Table of Contents

Ti­tle Page

Copy­right

Ded­i­ca­tion

Con­tents

In­tro­duc­tion

1. The Be­gin­ning

2. The First No

3. The Air­port Rev­o­lu­tion

4. Char­lottes­ville Nazis

5. Abor­tion at the Bor­der

6. The Civil Rights Lawyer

7. #MeToo

8. #Her­Too

9. Vot­ing Geor­gia 2018

10. The Elec­tions Long Game: Re­dis­trict­ing and the Cen­sus

Epi­logue

Ac­knowl­edg­ments

Notes

In­dex

About the Au­thor

PEN­GUIN PRESS

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Copy­right © 2022 by Dahlia Lith­wick

Pen­guin Ran­dom House sup­ports copy­right. Copy­right fu­els cre­ativ­ity, en­cour­ages di­verse voices, pro­motes free speech, and cre­ates a vi­brant cul­ture. Thank you for buy­ing an au­tho­rized edi­tion of this book and for com­ply­ing with copy­right laws by not re­pro­duc­ing, scan­ning, or dis­tribut­ing any part of it in any form with­out per­mis­sion. You are sup­port­ing writ­ers and al­low­ing Pen­guin Ran­dom House to con­tinue to pub­lish books for ev­ery reader.

li­brary of con­gress cat­a­loging-in-pub­li­ca­tion data

Names: Lith­wick, Dahlia (Lawyer), au­thor.

Ti­tle: Lady jus­tice : women, the law, and the bat­tle to save Amer­ica / Dahlia Lith­wick.

Iden­ti­fiers: LCCN 2022019477 (print) | LCCN 2022019478 (ebook) | ISBN 9780525561385 (hard­cover) | ISBN 9780525561392 (ebook)

Sub­jects: LCSH: Jus­tice, Ad­min­is­tra­tion of—United States—Crim­i­nal pro­vi­sions. | Con­tempt of court—United States. | Ob­struc­tion of jus­tice—United States. | Dis­crim­i­na­tion in jus­tice ad­min­is­tra­tion—United States. | Trump, Don­ald, 1946- | Pres­i­dents—United States—Elec­tion—2016. | United States—Pol­i­tics and gov­ern­ment—2017–2021.

Clas­si­fi­ca­tion: LCC KF9415 .L58 2022 (print) | LCC KF9415 (ebook) | DDC 345.73/0234—dc23/eng/20220801

LC record avail­able at https://lccn.loc.gov/2022019477

LC ebook record avail­able at https://lccn.loc.gov/2022019478

Cover de­sign: Christo­pher Brian King

Cover im­age: No Limit Pic­tures / Getty Im­ages

de­signed by meighan ca­vanaugh, adapted for ebook by molly jeszke

pid_prh_6.0_142979265_c0_r1

For Aaron, wher­ever we go, there we are, thank­fully to­gether

For my par­ents—jus­tice and lov­ing-kind­ness in per­fect sym­me­try

CON­TENTS

In­tro­duc­tion

1.

The Be­gin­ning

2.

The First No

Sally Yates: The Gov­ern­ment Lawyer

3.

The Air­port Rev­o­lu­tion

Becca Heller: The Ac­tivist

4.

Char­lottes­ville Nazis

Rob­bie Ka­plan: The Big Firm Lit­i­ga­tor

5.

Abor­tion at the Bor­der

Brigitte Amiri: The Lit­i­ga­tor

6.

The Civil Rights Lawyer

Vanita Gupta: The In­sider-Out­sider

7.

#MeToo

The Kozin­ski Ac­cusers

8.

#Her­Too

Chris­tine Blasey Ford and Anita Hill

9.

elec­tions part 1

Vot­ing Geor­gia 2018

Stacey Abrams: The Game Changer

10.

elec­tions part 2

The Elec­tions Long Game: Re­dis­trict­ing and the Cen­sus

Nina Perales: The Latino Vote Strate­gist

Epi­logue

Ac­knowl­edg­ments

Notes

In­dex

_142979265_

IN­TRO­DUC­TION

Free­dom is a dream

Haunt­ing as am­ber wine

Or worlds re­mem­bered out of time.

Not Eden’s gate, but free­dom

Lures us down a trail of skulls

Where men for­ever crush the dream­ers—

Never the dream.

—pauli mur­ray, “Dark Tes­ta­ment”

I’m not sure if my in­volve­ment in causes, ben­e­fits, marches, and demon­stra­tions has made a huge dif­fer­ence, but I know one thing: that in­volve­ment has con­nected me with the good peo­ple: peo­ple with the live hearts, the live eyes, the live heads.

—pete seeger

Isome­times think of the Supreme Court oral ar­gu­ments in Whole Woman’s Health v. Heller­st­edt on March 2, 2016, as the last truly great day for women and the le­gal sys­tem in Amer­ica. There are, to be sure, many such glo­ri­ous mo­ments to choose from, both be­fore and af­ter Trump, but as a pro­fes­sional court-watcher, I had a front-row seat to this story, one that of­fered a sense that women in the United States had achieved some mile­stone that would never be re­versed. The land­mark abor­tion chal­lenge rep­re­sented the first time in Amer­i­can his­tory that a his­toric abor­tion case was be­ing heard by a Supreme Court with three fe­male jus­tices. Twenty-four years ear­lier, when the next mo­men­tous abor­tion case—Planned Par­ent­hood v. Casey—had come be­fore the Supreme Court, only one woman, San­dra Day O’Con­nor, sat on the bench. Go back a bit fur­ther and Roe v. Wade, the path­break­ing 1973 case that cre­ated a con­sti­tu­tional right to ter­mi­nate a preg­nancy, was ar­gued be­fore and de­cided by nine men and zero women. And when Gris­wold v. Con­necti­cut, the law­suit pro­tect­ing the rights of mar­ried cou­ples to buy and use birth con­trol, was ar­gued at the high court back in 1965, that bench com­prised nine males so un­easy with the topic of con­tra­cep­tion that at oral ar­gu­ments no­body was brave enough even to name the birth con­trol de­vice be­ing lit­i­gated. (As a re­sult, the en­tire tran­script from Gris­wold, ar­gued fifty-one years be­fore Whole Woman’s Health, reads like an Ab­bott and Costello “Who’s on First” sketch.) From that long-ago ar­gu­ment one may eas­ily de­rive a gen­eral con­sti­tu­tional pre­cept that no­body—not even well-mean­ing pro­gres­sive male ju­rists and leg­is­la­tors—should be in the busi­ness of reg­u­lat­ing birth con­trol de­vices they are too freaked out to name.

Buried in that story is the truth about how le­gal de­ci­sions in­volv­ing women, their salaries, their bod­ies, their ed­u­ca­tions, cus­tody of their chil­dren, and their votes have been framed in Amer­i­can court­rooms un­til very re­cently: by hus­bands and fa­thers with good in­ten­tions and stag­ger­ingly low in­for­ma­tion. We lucked out. We got con­tra­cep­tion and ac­cess to mil­i­tary schools, the right to our own credit cards, and all sorts of equal rights over the years. But it all felt dif­fer­ent in 2016. Women now made up 50 per­cent of the law school pop­u­la­tion; they were part­ners at law firms, mem­bers of Con­gress, judges, pro­fes­sors, and three of them sat, with life­time ten­ure, on the high­est court in the land. Gen­er­a­tions of women who had played by the rules, and changed Amer­i­can in­sti­tu­tions and gov­ern­ment, were poised to be a part of a gen­uinely equal polity. Sure, there were hic­cups and set­backs. Al­though half of Amer­ica’s law stu­dents and lawyers were women, women made up only one-third of at­tor­neys in pri­vate prac­tice, 21 per­cent of eq­uity part­ners, and 12 per­cent of man­ag­ing part­ners, chairs, or CEOs of law firms. Hmm. Weird. Less than 5 per­cent of CEOs of For­tune 500 com­pa­nies were women. And women made up only about 24 per­cent of Con­gress, 18 per­cent of gov­er­nors, 29 per­cent of state leg­is­la­tors. So, okay, it wasn’t per­fect. But it was pro­gress­ing. Equal pay was around the cor­ner, bet­ter child-care and leave poli­cies were bar­rel­ing to­ward us, and as ar­gu­ments pro­gressed in Whole Woman’s Health, it seemed dis­tinctly pos­si­ble that the last days of men telling women what to do with their free­dom and their life choices and their fam­ily de­ci­sions, were dawn­ing.

On that bright, freez­ing March morn­ing, Ruth Bader Gins­burg, So­nia So­tomayor, and Elena Ka­gan tag-teamed their in­ter­ro­ga­tion of Scott Keller—Texas’s so­lic­i­tor gen­eral—as he stut­ter-stepped through his jus­ti­fi­ca­tion of why, back in 2013, Texas had passed new re­quire­ments on clin­ics and physi­cians that would ef­fec­tively close most abor­tion fa­cil­i­ties and pre­vent women from ter­mi­nat­ing their preg­nan­cies. These were oner­ous reg­u­la­tions. In ru­ral ar­eas, with clin­ics shut­tered, women were forced to drive for days to ac­cess care. Whole swaths of Texas had no ac­ces­si­ble clin­ics re­main­ing at all. Poor women and women of color were hard­est hit by the lack of fa­cil­i­ties. They had to seek days off from work, sleep in their cars, re­turn for re­peat ap­point­ments. State law­mak­ers had ar­gued that their sole in­ter­est in the new clinic laws was in pro­tect­ing women’s health, but women’s well-be­ing had de­clined cat­a­stroph­i­cally, and in court pro­ceed­ings Texas could pro­vide no ev­i­dence that im­prov­ing health out­comes was the real rea­son for the reg­u­la­tions. Pressed on this ques­tion at oral ar­gu­ment, So­lic­i­tor Gen­eral Keller could barely fin­ish a sen­tence.

As the three women jus­tices—deftly aided by Jus­tice Stephen Breyer, the court’s fourth fem­i­nist—took turns snack­ing on Texas’s be­lea­guered lawyer, I wit­nessed for the first time in my six­teen-year ca­reer as a jour­nal­ist some­thing amaz­ing: the rules of the Supreme Court road had shifted overnight. Court ar­gu­ment ses­sions are tightly con­trolled, highly for­mal­ized en­ter­prises that haven’t re­ally changed much over two cen­turies, with the ex­cep­tion of COVID-era tele­phonic ses­sions. The nine jus­tices sit at the same high bench next to the same spit­toons (spit­toons!), sip­ping from the same tall, sil­ver milk­shake cups they have been us­ing for decades as lawyers make their for­mal ar­gu­ments. But on that morn­ing in 2016, the three women jus­tices ig­nored the for­mal time lim­its, talk­ing ex­u­ber­antly over their flum­moxed male col­leagues. Jus­tice Ruth Bader Gins­burg at one point es­sen­tially in­structed the chief jus­tice to add ex­tra time to the clock for a fe­male re­pro­duc­tive free­dom ad­vo­cate. And he com­plied. I de­scribed that day of three fe­male jus­tices and Jus­tice Breyer go­ing to town on coun­sel as a “four-car train of whoop ass.” Not the usual con­trolled anal­y­sis from the staid jus­tices. But what was ex­cep­tional and—at least in ret­ro­spect—heart­break­ing that morn­ing was that it af­forded Amer­ica a glimpse of what gen­uine gen­der par­ity or near par­ity might have meant for fu­ture women in pow­er­ful Amer­i­can le­gal in­sti­tu­tions. It felt like the end of con­sti­tu­tion­ally sanc­tioned mansplain­ing. It felt, in a way, like the end of his­tory.

That morn­ing felt like noth­ing so much as an ex­plo­sion of bot­tled-up ju­di­cial girl power that had been two cen­turies in the mak­ing. The 5–3 rul­ing that came down al­most four months later up­held a woman’s fun­da­men­tal right to choose to end her preg­nancy. That ma­jor­ity opin­ion, penned by Jus­tice Breyer, asked courts and lawyers to punc­ture cen­turies of ac­cu­mu­lated lies and stereo­types about frag­ile, con­fused women mak­ing bad choices in or­der to con­sider in­stead the ac­tual ways in which women live their eco­nomic and moral lives. It was a con­sti­tu­tional break­through, writ­ten by a man who saw women as agents in full. At that mo­ment, the coun­try ap­peared inches away from lever­ag­ing the law to serve women’s dig­nity and equal­ity in­ter­ests on a mas­sive scale. Back in that spring of 2016, we re­ally thought we could see gen­der equal­ity from our back porches. And then it was gone. With the death of Jus­tice Gins­burg in Sep­tem­ber 2020; the seat­ing of three com­mit­ted an­ti­choice jus­tices by Don­ald Trump in the years since Whole Woman’s Health; and the re­ver­sal of Roe in June of 2022, that case will now likely stand as a high-wa­ter mark we may not soon see again in the courts, or in women’s con­sti­tu­tional progress. It has be­come, at least for me, a marker of the end of his­tory, but in com­pletely the wrong di­rec­tion. In a mat­ter of weeks af­ter Whole Woman’s Health came down, con­sti­tu­tional his­tory be­gan to un­ravel quickly.

Ev­ery woman I know re­mem­bers what that sum­mer be­fore the 2016 elec­tion felt like. The GOP can­di­date for pres­i­dent who ref­er­enced Mex­i­cans as rapists in launch­ing his cam­paign. Four short months af­ter Whole Woman’s Health came down, we would all hear with our own ears the au­dio from Ac­cess Hol­ly­wood of the US Re­pub­li­can nom­i­nee for pres­i­dent boast­ing on cam­era that be­cause he was “a star,” he could “grab [women] by the pussy” with­out con­se­quences. By No­vem­ber of 2016, we learned that the only con­se­quence for such an ad­mis­sion would be a pro­mo­tion to the Oval Of­fice.

Ev­ery woman I know re­mem­bers pre­cisely where she was when the 2016 elec­tion was called for Don­ald Trump. I was cov­er­ing polling places in North Car­olina that day, and it was dawn­ing on me that the num­ber of af­fronted women show­ing up in pantsuits to pull the lever for Hillary Clin­ton was un­der­whelm­ing. Like so many of the women in this book, I spent elec­tion night com­fort­ing dis­traught kids and pound­ing bour­bon. What had hap­pened? How did it hap­pen? Mil­lions of peo­ple—mil­lions of women—had voted for a man who had proven a thou­sand times over through­out the cam­paign that he thought women were best seen as the creamy of­fer­ings on a dessert cart. If we spoke up, pushed back, we were pigs, we were dogs, we were bleed­ing from the what­ever. On the cam­paign trail, Trump ex­pressly floated the idea of pun­ish­ing women for ter­mi­nat­ing their preg­nan­cies. How did we get here and how did it hap­pen so quickly? Who, so many of us won­dered, had voted for this man?

Yes, there was danc­ing in the streets in some quar­ters, but there were also hushed, hor­ri­fied whis­pers over the phone all night. The day af­ter the elec­tion I found my­self on a dais, in a ball­room at a fancy ho­tel in Wash­ing­ton, DC, at a woe­fully poorly timed lun­cheon event cel­e­brat­ing women oral ad­vo­cates at the Supreme Court. The ta­bles were laid with white linen and sparkling crys­tal, and some of the young women lawyers, law clerks, and law stu­dents in the crowd sobbed openly. So did some of the speak­ers on the dais. So did this speaker on the dais. How could this event be hap­pen­ing? Hadn’t his­tory just ended? (Over the course of the next four years, as I cov­ered the Mueller re­port and Michael Flynn and emol­u­ments clause vi­o­la­tions and Hatch Act vi­o­la­tions and the slow im­plo­sion of the Jus­tice De­part­ment, I met ev­ery Su­per Bowl, ev­ery Thanks­giv­ing din­ner, and ev­ery Pres­i­dents’ Day White Sale with the same ex­act con­fu­sion: How could this event still be hap­pen­ing? Hadn’t his­tory just ended?)

But just as it seemed that women’s progress was un­rav­el­ing like a cheap sweater, some­thing was ris­ing up in its place. In re­sponse to what was hap­pen­ing at the top, ex­tra­or­di­nary women were do­ing ex­cep­tional things ev­ery­where else. There was the Women’s March; there were armies of women phone bank­ing; women’s groups were teach­ing them­selves about chat­tel slav­ery and sys­temic racism, about vot­ing rights, about gen­der and power; women were cre­at­ing cir­cles, squares, and tetra­he­drons of new kinds of ac­tivism. And in the midst of that, al­most as if by un­spo­ken mu­tual agree­ment, women lawyers were turn­ing on a dime, up­end­ing their lives and their ca­reers and their fam­i­lies to or­ga­nize a new kind of re­sis­tance move­ment that would play out in court­houses, in state­houses, and in elec­tions.

In the days and weeks be­fore Don­ald Trump was in­au­gu­rated in Jan­u­ary 2017, Sally Quil­lian Yates, the act­ing at­tor­ney gen­eral of the United States and high­est-rank­ing of­fi­cial at the US De­part­ment of Jus­tice (DOJ), had agreed to stay on as in­terim head of the DOJ. Yates was born and raised in Geor­gia in a fam­ily of lawyers. Af­ter al­most three decades of pub­lic ser­vice as a pros­e­cu­tor, she was well aware that she would be re­placed by the new pres­i­dent at the first op­por­tu­nity, be­cause at­tor­neys gen­eral serve at the plea­sure of the pres­i­dent. But she had no idea she would im­me­di­ately be fired for re­fus­ing to sign off on a travel ban she deemed rooted in re­li­gious in­tol­er­ance. Yates had no no­tion she would be the first ca­su­alty in Don­ald Trump’s war on the Con­sti­tu­tion.

In New York City, at al­most the same time, Becca Heller was a young lawyer who had co-founded the In­ter­na­tional Refugee As­sis­tance Project (IRAP), an or­ga­ni­za­tion that had been work­ing to help refugees flee­ing in­tol­er­a­ble con­di­tions abroad to find lawyers to as­sist them with their asy­lum ef­forts in the United States. Hu­man­i­tar­ian crises in Syria and around the world were al­ready cre­at­ing for­mi­da­ble chal­lenges for the group. But Heller had no idea that she would, within mere days of Trump’s in­au­gu­ra­tion, find her­self on the front lines of what would be­come one of the big­gest spon­ta­neous pub­lic protests of the year—an up­ris­ing of cit­i­zens and lawyers swarm­ing the na­tion’s air­ports af­ter Trump sum­mar­ily banned im­mi­gra­tion and refugees from Mus­lim-ma­jor­ity na­tions.

In New York City, Roberta Ka­plan, a suc­cess­ful com­mer­cial lit­i­ga­tor at Paul, Weiss, Rifkind, Whar­ton & Gar­ri­son, the tony white-shoe law firm, had no idea she’d soon be leav­ing her job to start a brand-new, woman-run lit­i­ga­tion shop that would do large-scale pro bono so­cial jus­tice work. Ka­plan, the win­ning lawyer in the path­break­ing 2013 mar­riage equal­ity case, United States v. Wind­sor, had de­voted twenty-five years to a big-city law prac­tice. Lit­tle did she know when she marched in the first Women’s March in Jan­u­ary 2017, that within months she’d be in fed­eral court in Vir­ginia, su­ing Nazis who’d vi­o­lently in­vaded Char­lottes­ville and de­fend­ing fe­male whistle­blow­ers in a se­ries of #MeToo law­suits. (Ka­plan would later re­sign from Time’s Up over a con­flict about work she did for Gov­er­nor An­drew Cuomo.) Ka­plan would also come to rep­re­sent E. Jean Car­roll, a woman who al­leged the pres­i­dent had raped her, and Mary Trump, the pres­i­dent’s niece, who al­leged that he and his sib­lings cheated her out of her in­her­i­tance.

In New York, Brigitte Amiri had planned to do big, im­pact­ful re­pro­duc­tive jus­tice work for the ACLU af­ter Hillary Clin­ton se­cured the pres­i­dency. She was look­ing for­ward to team­ing up with the new ad­min­is­tra­tion to ad­vance and se­cure women’s con­tra­cep­tive and abor­tion rights. She never ex­pected to be thrust into the lime­light when the Trump ad­min­is­tra­tion be­gan to bar preg­nant teen mi­grants from ter­mi­nat­ing their preg­nan­cies. Vanita Gupta, for­merly the head of the Jus­tice De­part­ment’s Civil Rights Di­vi­sion, was named pres­i­dent and chief ex­ec­u­tive of the Lead­er­ship Con­fer­ence on Civil and Hu­man Rights and found her­self fight­ing against po­lice bru­tal­ity and im­mi­gra­tion re­forms and fight­ing to pro­tect vot­ing rights. Gupta had al­ways thought of her­self as a civil rights lawyer, not an or­ga­nizer, but she would help helm sev­eral of the most im­por­tant move­ments of the pe­riod—from marches protest­ing fam­ily sep­a­ra­tion poli­cies to de­mands for so­cial me­dia re­forms to vot­ing rights. Women in Wash­ing­ton, DC, be­came the beat­ing heart of an ef­fort to erad­i­cate sex­ual abuse and ha­rass­ment in the ju­di­ciary, and, later, to op­pose the nom­i­na­tion of ac­cused sex­ual abuser Brett Ka­vanaugh to the Supreme Court. Anita Hill, who had lev­eled sim­i­lar claims about Clarence Thomas decades ear­lier, would once again be­come the face and the voice of the ur­gent need to erad­i­cate sex­ual pre­da­tion in the work­place.

Stacey Abrams, who ran for and lost Geor­gia’s gov­er­nor­ship in a 2018 elec­tion marred by al­le­ga­tions of ram­pant voter sup­pres­sion, re­con­sti­tuted her­self as a na­tional vot­ing rights jug­ger­naut and mod­eled for mil­lions of women, Black, Latino, and poor vot­ers what it would take to or­ga­nize, knock doors, and get out the vote in a pres­i­den­tial elec­tion year be­set by a pan­demic and vote sup­pres­sion. In Texas, Nina Perales would spend years lit­i­gat­ing against a dif­fer­ent form of vote sup­pres­sion, the race-based re­dis­trict­ing seek­ing to out­run de­mo­graphic changes in Amer­ica through ger­ry­man­der­ing and malap­por­tion­ment. All of these names rep­re­sent a frac­tion of the women on the front lines of the law­suits, in­junc­tions, or­ga­niz­ing ef­forts, ad­vo­cacy, and lob­by­ing work seek­ing to fend off ev­ery con­ceiv­able as­sault on the en­vi­ron­ment, health care, unions, fam­ily sep­a­ra­tions, and more.

What ex­ploded into ex­is­tence in the days and weeks af­ter Hillary Clin­ton lost the 2016 elec­tion was a small army of fe­male lawyers with, per­haps not co­in­ci­den­tally, back­grounds sim­i­lar to that of their pre­ferred can­di­date. Like Clin­ton, they were women; like Clin­ton, they pos­sessed law de­grees; and like Clin­ton, they were sim­ply un­will­ing to drift back­ward to a time when men made pol­icy and women made din­ner. Al­most overnight that meant that armies of fe­male lawyers and ad­vo­cates—seem­ingly born for this pre­cise mo­ment—were gal­va­nized and awak­ened be­fore the Trump in­au­gu­ra­tion, and only deep­ened their en­gage­ment with the le­gal sys­tem in the weeks and months and years that fol­lowed. These women be­came eq­uity part­ners in Amer­ica’s sprawl­ing, pop-up re­sis­tance law firm, each seek­ing to pre­serve free­doms that were un­der daily as­sault for the four years in which Don­ald Trump as­sured us all that he him­self was above the law, and also that the law could be bent to harm those who thwarted him. More than any­thing, this soar­ing women’s le­gal re­sis­tance re­vealed, at least to me, that while we have all been wait­ing around de­spon­dently for Ruth Bader Gins­burg’s next it­er­a­tion to res­cue us, the RBG 2.0s have been among us all along.

Two short years af­ter Don­ald Trump left of­fice, we face new head­winds that threaten to leave Amer­i­can women vul­ner­a­ble in ways we could barely have imag­ined when Whole Woman’s Health was ar­gued. The Supreme Court is ex­pand­ing gun rights, dis­man­tling the power of agen­cies to pro­tect the en­vi­ron­ment, and open­ing the door to state ef­forts to crim­i­nal­ize abor­tion, mis­car­riage, and con­tra­cep­tion. The high court is also par­tic­i­pat­ing in ef­forts to stymie the vote. But women are not with­out le­gal and con­sti­tu­tional re­sources to fight back. Fe­male lawyers know this fight in­ti­mately; they’ve been do­ing this work for decades. This is their play­book. This is the task ahead.

1

The Be­gin­ning

Lock her up!” “Lock her up!” “Lock her up!”

The crowds at Don­ald Trump’s 2016 cam­paign ral­lies would chant it about his op­po­nent, Hillary Clin­ton. At the Re­pub­li­can Na­tional Con­ven­tion in 2016, in Cleve­land, “Lock her up” was the pro­posal on which del­e­gates agreed most vo­cally and en­thu­si­as­ti­cally. Flor­ida’s gov­er­nor, Rick Scott, New Jer­sey’s gov­er­nor, Chris Christie, Trump’s soon-to-be na­tional se­cu­rity ad­vi­sor Michael Flynn, and Pam Bondi, the top law en­force­ment of­fi­cer in the state of Flor­ida, each led scream­ing del­e­gates in chants of “Lock her up.” In a sub­se­quent pres­i­den­tial de­bate, the then can­di­date Trump warned Clin­ton, “I’ll tell you what. I didn’t think I’d say this, but I’m go­ing to say it, and I hate to say it. But if I win, I am go­ing to in­struct my at­tor­ney gen­eral to get a spe­cial pros­e­cu­tor to look into your sit­u­a­tion.” Even years af­ter Clin­ton lost the pres­i­den­tial elec­tion, Trump’s at­tor­ney gen­eral, Jeff Ses­sions, gave a speech in 2018 to a group of mostly male con­ser­va­tive high school­ers who glee­fully chanted, “Lock her up,” as he smiled and chanted along.

If you’re a woman who went to law school, or if you are a woman at all, or know one, or re­spect one, or if you are any­one with any con­cep­tion of what the rule of law means, a ra­bid crowd scream­ing for the in­car­cer­a­tion of a woman for imag­i­nary “crimes” rang­ing from a ter­ror­ist at­tack in Beng­hazi, to the mis­use of a pri­vate email server, to the man­age­ment of a fic­tional pizza-par­lor-based child-sex-slave ring is chill­ing. It is a threat about us­ing the law—the ap­pa­ra­tus that it­self guar­an­tees a woman’s free­dom and equal­ity in Amer­ica—to pun­ish a woman for seek­ing elected of­fice. This wasn’t the gar­den-va­ri­ety sex­ism that al­lowed men to chant “Iron my shirt” at Clin­ton cam­paign events. This was a threat to use the co­er­cive force of state po­lice power to lock up pow­er­ful fe­males. It wasn’t Leave It to Beaver. It was the Salem witch tri­als.

It was ter­ri­fy­ing to watch it blos­som and spread. It was ter­ri­fy­ing when the lan­guage of “Lock her up” was in­voked by Trump dur­ing the 2016 cam­paign to threaten “some form of pun­ish­ment” for women who ex­er­cised their right to re­pro­duc­tive free­dom. It was ter­ri­fy­ing when the lan­guage of “Lock her up” was used against mi­grant women and girls. It was chill­ing when Trump led ador­ing crowds to chant “Lock her up” af­ter Chris­tine Blasey Ford ac­cused his Supreme Court nom­i­nee of sex­ual as­sault. It was ter­ri­fy­ing as cam­paign crowds in 2020 chanted “Lock her up” about Nancy Pelosi for “dis­tract­ing” Trump dur­ing his State of the Union ad­dress, or when “Lock her up” mor­phed to “Send her back” as crowds would come to roar about Rep­re­sen­ta­tive Il­han Omar of Min­ne­sota. “Lock her up”—as a prong of Make Amer­ica Great Again—be­came a prom­ise to weaponize the ma­chin­ery of law to si­lence, threaten, and iso­late women. In the end it didn’t even mat­ter whom the pro­noun “her” ref­er­enced. For crowds who em­braced it, it was a gen­er­al­ized prom­ise that af­ter cen­turies of women’s dili­gent ef­forts at bend­ing and shap­ing and coax­ing the law into af­ford­ing them equal pro­tec­tion and dig­nity, their gen­der it­self could be­come a crime.

By the sum­mer of 2022, this was no longer hy­po­thet­i­cal or just rhetor­i­cal. Even be­fore the Supreme Court is­sued a fi­nal abor­tion de­ci­sion, states raced to crim­i­nal­ize the en­dan­ger­ment of fe­tal per­sons and fer­til­ized em­bryos. Emer­gency rooms strug­gled over whether to ad­mit pa­tients ex­pe­ri­enc­ing mis­car­riages. Al­most overnight, amid whis­pers that Roe v. Wade was no longer good law, women (and es­pe­cially women of color) were be­ing crim­i­nally charged for fe­tal en­dan­ger­ment and self-man­aged abor­tions. The ca­pac­ity to bear life had sud­denly turned the womb into a crime scene. “Lock her up” wasn’t just a slo­gan any­more but a prom­ise.

Amer­i­can women, in­clud­ing Hillary Clin­ton, Il­han Omar, Chris­tine Blasey Ford, and, yes, Pam Bondi, have a spe­cial re­la­tion­ship with the law. They’re ex­cep­tion­ally good at it. The law re­wards and el­e­vates qual­i­ties that tran­scend force and bru­tal­ity. And yet ev­ery woman I in­ter­viewed, even if she was a lawyer, a judge, or a law pro­fes­sor, heard in 2016’s ex­u­ber­ant “Lock her up” the echoes of sav­agery, vig­i­lan­tism, and abuse. It be­came a prom­ise that the law was not go­ing to pro­tect us but that it could and would be used to pun­ish. That meant that women in the age of Don­ald Trump, and in the years that fol­lowed, wouldn’t sim­ply have to fight to pre­serve the rule of law. They would have to fight to keep the law it­self from be­ing used against them.

The law has been used as a cud­gel against women from time im­memo­rial, and the great­est women pi­o­neers in the law spent their lives do­ing bat­tle against its per­sonal con­straints even as they went to war against its sys­tems. Which brings me to Pauli Mur­ray, the most im­por­tant woman lawyer few peo­ple know about. I first learned of Mur­ray just a few years ago, de­spite ma­tric­u­la­tion from law school, a clerk­ship for a fed­eral ap­pel­late judge, and two decades of writ­ing about the fed­eral courts and con­sti­tu­tional law. Yet I never learned about Mur­ray, one of the most vi­sion­ary and ef­fec­tive race and gen­der equal­ity lawyers of the twen­ti­eth cen­tury. How is that even pos­si­ble?

De­spite her (and if alive to­day, Mur­ray might have pre­ferred “their”) im­por­tance, Pauli Mur­ray was and is still not well known even among the women, es­pe­cially white women, who re­vere trail­blaz­ing women lawyers like the “No­to­ri­ous RBG” or Michelle Obama or Hillary Clin­ton. There are not, to my knowl­edge, a whole lot of mugs, fab­ric tote bags, or dis­sent col­lar ear­rings ded­i­cated to Mur­ray. There are no huge fan clubs and no com­par­isons to fa­mous rap­pers, even though she de­serves com­pa­ra­ble le­gal su­per­star sta­tus. Her list of firsts was land­scape al­ter­ing: Mur­ray helped co-found the Na­tional Or­ga­ni­za­tion for Women in 1966; or­ga­nized sit-ins at seg­re­gated restau­rants in Wash­ing­ton, DC, twenty years be­fore the sit-ins be­gan in Greens­boro, North Car­olina; and was ar­rested in Vir­ginia for re­fus­ing to move to the back of the bus fif­teen years be­fore Rosa Parks.

Pauli Mur­ray’s ac­tivism was sur­passed only by her le­gal vi­sion and in­tel­lec­tual rigor. Her 1944 law school pa­per on the Thir­teenth and Four­teenth Amend­ments was used in 1954 by the NAACP Le­gal De­fense Fund to suc­cess­fully lit­i­gate Brown v. Board of Ed­u­ca­tion to de­seg­re­gate pub­lic schools. But the NAACP did not men­tion her at the time, and she only found out years later. Mur­ray’s rad­i­cal le­gal frame­work, set forth in a 1965 law re­view ar­ti­cle co-au­thored with an­other lawyer, Mary East­wood, was used (cred­ited this time) to lit­i­gate a land­mark gen­der equal­ity case brought in 1971 by Ruth Bader Gins­burg at the ACLU’s Women’s Rights Project: a suc­cess­ful first ef­fort to es­tab­lish that the equal pro­tec­tion clause of the Four­teenth Amend­ment should ap­ply to pro­tect women’s equal rights un­der the law. Mur­ray was a queer, gen­der-non­con­form­ing at­tor­ney so far ahead of the curve of mod­ern con­sti­tu­tional his­tory that it all but for­got she had been one of its prin­ci­pal de­sign­ers.

