Strict Scrutiny - Civil Rights Queen

Episode Date: December 26, 2022

Tomiko Brown-Nagin joins Melissa and Kate to discuss her book Civil Rights Queen: Constance Baker Motley and the Struggle for Equality. You may recognize the name Constance Baker Motley from Ketanji Brown Jackson's speech upon receiving her nomination to SCOTUS. Motley was the first black woman to be appointed to the federal bench-- and she and Justice Jackson share a birthday. Judge Motley's story illustrates the fights for equality, across race and gender lines, in the mid-20th century.Order Civil Rights Queen at Bookshop.org and use code STRICT10 at check-out for 10% off. 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. This is Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Melissa Murray. And I'm Kate Shaw. And we are joined today by a very special guest. So Kate, do you want to do the honors? Absolutely. We have a terrific guest

today. Joining us today is the Dean of the Harvard Ratcliffe Institute, Tomiko Brown-Nagin. She's also a constitutional law professor at Harvard. Dean Brown-Nagin has published countless articles about the Supreme Court and equal protection, has also recently been in the news for her work as the chair of the Harvard and Slavery Committee. The committee recently released a report documenting Harvard's connections to slavery

and pledging a $100 million commitment to address that history. So she has been busy. And for our purposes, she recently released a book about Constance Baker Motley, the pathbreaking lawyer, politician, and the first Black woman appointed to the federal judiciary. Today, we're going to do a deep dive on that book, which is called Civil Rights Queen, Constance Baker Motley, and the Struggle for Equality.

Now, listeners, the name Constance Baker Motley may be quite familiar to you, because if you will recall, when she was nominated to the Supreme Court, Justice Katonji Brown Jackson referenced Judge Motley. As it happens, I share a birthday with the first black woman ever to be appointed as a federal judge, the Honorable Constance Baker Motley. We were born exactly 49 years to the day apart. Today, I proudly stand on Judge Motley's shoulders, sharing not only her birthday, but also her steadfast and courageous commitment to equal justice under law. Judge Motley's life and career has been a true inspiration to me as I have pursued this professional path. So we wanted to learn as much as we could about Judge

Constance Baker Motley. And in particular, we'd love to know why she hasn't been as celebrated as some other civil rights icons like Martin Luther King Jr. or, for our purposes, Thurgood Marshall. What could be the cause of this neglect, we wondered? Could it be race and gender? Probably. And with that in mind, we are so delighted that Dean Brown-Nagin is here because she does a great deal of work centering those questions in the book Civil Rights Queen. So welcome, Dean Brown-Nagin. Wonderful to be here, Melissa and Kate. I'm excited to talk to you about my book. So we thought maybe, Dean, we would start by just giving our listeners some background on Constance Baker Motley. This woman had an incredibly impressive resume. Maybe I could

just ask you to talk us through just a little bit of her early life story, and then we'll sort of do deep dives on the major phases of her professional career as a civil rights lawyer, as a politician in New York City, and on the federal bench. But give us a little bit of a sense of where she came from, and then her trajectory up until this illustrious career as a civil rights litigator. Sure, I'm happy to start there. Her life growing up and her parents and their interests and background are very important parts of the story. Constance Baker grew up in New Haven, Connecticut, in the shadow of Yale University. She was born to Rachel and Willoughby, who were immigrants to this country from Nevis in the West Indies.

It was a working class family where her father and virtually all of her male relatives worked for Yale. And yet, as I explain in the book, that did not breed resentment in the family as it might have. To Black Americans, to Black migrants from the South in particular. He taught to Constance and all of her siblings. He would not allow his children to play with the children from the South. And I conclude that either because of or despite of her father's teachings, Motley grew up to be the civil rights queen. You actually touch on a really interesting sort of intra-racial conflict that doesn't get surfaced as much as perhaps it should within the Black community and in the larger discourse about African Americans. But there is a deep fissure, even in New Haven, between this community of West Indian emigres and native born blacks. And you talk about in the book how

Willoughby and Rachel are deeply, deeply proud of their roots in a British colonial system. Like they drink tea, they revere the queen. Sounds a little bit like someone on this podcast, but I digress for a moment. My love of Meghan Markle is not quite the same as this. But it really does put them apart and sets them apart. And they are purposely setting themselves apart from African Americans in the New Haven community. And as you know, they're growing up in the shadow of Yale. But despite their sort of visions of grandeur, their associations with the British crown and the colonial system, there is absolutely no chance that their children are going to be a part of the world that they are tangential to, Yale University. Their daughters are not going to

go to college. And so what intervenes to put Constance Baker on this trajectory that propels her into higher education and then onto this life where she's sort of working at odds with what her parents taught her growing up? Right. Well, first of all, she is precocious. She's very smart. And she early develops an interest in not only going to college, but to law school. And second, she has help. And that help comes in the form of teachers who introduce her to the writings of W.B. Du Bois and James Weldon Johnson. She meets Robert Crawford, who is a graduate, Black graduate of Yale from the South, who becomes a corporation counsel for the city of New Haven, and also is a collaborator with the NAACP. She's growing up in the context of the Great Depression, where there's so much

