually

47:52

ended up metastasizing voter

47:55

suppression into something that now

47:57

encompasses the whole country

47:59

and can utilized in order

48:01

to suppress the votes of racial

48:04

minorities, elderly students,

48:07

disabled people, any pockitive

48:09

voters that you think maybe

48:11

contrary to your ability

48:14

to exercise power. And right now it

48:16

is the Republicans who are at

48:18

the state and local level using these

48:21

tactics to enact restrictive

48:23

laws that LDF is litigating

48:25

in multiple courts in Florida and Georgia and Texas.

48:28

But it is an uphill battle. So

48:30

it's a very emboldened and

48:32

in my view, reckless Supreme Court, and

48:35

it is taking advantage of

48:37

the political deadlock that

48:39

has made Congress not

48:42

able to correct this decision.

48:44

And the Court knows it can take advantage of that because

48:46

nothing's gonna happen. We'll

48:50

be right back. Let's

49:03

really unpack this, Sherilyn,

49:05

because the people

49:08

that were put on the court

49:10

under Bush and Trump,

49:14

We're very clear

49:17

about their job. They were on a

49:19

mission, weren't they, And their mission is

49:21

to side with

49:23

those partisan, ideological,

49:26

religious, corporate,

49:29

financial interests

49:31

that have a very different view of

49:33

our country. And I feel

49:36

very strongly that it will

49:38

sadly get worse despite the

49:40

best efforts of the LDF and others

49:43

who are standing in the breach. Well,

49:45

I I can't co sign

49:48

that because we continue to litigate

49:50

before the court. You know, we've we've got certain

49:53

petitions pending and cases on

49:55

the docket for next year. But what I can

49:57

say that I think it's important is

49:59

that the court also has

50:01

to function in a way

50:03

that serves democracy.

50:06

Core and critical, as you know around the world,

50:09

to any truly functioning and healthy democracy

50:11

is the rule of law, a functioning

50:14

justice system. Um. And one of the

50:16

things that it's most disturbing to me,

50:18

and you know that I'm actually thinking about quite

50:20

a bit as I leave l DF, is the

50:22

ways in which we have to be honest about what

50:25

are the flaws in our justice system

50:27

and how important they are. Once

50:30

again, these are the cracks that

50:32

have to be examined and that have to be fixed.

50:34

And the Supreme Court is not does

50:37

not sit outside of

50:39

our need to evaluate and

50:41

review the strength of our

50:44

democratic structures. They don't sit above

50:46

and on top of our democracy. They are part of

50:48

our democracy. It's one of the reasons

50:50

Secretary Clinton why I joined President

50:53

Biden's Supreme Court Commission, which

50:55

was a difficult decision to take. I knew how the

50:57

commission had been described and

50:59

framed. Then, as I said, we litigate before

51:01

the court, and people have, you

51:03

know, concerns about whether the commission was designed

51:06

to you know, address court packing and so forth. Ultimately

51:08

I decided to do it, and I was the only person

51:10

on the commission. Uh, you know who leads an

51:13

organization that litigates before the Court. Most

51:15

of the folks were, you know, academics of some kind.

51:18

Because I wanted to make sure that our voice

51:20

was heard. I wanted to be part

51:22

of that conversation. And I say this because

51:25

it's not just the Supreme Court, it's our profession

51:27

in general, and those who are the leaders of our profession

51:30

who actually often lack this

51:32

lens of understanding the

51:34

kind of litigation that we do at the Legal

51:37

Defense Fund, the kind of people that we represent, and

51:39

how these academic discussions

51:42

about aspects of even Supreme

51:44

Court practice actually affect real

51:46

people. Uh So, I do think there's

51:48

work to do, and it's and the Supreme Court

51:51

has got to be part of that work. We have a right to

51:53

ask questions about recusal practice

51:55

on the Supreme Court. We have a right to demand

51:58

a deep financial disclosure. We

52:01

have the right to ask these

52:03

questions because the Supreme Court is a

52:05

critical aspect of our democratic infrastructure,

52:07

just as we have the right to ask that Congress

52:10

members not trade stocks, or whatever are

52:12

the ways in which we want to address it in the legislature,

52:15

and whatever are the ways we want to address the

52:17

executive and what kinds of ways in which

52:20

we want to hold the president accountable. That's

52:22

all part of the democratic

52:24

infrastructure, and our job as citizens

52:27

is to push and to demand

52:30

that changes be made that strengthen

52:32

those elements of our infrastructure.

