By John Woodford / Ann Arbor, Mich.
Dahlia Lithwick’s Lady Justice: Women, the Law and the Battle to Save America has arrived when a well-funded faction in our country is planning to subvert our 2024 elections, and the U.S. Supreme Court is dominated by a clique that values reactionary political objectives more than justice.
We’re living in a “frightening moment,” says Lithwick, a lawyer, scholar and journalist, an era when our Supreme Court, in overturning Roe v. Wade in last year’s Dobbs v. Jackson Women’s Health Organization, has eliminated the right of women to control their own bodies. This is the “first time in its history,” Lithwick writes, that the highest court in our land has reversed a precedent “in order to take away freedom rather than expand it.”
But Lady Justice devotes no space to handwringing and moaning about our current state of affairs. Instead, Lithwick profiles outstanding and courageous women lawyers who have masterminded and fought winning legal battles over not only voting and abortion rights but on many other fronts as well.
The battles Lithwick highlights include the following: the attempt to ban entry to the U.S. by foreign nationals of Muslim background; the conviction of neo-Nazi terrorists in Virginia; the right of American women to control their own bodies; the illegality of the U.S. government’s separation of immigrant families at our border; the exposure and punishment of American judges who sexually harass female colleagues; and the cancer-like growth of voter-suppression efforts in a growing number of states where reactionaries feel threatened by the will of the people.
Each of the legal campaigns Lithwick describes was led by brilliant, tenacious and resourceful heroines of the law. I suggest that a graphic-novel team produce a series on these women for younger readers like the books that portray the career of the late civil rights icon, Rep. John Lewis. (See March and Run: Book One, which Lewis produced with co-writer Andrew Aydin and illustrators Nate Powell and L. Fury (Top Shelf Productions).
Before focusing on the contemporary lawyers, however, Lithwick recounts the career of Pauli Murray (1910-1985), the pioneering Black American legal scholar who championed racial and gender equality. Murray received scant credit, Lithwick says, for her key contributions to the legal arguments that resulted in the desegregation of the nation’s public-school systems in the Supreme Court’s 1954 Brown v. Board of Education decision. Yet her 746-page compilation and analysis of state segregation laws in 1950 became, in NAACP lead attorney Thurgood Marshall’s words, “the bible” for the victorious side in Brown. (He should know; soon-to be Justice Marshall successfully argued the case before the high court.)
The questions of “who is visible and who is seen, of who does the work and who is remembered for the work are almost as central to a book on women and the law and the Trump era as the women themselves,” Lithwick observes. And with that she introduces her readers to a group of women whose deeds are cherished in millions of households even if almost all of their names are unknown to the public. Here are some of those lawyers readers will meet in full in Lady Justice:
When in January 2017 the Trump Administration attempted by executive order to “ban entry into the United States by immigrants and refugees from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen,” Trump justified the plot as a way to fight terrorism (even though travelers from Saudi Arabia, the source of a number of real terrorists who had attacked the U.S., were not included in the ban).
Sally Quillian Yates, the Acting U.S .Attorney General, and a holdover from the Obama Administration, had not been consulted about her views on the legality of the ban. “She knew she would have to either defend the executive order in court or resign on the spot,” Lithwick writes. But to resign would not have protected the integrity of the Department of Justice, which is pledged to uphold the rights guaranteed in the U.S. Constitution independently and impartially. Yates knew President Trump would fire her for it, but nevertheless she wrote a public statement saying the ban violated the First Amendment’s prohibition against religious discrimination. And she was fired four hours later, accused by the president of “refusing to enforce a legal order.”
Although the right-wing Supreme Court later permitted the Trump Administration to pass a watered-down version of the ban, Yates had set an example for many high-placed “legal resisters” to come. She was the “first and highest-profile person in the government to say no to the president” at the cost of their job.
Yates is now back at her establishment Atlanta law firm, but she told Lithwick that the integrity of the law rests upon the zeal and values of those working inside the system, in public service, as well as those outside of it. “Women are sometimes better than men at recognizing that the law isn’t an immutable, timeless cathedral,” Lithwick says. “We know that because until relatively recently, the law insisted that women couldn’t have their own credit cards.”