Mur­ray—great-grand­daugh­ter of slaves on one side and of wealthy south­ern slave own­ers on an­other—be­lieved she was “one of na­ture’s ex­per­i­ments; a girl who should have been a boy.” Or­phaned as a child af­ter her mother died and her fa­ther was beaten to death by a white guard with a base­ball bat at Mary­land’s Crownsville Hos­pi­tal for the Ne­gro In­sane, where he had been com­mit­ted, pos­si­bly for hav­ing had ty­phoid fever, Mur­ray taught her­self to read at five, grad­u­ated from high school at fif­teen, and was de­nied at­ten­dance at her pre­ferred col­lege on the ba­sis of her race, then de­nied at­ten­dance at Co­lum­bia Uni­ver­sity in New York be­cause of her sex. The Uni­ver­sity of North Car­olina, which her slave­hold­ing an­ces­tors had at­tended, turned her away for be­ing Black, but Har­vard Law School wouldn’t take her for be­ing a woman. But none of this would pre­clude Mur­ray from be­com­ing the only woman in her class at Howard Uni­ver­sity, where she grad­u­ated first in the class of 1944 and served as its vale­dic­to­rian. She was the first African Amer­i­can to be awarded a doc­tor­ate in law from Yale Uni­ver­sity. Her 746-page book, States’ Laws on Race and Color, a com­pen­dium of state seg­re­ga­tion laws writ­ten for the Methodist Church in 1950, was de­scribed by Thur­good Mar­shall as “the bible” of Brown v. Board of Ed­u­ca­tion. As a board mem­ber of the ACLU, Mur­ray wrote (with Dorothy Kenyon) the brief in White v. Crook (1966), which led to the demise of the all-white, all-male jury sys­tem in Al­abama. Mur­ray was a decades-long con­fi­dante of Eleanor Roo­sevelt’s, earned four ad­vanced de­grees, served as Cal­i­for­nia’s first Black deputy at­tor­ney gen­eral in 1946, then served on Pres­i­dent John F. Kennedy’s newly cre­ated Pres­i­dent’s Com­mis­sion on the Sta­tus of Women. To boot, Mur­ray was an ac­com­plished poet and mem­oirist. I like to imag­ine Mur­ray look­ing around to­day, spot­ting vot­ing rights ac­tivist Stacey Abrams, then think­ing, “Ro­mance nov­els! I could have writ­ten ro­mance nov­els too.”

Mur­ray lob­bied al­most sin­gle-hand­edly to en­sure the word “sex” was in­serted into Ti­tle VII of the Civil Rights Act of 1964; then in 1971 she penned a let­ter to Pres­i­dent Richard Nixon, sug­gest­ing her­self for a seat on the US Supreme Court. The his­to­rian Su­san Ware has writ­ten, “It may be that when his­to­ri­ans look back on twen­ti­eth-cen­tury Amer­ica, all roads will lead to Pauli Mur­ray.” Yet de­spite a film about her that was re­leased in 2021, that pre­dic­tion has largely failed to come true. Few peo­ple have had as much im­pact on the mod­ern le­gal sys­tem as Mur­ray, yet some­how the law alone wasn’t ca­pa­cious enough to hold all that Mur­ray was or wanted to be. Af­ter years of teach­ing law at Bran­deis, and hav­ing fi­nally se­cured ten­ure there, Mur­ray re­signed to en­ter New York’s Gen­eral The­o­log­i­cal Sem­i­nary. In 1977, she be­came the first African Amer­i­can woman to be vested as an Epis­co­pal priest. In 2012, twenty-seven years af­ter her death, Mur­ray was des­ig­nated a saint by the Epis­co­pal Church. In 2017, Yale Uni­ver­sity named a res­i­den­tial col­lege for un­der­grad­u­ates for her.

Why does a book about women and the law open with some­one nearly for­got­ten by both? And why does a book about women and the law open with some­one who found both those cat­e­gories so sti­fling as to be ul­ti­mately un­in­hab­it­able? Per­haps be­cause while ev­ery­one has heard of the for­mer Supreme Court jus­tice Ruth Bader Gins­burg and her pi­o­neer­ing path through con­sti­tu­tional his­tory, Mur­ray’s le­gal story strikes me as in fact more com­mon, and maybe even more en­dur­ing, with its zigzag­ging tra­jec­tory, the wins and re­ver­sals and near ob­scu­rity. Through­out his­tory, the women who strived to re­shape le­gal regimes, whether from the in­side or—as was far more fre­quently the case—from with­out, did pre­cisely what Mur­ray did: dig­ging in, writ­ing let­ters, learn­ing the case law, get­ting over re­jec­tion, fight­ing bias in the pro­fes­sion, form­ing coali­tions, build­ing move­ments. This was some­times a mat­ter of per­sonal am­bi­tion, and Mur­ray was, to be sure, per­son­ally am­bi­tious, but it was also a ques­tion of ne­ces­sity, of per­sis­tence, of—as Mur­ray would put it—“a dream / haunt­ing as am­ber wine.”

None of our le­gal and con­sti­tu­tional progress hap­pened in a straight path from dark to light, al­though that is the nar­ra­tive we fa­vor. It is and has al­ways been a chiaroscuro jour­ney through a le­gal sys­tem de­signed chiefly by men, for men, for the prin­ci­pal pur­pose of ad­vanc­ing the lot of men. The his­to­ries of the women who, against those cur­rents, chose to cen­ter their pro­fes­sional lives on the law “are likely to be sto­ries of piece­meal progress and cir­cum­scribed suc­cess,” as the fem­i­nist scholar Carol Sanger put it. And yet Mur­ray’s is a story of nei­ther piece­meal progress nor cir­cum­scribed suc­cess. It’s sim­ply that oth­ers took credit for the progress, and many of the suc­cesses came only when Mur­ray was no longer alive to wit­ness them. That, too, may be a more au­then­tic story about women in the le­gal sys­tem than the tales we tell about men. It is cer­tainly the story of the women’s le­gal re­sis­tance of the Trump years. It will not be the story of the years ahead.

It’s not just that le­gal his­tory rep­re­sents a pen­du­lum swing­ing back and forth be­tween ex­pan­sion and con­trac­tion of free­doms and rights, then, but that, like a mal­lard mov­ing across a lake, you can al­ways see men glid­ing ef­fort­lessly above the wa­ter while women work fu­ri­ously just un­der­neath the sur­face. This story, then, is of the women who dropped ev­ery­thing, changed course, took pay cuts, missed kids’ recitals, and pad­dled fu­ri­ously to pro­tect con­sti­tu­tional democ­racy in the four years dur­ing which Don­ald Trump was pres­i­dent, from 2017 to 2021. And it opens with Pauli Mur­ray, a hero who wasn’t a hero, a star who wasn’t a star, an elite so ul­ti­mately dis­ap­pointed by elites that she turned for the last decade of her life to God and faith and pub­lic ser­vice. Mur­ray carved much of the con­sti­tu­tional world in which we cur­rently re­side out of rough rock face with her bare fin­gers. That one lone woman could do all this was not be­cause the world was smaller back then, or its prob­lems less ex­trav­a­gant, but be­cause so much needed to be done, and be­cause what­ever the world and coun­try thought of her, Mur­ray knew her­self ca­pa­ble of do­ing the work. Con­gress­woman Eleanor Holmes Nor­ton, in her in­tro­duc­tion to Pauli Mur­ray’s au­to­bi­og­ra­phy Song in a Weary Throat, wrote that Mur­ray “lived on the edge of his­tory, seem­ing to pull it along with her.”

Those are words we could use to de­scribe the women who came be­fore Mur­ray, and also some of those you will meet in the pages of this book. And, like Mur­ray, they have changed his­tory none­the­less. These women lawyers, who fought to beat back the racism, sex­ism, trans­pho­bia, xeno­pho­bia, cor­rup­tion, and ca­sual vi­o­lence that took root and flour­ished dur­ing the Trump pres­i­dency and that still thrive in the wake of his de­feat in 2020, did it for the same rea­sons Mur­ray did it: for the dream of a more demo­cratic fu­ture. Through the dark and the light, Mur­ray paved the way for Ruth Bader Gins­burg, who paved the way for the women in this book. Through the dark and the light, the sub­jects of this book are paving the way for our chil­dren.

As this book was headed to the print­ers, the Supreme Court voted to over­turn Roe v. Wade in the sum­mer of 2022. The ma­jor­ity opin­ion evinced broad so­lic­i­tude for the rights of un­born ba­bies and state leg­is­la­tors. The lives of preg­nant peo­ple were all but in­vis­i­ble to Samuel Al­ito, writ­ing for the ma­jor­ity, who cited with some de­light a sev­en­teenth-cen­tury ju­rist who ap­proved witch-burn­ings. Even be­fore that opin­ion was for­mally filed, and even as it faced re­draft­ing, states raced to pass laws crim­i­nal­iz­ing abor­tion and al­lowed cit­i­zen vig­i­lantes the power to en­force them. Emer­gency rooms turned away women who were mis­car­ry­ing; a ten-year-old rape vic­tim in Ohio had to cross state lines to ter­mi­nate a preg­nancy; clin­ics re­fused to treat women from states with abor­tion bans. Gone was the talk of help­ing preg­nant women make bet­ter choices. In a flash, states were en­act­ing ver­sions of “Lock her up.” The same women who’d spent four years beat­ing back fam­ily sep­a­ra­tion poli­cies and vote sup­pres­sion would again be tasked with mak­ing women vis­i­ble, en­sur­ing their equal­ity, and safe­guard­ing their votes.

I main­tain that there is a spe­cial re­la­tion­ship be­tween women and the law, and while one is loath to es­sen­tial­ize, this may be be­cause law is the most con­ven­tional way with which to ef­fect rad­i­cal change. Back when a prom­i­nent con­sti­tu­tional law pro­fes­sor learned that I was writ­ing this book, he asked why I would waste time and cred­i­bil­ity writ­ing a “pink book about the law.” But of course the law it­self has al­ways dic­tated what women could be or do or wish for. The law has al­ways been a pink book, only one writ­ten by men. Over two decades spent cov­er­ing the courts, I’ve come to be­lieve that women have a deep con­nec­tion to the jus­tice sys­tem, the Con­sti­tu­tion, and the project of equal­ity, and that this re­la­tion­ship ac­tu­ally dates back cen­turies. It’s just that it’s been a se­cret love af­fair and one not al­ways clocked by the men who wrote his­tory. In the ab­sence of ac­cess to brute power or brute money or, well, brute bru­tal­ity, the law has long been the best or­der­ing force to pro­mote fair­ness and equal­ity and dig­nity for women. Women, non­bi­nary peo­ple, the poor, im­mi­grants, and male mi­nori­ties and men of color in Amer­ica live in­side a split screen, a dual con­scious­ness, eter­nally aware of how much we have se­cured and how quickly it can be snatched away.

Long be­fore a woman was ad­mit­ted to the prac­tice, women were deeply en­meshed with the le­gal regime. And long be­fore women had ac­cess to power, they had ac­cess to jus­tice. That’s why Por­tia gets all the best lines in The Mer­chant of Venice. It’s why Pauli Mur­ray fig­ured out the de­seg­re­ga­tion strat­egy that would be­come Brown v. Board of Ed­u­ca­tion for a law school pa­per years be­fore it be­came a le­gal brief. Fa­mous women lawyers are few and far be­tween, even in lit­er­a­ture. The bib­li­cal Deb­o­rah was a judge, al­though that term likely meant “war­rior chief­tain” more than dis­pas­sion­ate ar­biter of le­gal out­comes. Shake­speare’s Por­tia fa­mously dressed up as a male at­tor­ney, os­ten­si­bly to de­liver a stir­ring ora­tion about the es­sen­tial qual­ity of mercy. But we should note for the sake of ac­cu­racy that Por­tia was in fact a gor­geous heiress, dressed up as a lawyer as part of her larger plot to snag a hus­band, thus ren­der­ing The Mer­chant of Venice the first true pink book about the law.

Women have known since the found­ing that lawyers would dic­tate their role in the Re­pub­lic. Abi­gail Adams cau­tioned her hus­band, John, hard at work with the Con­ti­nen­tal Con­gress in 1776, to carve out a place for women. “And, by the way,” she wrote to him, “in the new code of laws which I sup­pose it will be nec­es­sary for you to make, I de­sire you would re­mem­ber the ladies and be more gen­er­ous and fa­vor­able to them than your an­ces­tors. Do not put such un­lim­ited power into the hands of the hus­bands. Re­mem­ber, all men would be tyrants if they could.” “Lock her up,” in epis­to­lary form.

In the United States, even af­ter women had se­cured the right to at­tend law school or take the bar exam, they were still barred from the prac­tice of law by dint of statute and stereo­type. Af­ter Myra Brad­well took her quest to be­come a prac­tic­ing at­tor­ney all the way to the US Supreme Court in 1873, that court up­held an Illi­nois law ex­clud­ing women from li­cen­sure, with Jus­tice Joseph Bradley fa­mously writ­ing in a con­cur­rence that “civil law, as well as na­ture her­self, has al­ways rec­og­nized a wide dif­fer­ence in the re­spec­tive spheres and des­tinies of man and woman. Man is, or should be, woman’s pro­tec­tor and de­fender. The nat­u­ral and proper timid­ity and del­i­cacy which be­longs to the fe­male sex ev­i­dently un­fits it for many of the oc­cu­pa­tions of civil life.”

Amer­i­can women were ac­tu­ally granted ac­cess to the prac­tice of medicine long be­fore they were al­lowed to be lawyers, in part be­cause doc­tor­ing seemed a nat­u­ral out­growth of a woman’s in­nate care­giv­ing func­tion. Lawyer­ing, on the other hand, was seen as rough-and-tum­ble men’s work, but also as the gate­way to real power. As Bar­bara J. Har­ris has writ­ten, “Fe­male doc­tors could claim that their ca­reers were nat­u­ral ex­ten­sions of women’s nur­tu­rant, heal­ing role in the home and that they pro­tected fem­i­nine mod­esty by min­is­ter­ing to mem­bers of their own sex. By con­trast, women lawyers were clearly in­trud­ing in the pub­lic do­main ex­plic­itly re­served for men.” In short, women were given ac­cess to the prac­tice of medicine for the same rea­sons they were al­lowed to be nurses, teach­ers, nan­nies, and cooks. But to be al­lowed to tin­ker with the ma­chin­ery of democ­racy, and gov­er­nance it­self, would have af­forded them far too much ac­cess to sys­temic change. It’s not an ac­ci­dent at all that in Amer­ica, in the late nine­teenth cen­tury, the women’s suf­frage move­ment worked in­ti­mately along­side the move­ment to ad­mit women to the prac­tice of law. As this book will show, win­ning law­suits is a part of what women lawyers must do, but re­shap­ing the law it­self is the only way to en­dur­ing change.

Even with­out ac­cess to power or pres­tige, Amer­i­can women have been on the front lines of ev­ery civil rights bat­tle, from abo­li­tion of slav­ery, to equal suf­frage, to race and gen­der equal­ity. But to be on the front lines at a time in which women fi­nally helm law prac­tices and civil rights projects and sit on the bench is what makes this a dif­fer­ent story—and a new one. Women lawyers not only hacked a path­way through the desta­bi­liz­ing poli­cies and pro­grams of the Trump era but also set the stage for its demise. In the days around Trump’s in­au­gu­ra­tion, as early as Jan­u­ary 2017, women lawyers across the coun­try, un­known to one an­other, were or­ga­niz­ing to be­come the spine of the le­gal push­back against Trump. Women’s anger by it­self can be­come par­a­lyz­ing and iso­lat­ing. But some­thing ex­tra­or­di­nary hap­pens when fe­male anger and lawyer­ing meet.

Be­yond al­most any­thing else, one cen­tral ob­jec­tive of Trump’s op­po­nents lay in a dogged re­fusal to ac­cept and to nor­mal­ize ter­ri­ble in­jus­tice, and women lawyers re­tained a unique ca­pac­ity to hang on to hor­ror in the face of new out­rages on an al­most daily ba­sis. Ev­ery woman in this book was de­rided as over­re­act­ing at some point. But the law gives us tools to chron­i­cle and mark the slow ero­sion of norms and to de­mand ac­count­abil­ity. The slow progress of the law works against the im­pulse to for­get the past and move on. And in a na­tion that could make an art form of for­giv­ing and for­get­ting, these law­suits de­manded re­mem­brance and hold­ing to ac­count. Main­tain­ing a base­line rest­ing state of “hys­te­ria” over four years is nearly im­pos­si­ble. But jus­tice it­self de­mands a re­fusal to nor­mal­ize the ab­hor­rent, and women ap­pear to mind be­ing dis­missed as histri­onic less than men do. Per­haps be­cause af­ter cen­turies of be­ing told it’s all in our heads, we’ve learned to smile and press on.

As Trump peo­pled his ad­min­is­tra­tion with white men—some of whom were later de­ter­mined to be abusers—and the wealthy wives of white men, as he filled the fed­eral bench with over­whelm­ingly white male judges, and as he named white men to be the bulk of his US at­tor­neys, he hap­pily con­signed most of the women around him to shift dresses and kit­ten heels. As quickly as that hap­pened, Amer­i­can women un­der­stood they would have to be louder, more vis­i­ble, more en­gaged with pol­i­tics, and more or­ga­nized. That was the im­pe­tus for the Women’s March that took place on Jan­u­ary 21, 2017—the largest sin­gle day of protest in US his­tory. And as the le­gal sys­tem be­came the mech­a­nism by which the Trump fam­ily, for­eign oli­garchs, and wealthy donors en­riched them­selves, it quickly fell to women to pro­tect the poor, the im­mi­grants, the chil­dren, and the vul­ner­a­ble who were ei­ther overtly tar­geted or merely left be­hind. Hap­pily, the more in­vis­i­ble we be­came to the ad­min­is­tra­tion, the more vis­i­ble we would be­come to one an­other. When the Trump pres­i­dency ul­ti­mately led to the hor­rors of Jan­u­ary 6, 2021, it was, again, no ac­ci­dent that some of his staunch­est loy­al­ists to re­sign in protest were women, in­clud­ing his ed­u­ca­tion sec­re­tary, Betsy De­Vos; his trans­porta­tion sec­re­tary, Elaine Chao; and Stephanie Gr­isham, the First Lady’s chief of staff. At some point, the sym­me­try had be­come in­escapable. Trump was an agent of vi­o­lence when he as­sumed of­fice and an agent of vi­o­lence when he re­fused to de­part. For many women, the vi­o­lence, the law­less­ness, was the break­ing point.

I in­ter­viewed Jus­tice Ruth Bader Gins­burg very shortly be­fore the Supreme Court shut down for COVID in 2020, and she as­sured me she was only the sec­ond smartest woman in her class at Har­vard Law School. For all the rock-star sta­tus she achieved, she didn’t think she was spe­cial so much as dili­gent and stub­born. The women you will meet here are sim­i­larly spe­cial be­cause of what they did and how they did it, but like RBG be­fore them, they don’t think they are ex­tra­or­di­nary. But I do. These are just a se­lect few ex­am­ples of hun­dreds and thou­sands of women lawyers and ac­tivists who did sim­i­lar things in dif­fer­ent fields, and also dif­fer­ent things in sim­i­lar fields. I shine a light on their law­suits and or­ga­ni­za­tions and in­sti­tu­tions be­cause they looked around af­ter Don­ald J. Trump was elected in 2016 and saw that many things needed do­ing and that they them­selves were ca­pa­ble of do­ing them. They were as­sisted in this work by staff at­tor­neys, in­terns, law clerks, law stu­dents, part­ners, vol­un­teers, and more. For ev­ery woman who will be re­mem­bered for the work of re­sist­ing Trump and Trump­ism in Amer­ica, there will be thou­sands who are not re­mem­bered and many we for­got to re­mem­ber.

The en­dur­ing les­son of the Trump years and be­yond is that the law is a frag­ile ar­range­ment of norms, sug­ges­tions, and rules. It is not, we learned, self-en­forc­ing. Ig­nore a con­gres­sional sub­poena and it seems noth­ing hap­pens if the at­tor­ney gen­eral is in your pocket. Vi­o­late the Hatch Act and ev­ery­one might just shrug. Sub­poe­nas are for suck­ers, and pres­i­den­tial par­dons are for loy­al­ists. The pre­car­i­ous­ness of such a sys­tem was, and in­deed still is, re­vealed on a daily ba­sis. Yet one of the rea­sons the law re­mains such a pow­er­ful force, even in a cul­ture that re­wards fame and brand iden­ti­fi­ca­tion, is that on its best days, the law re­ally does see and honor ev­ery­one, or at least it strives to. You don’t al­ways win be­cause you’re rich or im­por­tant. De­spite the le­gal chaos of the four years of the Trump pres­i­dency, le­gal pro­cesses are scrupu­lously for­mal and de­mand­ing. Slop­pi­ness, of work prod­uct or of thought, is lethal. As we will see, the ad­min­is­tra­tion lost time and again, even be­fore sym­pa­thetic judges, be­cause le­gal niceties were ig­nored. One of the rea­sons Trump even­tu­ally col­lapsed un­der the forces of law and democ­racy, in the courts and at the bal­lot box, is that no­body—not the pres­i­dent and not the wealth­i­est of the wealthy—can per­pet­u­ally evade the rule of law in Amer­ica. At least not yet. Not al­ways, not for ev­ery­one, and maybe not for­ever, but le­gal ac­count­abil­ity is still avail­able and it’s what we must still fight for. There is just one canon­i­cal text in a coun­try that guar­an­tees lib­erty and equal­ity, de­spite dif­fer­ences in in­come, power, gen­der, and race. That text is the Bill of Rights. And some­how, for now, that was enough.

The law is a prov­ing ground that re­wards pa­tience and in­duce­ment. It was from Jus­tice Gins­burg, and her sis­ter in the law Jus­tice San­dra Day O’Con­nor, that we learned about the slow and strate­gic de­ploy­ment of per­sua­sion to bring about change on the courts them­selves. It was from them we learned that hav­ing a seat at the coun­sel ta­ble is a step to­ward hav­ing a seat on the bench, which is a step from achiev­ing a seat on the high­est court in the land. And it is from them we learned that power isn’t al­ways dra­matic and fu­ri­ous; it can also be in­sti­tu­tional and en­dur­ing.

Make no mis­take. There were a good num­ber of women lawyers who worked to im­ple­ment some of the Trump era’s most nox­ious im­per­a­tives—from fam­ily sep­a­ra­tion poli­cies, to the rescis­sion of De­ferred Ac­tion for Child­hood Ar­rivals, to the ban on trans­gen­der ser­vice mem­bers. In­deed, since Trump has been side­lined, lady lawyers have served in­te­gral roles in bring­ing mer­it­less chal­lenges to the re­sults of the 2020 elec­tion; they have ha­rassed non­par­ti­san elec­tion of­fi­cials into re­tire­ment and helped fo­ment the vi­o­lent in­sur­rec­tion of Jan­u­ary 2021. But just as there is no doubt that women played a cru­cial role in de­feat­ing Trump­ism af­ter 2016, women at­tor­neys were es­sen­tial to the story of women, Don­ald Trump, and the rule of law. Like Pauli Mur­ray, they might not have been rec­og­nized. Like Mur­ray’s, their work forms an in­vis­i­ble web of small ac­tions, con­nec­tions, awak­en­ings, con­fronta­tions, and change that held the coun­try to­gether as oth­ers sought to tear it apart.

This, then, is why I open with Pauli Mur­ray. Amer­i­cans, as the fem­i­nist po­lit­i­cal philoso­pher Re­becca Sol­nit has ob­served, are some­times too apt to suc­cumb to the “Great Man” the­ory of so­cial change, even when that great man is a fe­male. We spent too many of the Trump years be­liev­ing that Robert Mueller, then Adam Schiff, then Jamie Raskin, and then some­one else would sin­gle-hand­edly save us in a blaze of cow­boy­ish hero­ism. But in so do­ing, we of­ten lost track of the ev­ery­day he­roes in our midst. As Sol­nit put it in her 2019 es­say “When the Hero Is the Prob­lem,” “We like our lone and ex­cep­tional he­roes, and the drama of vi­o­lence and virtue of mus­cle, or at least that’s what we get, over and over, and in the course of get­ting them we don’t get much of a pic­ture of how change hap­pens and what our role in it might be, or how or­di­nary peo­ple mat­ter.”

Pauli Mur­ray was, to be sure, the very op­po­site of “or­di­nary peo­ple.” But even the lone hero the­ory of Amer­i­can so­cial change opted to ig­nore her con­tri­bu­tions, to val­orize those who came along later, built on her work, and did things she had done years ear­lier. The fact of Mur­ray’s al­most com­plete era­sure from Amer­i­can con­sti­tu­tional and civil rights his­tory sug­gests two things: not only that the “Great Man” the­ory of his­tory and so­cial change ig­nores all of the ways in which deep con­nec­tion, lis­ten­ing, or­ga­niz­ing, col­lec­tive ac­tion, and sto­ry­telling can bring about wide­spread change, but also that such the­o­ries fail, in so many ways, to ac­count even for the heroic and great in­di­vid­u­als who re­ally do, nearly sin­gle-hand­edly, re­wire the world.

This is the story of the in­vis­i­ble web that binds these lawyers, not just to one an­other, but to a set of time­less con­sti­tu­tional val­ues: dig­nity, equal­ity, jus­tice, law, truth, and rea­son. It’s the story of strong women who stepped up, even though the prac­tice of law typ­i­cally re­wards cau­tion. It’s the story of women who for the most part had griev­ous doubts about their own ca­pa­bil­i­ties but who were will­ing to place bound­less con­fi­dence in a le­gal sys­tem that would have ex­cluded them just a few decades ear­lier. Some of them were ter­ri­fied, and oth­ers were san­guine. Few of them could spare the time to work­shop ideas or to con­sider what bold ac­tions would do to their ca­reers. Maybe it’s also the story of what it takes for women to leap be­fore they look: a net made of statutes and rules and con­ven­tions so weighty and sub­stan­tial that it seemed as if it might just hold, de­spite ev­ery­thing.

In coun­tries birthed in sto­ries of princesses, kings, and wiz­ards, all power re­sides in the pow­er­ful. But in a con­sti­tu­tional democ­racy, en­dur­ing power lies in the peo­ple who step into the fight. And by that yard­stick, the women who stood up to de­fend the Con­sti­tu­tion in the Trump era, and who re­main in the fight for democ­racy and equal­ity to­day, held the line with mun­dane pe­ti­tions for cer­tio­rari and ex­haus­tively for­mat­ted ap­pendixes. When the framers of the Con­sti­tu­tion con­ceived of a na­tion built on the core demo­cratic val­ues of free­dom and equal­ity, they couldn’t have sus­pected that women would be at the heart of the fight to pre­serve them some two cen­turies later. In­deed, they were quite de­ter­mined to en­sure—Abi­gail Adams not­with­stand­ing—that men had all the rights and women had the pro­tec­tion of men. But in some ways, the women who fought to pre­serve equal­ity and jus­tice and pri­vacy and dig­nity in the Trump era were per­fectly lo­cated to in­herit the man­tle of rad­i­cal con­sti­tu­tion­al­ism cre­ated by James Madi­son, Thomas Jef­fer­son, and Ben­jamin Franklin. They teth­ered them­selves to a sys­tem that man­aged to hold, un­der great strain.

These 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. I be­lieve that cow­boys are all well and good, but change doesn’t re­sult ex­clu­sively from the bi­ogra­phies of a Guy in a Hat Who Did a Thing. This book is thus ul­ti­mately less about cel­e­brat­ing the Great Men, or even the Great Women, from a time in which democ­racy fal­tered and al­most fell, than about sur­fac­ing jus­tice, which rises and falls on the shoul­ders of ev­ery­one and which must ev­ery day be bent by each of us to­ward the dig­nity and hu­man­ity of us all.

2

The First No

Sally Yates: The Gov­ern­ment Lawyer

By long-stand­ing ne­ces­sity or habit, the cli­mac­tic scene in at least half of our great­est ro­man­tic movies takes place at an air­port. From Casablanca to Friends, the de­par­ture gate is a dra­matic proxy for wrench­ing good­byes and heart­felt truths. But air­ports aren’t just the mod­ern-day sym­bol of ro­mance and new be­gin­nings, what wharves and piers were for pas­sion­ate Vic­to­rian adven­ture-seek­ers. Air­ports are also the phys­i­cal man­i­fes­ta­tion of West­ern lib­erty, free­dom, hu­man con­nec­tion, and op­por­tu­nity. What the Statue of Lib­erty once rep­re­sented in New York Har­bor now plays out daily at the bag­gage claim in LAX: im­mi­grants and asy­lum seek­ers, cli­mate and war refugees, stu­dents and teach­ers, lovers and fam­i­lies re­united amid hopes of a bet­ter life, equal­ity, and dig­nity.

But that all changed, sud­denly, a week into Don­ald Trump’s pres­i­dency. On Jan­u­ary 27, 2017, the newly in­au­gu­rated Trump signed into law an ex­ec­u­tive or­der ban­ning en­try into the United States by im­mi­grants and refugees from Iran, Iraq, Libya, So­ma­lia, Su­dan, Syria, and Yemen. These are all coun­tries with pop­u­la­tions that were over­whelm­ingly (in most cases, more than 99 per­cent) Mus­lim. Other coun­tries—in­clud­ing Saudi Ara­bia—that had in fact sent ac­tual ter­ror­ists to do real harm to the United States on 9/11 were not on that list. There was no co­her­ent ex­pla­na­tion at the time for why these par­tic­u­lar na­tions were se­lected or why oth­ers were omit­ted. And be­cause the or­der was rushed out with­out proper vet­ting, or se­ri­ous co­or­di­na­tion be­tween gov­ern­ment agen­cies, the new rules some­how also barred en­try by any non-US cit­i­zen from these coun­tries, in­clud­ing stu­dents, vis­it­ing pro­fes­sors, tourists, and green card hold­ers.

On for­mally sign­ing the orig­i­nal ex­ec­u­tive or­der, Pres­i­dent Trump was quite clear that it was in­tended for Mus­lim trav­el­ers. As he signed it, he stage-whis­pered, with a wink at the for­mal ti­tle, “Pro­tect­ing the Na­tion from For­eign Ter­ror­ist En­try into the United States,” say­ing, “We all know what that means.” He also clar­i­fied what that meant on the day of the roll­out by promis­ing in a tele­vi­sion in­ter­view that his ad­min­is­tra­tion would now give Chris­tian refugees pri­or­ity over Mus­lim refugees. Just in case there was some­how still any lin­ger­ing con­fu­sion about whether this was in­deed the long-touted “Mus­lim ban,” Rudy Giu­liani, a vice-chair of the pres­i­dent’s tran­si­tion team, hastily con­firmed on an­other tele­vi­sion hit that the ex­ec­u­tive or­der im­ple­mented the pres­i­dent’s di­rec­tive to “do” a “Mus­lim ban” “legally.”

But be­hind the scenes at the White House, there were ques­tions. Trump’s act­ing at­tor­ney gen­eral at the time was Sally Quil­lian Yates, a thirty-year vet­eran of the Jus­tice De­part­ment and a for­mer US at­tor­ney from Geor­gia. Born into a fam­ily of lawyers and Methodist min­is­ters, Yates is an in­sti­tu­tion­al­ist’s in­sti­tu­tion­al­ist. Her fa­ther was a judge on the Geor­gia Court of Ap­peals, and her fa­ther’s fa­ther sat on the Geor­gia Supreme Court. Yates’s sis­ter is a talk show host for a con­ser­va­tive ra­dio sta­tion in Al­abama, and her hus­band is a lawyer who runs a school in At­lanta for chil­dren with speech, lan­guage, and learn­ing dis­abil­i­ties. Yates once told The New Yorker’s Ryan Lizza about her own lin­eage as a path­break­ing Amer­i­can lady lawyer: Her pa­ter­nal grand­mother, Tabitha Quil­lian, was one of the first women to be ad­mit­ted to the Geor­gia bar. In 1934, Quil­lian had been study­ing un­der an­other at­tor­ney, but with­out ever telling her hus­band. Ac­cord­ing to fam­ily lore, Yates’s grandpa learned about it when he found her name in the news­pa­per. Yates told Lizza, “My grand­fa­ther turned to her and said, ‘Look at that! There’s an­other Tabitha Quil­lian who passed the bar.’ ”

“She would have been a heck of a lawyer. But women weren’t hired as lawyers back then. It just wasn’t done,” Yates ex­plained to The At­lanta Jour­nal-Con­sti­tu­tion. “So in­stead, she was a sec­re­tary, first to my grand­fa­ther, who was a lawyer, and then for my fa­ther and his brother and their prac­tice.” But, Yates noted, her grand­mother didn’t com­plain. “In­ter­est­ingly, I don’t re­mem­ber my grand­mother ever com­plain­ing about the fact that she was a sec­re­tary. Look­ing back on it, had I been her, I would have re­sented the heck out of it. I re­al­ized that tenac­ity counts for a lot. She be­came a lawyer with­out sup­port sys­tems. I thought to my­self that if she did that, how hard could it be for me?”

