Strict Scrutiny - Magical Moment

Episode Date: August 10, 2020

Leah and Kate are joined by Sherrilyn Ifill, President and Director-Counsel of NAACP LDF. They further break down the “shadow docket” cases from last term, highlight an underappreciated theme of the last term, and identify some things to watch in the next few months. 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 Leah Littman. And I'm Kate Shaw. And this is a very special summer episode of Strict Scrutiny with a very special guest. If you've had the chance to listen to our

recap of October term 2019, you'll know that we discussed on that episode the consensus or mainstream take on this past term. That take, which we saw reflected in headline after headline, went something like, Chief Justice John Roberts is a moderate institutionalist centrist who has somehow found a way to get the court above the fray of partisanship. And if you've been listening, you know that we were not huge fans of that assessment because we thought it obscured a few important details. And thus did the public a real disservice by miscommunicating in many ways what had actually happened at the court. And that's both in the way some of the big cases were discussed and in this kind of narrative's failure to account entirely for some of the cases that went under the radar and thus went basically unnoticed. You know, we also thought this narrative sort of failed to grapple with why the chief might have voted the

way he did in some of the big cases of the term and perhaps most importantly, what the court might do in the future. It's interesting. Just this week, we saw some evidence that the in a decade, that 58 percent of Americans approve of the job the court is doing. That's up from 50 percent, 54 percent rather last year, that 60 percent of Republicans approved of the court this year. Now, that's down a little bit from 2019, but actually for Democrats, that the court has a 56 percent approval rating, which is up from 38 percent a year ago. So these takes really have consequences with the broader public. And, you know, the polling itself is a consequence. And what the court is emboldened to do might be a consequence. So we think it's important to challenge that narrative. And it's just not so great for progressives to think John Roberts is their friend,

I think is a bottom line that we were going to hope to convey to our listeners and to help us give a more nuanced assessment and to help us further break down some of what got lost in the recapping and assessments of this past term. We are delighted to have with us today one of the beacons of the legal profession and my Supreme Court Justice, Sherri Ifill. Sherilyn is the president and director counsel of the NAACP Legal Defense and Educational Fund, the nation's premier civil rights law organization fighting for racial justice and equality. NAACP LDF is always involved in many of the court's biggest cases, and this term was no exception. They filed amicus briefs in, among other cases, Ramos v. Louisiana and

Comcast v. National Association of African American-Owned Media. The NAACP was also party in one of the consolidated DACA cases, and LDF filed an amicus brief in others. Sherilyn is a leading public commentator, former law professor, and litigator. And unlike Wilbur Ross, she actually has enforced the Voting Rights Act. Welcome to Strix Gritney, Sherilyn. Finally, finally. Thank you so much for having me. I'm thrilled to be here with all of you today. So, Sherilyn, let me echo that welcome. We're totally thrilled to have you on the podcast. And we actually wanted to start before we turn to the Supreme Court and this term in particular, by asking you to talk a little bit about your background. So we have a lot of actually law students and young lawyers who listen to the podcast. And we know that you were at LDF early in your career before

returning as president later. So we were hoping we could get from you just some advice to people who are early in their careers or still in law school, but aspire to do this kind of work, right, to fight for racial justice and equality, you know, in a full-time capacity. And if they can't find a job in a full-time capacity, how they can find other ways to do this work. Thanks. Yeah, I'm in the enviable position of having never been unhappy in my work. Really, literally having done exactly

what I wanted to do when I was a girl. Although if you look in my high school yearbook where it says career choice, I said Supreme Court justice. So I did say that. That is no longer true. But that's the world I want to live in, though. We are still hoping that that will come to pass. But that's what I said in high school. But I felt, you know, that I had kind of missed the civil rights movement by virtue of just, you know, being too young and that it seemed like from

the many, many documentaries that were on TV when I was a kid in the 70s and that my father compelled us to watch, that this was girls, had that moment of seeing and hearing Barbara Jordan and thinking, okay, yeah, exactly. You can be a Black woman on the center stage. You can have moral authority. You can be, you know, show your adherence to the values of the Constitution, but speak truth to power and hold that room, you know, with your moral authority. And it just was a great time to, if you had the kind of mind I did about politics and the way my family kind of raised us, to see people like Barbara Jordan and Shirley Chisholm. And, you know, it was an exciting period. So that's what I wanted to do. And, you know, when I graduated from law school, I took a fellowship at the ACLU in the Reproductive Rights Project for a year.

And then I heard that there was an opening at the Legal Defense Fund. And I applied for that opening. It was supposed to be another one-year fellowship. So part of the, you know, message is humility. You know, sometimes you have to take baby steps. And, you know, I came aboard to do voting rights work. And it was just as my two virtual supervisors, my distance educators, Pam Carlin and Lonnie Guinier had just left the Legal Defense Fund. Pam had left to go to UVA Law School. Lonnie had left to go to Penn Law School.

And they were still to be my supervisors while I started this fellowship. So I always say the first 18 months I was at LDF was the most traumatic period that I've ever had in my career because I was just a nervous wreck all the time because I was working with the two most brilliant women I'd ever met and working on these voting rights cases. And, you know, our clients really believed that I knew what I was doing and I didn't know what I was doing. I was learning as I went. But I loved it. And so I stayed at LDF for five years litigating voting rights cases. And then I left to teach, as many LDF attorneys do, at University of Maryland Law School in Baltimore. There was a kind of a sweet irony to it. Obviously, Baltimore is the birthplace of Thurgood Marshall. His first successful civil rights case was challenging segregation at the University of Maryland Law School, a case he won in 1935.

