Strict Scrutiny - Amend: The Fight for America

Episode Date: March 15, 2021

Melissa, Kate, and Leah are joined by Robe Imbriano, producer of Amend: The Fight for America, and Michelle Adams, Cardozo Law Professor and one of the experts featured in the Netflix docuseries. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw. And this is a very special episode of Strict Scrutiny. Netflix, the media juggernaut that has facilitated the release

of our favorite duchess from the clutches of imperialism. Salute to you. When they weren't freeing princesses, Netflix was also hard at work releasing new original content, including on February 17th, a six episode docuseries about one of our con law favorites, the 14th Amendment. So the docuseries, which is titled

Amend the Fight for America, is a deep dive into the history of the 14th Amendment, Reconstruction, and Redemption, as well as a really trenchant look at how the 14th Amendment has scaffolded various civil rights movements, including the civil rights movement, the women's rights movement, and the gay rights movement. It is a star-studded event with executive producers Will Smith and Larry Wilmore shepherding notables like Yara Shahidi and Laverne Cox through the vagaries of constitutional law. Basically, it's the constitutional law class you wished you took. So today we are joined by Robe Imbriano,

who is one of the executive producers and creators of the series, as well as my terrific colleague Michelle Adams, professor of law at Cardozo Law School, who is one of the experts featured in the series. We should note that a number of strict scrutiny favorites and past guests, including Sherilyn Ifill, Dale Ho, Emily Bazelon, and our own Melissa Murray, are also featured in various episodes. So welcome to the podcast, Robe and Michelle. Thank you for having me. Thank you. This is an amazing production, Rope. So congratulations to you all for dreaming it up, executing it,

and for getting it into everyone's Netflix stream just in time to ride out the end of this pandemic. As con law nerds, we totally love this. But I'm wondering, what were the pitch meetings like? Because I can't imagine that Hollywood was immediately sold on a six-episode arc about the 14th Amendment. Well, it's just obvious they wanted it, right? I mean, who wouldn't want that? Who wouldn't? Who wouldn't? You know, this actually started because I was doing a number of classroom films about the Constitution a few years ago

and was about to start on a film about Philadelphia and the creation of the Constitution, blah, blah, blah, blah, blah. And I had two conversations, one with David Blight, which stopped me in my tracks, as he often does, and the other with Akhil Amar, where they introduced me to this idea because I had not gone to law school about the 14th Amendment. And I was gobsmacked. How do I not know this? How do all of us not walk around with this knowledge of this amendment like we do the First Amendment or the Second Amendment or anything else? So

I've wanted to do this for some time. I was with the documentary group in New York and I went into my boss's office, my co-creator Tom Yellen, and I said, hey, so I want to do the six hour thing on the 14th Amendment. And he's the only fool in the world who would say, that sounds really interesting. Let's try this. We met Will Smith on another project. I went to meet with Will while he was filming in New York City. We were in some subway someplace while he was on location. And we had about 30 seconds with him. And we said, hey, we want to do this thing on the 14th Amendment. He's like, I'm in. Sounds good. Every time I call him, I never get that response. Once he got on board, we had a series of meetings with the Ford Foundation. We did a little trailer, sort of a proof of concept to test out the monologue idea. And then we pitched it to Netflix. And, you know, same deal. You go in and you say, hey, I want to do a six episode series

on the 14th Amendment. You say you go in and you say, hey, I want to do a six episode series with Will Smith. OK, now we're talking, you know, we'll listen to that. And, you know, once we had Will on board, then we could take liberties with this in terms of the way we put it together. We could include performance and it just opened up all kinds of doors, you know, in terms of our storytelling capabilities. And I imagine it helped that Ava DuVernay had just finished The 13th, which was a documentary about the 13th Amendment as well. I love Ava. I'm a huge Ava fan. And I have to say, we started this project in 2015. So this was a year before 13th came out. When it came out, it blindsided us. We had no idea that she was doing it. And we saw a release party. We actually went to the premiere. And, you know, it was amazing.

