Strict Scrutiny - Project 2025: 900 Pages and 100% Deranged

Episode Date: July 29, 2024

Leah and Melissa introduce a new series on Project 2025, the Heritage Foundation’s deranged instruction manual for taking away all of our rights and making everyone’s lives worse. Then, the whole crew is together for a conversation with Dylan C. Penningroth about his book Before the Movement: The Hidden History of Black Civil Rights. 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 legs. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts for this segment. Today, I'm Melissa Murray. And I'm Leah Lippman. So remember last episode when Kate and I mentioned our big summer break

plans and the evergreen content we had queued up for you to give ourselves a bit of a break in July? Well, the universe was like LOL because the legal culture never sleeps, especially not in an election year. So today, before we get to a wonderful conversation about an actually wonderful book that we recently read, so yes, that was a subtweet of our recent episode with the ever delightful JVN in which we reviewed Josh Hawley's book, Manhood. Leaving that to the side, before we get to that wonderful conversation about that actually wonderful book, not Manhood, we have some newsy items that we wanted to cover and a new segment that we wanted to introduce for the next few summer episodes. The new segment is going to be a multi-part series on Project 2025. So

Kris Jenner works hard, but the GOP works harder, and so do we. So that's on tap for you. But obviously, the really newsy items is that one of the recent attendees of the Strix scrutiny live show in DC is now a candidate for president of the United States. So listeners, I don't know what to say to you. Is this a coincidence? I think the fuck not. So dream big people.

You can go in literally a month to sitting in the audience, to running for president of the United States. You heard it here. This is the American dream. So yes, vice president Kamala Harris announced her candidacy for president of the United States. You heard it here. This is the American dream. So yes, Vice President Kamala Harris announced her candidacy for President of the United States after President Joe Biden announced that he would not seek re-election. So we're first going to quickly debunk the suggestion that there is something wrong with the fact that Kamala Harris is now the presumptive nominee for

the Democratic Party. And we're also going to debunk any cockamamie theories that might be marshaled to keep her off the ballot in certain states. Like we said, Kris Jenner works hard, but the GOP works harder. And then we will have our new segment, which builds on our recent habit of reading terrible, horrible, no good, very bad things

so you don't have to. That will be the multi-part series tentatively called WTF is Project 2025. So over the next few episodes and then culminating in a big final episode, we're going to go through the different parts of Project 2025. We have read the fine print and we want to break down what's in there. Project 2025 is, at bottom, a plan to use laws and regulations to advance a terrifying agenda just to do like weird, creepy shit. And in part for that reason, it has a lot of legalese and law terminology that we're going to unpack because we want you to know what's at stake. And we want you to be able to talk about

that with other people as well. So maybe we'll call the segment strict scrutiny hive on Project 2025. But if you have better ideas, feel free to write in and suggest. Maybe Project Fuck Shit. I don't know. Yeah. That works. It does. But before we talk about a real issue, the absolute insanity of Project 2025, let's talk first about a non-issue, which is the Democratic Party nominating someone other than Joe Biden to be its nominee for president in 2024. The reason why it's no big deal for the Democrats to select someone other than Joe Biden as their nominee is because Joe Biden is not, and was not when he announced that he would not seek re-election, the actual Democratic nominee for president for 2024. So let me say that slower for those in the audience who are not childless cat ladies. Joe Biden was not, and never

had been, the Dems' official nominee for president for 2024. Obviously, he was the presumptive nominee as the incumbent president, but the Democratic Party had never officially nominated him for 2024. So therefore, it's pretty easy and relatively straightforward for the Democratic Party to nominate someone else instead because they have yet to actually nominate their candidate. There it is. Indeed, by the time we sat down to record this episode, Vice President Harris already became what Joe Biden was, the presumptive nominee. That's because a majority of delegates to the Democratic Convention said that they would back her. So bottom line is political parties- That feels very democracy forward, like delegates actually doing that.

It is, right? And like political leaders responding to the will of the people. It's a big thing. So again, bottom line is political parties officially choose their nominees at the conventions. The Democrats have not had a convention yet, which means there are zero, I repeat, zero legal issues with Joe Biden bowing out and endorsing Kamala Harris as a presumptive nominee. End of sentence. For various reasons, there has been a presumptive nominee going into most of the recent conventions for both parties. That's for a number of reasons. It's expensive to prolong campaigns. It's sometimes advantageous to select a nominee

and coalesce around them. And there was a move to a primary system rather than a let's just sort it out at the convention system. But parties have previously selected nominees at conventions. So you might be wondering, what the fuck were the primaries for? Well, primaries are the process by which each party selects their delegates. If someone wins the primary, then those delegates in that state primary go in to the convention, presumptively voting for the person who won the primary in the state that the delegates represent. But, this is a big but, delegates don't have to do that, especially if a candidate bows out. For example, if someone won an early primary but then suspended their campaign and bowed out, the delegates don't have to vote for them.

And that actually happens relatively frequently. Primaries are just a way of ensuring input from more people before the delegates actually register their votes to choose the nominees at the convention. And states set their own rules about who is listed as a candidate on the general election ballot. And the rules their own rules about who is listed as a candidate on the general

election ballot. And the rules provide that after each recognized political party has had its convention or otherwise gone through the process of choosing a nominee, the parties transmit that information to the states. So the major party's nominee appears on the ballot. And again, Democrats haven't held their convention or officially selected a nominee. So it's still up to the Democratic Party to choose their nominee. And there are no deadlines that have passed for parties to identify their nominee who will appear on the ballot. So the Democrats could do a virtual roll call and select a nominee by August 7th, which avoids some potentially looming deadlines. But as we mentioned, Vice President Harris has

already secured enough delegate pledges to be the presumptive nominee. And it's been reported by the Associated Press and the New York Times that party officials plan to have the delegates cast their votes between August 1st and August 7th. So that sounds like all of this will be taken care of. And there's literally no reason for you or Mike Johnson to worry. At this point, you're probably thinking, but wait, the Supreme Court does crazy shit all the time. Why wouldn't the court force Biden to stay on the ballot? Well, one, there's a 13th Amendment to the Constitution, which prohibits involuntary servitude. You cannot force someone to run for president if they decide not to. I just had the most amazing vision of Joe Biden, like nobody knows the trouble.