And so to come as a professor at Maryland was kind of exciting. And, you know, like many people who leave doing really intense litigation, I spent years writing about what I had been litigating. And I always described it as, you know, writing to say the things that my clients wanted me to say that I couldn't say in court. And so that's what I did and started a number of civil rights clinics at the law school, an environmental justice clinic, a clinic was really the second clinic in the country focused on representing formerly incarcerated people and their legal rights. And then after doing that for some time and writing scholarship and writing a book and getting very involved in the

history of lynching, I was asked to return to LDF. And I knew that I was actually the right person and it was the right time. This organization is one I love so much. Even after being away for a very long time, for decades, I considered it my professional home. And I'd never stopped being involved with the organization. So it was just thrilling. And so I came back in 2013. And that's what I've been doing ever since. There's been a lot for LDF to do in those last seven years and more. Well, I came on in January of 2013. And the Shelby case was decided in June of 2013. It's been very, very stressful, a lot of work, a very important period of time, but I was ready for it. I was kind of really up for it. So I can't say that I didn't feel like,

yeah, okay, bring it on. I will say the last couple of years has been a bit much. I hadn't quite anticipated this, but nevertheless, it has been terrific. Labor of love. And I think Shelby County versus Holder might provide a nice segue into our discussion of the last term. Shelby County is, of course, a decision in which Chief Justice John Roberts wrote for a majority of the court invalidating the preclearance regime of the Voting Rights Act that required certain covered jurisdictions to obtain federal permission before enacting any changes to their voting laws or election policies that would have, among other things, disproportionate effects on voters of color. So we've talked a lot on this show about how the assessments and recaps of the last Supreme

Court term that focused on how Chief Justice John Roberts found agreement with both wings of the court were misguided. And we thought that that obscured some important shifts, changes in the court's jurisprudence. Among other changes, it specifically obscured how the court not only ruled against claims of race discrimination, but also removed from consideration issues of race in all but a very narrow set of claims. So it's not just that the court is saying we don't think that there is racial discrimination here. It is suggesting we can't or shouldn't discuss issues of race in some number of cases. So we thought we would try to talk about some of those instances and what they might suggest about where the court would go in the future. Yeah, I think that's absolutely true and quite troubling. You know, it actually builds one of the difficult things in terms of talking about a court in one term is that you really have to knit it together, trends that you have seen happening over the course of time. And I think that that's one of the other pieces that's been kind of absent

from the conversation. And you have talked about that in the voting context that, you know, to the extent that, you know, people think that Justice Roberts has been, you know, a gettable vote, you know, for progressives. Frankly, in the voting rights area, he has not, right? And so that's just the reality. And so Shelby County becomes the jumping off point to talk about that. But I also think that the point you raised about how the court is addressing or not addressing race also is yet another area in which Roberts has kind of got a reliable path that he's on. If we go all the way back to parents involved in 2007, the case involving the effort by a school district in Seattle and in Louisville to engage in voluntary integration effort, and you'll remember that, you know, famous line from Roberts's opinion striking down those efforts, essentially saying that, you know, the way to stop discriminating based on race is to stop discriminating based on race.

And he referred to something like, I can't, I've now blocked it out, something like the sordid business of dividing up people by race. So what he articulated was that there is almost a distastefulness to engaging in an analysis of race discrimination, which is very present in American life, so present that there are protests happening in 50 states of this country right now to address it. But what he articulated in 2007 was a kind of distastefulness. And we have seen that over and over again. We saw it in Trump versus Hawaii, when it was almost as though it of distastefulness. And we have seen that over and over again. We saw it in Trump versus Hawaii, when it was almost as though it was distasteful that the specter of Korematsu had been raised, right? When in fact, Korematsu was clearly on the table, right, with the Muslim ban. And yet Roberts, you know, was kind of, this case, of course, is not about Korematsu,

which everyone knows has been overruled. What is it in the court of history? In the court of history. Yes, yes. Right down the street from the Supreme Court. But, you know, it's it's there was a distastefulness. And we saw it this term when Justice Alito in the Ramos case involving the Louisiana non-unanimous jury issue, you know, in his dissent also was this kind of, you are incivil by raising the racist history of this practice. And so actually, that is actually quite disturbing to see that not only does Roberts carry that, but to see Alito carrying that, and to

see that Kagan was willing to sign on to even that part of the opinion in which Justice Alito suggested that somehow it was uncivil, immature, and distasteful to address the racist history of non-unanimous juries in Oregon and Louisiana. Yeah, the language in that portion of the Alito opinion, which both the chief and Kagan joined was, you know, to add insult to injury. The court tars the states with the charge of racism. Too much public discourse today is sullied by ad hominem rhetoric. And the idea which, you know, you linked to parents involved in Trump versus why. And I'd also say it's evident in the court's opinion in, you know, Schuette versus, you know,

the Michigan case involving the amendment prohibiting race conscious remedies. You know, the idea is that is just dirty or bad to talk about legacies of race and racism today. And it's Shelby, right? Because the idea of Justice Roberts in Shelby is that you are tarring the honor of the southern state with this history that they have so separated themselves from. Now, simply just hit the reset button and pretend it never happened. That's really the point in Shelby, right? And remember, in both the Northwest Austin case, voting rights case, and the Shelby case, remember an oral argument, what he asked the oralist, right? Do you believe that people are more racist in the South, right? Or in the South than in the North? I mean,