52:34

And anyone who thinks they are above it, whether

52:37

it's President Trump, or whether it's the

52:39

Supreme Court or whether it is

52:41

the Senate, they're they're missing the

52:43

concept. You know they are they

52:45

were either appointed and confirmed

52:48

or elected to serve democracy.

52:51

Well, I could not agree more with

52:53

you, And I think that's an

52:56

incredibly powerful description

52:58

about why every buddy should care about

53:01

open debate and argument

53:03

about what matters and how

53:06

best to come together to make our

53:08

democracy work. And I know

53:10

you're writing a book now, Sherylyn,

53:12

about how our nation's

53:15

embrace of white supremacy has

53:17

impacted our courts and of course

53:19

beyond our courts, our country.

53:22

And I want you to explain why

53:24

you're writing this book at this time, and

53:26

how, just as with your legal

53:28

work, this is for everybody.

53:30

This is not just for Black Americans

53:33

or Brown Americans or Asian Americans.

53:36

This is for everybody,

53:38

and talking about white supremacy

53:40

should not be seen as an attack

53:43

on white people so much as a

53:45

wake up call about what's

53:47

at stake in this

53:49

fight. We are engaged in to preserve

53:51

our democracy for everybody. Okay,

53:54

so let me see if I can really do this

53:56

succinctly, because that's

53:58

a whole show, you know you just described,

54:01

and yes, and it's

54:03

really really, really

54:05

important for people to understand.

54:08

There are so many allies in this work.

54:11

You know, the head of the Legal Defense Fund for many

54:13

years was Jack Greenberg. We have

54:15

always had incredible allies

54:17

in the white community, in the Latino community, the Asian

54:20

American community, who have worked with us.

54:22

And honestly, it is only when

54:25

we all are working together that we're going to be

54:27

able to strengthen this democracy. So

54:29

I am not having a conversation

54:32

again that is a niche conversation

54:34

for one group of people. Let

54:36

me give you an example. After the

54:39

video was released of the

54:42

murder of George Floyd, we saw

54:44

the largest civil rights demonstrations this

54:46

country has ever seen. People came

54:48

out of their homes in the midst of a global

54:50

pandemic because they were

54:53

moved by what they saw.

54:55

These were multi racial marches

54:58

in all fift dates of people

55:01

saying this cannot be the

55:03

country that I am associated with.

55:06

We cannot allow an

55:08

officer of the state to kneel

55:11

on this man's neck for nine minutes and

55:13

feel himself so emboldened, feel

55:16

so much that he will have impunity,

55:18

that his hands are in his pocket and he's

55:20

staring at the camera. It

55:23

was a powerful moment, incredibly

55:25

powerful. Was more than a moment, it was it was months

55:28

of protest. We shouldn't

55:30

lose sight of how powerful that was. I

55:33

can tell you that those who are arrayed in

55:35

opposition to justice and equality

55:38

have not lost sight of it. What

55:40

they saw that day is part

55:42

of what undergirds the current movement that you're

55:44

seeing around the country right now, Secretary Clinton.

55:47

That they are framing as an anti

55:50

critical race theory movement, but

55:52

that when you read the statutes that are

55:54

being enacted in state after state and introduced

55:57

in state after state, they are outlawing

56:00

the teaching of material that

56:02

they say will cause discomfort.