Sally Yates faced a few ob­sta­cles of her own. In 1982, she grad­u­ated magna cum laude from the Uni­ver­sity of Geor­gia with a jour­nal­ism de­gree, then at­tended the Uni­ver­sity of Geor­gia School of Law, grad­u­at­ing in 1986. She im­me­di­ately went to work in pri­vate prac­tice at King & Spald­ing, a big law firm in At­lanta. She didn’t love big law. But at her firm, Yates tried her first pro bono, or un­paid, case in 1987. She rep­re­sented Lovie Mor­ri­son Jones, an African Amer­i­can woman in her nineties whose land had been sold out from un­der her, with­out her knowl­edge, by a de­vel­oper look­ing to build a sub­di­vi­sion. Jones hadn’t reg­is­tered the deed be­cause she didn’t trust the gov­ern­ment. But the land had been given to her fam­ily, and Jones had worked it for years with the deed tucked away in her cloth­ing. Yates pulled to­gether a de­fense, pre­vailed at a jury trial, and was so trans­formed by the ex­pe­ri­ence that she de­cided to move in her late twen­ties to a crim­i­nal po­si­tion at the Jus­tice De­part­ment. In 1989, Bob Barr, then the US at­tor­ney for the North­ern Dis­trict of Geor­gia and a staunch anti-Clin­ton Re­pub­li­can, gave her a job. As Yates later told Re­code De­code’s Kara Swisher, “I didn’t go for the right rea­sons. In fact, I wouldn’t have hired my­self later. I went be­cause I wanted more hands-on ex­pe­ri­ence, I wanted to try cases on my own. In big law firms, cases are staffed with a dozen peo­ple. . . . The im­mense re­spon­si­bil­ity you have at the De­part­ment of Jus­tice, rep­re­sent­ing the peo­ple of the United States . . . you are re­spon­si­ble for seek­ing jus­tice and equal jus­tice in this coun­try. So, I was to­tally un­pre­pared for . . . how to­tally taken I would be with the mis­sion.”

It was very dif­fer­ent when she started, she told Swisher: “Look, it was the late ’80s when I started at the US At­tor­ney’s of­fice in At­lanta. I wanted to go into the or­ga­nized crime sec­tion, but they wouldn’t put me in that sec­tion. The first as­sis­tant, which was the top ca­reer per­son there, thought that it was kind of too rough and tum­ble for a woman to go into or­ga­nized crime—I know, I know, that’s so pa­tron­iz­ing—so he put me in the white-col­lar sec­tion, be­cause he thought that I would not be tough enough.” It was a long way from her grand­mother in some ways, and in some ways not enough: “There weren’t very many women on the crim­i­nal side. I sup­pose I was a tad ag­gres­sive, which I have learned with one of the US at­tor­neys there, I re­mem­ber go­ing to a meet­ing and be­fore we walked into this meet­ing, the US at­tor­ney looked at me and said, ‘I re­ally think that the agency would ap­pre­ci­ate a more de­mure woman.’ ”

Iron­i­cally, com­pared with many of the other women at­tor­neys in this book, Yates codes as pretty de­mure. She doesn’t swear, she doesn’t shout, and she isn’t apt to lose her tem­per. She also talks about the rule of law and the DOJ as though she were in a Frank Capra movie, de­scrib­ing sa­cred be­liefs and in­sti­tu­tions she prizes right down to her bones.

As a US at­tor­ney with vir­tu­ally no back­ground in crim­i­nal law, Yates slowly racked up a raft of high-pro­file cases, in­clud­ing win­ning a cor­rup­tion case against At­lanta’s first African Amer­i­can coun­cil­man and sign­ing the plea deal for a life sen­tence with Eric Rudolph, the At­lanta Olympics bomber. In a 2013 in­ter­view with The At­lanta Jour­nal-Con­sti­tu­tion, Yates re­called, “The Rudolph case was one of the most in­ter­est­ing cases I’ve ever done. One of the great lessons is that no­body is a suc­cess on their own. The case was an ex­am­ple of a whole lot of peo­ple com­ing to­gether to try to solve that case.”

In that in­ter­view, Yates took the time to sur­face the un­sung teams that go into solv­ing com­plex crim­i­nal cases: “I don’t care how good a pros­e­cu­tor you are. If you hadn’t had re­ally ex­tra­or­di­nary FBI and ATF (Bu­reau of Al­co­hol, To­bacco, Firearms and Ex­plo­sives) agents who were in­cred­i­bly ded­i­cated and worked day in and day out lit­er­ally for years, it wouldn’t mat­ter how good you are. Of all the cases I’ve done, that’s the great­est ex­am­ple of the power of a team.”

Yates also be­lieved pas­sion­ately—even ro­man­ti­cally—in the idea of a non­par­ti­san De­part­ment of Jus­tice. As she would put it to Swisher, “Un­til the Obama Ad­min­is­tra­tion, I was a ca­reer civil ser­vant, so you stay, re­gard­less of ad­min­is­tra­tions, and 99.9 per­cent of the peo­ple at the De­part­ment of Jus­tice are ca­reer.” In 2009, Barack Obama thus tapped Yates to be the US at­tor­ney for the North­ern Dis­trict of Geor­gia. She was con­firmed unan­i­mously. And when Eric Holder stepped down as Obama’s at­tor­ney gen­eral in 2015, Yates was tagged to be­come the new deputy at­tor­ney gen­eral un­der Loretta Lynch. Even af­ter Holder left the De­part­ment of Jus­tice, Obama kept ask­ing him, “What does Sally think?” In March 2015, her con­fir­ma­tion hear­ing quickly be­came a strange fore­shad­ow­ing of what would hap­pen af­ter Obama left of­fice.

Yates was grilled by Sen­ate Re­pub­li­cans about her in­de­pen­dence and her ca­pac­ity to act as a check on Pres­i­dent Obama, to whom she would have to an­swer. In­deed, it was the then sen­a­tor Jeff Ses­sions—who would later be­come Trump’s first at­tor­ney gen­eral—press­ing Yates hard­est in her hours-long hear­ing, about her ca­pac­ity to stand up to a too-pow­er­ful pres­i­dent: “Do you think the at­tor­ney gen­eral has a re­spon­si­bil­ity to say no to the pres­i­dent if he asks for some­thing that’s im­proper?” Ses­sions urged. Yates replied that the deputy at­tor­ney gen­eral “has an obli­ga­tion to fol­low the law and the Con­sti­tu­tion, and to give their in­de­pen­dent le­gal ad­vice to the pres­i­dent.” She was con­firmed by a mar­gin of 84–12. Sen­a­tor Jeff Ses­sions, who would prove nearly in­ca­pable of stand­ing up to Pres­i­dent Trump when he be­came US at­tor­ney gen­eral in 2017, voted no.

• • •

I met Sally Yates in 2016, when she was head­ing up Pres­i­dent Obama’s ef­forts to re­form Amer­i­can pris­ons, and she struck me as an archetype of a gov­ern­ment at­tor­ney. She talks softly, with a slight south­ern drawl, and dresses in the con­ser­va­tive suits of but­toned-down lady lawyers. But she was, at the time, Obama’s point per­son on prison re­form at Jus­tice, and she was spear­head­ing what had be­come a re­mark­able coali­tion of right- and left-wing re­form­ers try­ing to end over-in­car­cer­a­tion in Amer­ica. Even in the over­heated fi­nal years of the Obama pres­i­dency, Yates had some­how brought to­gether al­lies from the NAACP, the con­ser­va­tive Koch broth­ers, and US sen­a­tors un­likely to agree on any­thing else, in­clud­ing Mike Lee (R-Utah) and Cory Booker (D-N.J.), to work to­gether on mass sen­tenc­ing re­form and re­ha­bil­i­ta­tion. Around the time of the 2016 elec­tion, Yates had cre­ated a model “school dis­trict” for fed­eral in­mates, of­fer­ing ed­u­ca­tion op­por­tu­ni­ties in lit­er­acy and high school diplo­mas. The year be­fore, she had pushed the Bu­reau of Pris­ons to phase out the use of pri­vate pris­ons for fed­eral in­mates. She had also headed up Obama’s clemency ini­tia­tive, al­low­ing the pres­i­dent to com­mute the sen­tences of thou­sands of low-level drug of­fend­ers be­fore he left of­fice.

Yates had not yet be­come a house­hold name, but I thought to my­self that she was the kind of lawyer’s lawyer they’d stopped mint­ing in the 1950s. Law be­fore pol­i­tics. No drama. No ego. Yates had made the quasi-rad­i­cal act of chal­leng­ing over-in­car­cer­a­tion poli­cies so con­ven­tional and prag­matic that it was hard to fight her on it. She’d as­sem­bled a coali­tion of im­prob­a­ble al­lies who all be­lieved in end­ing over-in­car­cer­a­tion and re­form­ing a dis­as­trous prison pol­icy. I love dra­matic lawyers, gen­er­ally. But she had the gift of mak­ing rad­i­cal top-down prison re­form sound as if it were an ob­vi­ous move that sim­ply needed a push from se­ri­ous peo­ple at the top.

Af­ter the 2016 elec­tion, the Trump ad­min­is­tra­tion asked Yates to stay on as act­ing at­tor­ney gen­eral af­ter the in­au­gu­ra­tion, at which point Jeff Ses­sions, Trump’s nom­i­nee for at­tor­ney gen­eral, could take over as soon as he was con­firmed. That’s a long-stand­ing tra­di­tion to pre­serve con­ti­nu­ity, and it should have been a brief and cor­dial stint. As Yates later put it to Kara Swisher, there’s “a tra­di­tion for the No. 2 to stay un­til the new At­tor­ney Gen­eral is con­firmed. There is this other tra­di­tion, and that is that noth­ing hap­pens dur­ing that time, and you can just sort of stay the course, you keep the trains run­ning. My chief of staff ac­tu­ally told me it would be so quiet there would be time for a lot of long, boozy lunches.”

But, in the first weeks of 2017, Yates found her­self in a quag­mire of law and pol­i­tics and na­tional se­cu­rity. It started right af­ter the in­au­gu­ra­tion with Trump’s na­tional se­cu­rity ad­vi­sor, Michael Flynn. Within just days of the trans­fer of power from Obama to Trump, Yates al­ready knew she had a mas­sive coun­ter­in­tel­li­gence prob­lem in Flynn, and she needed to fig­ure out how to bring it to the pres­i­dent’s at­ten­tion. Yates had learned that Flynn had talked on the phone to Sergey Kislyak, the Rus­sian am­bas­sador, on De­cem­ber 29, 2016, the same day Obama had im­posed sanc­tions on Rus­sia for its in­ter­fer­ence in the 2016 elec­tion. The dis­cus­sion be­tween Flynn and Kislyak it­self vi­o­lated a fed­eral law, the Lo­gan Act, which bars pri­vate cit­i­zens from in­ter­fer­ing in gov­ern­ment ne­go­ti­a­tions. But Flynn also lied about it to the FBI. Then Vice Pres­i­dent Mike Pence un­know­ingly re­peated that lie, and then the White House press sec­re­tary, Sean Spicer, also un­know­ingly echoed the lie. As Yates later ex­plained in her Re­code De­code in­ter­view, this was no longer just a prob­lem for the Trump ad­min­is­tra­tion:

The in­ves­ti­ga­tion into Rus­sian in­ter­fer­ence in the elec­tion had started dur­ing the Obama ad­min­is­tra­tion, and dur­ing the tran­si­tion be­tween the ad­min­is­tra­tions it be­came a thing about whether Mike Flynn was es­sen­tially telling the Rus­sians not to worry about the sanc­tions the Obama ad­min­is­tra­tion was im­pos­ing. . . . And no­body could re­ally fig­ure out why the Rus­sians weren’t re­act­ing when we im­posed the sanc­tions that we did. And we dis­cov­ered, through some record­ings we had ac­cess to, that in fact he had been talk­ing to the Rus­sian am­bas­sador, and say­ing, col­lo­qui­ally, “don’t worry about this, we’re go­ing to take care of this.”

For Yates, the is­sue wasn’t just that mem­bers of the new Trump ad­min­is­tra­tion were now falsely say­ing, “No, there was no dis­cus­sion with the Rus­sian am­bas­sador,” but that “they were get­ting more and more spe­cific, and the Vice Pres­i­dent even goes out and says, ‘I talked to Gen­eral Flynn and he told me they talked about Christ­mas greet­ings,’ and down­play­ing it.” This was, in other words, now a big fat na­tional se­cu­rity, coun­ter­in­tel­li­gence prob­lem. As she put it, “One thing we did know was that we weren’t the only ones who knew he’d been hav­ing these dis­cus­sions with the Rus­sian am­bas­sador. The Rus­sians ob­vi­ously knew it as well. And he’d been out pub­licly pro­vid­ing false in­for­ma­tion about it, which cre­ates a po­ten­tial com­pro­mise. And you re­ally don’t want your na­tional se­cu­rity ad­vi­sor com­pro­mised with the Rus­sians. It’s not a good way to start.” This coun­ter­in­tel­li­gence prob­lem, the fact that Amer­i­can of­fi­cials can be ma­nip­u­lated by for­eign­ers into do­ing things that were not in the United States’ in­ter­ests, was the seed of what would be­come the Mueller re­port.

In the sim­plest terms, hav­ing lied, then al­lowed oth­ers to lie, Mike Flynn be­came sus­cep­ti­ble to Rus­sian black­mail. Yates de­cided she needed to tell the White House that Flynn was ex­posed. The chal­lenge was that in a brand-new ad­min­is­tra­tion she had no idea who knew what and at what level Flynn’s lies had been con­doned. If noth­ing else, she felt the vice pres­i­dent him­self should know the in­for­ma­tion he was re­peat­ing was in­ac­cu­rate. As she ex­plained in a later in­ter­view, this was not an area in which she had vast ex­pe­ri­ence. She checked with the CIA to fig­ure out if the Rus­sians would be in­ter­ested in us­ing Flynn’s lies against him, and they con­firmed that they were. In the end, as she put it, “the short straw came to me.”

On Jan­u­ary 26, 2017, Yates met with Trump’s White House coun­sel, Don Mc­Gahn, to dis­cuss Flynn’s false state­ments. As she later tes­ti­fied, his re­sponse was per­plex­ing. “Why does it mat­ter to D.O.J. if one White House of­fi­cial lies to an­other White House of­fi­cial?” Mc­Gahn asked her, seem­ingly fail­ing to un­der­stand that if Flynn lied to his bosses, and Rus­sian of­fi­cials knew it, they would use it against him. Mc­Gahn asked to see the un­der­ly­ing doc­u­ments, and Yates promised to get them to him the fol­low­ing Mon­day. Yates later ex­plained, “I ex­pected that they would do some­thing about it. I mean I call up the White House Coun­sel, Don Mc­Gahn, and tell him I have some­thing vi­tally im­por­tant and I need to talk to him about it right away and it can’t be on the phone. We need to talk about this in a SCIF, in a se­cure place. . . . He saw me im­me­di­ately. I told him what was go­ing on. I went back the next day to an­swer some of his ques­tions about it.” Again, at that sec­ond meet­ing it felt to Yates that he was miss­ing the point.

That Fri­day, Jan­u­ary 27, Yates headed from the White House to her of­fice at Jus­tice, then straight to the air­port, to fly back to At­lanta for a char­ity event for a camp for dis­abled kids. En route to her plane, she got a call from her deputy at the Jus­tice De­part­ment, Matt Ax­el­rod. “You’re not go­ing to be­lieve this, but I just read on­line that the pres­i­dent has ex­e­cuted this travel ban,” he told her. No­body had con­sulted her at all. Mc­Gahn, whose of­fice she’d just left, hadn’t said a thing about it. None of the na­tional se­cu­rity agen­cies had been con­sulted. The lawyers at the Of­fice of Le­gal Coun­sel had been di­rected not to share it with her. Ax­el­rod first learned of it on the New York Times web­site. And the act­ing at­tor­ney gen­eral of the United States had to look up the text of an ex­ec­u­tive or­der about Mus­lim trav­el­ers on her phone on the in­ter­net just like the rest of us.

Yates spent that char­ity event in the back of a ball­room in At­lanta on the phone with her team at Main Jus­tice. As the first law­suits chal­leng­ing the travel ban were rushed into courts that same evening, she asked the gov­ern­ment lawyers at DOJ to avoid tak­ing any for­mal po­si­tion yet on the con­sti­tu­tion­al­ity of the or­der, but she ex­pressed two ini­tial con­cerns. The first was that the ban seemed to tar­get Mus­lims and give pref­er­en­tial treat­ment to Syr­ian Chris­tians. This would vi­o­late the es­tab­lish­ment clause of the First Amend­ment, which pro­hibits the state from fa­vor­ing one re­li­gion over the oth­ers. The ban also seemed to Yates to raise due process ques­tions about visa hold­ers and le­gal per­ma­nent res­i­dents, who were be­ing stripped of the le­gal sta­tus they had al­ready ac­quired, with­out due process of the law.

Yates spent her week­end read­ing the briefs filed by trav­el­ers who’d been de­nied en­try to the coun­try and try­ing to de­ter­mine for her­self whether the ban was un­con­sti­tu­tional. As she told Swisher, “Look, the Jus­tice De­part­ment is this in­cred­i­bly hi­er­ar­chi­cal or­ga­ni­za­tion. Nor­mally, for some­thing of this im­port, lots of lay­ers be­low have worked this all up. And there have been lots of memos done and it is all just still . . . There was no time for any of that stuff.” Within sev­enty-two hours, her en­tire Jus­tice De­part­ment would have to take a po­si­tion on its con­sti­tu­tion­al­ity in court. Yates re­turned to her of­fice at DOJ on Mon­day morn­ing and con­vened a meet­ing to talk it over. She knew she would have to ei­ther de­fend the ex­ec­u­tive or­der in court or re­sign on the spot. And as she later ex­plained to Lizza, “But here’s the thing: res­ig­na­tion would have pro­tected my own per­sonal in­tegrity, be­cause I wouldn’t have been part of this, but I be­lieved, and I still think, that I had an obli­ga­tion to also pro­tect the in­tegrity of the De­part­ment of Jus­tice. And that meant that D.O.J. doesn’t go into court on some­thing as fun­da­men­tal as re­li­gious free­dom, mak­ing an ar­gu­ment about some­thing that I was not con­vinced was grounded in truth.” She added, “In fact, I thought, based on all the ev­i­dence I had, that it was based on re­li­gion. And then I thought back to Jim Crow laws, or lit­er­acy tests. Those didn’t say that the pur­pose was to pre­vent African Amer­i­cans from vot­ing. But that’s what the pur­pose was.”

As Yates later told Swisher, “To de­fend it, it also be­came ev­i­dent I was go­ing to have to send De­part­ment of Jus­tice lawyers in to ar­gue that this travel ban had ab­so­lutely noth­ing to do with re­li­gion. Re­li­gion was com­pletely ir­rel­e­vant. And that’s in the face of all the state­ments the pres­i­dent had made both on the cam­paign trail and af­ter he had been elected. I didn’t be­lieve that that was a de­fense that was grounded in truth, and we were the De­part­ment of Jus­tice.” She added, “I don’t think any lawyer should go in and be ar­gu­ing some­thing that’s not grounded in truth, but I sure don’t think the De­part­ment of Jus­tice should be do­ing that.”

Yates also thought back to her own con­fir­ma­tion hear­ing when sen­a­tors pressed her on what she would do if ever a pres­i­dent asked her to do some­thing un­law­ful or un­con­sti­tu­tional. Her an­swer had been that she would say no, not re­sign, but say no. Be­cause Yates be­lieved that the travel ban was rooted in re­li­gious an­i­mus, or hate for a re­li­gious group, the is­sue was par­tic­u­larly painful for her. She told Lizza, “This is a defin­ing, found­ing prin­ci­ple of our coun­try: re­li­gious free­dom. How can the De­part­ment of Jus­tice go in and de­fend some­thing that so sig­nif­i­cantly un­der­mines that, when we’re not con­vinced it’s true?” She heard opin­ions and can­vassed her staff, but even­tu­ally, hav­ing heard their best ar­gu­ments in sup­port of the ban, she couldn’t con­vince her­self that it was con­sti­tu­tional or de­fen­si­ble.

The re­li­gion clauses of the First Amend­ment don’t al­ways get as much at­ten­tion as their cousins that pro­tect free speech, press free­doms, and free­dom of as­sem­bly. Make no mis­take, those are some great clauses, and we will talk more about them later. But the First Amend­ment pro­tects re­li­gious free­dom, and in­deed the re­li­gion clauses lie at its very heart. One truly lovely the­ory of the First Amend­ment—ar­tic­u­lated bril­liantly by the for­mer ACLU di­rec­tor Burt Neuborne—holds that its core pro­tec­tions (in se­quen­tial or­der) of re­li­gion, then free speech, then press, then free as­sem­bly, and fi­nally the right to pe­ti­tion one’s gov­ern­ment, al­low Amer­i­cans to be truly free. Un­less your re­li­gious con­science is pro­tected, speech doesn’t mat­ter. Un­less there is a free press, the right to as­sem­ble is ephemeral. Only when you have been guar­an­teed all these other core lib­er­ties can you feel free enough to seek re­dress. And all that re­ally means is that the right to prac­tice one’s faith lies at the very heart of the con­sti­tu­tional free­doms.

But the two re­li­gion clauses can be tricky be­cause they some­times row in op­pos­ing di­rec­tions, es­sen­tially pro­vid­ing, first, that Con­gress shall “make no law re­spect­ing an es­tab­lish­ment of re­li­gion” and, sec­ond, that Con­gress can­not do any­thing “pro­hibit­ing the free ex­er­cise,” or prac­tice, of re­li­gious faith. These clauses can be in ten­sion be­cause, for all in­tents and pur­poses, Con­gress must al­low ev­ery re­li­gion to re­main un­en­cum­bered, but also can­not pro­mote any one re­li­gion over an­other. So, for in­stance, if peo­ple of faith want to say Chris­tian prayers be­fore sec­u­lar leg­isla­tive meet­ings, or seek to erect mas­sive crosses on pub­lic lands, these two clauses work­ing in tan­dem of­ten get a lit­tle pinchy. In sum, Amer­i­cans are free to ex­er­cise their faith as they choose, but the gov­ern­ment is not free to priv­i­lege or down­grade any one faith over an­other.

All this has led to cen­turies of con­tentious lit­i­ga­tion over school prayer, school vouch­ers for parochial ed­u­ca­tion, and sec­tar­ian re­li­gious dis­plays on gov­ern­ment land, among other heated con­tro­ver­sies. These cases tend to be anx­i­ety pro­duc­ing pre­cisely be­cause they of­ten pit those who claim the United States is by def­i­ni­tion a Chris­tian coun­try (or a “Judeo-Chris­tian” coun­try) against those who are mem­bers of mi­nor­ity faiths or are non­be­liev­ers. But even though we can and do ar­gue about this a lot in the courts, gen­er­ally the pres­i­dent doesn’t lay claim to overtly an­tire­li­gious no­tions about mi­nor­ity faiths in pub­lic. By call­ing in his elec­tion cam­paign for a “to­tal and com­plete shut­down” of the coun­try’s bor­ders to Mus­lims, Trump forced that pre­cise is­sue into the courts.

• • •

In the ear­li­est days of the Trump ad­min­is­tra­tion, thou­sands of lawyers found them­selves in a po­si­tion sim­i­lar to Yates’s that week­end in late Jan­u­ary, work­shop­ping whether sloppy le­gal ideas could be ren­dered de­fen­si­ble in a court­room. Many of them squinted their eyes and went on to of­fer up false­hoods and fab­ri­ca­tions, pre­texts and dis­trac­tions. Over the next four years, Jus­tice De­part­ment lawyers brazened their way through hear­ings about chil­dren in cages and bans on trans­gen­der ser­vice mem­bers and ef­forts to build a wall in­tended to brick in all of Mex­ico. In the sum­mer of 2019, an en­tire team of DOJ lawyers lit­i­gat­ing the Trump ad­min­is­tra­tion’s ef­fort to add a ques­tion about cit­i­zen­ship to the 2020 cen­sus, con­fronted with proven lies they had of­fered up, re­moved them­selves from that case en masse. Ly­ing to fed­eral ju­rists had be­come too much for them. But very few DOJ lawyers have so pub­licly re­fused to do some­thing un­law­ful or im­moral. What made Yates dif­fer­ent? And why didn’t oth­ers fol­low where she had led?

• • •

Yates told Swisher in the fall of 2018 that it was pretty straight­for­ward. “I loved the De­part­ment of Jus­tice,” she said. “I felt priv­i­leged ev­ery sin­gle day to be part of that in­sti­tu­tion. I be­lieved in the mis­sion. I be­lieved in our re­spon­si­bil­ity. I had ex­pe­ri­enced first­hand how it felt for peo­ple in the com­mu­nity to count on us to be the ones who were ad­min­is­ter­ing jus­tice.” The in­sti­tu­tion it­self, its mis­sion, pub­lic trust in it, was a place she had ded­i­cated thirty years to serv­ing. “I had a re­ally strong feel­ing and a re­ally strong com­mit­ment to what I be­lieve that in­sti­tu­tion is sup­posed to stand for. And I’ll be damned if I’m go­ing to aban­don all that in the end and say that none of that mat­ters, when that’s ac­tu­ally all that mat­ters, is what that in­sti­tu­tion is sup­posed to stand for.”

So on Mon­day evening, Jan­u­ary 30, 2017, Yates wrote up a state­ment in which she an­nounced that she did not be­lieve the ex­ec­u­tive or­der was “wise or just.” As she ex­plained, “At present, I am not con­vinced that the de­fense of the Ex­ec­u­tive Or­der is con­sis­tent with these re­spon­si­bil­i­ties, nor am I con­vinced that the Ex­ec­u­tive Or­der is law­ful.” She ended her state­ment with the fol­low­ing: “For as long as I am the Act­ing At­tor­ney Gen­eral, the De­part­ment of Jus­tice will not present ar­gu­ments in de­fense of the Ex­ec­u­tive Or­der, un­less and un­til I be­come con­vinced that it is ap­pro­pri­ate to do so.” Yates did this be­cause she be­lieved the First Amend­ment’s pro­hi­bi­tions on re­li­gious dis­crim­i­na­tion pre­cluded the sin­gling out of Mus­lims for spe­cial abuses or the cre­ation of spe­cial priv­i­leges for Chris­tian refugees. When the courts al­most im­me­di­ately struck down the travel ban in the days and weeks fol­low­ing, Yates was vin­di­cated, if un­em­ployed. Sub­se­quently, vir­tu­ally ev­ery fed­eral judge to hear the case made sim­i­lar find­ings. The travel ban had to be reengi­neered not once but twice by Trump’s Jus­tice De­part­ment be­fore, even­tu­ally, in 2018, in Trump v. Hawaii, the Supreme Court de­ter­mined that it was within the pres­i­dent’s dis­cre­tion to pass a wa­tered-down ver­sion. The four lib­eral jus­tices dis­sented. In a sep­a­rate dis­sent, Jus­tice So­nia So­tomayor opened with the state­ment that “the United States of Amer­ica is a Na­tion built upon the prom­ise of re­li­gious lib­erty. Our Founders hon­ored that core prom­ise by em­bed­ding the prin­ci­ple of re­li­gious neu­tral­ity in the First Amend­ment. The court’s de­ci­sion to­day fails to safe­guard that fun­da­men­tal prin­ci­ple. It leaves undis­turbed a pol­icy first ad­ver­tised openly and un­equiv­o­cally as a ‘to­tal and com­plete shut­down of Mus­lims en­ter­ing the United States’ be­cause the pol­icy now mas­quer­ades be­hind a façade of na­tional-se­cu­rity con­cerns.” Jus­tice So­tomayor went on to de­tail Trump’s mul­ti­ple state­ments and tweets in­sist­ing that he wanted a Mus­lim travel ban and ex­plained that the ex­ec­u­tive or­der clearly ran afoul of the es­tab­lish­ment clause.

That con­cern echoed the lofty so­lic­i­tude for re­li­gious mi­nori­ties first ex­pressed by Sally Yates, who knew in Jan­u­ary 2017 that she would be fired for writ­ing as much. She was in her of­fice four hours later when a let­ter from the White House was hand de­liv­ered to her. (She later learned they had tried to fire her via email, but it kept bounc­ing back, which she has likened to be­ing bro­ken up with via text.) In an­nounc­ing her fir­ing, the pres­i­dent wrote that Yates had “be­trayed the De­part­ment of Jus­tice by re­fus­ing to en­force a le­gal or­der.” Democrats dubbed it the “Mon­day Night Mas­sacre,” call­ing back to that mo­ment in the Wa­ter­gate scan­dal in 1973 when Richard Nixon fired Spe­cial Pros­e­cu­tor Archibald Cox and ac­cepted the res­ig­na­tions of At­tor­ney Gen­eral El­liot Richard­son and Deputy At­tor­ney Gen­eral William Ruck­elshaus. Yates’s re­place­ment, Dana Boente, who was then the act­ing deputy at­tor­ney gen­eral, be­came the new act­ing AG. Yates cleaned out her desk and went home, but by the next morn­ing she had be­come the first very pub­lic face of Trump’s le­gal re­sisters. It mat­tered that her ob­jec­tions were com­ing from in­side the house. She was the first and high­est-pro­file per­son in the gov­ern­ment to say no to the pres­i­dent and to lose her job for it.

Sally Yates had one other made-for-TV mo­ment be­fore mostly de­part­ing the pub­lic main stage. In May 2017, months af­ter she was sum­mar­ily fired, she was called on to tes­tify be­fore a sub­com­mit­tee of the Sen­ate Ju­di­ciary Com­mit­tee about what hap­pened in the early days of the Trump ad­min­is­tra­tion with Michael Flynn. That morn­ing, Trump had, as was his wont, tweeted out a threat. “Ask Sally Yates, un­der oath, if she knows how clas­si­fied in­for­ma­tion got into the news­pa­pers soon af­ter she ex­plained it to W.H. Coun­cil,” he wrote (mis­spelling “Coun­sel”). But the ex­change that blew up on so­cial me­dia in­volved her de­ter­mi­na­tion that she could not sup­port the first it­er­a­tion of the pres­i­dent’s Mus­lim ban. Sen­a­tor Ted Cruz (R-Tex.) peered down at her in the wit­ness chair and in­quired whether Yates was fa­mil­iar with 8 U.S.C. Sec­tion 1182, the sec­tion of the US Code re­lated to the Im­mi­gra­tion and Na­tion­al­ity Act. Yates’s ini­tial an­swer was that she was not, which al­lowed Cruz to make the mis­take of con­de­scend­ing to her. He smirked and said that “it cer­tainly is a rel­e­vant and not a ter­ri­bly ob­scure statute” and then lav­ishly quoted from it: “By the ex­press text of the statute, it says, quote, ‘When­ever the pres­i­dent finds that en­try of any alien or of any class of aliens into the United States would be detri­men­tal to the in­ter­est of the United States, he may by procla­ma­tion, and for such pe­riod as he shall deem nec­es­sary, sus­pend the en­try of all aliens or any class of aliens as im­mi­grants or non­im­mi­grants, or im­pose on the en­try of aliens any re­stric­tions he may deem ap­pro­pri­ate.’ Would you agree that is broad statu­tory au­tho­riza­tion?”

Yates lis­tened po­litely and replied, “I would, and I am fa­mil­iar with that.” Cruz leaned back, cer­tain he had cre­ated a vi­ral kill shot for the ages. Un­til Yates added, “And I’m also fa­mil­iar with an ad­di­tional pro­vi­sion of the INA that says no per­son shall re­ceive pref­er­ence or be dis­crim­i­nated against an is­suance of a visa be­cause of race, na­tion­al­ity or place of birth, that I be­lieve was pro­mul­gated af­ter the statute that you just quoted.”