there is this effort to take the entire project of having the maturity and using the platform of litigation to address race discrimination as though we are introducing something distasteful into the conversation. That perhaps is disturbing to me kind of more than anything else that I'm seeing over the last few terms. And as the examples you just listed, I think really illustrate, remember when he, so it's in his colloquy with Solicitor General Don Verrilli, right, asking, is it the position of the United States that it is that the citizens of the South are more racist than the rest of the country, something like that. And Ver and really sort of struggles and says, you know, it's not a position. I'm not sure exactly how we'd answer the question. But it's

like the contempt for recognizing even the salience of the category of race when engaged in by any organ of government or even private players like parents in school systems in Seattle and Louisville. So we, the court, find it distasteful and improper to even consider the salience of race. But also, it was improper for Congress to have done so when it virtually unanimously reauthorized the Voting Rights Act. It is improper for state legislatures to do so. It is improper for families to do so if they choose to engage in voluntary integration programs at their schools. We ought to eradicate the category as a salient one in American life across the board. And it rang just so wildly clueless at all those junctures. I have wondered a lot whether what we have seen

roiling the country in the last few months could on any level sort of penetrate the consciousness of John Roberts and other members of the Supreme Court who have voted with him in a lot of these cases? I don't know the answer to that question, but I think about it a lot. I think it's a great question and it actually brings me to another concern I have about the framing of this term. You know, because to the extent the court carries with it a reputation that is different than the reputation of Congress or of the executive branch, it is that there have been these moments when the Supreme Court has kind of stepped into the moment, right, in a way that is powerful and brave, and maybe not even that brave, but certainly powerful and important, right?

And we think Brown versus Board of Education is one of those moments where the court kind of steps into a position of moral authority, of legal authority, of decency, of kind of an unflinching commitment to the principles of the 14th Amendment that have been thwarted since 1868, right? And says what the law is, right, in the best kind of Marbury versus Madison way. Cooper versus Aaron, the Little Rock Nine case, like they're just these moments where the court steps into its own. And Obergefell is one of those moments as well, where there's just these moments where you feel like the court rises to the occasion and takes its rightful place.

And so I think, you know, to give us a window into the answer to the question that you posed, I look at the court's COVID cases, right? And those cases are, some of them are voting cases, but some of them are also prison cases, right? And we look at these cases, and I think, you know, often they get ignored because they're not full-blown decisions. They're the court's decision to uphold the stay or to not hear a case and so forth, and so they don't get the same level of attention. But if we think about the Valentine case from earlier this year, this is the case from the geriatric prison in Texas, where, you know, the district court, you know, issues an opinion asking and requires the prison officials to provide hand sanitizer. They're very modest

things. It's not, you know, build a whole new prison, right? But to protect the safety and health of elderly prisoners during the COVID pandemic. And, you know, the court's turning away, you know, the circuit court grants a stay and the Supreme Court allows the state to go forward. We just saw it happen in California with the California jail yesterday in the Sheriff Barnes case. I mean, these are life or death matters, right, in which time is of the essence and in which we are in a moment. You know, you're asking, can the court respond to what it sees in the streets with people protesting in 50 states? There's also something else happening right now, and that is a global pandemic that has already killed 160,000 Americans, 4 million are infected, disproportionately burdens those who are African American and Latino and Native American. And we've seen those prison cases. We've also seen the voting cases.

Leah, you talked about Wisconsin. Like for me, that was just kind of a turning point, you know. So we've seen Wisconsin, our case, LDF's case from Alabama, you know, in which we're representing people who have these pre-existing conditions who are asking to be relieved from these onerous absentee ballot requirements in Alabama. You've got to have two third party witnesses sign your absentee ballot and you have to send in a copy of your government issued photo ID. Like, well, what do they think we're going to do? Like go to Kinko's, right? Like that's exactly what the secretary of state of Alabama said. John Merrill said you can just go to Kinko's requires that, you know, if you don't do that, you have to have it notarized.

Right. So you're imagining someone who's elderly, who has asthma, who has COPD, who has lupus. You're telling them to engage with three other people. We're in a situation right now where people are not seeing their grandkids. They're not seeing their children because they're afraid of contracting this disease. So if you add the COVID cases, right, and really look at them in both the prison and the voting context, where we're really talking about life or death. And in prison, we're talking about, these are people who are living,

we have a case challenging the prisons in Arkansas, where our clients are sleeping two and a half feet apart. Clients who have these preexisting conditions in terrible unsanitary conditions and so forth. Time is of the essence. And yet the court is willing to allow this to go forward. So, you know, there are many things happening in the country right now. And the noblest moments are when the court can gather itself to speak into those moments in a way that speaks into the full citizenship, dignity and humanity of litigants who come seeking, you know, seeking the court system to vindicate their rights. And I think the COVID cases are telling a story

that's very, very disturbing. You've seen some, you know, strong writing from Justice Sotomayor, you know, who's just been very distressed about this as well. But that's an angle to go back to the top of the show that I don't see people taking. When I say the people, I mean the kind of mainstream Supreme Court watching commentariat is not really putting this all together as something that actually is quite disturbing. I just want to pick up on something specifically you said when you talked about time being of the essence and how these cases are being decided on stay applications,

because what happens is a lower court will issue a decision in the Sheriff Barnes case you mentioned, it was to require an Orange County jail to take certain precautions, bringing the jail into line with the CDC guidance. And in that particular Orange County jail, there had been over 400 COVID cases since March. And lower court issues an injunction requiring the jail to take those precautions. Court of Appeals allows that injunction to stay in place. And then the Supreme Court, by a 5-4 vote with the conservatives be irreparable harm without a stay, and two, that you're likely to succeed on the merits. So let's talk about the irreparable harm that is going to happen. Basically, what the Supreme Court has said is you're not going to be able to get an injunction until there's a full trial on the merits and full proceedings. But because time is so of the essence in this pandemic, you need to take precautions now in order to prevent further transmission.