need all around her, and she develops an interest in social justice from a relatively young age, at least from the time when she was a teenager. And the most important intervention, I would say, is by a New Haven philanthropist who's a Yale graduate, a wealthy contractor who volunteers to pay for her college and law school tuition because he finds her so impressive after she gives a talk at a civic club in New Haven. And Baker Motley herself says that it's like a fairy tale to have this man, this white man, intervene in her life and support her education. And he not only does that, he actually mentors her. He stays with her. He writes her letters when she is in college and in law school and supports her much like a father would. And so there's a sense of almost divine intervention in the life of this precocious girl who would not have made it out of

New Haven, but for that help. So she literally talks her way into a college education. She does. She does. She knows the King's English or the Queen's English, right? And she is able to convince Blakeslee that she really deserves to be, it would be a disservice not only to her, but to society for her not to attend college and pursue her dreams. And that's precisely what she does. And you describe another incredibly fortuitous meeting that she has during law school with Thurgood Marshall. So she attends NYU as an undergraduate, Columbia for law school. And during, I think her last few months of law school,

gets hired as a legal clerk at the NAACP Legal Defense Fund. That's kind of a result of this fortunate meeting with Marshall. And she's the first woman lawyer at the NAACP and is one of two women in the office at the time. So can you talk a little bit about her trajectory as what ultimately is just this incredible superstar of a civil rights litigator who argues 10 and wins nine cases before the United States Supreme Court. And that's just the Supreme Court level, right? In some ways, I found her trial work like the most incredible to hear described in the book. So can you talk a little bit about her time at the NAACP LDF? Sure. She's hired by Thurgood Marshall in 1945 while she's still a law student. She makes her way to the Inc. Fund on the suggestion of a classmate who had been working as an intern there. And he is moving on to something else. And he says, why don't you go and see Thurgood Marshall and check it out. And she does, and he hires her on the spot.

He regales her with stories about women professionals in his life. These primarily would have been school teachers, which was the profession open to Black women in particular at the time. And he can see that she is talented, she is interested, and he hires her. And she is so grateful for the way in which he treated her because it's so different from what she'd experienced when she applied to New York City law firms and had the door closed in her face because the firms did not want women and did not want black people.

And she was both. So she stays at the Yank Fund for 20 years under the tutelage of Marshall and becomes this fabulous litigator. She is not the first woman lawyer at the NAACP Legal Defense Fund. She is the only woman lawyer for most of her time there because when she becomes a lawyer, the other person goes off to another job. So for her time there, she's the only woman lawyer working with these men who are alpha males, and she's able to make her way. And it's a tremendous story, a testament to her talent, to her grit, and grit because it's not easy for her. She has a lot to

overcome, including because she is a woman. She's unfamiliar. She has a child during the same period that the Brown cases are being litigated and then re-litigated at the Supreme Court. And so it's just a terrific story about an excellent lawyer, as well as a woman professional who is making her way at a time when women just don't get a lot of respect as lawyers, and they're not meant to be there. She certainly is not meant to be there. So there's an interesting vignette that you describe in the book about her first meeting with Thurgood Marshall, who himself is an incredibly charismatic person. He tells great stories. He's incredibly handsome. And he likes a good looking woman, and she is tall and stately,

very well put out. And when he's interviewing her, he asks her to get up on a ladder so that he can see for himself whether she has shapely legs. I read that and my jaw literally dropped. In this environment that she views as the safest space that she could be in, especially relative to what she experienced at those New York law firms. She's still getting checked out by this man who does prove to be an amazing mentor to her. And she will not hear a word against him ever. I mean, she sort of takes the good with the bad. And that's a blip that she can overlook given all of the other things that he does for her career.

That's right. It is a can overlook given all of the other things that he does for her career. That's right. It is a story that I needed to tell. It's a story I needed to hear. Yes. Well, it is relatable, right? Perhaps not in so stark a fashion. That is an experience that many women, working women can relate to, just the idea of being scrutinized and checked out.

And that did happen to her. And yet, as I explain in the book, she's the one who's being transgressive there. He is not. He is doing what men, certainly of his era, do. I know that at the time that Motley is signing on for work at the Inc. Fund, Jet Magazine, which is this magazine published by Ebony and one that most Black families would have on the coffee table has a swimsuit issue or swimsuit spread in the middle of the magazine.