Becca Heller was only 35 years old when the modified travel ban Trump managed to install began to claim its first victims. As co-founder of the International Refugee Assistance project, Heller learned of perhaps 200 noncitizen travelers from the targeted Muslim countries who were being held in captivity at various U.S. borders. People like Hameed Khalid Darweesh, who had served for 10 years as an interpreter for U.S. military in Iraq. He was being held at J.F.K. Airport in New York, barred from contacting an attorney, after his wife and three children had been cleared for entry,
Heller wound up spearheading the case, ultimately tried with Darweesh and another Iraqi as plaintiffs, against the U.S. government. She organized a team of 3,000 volunteer lawyers around the country. Meanwhile, refugee activists organized public protests; more than 30,000 showed up just in New York City while others gathered in various sites around the country in the “Airport Revolution.”
Federal District Judge Ann Donnelly agreed with attorneys from the American Civil Liberties Union that the Trump Administration had violated the Due Process and Equal Protection provisions of the Constitution and barred the government from deporting hundreds of captive Muslims.
Although Darweesh and most others caught up in the early phase of the Trump ban gained their right to enter the U.S, our Supreme Court upheld a final reworking of the ban on the rationale that the Trump Administration had asserted “a sufficient national security justification” for the ban. The Supreme Court operates a shell game in which the U.S. public is the dupe. If a law protects or defends a democratic right that diminishes the interests of the elite, the Court gets rid of it in one of two ways: if a state has passed it, the Court says the executive has federal power to override the state’s action. If the federal government is the source of the measure, the Court rules that states’ rights prevail. As in a shell game, the power or right looked for is not where it’s expected to be. It’s wherever the Court has decided to put it.
Nowhere are the workings of this con game more apparent than in the battle over a woman’s right to control her own body. The constitutional right of a woman to choose to have an abortion that the Supreme Court confirmed in Roe v. Wade in 1973 fell in 2022, thanks to the right-wing majority on the high court that Trump built with his appointments of Justices Gorsuch, Kavanaugh and Barrett. The 6-3 majority in Dobbs v. Jackson Women’s Health Organization ruled that the issue of abortion would be “returned to the states,” many of which immediately began to criminalize abortion.
Brigitte Amiri, an Iranian-American attorney for the ACLU, was well aware of the bad intentions that paved the way to Dobbs. In 2017 in Texas, a 17-year-old migrant who had fled parental abuse and other miseries in Central America and crossed the U.S.-Mexican border was seized and confined by the Office of Refugee Resettlement (ORR).
When she discovered she was nine weeks pregnant, the minor, known officially as “Jane Doe,” immediately asked for an abortion, which a judge granted to her.
But Scott Lloyd, an antiabortion activist placed in charge of the ORR by Trump, banned shelters working under ORR contracts from helping any pregnant migrants from obtaining abortions.
The federal agency continued to impede and delay Jane Doe’s efforts to terminate her pregnancy by requiring her to attend various counseling sessions while also keeping her confined and isolated in the refugee shelter.
Rochelle Garza, a guardian appointed to act in Jane Doe’s interest, worked with the ACLU to file a massive class-action lawsuit against the ORR on behalf of Jane Doe and hundreds of other migrants who sought abortions, thus the case became known as Garza v. Hargan.
Amiri argued on the migrant’s behalf before a three-judge panel of the D.C. Circuit Court of Appeals. One of the trio was Brett Kavanaugh, not yet an appointee to the Supreme Court. The U.S .government had already delayed the young migrant’s abortion by three weeks, and now Kavanaugh was seeking to impose measures that would add another 11 days of limbo. Amiri got the case quickly transferred to another federal appeals court, which immediately reversed Kavanaugh’s ruling by a 6-3 vote. Kavanaugh wrote a bitter dissent, going so far as to defame his opponents by saying they were championing “abortion-on-demand.”
But Jane Doe got her wish, thanks to more adroit maneuvering by Amiri, and later told a TV interviewer: “I want to get to the place I want to go, and, if God allows it, study, to study and get ahead. I want to be a doctor.”
In the wake of Amiri’s victory, Lithwick notes, we’ve seen the attack against women’s rights to control their bodies move “rapidly from banning abortion to undermining the rights to contraception, in-vitro fertilization and surrogacy.”