That video went vi­ral. As my Slate col­league Leon Ney­fakh noted at the time, it was the Aaron Sorkin end­ing ev­ery­one had been long­ing for. The base­ball writer Molly Knight tweeted, “In my dark­est hours I will think of Sally Yates de­stroy­ing Ted Cruz on na­tional tele­vi­sion, and it will sus­tain me.” The blog­ger Yashar Ali posted the scene from My Cousin Vinny in which Marisa Tomei ex­plains the dif­fer­ence be­tween a 1964 Buick Sky­lark and a 1963 Pon­tiac Tem­pest. Sally Yates had be­come a house­hold name for re­fus­ing to be the kind of lawyer the pres­i­dent wanted, the kind who first says yes and only then checks the rel­e­vant statute. There should have been thou­sands of her. But in the first few weeks, it meant a lot to have just the one.

• • •

Yates showed us that the best gov­ern­ment lawyers do it for the sake of the law it­self, and not for per­sonal glory or for some other guy’s per­sonal glory. The best gov­ern­ment lawyers don’t serve as yes-men en­sur­ing that the pres­i­dent gets what­ever the pres­i­dent wants. At­tor­neys must an­swer not just to the client but to the law it­self, as ab­stract and old-fash­ioned as that may seem. In a 2013 in­ter­view with The At­lanta Jour­nal-Con­sti­tu­tion, Yates was asked about the ad­vice she gave young lawyers. She ex­plained that “the key to pro­fes­sional hap­pi­ness and suc­cess is pur­su­ing what is mean­ing­ful to you and pur­su­ing it with a vengeance.” She cau­tioned that you could score pow­er­ful, lu­cra­tive le­gal jobs and never feel sat­is­fied with the work you do each day. “What I do is mean­ing­ful to me and has made a dif­fer­ence in the big scheme of things,” she ex­plained. “I re­al­ize that we’re not do­ing Mother Teresa’s work here at the US At­tor­ney’s Of­fice, but I do think what we’re do­ing makes a dif­fer­ence.” When she re­cruits young lawyers to work for the gov­ern­ment, Yates re­minds them, “It’s worth ev­ery penny you don’t make. I know this sounds in­cred­i­bly corny, but I ab­so­lutely be­lieve it—the thrill that comes with say­ing that you rep­re­sent the peo­ple of the United States, there’s no greater honor that you can have as a lawyer.”

Over time, other high-rank­ing Trump ad­min­is­tra­tion of­fi­cials stood up for the rule of law, even if it meant los­ing their jobs, but not nearly as many as we might have ex­pected. By the end of the Trump era, it was stun­ning how few of his ap­pointees took the op­por­tu­nity af­forded by a spec­tac­u­lar and rous­ing pub­lic fir­ing to state clearly that what was hap­pen­ing to the rule of law on Trump’s watch was im­moral. Most of them said yes, un­til they fi­nally said no, up to and in­clud­ing his sec­ond at­tor­ney gen­eral, Bill Barr, who spent the sum­mer of 2020 mak­ing false claims about vote fraud and stolen elec­tions, then slunk away through the fire exit af­ter telling the pres­i­dent that the 2020 elec­tion had not been stolen. That is how many lawyers chose to cut ties; some lobbed a few pot­shots, but few stood up to say loudly and clearly that no pres­i­dent is above the law. They pa­pered them­selves over with CYA let­ters to their con­fi­den­tial files, cer­tain that would ex­cul­pate them from per­sonal li­a­bil­ity. Many of them have jobs in pres­ti­gious law firms and think tanks to­day. The Mueller re­port it­self is re­plete with ex­am­ples of high-rank­ing of­fi­cials asked to break the law, or to lie about break­ing the law, by the pres­i­dent. Not one of them pub­licly re­pu­di­ated him.

In Au­gust 2019, Chuck Park re­signed from the For­eign Ser­vice with a piece in The Wash­ing­ton Post con­ced­ing that the fed­eral bu­reau­cracy un­der Trump had be­come “the com­pla­cent state.” Park noted, de­spair­ingly, that “among my col­leagues at the State De­part­ment, I have met nei­ther the un­sung hero nor the cun­ning vil­lain of Deep State lore. If the re­sis­tance does ex­ist, it should be clear by this point that it has failed.” What Park was be­moan­ing, to­ward the end, was the ba­nal­ity of gov­ern­ment bu­reau­cracy. But that com­pla­cency and nor­mal­iz­ing had not yet cal­ci­fied in the ear­li­est weeks of the Trump era.

In ret­ro­spect, Sally Yates stands in stark con­trast to the many, many gov­ern­ment of­fi­cials who left the Trump ad­min­is­tra­tion to profit off what they knew with­out re­ally call­ing it out. With­out fan­fare or drama or a book deal or a CNN con­trib­u­tor spot, Yates de­fied the pres­i­dent a week af­ter in­au­gu­ra­tion. In do­ing so, she her­self be­came some­thing of a cult fig­ure and has gar­nered big crowds when she speaks or writes the oc­ca­sional op-ed. She tweets oc­ca­sion­ally, and in the 2018 elec­tions fa­mously re­buffed pub­lic pres­sure to run for elected of­fice. In 2018, she re­turned to her old At­lanta law firm, King & Spald­ing, head­ing up their in­ves­ti­ga­tions prac­tice. She lec­tures at George­town Law School. She’s also used her new­found celebrity sta­tus to speak openly about her fa­ther’s sui­cide in 1986 and the need to break the stigma that sur­rounds men­tal health and de­pres­sion.

One of the things Yates came to de­plore most over the course of the Trump era was how quickly ev­ery­one seemed to go numb. As she told Swisher in 2018, “It’s not even a thing any­more when the pres­i­dent tweets some of this stuff or says it in speeches. We just kind of move on to the next thing. We can’t even make it through a full twenty-four-hour news cy­cle.” She added, “You know, if we get to the point that that’s how peo­ple think our jus­tice sys­tem works, at the risk of sound­ing melo­dra­matic here, stuff starts fall­ing apart.” Her re­lated con­cern was that there is no cod­i­fied book called “The Rule of Law.” The law is, in­stead, a net­work of in­ter­lock­ing norms and be­liefs and con­ven­tions, and as it came un­der at­tack, so many peo­ple stood back ex­pect­ing it to fight for it­self. The two com­plaints are con­nected. Be­cause we pre­fer to be­lieve that the law is an unas­sail­able cathe­dral, self-re­in­forc­ing and pro­fes­sion­al­ized, when­ever it is de­ployed to un­law­ful ends, we tell our­selves it’s nor­mal. If it comes into a court­room with a suit and a brief­case, that must mean that the Rule of Law is at work. We for­get to fight for it.

Women are some­times bet­ter than men at rec­og­niz­ing that the law isn’t an im­mutable, time­less cathe­dral and at rec­og­niz­ing that just be­cause it trav­els with a yel­low pad doesn’t mean it’s do­ing jus­tice. We know that be­cause un­til rel­a­tively re­cently, the law in­sisted that women couldn’t have their own credit cards. The dis­tance from Sally Yates’s grand­mother to Sally Yates isn’t long enough to lock in il­lu­sions of per­fec­tion. That means if there’s mold and dry rot in the cas­tle walls, we some­times smell it first. For four years Yates gave speech af­ter speech urg­ing au­di­ences not to nor­mal­ize a pres­i­dent will­ing to use the DOJ to pun­ish en­e­mies and re­ward friends, not to nor­mal­ize le­gal ideas that are an­ti­thet­i­cal to free­dom and dig­nity. In ball­room af­ter ball­room, she urged peo­ple, par­tic­u­larly young peo­ple and young women, to con­tinue to fight for the law it­self, to speak up and say, as she of­ten put it, “this isn’t nor­mal, this isn’t what we stand for.”

Per­haps more than any­thing else, then, to me Yates came to rep­re­sent adults be­hav­ing like adults. Not wink­ing and grin­ning, not wring­ing hands and hop­ing that some­one else will step up. Not putting memos in con­fi­den­tial files that read, “I wasn’t for this.” And for Yates her­self, in­spi­ra­tion has come from the young peo­ple who re­fused to stand by. In the fall of 2018, Yates de­scribed in an in­ter­view how even be­fore her fa­mous fir­ing, she found hope in the young women en­ter­ing gov­ern­ment ser­vice. She spoke of find­ing her­self at a Whole Foods in Wash­ing­ton, DC, on the day of the first Women’s March, in which she had avoided par­tic­i­pat­ing be­cause she was still the act­ing at­tor­ney gen­eral. “It was freez­ing,” she said, “and all these young women were just pour­ing into the gro­cery store, be­cause the Metro was over­flow­ing, and they had signs and the hats, and I’m there with my se­cu­rity de­tail. And I just kind of wanted to watch for a while. And there were all these young women, who were com­fort­able in their own skin. They knew who they were, and what they be­lieved in, and they weren’t the least bit hes­i­tant to say it out loud.” For Yates, hav­ing spent the Trump years speak­ing at col­leges and uni­ver­si­ties, rather than in gov­ern­ment ser­vice, the fuel was, as she put it, “the young women who come up to me and tell me they had never thought about pub­lic ser­vice be­fore. They re­ally feel a call­ing to be a part of defin­ing our coun­try.”

Young women don’t al­ways know it, but in dark times they re­ally can serve as in­spi­ra­tion for the very same women who in­spire them most. It’s a po­etic feed­back loop, lit by the mu­tual hope that gov­ern­ment can and should al­ways work to pro­tect dig­nity and equal­ity, even as it some­times ex­erts it­self to do the very op­po­site.

3

The Air­port Rev­o­lu­tion

Becca Heller: The Ac­tivist

Don­ald Trump’s ex­ec­u­tive or­der bar­ring travel from ma­jor­ity-Mus­lim coun­tries was born in chaos, by de­sign. Mo­ments af­ter Trump signed it into law—late on a Fri­day af­ter­noon—ma­jor air­ports across the coun­try were melt­ing down. For many peo­ple, word of the travel ban seeped out only as fam­ily mem­bers wait­ing for trav­el­ers from the af­fected coun­tries learned they were be­ing de­tained at air­ports. The home­land se­cu­rity sec­re­tary, John Kelly, later con­firmed that he hadn’t even seen the or­der un­til af­ter the pres­i­dent signed it. The White House never asked his de­part­ment for a le­gal re­view. (Odd, for a pol­icy said to be rooted in ur­gent na­tional se­cu­rity needs.) As we now know, Yates and her staff had also been de­lib­er­ately roped out of the process. And no Cus­toms and Bor­der Pro­tec­tion (CBP) of­fi­cials had seen the word­ing of the new rule be­fore it went into ef­fect; they were sim­ply told in a con­fer­ence call that evening to be­have as though the ban were al­ready in ef­fect. The roll­out of the travel ban elec­tri­fied the rifts in the West Wing be­tween tra­di­tional Re­pub­li­can Party bu­reau­crats like Chief of Staff Reince Priebus and the most nihilis­tic Trump loy­al­ists like Steve Ban­non and Stephen Miller—rifts that would stoke chaos through­out the ad­min­is­tra­tion—and left the cab­i­net and Con­gress scram­bling to find out what the new ex­ec­u­tive or­der ac­tu­ally did.

In the hours fol­low­ing the launch of the or­der, un­cer­tainty del­uged the na­tion’s air­ports as trav­el­ers abroad who had boarded their flights legally—some had sold all their worldly pos­ses­sions to make the trip—found them­selves de­nied en­try to the United States. Green card hold­ers, dual cit­i­zens, and trav­el­ers were be­ing banned at cus­toms. Nonci­t­i­zen aca­demics with work au­tho­riza­tion who were re­turn­ing to their teach­ing jobs at US col­leges, for­eign stu­dents com­ing back to cam­pus af­ter win­ter break, crit­i­cally ill ba­bies re­quir­ing ur­gent med­i­cal at­ten­tion, and peo­ple who had long ago been cleared to join fu­ture spouses were all locked down for hours in de­ten­tion at the US bor­der with­out ac­cess to an at­tor­ney. El­derly im­mi­grants with lit­tle Eng­lish were im­pounded with­out proper food or med­i­cal care in the back­rooms of ma­jor US air­ports. Oth­ers were forced to sign doc­u­ments waiv­ing their rights, then frog-marched back onto planes to be flown to for­eign coun­tries to which they had no con­nec­tions, their pass­ports and travel doc­u­ments seized by US of­fi­cials. Some of these peo­ple would be­come, in the words of one fed­eral judge, “like Tom Hanks at the air­port,” in a wry ref­er­ence to a 2004 film in which Hanks’s char­ac­ter was trapped in per­ma­nent limbo, am­bling be­tween the Cinnabons and the Star­bucks at a ter­mi­nal he could never leave. These trav­el­ers had no pa­pers, no lo­cal fam­ily, and nowhere to go. The US gov­ern­ment had promised them law­ful en­try and then changed its mind with­out warn­ing, in some cases, mid­flight.

Two such trav­el­ers, Tareq Aqel Mo­hammed Aziz and Am­mar Aqel Mo­hammed Aziz, held le­gal Amer­i­can green cards. Both young men were re­fused en­try to the United States at Dulles In­ter­na­tional Air­port on Sat­ur­day. Their pa­pers were con­fis­cated at US cus­toms, and they were flown back to Ad­dis Ababa, Ethiopia. “Back” is of course a mis­nomer. They were from Yemen. An­other stranded trav­eler was Hameed Khalid Dar­weesh, who had served for ten years as an in­ter­preter for the US Army’s 101st Air­borne Di­vi­sion in Bagh­dad and Mo­sul in Iraq, and later as a con­tract en­gi­neer. As he would write af­ter his or­deal, in The Wash­ing­ton Post, “When I was with my Army col­leagues, we were broth­ers in arms. We lived to­gether, ate to­gether and looked out for each other. They treated me like a sol­dier along­side them, and we were all one unit.” Af­ter his ser­vice, Dar­weesh be­came wor­ried for his safety and that of his fam­ily when other for­mer in­ter­preters he had known were mur­dered. In­sur­gents were stak­ing out his home. He con­tacted the In­ter­na­tional Refugee As­sis­tance Project, a New York non­profit that of­fers le­gal rep­re­sen­ta­tion to peo­ple seek­ing refugee sta­tus. With the help of IRAP, Dar­weesh ap­plied for a Spe­cial Im­mi­grant Visa avail­able to Iraqis who had helped US fight­ers in 2014. He waited three years, but his ap­proved pa­pers fi­nally came through in Jan­u­ary 2017, just be­fore Trump’s in­au­gu­ra­tion.

Dar­weesh and his fam­ily flew to John F. Kennedy In­ter­na­tional Air­port, ar­riv­ing at 5:45 Fri­day evening, Jan­u­ary 27, 2017—one hour af­ter the travel ban was signed. Over the course of their eleven-hour flight, the ex­ec­u­tive or­der had gone into ef­fect. When he de­planed, he watched as his wife and three chil­dren cleared pass­port con­trol and cus­toms and dis­ap­peared into the ar­rivals ter­mi­nal. But in­stead of be­ing al­lowed to ac­com­pany them, Dar­weesh was taken to a back of­fice, stripped of his pass­port and Spe­cial Im­mi­grant Visa, then de­tained overnight—hand­cuffed at times—and barred from call­ing or meet­ing with his at­tor­ney, who was wait­ing in the ar­rivals area. Overnight, im­mi­gra­tion of­fi­cers forced Dar­weesh to empty his pock­ets, moved him to a dif­fer­ent room in the air­port, and told him he was be­ing sent back to Iraq, where his life was in dan­ger. No­body would tell him where his fam­ily had gone. Af­ter nine­teen hours, yet an­other of­fi­cer ap­proached and asked him a few ques­tions, then apol­o­gized and told him they were just do­ing their duty and fol­low­ing an or­der. “Wel­come to the United States, and thank you for serv­ing our coun­try,” the of­fi­cer said.

This wasn’t just tak­ing place in New York. In Phil­a­del­phia, two Syr­ian fam­i­lies were de­tained and then sent back, and more than a dozen peo­ple were be­ing held in Chicago. Fifty other trav­el­ers were de­tained at Dal­las Fort Worth. A re­cent Clem­son PhD vis­it­ing her fam­ily in Tehran found her­self stuck there. A Syr­ian fam­ily of six with valid visas was put on a plane back to Doha. Over­all, the ACLU es­ti­mated up to two hun­dred peo­ple were be­ing held, al­though the gov­ern­ment was not re­leas­ing their names. The De­part­ment of Home­land Se­cu­rity (DHS) put out a state­ment af­ter the chaos erupted, in­sist­ing that just a small frac­tion of pas­sen­gers ar­riv­ing in the United States that Sat­ur­day were “in­con­ve­nienced while en­hanced se­cu­rity mea­sures were im­ple­mented.” The state­ment went on to add that “these in­di­vid­u­als went through en­hanced se­cu­rity screen­ings and are be­ing pro­cessed for en­try to the United States, con­sis­tent with our im­mi­gra­tion laws and ju­di­cial or­ders.”

While in cus­tody, Dar­weesh and an­other trav­eler—Haider Sameer Ab­dulkhaleq Al­shawi, the hus­band of an Iraqi woman who had worked for a US mil­i­tary con­trac­tor in Iraq who had re­ceived refugee sta­tus—would be­come the two named plain­tiffs in the first ma­jor law­suit filed to chal­lenge the travel ban.

• • •

Becca Heller, the co-founder of the In­ter­na­tional Refugee As­sis­tance Project, was only thirty-five when the travel ban thrust her and her or­ga­ni­za­tion into the pub­lic eye. If ever an at­tor­ney had been hy­dro­pon­i­cally raised, deep in an un­der­ground lab some­place, to be the po­lar op­po­site of Sally Yates, Becca Heller is that lawyer. She is a fe­ro­cious (and de­vot­edly foul­mouthed) ad­vo­cate who uses the law in­stead of her bare knuck­les, al­though it’s clear that in an­other life she might have been a hell of a brawler. Heller is al­most in­ca­pable of ar­ti­fice and talks of­ten of hav­ing to re­strain her­self from blurt­ing out pre­cisely what she is think­ing. Her smile is vast, but like any tac­ti­cian, she al­ways ap­pears to be think­ing on two tracks at once. Even her hair feels like a metaphor; she’s been go­ing pre­ma­turely gray for years. Heller grew up in Pied­mont, Cal­i­for­nia, the daugh­ter of a car­di­ol­o­gist and a teacher. A New York Times pro­file de­scribed her as hav­ing been voted “most likely to de­bate with a teacher” in school, and she al­most failed to grad­u­ate from high school be­cause she re­fused to abide by the school’s phys­i­cal ed­u­ca­tion re­quire­ment. She does not suf­fer fools, or even the fool ad­ja­cent, gladly. She has the kind of rat-a-tat-tat ma­chine-gun mind for tac­tics and strat­egy that would serve her well in wartime. And she leans hard on war metaphors when she talks.

Heller went to Dart­mouth for col­lege, where she be­came in­ter­ested in in­ter­na­tional hunger and hous­ing, then won a Ful­bright schol­ar­ship to work on nu­tri­tion pol­icy in Malawi. She then en­tered Yale Law School. Why law school? Heller told me, “I’d worked on a range of dif­fer­ent is­sues through­out col­lege and then in the two years af­ter col­lege, and I just felt like in ev­ery area I was work­ing on, I would in­evitably rub up against the ceil­ing of the law.” As she ex­plained it, she would be out par­tic­i­pat­ing in ral­lies and demon­stra­tions at which it quickly be­came ap­par­ent that “ev­ery­one is freez­ing and we’re in this cir­cle and ev­ery sin­gle per­son in the cir­cle would’ve cut out their left eye” to help, say, the mother of a wrongly in­car­cer­ated son, “and we were all, ‘What can we do?’ And she said, ‘Well, are any of you a lawyer?’ And no­body was.” That, said Heller, was when she re­al­ized, “Ugh. I guess I’ve got to go to law school.”

It wasn’t clear to her that the act of ob­tain­ing a JD would help any­one. “I thought maybe if I went to law school, I would have a tool to break the ceil­ing or at least to hit the ceil­ing harder. And I was wor­ried that I would go to law school and I would go $180,000 into debt and spend three years of my life and then dis­cover, ‘Oh, that’s a pow­er­ful fuck­ing ceil­ing.’ ”

While she was at Yale, Heller scored a sum­mer in­tern­ship in Is­rael, which wasn’t work­ing out, be­cause she couldn’t speak any He­brew. As she ex­plained, “The up­shot was that I just didn’t re­ally have any­thing to do. And I re­ally hate wast­ing my time, to ba­si­cally a com­pul­sive level, in part be­cause life is re­ally short.” So af­ter she ran out of Mad Men episodes (“there were only a cou­ple of sea­sons then”), she be­gan to fol­low news re­ports about Iraqi refugees stuck in Jor­dan. She made her way to Am­man and be­gan to in­ter­view refugees, just to hear their sto­ries.

Heller had done enough work with refugees that she ex­pected to find the same chal­lenges in Jor­dan she’d found else­where: a lack of ac­cess to ed­u­ca­tion, ad­e­quate med­i­cal care, hous­ing. But what she found in­stead was that “ev­ery sin­gle one of the fam­i­lies I met with in­de­pen­dently iden­ti­fied their pri­mary need as es­sen­tially le­gal, which is that, the big­gest prob­lem you have as a refugee is that you can’t claim the pro­tec­tion of any na­tion-state.” Heller met with peo­ple who could not re­turn to Iraq but couldn’t stay in Jor­dan. “They had no le­gal sta­tus in Jor­dan, and so their only hope was to try to get re­ferred by the United Na­tions to a third coun­try and to try to get that coun­try to es­sen­tially adopt them.” But, she con­tin­ued, “the le­gal process for that was so com­plex and bu­reau­cratic and in­volved hun­dreds of pages of pa­per­work, all in Eng­lish or some­times for the third coun­try in French or Dutch. You had to be in­ter­viewed a min­i­mum of four times; the in­ter­views could last up to seven hours. They were of­ten through mul­ti­ple in­ter­preters, and some­times through bul­let­proof glass. And at the end of this, they’re mak­ing a de­ci­sion on which your life lit­er­ally de­pends.”

She had no for­mal af­fil­i­a­tion or or­ga­ni­za­tion or cre­den­tials, but Heller talked her way into meet­ings with the United Na­tions Refugee Agency and the US em­bassy. But what haunted her was that, as she put it, “I just kept think­ing, you know if I was go­ing through an ad­ju­di­ca­tion and my life were on the line, be­cause I think of it as if you’re on trial for the death penalty, right? Be­cause if you lose, and you get sent back to Syria, it’s a death sen­tence.” These peo­ple most needed what de­fen­dants need in a death penalty case: lawyers.

“So,” said Heller, “I went back to law school and tried to or­ga­nize some type of le­gal rep­re­sen­ta­tion for these folks.” With her fel­low Yale law stu­dent Jon Finer, Heller founded IRAP in 2008, orig­i­nally in a bid to help Iraqi refugees re­set­tle in the United States and other West­ern coun­tries. Heller and Finer were—as she phrased it—“tool­ing around with these cases,” and their su­per­vis­ing pro­fes­sor at Yale, Michael Wish­nie, “called us into his of­fice one day and he said, ‘You guys aren’t work­ing on cases, are you?’ ”

“And we were pretty stupid, but not com­pletely stupid, so we an­swered, ‘Oh, Mike. What an in­ter­est­ing ques­tion. . . . Why do you ask?’ And he said, ‘Be­cause that’s il­le­gal. It’s called the unau­tho­rized prac­tice of law.’ ” So Heller and Finer had to find real lawyers to ar­gue their cases. Their idea was sim­ple. “We re­al­ized that these pri­vate firms were com­ing to Yale to re­cruit all the time. And so we de­cided we should turn around and re­cruit them. So we started reach­ing out to the firms and say­ing, ‘Hey, do you want to get to know some Yale law stu­dents? If you agree to su­per­vise us on these cases, it’ll give you a hook into our class and into cam­pus.’ ” That model scaled up beau­ti­fully. Law stu­dents scored the men­tor­ship of su­per­vis­ing at­tor­neys at prom­i­nent firms, while big firms got pro bono cases and ea­ger top-tier law stu­dents. The firms cov­ered the ex­tra costs—ex­pert wit­nesses, im­mu­niza­tion costs—and asy­lum seek­ers were taken out of limbo. Why? Be­cause, as Heller likes to re­mind peo­ple, “in the asy­lum con­text, the Gen­eral Ac­count­ing Of­fice has found that hav­ing a lawyer makes you 400 per­cent more likely to be given refugee sta­tus.”

The lit­tle law shop ini­tially con­ceived by two law stu­dents to as­sist refugees rep­re­sent their own le­gal in­ter­ests grew and grew. By the time Heller grad­u­ated from Yale, IRAP had chap­ters at ten law schools, work­ing with a few dozen dif­fer­ent law firms. And no­body was more sur­prised than Heller. “For the first year we were do­ing this, I just kept try­ing to fig­ure out, who else was do­ing this? I knew I didn’t want to start a thing. I went to law school be­cause I wanted to be a lawyer.” But at some point dur­ing the sum­mer of her sec­ond year at law school, Heller re­al­ized that no­body else was do­ing the thing. And dur­ing an in­tern­ship, some­one from the UN High Com­mis­sioner for Refugees (UN­HCR) ac­tu­ally called her cell phone ask­ing her to take on a case. “And I had this com­pletely, al­most ir­rec­on­cil­able re­sponse,” says Heller. “On the one hand, I thought, ‘Oh my gosh, UN­HCR wants to re­fer cases to us.’ But on the other hand, I thought, ‘They don’t have any­one else to call?’ ”

The sec­ond sum­mer of law school is when most law stu­dents need to make the big de­ci­sions about fu­ture em­ploy­ment and scrab­ble for pres­ti­gious ju­di­cial clerk­ships. But Heller knew she was not go­ing to clerk for a judge. “Clerk­ing, I think, was never in the cards for me,” she says, “on ac­count of au­thor­ity.” That was also when she fig­ured out that IRAP would be her fu­ture. By 2014, IRAP had two dozen law school chap­ters and at­tor­neys from more than fifty law firms tack­ling an ever-ex­pand­ing caseload. They opened of­fices in Jor­dan and Lebanon. She’d have been con­tent with the shop they’d built, but the elec­tion of Trump changed the stakes. For one thing, Heller knew that Trump lit­er­ally meant what he’d said dur­ing the 2016 elec­tion cam­paign about ban­ning all Mus­lim trav­el­ers and refugees. She never thought it was just cam­paign talk. Im­me­di­ately af­ter the elec­tion, she says, “I went into this very war­like men­tal­ity, where I just started think­ing in very mil­i­taris­tic metaphors: What weapons do we have, how do we de­ploy them, and what does it mean that we have this army of lawyers who wants to help refugees?”

Heller knew the Jan­u­ary 2017 ex­ec­u­tive or­der was com­ing, two days be­fore it was signed. “We were tipped off,” she told me. “We were sent a screen­shot of a com­puter mon­i­tor, I think in the White House, that had the text of the Mus­lim ban on it.” And, added Heller, “our first thought was for our ex­ist­ing clients.” So IRAP ran searches in their data­base to turn up any­one who had an im­mi­nent travel date. They con­tacted each of their le­gal teams, and on Jan­u­ary 25 Heller sent out a mass email warn­ing their lawyer foot sol­diers what was to come: “Tell any clients who al­ready have visas to board a plane for the United States. Get ready for the pos­si­bil­ity that they will be de­tained upon land­ing.” They also sent out let­ters to their clients through Viber and What­sApp to present to US bor­der of­fi­cials, with their lawyers’ phone num­bers and a state­ment of their well-founded fears of re­turn­ing to their home coun­tries.

Tend­ing to their clients with im­mi­nent travel dates was the first or­der of busi­ness, but two nights be­fore the ban was signed, Heller was up late G-chat­ting with their pol­icy di­rec­tor, Betsy Fisher, and both were ex­press­ing re­lief that one par­tic­u­lar trans­gen­der refugee client had been met at the air­port by one of the IRAP lawyers and al­lowed into the United States with­out in­ci­dent. They were mar­veling that all the other refugees on that flight had also been lucky, be­cause refugees are of­ten slated to fly to­gether in groups. Says Heller, “And then we had this mo­ment of re­al­iza­tion that at any given time when this thing comes down, there’s go­ing to be thou­sands and thou­sands of peo­ple in midair who had le­gal per­mis­sion to en­ter when they took off. And no one knows what on earth their sta­tus is go­ing to be when they land or what’s go­ing to hap­pen to them at the air­port.” That was when it oc­curred to them that “this one lawyer at the air­port is some­thing that we need to repli­cate, ba­si­cally all over the coun­try, on a much larger scale.”

It was eleven o’clock at night, on Jan­u­ary 25, but Heller started call­ing ev­ery­one she knew, ask­ing whether it made sense to de­ploy a hand­ful of lawyers at ev­ery ma­jor air­port. “We made this Google form that said, ‘Where are you, where’s your near­est air­port, what hours can you go?’ And we just sent it out to maybe two list­servs.” The lawyers on the list could have been tax at­tor­neys or real es­tate lawyers, Heller didn’t care. “It was a ques­tion of who we could de­ploy. It’s not nec­es­sar­ily that they’re pro­vid­ing le­gal ser­vices; they’re just at this point bear­ing wit­ness. . . . I just knew some­thing fucked up was go­ing to go down at the air­port. We should have lawyers there to try to deal with it.”

IRAP sent out the email blast on Jan­u­ary 26, 2017, the Thurs­day morn­ing be­fore the ex­ec­u­tive or­der was signed. Within an hour and a half, six­teen hun­dred peo­ple had filled out the Google form and the web­site had crashed. The sign-up blasted through the im­mi­grants’ rights com­mu­nity, where any lawyers with in­for­ma­tion about who would be on planes and what their sched­ules might be could also weigh in.

And then, sud­denly, on that same Thurs­day, ev­ery­thing hit pause. As Heller ex­plained it, “I started get­ting calls on Thurs­day af­ter­noon from the refugee ad­vo­cacy com­mu­nity say­ing, ‘There’s word that you’re mo­bi­liz­ing a bunch of lawyers to go to air­ports. You need to tell them to stand down.’ ” These groups had been given as­sur­ances from the State De­part­ment that any trav­el­ers who al­ready had le­gal per­mis­sion of any kind to en­ter would be al­lowed to en­ter. Heller froze, un­sure whether to call off her troops. As she re­mem­bered it, this might ul­ti­mately be one of the most gen­dered parts of her story: “I get a se­ries of calls from peo­ple I know and largely re­spect in the refugee ad­vo­cacy com­mu­nity say­ing call off the dogs. They’re wor­ried that they had all these as­sur­ances and if you have all these lawyers there, it’s go­ing to pro­voke the gov­ern­ment.” Heller is young, she’s fe­male, she’s an in­vet­er­ate rule breaker. But all these older es­tab­lish­ment lawyers are telling her that she’s over­re­act­ing. “So,” she con­tin­ued, “I have this cri­sis of . . . not con­science, but a cri­sis of hubris, this anx­i­ety mo­ment about try­ing to weigh how much of this is my own ego, and also think­ing I know bet­ter. . . . I think a man would have been just like, fuck you guys, the lawyers are go­ing.” She wa­vered, in part be­cause she thought the in­sid­ers get­ting prom­ises from other in­sid­ers knew bet­ter. And she wa­vered be­cause she con­vinced her­self that when women step out of line, it must be ego­ism driv­ing them.

So Heller ended up call­ing off all her vol­un­teer lawyers, with the knowl­edge that they could still be ac­ti­vated in­stantly if needed. They would stand down but be ready if things went side­ways. They di­vided up the twelve ma­jor US air­ports among their staff, with each staff mem­ber re­spon­si­ble for one air­port, and two lawyers they knew per­son­ally hang­ing out at the air­ports just in case. At 4:30 east­ern time on Fri­day af­ter­noon, Jan­u­ary 27, the ex­ec­u­tive or­der was an­nounced, vir­tu­ally iden­ti­cal to the screen­shot from ear­lier in the week. This was the or­der Sally Yates was read­ing about from news re­ports. Becca Heller was sur­prised. She’d be­lieved that the most bla­tantly un­con­sti­tu­tional pro­vi­sions would have been lawyered out be­fore the sign­ing. She also knew they had clients, in­clud­ing Dar­weesh, sched­uled to ar­rive in New York at 7:30 p.m. She put her baby daugh­ter, Anna, to bed and waited.

Heller soon got the call that Dar­weesh’s wife and chil­dren had been al­lowed into the ar­rivals ter­mi­nal but that he him­self had been de­tained. At 11:00 that night, two agents from Cus­toms and Bor­der Pro­tec­tion ap­proached his wife and chil­dren as they waited anx­iously in the ar­rivals hall and asked them to vol­un­tar­ily come back into the cus­toms area to join Dar­weesh, who was in de­ten­tion. Jonathan Polon­sky, with the law firm Kil­patrick Townsend, who was the fam­ily’s lawyer along­side an IRAP at­tor­ney, asked the CBP agent whether this was a re­quest or an or­der. Told it was merely a re­quest, Polon­sky and IRAP put the Dar­weeshes into a cab and got them to a ho­tel. Their fa­ther and hus­band re­mained in cus­tody some­where in the air­port.