Them trying to make Joe Biden run for president. You can't do that. But again, you're right. This is a court and a party that has never really been super excited to enforce the Reconstruction amendments. So let's just say that there may be other issues you're worried about. So the issues about who can appear on the ballot and whether various state deadlines have been met, these are not necessarily questions for the Supreme Court because they are actually state law issues that should be decided by state courts. Although I know Bush-Fuigor was obviously one of those cases where state law issues that should have been decided by state courts were also in play. But again, zero state deadlines have passed here. So

state law gives preferential treatment to candidates named by the two main political parties, and the Democratic Party has not yet exercised its option to select a candidate yet. We also think that the increased attention on the Supreme Court matters here. So the fact that so many people are looking at the court, possibly because of its incredibly insane immunity decision back at the beginning of July, potentially reduces the odds that the court decides to do another absolutely batshit crazy thing. So as we've discussed, the Supreme Court is not immunized from public opinion. It is actually very attentive to public opinion. And we saw this when the court dodged abortion rulings because the justices

likely wanted to avoid having the court be an issue in the 2024 election. So with that recent history in mind, it's very likely that after spending part of the term reinstating a plausibly disqualified candidate and immunizing him from future criminal liability, that would be Donald Trump, the court might reason that maybe there just aren't five votes to block a qualified candidate like Vice President Harris from appearing on the ballot and forcing a candidate who is withdrawn, that would be Joe Biden, to run and appear on the ballot. So all to say, we believe staying on the court's neck is an important thing, and it's especially important

here. This is also where state courts are important because state courts have the final say over these state law issues. And we don't think the Michigan, Wisconsin, Pennsylvania courts are going to do anything bad. And again, there just aren't any actual state law issues that have even been specifically identified or floated here. So basically, on the ballot issues, you can lean back, have a pina comala, or just drink that juice straight out of the coconut. We have enough things to worry about without getting sidetracked. We also wanted to do a quick note on campaign finance issues. So the money that had been previously donated to the Biden-Harris campaign can go to Vice President Harris since her name is on those donations. That would be the Harris in Biden-Harris for listeners who aren't childless cat ladies. But in the event that someone else would have been the nominee, they couldn't have

access that money. Some Republican lawyers are making noises about, well, can Vice President Harris access the Biden-Harris money? But every campaign finance expert from Campaign Legal Center, a member of the FEC, lawyers who can read, have said the regulations allow people whose names are on the donations and committee to access the money. And even if, let's say, some Republican lawyers filed a complaint with the Federal Election Commission, I think it's unlikely that that would be resolved before the election. I don't think that there's a majority on the Federal Election Commission to do something insane.

And going to the Federal Election Commission is how these cases are supposed to proceed, not by going to federal court. And also for similar reasons, you know, as why I don't think the court will keep- Sorry, Judge Kazmarek, we're not going to be able to file this in Amarillo. Right. And honestly, for similar reasons as why I don't think the court will keep Biden on the ballot, I don't see the court blocking Vice President Harris from using Biden-Harris money before the election. So we hope that little explainer is helpful for all of you in the Cahive and all of you who are not in the Cahive, but who are not yet members of the new super PAC, Lawyers Who Can Read.

But we invite you to join us because this reading is fundamental thing is really, really cool. And we encourage you to take part in it. Anyway, moving on from those non-issues, let's talk about some real issues because Strict Scrutiny is doing a deep, deep, deep dive on Project 2025. Again, still a working title, lots of different names we're going to workshop here. But first of all, before we even get to what we're going to call this segment, we've got to figure out what the F is Project 2025. Well, Project 2025 is a self-described presidential transition project. It was organized by the Heritage Foundation in conjunction with many other conservative organizations, including some recent mentions on this podcast, the Alliance Defending Freedom, Americans United for Life, the American Legislative Exchange Council,

also known as ALEC, America First Legal, Stephen Miller's organization, the NRA, Taneo, and Turning Point USA. Just to give you a sense of these organizations, America First, as I just said, is Stephen Miller's organization. It also includes Jonathan Mitchell, who's been very heavily involved in some of its legal initiatives. Jonathan Mitchell is the architect of SB8 and also the individual who argued the disqualification case for Donald Trump before the Supreme Court. ALEC is the organization that drafts legislation for Republican legislatures.

And about two years ago, we did a summer episode with Grace Panetta, who's now of the 19th, that highlighted ALEC's role in trying to gin up interest in state legislatures for hosting a new constitutional convention that would float a whole bunch of new amendments to the United States Constitution. What could go wrong? Of course, ADF is the group behind the medication abortion case and a lot of anti-LGBTQ litigation. Teneo, you might remember, is Leonard Leo's organization that aims to control all of the levers of power in the United States and to basically make a federalist society for everything. Again, what could go wrong? In true Breaking Bad style, all of the conservative legal movement brainworms

are getting together in an RV in the desert to cook up Project 2025. And here's what they came up with. Project 2025 lays out a plan for the next Republican administration to immediately leverage all of the power of the federal government to advance Trump's agenda. The introduction to the document describes it as, quote, the opening salvo, end quote, of the presidential transition project. It is, again, literally a plan for the weirdest people to do the weirdest shit and get their freak on in the federal government to use all of the massive powers of the federal government to pursue their deeply unpopular policies, abortion bans, contraception restrictions, voting restrictions, letting companies and corporations get off scot-free, tax breaks for the wealthy, you name it.

They laid out how they want to and plan to do it in just the first 180 days. And here's a clip of Donald Trump explaining exactly what's going on here. Because our country is going to hell. The critical job of institutions such as Heritage is to lay the groundwork and Heritage does such an incredible job at that. And I'm telling you, with Kevin and the staff, and I met so many of them now, I took pictures with among the most handsome, beautiful people I've ever seen. I didn't like that picture. If you could lose that picture, please, would you, Kevin? But this is a great group. No, he says I won't do that. But this is a great group, and they're going to lay the

groundwork and detail plans for exactly what our movement will do and what your movement will do when the American people give us a colossal mandate to save America. And that's coming. That's coming. Now, obviously, this was before candidate Trump recognized that authoritarianism is not a really good campaign platform for reaching moderate swing voters. And then subsequently he disclaimed any knowledge of or involvement in Project 2025. But again, Kris Jenner works hard, the GOP works harder, and we work harder than everyone else. We have the receipts. This fuckshit has Trump world's fingerprints all over it. To wit, there are something like 100 plus Trump staffers and 200 plus Trump associates who are involved in the writing

of Project 2025. It is led by two former Trump administration officials, Paul Danz, who was chief of staff at the Office of Personnel Management and serves as the director of Project 2025, and Spencer Cretien, former special assistant to Donald Trump and now Project 2025's associate director. And while Donald Trump has sometimes remembered he should try to pretend he doesn't know what Project 2025 is, last week he called into Fox News and was asked, what are your thoughts on Project 2025? And let's just play that clip here. They keep on tying you to Project 2025, which is a 900 page

tune put out by the Heritage Foundation. What is your response to what's in it? And what would you like to say about the role it's playing in your campaign? It's a group of very, very conservative people. They wrote a document that many of the points are fine. So today, to get the fascist ball rolling, we're breaking down the first part of Project 2025 called, quote, taking the reins of government, end quote. But we'll first note the foreword, which is a promise to America, and it was prepared by one Kevin Roberts. Kevin Roberts is president of the Heritage Foundation.