So women's bodies are subject to the male gaze all the time. And Motley experiences this, but it is just a blip. And she goes on and she makes her way as a lawyer. I did want to include that story in the book because it humanizes Marshall. It also humanizes her and just paints a picture of all of the, just the many things she had to deal with as she was becoming Constance Baker Motley, the civil rights queen. Well, I love the point that you make that he's not transgressive. This is what men do even in the workplace at this time. She's the one who's transgressing boundaries because she is a woman in a place where there are no other women doing things that no woman has done

in that space before. Right, right. Absolutely. You've mentioned a couple of times the fact of her motherhood. And as you noted, while the Brown case is being litigated and relitigated, she is pregnant and she gives birth to her son, her only son, Joel, at this time. And so she's sort of in and out of the action in Brown. And that really wears on her. She knows this is a pivotal moment. and it kind of grates that she is not in the thick of it because she is pregnant, because she's giving birth, because she's at home, and she really chafes at some of this, even as she loves her family. So can you talk a little bit about that tension? Because it seems to sort of

be laced through the book. She's constantly straddling the line between what is required of her by her family and what is required of her of her work and this calling, this incredible passion that she feels for the work that she's doing. Yeah, she had an uneasy relationship with traditional motherhood in that she was working. She was working as a high-powered professional, the only woman among men. The expectation would have been that she was at home taking care of her own children. And she was home often, but she also was gone quite a bit and was self-conscious about this, about how she wasn't the average mother at the coffees at her son's prep school in New York City, for instance, which is one of the reasons why she met Betty Friedan there, and they were friends because they were of a similar type among women. She did have her child around the same time that Brown was being litigated and

relitigated. And this was a moment when the lawyers were essentially required to live at work. And she could do what she could do, but she couldn't do it in the same extent, to the same extent as the men. She had to go home and see her child and she worried, or at least was aware that there might be the perception that she wasn't pulling her weight. But then again, there might be the perception that she should just be at home anyway. And so it was difficult for her also when she traveled because she either had to leave her husband and child behind or she had or she might take them with her. She did on some occasions, which created its own problems. courts to implement the decision at the K-12 level and also follow its logical conclusion

in the higher education cases. And I tell a story about how the family drove from New Haven to Florida to litigate, where Motley was litigating the University of Florida College of Law case, and they couldn't stay in hotels. They had to rely on family friends to put them up. And they experienced this awful instance of segregation when Joel, little Joel, needed to use the bathroom at a gas station and he was turned away. And this is a three-year-old who can't use the restroom at a facility because he's black. And it's just heartbreaking to think about what that might have been like, because as a parent, you want to do whatever you can for your child whenever you can. And this would have been a she would have been helpless. And so there are a lot of those stories throughout the book of showing that she was different, even as she was making her way

as a woman in a post-Brown years, like the follow-on litigation included a lot of litigation around access to higher education. And there's an incredible chapter in the book about the desegregation of the University of Mississippi, right, or Ole Miss, and her work with the plaintiff in that case, James Meredith, to desegregate that institution. And as I recall, she's mostly away from her family during her very extended periods in Mississippi to litigate that case. So can you talk a little bit about who James Meredith was and just kind of some of what it took for Motley to successfully desegregate this unbelievably resistant institution that is seeking to remain segregated with the very clear and explicit assistance of the federal

judiciary in Mississippi. So can you just talk a little bit through that story? Sure. Well, when Thurgood Marshall came into Motley's office to explain that James Meredith wanted to sue the University of Mississippi, Ole Miss, for injury, he said, this man has got to be crazy. Because who would want to do that? Who would try to do this? And he thought that because Mississippi had a reputation well-deserved as the most racist state. It was assumed that if you sought racial change in Mississippi, it could be a death sentence. You might get yourself killed for trying to register to vote or for seeking a raise, as the Black teachers did, one of Motley's cases during the 50s. And certainly, if you want to do something so audacious as desegregate this bastion of white supremacy, the flagship university in the state. And so who would want to do this? Who would try to do this? James Meredith was a veteran. He was slight of build,

an incredibly courageous person who, after he served overseas, was like many Black soldiers were, veterans, were just determined to come back to this country fighting for their own rights. And that is what he did, although he was living in Mississippi and he understood that it was a dangerous endeavor. Now, courageous, yes, but also James Meredith, when he started to experience the full weight of white resistance during that case, he sometimes faltered. So he wrote this letter to the Inc. Fund saying he wanted to challenge segregation at Ole Miss. But there came a time when he wrote a different letter to Motley saying, I can't take this anymore. I am a human after all. This is just too much.

My friends have already graduated from college. They have their families. They have their houses. And he had none of that because he was struggling against the infrastructure of Mississippi, all of it, not just the higher education leadership, but the entire apparatus of government was opposed to James Meredith desegregating Ole Miss. And so it took Motley several trips to the state to litigate the case, to rebut claims that James Meredith was literally mentally ill, because that's the only kind of Black man who would want to do this, that he was an instigator, and so forth and so on. It just took a long time. She called it the last battle of the Civil War, because it was just so hard fought,

open defiance from federal judges. Even after Meredith received the order from the Supreme Court, Hugo Black, allowing him to matriculate, there was violent resistance. Two people were killed in the course of his desegregating the university. And then once he was on campus, first of all, he had to live separately from everyone else. He had to eat separately from everyone else. He had a guard. And it was just lonely for him, lonely for him. So just a terribly important case and also one that illustrates the human toll and costs on both Meredith, but also Motley of this landmark civil rights case. And of course, you mentioned that seeking racial justice in Mississippi at the time could literally