And I was really happy for her. But I was also a little kind of bummed out because we thought we had owned this territory. And suddenly there was this great film on another reconstruction event out there. But it ended up being a boon to us, not an obstacle. There's plenty of room in the Reconstruction Amendments for everyone. Like, I'm ready for the 15th. So I'm going to talk to Will about that next. Leave with the 15th, yeah. Exactly.

All right. Maybe we could time the documentary on the 15th with passing H.R. 1 or the John Lewis, you know, reconstruction of the Voting Rights Act. So there's an idea. How about that? So we wanted to then ask about the rest of the team, at least the on-screen team that we all saw. So obviously, Larry Willmore was both a producer and figures very prominently in the series. And then you just have this tremendous cast of really notably diverse actors. So Hollywood Foreign Press Association, take note. Sort of how did you build the team? And was this a conscious decision on your part, sort of how to cast the series?

We actually went through two different rounds of casting, because it started with our amazing experts, two of them are here with us right now. You know, it was really important that we find a diverse group of people to talk about this on a scale that actually, you know, brought a lot of people into the room and a lot of different people into the room to show its importance to all of those people. And so that casting was one thing. We needed people who were really great at telling stories. In fact, I don't know, Melissa and Michelle, if you know this, we never referred to y'all as experts. We referred to you as storytellers. And, you know, that was really important to the stories where the lessons of the law were embedded. And once we went down that road, figuring out how to include the voices of the people who were involved in these stories was the next real challenge.

And I'm a huge fan of anna devere smith uh um ossy davis and ruby d had done a project uh back in the 60s where they did this this very strange quirky thing on stage where they do these readings and poetry and all these different things and i thought that that's actually not a bad model for us. If we have Will as host, and I can get someone like Mahershala Ali to play Frederick Douglass, then we're putting together something that would be really compelling. We were really fortunate because the director Kenny Leon was available and we caught him in between things. And so we brought Kenny on and Kenny and I FaceTimed Mahershala because Mahershala had been in a play of Kenny's before, before he became Mahershala. And he immediately bought into the mission of the piece. And, you know, then we were off.

Like once you have Will Smith and Mahershala Ali, you know, the sky truly is the limit. You're already above the clouds. And so then it was just calling people. We worked with a casting agent. We worked with a number of different people. We did a five weekweek run, basically, in Los Angeles, where we shot all of the monologues at the same time,

sometimes three and four different actors a day. And everyone, everyone brought their best selves to it. It was really quite amazing. Most people had never heard about the 14th Amendment. They had the same reaction I did when David Blight told me, you know, sure, 14th Amendment. Okay, yeah, I got that. But no one really had known what they were walking into and doing the research for the characters, reading the monologues, understanding some of that led to some really profound moments, both on set and

just off set when we were talking afterwards. It was really a beautiful day. It's so interesting to hear you describe this as not law, but storytelling, because one way of thinking about this is really law outside of the courtroom or lawyering outside of the courtroom. One of the people that is featured in the docuseries, Bryan Stevenson, of course, is involved in projects where, you know, they are trying to construct memorials to lynching in the South. And that is happening, you know, outside of and near courthouses to try to make people familiar with the stories and the histories that inform our law today? And, you know, one of the things I thought about while watching the docuseries, and then also thought about when you said that is this is also kind of like a Hamilton take on reconstruction, right? You know, some of the ideas associated with Alexander

Hamilton, gained additional prominence and got additional traction, you know, after the musical brought them to life and made more people familiar with them. And this project, you know, after the musical brought them to life and made more people familiar with them. And this project, you know, again, bringing these additional stories to a broader audience, I kind of think of as an important form of lawyering, too. I mean, I think one of the really important aspects of all this is seizing the narrative. And, you know, this was a narrative that had not been taught for a very long time. I mean, we went through history books. One of the things we were prepared to do is to show in all of these history books how the 14th Amendment isn't taught or is lumped

in with 13th, 14th, 15th in one paragraph on one page somewhere, you know, in the middle of the book. So to take the narrative of agency and the most vulnerable among us fighting for these rights and then winning these rights was something that we felt was really, really important to do. And I mean, it's funny, Melissa, you say, you know, you talk about having room for more reconstruction. There was no one doing it. So we had plenty of room to tell these stories. And, you know, it afforded us actually the time to get the storytelling right. So you mentioned David Blight and, you know, stalwarts like Eric Foner, these historians who figure really prominently in the film. And as you started to say, you have this incredible team sort of of storytellers, including, you know, Sherrilyn Ifill and Kimberly Crenshaw and Martha Jones and Kiara Bridges and,