He is also the guy who promised a bloodless revolution, if the left allows it. If that sounds hyperbolic and terrifying and weird to you, sorry, he actually said it. So here's that clip. Let me speak about the radical left. You and I have both been parts of faculties and faculty senates and understand that the left has taken over our institutions. The reason that they are apoplectic right now, the reason that so many anchors on MSNBC, for example, are losing their minds daily is because our side is winning. And so I come full circle in this response and just want to encourage you with some substance that we are in the process of the second

American revolution, which will remain bloodless if the left allows it to be. Now, Donald Trump's vice president candidate, J.D. Vance, wrote the foreword to Kevin Roberts' new book, which Vance describes as, quote, incredible, bold new vision for the future of conservatism in America, end quote. And this book also happens to be about taking back Washington to save America. That is the book's title. And no, we can't read it, so you don't have to. We already did Josh Hawley's book. We are podcasters. We are not saints. But what we did do so that you wouldn't have to is we read the 900 pages of Project 2025. So what do the aspiring leaders of this bloodless revolution outline in the introduction to Project 2025? Well, according to Kevin, there are four pillars to Project 2025. The first pillar is to restore

the family as the centerpiece of American life and protect our children. Imagine what that looks like. The second pillar is to dismantle the administrative state and return self-governance to the American people. Neil Gorsuch says, check. Third pillar is defend our nation's sovereignty, borders, and bounty against global threats. The fourth pillar is to secure our God-given individual rights to live freely, what our constitution calls the blessings of liberty. Clarence Thomas says, I think that begins and ends with the first and second amendments. Check. So let's dig into the details of how these some geniuses plan on advancing these four pillars. For example, what are the plans for restoring the family as the centerpiece of American life? Well, listeners, one step includes, quote, deleting the term

sexual orientation and gender identity, diversity, equity, and inclusion, gender, gender equality, gender equity, gender awareness, gender sensitive, abortion, reproductive health, reproductive rights, and any other term that might be used to deprive Americans of their First Amendment rights out of every federal rule, agency regulation, contract, grant regulation, and piece of legislation that exists. Now, I'm not exactly sure how they plan on deleting terms from legislation. This feels very anti-textualist to me. It's also unclear how they're going to spell Opus Dei if they eliminate DEI. But we really don't think they've thought all of this through. But it seems pretty chilling nonetheless. Yes, because the other big part of their plan for, quote, restoring the family is taking away more of women's bodily autonomy. And so the introduction proudly declares, quote, conservatives should gratefully celebrate the greatest pro-family win in a generation, overturning Roe versus Wade, end quote. Ah, pro-family, forcing mothers to plead for their lives and bleed out in emergency rooms.

But, the forward continues, quote, the Doms' decision is just the beginning. Conservatives in the states and in Washington, including in the next conservative administration, should push as hard as possible to protect the unborn in every jurisdiction in America. In particular, the next conservative president... Wait, wait, wait. Time out, Leah. I thought we had a state-by-state settlement with Dobbs, and each state could just do their own freak thing. You know, it's very interesting because despite having that, quote, state-by-state settlement, there are proclamations about what they would like the next

Republican administration to do. And Donald Trump has refused to say he would not sign a federal abortion ban. And to the contrary, his vice president candidate, J.D. Vance, has voiced support for penalizing people for traveling between states in order to get reproductive health care. But back to the foreword, It says, quote, the next conservative president should work with Congress to enact the most robust protections for the unborn that Congress will support while deploying existing federal powers to protect innocent life, end quote. This is them straight up admitting the plan is for a nationwide abortion ban by any means. There's no other way around it. They're saying it right here. So please go talk to all of your white lady friends in the suburbs

and inform them about this. A third prong of restoring families is, I'm not even making this one up. A third prong of restoring families is banning pornography. And I just have to ask, what is with the obsession with pornography? Like, I mean, we hear more about pornography from Republicans than we do from any other sector of the general public. I mean, do you remember Josh Hawley talking about pornography in his questioning of Justice Jackson? Oh, I do. I do. So you have nothing to add about why these crimes, why these images, in your view, do not signal an especially heinous or egregious child pornography offense. That's Hawkins. You say in Cooper, I understand the government's argument, but I don't find them persuasive, the fact that there were pre-prevescent children, from the standpoint of characterizing this as an especially egregious child pornography offense. That's page 58.

And how about their plans for advancing liberty, which is another pillar? Well, first, this pillar, it turns out, is a bit of a fake out, since they explain that advancing liberty is actually not about letting people pursue happiness. No, really, they write, quote, when the founders spoke of pursuit of happiness, what they meant might be understood today as, in essence, pursuit of blessedness, end quote. And so these anti-freedom freaks continue, true liberty is about how, quote, our Constitution grants each of us the liberty to do not what we want, but what we ought, end quote. Side note, this is literally the fucking opposite of liberty and freedom. They are describing a world where the government tells you how to live your life, who you can love, whether and when to bear children.

And they say irony is dead. And these geniuses continue, quote, this pursuit of the good life is found primarily in family, marriage, children, Thanksgiving dinners, and the like, end quote. The party of forced childbirth rears its head. This is a running theme throughout Project 2025, which may be why it's in the freaking intro. Let's get into the plans for, quote unquote, seizing the reins of the federal government. That's what this section of Project 2025 is actually called. We didn't even make that up. It's literally the title. This is the part of Project 2025 that lays out the plans to turn the

federal government, including career civil service employees and agencies who historically have enjoyed some independence from the executive branch, into Trump lackeys. So here's the tea. First of all, Project 2025 outlines plans for the executive office of the president. And these plans include reinstituting administrative pay-as-you-go policies, PAYGO. The PAYGO system requires federal agencies' choices to be budget neutral, which is to say that you don't spend more than you actually have budgeted. You pay as you go. If you're wondering how this might work, well, the Republican-controlled House has a convenient document prepared, and the document is called Understanding Administrative PAYGO. In the document, the House

Republicans criticize, among other things, the following Biden administration executive actions because they are, quote unquote, not budget neutral items. And for that reason, they believe that they ought to be precluded by pay go going forward. What are these executive actions that are not budget neutral and should be eliminated? One, student loan bailout. Two, Medicaid expansion. Apparently, freedom isn't actually free, and that's a problem. So some of the biggest changes would happen in what they describe to central personnel agencies. And in this section, they lay out the plan to reclassify a bunch of civil servants working for the federal government as policymaking officials who could be

hired or fired more at an administration's or president's whims. So civil servants are people hired under apolitical systems based on expertise and merit and whatnot. That is what Project 2025 wants to get rid of, because as Joe Bluth said in Arrested Development, I hear the jury's still out on science. So eliminating apolitical expert public servants is what it means when the document approvingly notes how, quote, the Trump administration issued executive order 1395724 to make career professionals in positions that are not normally subject to change as a result of a presidential transition an exception to the competitive hiring rules and

examinations for career positions under a new Schedule F, end quote. A new Schedule F is basically a new schedule for flunkies. No competitive hiring rules and exams or retentions, just flunkies. And again, you don't have to take our word for it. Like Trump's vice president candidate has proposed the same. So J.D. Vance has called for the replacement of, quote, every civil servant, end quote, with loyalists. He has also said he thinks Trump should, if he was giving him advice, quote, fire every single mid-level bureaucrat, every civil servant in the administrative state, end quote, replace them with our people. That is what he has urged Donald Trump to do.