Mark Doss, Dar­weesh’s IRAP at­tor­ney, ar­rived at JFK af­ter CBP had moved Dar­weesh and Al­shawi in hand­cuffs from Ter­mi­nal 1, which had shut down for the night, to Ter­mi­nal 4. Doss tried to make his way back to the cus­toms area, but a CBP of­fi­cer barred his way. “Who is the per­son we need to talk to?” Doss asked a CBP of­fi­cial, still try­ing to get ac­cess to his client and at­tempt­ing to com­pre­hend the chain of com­mand.

“Mr. Pres­i­dent . . . Call Mr. Trump,” said the of­fi­cer.

So much for call­ing off the dogs. The gov­ern­ment was now de­tain­ing law­ful visa hold­ers and giv­ing no in­for­ma­tion about what they were do­ing with them or why; this is what the im­mi­gra­tion groups had been told would not hap­pen. “Ev­ery­one at IRAP went into ac­tion,” Heller said. “We ac­ti­vated the lawyers, we had points of con­tact for each air­port, we had NGO points of con­tact for each air­port, we started putting to­gether habeas tem­plates. My first lit­i­ga­tion phone call was to Justin Cox of the Na­tional Im­mi­gra­tion Law Cen­ter in At­lanta.”

Heller was al­ready be­yond the place where she had op­er­ated at IRAP. “And I said, ‘Turns out they’re hold­ing peo­ple, I know the name of one, what do we file?’ And Justin said, ‘We file a habeas pe­ti­tion.’ And I said, ‘Great, how do we do that?’ Be­cause I’m not a lawyer.” (She’s a lawyer.) Then Heller and her team called Mike Wish­nie—the same Yale law pro­fes­sor who’d once told her and Jon Finer they prob­a­bly shouldn’t prac­tice law with­out first tak­ing the bar. And Wish­nie had the au­da­cious idea of fil­ing some­thing called a class-ac­tion habeas suit. “Since no­body had any idea of how many peo­ple were be­ing held, the suit could be filed on be­half of all of them,” ex­plained Heller. Coali­tion mem­bers and law stu­dents de­bated: Fil­ing a class ac­tion would pro­tect the un­known Mus­lim trav­el­ers trapped with­out lawyers in the skies. But it might also mean that Dar­weesh and Al­shawi would not get in­stant re­lief. Wish­nie con­tacted the Amer­i­can Civil Lib­er­ties Union (ACLU) for help. Then the lawyers and stu­dents stayed up all night that Fri­day draft­ing the plead­ings. They knew they needed to file be­fore any in­ter­na­tional flights could take off early Sat­ur­day, which was when de­tained trav­el­ers would be­gin to be de­ported on morn­ing flights. So, at 5:33 that Sat­ur­day morn­ing, IRAP, the ACLU, and the other groups filed a habeas cor­pus pe­ti­tion on be­half of Dar­weesh and Al­shawi and a mo­tion to cer­tify a na­tion­wide class. The pe­ti­tion was filed in a fed­eral court in New York. Dar­weesh v. Trump would be­come the first law­suit chal­leng­ing the Mus­lim ban.

• • •

The term “habeas cor­pus” sounds ob­scure and lofty, but at its sim­plest it’s the name for an an­cient right of any per­sons in de­ten­tion to be brought be­fore a judge to show there’s some law­ful ba­sis for that de­ten­tion. The dream team be­hind the Dar­weesh suit in­cluded at­tor­neys from the ACLU, IRAP, the Na­tional Im­mi­gra­tion Law Cen­ter, and Yale Law School’s le­gal ser­vices clinic, de­mand­ing gov­ern­ment ac­count­abil­ity for the seizure. These lawyers would ap­pear in court just over twenty-four hours af­ter the men were de­tained, and thanks to or­ga­niz­ing by groups like Heller’s, ran­dom at­tor­neys around the coun­try made their way to air­ports to do the same. Not sur­pris­ingly, some of these first he­roes of the Trump re­sis­tance were the le­gal nerds. In the days fol­low­ing, as I re­ported out the story, I was be­ing di­rected over and over to lawyers who had taken it upon them­selves to drive to air­ports—lawyers with no back­ground in im­mi­gra­tion law, peo­ple who were just show­ing up to find a way to bear wit­ness. A story by Reeves Wiede­man in New York mag­a­zine crunched the num­bers: in re­sponse to a call ear­lier in the week by IRAP, three thou­sand lawyers had vol­un­teered in just four hours. “By midafter­noon a stream of lawyers, some with im­mi­gra­tion ex­pe­ri­ence, oth­ers from big cor­po­rate firms in the city, had be­gun ar­riv­ing at JFK. (Women make up just 35 per­cent of all lawyers, but 60 per­cent of pub­lic-in­ter­est at­tor­neys are women, and the num­bers seemed to re­flect that.)” Re­port­ing sug­gested that about a hun­dred lawyers were de­ployed at the four ter­mi­nals at Kennedy air­port.

But as as­tound­ing as this re­al­ity on the ground was, the other great Amer­i­can story lay in the mas­sive pub­lic re­ac­tion to the travel ban. Be­cause while the lawyers were hastily draft­ing court pe­ti­tions and lin­ing up in air­ports to help, the other thing that hap­pened that week­end can only be de­scribed as a big un­scripted con­sti­tu­tional flash-mob. It was breath­tak­ing: the Bos­ton Tea Party at lug­gage carousels and park­ing lots. The crowds kept swelling, and by 6:00 p.m. on Fri­day, Jan­u­ary 27, there were thou­sands massed out­side JFK com­mu­ni­cat­ing by way of hu­man mi­cro­phone. Even be­fore the jour­nal­ists and politi­cians showed up, the cab­drivers, with their union, the New York Taxi Work­ers Al­liance, had de­manded an hour­long work stop­page for driv­ers serv­ing the air­port. The or­ga­niz­ers at JFK an­nounced an­other protest slated to hap­pen the next day in Bat­tery Park. Thirty thou­sand peo­ple turned up. The Amer­i­can peo­ple them­selves showed up, dis­or­ga­nized but pur­pose­ful.

As Eli Rosen­berg of The New York Times put it, of the scene on Sat­ur­day at JFK, “By the end of the day, the scat­ter­shot group had swelled to an enor­mous crowd. They filled the side­walks out­side the ter­mi­nal and packed three sto­ries of a park­ing garage across the street, a mass of peo­ple driven by emo­tion to this far-flung cor­ner of the city, singing, chant­ing and un­furl­ing ban­ners.” By 3:00 p.m. Sat­ur­day, crowds that had hastily or­ga­nized them­selves on Face­book were gath­ered at JFK and chant­ing, “No hate, no fear, im­mi­grants are wel­come here.” Folks watch­ing on­line were moved to march on Trump Tower or the White House or to stand in huge crowds on the side­walks out­side air­ports. At San Fran­cisco In­ter­na­tional Air­port, this swelling crowd of pro­test­ers chanted at im­mi­gra­tion of­fi­cials to “let the lawyers in.” In Phil­a­del­phia and Chicago and Hous­ton, at Wash­ing­ton Dulles and Seat­tle-Tacoma, crowds asked for noth­ing more than this: let these lawyers speak to their clients. These were real peo­ple, show­ing up with blan­kets and snacks and hastily Sharpied signs, de­mand­ing con­sti­tu­tional rights for trav­el­ers trapped in limbo. It was a scene that could have em­bod­ied the fond­est con­sti­tu­tional hopes of the framers: law­ful protest to de­mand le­gal re­dress for un­law­ful gov­ern­ment de­ten­tion. And the at­tor­neys, ac­cus­tomed to be­ing the butt of jokes that of­ten in­clude the words “bot­tom of the ocean,” were de­lighted to be cel­e­brated like he­roes. Back at JFK, at­tor­neys were hunched on the floor over their lap­tops, fil­ing emer­gency habeas pe­ti­tions on be­half of any­one they knew to be de­tained in a back room.

This “Air­port Rev­o­lu­tion,” as I’ve come to think of it, was one of the first mass up­ris­ings of the Trump era, and parts of it were—not un­like the Women’s March that took place just days be­fore—spear­headed and or­ga­nized by a lot of women who were an­gry and itch­ing to act. In some sense, both move­ments were an­i­mated by the same feel­ing: Amer­ica had elected a se­rial misog­y­nist and xeno­phobe, and the out­rage around that needed to be ex­pressed pub­licly. But the lawyers, par­tic­u­larly the fe­male lawyers, turn­ing up at air­ports that first week­end seemed also to be re­spond­ing to a call to do some­thing, to show up. This would be­come a through line as groups of women who had no prior ex­pe­ri­ence with po­lit­i­cal or­ga­niz­ing gath­ered over four long years to reg­is­ter vot­ers, or to phone their rep­re­sen­ta­tives, or to march against racial­ized po­lice vi­o­lence. As Jen­nifer Ru­bin put it in her 2021 book, Re­sis­tance: How Women Saved Democ­racy from Don­ald Trump, one change af­ter 2016 was that women came to un­der­stand that “pol­i­tics was no longer about what other peo­ple did.” The same, I would sub­mit, was true of women lawyers. Dozens of them de­scribed to me the ways in which Trump­ism forced them to break from their fo­cus on fam­ily law, an­titrust, trusts and es­tates work to do democ­racy work be­cause, to para­phrase Becca Heller, they re­al­ized that “They don’t have any­one else to call.” Which could just as well have been the al­ter­na­tive ti­tle for this book.

• • •

Heller her­self fi­nally made her way to JFK at about 2:00 a.m. on Sat­ur­day, less than twelve hours af­ter the Mus­lim ban went into ef­fect. Tele­vi­sion and so­cial me­dia were broad­cast­ing im­ages of fam­ily mem­bers at air­ports beg­ging to see their loved ones. Heller hadn’t re­ally grasped what was hap­pen­ing on the ground, be­cause her voice mail and email had crashed and she’d been on con­fer­ence calls with lawyers all night. “I didn’t know there were protests,” she said. “So when I ac­tu­ally got to JFK and there were thou­sands of peo­ple out­side, I said, ‘Who the fuck are all these peo­ple and what are they do­ing here?’ That was my first im­pres­sion, that we’d or­ga­nized maybe a hun­dred lawyers to be here, but who are these peo­ple and why are they out­side?”

Heller told me these civil­ian protests were largely spon­ta­neous. Some­one con­nected her with Daniel Altschuler from Make the Road Ac­tion, a group that em­pow­ers im­mi­grant com­mu­ni­ties, who was a bet­ter or­ga­nizer than she was. “I had for­got­ten a coat,” Heller told me. “I was also wear­ing jeans with a hole in it and a hoodie be­cause it just didn’t oc­cur to me that any of it would be tele­vised.” Heller was try­ing to give press in­ter­views and track the protests, and for part of the day she was at­tached to a New York Times re­porter solely be­cause she was us­ing his com­puter to power her dead phone bat­tery. She was hardly an ex­pert in any of it. “There was this dude, whose name I for­get, who was do­ing a re­ally good job or­ga­niz­ing peo­ple. And I re­mem­ber think­ing that I should try to re­cruit him to come work at IRAP. So I pulled him aside at one point and I said, ‘Hey, where do you work now?’ And he said, ‘Oh, I’m a con­sul­tant at McK­in­sey.’ And I said, ‘Oh, do you like it there?’ And he said, ‘Oh yeah, I love it.’ And I went, ‘All right, for­get it, great job.’ ”

“But peo­ple were self-or­ga­niz­ing,” she added, still sound­ing dazed at the way it came to­gether. “This is what a move­ment looks like.” Heller says that some­one from Mayor Bill de Bla­sio’s of­fice re­al­ized that the best way to fig­ure out the names of de­tained trav­el­ers—names nec­es­sary to file a habeas pe­ti­tion—would be to can­vass the fam­i­lies wait­ing at the ar­rival gates at JFK. So they cre­ated signs in the lan­guages from the banned coun­tries that said, are you wait­ing for some­one who hasn’t come out? They held up signs say­ing, do you need a lawyer? in Pushtu and Ara­bic and other lan­guages, then blasted that sug­ges­tion out to IRAP lawyers at air­ports na­tion­wide. A lawyer from a prom­i­nent Man­hat­tan law firm re­al­ized there was a diner, called Cen­tral Diner, in­side Ter­mi­nal 4, and she some­how ne­go­ti­ated with the man­age­ment to co-opt it into a makeshift law of­fice where at­tor­neys could in­ter­view client fam­i­lies.

Dar­weesh was re­leased early Sat­ur­day af­ter­noon af­ter al­most nine­teen hours in de­ten­tion. He emerged from the JFK ter­mi­nal with Con­gress­woman Ny­dia Velázquez and Con­gress­man Jer­rold Nadler, who’d spent the morn­ing try­ing to ne­go­ti­ate his free­dom. Ac­cord­ing to an ac­count in New York mag­a­zine, “The first thing he asked, putting his hands be­hind his back as if they were be­ing re­strained, was, ‘Why did this hap­pen to me?’ He couldn’t stop cry­ing.” When he was able to speak to re­porters, one of them asked Dar­weesh if he was an­gry. “No, be­cause I have these peo­ple,” he said, hold­ing on to his at­tor­ney’s shoul­der. “This is Amer­ica.”

That Sat­ur­day night, Jan­u­ary 28, 2017, I mar­veled in a col­umn for Slate that lawyers could be­come Amer­i­can su­per­heroes overnight. “To­day, the lawyers joined the fight. Don­ald Trump has no idea how ter­ri­fy­ing a blue book and a Lexis pass­word can be. He’s about to find out,” I wrote. But Heller was quick to point out that what re­ally killed the first travel ban, long be­fore any ju­di­cial ac­tion had been taken, was democ­racy it­self. “I take com­fort from the fact that it didn’t take a court to de­feat the first ex­ec­u­tive or­der,” she said. “The law­suit that we won, it didn’t de­feat the or­der; it just said peo­ple couldn’t be de­tained and de­ported un­der it. . . . What de­feated the or­der was peo­ple show­ing the fuck up.” The Trump ad­min­is­tra­tion walked back the worst parts of the travel ban al­most im­me­di­ately, and, as Heller says, “they didn’t roll back the first ex­ec­u­tive or­der in re­sponse to a court or­der or a con­gres­sional in­quiry re­view, or any­thing like that. They rolled it back on their own, be­cause democ­racy scared the shit out of them. Be­cause it turns out that what democ­racy looks like is chaos at the air­ports.” Af­ter years of march­ing, it’s easy to for­get that march­ing it­self is pro­tected First Amend­ment ac­tiv­ity. It is democ­racy hit­ting as­phalt.

Of course, what was hap­pen­ing that week­end in court­rooms around the coun­try was as im­por­tant as the mass protests. The first emer­gency hear­ing hap­pened at 7:30 on Sat­ur­day evening, Jan­u­ary 28, in a Brook­lyn court­room. The lawyers, seek­ing an emer­gency hear­ing, had sim­ply called the court­house, which was closed for the week­end, and some­body had picked up. They re­quested and were granted a hear­ing that night. The court­room was packed to ca­pac­ity, while a mas­sive crowd con­verged on Cad­man Plaza out­side. The fed­eral dis­trict judge Ann Don­nelly, who hap­pened to be the duty judge that week­end, presided as pro­test­ers shouted out­side.

Don­nelly, a for­mer fed­eral pros­e­cu­tor who had once pros­e­cuted a Tyco ex­ec­u­tive con­victed in 2005 for loot­ing al­most $100 mil­lion from the com­pany, took the bench. The ACLU took the po­si­tion that the Mus­lim ban vi­o­lated the Con­sti­tu­tion’s due process and equal pro­tec­tion clauses—the same is­sues Yates had flagged that week­end. The class of plain­tiffs still in­cluded Dar­weesh, and the Trump ad­min­is­tra­tion’s lawyers tried to ar­gue that the ACLU’s case was now moot be­cause the two named plain­tiffs—Dar­weesh and Al­shawi—were no longer in gov­ern­ment cus­tody. But there were many oth­ers still be­ing de­tained, and in her court­room, Judge Don­nelly wor­ried about all the trav­el­ers who hadn’t been granted spe­cial waivers and were still be­ing de­nied en­try.

In Wash­ing­ton, DC, that night, Trump ad­min­is­tra­tion of­fi­cials were headed out in black tie and ball­go­wns to the Al­falfa Club din­ner, a swanky event for the DC elite. But in Brook­lyn, stand­ing be­fore Judge Don­nelly, ACLU lawyer Lee Gel­ernt was mak­ing a fu­ri­ous case against the slap­dash or­der. He ex­plained that these de­tainees posed no risk to the United States: “It’s not as if these peo­ple weren’t vet­ted; they were just caught in tran­sit.” As he ar­gued, his team was mon­i­tor­ing the air­ports. Gel­ernt was thus able to tell the judge, in real time, at about 8:00 p.m., “We just got word that the gov­ern­ment is threat­en­ing to put some­one on a plane at 9:20.” He added that this par­tic­u­lar de­tainee at JFK was Syr­ian, part of the group of de­tainees he rep­re­sented, and was about to be sent back to a war zone while the hear­ing was hap­pen­ing.

Judge Don­nelly then turned to the gov­ern­ment at­tor­neys: “Ap­par­ently, there is some­body who they’re putting on a plane—what do you think about that—back to Syria? Ir­repara­ble harm?” She asked Su­san Ri­ley, a civil lawyer who worked in the Brook­lyn US At­tor­ney’s Of­fice, whether the Trump ad­min­is­tra­tion could as­sure her these peo­ple who were about to be de­ported would not suf­fer ir­repara­ble harm as a re­sult of be­ing sent away. Ri­ley didn’t know: “This has un­folded with such speed that we haven’t had any op­por­tu­nity to ad­dress any of the is­sues, the le­gal is­sues of the sta­tus of any­one who may be at the air­port.” Don­nelly was frus­trated. “Our own gov­ern­ment pre­sum­ably ap­proved their en­try to the coun­try,” she said, then asked Ri­ley, “If they had come in two days ago, we wouldn’t be here. Am I right?” Don­nelly then asked how many peo­ple the gov­ern­ment was de­tain­ing. Ri­ley replied that “the gov­ern­ment does not have suf­fi­cient in­for­ma­tion to an­swer.”

“That’s ex­actly why I’m go­ing to grant” the ACLU’s re­quest, replied Don­nelly, an­nounc­ing from the bench, “The stay is granted.” She signed the or­der at 9:00 p.m.—twenty min­utes be­fore the Syr­ian trav­eler at Kennedy air­port would have been re­turned to the war-torn coun­try. Gel­ernt asked the ad­min­is­tra­tion for a list of those who were still be­ing held at air­ports. “We don’t know. Peo­ple are com­ing in all the time,” replied Ri­ley. Don­nelly or­dered that such a list be gen­er­ated, warn­ing the gov­ern­ment that if there was any­one else “who is in dan­ger of be­ing re­moved, I di­rect you to com­mu­ni­cate that we have a stay.” No­body was be­ing flown out that night. “I am di­rect­ing the gov­ern­ment to stop re­moval if there is some­one right now in dan­ger of be­ing re­moved,” Don­nelly re­peated. “No one is to be re­moved in this class.”

This very first ju­di­cial or­der had come down just be­fore 9:00 on Sat­ur­day night, Jan­u­ary 28, just over twenty-four hours af­ter the travel ban had gone into ef­fect. Don­nelly signed her emer­gency or­der, writ­ing that refugees and trav­el­ers with valid visas be­ing de­tained at US air­ports could not be sent back to their home coun­tries. She or­dered the Trump ad­min­is­tra­tion to re­frain from de­port­ing pre­vi­ously ap­proved refugees as well as “ap­proved hold­ers of valid im­mi­grant and non-im­mi­grant visas and other in­di­vid­u­als . . . legally au­tho­rized to en­ter the United States” from the tar­geted coun­tries. En­forc­ing Trump’s or­der by send­ing the trav­el­ers home could cause them “ir­repara­ble harm,” she wrote. Her or­der ap­plied na­tion­wide, not just to the trav­el­ers ar­riv­ing at JFK. It didn’t grant en­try to these trav­el­ers or those who fol­lowed, but it did keep them from be­ing packed onto flights and shipped back to coun­tries where their lives were in dan­ger or coun­tries to which they had no con­nec­tions.

A crowd of at least a thou­sand New York­ers had gath­ered out­side the court­house. They erupted in cheers when Don­nelly’s rul­ing was an­nounced by Gel­ernt and the ACLU’s An­thony Romero on the court­house steps as peo­ple waved signs and shouted, “Thank you!” while some­one played a trom­bone. It was by no means over. Lawyers at air­ports showed screen­shots of Don­nelly’s in­junc­tion to im­mi­gra­tion of­fi­cials on their smart­phones. Not ev­ery gov­ern­ment of­fi­cial was moved to com­ply. The Yale pro­fes­sors Muneer Ah­mad and Mike Wish­nie fought for an Ira­nian Ful­bright scholar on a plane at JFK that night who was be­ing re­turned to Iran af­ter the or­der came down. They were ne­go­ti­at­ing with the gov­ern­ment as the flight was taxi­ing down the run­way. One of their first-year law stu­dents, brand new to their le­gal clinic, got a call through to the Port Au­thor­ity of New York and the New Jer­sey po­lice, fi­nally reach­ing a su­per­vi­sor to call the con­trol tower and turn the flight around.

Judge Don­nelly was the first in a long string of judges who would look at Trump’s travel ban and call it what it was—a hasty or­der that didn’t ac­count for the pain it caused im­mi­grants, trav­el­ers, and refugees. In­deed, it bears men­tion­ing that of the first judges to de­clare the travel ban un­con­sti­tu­tional in the last days of Jan­u­ary 2017, most were women. A few min­utes af­ter Judge Don­nelly en­tered her or­der, a vet­eran judge in the East­ern Dis­trict of Vir­ginia, Leonie Brinkema, is­sued an­other tem­po­rary re­strain­ing or­der (TRO), grant­ing all per­ma­nent le­gal res­i­dents de­tained at Dulles air­port ac­cess to lawyers and block­ing any pe­ti­tion­ers from be­ing re­moved. At 1:51 a.m. east­ern time, two fed­eral judges in Bos­ton, Al­li­son Bur­roughs and Ju­dith Dein, im­posed a seven-day re­strain­ing or­der paus­ing the ex­ec­u­tive or­der. And early Sun­day morn­ing in the West­ern Dis­trict of Wash­ing­ton, the US dis­trict judge Thomas Zilly is­sued an­other or­der halt­ing any de­por­ta­tions. Four of those first five judges were women, all in that first twenty-four hours.

Re­searchers have been study­ing the data on women judges for sev­eral decades, try­ing to as­cer­tain whether women make dif­fer­ent kinds of ju­di­cial de­ci­sions from men. The bulk of this re­search sug­gests that hav­ing women on the bench leads to dif­fer­ent re­sults in cases that have to do with gen­der; that when ap­pel­late judges sit to­gether on three-judge pan­els, a sin­gle woman can im­pact the opin­ions of her male col­leagues on cases about gen­der dis­crim­i­na­tion or sex­ual ha­rass­ment. (I have al­ways loved these stud­ies in­so­far as they seem to sug­gest that fem­i­nism is con­ta­gious and that men are sus­cep­ti­ble to catch­ing it.) There is less data to sup­port the idea that women have a uniquely fem­i­nine ju­di­cial voice or view­point on all le­gal ques­tions. Jus­tice San­dra Day O’Con­nor fa­mously re­jected the no­tion that women judge from a uniquely fe­male per­spec­tive, while Jus­tice So­nia So­tomayor fa­mously em­braced it. As an em­pir­i­cal mat­ter, it may not be sta­tis­ti­cally rel­e­vant that so many women judges en­joined the travel ban in the early hours, any more than it is sta­tis­ti­cally rel­e­vant that so many fe­male at­tor­neys showed up at air­ports as vol­un­teers. But it cer­tainly dove­tails with the big rise in women’s ac­tivism and en­gage­ment gen­er­ally in the Trump years. Maybe the most im­por­tant thing to be said of that four-out-of-five statis­tic is that it speaks vol­umes about the ways in which, in re­cent decades, Amer­ica man­aged to seat record num­bers of new fe­male judges and cre­den­tial record num­bers of new women lawyers. At min­i­mum, we can say it mat­ters that even a ran­domly se­lected pool of ju­rists could re­flect a bet­ter gen­der bal­ance on the fed­eral bench. At the end of his pres­i­dency, Trump’s fed­eral ju­di­cial nom­i­nees were 76 per­cent male (Barack Obama’s ju­di­cial nom­i­nees were 58 per­cent male). Those num­bers mat­ter whether or not women, or peo­ple of color, bring dif­fer­ent “view­points” to the bench. They mat­ter be­cause for courts to be le­git­i­mate, they must look like the coun­try it­self.

In a call with re­porters two days af­ter the first travel ban was pushed out, se­nior ad­min­is­tra­tion of­fi­cials in­sisted that the roll­out had been a “mas­sive suc­cess story in terms of im­ple­men­ta­tion on ev­ery sin­gle level.” The pres­i­dent in­sisted, “It’s not a Mus­lim ban, but we’re to­tally pre­pared. . . . It’s work­ing out very nicely. You see it at the air­ports, you see it all over. It’s work­ing very nicely.”

A week af­ter a raft of emer­gency re­strain­ing or­ders were en­tered in New York, Vir­ginia, Mass­a­chu­setts, and Cal­i­for­nia courts, the long, slow slog of na­tion­wide le­gal chal­lenges be­gan. Var­i­ous states, led by their own at­tor­neys gen­eral, filed law­suits, first in Wash­ing­ton State, then in Vir­ginia. Briefs and re­sponses were filed, hear­ings were dock­eted across the coun­try, and lawyers were co­op­er­at­ing and co­or­di­nat­ing strate­gies and le­gal the­o­ries. And the Trump Jus­tice De­part­ment was hav­ing an in­creas­ingly dif­fi­cult time jus­ti­fy­ing the pres­i­dent’s sham­bolic or­der. Over that first week, the scope of the travel ban had al­ready been nar­rowed to re­flect both push­back from the courts and con­ces­sions from the ad­min­is­tra­tion: Green card hold­ers from the seven af­fected coun­tries were now to be al­lowed into the United States. DHS amended its opin­ion to al­low dual cit­i­zens with pass­ports from coun­tries other than the seven listed to be ad­mit­ted. De­tainees were now be­ing given ac­cess to coun­sel.

Over a two-year pe­riod, travel ban law­suits would ping back and forth from the fed­eral trial courts to the fed­eral ap­peals courts. Ev­ery time the Trump ad­min­is­tra­tion suf­fered a loss, the pres­i­dent would tweet out in­vec­tive at the judges and un­spool yet an­other ver­sion of the ban. In March 2017, the ad­min­is­tra­tion an­nounced it was with­draw­ing the orig­i­nal or­der and im­ple­ment­ing a new one. In Sep­tem­ber 2017, a third ver­sion was un­furled. In no sense could the new ver­sions have been said to cure the re­li­gious an­i­mus that in­fected the orig­i­nal Mus­lim ban. But they man­aged to mask it and soft­ened some of the worst as­pects of the first it­er­a­tion. In a way, the courts were do­ing just what courts are meant to do—con­strain­ing and check­ing the ex­ec­u­tive branch. Both the Ninth and the Fourth Cir­cuit Courts of Ap­peals even­tu­ally struck down even this 3.0 ver­sion of the ban. It went on to the high­est court in the land.

In the spring of 2018, all eyes were on the US Supreme Court, where oral ar­gu­ments over the fi­nal ver­sion of the Trump travel ban were be­ing heard. On the last day of the term in June 2018, the court handed down its de­ci­sion in Trump v. Hawaii. By a 5–4 mar­gin, the jus­tices up­held the fi­nal ver­sion of the travel ban. Chief Jus­tice John Roberts, writ­ing for the five jus­tices in the ma­jor­ity, de­ter­mined that de­spite Trump’s anti-Mus­lim rhetoric, the gov­ern­ment had demon­strated “a suf­fi­cient na­tional se­cu­rity jus­ti­fi­ca­tion” for the Sep­tem­ber 2017 Procla­ma­tion, which had re­placed the orig­i­nal ex­ec­u­tive or­der, to sur­vive. At times strik­ing an al­most rue­ful tone, Roberts wrote that “the is­sue be­fore us is not whether to de­nounce the state­ments. It is in­stead the sig­nif­i­cance of those state­ments in re­view­ing a Pres­i­den­tial di­rec­tive, neu­tral on its face, ad­dress­ing a mat­ter within the core of ex­ec­u­tive re­spon­si­bil­ity. In do­ing so, we must con­sider not only the state­ments of a par­tic­u­lar Pres­i­dent, but also the au­thor­ity of the Pres­i­dency it­self.” Pres­i­dent Trump had won one of the few ma­jor cases of his pres­i­dency. He would cite this vic­tory and the vast ex­ec­u­tive pow­ers the court had granted him in Feb­ru­ary 2019, when he de­clared a state of emer­gency on the south­ern bor­der.

Becca Heller told me it isn’t an ac­ci­dent that the first spon­ta­neous mass up­ris­ing of the Trump era hap­pened at US air­ports. It’s the same les­son she learned about asy­lum seek­ers more than a decade ear­lier: “I think it’s about the in­evitabil­ity of hu­man move­ment, the push of hu­man flow; this is both where their fear comes from and why, ul­ti­mately, their xeno­pho­bic pro­gram is doomed to fail.” Hu­mans move; cli­mate change and global in­sta­bil­ity make that in­evitable. The prob­lem of refugees and asy­lum seek­ers would prove to be one of the cen­tral hu­man­i­tar­ian fail­ures of the Trump era—made man­i­fest in fam­ily sep­a­ra­tion poli­cies at the bor­der and the dec­la­ra­tion of a na­tional emer­gency to fund a bor­der wall Con­gress had al­ready re­fused to pay for.

As for Becca Heller, IRAP went on to file one law­suit af­ter an­other, in a fight that seemed to lurch on­ward in ever-chang­ing forms. She was the re­cip­i­ent of a MacArthur Ge­nius Grant in the fall of 2018, some of which she used to pay off her law school loans. She told me that at one point in the midst of the great Air­port Rev­o­lu­tion of 2017, she got a call from her mother. “It was maybe Sun­day,” she said, “so three days of no sleep and my mom called to ask how I was do­ing, and I said—and I do like dark hu­mor—‘Oh, I’m liv­ing the first line of my obit­u­ary.’ ” She paused. “I thought I was kid­ding. And now I’m wor­ried that I wasn’t.”

Heller also told me that what­ever she felt through­out that time, she didn’t feel an­gry. “To be an­gry is to be­come like them,” she said. “I have a kid now. I don’t want to live in a place where I’m that an­gry. I had to find some other psy­cho­log­i­cal frame­work from which to fight this.” She added, “Re­sis­tance, by def­i­ni­tion, means you’re los­ing. And you don’t have to be okay with los­ing. But you can’t let los­ing set you back. You had to un­der­stand that for the next four years or eight years or what­ever it is, we’re all in dam­age mit­i­ga­tion mode. And that if you were win­ning, it wouldn’t be called re­sis­tance; it would be called tyranny.”

Heller isn’t sen­ti­men­tal or starry-eyed about the courts and the law. She says she never re­ally fetishized ei­ther, which sets her apart from some of the other women in this book: “I didn’t go to law school be­cause I had a deep re­spect for the courts and the rule of law. I think a lot of the law is com­pletely ridicu­lous. The law says a lot of re­ally hor­ri­ble things, and his­tor­i­cally has said a lot of re­ally hor­ri­ble things, and it has been used in a lot of re­ally hor­ri­ble ways. But, I think, some­times you can use it to achieve good things. I mean, to me, get­ting a law de­gree is just about us­ing the mas­ter’s tools to de­stroy the mas­ter’s house.” So many of the women I met over the Trump years ex­pressed this am­biva­lence. The Amer­i­can le­gal sys­tem was fun­da­men­tally a ma­chine built to priv­i­lege prop­er­tied white men. But it’s the only thing go­ing, and you work with what you have.