Requiring those full proceedings are what's causing irreparable harm. The irreparable harm doesn't arise because we're requiring the jail to bring itself into minimal compliance with the CDC guidelines. Like, that's not really the irreparable harm. And I think the perversion and the warping of these stay factors, which has largely kind of fallen outside of the general attention on the court, maybe because it happened at the end of the term or because these cases aren't issued with full opinions or argument, is really unfortunate because that is where a lot of the significant action has been. And I think some of the most troubling action too. The other piece of it that it actually reveals is how narrowly the concept of being an institutionalist is being seen, right?

Because, you know, the Chief Justice of the United States is accountable for preserving the institution, not just of the Supreme Court, right, but of our entire federal judicial system and the rules and the mores that govern it. So one of the pieces that I find disturbing is what we do with extremely detailed district court opinions in which district courts have made very particular factual findings. We had it in our Alabama case with Judge Abdul-Khalan. We have it in the Florida case involving formerly incarcerated persons. We have it in these prison cases that I've just described. We had it in the Shelby case where it's the congressional record that ultimately is kind

of the record that the court should be deferring to. So there's another piece of this that is, again, about the lens of, you know, upholding a kind of institutionalist view. And our deference to trial court findings is a key part of the institutional system. I don't want to get all civil procedury on everybody, but I must, you know. So for, especially if you are a civil rights lawyer, so I could just kind of speak plainly, and you're litigating race discrimination cases, we don't get the benefit of the doubt. The inferences are not resolved in our favor. We actually have to try and prove our cases. I often say to our staff at LDF, you know, if we get a chance to try the case, I like our chances. You know, I think we're brilliant.

I think we have great cases. Our clients are amazing. And honestly, if we get to try our cases, I'm good, you know. But that only works if we're actually following the institutional rules, right? And so you see these very detailed trial court, I mean, the Florida case, this is the case, you know, against Governor DeSantis involving formerly incarcerated persons whose vote was restored by a ballot initiative in Florida. And then the Republicanled legislature, you know, filed a law requiring, passed a law requiring that formerly incarcerated persons pay fines and fees to get back. And then we went into litigation and so forth. This was a virtual trial. So we're in the middle of a global pandemic. We do a two-week trial of some of the best civil rights organizations coming together

to litigate this case. We get a decision from the trial judge that is detailed, that is on point, right, and virtually really unshakable, in my view, if you're kind of following the institutional rules. It gets turned back by the 11th Circuit, and once again, the Supreme Court, you know, allows the state to go forward. So again, this piece of just the detailed findings, if the district court is saying, here's what's happening in the jail, and here's what needs to happen. If the district court is saying, here's what's happening in the prison, and here's what needs to happen. If the district court is saying, here's why all of those requirements that Alabama imposes on absentee voters is an unconstitutional burden because here's how it

really works. There ought to be some deference to that. Those trials, like in Florida, and those hearings and that presentation of evidence and that district court's decision should not be lightly kind of disregarded. And so I do think that I'd love to see the conversation about being an institutionalist focused on some of this kind of stuff as well. These are all such great points, right? And I think they go to the heart of our frustration with this kind of uncritical assessment of the Chief Justice as motivated primarily by an interest in institutional legitimacy and institutional integrity. But like, yes, you're right. Respect for the system and its allocation of authority, including its vesting of primary authority on fact finding matters in district courts. You know, and what's so hard

about this, all of these cases, I think maybe Wisconsin might be the only exception of the cases we've just talked about. But as to the others, the Supreme Court just typically stays these injunctions without an explanation. And so we are left to guess, OK, I guess maybe the Alabama case, you know, the court is being driven by this really expansive understanding of the Purcell principle where district courts aren't supposed to change the rules of an election on the eve of an election, bracketing whether Purcell has any application in a pandemic emergency context in which changes are inevitable, required by the Constitution, going to happen anyway, to disable only federal courts, but allow other operators and players to make these changes just seems so blindered. Including closing polling places in the lead up to the election in primarily Black communities, which is another change the court doesn't seem to mind. Right. No, absolutely. So obviously, there's kind of like, you know, there's an asymmetry or an imbalance in the kinds of changes they are willing to tolerate. But what it is so hard from the perspective of like basic transparency and democratic accountability to not even know

why the Supreme Court is setting aside these careful district court findings, right, in Florida, finding that this pay toto-vote scheme violates like three independent constitutional provisions, and yet we're just going to disagree and not even tell you why. Or in Alabama, right, that is an incredibly detailed opinion, you know, directing these, I think, extremely modest relaxations of some of the state's absentee voter laws, right, for the reasons you identified, because they're kind of nuts in this moment with respect to the plaintiffs that you have identified. And again, like, you know, we'll just either, Alabama might have been 6-3, all the other, you know, I think we don't know how Justice Breyer voted in that case. I believe all the others were 5-4. And again, except for Wisconsin, you either have no explanation whatsoever or, you know, the kind of clarion call of Justice Sotomayor in dissent in a bunch of these cases pointing to the majority's errors and majority just sort of stand silent in the face of them.