Let's just spin this out for a second to see how it would work. Administrative law judges. So those are the folks who used to oversee securities law claims before jargonsy. They also oversee consumer finance claims, environmental claims, social security and more. All of those folks would be replaced by Marjorie Taylor Greene types. That sounds great. That's basically how the federal government runs itself into the ground. This sounds like an actual bag of dicks. I mean, literally a bag of dicks. Yes. Yes. No, it's like literally replacing experts, apolitical

individuals with people who have like festival porta potties for brains and mouths. The framers of Project 2025 also have some thoughts about the White House office. And the TLDR here, at least part of it, is that they seem to want to transform the White House counsel and the Department of Justice into more of a personal suite of lawyers for the president, a public defender's office for the president, if you will. Now, in fairness to them, the former guy does need a lot of lawyers who he won't have to pay. That's true. I don't know if they were contemplating that specifically, but the report does read that, quote, While the White House counsel does not serve as the president's personal attorney in non-official matters, it is almost impossible to delineate exactly where an issue is strictly personal and has no bearing on the president's official function.

The White House counsel needs to be deeply committed both to the president's agenda and to affording the president proactive counsel and zealous representation, end quote. I will note this whole fuck shit about how we can't decide what's personal and what's official. That comes directly from a John Roberts opinion. Those Trump versus Vance, Trump versus Mazar cases where he's like, hard to tell what's personal and what's political with the president. I'm like, it's a man, but it's also an office. Well, also the immunity ruling, like consider this alongside the Supreme Court's recent immunity ruling in the Trump case. Like this document is basically saying the president can ask White House counsel to do pretty much anything. And it will obviously be related in some way to a

president's official functions. And recall how the Supreme Court said the president can't be prosecuted for anything falling within the outer perimeter of the president's official duties. You know, like insert evil genius laugh here. Like this is how it all relates and it all comes together because Project 2025 also plans to eliminate the current firewall between the White House and the Department of Justice in order to ensure that DOJ can do and will do more of the president's bidding. And again, remember that in the immunity ruling, the Supreme Court said that any investigative or prosecutorial functions are things the president can't be prosecuted for. So this is literally freeing the president to exert more control over the Department of Justice's massive investigative and prosecutorial functions for which the president would face no accountability. That is what, in plain English, this means when Project 2025 says, quote, the Office of White House Counsel also serves as the primary gateway for communication between the White House and DOJ. Traditionally, both the White House Counsel and

Attorney General have issued a memo requiring all contact between the two institutions to occur only between the Office of White House Counsel and the Attorney General or Deputy Attorney General. The next administration should re-examine this policy, end quote. This is how Donald Trump would end federal investigations and prosecutions into him. This is how he would have ended the investigation into Russian interference in the election, by exerting control and issuing directives to all of the lawyers within DOJ. They are claiming the power to do just that and announcing their plans to do so. This is how you get the White House directing DOJ to prosecute political enemies, media critics, and more. So that's basically how it begins with the framers of Project 2025, quote unquote, taking the reins of government. The slow slide to fascism is off to a great start.

So just chew on that for a little bit, listeners, and definitely share it with your friends. Next week, we're going to break down another aspect of Project 2025 so you can kick the tires and really get to know what's under the conservative hood. But for now, a little palate cleanser. We've got some content for you about things you actually do need to read and that we actually enjoyed reading. Today, we are delighted to bring you an interview with the author of a brilliant new book about an unexplored aspect of the history of efforts to secure civil rights. The book is by the great Dylan Penningroth, a professor of law and the Alexander F. and May T. Morrison Professor of History at UC Berkeley, where he specializes in African-American history and U.S. sociolegal history. Before joining the Berkeley faculty in 2015, Penningroth was on the faculty of the University of Virginia and Northwestern and also served as a research professor at the American Bar Foundation.

Penningroth's first book, The Claims of Kinfolk, African American Property and Community in the 19th Century South, won a whole bunch of prizes, including the Avery Craven Prize from the Organization of American Historians. And that's not the only prize that Dylan Penenroth has won. He's gotten every imaginable award. But one that is particularly close to our hearts is the awarding of the MacArthur Foundation Genius Fellowship, because it just certifies, once again, something I already knew, Dylan Penenroth is a genius. And he's the second genius we've had on this show. Is that right, ladies? Second certified genius.

Certified genius. Recognized genius by the MacArthur Justice Foundation. I mean, we always have some geniuses on this show. But also actual geniuses. But this is actually actual geniuses. This is real. Exactly. So Dylan's new book is called Before the Movement, The Hidden History of Civil Rights,

and it explores how ordinary black people used and thought about law in their daily lives and how Black legal activity and Black legal thought helped shape American law and Black social movements from the 1830s to the 1970s, well before the beginning of many of the conventional narratives about the use of law to secure Black civil rights. So a very hearty, strict scrutiny welcome to you, Dylan Penendroth. It's great to have you here. Thank you so much for having me. And we should also say your new book is also prize-winning, even though it is very recent. It has already been recognized with the Ellis Hawley Prize and the Merle Curdy Social History

Award. So this book has already won several awards, which is one of the reasons we're so excited to have you on. Thank you so much for having me on the show. It's been a real journey to write this book. You probably saw somewhere in the opening pages that it took me 20 years to write it. And we can talk later on about why it took so long and what was it like to write such a book that took such a long time. But in any case, it is a joy to be finished with it and to be able to discuss it with you on this show.

It's a joy to read it. And I do remember when I first met you, you were working on this book and you were so excited about it. And you worked on other things in the interim, but I know that this has been a labor of love for you and it really comes across on the page. It really was. And I think one of the other things that probably comes across on the page is that it's very personal in many places. I work in stories about my family.

I was inspired in many ways by them. I actually brought relatives along, particularly my mother, to come with me and do some of the research with me. She tagged along and we went and talked with older relatives and she helped me think through some of the things. And in addition, I learned something about her experiences, both as a member of a family, a Black family during part of the period that I'm writing about, and as a law student at Penn Law School in the early 1970s. And so, you know, those are just some of the reasons why this book was a personal journey, as well as an intellectual journey for me.