Heller also cap­tured that am­biva­lence as a woman who grad­u­ated from law school a gen­er­a­tion af­ter Sally Yates. We have come so far and some­times it seems noth­ing has changed. “I have not per­son­ally ex­pe­ri­enced very much gen­der dis­crim­i­na­tion,” she told me, “in part be­cause my per­son­al­ity has a lot of what you would call ‘mas­cu­line traits.’ I’m very loud, very as­sertive. I don’t scare eas­ily.” But Heller also re­calls that the mo­ment she de­cided to start her own lit­i­ga­tion shop at IRAP came dur­ing one of the Mus­lim ban law­suits, “in a con­fer­ence room with some very high-pow­ered and very al­legedly open-minded lib­eral lit­i­ga­tors, and they were al­most all men.” The team was do­ing a prac­tice oral ar­gu­ment, “and ev­ery time I talked, it was like I hadn’t spo­ken.” This was not, she ob­serves, be­cause she is a quiet per­son.

As she de­scribed it, the ses­sion “got to the point lit­er­ally where I said some­thing. And then some­one else in a po­si­tion of a lot of power said ex­actly the same thing right af­ter me, and I lost my cool.” She told him, “I lit­er­ally just said that.” She de­scribed the room go­ing silent and get­ting “five texts all at once from other peo­ple in the room say­ing, ‘We heard you say it.’ ” But for her, the prob­lem was that “no­body said shit out loud.” Jus­tice Ruth Bader Gins­burg fre­quently de­scribed hav­ing pre­cisely the same ex­pe­ri­ence as a law fac­ulty mem­ber and on into her time on the Supreme Court—that she would make a com­ment that would be met with si­lence, and when the same words were shared by a male col­league, the room would re­spond with “great idea, let’s dis­cuss it.”

Heller de­cided on the spot: “I want my own lit­i­ga­tion shop. . . . I want a fe­male lit­i­ga­tion di­rec­tor.” Her doubts about the law and the courts ex­tend, by the way, to lit­i­ga­tion it­self. As she ex­plains, “I just think this whole idea of lit­i­ga­tion—that truth is best ar­rived at by two peo­ple tak­ing di­a­met­ri­cally op­posed po­si­tions and fight­ing it out—is such a stupidly mas­cu­line way to ar­rive at con­sen­sus.” But again, this is the world in which she must op­er­ate, and so as she said, “I de­cided to build a lit­i­ga­tion shop that in­volves peo­ple who rec­og­nize the stu­pid­ity of the sys­tem, but will still use it to fight in the ways we need it as a tool, but won’t let ego af­fect their de­ci­sions.” As she noted, they have brought some huge cases and so far won ev­ery sin­gle one of them. Speak­ing from the van­tage of some­one who learned a lot about gen­der and law and power, at a very young age and on the job, Heller con­ceded the fol­low­ing: “The gen­der thing, I’ve re­al­ized, is not what hap­pens when I speak up . . . but what hap­pens in my own head.”

Becca Heller sits un­com­fort­ably be­side some of the women in this book who re­mained ar­dent in­sti­tu­tion­al­ists de­spite rec­og­niz­ing that the law could be dis­torted and ma­nip­u­lated. And yet like Pauli Mur­ray, she proves that even a woman with griev­ous doubts about the Amer­i­can le­gal sys­tem can lever­age that sys­tem to ben­e­fit ev­ery­one. And if do­ing your level best with what’s out there isn’t some­times a defin­ing theme of Amer­i­can wom­an­hood, I’m not sure what is.

Heller walked into the first week of the Trump era as a very young at­tor­ney with a com­pli­cated coali­tion of im­mi­gra­tion lawyers and a strong fore­bod­ing about what was about to hap­pen. She had a plan, a set of com­mit­ted vol­un­teers, and the con­vic­tion that she should be lis­ten­ing to that lit­tle voice in her head as if she were a man. Be­fore Trump was elected, we liked to be­lieve that the at­tor­neys could just magic up an­swers, and while they did so, ev­ery­one else could pop up some but­tery snacks and wait and watch. Becca Heller and the Air­port Rev­o­lu­tion are proof that con­sti­tu­tional democ­racy isn’t just for spec­ta­tors and it cer­tainly isn’t just for at­tor­neys. (Heller doesn’t care much for at­tor­neys, any­how.) There was some­thing about or­di­nary peo­ple show­ing up, and the hand­ful of ac­tivists who en­gi­neered it, that still feels like the end of a rom-com. And there’s some­thing about the im­ages of those spon­ta­neous crowds that still un­does us, per­haps be­cause four years later it would be mir­rored by elec­tions ac­tivists on the ground in Geor­gia do­ing the very same thing. Becca Heller likes to credit chaotic democ­racy for brush­ing back the xeno­pho­bia and fear of the Mus­lim ban. Me, I like to credit chaotic democ­racy for sav­ing chaotic democ­racy it­self.

4

Char­lottes­ville Nazis

Rob­bie Ka­plan: The Big Firm Lit­i­ga­tor

The first time Nazis marched in Char­lottes­ville, Vir­ginia, was May 13, 2017. Char­lottes­ville is a small city. As Pro­fes­sor Richard Schrag­ger of the Uni­ver­sity of Vir­ginia School of Law put it in a 2018 law re­view ar­ti­cle, “It has a pop­u­la­tion of ap­prox­i­mately 47,000 res­i­dents; it oc­cu­pies a ter­ri­tory of about 10 square miles. The Char­lottes­ville ‘down­town’ is about eight square blocks. The city has a part-time city coun­cil and mayor, a pro­fes­sional city man­ager, a city at­tor­ney and an as­sis­tant city at­tor­ney. The Char­lottes­ville po­lice de­part­ment has 127 of­fi­cers.” When you walk down Char­lottes­ville’s bricked-in down­town mall, you will see fif­teen peo­ple you know, whether you want to see them or not. It is—as my hus­band was ad­vised when we first moved there in 2000—not a smart town to pick if you re­ally want to cheat on your wife.

This blue col­lege town in the heart of a cen­tral Vir­ginia that was quickly turn­ing pur­ple was de­lib­er­ately se­lected for the first torch­lit white supremacy rally of the Trump era. The at­trac­tion was os­ten­si­bly a rag­ing dis­pute over Con­fed­er­ate war mon­u­ments in the city’s parks that had started a year and a half ear­lier when a lo­cal high school stu­dent launched a pe­ti­tion to have them re­moved. Res­i­dents were di­aled up to 12 over the city coun­cil’s de­ci­sion to sell and re­move these mon­u­ments in 2017. Richard Spencer, a white su­prem­a­cist who claims to have pop­u­lar­ized the term “alt-right” and who led chants of “Hail Trump, hail our peo­ple, hail vic­tory!” at a 2016 post­elec­tion cel­e­bra­tion of the new pres­i­dent in Wash­ing­ton, DC, was a grad­u­ate of the Uni­ver­sity of Vir­ginia. So was Ja­son Kessler, a lo­cal white su­prem­a­cist who be­came the point per­son for the march or­ga­niz­ers. Nor is it im­ma­te­rial that UVA is housed in Char­lottes­ville, that it was known as “the Har­vard of the Con­fed­er­acy,” and that the town still lies pinned un­der the shadow of Mon­ti­cello, home of Thomas Jef­fer­son—the pro­gen­i­tor of con­sti­tu­tional democ­racy, yes, but also the ca­sual pro­moter of both slav­ery and the fla­grant sex­ual ex­ploita­tion of Black women’s bod­ies.

It was never re­ally about the mon­u­ments. The stat­ues at is­sue in Char­lottes­ville were not even mon­u­ments from the Civil War. The Con­fed­er­ate stat­ues we were de­bat­ing were not ac­tu­ally erected un­til 1924, part of an un­spar­ing cam­paign to push African Amer­i­can res­i­dents out of Vine­gar Hill—a vi­brant Black neigh­bor­hood—in a show of white dom­i­nance and supremacy at the height of Jim Crow. And yet, the­o­ret­i­cally in de­fense of these mon­u­ments, in May 2017, a few dozen Nazis (who pre­fer to be called the “alt-right,” or “white su­prem­a­cists,” but they do like to wear Nazi in­signias and chant Nazi slo­gans) gath­ered be­neath the statue of Robert E. Lee on horse­back, bran­dish­ing some of Wal­mart’s finest tiki torches and can­dles. Richard Spencer, who led the torch­lit spec­ta­cle through Lee Park as at­ten­dees chanted “You will not re­place us” and “Blood and soil” (or the orig­i­nal ver­sion, “Blut und Bo­den”), in­sisted that the flick­er­ing torches were not in­tended to evoke Klan marches and that the chants weren’t meant to echo Nazi ral­lies; it was all sim­ply “a beau­ti­ful aes­thetic” and “kind of mys­ti­cal.” They chanted for a few min­utes, filmed them­selves hero­ically in the man­ner of Leni Riefen­stahl, and then dis­persed.

Those few mo­ments were long enough for the videos to rocket around the world and long enough to plant an emo­tional bruise on Char­lottes­ville that still hasn’t quite healed all these years later. I know, be­cause I had been liv­ing in Char­lottes­ville for sev­en­teen years when the white su­prem­a­cist marchers first made their way to this town in which they didn’t live, to fight over mon­u­ments about which they didn’t care, to make a troll-ey point about white peo­ple and their “re­place­ment” by Jews and non­whites. The city was hardly a case study in di­ver­sity and in­clu­sion; the long his­tory of seg­re­ga­tion still in­formed ev­ery part of the town’s racial­ized ed­u­ca­tion, hous­ing, and polic­ing dis­par­i­ties. But the white su­prem­a­cist rally proved to be salt in a wound for a com­mu­nity that be­lieved it­self pro­gres­sive.

Soon af­ter the first march, the lo­cal or­ga­nizer Ja­son Kessler sought a per­mit for a far big­ger and more am­bi­tious rally in Au­gust. On July 8, 2017, the KKK de­cided to get in on the white supremacy ac­tion, and about fifty of the Loyal White Knights of the Ku Klux Klan, head­quar­tered in North Car­olina, gath­ered at Jus­tice Park, many in hoods and wav­ing Con­fed­er­ate flags, all es­corted by po­lice in riot gear. Hun­dreds of lo­cal coun­ter­demon­stra­tors showed up in protest (I was one of them), and the Klans­men them­selves of­fered con­flict­ing me­dia state­ments about whether they were there to sup­port the Civil War mon­u­ments or sim­ply to protest “the on­go­ing cul­tural geno­cide . . . of white Amer­i­cans,” as one ex­plained to the press. When coun­ter­protesters failed to dis­perse quickly enough, the po­lice tear-gassed them, which added fuel to the bur­geon­ing nar­ra­tive that the lo­cal cops were there to pro­tect and cod­dle white su­prem­a­cists while gassing an­tiracist coun­ter­protesters.

That long sum­mer of 2017 also fea­tured a visit from the Proud Boys, yet an­other white su­prem­a­cist group that also fetishizes white dom­i­nance, male bond­ing, and Gap khakis. Lo­cals strug­gling to un­der­stand why the city was rapidly be­com­ing Dis­ney­land for Nazis were split as to whether the best strat­egy was to face them down in bars and fight or stay home and ig­nore the ju­ve­nile at­ten­tion seek­ing. We were also deal­ing with the grow­ing an­tic­i­pa­tion of the so-called Unite the Right rally, slated for Au­gust 12, which promised to be—ac­cord­ing to Spencer and the other or­ga­niz­ers, in­clud­ing the Tra­di­tion­al­ist Worker Party’s co-founder Matthew He­im­bach and other white su­prem­a­cist lead­ers—the big­gest white na­tion­al­ist rally in mod­ern his­tory. Kessler had re­ceived his per­mit. Sig­nage for the rally fea­tured prom­i­nent Nazi sym­bols. Par­tic­i­pat­ing groups would in­clude the Na­tional Pol­icy In­sti­tute, the neo-Con­fed­er­ate League of the South, neo-Nazi groups, and the Tra­di­tion­al­ist Worker Party groups as well as Van­guard Amer­ica and the Na­tional So­cial­ist Move­ment. The for­mer KKK Grand Wiz­ard David Duke would at­tend as part of the who’s who of white pride and racial in­tol­er­ance.

To re­peat: It was never about Civil War mon­u­ments or south­ern dig­nity or states’ rights or the era­sure of white his­tory. It was about white fury and vi­o­lent white ethno-na­tion­al­ism, and that was fu­eled by Don­ald Trump’s end­less claims about Mex­i­can rapists and Mus­lim ter­ror­ists. Dur­ing the 2016 cam­paign Trump had ini­tially re­fused to con­demn David Duke, retweeted a Twit­ter ac­count called WhiteGeno­cideTM, and per­sis­tently de­rided refugees and im­mi­grants. It needn’t re­flect a causal con­nec­tion that af­ter Trump won the elec­tion, white su­prem­a­cists like Spencer cel­e­brated the pres­ence in the White House of some­one whom he be­lieved shared his vi­sion of “peace­ful eth­nic cleans­ing” and his loathing of the Lü­gen­presse, the Nazi word for the me­dia.

• • •

It’s hard to re­flect on the Trump pres­i­dency with­out tak­ing into ac­count the ways in which it proved a chal­lenge for de­fend­ers of free speech. From ac­cu­sa­tions about “fake news” and claims about cen­sor­ship and de­plat­form­ing, Trump’s great gift lay in re­cast­ing First Amend­ment lib­er­ties as weapons to be used against other in­sti­tu­tions. The fram­ing of the Char­lottes­ville alt-right rally as pro­tected speech and protest was of a piece with that larger move.

The First Amend­ment pre­vents Con­gress from “abridg­ing the free­dom of speech, or of the press; or the right of the peo­ple peace­ably to as­sem­ble.” In a sense, then, it cel­e­brates this quintessen­tially Amer­i­can value—the right to talk smack—and is the most apt lib­erty to in­flame the mod­ern era, with de­bates over “can­cel cul­ture” and manda­tory donor dis­clo­sure and dox­ing dom­i­nat­ing ev­ery pol­icy ques­tion we face. The cur­rent Supreme Court turns out to be the most speech-pro­tec­tive court in Amer­i­can his­tory. That means that in re­cent decades it’s used the idea of pro­tect­ing free speech to, just for starters, kill sweep­ing ef­forts to limit cam­paign con­tri­bu­tions. It’s barred states from post­ing even truth­ful signs in re­pro­duc­tive health clin­ics. The court has used speech rights to make it harder for unions to col­lect mem­ber dues and or­ga­nize. It is per­haps fit­ting in its own way that vir­tu­ally any sort of con­duct that can be re­cast as “free speech” is per­mis­si­ble in a coun­try where no­body ever seems to stop talk­ing.

The free speech clauses are also among the most widely mis­un­der­stood. Ev­ery time some­one in­sults some­one else on ca­ble news, then faces reper­cus­sions, peo­ple start to hoot and holler about the death of the First Amend­ment. But of course the First Amend­ment ap­plies only to gov­ern­ment cen­sor­ship and not to ev­ery cen­sor or spon­sor or em­ployer. And the First Amend­ment also doesn’t ren­der any of us im­mune from the pub­lic or eco­nomic con­se­quences of do­ing and say­ing stupid or hate­ful things. More than any other cat­e­gory er­ror, the mis­taken no­tion that the First Amend­ment al­lows any Amer­i­can to say any­thing, any­where with im­punity is among the most per­va­sive. That said, there are not a lot of Supreme Court free speech cases fea­tur­ing peo­ple we ad­mire greatly. A vast ar­ray of sketchy pornog­ra­phers, over­heated rab­ble-rousers, and no­table big­ots and big­mouths have given their names to the body of cases that pro­tect free speech rights for the rest of us.

The Chicago sub­urb of Skokie, Illi­nois, had a pop­u­la­tion of about 70,000 peo­ple in 1977, of whom ap­prox­i­mately 45,500 were Jew­ish. Be­tween 5,000 and 7,000 of those Jews had sur­vived the con­cen­tra­tion camps of the Holo­caust, which is pre­cisely why the Nazi Party of Amer­ica chose Skokie for their sym­bolic hate march in May 1977. The thirty to fifty demon­stra­tors planned to wear Nazi uni­forms and swastikas, but or­ga­niz­ers made clear that they had no in­ten­tion of threat­en­ing or harm­ing any­one. When it be­came clear that thou­sands of coun­ter­protesters would come out in re­sponse to the march—and that some kind of vi­o­lence might en­sue—a fed­eral dis­trict court en­joined the wear­ing of Nazi uni­forms or swastikas in the pa­rade or the dis­tri­bu­tion of pam­phlets that might in­cite hate. Both the Illi­nois ap­peals court and the Illi­nois Supreme Court re­fused to lift the in­junc­tion. The case came up to the US Supreme Court in the spring of 1977.

In a per cu­riam, or un­signed, opin­ion au­thored by Jus­tice John Paul Stevens, the high court found that the lower courts in Illi­nois should have im­posed stricter pro­ce­dural safe­guards be­fore al­low­ing the in­junc­tion to re­main in place and then sent the case back to the lower courts for an­other look. It was a tech­ni­cal so­lu­tion, yes, but the sub­stance of that Skokie rul­ing has come to stand for the broader le­gal propo­si­tion that the con­sti­tu­tional bar for ban­ning—in ad­vance—a pa­rade or a march is ex­ceed­ingly high and that courts must be ex­traor­di­nar­ily def­er­en­tial to the free speech in­ter­ests as­serted by pro­test­ers. The court bat­tle over the Nazi marchers in Skokie went up and down the court sys­tem for fif­teen months, un­til the fi­nal march was in­deed al­lowed to take place, but re­lo­cated to Chicago, on June 24, 1978, at which point The New York Times es­ti­mated that two thou­sand coun­ter­protesters “drowned out” the twenty Nazis, and the Chicago Tri­bune snick­ered that the whole march “sput­tered to an un­spec­tac­u­lar end af­ter 10 min­utes.” It was one of the most un­der­whelm­ing dis­plays of Nazi pride in recorded his­tory.

But the Skokie lit­i­ga­tion roiled the ACLU, which had tapped a Jew­ish at­tor­ney—David Gold­berger—to de­fend Frank Collin, the leader of the Nazi Party. Hun­dreds of ACLU mem­bers re­signed from the group in protest. The case stood for both Jews and civil lib­er­tar­i­ans as a high-wa­ter mark for the prin­ci­ple, ar­tic­u­lated by Noam Chom­sky, that “if we don’t be­lieve in free­dom of ex­pres­sion for peo­ple we de­spise, we don’t be­lieve in it at all.”

For decades the Skokie story stood as a tes­ta­ment to the idea that al­low­ing hate­ful and big­oted speak­ers to have their fo­rum, so they could be drowned out by right-think­ing speech in the bright sun­light, was the ob­vi­ous so­lu­tion to the free speech dilemma. Sad Nazis march­ing to the car­toon­ish womp womp of sad trom­bones for dumb ideas was the phys­i­cal man­i­fes­ta­tion of the no­tional de­fense of the mar­ket­place of ideas and its power to sort good speech from bad.

All through the long sum­mer of 2017, at ev­ery din­ner party and bar­be­cue and visit to the pool (which had been for whites only just a few decades ear­lier), when I was asked my opin­ion about free speech and the plans for Au­gust 12, my an­swer was twofold: One, that Skokie was the rea­son the Nazis had to be al­lowed to march. And two, that the po­lice and the city would pro­tect us. I was ul­ti­mately wrong on both counts.

• • •

In the days lead­ing up to the Unite the Right rally, when it be­came clear that hun­dreds of white su­prem­a­cists, many of whom planned to wear mil­i­tary garb and shields and carry re­pur­posed flag­poles and sprays, and some of whom in­tended to bear arms, were com­ing to protest, a le­gal scuf­fle en­sued be­tween the march or­ga­niz­ers and the city. The town abruptly an­nounced that the per­mit for the march would be ap­proved only if the event could be moved to a larger park, far from the mon­u­ments in a crowded down­town square. Kessler, the lo­cal or­ga­nizer, sup­ported by the ACLU, then sued the City of Char­lottes­ville on free speech grounds; he ar­gued the protest had to be near the mon­u­ments. A fed­eral trial court judge agreed. The march would take place at the cramped down­town parks, where the dis­puted stat­ues stood, and the Nazis made var­i­ous prom­ises about how they would con­duct them­selves hon­or­ably.

Lo­cal res­i­dents made hasty de­ci­sions about whether to join the coun­ter­protests—which might turn vi­o­lent—stay home, or at­tend an­tiracist ral­lies at al­ter­nate venues. I joked wryly that each of the three rab­bis in the lone syn­a­gogue in town picked one of the op­tions: rally for jus­tice, base­ment, or head down­town pre­pared for con­flict, and fam­i­lies divvied them­selves up to fol­low the rabbi of their choos­ing. We sat qui­etly in the Black churches and lis­tened to women who had grown up for­bid­den to cut through the “white” parks as they de­scribed their fear of the lo­cal po­lice and wor­ried for the fates of their grand­sons if they protested the Nazis out in the city parks.

We knew days in ad­vance that a dan­ger­ous march would hap­pen on the UVA cam­pus on Au­gust 11. We knew be­cause leaked in­ter­net plans and chats were al­ready in cir­cu­la­tion show­ing that this was not to be a peace­ful white pride march. We knew there would be guns car­ried and that plans were sur­fac­ing about phys­i­cal con­flict with coun­ter­protesters. My then twelve-year-old son, sum­ming up what would be­come my mantra for the re­main­der of the furor over the march—if not for the Trump era more broadly—sadly told me on Au­gust 10 that if we en­gaged with the Nazis, we would lose, and if we ig­nored them, we would also lose. He was cor­rect on both scores, and the lin­ger­ing ques­tion of how to deal with big­ots who feed off the out­rage they en­gen­der seems like the defin­ing ques­tion of our life­times.

By the morn­ing of Au­gust 11, it was clear this was no longer a free speech prob­lem, even for those who had per­suaded them­selves oth­er­wise. I woke up that day to the buzzing of drones over­head, street clo­sures, sirens, he­li­copters, and the news that armed white su­prem­a­cists were rolling in from out of town, ar­riv­ing at the tiny lo­cal air­port, check­ing into ho­tels. David Duke was re­port­edly stay­ing at one of the finest re­sorts in town. An armed white su­prem­a­cist, Chris Cantwell, was briefly de­tained by the po­lice for hav­ing a gun in the park­ing lot out­side Wal­mart, pre­sum­ably as he stocked up on tiki torches. The po­lice, not­ing that “open carry is le­gal in Vir­ginia,” quickly let him go. Sud­denly, in a town where you knew ev­ery­one and couldn’t even at­tempt to cheat on your spouse, ev­ery­one looked like a stranger and a threat.

As the lo­cal jour­nal­ist Hawes Spencer de­scribed it for The New York Times that night, and later, in his 2018 book, Sum­mer of Hate, on Fri­day evening, Au­gust 11, in an unan­nounced pa­rade pre­ced­ing the Unite the Right rally, “sev­eral hun­dred torch-bear­ing men and women marched on the main quad­ran­gle of the Uni­ver­sity of Vir­ginia’s grounds, shout­ing, ‘You will not re­place us,’ and ‘Jews will not re­place us.’ They walked around the Ro­tunda, the uni­ver­sity’s sig­na­ture build­ing, and to a statue of Thomas Jef­fer­son, where a group of coun­ter­protesters were gath­ered, and a brawl en­sued.” The twist­ing line of torch­lit white su­prem­a­cists should not have been al­lowed to carry an open flame on cam­pus. A stu­dent RA ended up hid­ing a group of Black stu­dents in a nearby base­ment. White su­prem­a­cists were shout­ing “Hail Trump!” and “Into the ovens” and threat­en­ing to put coun­ter­protesters into camps.

Nazis be­gan to punch coun­ter­protesters and to hit them with torches. As UVA’s best-known fac­ulty mem­ber, the po­lit­i­cal com­men­ta­tor Larry Sabato, who was present on cam­pus that evening, would later say, cam­pus po­lice “gath­ered on the Ro­tunda steps in a line of about ten and did noth­ing.” In the melee, UVA stu­dents protest­ing the Nazis had lighter fluid thrown on them and were pep­per sprayed as lit torches were thrown in the air. Up the street, com­mu­nity mem­bers of var­i­ous faiths who had gath­ered at a prayer vigil held in St. Paul’s Memo­rial Church were not al­lowed to leave the build­ing. At Con­gre­ga­tion Beth Is­rael, the pri­mary syn­a­gogue in town and my own syn­a­gogue for sev­en­teen years, Torah scrolls sal­vaged from the Holo­caust had to be spir­ited away to con­gre­gants’ homes. Trust me here: none of it feels much like a movie when it’s hap­pen­ing on the streets and parks where your tod­dlers learned to walk.

But Fri­day night was of course noth­ing com­pared with the events of Sat­ur­day, Au­gust 12. Vir­ginia’s gov­er­nor, Terry McAuliffe, de­clared a state of emer­gency and called out the na­tional guard just be­fore the rally was set to start at noon. Hun­dreds of Nazis armed with shields, Mace, body ar­mor, clubs, flag­poles, rocket launch­ers, and semi­au­to­matic weapons marched through the park, in vi­o­la­tion of their prior agree­ment to en­ter only through a sin­gle en­trance. They swarmed in from all sides, and pro­test­ers and coun­ter­protesters could not be dif­fer­en­ti­ated by law en­force­ment. White su­prem­a­cists hurled in­sults—call­ing coun­ter­protesters fat but promis­ing that “we’d still do you” and threat­en­ing to put one African Amer­i­can woman on the “first f—— boat home.” Coun­ter­protesters were as­saulted and beaten, some­times in sight of the po­lice. An African Amer­i­can man, De­An­dre Har­ris, was bru­tally beaten by Nazis dressed in mil­i­tary tac­ti­cal gear in a lo­cal park­ing garage. And the law en­force­ment re­sponse was—as a com­pre­hen­sive re­port un­der­taken later would show—min­i­mal, as of­fi­cers stood by, un­trained and un­pre­pared for what was oc­cur­ring. School cross­ing guards had been con­scripted into ac­tive duty. A po­lice he­li­copter crashed, killing two of­fi­cers in­side. And of course David Duke of­fered up tri­umphal speeches in the park, as­sur­ing his cheer­ing fans, “This rep­re­sents a turn­ing point for the peo­ple of this coun­try. We are de­ter­mined to take our coun­try back. We are go­ing to ful­fill the prom­ises of Don­ald Trump, and that’s what we be­lieved in. That’s why we voted for Don­ald Trump, be­cause he said he’s go­ing to take our coun­try back.”

Armed mili­ti­a­men pa­trolled, in un­read­able in­signias, claim­ing they were keep­ing the peace, but who could know what they were pro­tect­ing? Drones buzzed end­lessly over­head. In in­ter­views with faith lead­ers from sev­eral houses of wor­ship, I was told that to the ex­tent any­one was pro­tect­ing lo­cal coun­ter­protesters that day, it was mem­bers of an­tifa, the loose amal­gam of an­tifas­cists who showed up at white su­prem­a­cist events. The city, the cops, and the state were over­whelmed. It was an in­va­sion.

That af­ter­noon, a Dodge Chal­lenger driven by James Alex Fields Jr., a white su­prem­a­cist who had trav­eled all the way from Ohio to par­tic­i­pate in Unite the Right, struck a group of coun­ter­protesters with his car and killed Heather Heyer, a thirty-two-year-old para­le­gal and so­cial jus­tice pro­tester, who died from blunt force in­jury to the chest. Nine­teen oth­ers were in­jured in that at­tack, in­clud­ing Mar­cus Mar­tin, a friend of Heyer’s who was hit by the car as he pushed his fi­ancée out of its way. His leg was ru­ined. Mar­tin, whose red sneak­ers can be seen in the iconic footage from that day, was cap­tured for all time, up­ended and fly­ing through the air from the force of Fields’s car, in a Pulitzer Prize–win­ning im­age of the at­tack.

The trauma didn’t end on Au­gust 12. Com­mu­nity mem­bers were stalked on­line by Nazi sym­pa­thiz­ers, egged on by the neo-Nazi web­site The Daily Stormer. African Amer­i­can neigh­bor­hoods were ter­ror­ized for days af­ter the rally. Lo­cals who had spo­ken to the press were doxed. Vans parked out­side the syn­a­gogue, keep­ing watch. But what could be done? Fields had been ar­rested and charged with mur­der. Kessler at­tempted to give a press con­fer­ence and was shouted down, then punched by a coun­ter­protester. Ac­tivists and an­tiracist pro­test­ers helped track down the iden­ti­ties and where­abouts of sev­eral Nazis by crowd­sourc­ing im­ages on­line. The com­mu­nity was shat­tered, and it wasn’t ini­tially clear that any­one who had planned the rally would be brought to jus­tice in any mean­ing­ful way. The Jus­tice De­part­ment, which would or­di­nar­ily in­ves­ti­gate the event as racial vi­o­lence di­rected at mi­nor­ity com­mu­ni­ties, stood by silently as the pres­i­dent re­fused to con­demn the white su­prem­a­cists. The po­lice, the courts, the uni­ver­sity, the city, and the state had all let Char­lottes­ville down, as had the fed­eral gov­ern­ment, and years later so­cial jus­tice ac­tivists ar­gued that sys­temic racism was and is the rea­son for the near-to­tal break­down of gov­ern­ment and in­sti­tu­tions that day.

• • •

Rob­bie Ka­plan called me at home in Char­lottes­ville on Au­gust 14 from her of­fice in Man­hat­tan. She had an idea for a law­suit. She just needed some plain­tiffs. Ka­plan had made a name for her­self in le­gal cir­cles as a pow­er­house com­mer­cial lit­i­ga­tor at Man­hat­tan’s Paul, Weiss, Rifkind, Whar­ton & Gar­ri­son—one of those fancy-name law firms that most young at­tor­neys would kill to work for. A pro­file in The Wash­ing­ton Post from 2021 de­scribes her as a “ ‘tra­di­tion­al­ist,’ in pearls, pumps and, pre-coro­n­avirus, su­pe­rior blond high­lights.” But the non­le­gal world also got to know Ka­plan when she went to the Supreme Court in 2013, rep­re­sent­ing Edie Wind­sor, the eighty-three-year-old widow who suc­cess­fully chal­lenged the De­fense of Mar­riage Act. Ka­plan sur­prised a whole lot of court-watch­ers, my­self in­cluded, when she pre­vailed in Edie’s case, in part be­cause she wasn’t one of a very rar­efied group of (mostly male, mostly white) spe­cialty ap­pel­late lit­i­ga­tors who ar­gue the bulk of the cases at the high court. Even in the Wind­sor case, Ka­plan was an out­sider in ev­ery way: a Jew­ish, gay, brash com­mer­cial lit­i­ga­tor from New York City, ar­gu­ing a tow­er­ing con­sti­tu­tional case at the high­est court in the land.

Wind­sor had been slammed with more than $350,000 in fed­eral es­tate taxes af­ter her wife, Thea Spyer, died in 2009. Had Spyer been her hus­band, no such penalty would have been ex­acted. Be­cause while the State of New York rec­og­nized their same-sex mar­riage, the fed­eral gov­ern­ment did not, as a re­sult of the De­fense of Mar­riage Act, a fed­eral statute that barred the gov­ern­ment from rec­og­niz­ing gay mar­riages for the pur­poses of many fed­eral ben­e­fits. Wind­sor started call­ing around to find a lawyer. As she was later fond of say­ing, un­like the other big law firms and lawyers who ig­nored her calls, “Rob­bie Ka­plan knew there was no wrong time for jus­tice.” In 2006, Ka­plan had lost a big ACLU suit she’d filed on be­half of thir­teen cou­ples who sued New York State seek­ing the right to marry. Un­daunted by the loss, she was rar­ing to try again. So, on be­half of Edie Wind­sor, Ka­plan sued the fed­eral gov­ern­ment, claim­ing that Sec­tion 3 of DOMA was un­con­sti­tu­tional. The Supreme Court agreed. Wind­sor’s vic­tory in 2013 would be­come the step­ping-stone to the Supreme Court’s land­mark Oberge­fell v. Hodges de­ci­sion in 2015, find­ing a con­sti­tu­tional right to mar­riage equal­ity through­out Amer­ica.

Ka­plan, who is in her mid-fifties, doesn’t come across as “scary smart” un­til she opens her mouth. That’s when you see her do­ing three-di­men­sional ju­jitsu that can’t al­ways be fol­lowed by even a sea­soned le­gal re­porter. Ka­plan says she knew she’d be a lawyer be­fore she could talk. Ac­tu­ally, she says she knew she would be an at­tor­ney be­cause there seem­ingly was no time be­fore she could talk. Grow­ing up in Cleve­land in the 1970s, she was fam­ily fa­mous be­cause of her pro­cliv­ity for the loud talk­ing, early and of­ten. When her grand­mother Belle im­plored tiny Rob­bie to just please stop yap­ping for fif­teen min­utes, she replied, “I can’t, Grandma. I’m a big talker.” She was two. By twelve, she knew she was headed to New York City to be­come an at­tor­ney, be­cause, as she said, “at some point I re­al­ized, if you got paid to talk as a lawyer, then that’s the ca­reer for me.” She grad­u­ated from Har­vard in 1988 and Co­lum­bia Law School in 1991. She knew she was gay for a long time be­fore she fi­nally al­lowed her­self to kiss a girl at age twenty-four.