She says, “One of the lessons I took from the case about migrant teens at the border is that you can win, and even win big, in the courts and still face immense backsliding if you aren’t doing mass political organizing at the same time.”
Robbie Kaplan showed how accurate Lithwick’s lesson was when Kaplan took on the neo-Nazi groups who marched twice in Charlottesville, VA, in 2017. The second gathering of hatemongers resulted in the murder of counter-protester Heather Heyer on August 12, when one of them intentionally drove his car into her and other anti-Nazis.
Lithwick lives in Charlottesville and attests to the stream of insults and threats of harm community members who denounced and demonstrated against the various white-supremacist and Jew-hating gangs continued to receive after deadly march. Those spreaders of hate and violence were among the “good people on both sides” that President Trump praised in his assessment of the conflict.
Kaplan, who had made a big name for herself as a powerful commercial litigator in a prestigious law firm, had started her own law firm right after Trump’s election. She also co-founded the Time’s Up Legal Defense Fund to support women filing sexual harassment cases. She called Lithwick after the Charlottesville atrocity and said she thought she had a way to fight the neo-Nazis in court if she could get some plaintiffs.
The case became known as Sines v. Kessler. Elizabeth Sines was one of the protesters injured in the car assault, and Jason Kessler was a local white supremacist and leading organizer of the march.
Kaplan ingeniously combined two legal precedents, one that had held anti-abortionists liable for violence that they had fomented against Planned Parenthood on their websites, and a second that used a post-Civil War statute known as the Ku Klux Klan Act of 1871. That act, “passed to protect newly freed slaves from mob violence,” Lithwick writes, “makes it illegal to conspire to deprive any person or class of people of their rights in a manner that is racially motivated.”
Kaplan’s victory resulted in prison sentences and/or huge fines for 24 defendants and was a big blow to the “alt-right” white nationalist movement led by defendant Richard Spencer. But Kaplan thinks it would be naive and dangerous to assume that the danger posed by the alt-right has passed. “She lives with the risk of constant threats to herself, her firm and her family,” Lithwick says. “But still she maintains that putting naked, senseless, violent hate on trial, with the attendant chaos, delay and danger, offered a once-in-a-lifetime chance at a moral reckoning in a country that at times seems to have fallen into a deep slumber on questions about violence, hate and what America really represents.”
Few could have a better perspective on what a moral reckoning of our country would entail than Vanita Gupta, who grew up in Philadelphia as the daughter of immigrants from India by way of London. Still fresh in her memory is the day skinheads yelled ”Pakis, go home!” and threw French fries at her family as they ate in a McDonald’s in London when she was four.
Following law school, Gupta joined the NAACP Legal Defense and Education Fund and worked on a number of high-profile civil rights cases.
Gupta concluded, Lithwick says, that our nation’s “problem lay in massive, faceless institutions that were supposed to bring about justice but were instead perpetuating its opposite. The criminal justice system produced gross racial disparities,” as did the “war on drugs, the for-profit prison industry, increasing police militarization and an asset-forfeiture system that financially rewarded law enforcement for predatory policing.”
Gupta moved to the ACLU to direct its Center for Justice “with an eye toward policy change on a large scale” rather than a focus on litigation. Eight years later, in 2014, she was recruited to join the federal government as head of the Justice Department’s Civil Rights Division. Now on the inside of state power, Gupta took aim at the many forms of injustice plaguing U.S. police departments at all levels. She oversaw the formation of legal instruments (“consent decrees”) that force institutions to reform their questionable practices. The areas Gupta addressed, Lithwick notes, included “voting rights, housing, education, hate crime legislation, LGBTQ rights, human trafficking, disability rights, predatory lending and voting.”
Just two days before Trump was sworn in as president, Gupta left her government post and several months later she was named CEO and president of the Leadership Conference on Civil and Human Rights, a coalition of 2,000 of the U. S.’s top civil and human rights organizations. From that perch Gupta watched as the Trump administration either stalled or backslid on pretty much every advance in justice and fairness the country had made.
Voter participation and voting rights were special targets of Trump and the political forces behind him. Gupta saw to it that her group fought hard against measures that various states were trying to use to make it harder “for people of color, the poor, students and those who lived in cities to vote,” as Lithwick sums it up.