And we do want to get to, you know, legal education. And you suggest that, you know, your mom really, she didn't, she left law school after, I think, three semesters and found some of the profound limitations in the curriculum may be part of the reason that she departed. So we actually do, obviously, we're law professors and we want to talk a little bit about some of the takeaways that the book provides with respect to legal education. But can we ask you to talk a little bit about the story of your great, great, great, I believe, uncle and his boat? So that story that kicks off the book is about Jackson Holcomb. And as you say, he was my great, great, great uncle. His son, Thomas Holcomb, is a man I knew when I was very small. We used to chase rabbits together back in the backyard. And when I was six years old, he died and I went down to the funeral. So I knew him as kind of a connection to the South. And one of the things that you'll see in

the book is that the people I'm writing about have roots in the South, but are living in the North. And one of the things that connects them to the South is property. So a lot of the books about civil rights, and one of the civil rights that I talk about is property. And here I, even at five years old, me looking back as an adult, thinking again about these experiences that I had when I was very small, thinking about the role of property and constructing family and remaking family. So that's one theme in the book. The property story for me begins with a recording that my uncle Thomas Holcomb made with my uncle Craig Baskerville. And in that recording, Thomas Holcomb talks about his father, Jackson Holcomb, and how Jackson Holcomb owned a boat. So he says he had a boat and during the closing days of the Civil War, General Lee's soldiers, after losing the Battle of Richmond, they're retreating through the woods, and they end up somewhere near where Jackson Holcomb is living in Cumberland County, Virginia. And they come to the River Appomattox.

He ferries them across in his boat, and when they get to the other side, they pay him. And, you know, I'm looking back as an adult on this story, and I'm thinking that is a strange thing for heavily armed white men who are losing a battle to preserve slavery to do for a man who is enslaved and who they have no legal obligation to. And that got me thinking, what is it about this world of slavery that I'm not getting? And what I ended up thinking is that there's something about this world that makes it perfectly normal, perfectly expected for a white person to pay an enslaved Black person for services rendered. And that's the world that I wanted to begin with. So maybe we can zoom out and consider the book's broader sweep. The book is called Before the Movement, The Hidden History of Black Civil Rights. And the title kind of says what we are going to be talking about because the well-worn narrative is that the promise of reconstruction

failed, leaving black people without civil rights laws until around the 1940s when some brave lawyers ventured South, bent on changing the law and dismantling Jim Crow. But as you exhaustively document in the book, that is only part of the story because there's a lot that hasn't been told and in many ways that history has been hiding in plain sight and the book uncovers much of it. So let's, you know, also kind of start around where the book does with the complex relationship of many enslaved persons to the law. As the book makes clear, people without legal rights could and did still do legal things. So what does that mean, and what kinds of legal things? What I mean when I talk about doing legal things is that I want to write about a world where slaves enjoy things called privileges.

And in the world of the 1830s, 40s, 50s, privileges actually meant something. I mean, you can see it in the Constitution. There's a privileges and immunities clause. And in that world, people had privileges as members of various kinds of communities. Some congresspeople talked about the United States as an association of white men. And so this world of associations of various kinds of communities where people have legal privileges, which sometimes can be rights that can be vindicated by a court, this is the world that slaves inhabit. And it's connected intimately to the world that

white Southerners inhabit. Again, this is one of the reasons why it's not so surprising that the soldiers would pay Jackson Holcomb, because they're all participating in this same world, a world where people are obeying the same legal logics that have to do with things like notice, display and acknowledgement, how do people know what property is, what do people mean when they make bargains. Slaves are participating in the same world. So, to just give an example, white people and enslaved people own livestock through the same practical mechanisms they they put marks on the livestock's bodies so they clip ears on pigs that you know their brands and there are a series of cases in the animal himself where white people challenge that and

they say well you know slaves can't own pigs And what the courts end up saying often is that indeed they can, pigs and they do own horses and cows and other things. And to say otherwise would be to destabilize the rights of white Southerners who are after all are depending on and participating in the same system of marks that stabilizes property ownership for everyone. Kind of the complexity of even the very notion of property ownership is I think one example of this sort of larger set of arguments about the complexity of law and the relationship even in the antebellum south of black people to law. The discussion of Dred Scott I thought was really revelatory on that score and I want to work your discussion into the way I teach Dred Scott the next time. But basically, you know, in that case, for our listeners, Roger Taney infamously concludes in the case brought by Dredd and Harriet Scott, who were suing for their freedom, that black people were not and could not be citizens of the United States. And Taney offers

this highly selective reading of history to support his claim. And then in dissent, Justice Curtis says, look, actually, black people were considered citizens in various states at various times. And you suggest that the legal lives of Black people in the 1850s when Dred Scott was decided, and the 30s and 40s when you're also writing about, were just much more complex and much more ambiguous than either Taney or Curtis or really kind of dominant historical narratives have allowed or appreciated. No, that's absolutely right. You know, one of the things that I wanted to get across in that discussion of Dred Scott is that both Tawny and the dissenters are putting forward a vision of slavery that is essentially, it sketches a binary between slavery and freedom, that slavery and freedom are absolute opposites, and that the line between slavery and freedom is civil rights. So the right to sue and be sued, the right to make

contracts, and the right to own property, that's what makes you free. That's what Taney thinks, but that's also what Benjamin Curtis thinks in dissent. And what I'm arguing is that that is much too simple, both because enslaved people had privileges that were part of the same broad legal understandings that anchored white people's rights, and because the world of freedom that comes after the end of slavery, as we know from the legal realists, is shot through with all sorts of forms of coercion, right? A contract is, you know, backed by the force of the state. And so to say that there is this sharp distinction, this sharp binary opposition between slavery and freedom, to me, you know, when I look at the history of this line of thinking,

it really is a profoundly conservative way of thinking. And that in turn, to me, sort of complicates some versions of progressive argument. So, for example, the 1619 Project, which also, I think, subscribes to this idea that there's a sharp binary between slavery and freedom. That's very important to that way of thinking about history, but it really does kind of concede way too much to what is essentially a conservative mid-19th century conception of what those categories mean. One big part of the story, Dylan, relates to what you just said in response to Kate. And I think that part of the story is the sort of conventional narrative, which argues that public law has been the principal vehicle for vindicating civil rights, and in particular, the civil rights of Black people. But what your book opens up is that, in fact, well before the civil rights, and in particular, the civil rights of Black people. But what your book opens up is

that, in fact, well before the civil rights movement, and for a very long time, Black people have actually been relying on private law, and specifically the law of contracts to vindicate their rights. But this aspect of civil rights kind of falls out of the picture, perhaps because it isn't public law, it's private law. And we don't ordinarily think of private law and certainly not contracts as racialized. Why not? Why has that part fallen out? Is it because private law is necessarily private to some degree, and these are sort of individualized agreements made between different people for the specific things that they want and doesn't have

broad public applicability. But what makes this sequestered from our traditional understanding of civil rights? That's a great question. And one way that I have sometimes thought about this book is as an effort to desegregate the law curriculum. I think that the meaning of civil rights changed over time. Eric Foner, back in 1970, brought to our attention the fact that in the 1850s, 1840s, civil rights to most Americans fell as one of three categories of rights. So you have political rights, the right to hold one of three categories of rights. So you have political rights, the right to hold office, the right to vote. You have social rights, which is basically