Ka­plan’s life was al­tered for­ever when she took time off af­ter a year as a young as­so­ciate at Paul, Weiss to clerk for Ju­dith Kaye, at the time the chief judge of the New York Court of Ap­peals. It was 1994, gay mar­riage was a dis­tant dream, and Judge Kaye was hear­ing an adop­tion case that in­cluded claims by same-sex cou­ples seek­ing to adopt their part­ner’s child. Work­ing on that case as a clerk, Ka­plan be­gan to see how law could drive large-scale so­cial change. She re­turned to Paul, Weiss, work­ing un­der Mar­tin Lon­don, a leg­endary lit­i­ga­tor, on com­plex com­mer­cial cases. “I loved lit­i­gat­ing,” she said. “I loved the ethos of the place, that we al­ways did it at the very high­est level. I loved that it was this in­cred­i­ble group of in­cred­i­bly smart peo­ple and all that re­ally mat­tered was, are you re­ally, re­ally smart? And are you funny? And Marty Lon­don, who was just a tremen­dous lawyer, was the epit­ome of that.” She worked on big cor­po­rate cor­rup­tion cases in­clud­ing a mas­sive suit in­volv­ing a Ja­pa­nese ex­ec­u­tive who lost a bil­lion dol­lars through rogue cop­per trad­ing, as well as com­plex lit­i­ga­tion in­volv­ing World­Com and AIG. She made part­ner in 1998 at age thirty-one. She was, in Lon­don’s words, smash­ing a “con­crete ceil­ing” as op­posed to just a glass one.

Ka­plan met her part­ner, Rachel Lavine, the fol­low­ing year. They were mar­ried in 2005 in Toronto, where same-sex mar­riage was al­ready le­gal. Their son, Ja­cob, was born in 2006, but Ka­plan was not al­lowed to carry him out of the hos­pi­tal when he was re­leased af­ter a bout of jaun­dice. Rachel was the only “mother” listed un­der the hos­pi­tal’s reg­u­la­tions. Ka­plan agreed to take Wind­sor’s case, as she re­lates in her mem­oir, Then Comes Mar­riage: United States v. Wind­sor and the De­feat of DOMA, be­cause both she and Edie were gay women, they both mar­ried in Toronto be­fore it be­came le­gal to marry in the United States, and, im­prob­a­bly enough, Ka­plan had ac­tu­ally heard about Edie Wind­sor eigh­teen years ear­lier.

One of the ways Ka­plan’s fun­da­men­tally con­ser­va­tive world­view man­i­fested it­self was that she was in the closet un­til her law school grad­u­a­tion. When she fi­nally came out to her par­ents at age twenty-five in 1991, her mother was dev­as­tated. She walked up to a wall and be­gan bang­ing her head, re­peat­edly, in dis­may. “Which she has apol­o­gized for over and over again,” Ka­plan says. But she ex­pe­ri­enced a fairly se­ri­ous bout of de­pres­sion. She met with a ther­a­pist named Thea Spyer, who men­tioned her own same-sex re­la­tion­ship as she coun­seled Ka­plan. Thea Spyer was re­fer­ring to her life­long part­ner, Edie Wind­sor.

As Ka­plan stood to present Edie’s case be­fore the nine jus­tices in 2013, one of the things she said about the anti­gay hos­til­ity leg­is­lated into the De­fense of Mar­riage Act was that “times can blind.” She ref­er­enced that phrase—penned a few years ear­lier in an opin­ion by Jus­tice An­thony Kennedy—in part as a strate­gic ef­fort to win Kennedy over to her view, which is just savvy lawyer­ing. But she also de­ployed his phrase as a clar­ion moral call: our times them­selves can blind us to what is right and wrong.

Ka­plan was wor­ried about what was hap­pen­ing to the coun­try even be­fore No­vem­ber 2016. She was in Ohio do­ing cam­paign events for Hillary Clin­ton and re­called that “as we drove from Kenyon to Ober­lin, there were no su­per­high­ways; it was all ru­ral roads. And I re­mem­ber do­ing that drive and see­ing Con­fed­er­ate flag af­ter Con­fed­er­ate flag. And be­ing in shock. Be­cause I grew up in Ohio, and es­pe­cially in Ober­lin, which was the seat of the Un­der­ground Rail­road, and think­ing to my­self, we’re in deep trou­ble. Ohio was not part of the Con­fed­er­acy.” Ka­plan had been hop­ing for a job in a Hillary Clin­ton Jus­tice De­part­ment post­elec­tion. Trump’s vic­tory put an end to that. So im­me­di­ately af­ter in­au­gu­ra­tion week­end, she started talk­ing about cre­at­ing her own firm. The vi­sion, she said, was “to have this re­ally high-end com­mer­cial prac­tice that would have this very strong ded­i­ca­tion to pub­lic in­ter­est and pro bono.” That sum­mer of 2017, she launched Ka­plan Hecker & Fink, her own bou­tique firm, al­most un­heard of in the world of fe­male cor­po­rate at­tor­neys. The model com­bines com­mer­cial lit­i­ga­tion with pro­gres­sive pub­lic-in­ter­est prac­tice. She started out with three lawyers, work­ing out of a bor­rowed barn, look­ing for cases re­lated to Trump busi­ness prac­tices.

The day af­ter Heather Heyer’s death on the streets of Char­lottes­ville in Au­gust 2017, Don­ald Trump made a brief pub­lic state­ment in which he said “we con­demn in the strong­est pos­si­ble terms this egre­gious dis­play of ha­tred, big­otry and vi­o­lence on many sides, on many sides.” That made no sense. A po­lice af­fi­davit de­tail­ing who was plan­ning to show up at the Unite the Right rally listed roughly 250 to 500 Klans­men and more than 150 “Alt-Knights,” an off­shoot of the Proud Boys. The neo-Nazi An­drew An­glin had posted on The Daily Stormer on Au­gust 8, 2017, what the pur­pose of Unite the Right would be:

Al­though the rally was ini­tially planned in sup­port of the Lee Mon­u­ment, which the Jew Mayor and his Ne­groid Deputy have marked for de­struc­tion, it has be­come some­thing much big­ger than that. It is now an his­toric rally, which will serve as a ral­ly­ing point and bat­tle cry for the ris­ing Alt-Right move­ment.

“Blood and soil” had noth­ing to do with Civil War stat­ues, and claims about vi­o­lent an­tifa coun­ter­protesters were de­flec­tions. The vi­o­lence and ter­ror were the ob­ject, and it was per­formed in plain sight. Posters for the rally were styled to look like Nazi pro­pa­ganda and fea­tured ev­ery white su­prem­a­cist who was look­ing for a star turn on white su­prem­a­cist Twit­ter. The pub­lic re­ac­tion to Trump’s equiv­o­cat­ing was fu­ri­ous, in­clud­ing from mem­bers of his own cab­i­net. He at­tempted to walk it back in a scripted pub­lic cor­rec­tion but then im­me­di­ately made the now-in­fa­mous ob­ser­va­tion “You had some very bad peo­ple in that group, but you also had peo­ple that were very fine peo­ple, on both sides.” In later years, he would claim that the alt-right provo­ca­teurs were just peace­fully protest­ing the war mon­u­ments on the night of Au­gust 11. Those were the peo­ple with the torch­lights chant­ing “Jews will not re­place us” and gassing stu­dents with pep­per spray.

There were no fine peo­ple on the White su­prem­a­cist side of the Char­lottes­ville in­va­sion, but for a time it ap­peared that noth­ing would be done to cor­rect that pub­lic record. Rob­bie Ka­plan was stunned. Her fledg­ling team were still work­ing on fold­ing chairs in an of­fice they’d oc­cu­pied only five days ear­lier, when Au­gust 12 un­folded on TV in front of them. “We were work­ing on card ta­bles, and Char­lottes­ville hap­pened, and I said, okay, let’s watch the press con­fer­ence dur­ing lunch. Huge mis­take.” Why? “Be­cause a cou­ple of the par­ale­gals started cry­ing. I watched it and I thought to my­self im­me­di­ately that some­thing needed to be done. That I very much doubted that with Jeff Ses­sions as the at­tor­ney gen­eral he would fo­cus on it as a broad-based con­spir­acy, the way I thought it needed to be fo­cused. And I thought back to this case in­volv­ing this web­site called the Nurem­berg Files, and why can’t that be the strat­egy here?” She called me at home in Char­lottes­ville and asked if it made sense to come down and meet some peo­ple.

Not forty-eight hours later, Ka­plan and a small team of lit­i­ga­tors ar­rived in Char­lottes­ville, set up a makeshift of­fice in the bor­rowed con­fer­ence room at a le­gal aid of­fice, and started to in­ter­view po­ten­tial plain­tiffs. First, they got a walk­ing tour of the town and the places in which pri­vate tragedies had un­folded: the stat­ues, the African Amer­i­can neigh­bor­hoods, the nar­row street where the car ram­ming had oc­curred. Then they be­gan in­ter­view­ing vic­tims. Ka­plan said, “Peo­ple kept com­ing in and out, and I was prob­a­bly less sen­si­tive than I should have been. I’ve learned to have very thick skin. And at the end, we were driv­ing to the air­port and the team was cry­ing, bawl­ing in the car. And I said, ‘Buck it up, guys. We’ve gotta do this case. The time for cry­ing is over.’ ”

What she pro­posed to do, she ex­plained, as she re­cruited vic­tims of Au­gust 11 and 12, some of whom were still badly in­jured and some of whom were still be­ing ha­rassed on­line by white su­prem­a­cists, was to fig­ure out who planned and ex­e­cuted the Char­lottes­ville at­tacks and, al­most as ur­gent, who was fund­ing them. Ka­plan, backed by In­tegrity First for Amer­ica, a non­profit that fi­nances civil rights and abuse-of-power lit­i­ga­tion, re­al­ized she was go­ing to need an­other big gun and so she con­tacted an­other vet­eran su­per-lit­i­ga­tor, Karen Dunn. Dunn is a part­ner at Paul, Weiss and a for­mer fed­eral pros­e­cu­tor in Vir­ginia who’d once served as com­mu­ni­ca­tions di­rec­tor for Sen­a­tor Hillary Clin­ton and as as­so­ciate coun­sel to Barack Obama. Dunn had worked with the owner of Wash­ing­ton, DC’s Comet Ping Pong pizza par­lor af­ter a North Car­olina gun­man walked into the crowded restau­rant and fired off three rounds with a semi­au­to­matic ri­fle be­cause he be­lieved a de­bunked in­ter­net con­spir­acy the­ory about child slav­ery tak­ing place in its base­ment. (There was no base­ment.) Watch­ing Dunn cross-ex­am­ine a wit­ness is the heady stuff of Perry Ma­son.

Ka­plan said, “I brought Karen in, be­cause I knew she’d been in­volved in Piz­za­gate, rep­re­sent­ing the guy who owned the pizza par­lor. She had a lot of ex­per­tise in this in­ter­sec­tion be­tween the First Amend­ment and vi­o­lent threats. I’d ad­mired her for a long time. I ad­mired the prac­tice she’d built for her­self at Boies Schiller. But I didn’t know her. And so I just called her out of the blue and said, ‘Hey, Rob­bie Ka­plan. How’d you like to sue some Nazis with me?’ ” Dunn’s re­sponse proved pre­scient. She told Ka­plan, “Yes, as long as I have se­cu­rity. I have three kids and I need se­cu­rity.”

• • •

Ka­plan’s le­gal the­ory was in­spired by a law­suit that had been brought in the 1990s by two leg­ends from the law firm Paul, Weiss—Maria Vullo and Mar­tin Lon­don—who’d sued an an­tiabor­tion web­site that posted pho­tos of abor­tion providers with their home ad­dresses and other iden­ti­fy­ing in­for­ma­tion. The web­site also in­cluded a leg­end: “Black font (work­ing); Greyed-out Name (wounded); Strikethrough (fa­tal­ity).” While the case, Planned Par­ent­hood v. Amer­i­can Coali­tion of Life Ac­tivists, never went to the Supreme Court and thus is not na­tional prece­dent, a lower fed­eral court de­ter­mined that web­sites that en­cour­aged read­ers to take vi­o­lent ac­tion con­sti­tuted an un­pro­tected “true threat.” That suit pre­vailed in the Ninth Cir­cuit Court of Ap­peals in 2002, on the the­ory that free speech stops when in­cite­ment to vi­o­lence be­gins. As that ap­peals court noted, find­ing for Planned Par­ent­hood, which had brought the suit, “be­ing listed on a Nurem­berg Files score­card for abor­tion providers im­pliedly threat­ened physi­cians with be­ing next on a hit list.” So Dunn and Ka­plan pro­ceeded on the le­gal the­ory that the twenty-five white su­prem­a­cist lead­ers and or­ga­niz­ers who came to Char­lottes­ville on Au­gust 11 and 12 in­tended to in­cite racial and re­li­gious vi­o­lence and had planned for just that. As their le­gal ve­hi­cle, they re­lied on a post–Civil War statute known as the Ku Klux Klan Act of 1871, passed to pro­tect newly freed slaves from mob vi­o­lence. The Klan Act makes it il­le­gal to con­spire to de­prive any per­son or class of peo­ple of their rights in a man­ner that is racially mo­ti­vated. A 1983 amend­ment to the Klan Act al­lows vic­tims of such ter­ror­ism to sue for money dam­ages. The the­ory of the case was that these groups con­spired for months to com­mit racially mo­ti­vated vi­o­lence, which meant this was a law­suit not about rad­i­cal speech and po­lit­i­cal pa­rades but about elab­o­rate plans by mul­ti­ple con­spir­a­tors to com­mit racial vi­o­lence.

In Oc­to­ber 2017, Ka­plan and Dunn filed their suit on be­half of eleven Char­lottes­ville res­i­dents in­jured in the Unite the Right rally, ei­ther as stu­dent coun­ter­protesters on the evening of Au­gust 11 or in the vi­o­lence of the next day. Four of their plain­tiffs were in­jured by James Alex Fields Jr.’s lethal car ram­ming, in­clud­ing Mar­cus Mar­tin. Eliz­a­beth Sines, the lead plain­tiff, a law stu­dent in 2017, wit­nessed both the Fri­day night march across cam­pus, with its torches and chants, and the car ram­ming the crowd of pro­test­ers the next day. “The trauma will never go away,” Sines told The New York Times in 2019. “Among other things, I will al­ways be on high alert when I’m in a large crowd and I’ll al­ways have night­mares—of the car at­tack, of torch­light ral­lies. I’ll be scared for­ever. But the events from that week­end have reaf­firmed for me how im­por­tant it is to show up.”

Among the twenty-five named de­fen­dants were Richard Spencer; the rally or­ga­nizer Ja­son Kessler; Christo­pher Cantwell; the Daily Stormer founder, An­drew An­glin; and James Alex Fields. Also named were the groups Iden­tity Evropa, Tra­di­tion­al­ist Worker Party, League of the South, and sev­eral KKK groups whose mem­bers at­tended.

But in the weeks af­ter Char­lottes­ville, African Amer­i­cans were still be­ing ter­ror­ized by white su­prem­a­cists in vans, and men­ac­ing white vans were still parked out­side the syn­a­gogue. Meet­ing with trau­ma­tized wit­nesses who were cer­tain they were still be­ing fol­lowed and stalked by white su­prem­a­cists com­mu­ni­cat­ing on­line was prov­ing ter­ri­fy­ing. Julie Fink is the man­ag­ing part­ner at Ka­plan Hecker & Fink, and she was one of the lawyers who went down to Char­lottes­ville in the days af­ter Au­gust 12 to help in­ter­view po­ten­tial plain­tiffs. She’d worked with Ka­plan on the Edie Wind­sor case and came over with her when Ka­plan founded her own firm in 2017. “I think Rob­bie is af­fected dif­fer­ently,” she told me. “Things that make me feel sad and scared, I think they make her feel like ‘we’re go­ing to fix it.’ ”

Fink said when they got to Char­lottes­ville, they im­me­di­ately un­der­stood that the av­er­age New Yorker might find it hard to ap­pre­ci­ate what had just taken place. “Just be­ing there, you re­al­ize how small it is. And you can’t pic­ture what it’s like to open your door and see some­one, you know, ten feet from you with a semi­au­to­matic weapon and a Nazi flag. I couldn’t have re­ally imag­ined what that fear would’ve been like.” In a bor­rowed con­fer­ence room, they were hear­ing from the fu­ri­ous African Amer­i­can com­mu­nity, Fink said. “ ‘We had these text mes­sages,’ they said. ‘We went into the city coun­cil. We told them, They’re com­ing here to kill us, and they’re com­ing here to hurt us. And we told them this was go­ing to hap­pen, and no­body did any­thing.’ ” These Black cit­i­zens had been ter­ror­ized, said Fink, “just feel­ing like there’s nowhere you can go, and sit­ting in a park and hear­ing, whether it’s true or not, that a group of peo­ple were go­ing to African Amer­i­can neigh­bor­hoods. It was all so close.”

And that is pre­cisely what it felt like, that whole sum­mer of 2017, where you were afraid to make eye con­tact with any­one on the streets and when ev­ery T-shirt and ev­ery tat­too was sud­denly a threat and my own sons ran home from the lo­cal sprin­kler park be­cause a man with a huge swastika tat­too was sud­denly hang­ing out shirt­less in the wa­ter. My hus­band, brav­ing a trip to the down­town mall to sup­port the coun­ter­protesters on the night the Proud Boys were com­man­deer­ing lo­cal bars, was gravely ad­vised by my el­der son, then four­teen, to “bring a knife.” What­ever it was that was hap­pen­ing those weeks pre­fig­ured what would even­tu­ally hap­pen at the Capi­tol on Jan­u­ary 6, 2021, when your town is sud­denly un­rec­og­niz­able to you and your en­tire coun­try feels cracked in two.

Fink said that feel­ing was ev­ery­where the week af­ter Au­gust 12: “That was the other thing about be­ing in Char­lottes­ville, it was like, ‘This isn’t over.’ They were afraid that they were go­ing to be hacked. They were afraid of talk­ing in pub­lic. They were afraid of any­one know­ing that they were com­mu­ni­cat­ing about it. They were afraid for their fam­i­lies. Their fam­i­lies were still be­ing tar­geted.”

The com­plaint in Sines v. Kessler reads like no le­gal doc­u­ment I had ever seen. The ninety-six-page plead­ing, filed in a fed­eral dis­trict court in Vir­ginia, is a doc­u­men­tar­ian’s dream, re­plete with all the tweets, mes­sages, and graphic pho­tos that cap­ture in pointil­list de­tail both the pre­med­i­tated plan­ning of and the on­go­ing on­line de­light in an event that ter­ror­ized a small city. Judge Nor­man Moon, the fed­eral dis­trict court judge over­see­ing the law­suit, noted that the fil­ing’s length was “push­ing the lim­its” of fed­eral fil­ing re­quire­ments, be­fore he al­lowed it.

As the com­plaint ex­plains, “Un­der the pre­text of a ‘rally,’ which they termed ‘Unite the Right,’ De­fen­dants spent months care­fully co­or­di­nat­ing their ef­forts, on the in­ter­net and in per­son. They ex­horted each other: ‘If you want to de­fend the South and West­ern civ­i­liza­tion from the Jew and his dark-skinned al­lies, be at Char­lottes­ville on 12 Au­gust,’ and, ‘Next stop: Char­lottes­ville, VA. Fi­nal stop: Auschwitz.’ In count­less posts on their own web­sites and so­cial me­dia, De­fen­dants and their co-con­spir­a­tors promised that there would be vi­o­lence in Char­lottes­ville, and vi­o­lence there was. What the plan­ners of the rally later claimed was pro­tected free speech was, ac­cord­ing to the com­plaint, a con­spir­acy to com­mit and to en­cour­age oth­ers to com­mit racial vi­o­lence.”

What Ka­plan and Dunn re­ally wanted to put out into the pub­lic sphere was on­line ev­i­dence of thou­sands of mes­sages posted on an in­vi­ta­tion-only on­line plat­form called Dis­cord. These mes­sages showed that what­ever this event was in­tended to be, Skokie it was not. The com­plaint scooped up mes­sages and posts that chor­tled, “I’m ready to crack skulls” and “If you don’t have a flame thrower you’re wrong” and “Bring­ing women to a protest/rally where we ex­pect vi­o­lence is fuck­ing re­tarded . . . even if you aren’t ex­pect­ing vi­o­lence you should pre­pare for it.” They al­leged that Christo­pher Cantwell had “en­cour­age[d]” his own fol­low­ers “to carry a con­cealed firearm.” Or­ga­niz­ers told at­ten­dees that there would be “money and a le­gal team set aside for” ar­restees. Chill­ingly, they also used their in­ter­net chats to co­or­di­nate trans­porta­tion and to de­bate whether car ram­ming was le­gal. One posted, “Is it le­gal to run over pro­tes­tors block­ing road­ways?”

Ka­plan and Dunn also showed in their fil­ing that the or­ga­niz­ers were cel­e­brat­ing Fields’s mur­der of Heyer, with one writ­ing, “Dirty apes play­ing in the street gotta learn the hard way #Char­lottes­ville.” Christo­pher Cantwell told a Vice re­porter, “I’d say it was worth it. No­body on our side died . . . none of our peo­ple killed any­body un­justly . . . our ri­vals are just a bunch of stupid an­i­mals who don’t pay at­ten­tion that couldn’t just get out of the way of the car.” For Ka­plan and Dunn, a Jus­tice De­part­ment with a ro­bust con­cern for civil rights in the face of lethal white su­prem­a­cist vi­o­lence would have brought this suit. The Trump ad­min­is­tra­tion had in fact done the op­po­site: rolling back gov­ern­ment ef­forts to track and pre­vent white do­mes­tic ter­ror­ism, even though it was resur­gent, and min­i­miz­ing the mas­sive rise in race-based mur­ders and hate crimes.

How did they di­vide the work­load? Says Ka­plan, “In the mo­tion to dis­miss, Karen did the con­sti­tu­tional is­sues and I did the statu­tory is­sues. We’re a great team. We’re very, very dif­fer­ent. Their mo­tions to dis­miss were not very se­ri­ous and I was, ‘Oh, I’ll just spend a day or two get­ting ready.’ And Karen was, ‘Oh my God, I’m de­vot­ing all week.’ So she guilted me and I spent all week in the large con­fer­ence room, get­ting ready for the mo­tion. Which she was right about. She’s kind of cau­tious. And I’m maybe not so much. I’m more like, ‘Hey, what about this? What about that?’ And she’ll suck me back when she needs to.”

Some of the white su­prem­a­cist de­fen­dants were rep­re­sented by James E. Kolenich, a civil rights at­tor­ney from Cincin­nati who told The Cincin­nati En­quirer that he took the case “to op­pose Jew­ish in­flu­ence in so­ci­ety” and be­cause “white peo­ple are the cho­sen peo­ple in the New Tes­ta­ment.” How do you do your job as a lawyer when you’re a Jew sit­ting at a ta­ble next to a Holo­caust de­nier? Ka­plan asked. “When we ar­gued that mo­tion to dis­miss, I’m hav­ing this, you re­mem­ber the scene in An­i­mal House where there’s the devil and the an­gel? And this guy’s try­ing to talk to me, and that’s how I looked. Okay, what do I do? Do I make chitchat with this guy? Or do I just sit and ig­nore him? And I de­cided to make chitchat with the guy.” She laughed. “Karen Dunn, of course, sat at the ta­ble and had noth­ing to do with any­one. . . . Just com­pletely ig­nor­ing ev­ery­one. And then I’m chat­ting with this guy about Le­Bron James—talk­ing about the Cavs, and how in­cred­i­bly sur­real is this?” She shook her head. “Life is frick­ing com­pli­cated.”

The var­i­ous de­fen­dants at­tempted to have the law­suit dis­missed, ar­gu­ing that all their plan­ning was just pro­tected free speech. In Kessler’s mo­tion to dis­miss, he con­tended that the en­tire suit was in­tended to “in­tim­i­date, si­lence, fi­nan­cially dam­age, or gen­er­ally ha­rass de­fen­dants.” Chris Cantwell ar­gued that re­marks from his “Nazi themed en­ter­tain­ment pro­gram” were be­ing mis­con­strued. It’s a de­cent de­fense. The First Amend­ment gen­er­ally pro­tects even the most in­flam­ma­tory speech, and the courts have carved out very lim­ited ex­cep­tions, al­low­ing that only the kinds of speech “di­rected at in­cit­ing or pro­duc­ing im­mi­nent law­less ac­tion” or “likely to in­cite or pro­duce such ac­tion” may not be pro­tected in the Char­lottes­ville con­text. As Ka­plan and Dunn saw it, it’s not the con­tro­ver­sial speech at is­sue; it’s the con­spir­acy to use racial vi­o­lence. And while the Klan Act has rarely been used in the mod­ern era to en­force civil rights, in 1971 the court ruled that two white men in Mis­sis­sippi had vi­o­lated the act by con­spir­ing to de­prive a group of Black men of their civil rights by beat­ing and in­tim­i­dat­ing them with weapons. The KKK Act was dusted off again af­ter the Jan­u­ary 6 ri­ots at the Capi­tol and used in a host of civil suits al­leg­ing a con­spir­acy among Don­ald Trump, his lawyers, and his po­lit­i­cal al­lies to pre­vent Con­gress from cer­ti­fy­ing the Elec­toral Col­lege’s find­ings in the 2020 elec­tion, a con­spir­acy that ended in vi­o­lence and death.

In July 2018, in a sixty-two-page rul­ing, Judge Nor­man Moon al­lowed the case to go for­ward to trial, find­ing that “Plain­tiffs have, for the most part, ad­e­quately al­leged that De­fen­dants formed a con­spir­acy to hurt black and Jew­ish in­di­vid­u­als, and their sup­port­ers, be­cause of their race at the Au­gust 11th and 12th events.” As to their free speech claims, Judge Moon wrote, “Just as the Supreme Court has rec­og­nized that cross burn­ings are of­ten in­tim­i­dat­ing, the torch­light march and the vi­o­lence di­rected at Plain­tiffs and other counter-pro­test­ers at the foot of the Thomas Jef­fer­son statue, was like­wise in­tim­i­dat­ing ‘in the con­sti­tu­tion­ally pro­scrib­able sense of the word.’ ” The case went to trial in Oc­to­ber 2021.

The real ef­fect of the Sines v. Kessler suit tran­scended the lit­i­ga­tion it­self, how­ever: Ka­plan and Dunn were hop­ing pre­trial dis­cov­ery would smoke out con­nec­tions be­tween the var­i­ous far-right groups and their sources of fi­nanc­ing. The team ob­tained mil­lions and mil­lions of mes­sages to re­con­struct how the Au­gust 12 events came to be.

And the de­fen­dants fared badly un­der the heavy suc­ces­sion of losses and costs. Both An­glin and Spencer loudly dis­tanced them­selves from a failed ef­fort to cel­e­brate Unite the Right’s an­niver­sary in Au­gust 2018. (The 2.0 rally lasted un­der an hour, and only thirty bedrag­gled Nazis showed up, much like the Skokie rally re­lo­cated to Chicago back in 1978.) In Jan­u­ary 2019, Nathan Damigo, an­other de­fen­dant and founder of the white na­tion­al­ist group Iden­tity Evropa, filed for bank­ruptcy. James Fields Jr. was sen­tenced in July 2019 to life in prison plus 419 years for killing Heather Heyer. Matthew He­im­bach was ar­rested in a trailer park brawl with other mem­bers of his neo-Nazi group, and Richard Spencer can­celed a speak­ing tour. Emails re­leased as part of the suit show or­ga­niz­ers call­ing Ja­son Kessler, the lo­cal leader of the event, “stupid and weird.” Kessler was caught on video live broad­cast­ing white supremacy while his fa­ther scolded him. It seemed a rather apt sym­bol for the story of white na­tion­al­ism as largely a sad prod­uct of too many years spent liv­ing as an adult in your par­ents’ base­ment. The de­fen­dants have been re­duced to crowd­sourc­ing on­line to pay their at­tor­neys’ fees.

In July 2019, the lawyer James Kolenich re­fused to fur­ther rep­re­sent two prom­i­nent clients, Chris Cantwell and Robert “Azzmador” Ray. Cantwell in July had threat­ened vi­o­lence against Ka­plan on the mes­sag­ing plat­form Tele­gram: “Af­ter this stupid kike whore loses this fraud­u­lent law­suit, we’re go­ing to have a lot of fuck­ing fun with her.” In a fil­ing with­draw­ing from rep­re­sen­ta­tion, Kolenich wrote that “Mr. Cantwell has ren­dered At­tor­ney’s con­tin­ued rep­re­sen­ta­tion of him un­rea­son­ably dif­fi­cult, has cre­ated a con­flict of in­ter­est be­tween him­self and At­tor­ney’s other clients, and has en­gaged in con­duct At­tor­neys con­sider ‘re­pug­nant or im­pru­dent.’ ” Cantwell was con­victed and sen­tenced to forty-one months in prison in 2020 for ex­tor­tion and rape threats against an­other white su­prem­a­cist’s wife. The de­fen­dants re­fused to turn over doc­u­ments and filed friv­o­lous mo­tions. In­nu­mer­able cell phones were dropped in toi­lets.

Some of the white su­prem­a­cists didn’t have lawyers or funds to pay them. The trial was de­layed re­peat­edly due to their ob­struc­tion and then be­cause of COVID. Ka­plan and Dunn spent the bulk of that time watch­ing the de­fen­dants fail to com­ply with sub­poe­nas and other dis­cov­ery re­quests. In a sense, that con­tempt for the courts, the judge, and the very pro­cesses of the rule of law mir­rors the con­tempt that al­lowed them to plan and re­al­ize the vi­o­lent events of Au­gust 2017. They de­layed, evaded, and con­founded this lit­i­ga­tion. In Cantwell’s case, he con­tin­ued in­cit­ing fol­low­ers to vi­o­lence to­ward Ka­plan and the vic­tims from be­hind his key­board as the lit­i­ga­tion played out. The prob­lem with ni­hilists is that the guardrails of the le­gal sys­tem do not con­tain them. Con­tempt mo­tions don’t stop them. Told to quit in­cit­ing their on­line fol­low­ers to harm op­pos­ing coun­sel, they dou­bled down. Ka­plan and Dunn were left fight­ing on two fronts: prov­ing their case in court and forc­ing the de­fen­dants to com­ply with the ba­sic tenets of the le­gal process. Ni­hilists, in their dream­world of race wars and vi­o­lent glory, ul­ti­mately do noth­ing but hide out and tweet. But just be­cause they are silly, and small, and in­fight­ing doesn’t mean the white su­prem­a­cists are pow­er­less.

Fink told me that peo­ple were al­ways very much mis­taken when they imag­ined that Char­lottes­ville 2017 could never hap­pen again. “One of the things I felt when I was in Char­lottes­ville was ‘My God, there is a race war hap­pen­ing,’ ” she said. “Across the coun­try, un­der the sur­face of all the things that we all do and take for granted ev­ery day, are the things that I don’t know about. Or that I hadn’t known about be­fore.” The events of Jan­u­ary 6, 2021, proved that none of what hap­pened in Char­lottes­ville was con­tained there. For any­one who has lived through these white su­prem­a­cist events, it’s clear that this is an em­bold­ened move­ment. Said Fink, “There are peo­ple like Chris Cantwell who de­vote their lives to pro­mot­ing vi­o­lence and racist ideas. . . . There’s a group of peo­ple, many of whom were in Char­lottes­ville, who spend all their time and their lives com­bat­ing what they see as this re­ally dan­ger­ous group in the coun­try. And the rest of us are just go­ing about our busi­ness.”

There is some so­lace in do­ing this work through the courts, as op­posed to plac­ing one’s body on the streets, ac­knowl­edged Fink. “This bat­tle with peo­ple who are white su­prem­a­cists and neo-Nazis, it’s their life, and vice versa. And now we’re in it, but I think we’re in it in a slightly dif­fer­ent way. I think that there’s some safety that comes with be­ing in a court. We’re do­ing this with a process that’s dif­fer­ent than peo­ple who get doxed and have peo­ple driv­ing out­side their house or leav­ing things on their porch.” Years later, when I told peo­ple that I felt bad for per­son­ally fail­ing to take to the streets to pro­tect the an­tiracist coun­ter­protesters who stood up to white su­prem­a­cists on Au­gust 12, I in­cluded the story about fran­tic calls to my big brother while I sobbed that there were Nazis parked on my sleepy res­i­den­tial street, and how I should have been out there slash­ing tires and punch­ing fas­cists. Alex was very di­rect in the man­ner of big broth­ers ev­ery­where. “You’re a lit­tle bit slow and a lit­tle bit fat,” he soothed, on the morn­ing of the Nazi march. “You just write about it.”