mean a death sentence. And of course, Medgar Evers was a close friend of Motley's and was literally assassinated in the course of that litigation. That's right. And let me speak about that for a minute. It's so important to the story because it does illustrate how Motley herself experienced trauma from litigating these cases. That one in particular, Medgar Evers was the NAACP's chief operative in Mississippi. He was the person who met her at the airport, drove her to the federal courthouse. It was dangerous to do so. When they were driving, he would say things to her like, put away your legal pad in the New York Times. The state police are trailing us and you don't want to be caught doing that racial justice work. They might stop us. And he was assassinated a month after Motley

completed the case there. And in a way that she had anticipated, had warned him might happen. She stayed with Medgar and Murley when she was in Mississippi. And she said to him, you know, you need to cut those bushes close to your house because someone might harm you from that space. And that's what happened. And it devastated her. She couldn't go to his funeral. She couldn't get out of bed for weeks because he was her friend and was just a wonderful person and courageous foot soldier in the fight for desegregation. And his life was taken because of it. So that was a major traumatic episode that really marked her time in Mississippi.

But you also chronicle the litany of petty indignities she endures, which is interesting because part of why she is sent to Mississippi is because the Inc. Fund believes that as a woman, she might be spared some of the racialized violence that Thurgood Marshall and Bob Carter regularly ran into when they were litigating cases. But she isn't immune from these petty indignities. Can you talk about, A, what is it like for ordinary Mississippians to find this stately New Yorker woman, black lawyer in the courtroom. Like, minds are blown, as you note in the book.

And how did the lawyers treat her? What is this professional community that she finds herself in in Mississippi like? Well, one of the reasons that her relationship with Medgar Evers was so important to her was because he provided community to her that was otherwise lacking in the state of Mississippi. She suffered horrible indignities at the hands of a white bar in Mississippi and in other places who were defending the state. The lawyer would not call her Mrs. Motley, which was the way in which a respectable woman would have been addressed with her married name, with Mrs., he wouldn't call her anything. He would just refer to her indirectly. And this is in court. And it's so horrible the way he disrespects her that the

judge in the case, who himself is a segregationist, says, you got to do a little bit better. And so the solution is for him to refer to Motley as the New York counsel. He will not call her Mrs. Motley, and he will not shake her hand. So she recounts how she saw this lawyer at the airport once, and as she would have been accustomed to doing, she went to shake his hand, and it just stayed out there because he was not going to touch her. And frankly, she was just both amused and perplexed by all of this because here she was, this graduate of Columbia Law School and of NYU and this well-respected lawyer, and she just couldn't quite understand how it could be that racism was just so irrational. It didn't care if you were Constance Baker Motley, Thurgood Marshall, or W.B. Du Bois. You were considered less than. That was the premise of the system, and one had to adhere to that exclusion for white supremacy to hold. down there litigating those cases with people trailing you. Of course, civil rights workers

were killed in Mississippi and elsewhere. And so it was difficult for her, but also the Black community loved her. They just were fascinated by her and would make their way into the courtroom just to see this Black woman lawyer from New York observe her, to cheer her own. This happened in all the courtrooms at UGA when she litigated that case, at Ole Miss. She was fascinating, and she was defying white supremacy. She was asking white men to account for their activities. And it was just a sight to see. And it was one of the most rewarding parts of writing the book to write about those scenes where the Black community is excited to see these civil rights lawyers come into town, Motley especially. They're like gladiators from

the perspective of the community, even if these lawyers are also fighting for dignity for themselves. You describe Motley's relationship with obviously a number of civil rights luminaries in the book, Marshall, and we were just talking about Medgar Evers. You talk also about her relationship with Dr. King. You say that she always spoke very highly of Dr. King, that he treated her with respect, because in some ways he viewed her as an exception to her gender. Can you share more about what you mean by that and about their relationship? And also, can you dish on the Marshall and King relationship? Because that was also fascinating. Much more contentious than I had realized. There's just like no lionization in the book, right? Like the people in all of their complexity are on display in a really amazing way. I'm sorry. So there's a lot. We're fangirling. We're sorry. So one of the things that is so interesting to appreciate is that there were professional

rivalries, jealousies in relationships among civil rights leaders, just as there are generally. Marshall thought that King was an upstart, that his approach, civil disobedience, was irresponsible, that he was going to get people killed, that what really mattered was the law itself, the courtroom battles, And he just sort of looked down at King. And moreover, Marshall was Mr. Civil Rights. Right. And he jealously guarded his place in as black America's representative. And then along comes King. He didn't even have a law degree. Right. He's a minister and he is able to gain so much

