Lady Justice: Women, the Law, and the Battle to Save America
Dahlia Lithwick
Penguin Press, 2022
Slate’s Dahlia Lithwick has given us a book explaining the magic that women bring to law and the courts.
She starts high, noting that things looked good when Whole Woman’s Health v. Hellerstedt, favoring abortion rights, was decided on March 2, 2016. It was the “last truly great day for women and the legal system in America.”
“And then it was gone,” with Justice Ruth Bader Ginsburg’s death, the appointment of three anti-choice Justices to the Supreme Court, and the reversal of Roe v. Wade.
Lithwick’s book explains how, nonetheless, extraordinary women do exceptional things. She recalls Pauli Murray, the unknown yet brilliant lawyer whose paper on the Civil War amendments helped other lawyers litigate Brown v. Board of Education. Murray’s work helped Ginsburg’s cases as a lawyer. Murray is “the most important woman lawyer few people know about.”
Lithwick then tells the stories of eight “strong women who stepped up, even though the practice of law typically rewards caution.” I review her stories and then tell a few of my own.
Lady Justice Sally Yates, acting attorney general, was traveling to the airport. Suddenly there was news of President Trump’s executive order banning Muslim travelers. Protesters hit the airports across the country. Yates showed her courage by saying no to the President, even though “very few DOJ lawyers have so publicly refused to do something unlawful or immoral.” Yates did not think the order was “wise or just,” and so refused to enforce it.
Trump fired her for her refusal to enforce the order. Lithwick sees Yates as “represent[ing] adults behaving like adults.” She admires her for being the first woman to say no.
Lady Justice Becca Heller is the activist who motivated the “airport revolution.” Heller is the co-founder of the International Refugee Assistance Project. She led the lawsuits that protected Muslims targeted by the ban. Many women joined her in the work for democracy. Why? “[B]ecause, to paraphrase Becca Heller, they realized that ‘They don’t have anyone else to call.’”
Lithwick also observes that of the judges who declared Trump’s ban unconstitutional, “most were women.”
Lady Justice Robbie Kaplan is well-known for winning Windsor, a big LGBTQ rights Supreme Court case. She then objected to the 2017 Nazi march on Charlottesville, Virginia. She called Lithwick, who lives there, asking her help in finding local plaintiffs who could protest their injuries caused by the demonstrators.
Everyone let the victims down in this case; the “police, the courts, the university, the city, and the state had all let Charlottesville down, as had the federal government.” Kaplan won for them, using her new pro bono firm to get justice for the victims. She won her lawsuit against the emboldened racists. She had to wait until 2021 to hold the four-week trial, but her clients won a verdict and received $26 million in damages.
Kaplan is “fearless.”
Lady Justice Brigitte Amiri protects abortion rights. Lithwick describes how the Trump administration’s Scott Lloyd, head of the Office of Refugee Resettlement (ORR), did everything in his power to stop abortions. He did all he could to protect the unborn child. Amiri says she did not attend a fancy law school, do a clerkship, or know any lawyers before she went to law school.
Nonetheless, Amiri argued an immigrant’s abortion case, Garza v. Hargan, in the U.S. Court of Appeals for D.C. before Judges Karen LeCraft Henderson, Patricia Millett, and Brett Kavanaugh. You know him, don’t you? Once he was on the Supreme Court, he became one of five Justices to overrule Roe. He was against abortion then and now.
Amiri won her case for her pregnant client, and won again when the government failed in its suggestion that Amiri herself be reprimanded for misrepresentations. She is “incredibly proud” that she was able to lead the case.
Lady Justice Vanita Gupta is a great litigator. She helped the 46 people of Tulia, Texas, who were successfully but falsely prosecuted in an undercover drug sting. She frequently helped the powerless and the unrepresented, as she did in Texas.
Gupta’s Leadership Conference also contested the addition of a citizenship test to the 2020 census. Her supporters realized that the question would cut down on minority participation in the census and in voting. She also brought her energy to the opposition to Kavanaugh’s confirmation to the Court. Lithwick believes the “Kavanaugh nomination was a watershed moment for millions of women.”
Gupta warns against despair, and urges people to show up and to keep voting. There is a lot of work ahead to shore up democracy to protect the vulnerable, but she urges “these are not abstract principles.” They must be actively supported through work.
Lady Justice Dahlia Lithwick names her chapter about herself “#MeToo.” Why? Because she knew for many years that Ninth Circuit Judge Alex Kozinski had harassed women, including herself. He “was a well-known menace toward women, especially young ones.” By the way, Justice Kavanaugh clerked for Kozinski, but says he never knew about this history. Many women did. My great UNLV colleague, Nancy Rapoport, wrote “when she was a clerk, Kozinski invited her to have drinks with him and his clerks, then showed up alone and asked her, ‘What do single girls in San Francisco do for sex?’”
Lithwick reports similar complaints, which she kept quiet for over two decades. There are numerous stories of Kozinski’s misconduct. Another woman explains what Ninth Circuit Judge Stephen Reinhardt did to sexually harass her.