anything that white people don't want to do with Black people. So that includes things like marrying across the color line, going to school with Black children. It's sort of this catch-all for things that white people don't like. But then in the middle, you have this thing called civil rights. And Abraham Lincoln latches onto this idea that civil rights are the political argument that's going to carry him to the White House, and it works. Civil rights are the positive rights that protect natural rights, life, liberty, and pursuit of happiness. Civil rights translate as property, contract, and the right to sue and be sued. Those are not off limits to Black people. So the traditional story, I think, focuses

on the social rights and on the political rights. But we haven't really thought as much about civil rights. And those civil rights, as I mentioned a bit ago, they have largely to do with what today we associate with what we call private law. And because we haven't focused as much on those, we've tended to assume that Black people were completely alienated from law, that the courthouse, the county courthouse where the Southern sheriff was standing with his, you know, his truncheon, the courthouse doors were locked to African Americans. That is absolutely true when it comes to voting rights. It would be an insane thing in Mississippi to go and try to register to vote in 1900. It would be an insane thing to try and marry

across the color line in most parts of Mississippi in 1900. But it is perfectly normal for Black people to go to the courthouse in Holly Springs or in Cumberland County, Virginia, and register a deed, convey property to someone else. Indeed, one of the reasons why it's so unremarkable for Black people to go and do these things in the realm of civil rights is because although sometimes they're suing white people, most of the time they're working at relationships with other Black people. So why does this matter? Again, as I said, I think of this book in part as an effort to try and desegregate American law, or at least the way that we traditionally think about American law. So, for example, I want to argue that contract and property, which I think sometimes implicitly get presented in the law school curriculum as white, they're sort of coded white because race is sort of assumed to be absent from these casebooks.

But they are in fact not white. There are Black people in the pages, even of the casebooks, and indeed Black people participated in the making of American contract law. And then conversely, Black people are not the special favorites of the law. So you think about anti-affirmative action arguments. Those sorts of arguments go all the way back to the civil rights cases of 1883, where Justice Bradley says, you know, at some point you have to stop running the 13th Amendment argument to the ground. Black people have to stop being the special favorites of the law. And my point here is simply they've never been the special favorites for the book, because when you say that, it actually turns out that if you're looking in, you know, the sort of recording of deeds and the other records that sort of constitute the body of American law and legal history, whether or not that body of law is reflected in the law school case books. And I do want to get back to that in a little bit.

But first, like, there's just a tremendous wealth of, you know, you talked about the two-decade-long effort that this book reflects. What was that research undertaking like? Where did you look and what did you find in sort of putting together the primary sources that resulted in this book? It was an amazing experience. It was also very challenging. So I look at a lot of different kinds of sources, including things like church sermons, church minutes, diaries,

many of the usual sources. Of course, I also look at appellate legal records, but in a sense, the heart and soul of the book is county court records. And so I went to a couple of dozen, in fact, county courthouses, and I would get in a rental car. It's always a Chevy Malibu. Some of you, if you've rented, you go to Hertz and it's always the same car. And so I would get in this rental car and I'd drive to the center of town and I would ask to go in the back and look at the dockets. I would say basically, do you have any old records? If they let me in the back, I would pull down these dockets or order books. These are heavy, about 10 pounds each, leather-bound volumes.

And on them is a register of all the cases that have come before the circuit court for that county for a given period of time. And I would sample every nth case to cover a year. And I did that for decades, 1872, 82, 92, and so forth, because I wanted to get a statistical portrait and basically answer the question, did Black people go to local courts? Is the traditional narrative correct that they weren't there? They are almost never identified by race in the actual local court records. The thing that I wanted to get across is that it poses both practical difficulties, right? I'm in these courthouses and I want to write African-American history and I don't know who's black. That's kind of a problem. But then the other part is just this analytical mystery. Like, why aren't they marked as black? I mean, the water fountains out front

are marked white and colored at that time. There's a Confederate soldier on the front lawn of almost every courthouse in the South that I went to. There are other kinds of records one shelf away that are segregated by race. You have white divorce registers and marriage registers, colored ones. But here, as in the deed books, in these civil case dockets and in the loose papers, they're almost never marked by race. And I found that remarkable. And so there's this whole story that I wanted to think about, like, why not? And so once I had collected names, and eventually we collected 14,000 cases, so about 28,000 names. I brought them back, my research assistants and I looked them up in Ancestry.com. So this is the part, you know,

it's not about the swabs, the DNA swabs. This is the part where you punch in names into the US census database and you can identify that way who's Black. So of those 14,000 cases that we looked at, we found about 1,500 that involved Black people as plaintiffs. And so that gave me sort of a statistical picture showing that Black people actually were there. They were actually active in courts, local courts, doing things with their civil rights. Again, they're not pursuing the vote. They're not looking at social rights. They're pursuing these civil rights. Then I went back to the courthouses and I read the cases. And from those cases, I began to put together stories because so many of these cases involve intimate relations. They involve community relations. There's stories about Black churches, about Black families. Often they were quite emotional. So one answer to your question,

what was it like doing this research? It was, you know, in many instances, it brought tears to my eyes hearing people's stories, what people said in court. And then I guess the last thing I'll say about it, it sometimes got kind of gnarly because these records are not particularly well maintained. Sometimes I found myself clambering, you know, in dimly lit warehouses, sometimes, you know, following one of the county clerks climbing on top of these piles of record books to find the ones that we wanted. Sometimes they're infested with vermin or insects. So there's a certain amount of patience that one has to have, there's a certain amount of patience that one has to have, but also a certain amount of kind of intestinal fortitude that sometimes you need to get into these things and actually do them. But I guess my main takeaway is they're there.

That, you know, anyone can do this research. There is worlds of history, Black history, Asian American history, histories of ordinary people acting in the world using law, and it's right down the street in your local county courthouse. People should use them. It also requires intestinal fortitude to listen to Supreme Court arguments, so I can relate at least in that respect. Absolutely. both black and white, and other litigants are participating in, and they were not marked. It's so interesting. It's just like there are all of these ways in which you're both shattering binaries. And I found the book just this incredibly deep meditation on the nature, not just a category like civil rights or the relationship between freedom and slavery, but the nature of law as well. And I think that sort of meditation is woven throughout the book.

And maybe we could contrast that deep archival study and engagement with the fly-by-night history we have seen on display in some incredibly high-stakes cases at the Supreme Court in just the last couple of terms. You know, Dobbs, the case overruling Roe, the gun case Bruin, the affirmative action case, students for fair admissions. I could go on, but episodes are necessarily time-limited.

It's so weird to actually have history done by historians. It seems so much more comprehensive and fact-based. So I guess, like, Dylan, what does a historian like you make of this turn? The historical turn on the Supreme Court? Well, air quotes, you know, historical turn at the Supreme Court. Are nine historians in Rome history adjacent? History adjacent. History as.