Elevating the importance of these shadow docket cases in our assessments of the court and its institutional legitimacy seems so important to me right now. It's super selective. I mean, I even remember when you remember when President Trump said that there were Obama judges who were deciding some case. I can't remember which one it was. It was the asylum ban. Yes. Yeah. And Justice Roberts found a way to speak up and say there are not Obama judges and, you know, Trump judges, Republican judges and Democratic judges. There are just, you know, American judges. And he was praised for that and rightly so. But there also was a time when the president talked about a Mexican-American judge, Judge Curiel, and said, we can't get a fair hearing. He's Mexican. You know, he didn't even say Mexican American. And there was silence. This was a really

powerfully important institutional moment when the chief judge's voice would have been really powerful to say, you know, there are not Mexican judges and there are not, you know, judges of any other, they're not Irish judges. You know, they're not Scottish judges, right? We're all American judges. So I just think there's a selectivity to the praise that is given. And frankly, there's more that we should be asking for. And the point you raised, Kate, really kind of that really, really powerfully moved me about like what we don't know, being able to kind of, you know, issue these decisions, you know, and we don't even know what the reason is. The only clue we have in Wisconsin is that, is that once again, we are not to enter the space in which we talk about what the

real effect of this all is. So the district court in the Wisconsin case lays out all of the ways in which voters are imperiled by COVID and how they might be risking their lives. He says very directly that people should not have to risk their lives to exercise their right to vote. And he lays out the racial disparities. In fact, that week, the newspaper story had come out showing that although Black people constitute 28% of the population of Milwaukee, at that moment, they're 70% of COVID deaths. So it's happening all within that context. And the opinion we get from the court, the per curiam we get from the court says, you know, this is kind of only about Purcell. This is not about whether or not some adjustments could have been made when in fact it is, right? The district court had made

an adjustment and the very modest adjustment that the district court had made was that you could now return your ballot, and the ballot could be postmarked, you know, by election day, even if it arrived after election day. And they say, no, this is not about any of that. And that can't be stressed enough. In other words, don't cross this line. We're not going to be looking at any of the real effects of this, of this, of COVID on the, on these populations who are trying to vote, even though that's what the entire district court opinion is about and is premised on. And to me, that's almost, that's as bad as the silence in the other cases, right? It's like, you're not going to, we're not going to allow you to even have a conversation about what is actually an issue here.

Yeah, it's the exact phenomenon we were talking about at the beginning, where the court is insisting on the proper bounds of what it defines the dispute to be and what people are allowed to talk about. So it says the dissent's rhetoric is all misplaced. And the narrow question here is only whether to modify these election procedures on the eve or, you know, how courts should do so. And that all of these other considerations are entirely irrelevant. And, you know, this point can't be stressed enough. And I think that's unfair and also symptomatic of a deeper problem within the legal profession, which is, you know, legal elites and the Supreme Court justices among them insist on setting the terms of the debate in terms that are comfortable to them and that don't permit us to talk about

these very serious issues of equity and race that are very relevant to these disputes. You know, to talk about whether it is fair to force people to vote in person during a pandemic when 70% of the victims of that pandemic happen to be in Black communities in Milwaukee in a dispute in Wisconsin, like that's relevant. And to insist otherwise is, I think, unfair and a disservice to the legal profession. Well, it leads me to really pose the question to both of you, you know, about the kind of Supreme Court bar and commentariat and what they're ready for. Because, you know, we're in a moment where there's no question that the salience of race is kind of front and center in American life.

Obviously, for the clients that I represent, it's always front and center, right? So we're always going to try to make our case. We're not going to pull our punches because we have to speak the reality that our clients speak to us and we have to present it. And our job is to try to make a court see it. It's no different than what Thurgood Marshall felt compelled to do. You know, he was presenting a world that was not known to certainly the Supreme Court justices. He said it himself. He said none of them knew anything about race before I got there, you know. But when he was litigating, he was trying to present a world that often, because of American segregated society, which still exists, many of the people before whom, you know, you're presenting these cases don't know. And I always remember Marshall

saying about his, the first case he tried before Judge Wadey's wearing, who was, you know, became a kind of a legendary trial court judge in South Carolina. He was legendary because he, you know, basically kind of turned against his class and began to rule favorably to civil rights plaintiffs and particularly to Thurgood Marshall in a number of cases, including Briggs v. Elliott, which was the South Carolina Brown case. And he ruled, he dissented from the three-court judge, the three-judge court in that case. And he was the first one who said that, you know,

segregated education is per se unconstitutional, right? So that's, you know, and what Marshall said was, theitutional, right? So that's, you know, and what Marshall said was the first time he tried a case before Wadey's Waring, which I think was a teacher pay case, he said, I just, you know, he said, my tongue was hanging out of my mouth because it was the first time I'd ever been able to fully try my case before a Southern judge, right? Because Wadey's Waring actually let him try the case, let him put on the witnesses, question them, put forward the evidence and so forth, right? So that presentation of what people don't wanna hear,

we need that shot, right? We need that shot to be able to do that. And what worries me is not so much, so we know that's baked into the pie when we're litigating cases in front of many of these courts where we litigate and we know that's true in the Supreme Court. But the ecosystem, the commentariat, the Supreme Court bar, now that's a whole nother story. And I guess that I'm posing the question to you too, you know,