Gupta testified on behalf of the bill known as HR 1, which would bring many pro-democracy reforms, including measures to reverse or prevent voter-suppression measures. And though it passed in the House, it has been trapped in the Senate, subject to Republican filibusters that the Democrats lack the strength to override.
When Gupta returned to the public sector as Associate Attorney General of the United States in 2021, she said one reason for her acceptance of the post was that “you won’t win just through outside agitation.”
We’re in an era when the country is “trying to redefine who deserves to be in this country and who is an American,” questions, Gupta says, that go to the census, to voting rights, to the drawing of voting districts as well as to who gets counted and how in the census, questions about power and democracy itself.
“If,” Lithwick says, “women plus law equals change, Gupta keeps proving, from the outside in and also from the inside out, then women plus law plus organizing equals power.” It’s a lesson Lady Justice emphasizes again and again: that although struggling for justice requires a persistent fight in the courts, our legislative and judicial institutions support such struggles only when there is a large, focused and constant push from below by the people.
“The law is fundamentally both the cause of and the solution to women’s equality battles in America,” Lithwick writes. “As [Vanita] Gupta put it, ‘If you come to the law with a certain premise or perspective, you understand that it’s always been a source of oppression, but also why it’s so important to be used to push for change and transformation in this country.’” That’s not so much a paradox but a description of the dynamics of reality. And no one provides a better manual on how to confront and manage contradictory forces than Stacey Abrams.
Abrams, “a Black female tax lawyer, voting rights activist/litigator and organizer who is also a romance novelist and who ran for governor of Georgia in 2018,” is widely acknowledged to have masterminded and led on the ground the movement that resulted in Democratic victories in 2020 that saw the once sure-bet GOP state go for President Biden and two Democratic U.S. senators in 2020.
Abrams had realized that the key was to campaign all over the state on bedrock issues and also to figure out how to get the more than 500,000 Black Georgians who were not registered to vote to become politically involved despite the new-Jim Crow efforts to discourage them through devious redistricting, vote-dilution and vote-suppression campaigns.
The John Roberts Supreme Court had aided and abetted those campaigns through its 2013 ruling in Shelby v. Holder, which under cover of “states’ rights and all that stuff,” as Abrams termed it, sabotaged the 1965 Voting Rights Act. Lithwick explains that Roberts, “writing for five justices, soothed himself that racialized voting problems were long past in America.”
Roberts had been valued for his cunning way back in the 1980s when he was tapped as the legal strategist for the Reagan Administration and segregationist Strom Thurmond when they wished to figure out how to dilute federal power to enforce the Voting Rights Act (VRA). So he was merely reusing an old trick, Lithwick says, when he wrote in Shelby that “things have changed dramatically,” and therefore that Section 5 of the VRA, which made states with a history of racialized voting procedures prove to federal regulators that they had ended such practices, “violated the ‘principle of equal [state] sovereignty’ and also offended states’ ‘dignity.’ The dignity of the minority voters struggling to vote in those states wasn’t materially important.”
Abrams lost her election for Governor in 2018 because her opponent, Brian Kemp, who was also overseeing the election as Georgia’s secretary of state, purged more than 1.5 million voters from the state’s rolls. It was enough to bring him a win by less than two percentage points.
But Black, Latino and young voters and women voters will ensure further progressive outcomes in Georgia elections if the methods of election-stealing are no worse than they are now. Abrams, who believes in campaigning in every county regardless of its voting history, knows that many Americans don’t think vote suppression is a problem worthy of their attention. In a TV interview Abrams addressed what I call the “meh-too” crowd:
When you’ve never had to think of the hardship of voting, then yes, these conversations on voter suppression seem absurd to you. When you have never spent more than seven minutes in line, it is nearly impossible to imagine that there are poor Black people who stand in line for eight hours, miss an entire day’s wages, risk losing their jobs simply to cast a ballot in an election that may or may not have any benefit for their lives.
“One of the things women bring to the law,” Lithwick says, “is the capacity to see outside the hermetically sealed story of the law itself: what I’ve called the split-screen understanding that the entire edifice of the legal system is a privilege that was for so long denied to so many.”