Alternative history facts. Yeah. What do I make of it? Oh, gosh. I think it's highly problematic. I think that, you know, if you're going to make historical arguments, you should first learn some history. And, you know,

I think spicy tea. I mean, I think that what, you know, it's not surprising. It's tendentious. They're, they're going into,

you know, they're selecting the versions of history that they can find in the available sources or in, you know, scholarship to support points that they can find in the available sources or in scholarship to support points that they already know they want to make. So Dylan, are you suggesting that the deployment of history may not necessarily be neutral and objective, but actually ideological and outcome-driven? I might be shading in that direction.

As an historian. As an historian, exactly. Exactly. Well, so maybe because the book obviously spans a ton of history, I want to make sure that we're sort of marching sort of in the same way the book does. So you have, as we've been talking about, these rich descriptions of badly neglected eras. And then the book arrives at the movement, right?

The beginning of what we think of today as the civil rights era, although you're obviously challenging that sort of limited way in which we've traditionally understood that kind of descriptor. But one question, which is, how did the work of Black lawyers representing Black clients in ordinary commercial and contract and property disputes from, say, like the 1890s to the 1940s or 50s, shape what would become civil rights lawyering? Because that's part of the story you tell. No, it's a great question. Here I'm building partly on the work of Ken Mack at Harvard. Black lawyers in the period from the 1870s to the 1890s were actually making the good living doing what I think they refer to as bread and butter cases. And then in the 1880s and 1890s, white Southern lawyers drive them out of the legal profession. And they do it, I think, in part because they want the business that Black clients are bringing those Black lawyers.

They want to take the business away from Black lawyers, specifically the business of Black clients. And so there's this long period from the 1890s through the 1930s and 40s where Black lawyers, they've been largely driven out of the profession in the South. There are some hanging on in Northern cities, and those are the lawyers who tend to become involved with civil rights litigation in the 1920s, 30s, and 40s. Now, what civil rights litigation means at that time is really kind of for grabs, right? As Risa Goluboff and Ken Mack and others have shown, they're really thinking of a whole range of different sorts of claims that one can make at law. What I wanted to bring to the table is to just show how much of bread and butter work was still going on in Black lawyers' offices,

number one, and how much that work resembled what most white lawyers were doing. And so that helped me to explain two phenomena. One, it helps explain why white lawyers, including some of the most racist people you can imagine, people like James Eastland from Mississippi, why would men like them represent Black clients? And I think part of the answer is when they think of the claims that Black people are bringing, they're not thinking of desegregation. That's, in fact, not what Black clients are bringing to them. They're bringing tort cases, accident cases, property line, partitions, those sorts of

things. So it's perfectly fine in James Eastland's mind to take a case like that from a Black client. But for Black lawyers, it poses a different kind of difficulty because as we move into the 1915s and 60s, Black lawyers, at least sort of the public meaning of Black lawyer-ness, is moving toward an idea of civil rights that is about anti-discrimination law and that is imbued with this idea of sacredness. That is that a Black lawyer is representing the interests of a collectivity that we might call the race, sometimes even say representing the race, right? So they're there to represent a much broader set of interests than the interests of any

one client. That movement begins in the 1912s. The NAACP sort of lays out that marker early on. Du Bois does. We're not here to represent individual Black clients, but rather the interests of the race. Well, can I touch on that for a minute? So there's a really interesting undercurrent in the book that you highlight a couple of times. Black women are a big part of this story. They are the majority members of many of these community institutions that fuel this movement before the movement. But there's a way in which the, I guess, professionalization of the movement to a certain degree cuts them out and really front lines Black men. So can you talk

about some of the gender dynamics of all of this? The gender dynamics operate in many different strands of the book. One of them you touched on, the organizational, the professionalization of civil rights activism, absolutely. And many other historians, movement historians, have documented and talked about this. One of the things that I'm trying to add along that dimension is the degree to which the corporatization of civil rights organizations aids and abets that kind of sidelining of Black women. There's also another way in which Black women get sidelined from almost the very beginning, which is in one of the biggest Black collectivities going back to the 1790s, and that is the Black church. And so, you have these Black

churches that begin forming during slavery, and they really kind of have an opportunity to blossom during the 1860s, 70s, and 80s, and many of them choose to become corporations. And so, one of the things that comes from that is the churches, by becoming incorporated, they gain certain kinds of powers, but they also gain certain kinds of relationships between leaders and members. So as you mentioned a minute ago, most of the members of Black churches were women, but most of the leaders, in fact, the leaders were almost exclusively men. And so when Black churches become legal entities, the leaders are granted certain powers delegated by the state. They're the ones who have rights under the prevailing law. So, then that raises the question, do the members

of the church who are predominantly women, do they have rights or do they only have privileges? And the courts consistently say that members of a church corporation only have privileges, and that's one of them is by taking on what are seen as minor church offices, like the clerk, church clerk. So, one of my mom's best friends was actually the church clerk at South Orange Baptist, First Baptist Church, where my mom grew up. And Lula Slackman was the church secretary clerk. So, she was the one in charge of counting the votes, counting the members. So she could kind of have a kind of discretion when it came to deciding whether a meeting had the requisite quorum or how the votes got counted or who was eligible to vote. And so Black women, they have this subtle kind of authority. The other way in which Black women assert their authority, pushing back against this sort of patriarchal Black church and Black corporate institutions, is that they take the rhetoric of civil rights, this sacred struggle that Black ministers are putting forward, and they turn it back onto the Black ministers themselves. So, this is one wonderful anecdote where a woman named Vernita

Wimbush, who is a member of an AME church in Washington, D.C., the bishop wants to replace the local minister at that church, and she basically threatens to hold a march on the bishop's house. She invokes the March on Washington, says, do you remember the March on Washington from a few years ago in 1963? You told us all to go march on Washington for our civil rights. Well, now we're organizing a march on your house to keep the minister that we prefer. The march on the interstices of male-dominated power structures within these Black associations that I think are really important to bring out as well. So one story in the book is how various actors have long dealt with race opportunistically, you know, up and down the legal process. And you bring this out in some of the cases in the book, including Byers v. Railroad, a famous contract case involving mental anguish that I'll ask you to talk about in a second. But we are in a moment where this is also something we have noted about the current Supreme Court. It's opportunistic and selective and misleading, you know, references to race and racial justice. And it's in part for that reason

that we are in a moment of understandable and I think correct skepticism about the court as an institution. And to be clear, I think we want to need more of that. But there's also a danger in giving way to complete nihilism about the law. And the book is in some ways a powerful reminder that even as actors are selectively using race up and down the legal system, for centuries, Black people have been drawing on the law and its potential. So I guess, could you elaborate on the erasure of race from famous contract cases like Byers, and then maybe gesture if there are contemporary takeaways about what we can learn about Black people drawing on the law in order to get at some of the reactions to what is happening with the contemporary court?