are they ready? Is the ecosystem ready to confront this reality that this cannot be regarded as something that violates the decorum of this ecosystem. And I recognize that, you know, when people become good at understanding a certain way of envisioning things, they become invested in it. And right now, as you know, Leah, I have been railing kind of against, as you know, Leah, I have been railing kind of against, you know, the profession that I have committed my life to, and just saying, this is a moment in which I am calling on my colleagues, I have played fair, you know, I have accepted the rules as they've been given to me. And we play within those boundaries. But I have been very disappointed, frankly, by the failures of our profession to

step up and recognize the need for the profession itself to rise to the moment. And I'm just wondering what your thoughts are about, like, what are the chances of that happening and what are the barriers to that happening? So I guess two thoughts on the barriers and then maybe some of what might be done about it. You know, I think some of the barriers are a certain number of lawyers, commentators, members of the legal profession view themselves, for lack of a better word, as junior Elena Kagan's. That is, no, seriously, like they pull their punches, they are seeming reasonable, and they are buying credibility so that when they say, like, we as a profession could do a lot more in moving the ball and changing the terms of the debate if more people said, we think it is relevant to the Wisconsin case to understand, you know, the context of the Purcell principle being

deployed in the midst of a global pandemic that disproportionately burdens poor communities and communities of color. We think that is part of the legal question, and they should fault the Supreme Court for failing to do so. I understand that that's uncomfortable. I understand that you're worried that those remarks are going to come back and bite you when you are trying to get that Senate-confirmed position or whatever it else is you aspire to. I get that. I also learned the rules of the game and valued them. And I clerked for two conservative judges. I understand. I want to try and be viewed as reasonable and have people listen to me. But I also understand that I get to benefit from that

system a lot more than other people, and it comes at much less personal cost to me. And so I think it is on me to try and speak out more and change the terms of the debate and say, I think Wisconsin was an abomination. I don't think it's fair for a bunch of people to be saying, I think the Wisconsin decision is more reasonable than you're suggesting because there's this, you know, nominally generally applicable principle that the Supreme Court never consistently deploys that might, you know, explain it here. So that's part of what I think is going on is just this inner institutional conservatism and inner desire to seem credible and reasonable. And imagine yourself as Elena Kagan that I think facilitates some of this. And it's also that, you know, the people that have set the terms of the debate, these are the same people that have dominated the profession for decades, right? These are the laws we learn,

these are the terms of the debate that have been set for us. And so when you learn that, it becomes more difficult to challenge. But like, this is part of why we try to instill in students and everyone else, like the ability to critique law and criticize it. And I hope the profession is up to that challenge. I don't know if it is. Yeah, it will have to be I just, you know, I mean, I tell you what makes me just furious about what you just said, all of it being true, of course. So upset is, you know, everyone at the Legal Defense Fund was educated in the same system. We didn't go to some obscure law school that no one ever heard of, right? So we also understand, and we also, we're actually pulling our punches all the time. You know, you wouldn't

believe, and maybe now that we are seeing eruptions in the street, people would believe the level of anger that's out there, what our clients see, how they live every day. Maybe that's what you are seeing. So we're packaging it up for you as best we look, you don't become a civil rights lawyer unless you believe in law as a fundamental principle of democracy, and I do. And if we want the law to be respected, then people have to feel that it is legitimate and that it speaks to them and that it is capable of hearing. And so, you know, I think what is happening, you know, can really imperil the legitimacy of our legal system. I'm not asking for some favor for me. I'm asking for respect for this pillar that we all believe in. And I just think that there has to be

a much more fluid and flexible opening to understand this all better. And some of it is really around this question of how we see the Supreme Court, because it affects things like, we're in this long conversation about qualified immunity now. We're seeing all these judges on both sides

of both conservative and not right about the problems of qualified immunity. The law does have to change. It doesn't stay the same. We're all in these, you know, we're in the ABA and we're in the ALI and all these places where we talk about law because we accept that the law can change. And so I think it shouldn't be, people should not, you know, erect these barriers around their ability to see the need for change. Yeah. Can I say two things in response

to what you said before, Sherilyn? One is, I just want to mention a book. So you mentioned Judge Waring from South Carolina. So Judge Richard Gergel, who I think actually holds the seat now that Judge Waring sat in, has actually a pretty wonderful book that's sort of a biography of the judge, but also of his kind of racial awakening, right? And you described him as a traitor of some sort, right? He was this white Southern conservative who just kind of had his eyes open to racial injustice. And the book tells that story. Anyway, it's called Unexampled Courage. And if people haven't heard of it and don't really know about judge wearing, it's worth picking up. And it sort of ties into something that we were talking about earlier, which is, so that's, you know, an individual who just was moved by circumstances and, you know, sort of set himself on this kind of self-taught exercise, right? Like he sat down to read about Reconstruction, the Civil War, Reconstruction, racial injustice, like he just didn't learn about it at all in school and sort of became self-taught. So there's, you know, individual awakening is sort of one model. You're asking about structural change, which is obviously different, right? We cannot rely on, like, to my earlier probably naive question, like, maybe John