respect. And to some extent, he displaces Marshall as the chief representative of Black America. And so Marshall is not a fan of King. And yet, Motley adores King, is happy to go to Birmingham and work for the movement when she is called. She thinks that King is heroic. is a womanizer and he is criticized by people like Ella Baker for not recognizing the talent of women. And so it's curious in a way that Motley and King have such a great relationship. The way I explain it is that she is able to transcend her gender, in a sense, by being a lawyer who represents him, who can hold her own with the men, as is typically the case when she's in Birmingham. She is interacting with this group of incredibly assertive men, and she is the savior of them. And so under those circumstances, he appreciates her, he lifts her up, talks about her fondly, even after the moment of her representing him has passed,

he sends her letters congratulating her on her promotions. And it's just a very, they have a lot of affection for one another. You note that he views her as exceptional, even as the traditional civil rights movement is overlooking other women in their midst, like Ella Baker, like Claudette Colvin. She sort of stands out and stands apart. But back at the Inc. Fund, she kind of becomes the Ella Baker or the Claudette Colvin, particularly when the question of leadership secession comes up. So Thurgood Marshall is exiting the Inc. Fund. He will go on to be the Solicitor General and a Second Circuit judge and ultimately a justice on the U.S.

Supreme Court. And the question is, who is going to fill his shoes as the head of the Inc. Fund? And there are a couple of candidates among them, Constance Baker Motley and Bob Carter, who have been sort of foot soldiers for Thurgood Marshall in all of these segregation cases down in the South. And there's also Jack Greenberg. And ultimately, Marshall anoints Jack Greenberg, who happens to be the only white lawyer in the group or the most prominent white lawyer in the group. And he does so because he is white, right? That's a big part of why he selects Jack Greenberg. And Motley is overlooked, Carter is overlooked, and she feels it acutely, but she's not necessarily angry at Marshall, or it doesn't damage her relationship with Marshall. So can you explain like what leads to her being overlooked and what it means for the dynamics in the Inc. Fund and what it propels her to do later?

It's an important part of the book and the story because it is an example of a setback for Motley. If one knew just at a cursory level her career and where she ended up as the first Black woman judge, one might not think about the reality that she experienced setbacks as most people do in their careers. She's very disappointed by having been passed over. She thinks that it is not only because of race, but because of her gender, that Thurgood Marshall could not imagine a woman as the leader of this great, important national institution, this civil rights organization, and yet she does think that she's a good candidate. Now, I will say that had Thurgood Marshall anointed her, it would have been an incredibly progressive thing to do. Because, of course, there were no women heading organizations of this type,

not at the ACLU or other such nonprofits. And so although as I was writing that chapter, I could absolutely appreciate Motley's perspective. I also was entirely unsurprised that Marshall did what he did, including because his own career is tied up in the choice. So although by the mid-1960s, Malcolm X, for instance, is calling someone like Thurgood Marshall and Uncle Tom. In fact, he has to, he's considered a radical, right? A black radical. When he is questioned for the judicial seat, there are questions about whether he can be fair to white people. And so to elevate Jack Greenberg proved that he was fair, he was open, he was honest. And so it was a shrewd

move, but one that certainly was disappointing. And I should also point out that Jack Greenberg was a fabulous lawyer who did a great job at the Inc. Fund. And so the story is not meant to actually pass judgment on who should have gotten the job, but rather to tell the story and to appreciate it from Motley's perspective and show that there is a thread of gender disadvantage that runs through her career. She has an amazing career at the Inc. Fund, but this really does give her pause and she starts thinking about what comes next for her now that she's been passed over for this. And her next chapter is actually a surprising one because it takes her out of the

courtroom and puts her in the public sphere. So can you tell us a little bit about how the civil rights queen becomes the queen of New York politics? Yeah, it's an unexpected turn of events. And yet it does show that the setback is opened her to new opportunities. She ends up in politics because she's she's living in New York and the Democratic machine there can see that she might be a great candidate. She has name recognition. She is extraordinarily impressive. And she is invited to run for state Senate. She says no initially, but she finally decides to do it. And then she becomes Manhattan Borough President. And it's just a fascinating turn of events. First of all, because one of the things about Motley that's important to

appreciate is that she's a pretty reserved person. She's not the kind of person who really wanted to be out there shaking hands with people. And there's a reason that she's called the queen, right? She's regal and she's sort of apart from others. And yet she ends up a politician who does, in fact, have to shake hands and have people get to know her because she moves into this new realm. And there are people who think that she should just stay in her lane. They're not happy. Men in particular. Adam Clayton Powell Jr., for instance, thinks that it's ridiculous that she's the one who is the Manhattan Borough president or in the Senate. He doesn't think she's authentic. Sure, she knows how to litigate desegregation cases, but what does that have to do with representing the people of New York City? To her credit, and also because she has a lot of backers among white liberals, also is subject to quite a bit of scrutiny, not only from people like Powell, but just from random New Yorkers and Americans who write in and say things like, wasn't there a white person who could do this job? How are you paying a black woman $35,000 a year to do anything and certainly to be in politics?