you know, and our co-host Melissa and our guest Michelle. So it does feel like in this really important way, in the same way that you are offering, you know, the piece of the narrative about the sort of post-Civil War moment makes a really important point that the narrative kind of battle over the meaning of the Civil War was largely won by the South in terms of cultural production and the writing of history in all kinds of deeply damaging and destructive ways. And that this feels like an important, sort of as Leah was saying, kind of corrective project, right? So that there is so much power in storytelling, and this is sort of how we write history. And so it just seems so powerful and important on that score. So since we have one of the sort of expert storytellers, not our co-host, but Michelle Adams with us. Michelle, I wanted to sort of ask you to come in a little bit. You're featured prominently on a number of episodes. So first, from your perspective, can you tell us how you

got involved in the project? And given the many demands on your time, right, you've got this huge and really exciting book project you're working on. You are a super devoted and fantastic teacher. Like this is a big time commitment, I presume. Why did you prioritize spending the time to work on this project? Well, I mean, I think for some of the reasons already talked about, you know, this is a project that it was sort of a project that was needed to be made. And it was it was waiting for you, Robe, and the rest of the team to make this. And in a lot of ways, I think that we as a nation have been waiting for you to make this. And when you reached out to me, when your team reached out to me and asked me to be a part of this, it was just there was no question that I was going to participate.

And we had a couple of really long conversations, I think one back going into January of 2019, and then a second follow-up conversation maybe in April or May of 2019. And, you know, we talked for over, you know, four or five hours or something along those lines. And one of the things that really struck me about that first interview was how incredibly well prepared you were. I mean, just the level of preparation, the I was pretty surprised that I mean, you know, no offense. I was pretty surprised you knew what you knew what you were talking about and you guys had done your homework. And that was the first signal that I had. This was going to be something really special because the level of dedication that I saw there and getting an inkling of sort of who was going to be involved in it. And so, you know, for me, it really wasn't, it was an easy call in terms of my time.

And I think particularly because of the kind of work that I'm transitioning to doing now, which is really public facing and trying to engage larger audiences about thinking about how we got here and what our stories are and why our world looks the way that it looks. It's a perfect compliment for that. But I guess the other thing I wanted to say to you, Robo, I have and I didn't want to forget is the piece is thrilling. It's a thrilling six-part show. And it's got the high notes. It's got the low notes.

It's got the animation, the music, the found footage. I mean, the mix of different kinds of media, the use of the storytellers, almost like an orchestra, the level of actors, the selection of the kinds of speeches that they were going to give, all woven together, the way that you selected what each hour was going to be about. And I want to ask you a little bit more about that if we have a chance. So there was just no question that I was going to be involved in this. And I'm so delighted that you asked me to be part of it. I do have to say, you know,

what separates this project from any other that I've been a part of is the quality of people that we were able to interview and what everyone brought to it. You know, I think, Michelle, you and Melissa, I think our initial interviews were many hours long. And you would not know that. You know, I was amazed that you could walk out of there because you just talked forever. But it was just so interesting. And everything that you... we could run those interviews and everyone would be mesmerized

by those interviews. So, you know, we did them initially in 2018. And they are as fresh right now as they were then. And that's a testament to you. That's not a testament to me. I'm just, I'm the lucky guy who's able to sit there and ask you guys questions and then listen, which is, thank you, because you really brought something very special to it. I was surprised by how much time we did spend

with the interviews. Like I thought it would be maybe an hour and by the end of it, I was surprised by how much time we did spend with the interviews. Like, I thought it would be maybe an hour. And by the end of it, I was like, I should have packed a lunch. I'm hungry. This is a really long time. Oh, did we only tell you it was going to be 20 minutes? Is that what you said? So the series begins with slavery and abolition and then the Civil War as a background. And the Reconstruction