No, it's a great question. I say that race was brought in and erased out opportunistically. I don't think that this was done systematically to disempower Black people. I think that actors up and down the legal process from the trial court to the Supreme Court were not just erasing race, but sometimes bringing it in to serve their own purposes. So sometimes they would put it in. They would actually put race, they would ask litigants questions like, are you a black man? Are you a colored man? They want to get it in the record, obviously, because they know that at the appellate level, the judge won't be there to see it. They think it's a material fact. But then at the next level, you know, the judge or the reporter or LexisNexis, they strip it back out. And so,

there's this way in which different legal actors are putting it in and taking it out for their own purposes. There's a temptation, I think, to think of the world of civil rights as being, number one, colorblind, number two, that it should be colorblind, and number three, that, and I think this is where the court's conservatives may be going on this, is that that's all we need, that we don't need anti-discrimination law, that all we really need are these basic civil rights that Abraham Lincoln and the Republicans put forward in the 1850s. But that's simply, that flies in the face of history. Number one, because we know that court actors were putting them in and out. And number two, because we know that when it comes to property and contract, the haves almost always come out ahead. That the people who start with

a bigger pile of chips, who can last longer, who can hold out longer, who can throw up frivolous motions to dismiss like Donald Trump did for years before he was ever hauled in front of this court, stiffing contractors who were suing him for contractual obligations that he just declined to pay because he could. He's one of the haves, and there's a history to that. And the reason that it's not adequate to say that this is a story that supports the idea that colorblindness is desirable, or even that it existed historically in law, is because Black people were disproportionately among the have-nots. And so they usually came out on the short end of the stick. So the fact that they're in court litigating, that they're exercising their civil rights, does not mean that they were

truly free. Can I follow up on something you said that I thought was really profound and important for the conversation? This idea that your book makes very clear is that colorblindness is constructed in a lot of ways. It's not that it's a natural state. The courts actually read color out of a lot of these cases as part of the marginalization of those who are among the have-nots. And I want to pivot to maybe a different context where there are similar power dynamics or lack of power between different groups. And this question of color blinding or color blindness really comes to the fore. And I'm thinking specifically about legal education. You've already alluded to this in your discussion of your mother's experience at Penn Law School, where she matriculated and

then withdrew. You suggest in the book that part of her disaffection from law school was in not being able to see herself in the canon and in the curriculum. And as you note in the book, that's a choice. The stripping of color from contracts is a construction. It's not an inevitability, and it's certainly not natural because there are these black litigants who are at the heart of a lot of cases that don't make it into casebooks. And they're even in these cases that do make it into the casebook, but we just don't know what their color is. And, you know, Walker Thomas is the exception, as you note. What are the implications of the story that you tell for the law school curriculum, for professors and casebook authors who have a real thumb on the scale for how the canon and the curriculum is shaped and how Black students or any student of color receives it? That's exactly where I think the shape of the law school curriculum matters.

Part of the argument that I want to make has to do with being true to the actual meaning of the case. So for example, there's a case called Wolf versus Marlton that I talk about briefly in the book, but more in an article that I published separately in Penn Law Review. And there is a case where a white couple, you know, they're buying a house. They want to get out of this contract, then we will make it impossible for you to sell any more property in this part of New Jersey. The threat was clearly a threat to resell the house to a Black family. And the New Jersey

Supreme Court even said that. But as the case then moves into the restatement second of contracts, that threat gets elided. They don't just erase race. They erase other facts about the case. They turn it into a case that involves a threat to build a noxious factory on the property. And so now, you know, the meaning of the case has been transformed. And so in a way, I think what's at stake here is a question about what do we think is a material fact? How do we exclude or include certain facts about a case? Why do we think that that it's relevant to talk about the nature of the use of the property

and not the identity of the property owner in this case? I think that's one way in which the stakes are high. But another way, and this goes back to thinking about my mom, is what do we expect our law students to think about law? If we're teaching the students implicitly that contract is a white subject, that it's just sort of this white cathedral built by white men for white people, and that it traces back to 13th century England, you know, what are we really doing here if we now know that it involved numerous cases involving Black people, that some of its theorization, you know, going down through the 1970s, involved hypotheticals about slavery and

slaves. I think once we sort of examine that intellectual history and we see Black people in the cases that we are teaching students, I think that we have to think differently about how we teach contract law. I mean, in a way, I talked earlier about desegregating the law school curriculum, and I guess what I mean by that is we should stop implying to students that race only matters or only exists in certain weeks of constitutional law, certain weeks of criminal law, certain weeks of civil procedure, right? And one case in contract law where you talk for 20 minutes about Williams versus Walker Thomas, it's much more than that. And it's not just in cases that are explicitly about race, quote unquote. It's also in cases that are not about race,

but which involve people thinking through key concepts in contract, key theories of contract through Black bodies, through ideas about slavery and freedom. That's where I think we really need to redirect our attention in the teaching of private law. It's such an important and profound challenge to everyone who thinks seriously about teaching law students and about the law just generally. And the book really is truly a tour de force, Dylan. So we want to thank you so much for coming on Strict Scrutiny to talk to us about it. It was a real pleasure to have you. Thank you so much for having me.

Once again, listeners, the book is called Before the Movement, The Hidden History of Civil Rights. It is available everywhere books are sold, including one of our favorites, bookshop.org. Run, don't walk to check it out. And once again, Dylan, great. Thanks for being with us. Thank you. So before we go, another for Vote Save America's 2024 volunteer program, Organize or Else, including 10,000 since last Sunday.

And those folks have already reached out to over 1 million voters. This is a historic moment in United States politics, and we have the power to sway this election. But we need your help to have a fighting chance in November. Go to www.votesaveamerica.com slash 2024 and click sign up to get started. This message has been paid for by Vote Save America. You can learn more at votesaveamerica.com and this ad has not been authorized by any candidate or candidates committee. Guess what, folks? There's new energy on the campaign trail and the Cricut store has fresh

new merch to match. For those of us in the middle of the Venn diagram between the very online and the very into politics, we have a shirt that says vote in the style of brat. And we also have another shirt that says let's fucking go with one of those letters replaced by a coconut. If what I said just sounds like gibberish to you, congratulations on your low screen time metrics. For the rest of you, get on over to the Cricut store and grab a shirt. Let's keep this energy going all the way to November. Head to Cricut.com forward slash store to grab a tea for yourself and the most online person or persons in your life. Strict Scrutiny is a Cricut Media production hosted and executive

produced by me, Leah Littman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell with help from Bill Pollack. Michael Goldsmith is our associate producer. Our interns this summer are Hannah Seraf and Tessa Donahue. Audio support from Kyle Seglin and Charlotte Landis and music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. Matt DeGroat is our head of production. And thanks to our digital team, Phoebe Bradford and Joe Matosky. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Thank you. And if you want to help other people find the show, please rate and review us. It really helps. If you like this podcast, why not listen to What's Wrong with Democracy, a new weekly podcast from Tortoise Media in partnership with Open Society Foundations, joint political scientist Ben Ansell, and guests from the world of politics as they explore the

issues affecting democracies both near and far, and whether our fractured body politic can be put back together.