And she has a really interesting look. Her family is racially mixed. And there are people who write in to say, she's not even Black. If you're going to have a Black person in this job, at least let it be an authentic Black person or a real Black person. I'm paraphrasing the sentiments, obviously. But she has to go through a lot in those positions. But she endures and it just opens the door to another professional achievement, and that is the judgeship. Okay, so that's a perfect segue to her move to the federal bench. She's in limbo for a while, right? She knows that she's under consideration. She actually almost doesn't run for Manhattan Borough President because she's like expecting the call from the White House, does run for and win as Borough President, but eventually President Johnson calls. so much from this book. So Johnson has this very transactional view of her appointment, right? In

some ways, it's a little bit about kind of like a civil rights one-upsmanship of President Kennedy. And also, so Bobby Kennedy is a little bit less than thrilled, actually, about Judge Motley's appointment. So can you tell us a little bit more about those dynamics, like the White House and Judge Motley dynamics prior to and then around her actual nomination? Right. Well, these judicial appointments are, at bottom, political. And hers was, too, was the result of a political calculus. And in it, as you mentioned, Johnson wants to one up the Kennedys, who, even as they were credited with being supporters of civil rights, in fact, appointed a number of out-and-out segregationists to the bench in the

South, where the Inc. Fund's litigating all of these cases. And they also just look down their noses upon him, and he wants to do something better than them. And so he wants to appoint Blacks and women to federal office, including the bench. Motley is on the top of everyone's lists for an appointment because she's so great. She has name recognition and so forth. And yet, it is not easy for her, including because these are plum appointments and one has to run the gauntlet. One has to be approved and signed off on by various important people. And Bobby Kennedy is not interested in signing off in the beginning when Johnson wants to appoint her to the Second Circuit. And Kennedy says, well, I thought you were talking about the district court. For the district court,

I might support her, but not for the Second Circuit. That's a bridge too far. And how about this white guy over here? And she was locked out of the Second Circuit. Even there were problems she encountered with the district court appointment, with people weaponizing her civil rights practice against her, again, asking the question of could she be fair, which they mean, they really meant to white litigants or male litigants. She was called a communist. And it was a hard path. But as I recount in the book, she says Thurgood Marshall held her hand the entire way, which is a reason to, you know, she maintained that relationship wisely.

And I'm not saying it was merely strategic, but it was good that she could look to him during that period. And she did take her seat on the bench. But that back and forth was just a preview of what she would continue to confront as a judge with the civil rights queen moniker being a double-edged sword for her. I mean, we thought we'd talk a little bit about a case or two from her time on the district court. Sure. I think it's pretty clear. She gets on the bench. She's facing around the confirmation process, not just these allegations of all these communist affiliations in her youth, but that she could not possibly be fair in particular to male litigants and white litigants

in front of her. It's pretty clear from the broad survey of her record that she is what we would say today is like well within the mainstream. She's a fair and careful judge. But she does make some quite notable decisions in a couple of criminal justice cases, anti-discrimination cases. So I thought maybe we'd ask you to talk a little bit about Martin Sostre. Who is he? How does he get before Judge Motley? What does she do with his case? The Sastre case is the most courageous decision that Motley issued over the course of her three decades on the bench. Sastre was a jailhouse lawyer. He was a Black Puerto Rican who ended up in prison on what we now know were trumped up drug charges. He is a Muslim, and he is unafraid of the guards in the prison and just the culture, undignified that incarcerated people are subjected to. He files a case arguing that he had been

subject to retaliation, including by being confined in the hole, in solitary confinement. And Motley draws the case. There's a trial that is just, it is high profile. And she ends up ruling on his behalf. She awards him damages. And some of her decision is overturned by the Second Circuit. Nevertheless, it is a really important decision vindicating the basic claims of the prisoner rights movement. And that is that litigants do not lose their constitutional rights merely because they are incarcerated, that incarcerated people should retain their dignity and that they should be able to speak to their lawyers. And it's just a tremendous case that really does show, illustrate some continuity from the sort of gladiator role that she played as a civil rights lawyer and her role on the bench. This was a decision that she just did not have to reach.

If she had not reached this decision, no one other than those who were actually in the prisoners rights movement would have been unhappy with her. Because it was just, it was a landmark. I was really happy to include it among the decisions that I discussed, in part because it really does show her being progressive in a fashion that is atypical. She really is just a judge on the district court who, like other judges, tends to rule across the gamut. So she rules for big corporations and for defendants in civil rights cases, but there are these cases that show her being truly progressive. You cover a number of cases, but there are these cases that show her being truly progressive. You cover a number of cases, but one that was especially striking is Blank v. Sullivan and Cromwell, which is a pay discrimination case that really takes aim at the sort of

white shoe New York law firms, which have, I think it's pretty clear from the record in this case, have been discriminating against women, not including them in the ranks of partnership, giving them different pay than male associates and male partners. And it all sort of comes to a head in this case. And one of the questions that arises is whether or not Judge Motley can be impartial or whether, as a woman lawyer, the civil rights queen is ready to levy the hammer against Sullivan Cromwell. So can you talk a little bit about this case, the way she handled it? And then what are the repercussions of this in the legal community more generally? And what does it mean for Judge Motley, who gets kind of branded a feminist firebrand,