Amendments are really positioned as a kind of new founding moment. Is that a fair characterization, Robe? Like it's a fresh start for the country, a new constitutional moment that's supposed to correct the deficiencies of what preceded it? That is true. And I think what initially attracted me to the 14th Amendment was this notion that a remedy had been placed in the Constitution, that there was actually something that existed that was already a fix. What came later was just realizing all of the resistance all along the way. That came with the research. And so I think this had started out as something that was going to be a much more sort of optimistic,

perhaps naive exercise. And then came the realization, oh, wait, this is a lot deeper and also explains why we're not living in a utopia right now. So the documentary has, I think, bookending at this question of what it means to be a citizen. And it begins with the Dred Scott decision and the pre-Civil War era where the court specifically makes clear that African-Americans and those who are descended of African-American slaves are ineligible for citizenship. And then the 14th Amendment is intended to be a corrective. You note that along the way, there are actually two paths that can be taken. One, where the entire Constitution, as originally written, is completely scrapped and we start fresh. And the other is we amend it. And

you note that Frederick Douglass is something of an institutionalist, even as he is an abolitionist. He wants to keep the older Constitution and believes that the bones are there. But there is actually a fracture in the abolitionist movement with some people thinking this is too tainted to be redeemed. And that becomes a theme throughout. So your book ended with this question of citizenship and Dred Scott at the front end. And you conclude with this question of the current debate over what it means to be citizens with undocumented persons, the fight over immigration and whatnot. But all along is this sort of oscillating trajectory where you're delving into, should we have amended it and fixed it? Or was it so irredeemably tainted that it's irrevocably

just damaged and we can't get past this? Where did you wind up? I think very much like the project itself, it's a work in progress. I go back and forth on a regular basis. And I come from, my parents were active in the civil rights movement. I come from a place of hope that you can always affect some sort of change. The more I learn about American history, and I'm always learning about it, the less I feel like that is an easy thing to do, particularly around the law. And I would say that, you know, I think you have to set your sights on what you can accomplish. But you and I have talked about other more radical possibilities of, you know, scrapping the whole thing, even now, is it a

question, you know, as we enter this new era of Reconstruction, you know, should we be thinking about something bigger? Should we be looking at something, you know, that's a little bit more robust in terms of our protections of citizenship rights? So you depict Reconstruction as kind of the high watermark for Black political participation that is quickly diminished by the force of redemption. And you also position the Supreme Court as one of the principal actors in dimming the 14th Amendment's possibilities for affecting real and lasting change in the post-Ballon period.

Why did you focus on redemption and also focus on the court's role in redemption? I think the court's role was the biggest surprise to all of us. I think most of us think about the court and we think about the Warren court. We think about, I think it was Ted Shaw who did the math and basically summed it up that there were like 12 good years in the Supreme Court, you know, and the rest is sort of, you know, doing away with or diminishing rights of inclusion. And I think that that was a huge surprise to me and to everyone else who worked on the project. I hadn't known much about the Reconstruction Court. I hadn't known much about the cases from Slaughterhouse to Plessy. I hadn't see how you tell the story without that. And I also don't think that, you know, it's a good place to be where you're the love episode as sort of a happy, uplifting note and an example of what the court can still do.

But that increasingly felt like a false note to land on. So I was actually really happy where it ended up. I was extremely grateful you covered redemption because every year in constitutional law, students will come in having heard of reconstruction. So few of them will have heard about redemption at all. And I think Adam Serwer at the Atlantic has kind of popularized this or made more people in the broader public aware of it. He called the current court, I think, the second redemption court in some of its decisions on voting rights. But I was, you know, although that is not, as you were saying, the happiest part of the series, like the love episode, I think it's such an important part of it. Well, I was wondering what Michelle thought watching this. It's such a familiar story for law professors, but it almost

seemed weirdly cinematic and, again, thrilling to watch it play out, even though you know how it's going to end. I was like really invested in reconstruction, and then I felt completely let down with the court. And I've read all of these cases. Like, was it like that for you too, Michelle, like seeing it afresh? It was more than what I expected it was going to be. But I also think in a lot of ways, it's sort of what's in our head and it's compartmentalized in our head. And we sort of walk around with this information all the time. We walk around understanding what Slaughterhouse was about and what the civil rights cases were about and what Plessy was about. And then you struggle to bring those cases to life in the classroom and you do the best that you can. But it was like suddenly someone had sort of taken all that information