Roberts has had his eyes open. Like, probably not, but also, like, that's actually, you know, if he does, that's wonderful. But, like, we have to do the work so that we're not reliant upon a particular individual, like, having an epiphany. And I think everything that Leah said was right. I do think that law schools are engaging in or starting a probably long process of engaging in introspection around, you know, faculty hiring dynamics, curricular choices. Like I teach administrative law. And I think for the first time that I am really aware of, people are having a widespread conversation about themes of race and class, even in federal administrative law. It's not a course that typically touches those topics. And in fact, I think it's the case

that every law school course needs to and that our students are actually demanding it in an important way. So that that, you know, I think if you have another many generations of lawyers who come of age in the profession, understanding that race matters and that we cannot and should not write it out of our law. I think that that is one, you know, sort of long term answer to the question of what the profession is doing to meet the moment. And it will take time, but I think it is beginning to happen. I think that's true. I mean, I hope that that's true. I also think that this moment is very charismatic for young lawyers and for law students. And so I think there will be generations of lawyers who will, you know, there were generations of lawyers who were inspired by seeing Thurgood Marshall and seeing Constance Baker Motley. I always say that, you know, being a lawyer wasn't even cool until Thurgood Marshall,

you know, he had the cigarette and he had that trench coat and he just, you know, and he spoke in a way that was incredibly accessible to people. I mean, you know, it was before it was like you were, you know, you had a pocket watch and you were a business person and, you know, and so I do think that like there are many of us who were kind of inspired by those people to become lawyers. And I think that the same will be happening today and the profession will necessarily change. I'm most concerned, however, about the suffering of the people that I represent. And, you know, when we talk about those COVID cases, when we talk about what's happening in the prisons, we're talking about life and death. You know, the Texas case, a prison with 1200 people,

800 of them are over the age of 65. You know, we see the ravages of this terrible disease. So I do think that this is really a moment for self-reflection across the board in this country, particularly as it concerns race. And I'm inviting the profession to engage in that self-reflection as well. I really am. And I've been talking about this, you know, piece that I've been trying to write, and I actually was just really too angry to write it over the last year. And I hope that I'm pulling it together, but, you know, it's been with me for a long time.

And, you know, I've written smaller pieces about, you know, judicial nominees refusing to say that Brown versus Board of Education was correctly decided and the kind of lack of outrage in our profession about that. You know, I just think there have been a lot of warning signs that our profession has to wake up and has to recognize that it has a role to play. And that when we see problems happening in our country, when we see, I talk about the officer who had his knee on George Floyd's neck, Derek Chauvin, and I've talked about, you know, what that image was, that snapshot of the way he's got his hands casually in his pockets and he's looking at us. And I talked about how powerful that moment was and how devastating that moment was. But I

honestly believe he is looking at us. I said this at a judicial conference the other day. He is actually looking at it because he doesn't believe anything will happen to him. And that's on our profession. Because the truth is, he's been arrested and he will stand trial. And not one of us on this podcast can guarantee that anything actually will happen to him. Because the officer who killed Terrence Crutcher was acquitted in Tulsa, a man with his hands up. The officer who killed Terrence Crutcher was acquitted in Tulsa, you know, a man with his hands up. The officer who killed Philando Castile, we all saw him bleeding to death in that car in his fiance's Facebook feed,

who also went to trial, was acquitted. The officers who killed Freddie Gray in Baltimore, acquitted, because the officer who killed Eric Garner in New York will be first heard, I can't breathe. But not only wasn't indicted or tried, wasn't even fired until last summer, was five years on the NYPD. So the truth is that that officer is looking out with, he knows he's being videotaped. There are people all around him videotaping, asking him to stop. And he's looking like that, so casual because he's certain. Who put that certainty on his face?

This profession that has allowed qualified immunity to be interpreted out of all sense. This community that has not allowed the issue of race to be folded into a presentation of a police officer saying he felt threatened in a criminal context or that someone constituted a threat. We have to take responsibility for what the law created. These are not things that are written in the threat. We have to take responsibility for what the law created. These are not things that are written in the Constitution. They didn't come down from on high. The profession created it. And it's time for us to step up and confront it. Yeah, maybe that's a good segue to talk for a couple of minutes more about qualified immunity.

So you mentioned it a couple of times. And it's an issue we have spent a good amount of time on on the podcast. We had a bonus episode earlier this summer with Emory Law Professor Fred Smith, who was great on this topic. It does feel like it is an issue in which either reform or actual outright abolition of the doctrine of qualified immunity, which is not of the Constitution, completely judge crafted, has begun to attract some support that is cross ideological. Right. Justice Clarence Thomas has recently been extremely skeptical about the foundations of the doctrine, so has Justice Sotomayor, and it seems as though other justices may well get on board. So I'm curious, you know, we were all a little surprised when earlier this summer the court denied en masse, you know, I think it was eight maybe qualified immunity cases it had before it. And so I guess, are you are you hopeful about where we might be headed on qualified immunity? And do you have any thoughts about why the Supreme Court decided, you know, it just wasn't ready to take the issue up now? I don't know. It's so hard to read the tea leaves.