but is far from it in a lot of ways? Yeah. So the cases in which she does rule according to what her conservative critics, you might say, would expect of her, crowd out all of the other cases, which are mundane and show her being a pretty pragmatic, middle-of-the-road judge. Blaine v. Sullivan and Cromwell is brought by a number of women, many of them graduates of NYU Law School, who claim that Sullivan and Cromwell doesn't hire women as it should, doesn't promote them, gives them different assignments, doesn't pay them as much. And Motley draws the case, it's just by lottery, that the lawyer for Sullivan and Cromwell is not happy. And he writes her a letter saying that as a woman, she likely

will be biased in this case, and not even know that she's being biased. And that's because of experiences that she had, he alleges, as a woman, experiences of discrimination. And he asks her to withdraw from the case and goes on to file a motion of recusal against her. Well, Motley does not withdraw from the case at all. Instead, she turns the lawyer's logic on its head and says that if race or gender or practice background alone were enough to disqualify a judge, that no judge on the court could hear the case because white men, for instance, have a race and a gender. And so it's just a brilliant opinion pushing back against the notion that a civil rights lawyer should not be in a position of deciding discrimination cases.

In fact, what I would say the lawyer should be afraid of is that she knows the law. She knows what a good case looks like. And this is a good case. She ends up approving a settlement that brings more women into the workplace, the professional workplace and to law firms. Of course, it's a sweet outcome given her own experiences not being hired by New York City law firms when she applied after law school. And yet it does have the effect, Blank as well as the Sastre case and a few others, of branding her as a liberal judge who favors plaintiffs in civil rights cases. And it's certainly not good for her prospects for promotion. And she's unhappy with that reputation. She thinks it's unfair. She doesn't like that some believe that she's not wrestling with the law and intellectually engaging with the law, but instead just going along with whatever the civil rights bar has to say, whatever claims

they make. And so it is a case that really captures how her reputation, her background was a double-edged sword. And yet that case, Blank v. Sullivan and Crumwell, lives on and has an enduring relevance in litigation with other judges who have been asked to recuse on the basis of, say, sexual orientation or religion or gender, citing that opinion for the proposition that those identity characteristics alone do not amount to bias. That is not what it's meant to be impartial. So her relationship to both sex equality and organized feminism is pretty complex, as the story you were telling kind of starts to allude to. And so she's obviously breaking barriers. She's breaking gender barriers well before the rise of second wave feminism. She's a huge figure in the 50s

and the 60s. She's appointed to the federal bench in 1966. She's friends with Shirley Chisholm, Bella Obzug, two leaders of the feminist movement. She was also close to Pauli Murray, who we've talked about quite a bit on the podcast. So her example paved the way for other women in all kinds of ways. And at the same time, I think she always refused to assume the label of or identify as a feminist, right? So could you talk a little bit about both her influence on feminism and the feminist movement and also how has your research uncovered how she viewed feminism so far as we can tell? It's an important question. And what I conclude is that she certainly was in the forefront of women's liberation.

She did it, although she did not apply that label to herself. And one way to understand her skepticism of the label goes back to her time in politics. She was asked by reporters, are you a feminist? And she says no. And it makes perfect sense within the context of being an elected official. After all, she already had a lot going against her. Why take on that additional burden of that label? And so I see it as a pragmatic move by Motley, who was that always. But it also likely represents a theme in the

historical and the legal literature about how feminism as traditionally understood and represented in the media tends to be associated with white women, right? She was uneasy with that. And I think that one can think about her and her relationship to feminism in the same way that one might appreciate our insistence on intersectionality for analyzing legal and social problems today. So I ended up not thinking it was odd at all that she refused the label and insisting that we appreciate the way she paved for others and also her community. So even if she didn't call herself a feminist, all of her friends were feminists. So I think that is telling us something, right? Some of my best friends are feminists.

I want to just come back to the theme of gender and sort of the way gender works and is layered on top of race in her life. Her complicated relationship with being one of the few women, if not the only woman in the room so many times in her career. She portrayed herself and understood herself to be a sort of steely, stoic kind of person. Like, you know, she weathered the blows that came against her. And she didn't complain. She didn't explain. She just kind of took them. And she prevailed, despite the odds. She has this very businesslike, professional demeanor that she studiously cultivates. And it is a kind of armor. You talk about her fashion quite a lot in the book, which I appreciated. And that is a kind of armor that she uses. And she never really sheds any of that. And I remember when I was

clerking for Justice Sotomayor, we were at some kind of event in Foley Square and Judge Motley was present. And I wanted very much to go meet Judge Motley. And I asked Judge Sotomayor if she could introduce me. And she said, not until you change your pants, because Judge Motley apparently did not like to see young women attired in pants, like she wanted you to be in a skirt suit. And so there were sort of like professional norms that she observed, a kind of professional aura that she cultivated. How do you think that plays out today? I mean, if she were around today, would she still have that kind of aura, that sense of propriety, the steeliness, presenting herself in a particular way? And in what way did her being so rigid about that