and our lived experience and then sort of, you know, projected it out in the kind of, in the sort of broad three-dimensional way in which we think about the law and the ways that we live our lives as well. And, you know, a lot of, for me, that was the part that was just so thrilling. And it also, to me, it spoke to legacy. This piece is going to have a very, very, very long shelf life because it's going to be seen, it's going to be digested, it's going to be heard. And it's, you know, for me, it's exactly what I've been trying to do in my classes, but just sort of, you know, take it to the next level. So that's such an astute point. You know, when we see these cases in books, it's, you know, Lochner, substantive due process, Mueller, women's rights, Crookshank.

But they actually are happening all at the same time. And there's this whole commerce clause line of cases that's happening at the same time. But we don't talk about them as part of an era, as opposed to their doctrinal silos. But when you see them laid out, you get this viewpoint of the court as deeply interventionist, even activist in this project of stopping social change. Part of that is the artificial nature of the law school curriculum, right? So because the law school curriculum is set up the way that it is, when you're teaching Con Law 1 and Con Law 2, you're cracking those things open or you're having reproductive freedom as a

separate course. So you are, you're taking the cases out of their historical context and you're not looking, you're not looking at, you know, I mean, occasionally you'll look at the Warren court. You'll talk about that as if, you know, if you bring that to it outside of the class, but in terms of the way in which the classes are set up, the textbooks are set up, they're not designed to sort of give the student a 360 view and to step into this as living history. And I think that's what's so wonderful about amend. It was one of the very first things that I

realized in talking to historians, historians don't know much about the law and lawyers, excuse me, present company excluded, don't know a lot about history. And so putting the chocolate and the peanut butter together was really important because you don't get a sense of the whole thing and how they fit together. And I think that we had the opportunity to do that in a way that allowed, you know, all of you to come together and tell the story as one. That's what I meant by the orchestra. That's really, to me, when I think about the storytellers, you know, you've got to have the historians, you've got to have the law professors, you've got to have sort of a mix of everybody, but you've got your oboes, you've got your violins,

right? You've got everybody in there and they're making this beautiful music. And I think for the viewer, they're now able to receive that. The other piece for me that's so important is the level of diversity. I think one of the things that you've done is you've sort of introduced a new generation to a new generation of scholars who are really diverse. And I very much appreciate that because I think about, and I don't want to cast any aspersion on this, but if you go back and take a look at Ken Burns' work and look at the Civil War piece, which is incredibly wonderful in many, many ways,

but it lacks that level of diversity. And I think that's incredibly important for this moment. It was really important for us to have a wide ranging group of people telling the same story. It was vital that, you know, we include different people of different races, both as storytellers and as performers. And I think, you know, Hamilton certainly helped us in that degree by opening the door. But the story it told was the wrong story. The story that, you know,

that we own is this story. And it gave us a chance to actually claim it. It was also intergenerationally diverse because my daughter had zero interest in this, minus zero when she learned I was a part of it but then she found out that yada shahidi was in it she's like i might watch one or two episodes yeah my daughter's about the same age and she you know she tried to act all

cool like she wasn't interested in it but then it held her attention and that was what that's when i knew we had something that's when i knew you had something wow that's so great to hear that's a win i'll also tell you one more thing which which is my law students have been watching it and several of them have commented to me that they cried at different portions of the show. And this is why I say that it's thrilling because you're reaching people on an intellectual level, you're reaching them on an emotional level and you're engaging them in a way that I think is really important. Wow. Yeah, no, again, it's the power of the narrative. So I think the best episode is the one about women's rights because it's just all the things I love talking about

and I'm in it. I'm like, this is my favorite episode. I thought you did such an amazing job of really hammering in on the real nuances and difficulties and complexities of the women's rights movement. The conflict between white feminism and women of color and trying to integrate that movement. I love that you began this by nodding to Polly Murray and highlighting Polly Murray's work in laying a foundation for bridging the gap between race and gender and making that clear. How did you decide to break out these episodes? Like each one has a thematic hook, but they all cohere. So how did you plan this out and come up with

six individual episodes that could all stand alone, but collectively are a kind of narrative that makes sense together, even as they are singularly distinct. So first, let me say that whenever a filmmaker starts using I, he or she is lying. It is the most collaborative medium that there is. A filmmaker's eye is sort of the inverse of the royal we. There's a large team that worked on this. And so the construction of each episode, I will say I created the series and designed the episodes. But once that happens and did all the interviews with you guys, but once that happens, there's a large team that really gets into the footage and gets into what's working and what's not working.