Then there are Anita Hill and Christine Blasey Ford and their complaints against Justices Thomas and Kavanaugh, respectively.
Kozinski retired soon after two former clerks complained publicly about his behavior. That took him outside of judicial control, which is usually not very effective anyway. His complete misconduct is not reported.
Especially after the Kavanaugh hearings, Lithwick stopped going to the Supreme Court. She no “longer felt I could cover the court without also giving cover to a system that erased women. As I concluded in that piece, ‘There isn’t a lot of power in my failing to show up to do my job, but there is a teaspoon of power in refusing to normalize that which was simply wrong, and which continues to be wrong.’”
Lady Justice Stacey Abrams got Georgians to vote. That was no small accomplishment. She lost her gubernatorial election, but then worked to organize the vote. Georgia voted for President Joe Biden, and for two Democratic senators, Raphael Warnock and Jon Ossoff. Encouraging voting is hard, given how many politicians try to restrict it. Abrams keeps fighting the odds.
Abrams’ campaign was not about her. It was about voters exercising their right to vote. She has stood for voting principles without exception. The vote numbers increased in Georgia because of Abrams’ work. She is not only a lawyer and an organizer, but also a teacher. Lithwick notes, “It is astounding that the world’s oldest constitutional democracy continues to be unable to guarantee that every person who wishes to vote can do so.” Abrams works to get that right for everyone.
Lady Justice Nina Perales is the Latino Vote strategist. She protects voting rights at MALDEF, the Mexican American Legal Defense and Educational Fund. Some people forget that Mexican Americans have long been denied the right to vote. “Texas has been a kind of dark laboratory for years of efforts to suppress Latino votes.” Perales won League of United Latin American Citizens v. Perry, a Latino vote dilution case.
Perales fought the Trump administration’s efforts to put a citizenship requirement into the census, arguing that it would undermine minority votes. She opposed efforts to count only citizens in voting districts when the Constitution says persons, not citizens. She helped show that many arguments given by the Trump administration were pretextual.
Perales notes that her case in the U.S. Court of Appeals for the Fourth Circuit was before three women judges. “I have never, in my years, argued to a three-judge federal panel of only women, as a trial panel, because they’re so rare. And it was me and the three judges, and then of course there was a guy representing DOJ. And I was like, ‘Yeah, he’s in the minority this time.’”
Lithwick concludes, “Women are doing this work of democracy building, usually in the shadows, because they are really good at it. They are doing it, too, because without it democracy—with all its legal force and protections—cannot stand.” She warns that some women are suffering the “Great Forgetting” of all the harm done to them. Lithwick feels the threat to democracy is strong. She thinks women can make the difference as the anti-democrats continue to work against them.
Lithwick’s book reminded me of Ladies I know who are Ladies of Justice. I add them to her list.
Lady Justice Mary Schroeder is a judge on the Ninth Circuit, where those other judges described by Lithwick worked. I clerked for her in her excellent chambers. Schroeder came to the court in 1979, when she “joined a historic class of women judges who transformed the federal Judiciary…women were at best oddities, and sometimes were treated as unwelcome.” When she moved to Phoenix with her husband, her first job was threatened by her pregnancy.
Schroeder wrote the opinion reversing the conviction of Gordon Hirabayashi, a Japanese American who was interned during World War II.
Pointing to a picture of President Jimmy Carter with her and the other women judges he had named, she said, “This is what so-called pioneers have had to be—determined and strong, and not willing to yield because we don’t belong.”
Schroeder has always been determined and strong for women’s rights.
Lady Justice Barbara Babcock. I think Lithwick will join me in celebrating the late Barbara Babcock, the first woman faculty member, the first tenured woman, woman chairholder, and professor emerita at Stanford Law School, which is our alma mater. We are both her former students. Babcock’s website notes that Babcock “pioneered the study of women in the legal profession.”
Babcock wrote Woman Lawyer: The Trials of Clara Foltz, which is a biography of “the first woman lawyer in the west.” Lithwick positively reviewed that book on Slate. Babcock always stood for women’s rights. She was a public defender, and assistant attorney general for the Civil Division in the DOJ during the Carter administration. She taught all of us to support civil rights and democracy at its best. Women’s rights were always valued by Clara Foltz and by Barbara Babcock.
Lady Justice Marci Hamilton is a professor at the University of Pennsylvania and Founder and CEO of CHILD USA, an organization that protects children’s civil rights. Lithwick notes many times in her book that religion has been used to gain political force and harm civil rights. Hamilton has long protected civil rights against religions’ encroachment. I have been happy to support her work at CHILD USA.
Hamilton won City of Boerne v. Flores, which ruled that the federal government could not impose an RFRA (Religious Freedom Restoration Act) on all the state governments. She has long criticized the RFRAs for undermining women’s, LGBTQs’, and children’s civil rights. She seeks justice for women, LGBTQs, and children every day, even as religions are actively trying to strip them of their rights.
Like all the other Lady Justices, Hamilton keeps fighting the odds to protect people’s rights, especially by creating an organization that supports more rights for children.
I agree with Lithwick that the Lady Justices should be celebrated and supported. Add your list of Justices to mine!