presentation allow other women to be a little less formal in the way they presented themselves, like Justice Sotomayor? I think of Justice Sotomayor with the earrings and the red nails, or Katonji Brown Jackson wearing sister locks when she's being confirmed by the Senate. I mean, to what extent did she walk so everyone else could run? Yeah. So that's a great question. I will mention the notion of bringing your whole self to work, which we're familiar with now. that's not the dictum that she followed, right? She thought that one needed to present oneself in a certain way, as buttoned down, as formal and wearing a skirt, no pants allowed. And that was both an armor, but it also reflected how she had been raised in this socially and culturally conservative West Indian family where they believed in the stiff upper lip and not really displaying emotion of any sort. And so it can be hard to understand or appreciate or even know where Motley begins and where the trappings,

the cultural trappings and social conventions end. I think they sort of meld into one. I don't think she would have changed that much had she lived longer. And I do think that she paved the way for women today, including women lawyers, to hopefully have a greater sense of the space that they can occupy and the ways that they can show up and perform. And of course, she was friends with Justice Sotomayor. And I interviewed the justice for the book, and she spoke so highly of Motley. And I do think that there's a way in which she passes the torch to Sotomayor, right? And I just think that's lovely. You got the same sense from your description of her relationships with her clerks. Now, clearly, she's not cultivating a chamber's atmosphere where people are wearing jeans. Like, there's the sort of decorum and formality is obviously there.

And yet, the substance was what was important. And she not only expected excellence and worked very hard and had everybody work very hard, she really prioritized hiring women, hiring people of color as clerks, encouraging their work and their career trajectories, which is absolutely something that Justice Sotomayor has picked up the torch and continued to do. Could you talk a little bit about that, the hiring and mentoring part of her role as a judge and how jurors today could potentially learn from that part of her legacy? Well, it's a vitally important facet of who she was. She believed in mentoring.

She believed in giving opportunity to women and people of color. She did hire clerks who were great students, but nevertheless were being overlooked by other judges. Derrick Bell fed students to her from Harvard Law School. And once they were in chambers, although it is true that she worked her clerks very hard and was formal, she also nurtured them. And she let them see a less formal side of her. She invited them to her summer home in Connecticut where she would wear jeans. She wore jeans in the summer in Connecticut. And she made and fed them meals. And there was a rule at these dinners that they were to talk about anything other than work. You

were not to talk about work. You were to relax and feel like a family. And I interviewed some of those clerks and they were just forever indebted to her for her humanity and for promoting their careers. People like Dorothy Roberts, for example. And it's important to know that she made a way for others. She didn't have to do it. It was other judges weren't doing this. And as I'm sure that you likely know, judicial chambers still are pretty non-diverse, shall we say. And there were many who would point to the pool problem. I don't think it's a pool problem. I think it's all about exclusive networks and assessments of talent that turn on what the judges or the professor's talent looks like or who they know or whose parents they know. But yeah, it's still a problem. When you say this, it sort of brings to mind one of the most arresting photographs in the book. At the end, there's this photograph of Judge Motley with her colleagues. And she's the only woman, the only person of color in this array of black

robed jurists. And it is worth thinking about that trajectory. And then the invocation of Judge Motley by now Justice Jackson when she was introduced to the American public. And the trajectory shows how much something can change in just a generation or two. And it really is remarkable. With that in mind, it's worth underscoring that you are an historian, and this is not just a biography, it is a book of history. And at a time when history is being critiqued and being attacked by some as presenting a less fulsome or a less attractive portrait of who we are as a nation, I wonder what you would say about how you want

this book to be received, not just by those of us who are fans of Judge Motley and who want to know more, but by those who need to know more. I want every American or as many Americans as possible to know Judge Motley because knowing her helps us appreciate how America changed over time. Who rebuilt America? And one of those individuals was this woman who started out as a working class Black girl in an immigrant household in New Haven, a striver, a woman, a female. It's just so important to appreciate that the change makers in this country come from every background, but in particular from that one. It's important for those whom Motley visibly represented to know about her, to appreciate the possibilities for their lives that she presents.

And also, I will say in this moment that I think the book is important to illustrate that it takes individuals to push legal institutions and push this country towards a better place. It's not to be taken for granted, certainly not now. And I think that with the ascension of Associate Justice Jackson to the bench, with the timely publication of this book, I hope that we can appreciate both the possibility of change and just how fragile our institutions are. That is a perfect way to end. So thank you so much, Dean Brown-Nagin, for joining us. Thank you for this fantastic book. The book is called Civil Rights Queen,

Constance Baker Motley and the Struggle for Equality. And it is available where all great books are sold. So please check it out and pick up a copy. This concludes our fantastic special episode of Strict Scrutiny. Thank you so much for listening. As always, Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell, with audio engineering by Kyle Seglin, music by Eddie Thank you so much for joining us.