Lady Justice

 

Dahlia Lithwick, “Lady Justice: Women, The Law, and the Battle To Save America,” Penguin Press, 2022, 286 pp..

NYT Book Review which I edited:

In 1873, the U.S. Supreme Court decided that women had no constitutional right to practice law. Indeed, as Dahlia Lithwick notes in her book, a justice explained that the “natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.” But, in reaction, women mobilized to change the laws — and, ultimately, to become lawyers themselves.

“Lady Justice” focuses specifically on the women who, since the election of 2016, have mobilized against Trumpism and its threats to the rule of law. Combining biography and analysis, Lithwick — a lawyer and writer who covers legal matters for Slate — profiles several members of the profession who may not yet be household names, but who have, in her view, done real work to save American democracy. From Sally Yates and Becca Heller, who fought against the travel ban on Muslim-majority nations in the earliest days of Trump’s presidency, to Brigitte Amiri and Vanita Gupta, two women of immigrant backgrounds who resisted, among other things, the president’s efforts to prevent abortions and separate families at the U.S.-Mexico border, “Lady Justice” illustrates how “in a constitutional democracy, enduring power lies in the people who step into the fight.”

The subjects of this book were drawn to their profession because law has an inherent logic and structure that can, in theory, achieve justice even in the absence of “brute power.” Lawyers, led by Heller, could show up at airports to find plaintiffs detained under the Muslim travel ban, and then file lawsuits invoking the Constitution. After white supremacists marched in Charlottesville, litigators like Robbie Kaplan could invoke the Ku Klux Klan Act of 1871 on behalf of those injured by the violence, and in so doing stop the perpetrators from continuing campaigns of terror after the march. When the Trump administration tried to stop a pregnant teenager in immigration detention from obtaining an abortion, Amiri could file an emergency petition relying on established constitutional law to restrain the government from preventing the procedure.

The narrative includes chapters about women, including Lithwick herself, who accused the legal profession’s most powerful men of abusive sexual behavior. In 2017, a woman who had formerly clerked for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit — known for his spectacular opinions and for sending his clerks on to Supreme Court clerkships — alleged that her boss had shown her pornographic images in his chambers and asked if they turned her on. Another woman who had clerked in the same building reported that Judge Kozinski, in response to her comment that she liked exercising when nobody else was around, had suggested that she work out in the courthouse gym naked.

These two were willing to be named, but others shared similar stories of Kozinski’s behavior without publicly revealing their identities. By their account, all of them felt demeaned and diminished by his conduct. Lithwick, who had clerked for another judge on the Ninth Circuit in 1996, had kept secret her own inappropriate encounters with Kozinski, but, inspired by the upswell of #MeToo, finally wrote about the experience in 2017. Shortly thereafter, Kozinski resigned a judgeship that the Constitution allowed him to keep for life.

Women like Lithwick stayed publicly silent, she writes, not only out of fear of career-ending retaliation, but also out of a desire for the career-advancing benefits of playing along: “I’d been allowed to meet Supreme Court justices and to attend fancy parties and had done my fair share of junkets and prestigious events, some of them sitting next to Judge Kozinski himself, largely because I understood the drill: Men were men.” The drill, she now realizes, is that women bought their power with their silence. “I’d kept my own Kozinski story to myself for more than two decades,” Lithwick confesses, because “everyone understands that keeping secrets is part of the bargain.”

Lithwick then offers sobering portraits of Anita Hill and Christine Blasey Ford, the women who accused Clarence Thomas and Brett Kavanaugh of inappropriate — or abusive — behavior during their Supreme Court confirmation hearings. Within the judicial appointments process required by the Constitution, even the bravest women, willing to speak up at great personal cost, could not stop the Senate from empowering these men.

As justices, Thomas and Kavanaugh recently cast two of the votes it took for the Supreme Court to end women’s constitutional right to terminate their pregnancies. And, although the lawyers featured in earlier chapters fought Trump’s travel ban with some initial success, five men on the Supreme Court refused to see it as discrimination against Muslims and exercised their power to legitimize the ban.

My Notes:

Pg. 106:  In 1973 the US Supreme Court handed down a 7-2 opinion in Roe v. Wade.  And the American public has been in a heated civil war over women’s bodies ever since.  This one issue has been at the heart of every Supreme Court confirmation hearing for decades.

Pg. 208:  In September 2021 Texas passed a novel law, known as SB 8 but widely referred to as a ‘bounty’ system.  Abortions after six weeks would be banned, but the ban would be enforced not by courts or other state officers.  Civil suits against abortion providers, their staffs, and anyone who ‘aids and abets’ those providers, such as Uber drivers or mental health counselors, would result in at least $10,000 rewards to any citizen, anywhere, deputized to bring suit.

Pg. 255:  As of 2022, Latinos constitute 18 percent of the US population and represent half the population growth in the US over the past ten years.

Pg. 281:  About one-third of all voters (and 78 percent of Republicans) believe the 2020 election was stolen by Biden and that those who stormed the Capitol in January 2021 are heroes.