And and so I just want to applaud everybody who had a hand in developing that. Pauli Murray was another one of these people who, like, you know, Harriet Jacobs and even Douglas himself, you don't know that story. And it's so important to understand that she was at the nexus of the arguments that won these rights and not just one, but, you know, she's at the nexus of the arguments that won these rights. And not just one, but she's at the intersection of them. So it was really important for us to start with something personal and build out from that. The women's episode, the first three episodes are more or less a trilogy of the Black struggle for civil rights.

Then the women's episode is number four. LGBTQ and same-sex marriage is number five. And immigration is number six because the idea was, let's get out of the storytelling silos that we normally live in and show how this one story affects all of these different people and all of these different groups. The women's episode was a particular challenge because it was an argument. Many of the others were telling the story, but the women's episode was an argument. And the argument was essentially that 14 has never worked for women the way that it was designed. And I remember, Melissa, we got into a somewhat spirited argument,

I think over scrutiny. Who, me? A spirited argument? Me? You got spirited. I think I got quiet. You were a thousand percent right. What was our argument argument about like about the level of scrutiny it was in fact over um the goal of whether or not to go for strict scrutiny for the women for women to go for strict scrutiny or not um you know following the path of race, because obviously that became a trap. And so, I mean, you could explain it better than I, but, and you certainly did that day. But, you know, for me, I'm not a lawyer. So it felt like not going for strict scrutiny was somehow giving up. And you set the record straight on that.

I'm remembering vaguely this conversation. But I think one of the things that comes up in the episode is, it's really hard because they're in between their own movement and the movement, the civil rights movement, that's coming to a conclusion in a way that perhaps was unexpected. So they're agitating for strict scrutiny in 1973 in that Frontiero case. And in the same year, you have the court thinking about whether affirmative action and race conscious measures that benefit minorities should be struck down under strict scrutiny. And they're sort of caught in this, you know, nether space where they see the outcome. And is it enough time for them to sort of save their own movement from what the eventual backlash is likely to be? And, you know, so again, I think

this is something that law students also have difficulty with when it comes up in con law. But is the whole struggle in the women's rights movement over the standard of review, you know, is the race movement a kind of canary in a coal mine that helps them avert a disaster? Yeah. And we struggled with the storytelling because making television out of that and continuing to, you know, keep it interesting for people who aren't lawyers or in con law was a challenge for us. I'm not sure how successful we were in the end, but in the end, I think we decided to not go quite as deep into strict scrutiny. Strong, strong choice.

Strong choice. Okay. And we thought it was incredibly narratively successful for what it is worth. And I actually wanted to ask a question about the next episode or to highlight something and then ask a question. And so that's episode five about LGBTQ rights. And pretty early in the episode, you have this long interview with the lawyer who challenged this discriminatory ordinance in Cincinnati, Ohio. pretty early in the episode, you have this long interview with the lawyer who challenged this

discriminatory ordinance in Cincinnati, Ohio. So you're, you know, you have a bunch of interviews with Jim Obergefell, who of course is, was the named plaintiff in the court's sort of, you know, huge recent marriage equality case. And I think, you know, people are probably familiar with Obergefell, but the history of Cincinnati and the discriminatory laws in place in the city that he was from, I think was actually probably, it was new information to me and I think probably new to a lot of people. So I think it's both somewhat familiar terrain, but even to conth Circuit, and you're interviewing the lawyer who lost that case. And you have this voiced exchange, so you've cast it with an actor, and it's just an appellate argument. And, you know, so you have obviously a lot of letters and Supreme Court decisions, and then this was just an appeals court argument, but it really came to life to sort of, you know, stage and dramatize it that way. So one, I loved that. But two, there was the moment when the lawyer sort of says it of, you know, stage and dramatize it that way. So one, I loved that. But two,