56:05

This is these are the actual words in the statute,

56:08

guilt or anguish

56:11

on account of race or sex. Why

56:13

do I say this is a response because

56:16

they saw the power of empathy, They

56:19

saw the power of

56:21

white people seeing something

56:24

that is unconscionable. The same thing

56:26

that white people who were watching

56:29

judgment at Nuremberg on CBS

56:32

in felt when

56:34

there was breaking news and it was the images

56:37

from the Edmund Pettis Bridge, that

56:39

these moments in which

56:41

what wakes up in all of us is

56:43

our shared humanity, is incredibly

56:46

dangerous. And so what they

56:48

don't want is to have their children

56:51

learning about the truth of the history

56:53

of racism and white supremacy,

56:56

of the struggle for justice in this country,

56:58

of what has happened in terms of

57:00

gender inequality, of lgbt

57:03

Q inequality, because they don't

57:05

want in their children the awakening of

57:07

that empathy. And I am sure,

57:10

Secretary Clinton, that you and all of

57:12

the listeners who are listening today

57:14

can remember moments as

57:17

young children when that empathy was

57:19

woken up in us that have forever

57:22

shaped us as human beings. I was speaking last night

57:24

about being in the sixth grade and reading the diary

57:26

of Anne Frank, in which I can tell you I

57:28

felt guilt, I felt anguish, I

57:30

felt discomfort, not because I had

57:32

done anything, but as a human being

57:35

seeing what could happen to other human

57:38

beings and connecting with this girl

57:40

who was the same age as me. So what

57:42

they're trying to shut down is that

57:44

feeling, because that's the power. And

57:46

I would never bother to just write a book cataloging

57:50

grievances. What I am

57:52

writing about is how white

57:54

supremacy is so sticky you can

57:56

attach anything to it that undermines

57:59

us. She could interfere

58:01

and conducted disinformation campaign

58:04

in the election because

58:07

of the ongoing existence of

58:09

racism and racial discrimination. They

58:11

could exploit those divisions,

58:13

as they did if you read the Muller Report,

58:16

by targeting particular populations

58:18

and voters to produce the result

58:21

that they wanted. They were able to exploit

58:23

it because of the existing

58:25

weakness of racism and white

58:27

supremacy in this country. And that's what

58:29

we have to understand. I wrote

58:31

a piece several years ago in the in the Washington

58:34

Post in which I described racism as

58:36

a national security vulnerability.

58:39

Is it is absolutely that

58:42

because it is such a part of us,

58:44

it is such a part of this country's foundation,

58:47

and it lies around so conveniently

58:50

and can be picked up and attached to almost

58:52

anything. The problem is that we have

58:54

considered racism this issue

58:56

of kind of personal worthiness

58:59

or not, whether you are a good person, whether

59:02

you have racism in your heart, and so on and

59:04

so forth. That's not what I'm talking about.

59:06

I'm talking about the structural

59:09

and ongoing reality of

59:11

white supremacy and it's deployment

59:15

by those who seek power, by

59:17

those who are greedy, by those who want

59:19

to divide us, And to help

59:21

us understand that unless we are able to confront

59:24

this with some courage, it

59:26

will continue to be a national

59:29

security vulnerability that others

59:31

outside the country can use, but it will

59:33

also exploit us internally, and

59:35

we have to be courageous enough to confront

59:38

it. Black people confronted every day. And

59:40

I'm asking all of us who care.

59:43

I'm not writing this book for Tucker Carlson. I'm assuming

59:45

I'm talking to people who care

59:47

about democracy and justice right to

59:49

share with them this thing

59:52

that people are so afraid to talk about,

59:54

but that in fact has this inordinate

59:57

and disproportionate power to ultimately

59:59

destroy whoa Sherylynne

1:00:02

hurry up and write the book. Well, yeah,

1:00:05

I mean your description

1:00:08

of the effort to literally

1:00:11

deny, undermine, eliminate

1:00:14

empathy really strikes

1:00:16

a chord with me. I cannot thank

1:00:19

you enough, and I just wish you

1:00:22

the very best as you get onto

1:00:24

the next chapter of your extraordinary

1:00:26

life of service. Thank you, Marylyn,

1:00:29

Thank you so much. It was an honor. Keep

1:00:35

an eye on shery Lynn. I

1:00:37

know she's going to keep making an

1:00:39

essential contribution to protecting,

1:00:42

explaining, and strengthening

1:00:45

our democracy. Now,

1:00:48

before we go, I want to let you know we've

1:00:50

got plans for a future episode where

1:00:53

I answer questions again from listeners

1:00:56

and look, whether it's about the courts or

1:00:58

politics, or be writing a

1:01:00

political thriller or comedy,

1:01:03

I don't care. I'm excited for

1:01:05

you to send us your questions

1:01:08

right to You and Me Both

1:01:10

pod at gmail dot com.

1:01:13

And who knows, I might just read

1:01:15

your question on the show You

1:01:20

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