Obviously, you know, it's an issue that's before Congress. It's part of the George Floyd Justice in Policing Act and Inqualified Immunity for Law Enforcement. So it's, you know, kind of being hotly debated and that could be a reason. But I don't know that to be the reason. That being said, I will tell you, I am hopeful. I do think that there comes a breaking point, you know, in the law. And, you know, when and when it comes, it just comes, you know, this has been building for a while. I think when you read, you know, some of these concurrences

that we've seen from circuit court judges, some of these district court judges, some of the courts of appeals, judges who are really there is a kind of a low level mutiny, you know, even as, you know, the judges are recognizing, I got to follow the Supreme Court doctrine, but here's why this just really can't stand, you know. I think that that's real, and I think that within the profession, the conversations that, you know, we're having about qualified immunity will have their effect. How soon it will happen, I don't know, but I remain optimistic, and LDF is fundamentally a law reform organization. And so we always believe that there's that possibility for change. And I think qualified immunity is ripe for it. Some of the cases, the factual ago, you know, in which our client was was tased to death 19 times. You know, there's just there just so many of these cases are just unbelievable when you describe the fact pattern to someone without telling them what the doctrine is,

you know, people are just kind of horrified. So I think that, you know, that one is headed on a path that I think will ultimately result in some very serious change. I think that the latest qualified immunity district court opinion that is probably worth mentioning is Judge Carlson Reeves' opinion in Jamison v. McClendon, which opened with a long recitation of examples in which police have used lethal violence against Black people and face no accountability. And he links that history with qualified immunity. And it's an extremely thorough opinion about not only that history, but the history of

the Reconstruction Amendments, history of the Civil Rights Act, history of qualified immunity. And Sherilyn, you're cited in the opinion, along with many other scholars of qualified immunity, federal courts and policing. So that's one example. And I'll just and I'll tell you, Leah, the list that begins that opinion is short. And from my perspective, right, it was perfectly written, right. But just just so people understand, like he selected, you know, the most kind of famous cases that have occurred over the last five or six years.

But just to understand, again, within the communities of people that I represent and people who work on these issues, that list is short. I mean, I could right now rattle off 10 other names, you know, that could have been in the front of that opinion. So that's what I mean when I say like, there is a, it's reaching a point that is just really untenable and has to be addressed.

We're watching the next Supreme Court term, but we're really watching the next few months and how the court responds and either rises to the occasion or doesn't as we have this unprecedented pandemic intersecting with the election. And I guess maybe I could ask two questions. Are there particular things or dynamics that you were watching for in terms of the court's election and COVID docket in the next few months? And then are there any takeaways if there are, again, law students, young lawyers who are listening to this podcast and would like to get involved in some fashion with the election specifically, with issues of race and justice and the law more broadly.

Anything concrete that we can share with those kinds of listeners just as a takeaway? Yeah. So, I mean, obviously, I can't say too much about it because we have a number of cases, all those cases where, you know, we get the preliminary injunction and then it stayed, you know, we're doing our trials now, we're doing our discovery and we're going to trial, right? And so all of this will come back up for the November election. The magical, mystical Purcell moment, you know, figuring out what that is. We're going to, I guess, find out more about what that magical, mystical moment, where it falls. And that's important. And so the court's going to have a lot of opportunities to address those issues. It's going to have the COVID prison cases

that are going to, you know, come back after trials. And we're going to have the COVID prison cases that are going to come back after trials. And we're going to learn more about how people are being devastated in the prison. So there's a lot more that's coming. This term, we may have the affirmative action case. The oral argument in the Harvard affirmative action case will be in September. We're participating in that oral argument. And so there's a lot that could happen on the docket that will tell us a lot more about, you know, this court and where it's headed this term. And, you know, we're all kind of actively involved in the cases and always looking for the best.

I'm always optimistic, always believing that, you know, if we do our job, we have a fair shot and we'll continue to play it that way. How do people get involved? So first of all, I think it's just knowledge is key. You know, please go to our website, follow me on Twitter. I'm always trying to put out good information, listen to strict scrutiny, you know, follow the ladies and really keep yourself informed and educated. As law students, I think that's really important. Maybe more so than when I was in law school, that you really have to know what's going on because it's moving so fast. And there's an expectation that you know what's going on. If you want to just be civically minded, certainly go to our website. We have a Voting Rights Defender Project. We bring on volunteers to help us with poll watching and so forth. But I want to actually encourage people

to sign up to be poll workers. One of the problems that happened in Wisconsin, you know, in Milwaukee, the reason why there are 180 polling places, but only five were open at the primary is because people called out because most of our poll workers are elderly. They're afraid of catching COVID. We don't want to imperil them either. We need more young people to decide that they want to be poll workers on election day. And they can go to a wonderful website called electionwork.com, and they will tell you how to sign up to be a poll worker in your jurisdiction, county, or whatever. We think that's really important. We really think it's important for people to know how to do absentee voting and to get educated about it and to help your mom and your grandma and your granddad and your uncle and people who may have trouble doing it.

We think it's important to make sure that folks have PPE. I put out a call to all Black churches that you're on PPE duty for Election Day. Every person should have a mask and gloves on election day. And so I just think it's really important for people to understand that no detail is too small, you know, that this is from soup to nuts. We are in a global pandemic. We need you to be lawyers. But most importantly, we need you to be good, responsible, active citizens for this election. Hard to end on a better note than that.

So thank you so much, Sherrilyn Ifill, for joining us. Thank you, Eddie Cooper, for making our music. Thank you to our producer, Melody Rowell. Thank you to everyone who is listening. If there are any Supreme Court clerks listening or Supreme Court justices, there is an excellent petition challenging qualified immunity, Taylor versus Rojas, by some Oreck lawyers, including Kelsey Corcoran, Tiffany Wright, Elizabeth Kruikugshang. The officers in that case insisted they, quote, needed the breathing room in order to confine an inmate for over a week in unsanitary conditions. So this is what the Qualified Immunity Doctrine is now doing. you to think about ways in which you can normalize expanding the issues that we talk about within the law and the legal profession in order to make it easier for litigators like LDF to do that work.

Thank you. Thank you. Thanks so much, Sherilyn. Thanks, everyone.