there was the moment when the lawyer sort of says it's, you know, talks about in this very human way how hard it is to lose a big civil rights case like that. And it starts to break down just a little bit. And I guess it's, I think it's the love episode, Martha Jones, a little bit when she's talking about loving and her own family, has this incredibly moving moment in which her voice breaks and she pauses for a couple of seconds. And so, I mean, I guess I'm just I know that you weren't directing these scenes, but sort of how did you prepare the storytellers going into these scenes? And was there a lot of that? This is a lot of painful material, I think, in a lot of the episodes. And so I guess were there a lot of moments like that? And how did you respond to them? One of the things that we wanted to do, because everyone who we invited in as a storyteller had thought a lot about the amendment, and a lot about how the amendment works and how it works in

American society. But we wanted actually to ask everyone how it affected them personally. And so we had everyone talk about how it affected them personally. And I warned Martha that I was going to ask this question. Martha, again, I think was a five-hour interview. And over lunch, I warned her that I was going to ask this question. And she had another answer that I thought would have been pretty good. I can't remember it right now, but then she thought of that one. And I said, well, you're probably going to get emotional in that. So that's up to you. I'm not going to shy away from from emotion that's what we do we

love to make people cry in tv um but you know she she said okay well i'll give it a shot and and there's we left it in she said you warned me this was gonna happen um and that's what that was because it is very personal and very emotional and you know, the courage that it takes to come in, you're talking about something, you know, that you've studied, that you've taught. But then when it gets that close to you to come in and actually talk about it in that way and in such personal terms is really quite remarkable. So I, you know, I'll be forever grateful to her for getting that personal. Al Gerhardstein was Jim's lawyer in Cincinnati. And he, I can't remember if it's in the piece, but he said, you know, if you want to be a civil rights lawyer, go work in the Midwest. Yeah, he did.

Yeah, you kept that. That's a great line. You know, and he was our very first interview. And, you know, again, we did like a five-week run in New York of interviews where we interviewed somewhere north of 45 people. And Al was the very first, and he cried in that moment. I did not expect that to happen at all. And there were a couple of moments later where he also he cried. We all cried during that story.

But again, it just often and you all know this better than I, you know, we talk about the law in sterile, abstract or distant terms. And I think what this really brought home is just how personal it can be, you know, I mean, for the people who are involved, but also, you know, for the people who are working on it and who give so much of themselves, you know, to trying to make the law work for other people? So we've already talked about the immigration episode a little bit, but I did want to come back to it because in some ways this episode is hopeful. It talks about the Supreme Court's recognition of birthright citizenship and, you know, the rejection of efforts to deny citizenship to people who were born to persons who weren't citizens. But then it also covers, you know, some of the backlash to or efforts to get around that decision that the Supreme Court upheld, you know, whether it's the Chinese exclusion laws, or efforts to, you know, again, police the contours of citizenship, while enabling discrimination on the basis of race and sex in the area of immigration. So I was wondering if you could talk a little bit more about why you chose to end with that episode. I mean, to me, this is obviously

an area where we still continue to see the lingering consequences of some of those decisions, you know, the Chinese exclusion cases, as well as cases giving the federal government broad power, to engage in discrimination in this area. But aside from maybe not wanting to give us a sense of false optimism, you know, why was this kind of the close of the series? It wasn't originally. Originally, I think we had Love as the close of the series, and we did not have an immigration episode. We had an episode about incorporation,

and it was through the McDonald case. We were talking about Second Amendment rights. We decided that actually we needed to include immigration. This was, we kicked it around. We had a couple of different ideas. I think, Michelle, I had talked to you at one point about an episode that we were considering calling Consequence, which is how we had undone

many of the 14th Amendment's high watermarks. And immigration was the episode that we landed on because it had been such a big issue during this past administration. And, you know, you can talk about where the 14th Amendment applies and where it doesn't. But we really, we had always intended to talk about Chinese Americans and the cases from the 19th century that really opened a lot of doors and shut some others. We always intended to talk about, you know, the various issues that the Latino community had with the 14th Amendment and equal rights and equal protection.