Insidious but clever methods of redistricting voter districts have become high-tech weapons of the faction in U.S. politics that seeks to negate the popular will. No attorney is more aware of such practices than Nina Perales, head of the Mexican American Legal Defense and Educational Fund (MALDEF).
Of Puerto Rican background herself, Perales moved from New York City to Texas 25 years ago as a newlywed. Her father had been a founder of the Puerto Rican Legal Defense and Education Fund in New York, for which she’d worked after getting her law degree. In Texas, of course, most Latinos are of Mexican heritage, so she got a job with MALDEF and is now its head.
Increasingly, Lithwick says, Perales has had to focus “on how electoral districts are drawn to dilute minority voting.” She has explained in a podcast that “redistricting means that even if everyone has full access to voting, you can dilute the vote even if everyone had the opportunity to register and cast a ballot. Redistricting plans can ensure that the minority voice is still suppressed.” And since Latinos are steadily increasing their percentage of our national population, curbing their representation is most easily achieved by simply not counting them.
In 2006, Perales “argued and won a vote dilution case pressed by Latino voters under the Voting Rights Act, League of United Latin American Citizens v. Perry.” Her victory blocked a plot in the Texas legislature to remove 100,000 Latinos from a congressional district. Her expertise and effectiveness attracted Latino groups in Arizona and Arkansas to combat similar shenanigans in their states.
The evil genius behind computer-science applications to redrawing districts was a Republican operative in Texas, the late Thomas Hofeller, who began refining such schemes more than 20 years ago. Lithwick quotes him as bragging:
I define redistricting as the only legalized form of vote-stealing left in the United States today. … [R]edistricting is like an election in reverse! It’s a great event. … Usually the voters get to pick the politicians. In redistricting, the politicians get to pick the voters!
When deployed against Latinos, redistricting is often coupled with measures like adding citizenship questions to census questionnaires. The Trump administration and allies have tried to add such a question because they know it leads many Latinos who live in communities with undocumented immigrants to refuse to participate in the census for fear of police raids, of being hassled on the job or in the streets, and of exposing family members or acquaintances to deportation. Since political representation is tied to population counts, reducing a census total weakens a district’s political influence and entitlement to funds for local infrastructure.
U.S. law specifically states that the census should count “the whole number of persons in each State,” not the number of citizens. Perales made that argument when she took on the Trumpists in La Unión del Pueblo Entero v. Ross in 2018. The victors proved that the Trump Administration had lied in describing its motives for ordering a change in the census question. The key evidence of the lie was the administration’s concealment of Hofeller’s role in the case. A New York Times reporter revealed, Lithwick says, that Republicans had asked Hofeller “to craft a mechanism for redistricting that would advantage ‘Republicans and non-Hispanic whites.’” Game over!
Well, in truth, the game isn’t over—maybe just an inning. Because efforts continue to ban, frighten and disenfranchise “other” Americans, in effect to define them as non-Americans, Lithwick notes. And influential political and media figures, not to mention out-and-out racists, Jew-haters and white supremacists, continue to pollute the public mind with alt-right memes like the “you will not replace us” slogans uttered by Charlottesville marchers and Fox News commentators alike. From the slime to the meretricious, one might say.
What is at issue, Lithwick concludes, is power, not so much that of leaders as the “power of followers.” It’s a form of power women are quite good at mobilizing, Lithwick says, and she shows in Lady Justice how female lawyers have harnessed it in protesting travel bans and family separations or getting out the vote. She continues:
Women organizing around halting mass shootings, promoting reproductive freedoms and opposing white supremacy were also lashing the power of groups to the power of law; it was the furthest thing from a president who was announcing whimsical executive orders via Twitter and fomenting violence through mobs.
Lady Justice is an Organizing Agent. Get it into the hands of as many young readers, especially college-bound-or-older young women, as you can.
John Woodford lives in Ann Arbor, Michigan, where he retired after two decades as the executive editor of Michigan Today, a University of Michigan alumni/ae publication. His career in journalism includes editing and/or reporting duties for Ebony magazine, Muhammad Speaks newspaper, the Chicago Sun-Times, the New Haven Register, the New York Times and Ford Motor company publications.
Hi John,
I truly enjoyed your article. It is very informative and superbly written!!
Judi Markowitz
Terrrific!