So, you know, it made sense to do that. And the structure for that episode of immigrant alien criminal was a provocative way of getting at, again, you know, the role of the court in not opening up rights, but closing them off. So one thing that struck me in watching this, and it's interesting that it's released in February of 2021. You know, there's a new administration. When you were making this, the prospect of a Biden administration was not really even a possibility. I mean, we sat down in 2018 and we were in the thick of the Trump administration. And Michelle, I think you and I talked about this at one point, but there did seem, at least in the storytelling that we were doing with you all, a kind of urgency to sort of relate the history to this moment. Michelle, watching this now, does it seem like

the same sense of purpose and urgency is still there for you, Robe? Does it sort of hit a little less intently to have this come out with the Trump administration on sort of the backside or in the rearview mirror? Well, just on that, I mean, one of the things I noticed, you know, when we had these conversations, they were before, you know, last summer. And one of the things I think you did throughout, you know, several of the episodes was to really bring home the previous summer and bring in the Black Lives Matter protests, as well as what happened in connection with George Floyd. And so I thought that was really, it looked as if it had been intentionally done. But when I, of course,

I knew that we had been interviewed way before that. And so there was a way in which I thought that was just incredibly well integrated with respect to that. I so there was a way in which I thought that was just incredibly well integrated with respect to that. I think we're going to wrap in a minute, but Michelle, want to see if there are any other thoughts on the experience or on the docuseries to share? The thing that really struck me that I kept thinking about, and it was a question I think that you asked me, Robe, I don't think it made it into the final cut, was sort of the distance between the promise and the reality of this country and the promise of the 14th Amendment and our lived reality of it. And

it comes up a couple of times in connection with some of the other folks that are interviewed. And I think that's the place that you are in the series. And it's a place where you have to try really hard to not go crazy because you have to hold on to both that promise and the possibility of what the country can be, but also understanding the reality at the same time. And it's holding those two things together that I think is a challenge, but I think it also requires engagement in terms of how are we going to try to make this world a better place and further perfect this union. And so that's another piece of this that I think that you captured well,

and I think it was captured in a number of the different episodes. The gap between promise and reality is wide. And I will say, again, when we began, I really wanted to focus on the promise. But the reality kept fighting its way into the story. What do you want the takeaway for your viewers to be from this film to understand the promise and the potential to see how repeatedly we and our institutions have failed to live up to that promise? So for people who see this film,

what to you is most important that they take away? We wanted to change the conversation about American history and about our institutions. We wanted to change the conversation away from, you know, this exceptionalism that we can take for granted that, you know, the long arc of history bends towards justice. It has to be bent. It has to constantly be hammered and bent. And there are people who have done that throughout our history who have not been acknowledged. And that history has been unseen and hidden. And we wanted to do something on the scale. I remember one of my very early meetings saying this. I wanted to do something on the scale that would change the conversation about American history, period. And I think once we started to get the people,

including the people in this conversation, you know, involved in the film, that became a possibility. So I'm hoping that this does become part of a larger conversation and does help to make people aware of all of the things that we have not been aware of or been made aware of or have been taught in our schools and our textbooks. There's so much more. This is six hours of 150 years and we've just scratched the surface. We haven't even begun to scratch the surface. Well, it's an amazing, amazing production. The production values are fantastic. It is thrillingly told, beautifully executed. If you are a con law student, this will definitely expand your understanding of what you're getting in class and take you to the next level. If you're just someone who wants to binge on something in the middle of a pandemic while you're eating popcorn and other carbohydrates, it is also

fantastic for that. So this is definitely appointment television, no less than the scintillating interview between Queen of America, Oprah Winfrey, and the Duchess of Success, Meghan Markle last week. So highly recommend two enthusiastic thumbs up. So maybe we should end on that note and thank Robe and Michelle for joining us. Thank you. Thank you. And also for this delightful docuseries, which everyone can watch on Netflix. Thank you to our producer, Melody on Netflix. Thank you to our producer,

Melody Rowell. Thank you to Eddie Cooper, who makes our music. And you can support the show and become a GLOW subscriber at glow.fm forward slash strict scrutiny. Thanks, everyone.