Ka­plan’s su­per­power must be her con­fi­dence. Be­cause she presents as re­lent­lessly bub­bly and cheer­ful, the “big talker” of her own tod­dler­hood, it’s easy to for­get what con­stant death threats by anony­mous men with mil­lions of fol­low­ers would do to most of the rest of us. As Julie Fink put it, “The thing about Rob­bie is she’s fear­less and she’s the most ef­fec­tive per­son I know. So we had a din­ner here on a Tues­day where we talked about Char­lottes­ville. We all said, ‘Let’s do some­thing.’ And three days later we’re in Char­lottes­ville. And within two months, we have co-coun­sel, fund­ing, a law­suit, and plain­tiffs.” When the death threats came, Ka­plan swal­lowed hard and moved on. Fink mused, “I don’t know if Rob­bie gen­uinely is fear­less or if she is just re­ally good at putting her fear to the side. Or if she used to have fear, but just doesn’t any­more. Even just hav­ing had the ex­pe­ri­ence of los­ing the New York mar­riage case, and then a few years later be­ing like, ‘Yeah, I’ll bring a de­fense of mar­riage case.’ That takes just an in­cred­i­ble amount of brav­ery, and a lot of peo­ple don’t have the con­fi­dence that goes hand in hand with brav­ery.”

Im­me­di­ately af­ter Don­ald Trump was elected, Rob­bie Ka­plan started her own lit­tle law firm, co-founded the Time’s Up Le­gal De­fense Fund, which sup­ports women fil­ing sex­ual ha­rass­ment cases, and be­gan serv­ing as chair of the Time’s Up or­ga­ni­za­tion. She re­signed from Time’s Up in Au­gust 2021 amid re­ports that she had been one of sev­eral lawyers in­volved in some of the then gov­er­nor An­drew Cuomo’s ef­forts to dis­credit women for sex­u­ally ha­rass­ing them. Ka­plan sued Trump and his fam­ily for de­fraud­ing par­tic­i­pants in ACN, a mul­ti­level mar­ket­ing com­pany pro­moted on The Celebrity Ap­pren­tice. She rep­re­sents Mary Trump, Don­ald Trump’s niece, in a suit claim­ing that Don­ald Trump and his sib­lings de­prived her of an in­her­i­tance worth mil­lions of dol­lars. She rep­re­sented the jour­nal­ist E. Jean Car­roll, who is su­ing Trump for defama­tion be­cause af­ter she claimed that he raped her a quar­ter cen­tury ago in a Bergdorf Good­man dress­ing room, he de­nounced her as “to­tally ly­ing.” And as Car­roll told The Wash­ing­ton Post in 2021, she brought her suit “for all the women in the coun­try who have been ha­rassed or as­saulted by pow­er­ful men, and feel help­less to do any­thing about it.” Pressed on why she is will­ing to be some­one who does some­thing, Car­roll replied, “I don’t have to be brave . . . [b]ecause Rob­bie Ka­plan is brave for me.”

I asked Ka­plan re­cently whether she would have stayed at her old firm if she’d been a man, and she said, “Prob­a­bly.” She has been wildly suc­cess­ful in a world of le­gal ad­vo­cacy still dom­i­nated by men, but while she has an un­canny gift for op­ti­mism and per­pet­ual mo­tion, she isn’t blink­ered to the ways in which this is a game that still gives points and ben­e­fits to male lit­i­ga­tors. “Look,” she said, “gen­der’s a part of ev­ery­thing I do.” She added, “I re­mem­ber when I was a young lawyer go­ing into court with Marty Lon­don, and I don’t even re­mem­ber what the case was. And Marty walks into the court­house, walks into the court­room, and the con­ver­sa­tion is, ‘So, Mr. Lon­don, how’s the fish­ing been?’ And, ‘What bait have you been us­ing lately?’ And, ‘How’s your boat?’ ” This is how men have spo­ken to men in Amer­i­can court­rooms since the found­ing. Added Ka­plan, “And I re­mem­ber think­ing to my­self, ‘Damn, but this will never hap­pen to me. This is so . . . in one sense it’s so un­fair, and in an­other sense it’s so cool. . . . That Marty Lon­don gets treated this way. . . .’ So I now get treated that way.”

She added, “I don’t have con­ver­sa­tions with judges about my boats or any­thing. But be­cause of my rep­u­ta­tion or what­ever, what I’ve done, I now get that ex­tra de­gree of, what’s the word I want? Ca­ma­raderie.” Ka­plan is of a gen­er­a­tion of women that went to good law schools, scored good clerk­ships, got re­cruited at the best firms, and as­sumed that the arc of the gen­der uni­verse was bend­ing to­ward equal­ity. She was and will ever be busy. But in a way that is em­blem­atic of so many women ac­tivists and or­ga­niz­ers, af­ter the shock of re­van­chist misog­yny that came with the Trump elec­tion, she just tripled her out­put.

Ka­plan was also at pains to clar­ify that she is the fur­thest pos­si­ble thing from a wild-eyed rad­i­cal. As she told The Wash­ing­ton Post in 2021, “I’d never been a burn-down-the-ram­parts sort of per­son. I be­lieved in work­ing in in­sti­tu­tions.” The rea­son she was such a ra­bid war­rior for and be­liever in mar­riage equal­ity was it­self fun­da­men­tally con­ser­va­tive: “Liv­ing a life very much on the mar­gins didn’t ap­peal to me. I re­ally wanted to have kids. I re­ally wanted to be part of the Jew­ish com­mu­nity. I re­ally wanted to have a ca­reer. All of this would have been un­avail­able in the world I grew up in.”

Ka­plan also be­lieves that not ev­ery­one do­ing pub­lic-in­ter­est work needs to work in pub­lic-in­ter­est firms. Her own firm, at a mo­ment when the en­tire le­gal pro­fes­sion is strug­gling to build a bet­ter busi­ness model, is proof, she be­lieves, that there’s a mar­ket for what she’s at­tempt­ing to do. “One thing I tell young law stu­dents now, when they ask, is that the le­gal pro­fes­sion has un­der­gone re­ally sub­stan­tial change, at least with re­spect to lit­i­ga­tion. That what peo­ple do in large firms is very dif­fer­ent to­day than what they did when I started. They write in­terof­fice memos, and if you re­ally want to learn to stand up in court, and have the full 360-de­gree skills you need to be a great lit­i­ga­tor, you should think about a dif­fer­ent kind of place.” She’s try­ing to build that kind of place.

Any­one who re­ally saw what hap­pened in Char­lottes­ville in 2017 was un­sur­prised by the riot at the US Capi­tol in Jan­u­ary 2021. Noth­ing about the lat­ter was un­fa­mil­iar: not the Nazi-cu­ri­ous cos­play or the claims that it was pro­tected speech and protest ac­tiv­ity, or the ca­sual vi­o­lence and prop­erty de­struc­tion. The claims that the vi­o­lent ri­ot­ers and loot­ers were the real vic­tims were also to be ex­pected. Least sur­pris­ing of all was the fail­ure of law en­force­ment to an­tic­i­pate and pre­pare for a vi­o­lent riot that was planned in plain sight for weeks. White su­prem­a­cist vi­o­lence has been on the rise for decades, doc­u­mented by the FBI and or­ga­ni­za­tions that track the ac­tiv­i­ties of hate groups, yet of­ten jus­ti­fied or min­i­mized as ju­ve­nile fool­ish­ness or “boys will be boys.”

Sines v. Kessler went to trial in the fall of 2021. As plain­tiffs tes­ti­fied to har­row­ing in­jury and trauma, de­fen­dants’ on­line com­mu­ni­ca­tions in the run-up to the rally were read to the jury. “I would go to the ends of the earth to se­cure a fu­ture for my peo­ple,” Kessler wrote to Spencer around the same time. “This is war.” In an­other com­mu­ni­ca­tion, he as­sured Spencer, “We’re rais­ing an army my liege. . . . For free speech, but the crack­ing of skulls if it comes to it.” “I’m will­ing to risk a lot for our cause, in­clud­ing vi­o­lence and in­car­cer­a­tion, many in my au­di­ence would fol­low me there too,” Cantwell wrote to Spencer a week be­fore the gath­er­ing, “but I want to co­or­di­nate and make sure it’s worth it to our cause.” The white su­prem­a­cists de­fended them­selves by drop­ping the n-word, re­peat­edly us­ing the word “Kike,” and ques­tion­ing one an­other about their fa­vorite Holo­caust jokes. They in­sisted their speech was un­con­nected to the vi­o­lent and lethal events of the rally.

On No­vem­ber 23, 2021, af­ter a four-week trial fea­tur­ing thirty-six wit­nesses, the Char­lottes­ville jury unan­i­mously found that all twenty-four de­fen­dants and de­fen­dant groups had en­gaged in a con­spir­acy to com­mit vi­o­lence and in­tim­i­da­tion to de­prive mi­nori­ties and their sup­port­ers of their civil rights un­der Vir­ginia law. They dead­locked on the two fed­eral con­spir­acy charges. The nine plain­tiffs were awarded $26 mil­lion in dam­ages. Af­ter the ver­dict, Richard Spencer said he had no hope for the fu­ture of the alt-right, a move­ment he’d not only named but helped cre­ate. “That’s long dead and gone in my opin­ion,” he said. “It’s buried.”

Ka­plan likes to tell the story of how truly easy it is to go numb, slowly and in­vis­i­bly, dur­ing times of gen­uine evil. Her wife, Rachel, is re­lated by mar­riage to Sieg­mund War­burg, a prom­i­nent Ger­man Jew­ish busi­ness­man who once fa­mously said, of the Nazis in 1930, “Once they are in gov­ern­ment they will im­me­di­ately be­come, first, more sen­si­ble and, sec­ondly, once again less pop­u­lar.” That claim still haunts her. Ka­plan thinks con­stantly of War­burg and how easy it is to ex­plain away and min­i­mize events that are pro­foundly evil, even when we should know bet­ter. She lives with the risk of con­stant threats to her­self, her firm, and her fam­ily. 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.

5

Abor­tion at the Bor­der

Brigitte Amiri: The Lit­i­ga­tor

In the fall of 2017, a fight over abor­tion, re­li­gious con­science, and the ac­tions of gov­ern­ment of­fi­cials be­came the next mar­quee con­tro­versy over the Trump ad­min­is­tra­tion’s new world­view, in which re­li­gion and law be­came fre­quently in­ter­change­able. It was a story told most com­monly through the aper­ture of Mar­garet At­wood’s dystopic novel The Hand­maid’s Tale. And the com­par­i­son was not in­apt. Brigitte Amiri knows all about this strange dystopian meta-story, be­cause, well, she lit­i­gated it. In fact, the Trump Jus­tice De­part­ment tried (un­suc­cess­fully, as it turned out) to ruin her pro­fes­sional ca­reer for pre­vail­ing in a con­sti­tu­tional chal­lenge to it.

“Jane Doe” was the name given by the courts to a sev­en­teen-year-old un­ac­com­pa­nied im­mi­grant who fled her home, and parental abuse, in Cen­tral Amer­ica, cross­ing the US-Mex­ico bor­der in Sep­tem­ber 2017. Jane was de­tained and taken into cus­tody by the Of­fice of Refugee Re­set­tle­ment (ORR), then placed in a gov­ern­ment-funded shel­ter in South Texas, op­er­ated un­der a con­tract with the Trump ad­min­is­tra­tion’s De­part­ment of Home­land Se­cu­rity. While she awaited im­mi­gra­tion pro­ceed­ings, Jane found out she was preg­nant. She im­me­di­ately asked for an abor­tion; she was nine weeks preg­nant at the time. Texas has a parental con­sent re­quire­ment, mean­ing that mi­nors need a ju­di­cial by­pass from a judge in or­der to ter­mi­nate a preg­nancy, if they can­not get con­sent from their par­ents. Texas judges are not, as a rule, great fans of grant­ing abor­tion waivers to preg­nant teenage girls.

Jane went to state court with Marie Chris­tine Cortez, an at­tor­ney from Jane’s Due Process, a non­profit or­ga­ni­za­tion that of­fers preg­nant mi­nors in Texas le­gal as­sis­tance. She also had an ap­pointed guardian ad litem, Rochelle Garza, to ad­vo­cate for her. A state judge granted Jane per­mis­sion to ter­mi­nate her preg­nancy on Sep­tem­ber 25, 2017, and the pro­ce­dure was sched­uled for Sep­tem­ber 28, to­ward the end of her first trimester. No gov­ern­ment money would have gone to­ward the pro­ce­dure; Jane had rides to and from the clinic. At that point, the shel­ter that con­tracted with ORR, an of­fice within the US De­part­ment of Health and Hu­man Ser­vices (HHS), quite lit­er­ally needed only to open the door to the fa­cil­ity and al­low her out for a few hours. But Scott Lloyd would not al­low it.

And who is Scott Lloyd? In 2017, Don­ald Trump placed him in charge of ORR, which has cus­tody over all im­mi­grants un­der age eigh­teen who come to the United States with­out par­ents. Lloyd got this po­si­tion even though his pro­fes­sional ex­pe­ri­ence in the area of refugees and re­set­tle­ment was nonex­is­tent. As Politico noted in 2018, “[Lloyd’s] pre­de­ces­sor, Robert Carey, who led the of­fice dur­ing the last two years of the Obama ad­min­is­tra­tion, had decades of ex­pe­ri­ence man­ag­ing refugees’ is­sues, in­clud­ing 15 years in re­set­tle­ment and mi­gra­tion at the In­ter­na­tional Res­cue Com­mit­tee.” Lloyd had none. What Lloyd did have was many years’ ex­pe­ri­ence cru­sad­ing against re­pro­duc­tive free­dom. In fact, Lloyd’s main pro­fes­sional qual­i­fi­ca­tion for head­ing up ORR was a lengthy ca­reer in an­tiabor­tion ac­tivism, in­clud­ing ser­vice as a lawyer for the Knights of Colum­bus, where his writ­ings in­cluded claims that abor­tion and con­tra­cep­tion were the same things and that women should be de­nied ac­cess to both. As an at­tor­ney in George W. Bush’s De­part­ment of Health and Hu­man Ser­vices, Lloyd had co-au­thored a “con­science rule,” al­low­ing re­li­gious health-care work­ers to deny abor­tions, con­tra­cep­tion, or any other care they op­posed on moral grounds. So while he knew vir­tu­ally noth­ing about refugees and asy­lum, Scott Lloyd knew a whole lot about abor­tion, or at least his opin­ions about it.

Un­der both the George W. Bush and the Barack Obama ad­min­is­tra­tions, ORR had largely per­mit­ted un­doc­u­mented teens to have abor­tions, so long as they had se­cured pri­vate fund­ing. Both ad­min­is­tra­tions were also re­quired, un­der a fed­eral con­sent de­cree, to give mi­nors ac­cess to emer­gency health care and fam­ily plan­ning ser­vices. The threat of sex­ual vi­o­lence is per­va­sive for mi­grants and asy­lum seek­ers jour­ney­ing to the United States, and the need for such ser­vices can be acute. The ACLU had been in­ves­ti­gat­ing a Bush-era pol­icy that per­mit­ted Catholic shel­ters re­ceiv­ing HHS fund­ing to opt out of pro­vid­ing abor­tion ac­cess to un­ac­com­pa­nied im­mi­grant mi­nors. As they probed the prob­lem, the ACLU dis­cov­ered that some re­li­giously af­fil­i­ated shel­ters were kick­ing mi­nors out for re­quest­ing abor­tions. They ended up su­ing the Obama ad­min­is­tra­tion in 2016, de­mand­ing that shel­ters per­mit these mi­nors ac­cess to abor­tion un­der both US con­sti­tu­tional law and the Flo­res set­tle­ment—a court-man­dated prom­ise that un­ac­com­pa­nied im­mi­grant mi­nors have ac­cess to rou­tine and emer­gency med­i­cal care, in­clud­ing fam­ily plan­ning ser­vices. That suit was al­ready work­ing its way through the sys­tem when Scott Lloyd took over at ORR.

In March 2017, Lloyd put a new pol­icy into ef­fect, ban­ning shel­ters that con­tract with the gov­ern­ment from help­ing any preg­nant mi­grants to ob­tain abor­tions and de­cree­ing that these shel­ters could not take “any ac­tion that fa­cil­i­tates” abor­tions for un­ac­com­pa­nied mi­nors, in­clud­ing “sched­ul­ing ap­point­ments, trans­porta­tion, or other ar­range­ment,” with­out “di­rec­tion and ap­proval” from Lloyd per­son­ally. He fur­ther or­dered that ORR’s shel­ters pro­vide only “preg­nancy ser­vices and life-af­firm­ing op­tions coun­sel­ing” and “not be sup­port­ing abor­tion ser­vices pre- or post-re­lease.”

“The un­born child is a child [in] our care,” Lloyd wrote in an email to all of the shel­ters, seem­ingly for­get­ting that the refugee her­self was also a child in his care. In other emails, Lloyd told shel­ters not to let young women meet with at­tor­neys re­gard­ing ter­mi­na­tion—or to al­low them to go be­fore judges to re­ceive ju­di­cial by­passes. In one email, he opined that “of­ten these girls start to re­gret abor­tion,” and af­ter speak­ing di­rectly with one teenage girl in a Texas de­ten­tion cen­ter, he wrote, “If this comes up, we need to con­nect her with re­sources for psy­cho­log­i­cal and/or re­li­gious coun­sel­ing.”

In the fall of 2017, Lloyd’s new ORR pol­icy be­gan to of­fer preg­nant mi­grants seek­ing to ter­mi­nate preg­nan­cies only the names of ap­proved “cri­sis preg­nancy cen­ters,” or CPCs, that pro­vide ex­clu­sively an­tiabor­tion “coun­sel­ing.” This meant that, back in Texas, Jane Doe was re­quired to visit a re­li­giously af­fil­i­ated CPC to un­dergo “coun­sel­ing” urg­ing her to con­tinue the preg­nancy. She was forced to watch an ul­tra­sound of her fe­tus. She told her lawyers that the staff at the “clinic”—be­cause she had been told that it was a clinic—prayed over her. A staff mem­ber at the CPC also called Doe’s mother, over her ob­jec­tions, and told her Jane was preg­nant, a clear vi­o­la­tion of state con­fi­den­tial­ity laws. De­spite all that coun­sel­ing, Jane claimed she still wanted to ter­mi­nate her preg­nancy. As her lawyers strug­gled to get Jane into a clinic to do that, work­ers at her shel­ter put her un­der con­stant one-on-one su­per­vi­sion and barred her from any phys­i­cal ac­tiv­ity, forc­ing her to sit on a bench while the other teen res­i­dents ex­er­cised.

Rochelle Garza was ap­pointed by the court to rep­re­sent Jane in her state pro­ceed­ings. Garza’s name be­came the name of the mas­sive class-ac­tion law­suit—Garza v. Har­gan—that even­tu­ally be­came the ACLU’s chal­lenge to the en­tire ORR preg­nant mi­grant pol­icy. In an in­ter­view with New York mag­a­zine’s Cris­tian Farias in 2018, Garza ex­plained that she had be­come a lawyer in or­der “to be an ad­vo­cate for peo­ple and peo­ple who are vul­ner­a­ble. And she’s vul­ner­a­ble.” Garza added, “I told her many times, ‘Eres muy fuerte. Tienes un car­ac­ter muy fuerte,’ ” and later mused, “I don’t know if I would’ve been as strong if I were in her po­si­tion.”

Brigitte Amiri, deputy di­rec­tor of the ACLU’s Re­pro­duc­tive Free­dom Project, was called in when it be­came clear that the Texas team would need some­one to han­dle what was be­com­ing a law­suit with ma­jor na­tional im­pli­ca­tions. Amiri looks like what Au­drey Hep­burn would be if she’d be­come a re­pro­duc­tive rights lit­i­ga­tor. With doe eyes and sweep­ing bangs, and age forty-four at the time of the law­suits, Amiri ini­tially wanted to be a dancer, and you can still see it when she’s at a lectern be­fore a panel of judges. Amiri is un­err­ingly con­trolled, in court­rooms, in de­po­si­tions, and in in­ter­views. In the cor­ner of her New York of­fice, she has hung a print that reads, “No­lite te bas­tardes car­borun­do­rum.” That’s from Mar­garet At­wood’s The Hand­maid’s Tale, Latin roughly trans­lated to mean “don’t let the bas­tards grind you down.”

“I’m the daugh­ter of an Ira­nian im­mi­grant,” Amiri said. “My fa­ther came here in the 1960s, pur­su­ing the Amer­i­can dream. He worked a bunch of odd jobs be­fore he went to a lib­eral arts col­lege in the Mid­west, where he met my mom, who grew up in a small farm­ing com­mu­nity in mid-state Illi­nois. They moved to Ann Ar­bor, Michi­gan, where my dad opened a Per­sian rug store. And that’s where my sis­ter and I grew up.” Amiri’s dad was raised Mus­lim but brought up his daugh­ters with­out re­li­gion. Even though she was only a small child at the time, she re­mem­bers that even in lib­eral, tol­er­ant Ann Ar­bor dur­ing the Ira­nian hostage cri­sis in 1979 the fam­ily suf­fered ha­rass­ment, in­clud­ing bomb threats and hate mail.

“The rug store is called the Per­sian House of Im­ports, and we were known in the com­mu­nity as be­ing from Iran, and I re­mem­ber the fear my fam­ily felt dur­ing that pe­riod,” she told me. Amiri cred­its her mother with her own child­hood po­lit­i­cal ac­tivism. “My mom took us to po­lit­i­cal ral­lies. She was try­ing to get the ERA rat­i­fied. She was a stay-at-home mom, and that was some­thing she’d agreed to in mar­ry­ing my fa­ther, which was also this in­ter­est­ing di­chotomy be­cause my dad ex­pected my mom to stay home, based on cul­tural norms, but ex­pected my sis­ter and me to be suc­cess­ful and not de­pend on any­one.” Amiri added that her ca­reer in jus­tice might have started un­nat­u­rally early: “When I was in fifth grade, and the cross­ing guards were as­signed to cer­tain posts, I no­ticed that a boy was al­ways as­signed to put up the flag, and guard the park­ing lot, and a girl never was. I got to­gether a pe­ti­tion of peo­ple say­ing, ‘That’s not fair. You can’t treat boys and girls dif­fer­ently, and we should get that post too.’ And I won.” She paused for a beat. “Also I think there was choco­late milk as­so­ci­ated with that post.”

Her par­ents di­vorced when she was fif­teen, and by then Amiri was babysit­ting for a nurse who worked at a Planned Par­ent­hood. She added, “I was some­what of a re­bel­lious teenager, and it was also a way to chan­nel that, be­cause I could see how up­set peo­ple got about abor­tion and how they were us­ing abor­tion to con­trol women, and this was a way to chan­nel my own re­bel­lious­ness into this fight.” She quickly re­al­ized there was sys­temic work to do on women’s rights ad­vo­cacy when she started at­tend­ing col­lege at De­Paul Uni­ver­sity, a Catholic school. “I tried to start a pro-choice group on cam­pus, and that was squashed by the ad­min­is­tra­tion, so that was kind of an early first les­son for me in terms of or­ga­niz­ing and fight­ing back.” Amiri then be­gan writ­ing col­umns and do­ing ad­vo­cacy, and her pro­fes­sors urged her not to ap­ply to law school if it would mean be­com­ing what she calls “a cor­po­rate clone.” Her ad­vi­sors in­stead steered her to­ward a ded­i­cated pub­lic-in­ter­est pro­gram at North­east­ern Law School with a co-op ro­ta­tion pro­gram, mix­ing in­tern­ships with class­work, so she would grad­u­ate with a full year of le­gal ex­pe­ri­ence. “I was the first gen­er­a­tion to go to col­lege, and be­ing able to have those jobs dur­ing law school al­lowed me to prove my­self. I didn’t grad­u­ate from a fancy law school. I didn’t do a clerk­ship. I didn’t know any­one who was a lawyer be­fore I went to law school.”

Amiri ended up tak­ing a po­si­tion at the Cen­ter for Re­pro­duc­tive Rights, then at South Brook­lyn Le­gal Ser­vices, do­ing fore­clo­sure pre­ven­tion for low-in­come home­own­ers. In 2005, she got her dream job, the po­si­tion she cur­rently holds at the ACLU. Even prior to the 2016 elec­tion, Amiri had a long and sto­ried his­tory fight­ing for abor­tion ac­cess in states seek­ing to re­strict it, fight­ing for Med­ic­aid ex­pan­sion, and bird-dog­ging the Obama ad­min­is­tra­tion’s ORR pol­icy around preg­nant mi­grant teens. She was in­volved in com­plex lit­i­ga­tion over the Af­ford­able Care Act’s con­tra­cep­tion man­date. And had Hillary Clin­ton won in 2016, Amiri would have found her­self on a very dif­fer­ent ca­reer path: “I firmly be­lieve that the job of ev­ery pub­lic-in­ter­est lawyer is to put her­self out of a job. I felt like we were go­ing to get one step closer to that; mov­ing to a place where abor­tion wasn’t so re­stricted, and where the Hyde Amend­ment didn’t pro­hibit low-in­come peo­ple from hav­ing cov­er­age for abor­tion.” In 2016, re­pro­duc­tive rights groups had also just se­cured a huge vic­tory at the Supreme Court with the Whole Woman’s Health v. Heller­st­edt de­ci­sion: “And sud­denly we weren’t just bang­ing our heads against the wall any­more, and even this Supreme Court was not go­ing to al­low re­stric­tions that served no med­i­cal ben­e­fit, and cre­ated ob­sta­cles. We were go­ing to be in this bold era in terms of be­ing able to chal­lenge re­stric­tions.”

That was Amiri’s plan, but on elec­tion night 2016 her man­date changed very quickly: “I re­mem­ber, I just burst into tears, and I said to my hus­band, ‘I am al­ready so tired from do­ing this for so long. And we were on the precipice of real change, and I don’t know how I’m go­ing to have the en­ergy to keep do­ing this, but I also know that there’s no way I can’t.’ ” She took a deep breath. “So even though I know it’s go­ing to be a hun­dred times harder, I know that I have to keep do­ing it be­cause it’s re­ally kind of the only thing I know how to do.”

Amiri didn’t go to marches, she said. She skipped the 2017 Women’s March be­cause she had a young baby at home. “Look, I think that peo­ple should take to the streets, ab­so­lutely, but part of it is just also think­ing about where my own re­serves lie, and so part of me feels like I work a lot, and it’s a week­end, and I want to be with my kid and my fam­ily. I think about the work that I do and I’m not sure that my ex­tra body on the street is re­ally go­ing to mat­ter. I have to pick and choose how I’m go­ing to spend my time to be most ef­fec­tive in the job that I do.”

• • •

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—abor­tion—has been at the heart of ev­ery Supreme Court con­fir­ma­tion hear­ing for decades, ei­ther ex­plic­itly or by way of se­cret sig­nals and codes. Abor­tion providers have been gunned down, clin­ics have been closed, and state leg­is­la­tures with the high­est ma­ter­nal death rates have passed laws that make it all but im­pos­si­ble to ter­mi­nate a preg­nancy there. As of June 2022, Roe v. Wade is over­turned, and in half the states, abor­tion is il­le­gal or soon will be. The death of Ruth Bader Gins­burg in Sep­tem­ber 2020 and her re­place­ment with Amy Coney Bar­rett just days be­fore the 2021 elec­tion changed ev­ery­thing. But long be­fore Roe was struck down, it had been whit­tled away for poor women who were barred by the Hyde Amend­ment from fi­nanc­ing a ter­mi­na­tion, and in states that op­er­ated with a sin­gle clinic, and for those in ju­ris­dic­tions like Texas that func­tion­ally ended all abor­tion af­ter six weeks in Sep­tem­ber 2021. Long be­fore the words “Roe v. Wade is over­turned” were printed in a Court opin­ion, for women across the coun­try, an abor­tion had be­come func­tion­ally im­pos­si­ble to pro­cure. For many it will be a crime.

In 1992, in Planned Par­ent­hood v. Casey, the Supreme Court—in a plu­ral­ity opin­ion jointly au­thored by San­dra Day O’Con­nor, An­thony Kennedy, and David Souter—in­tro­duced a new test, re­plac­ing Roe’s rigid trimester struc­ture. They de­ter­mined in Casey that states could reg­u­late pre-vi­a­bil­ity abor­tions so long as they do not place an “un­due bur­den” on a woman’s right to choose to end her preg­nancy. Work­ing out what does and does not con­sti­tute an “un­due bur­den”—de­fined in Casey as plac­ing a “sub­stan­tial ob­sta­cle” be­tween a woman and ter­mi­na­tion—be­came a boom in­dus­try in state leg­isla­tive back­rooms. States were en­act­ing laws de­mand­ing wait­ing pe­ri­ods, med­i­cally un­nec­es­sary ul­tra­sounds, and med­i­cally in­cor­rect warn­ings and reg­u­lat­ing clin­ics out of ex­is­tence, all un­der claims that they were not ban­ning abor­tion so much as help­ing moth­ers make bet­ter choices. But in 2016, in Whole Woman’s Health v. Heller­st­edt, the high court reaf­firmed that while states could en­act rules to pro­tect ma­ter­nal health, they could not pass pre­tex­tual reg­u­la­tions that served no le­git­i­mate ends be­yond shut­ter­ing clin­ics. The ma­jor­ity in Whole Woman’s Health em­pow­ered judges to look closely at the ar­gu­ments ad­vanced by states about ma­ter­nal health and best med­i­cal prac­tices, then tasked the courts with “an in­de­pen­dent con­sti­tu­tional duty to re­view fac­tual find­ings where con­sti­tu­tional rights are at stake.”

This launched a new bit­ter fight in the five-decade war over the right to choose. Con­ser­va­tive out­rage over the re­sult in Whole Woman’s Health no doubt aided and abet­ted the Sen­ate ma­jor­ity leader Mitch Mc­Connell’s un­prece­dented block­ade of a vote for Mer­rick Gar­land, Barack Obama’s pick for a seat on the Supreme Court. Gar­land would likely have be­come a sixth vote for up­hold­ing Roe, and a fifth even af­ter Gins­burg died. The re­sult in Whole Woman’s Health also prob­a­bly helped am­biva­lent evan­gel­i­cal vot­ers show up for Don­ald Trump, a newly pro-life, se­rial phi­lan­derer and al­leged sex­ual preda­tor, in the 2016 elec­tion. Trump claimed at one point in his cam­paign that women who had abor­tions should suf­fer “some form of pun­ish­ment” and cam­paigned on the ex­plicit prom­ise that he would seat only an­tiabor­tion jus­tices on the high court. He even pub­lished a list of his can­di­dates for that seat. It all worked out for him; with the court bal­anced on a ra­zor’s edge and a chance to grab the seat va­cated by An­tonin Scalia’s death, exit polls showed that Trump won a higher per­cent­age of white evan­gel­i­cal vot­ers than ei­ther Mitt Rom­ney or George W. Bush, gar­ner­ing 81 per­cent to Hillary Clin­ton’s 16 per­cent. White Catholics also went all in for Trump, by mar­gins of 60 as com­pared to Clin­ton’s 37 per­cent. For many, over­turn­ing Roe was a crit­i­cal fac­tor in their vote for pres­i­dent, and in ex­change they would tol­er­ate even Don­ald Trump as chief ex­ec­u­tive.

Tony Perkins, who helms the anti-LGBTQ group Fam­ily Re­search Coun­cil, summed up Trump’s 2016 elec­toral strat­egy one day af­ter the 2016 elec­tion: “First, he chose a pro-life con­ser­va­tive run­ning mate, he did not try to weaken the party’s plat­form, and he laid out a list of po­ten­tial jus­tices that he said are pro-life. We’ve never had a Re­pub­li­can nom­i­nee do this. And I think he ba­si­cally closed the deal in the last de­bate when he went into late-term abor­tion in the first 15 min­utes.” By seat­ing Neil Gor­such, then Brett Ka­vanaugh, and then Amy Coney Bar­rett at the high court in just four years in of­fice, and by seed­ing the lower fed­eral courts with dozens of judges whose records on abor­tion are un­apolo­get­i­cally anti-Roe, Trump ce­mented his legacy as the most an­tiabor­tion US pres­i­dent ever to have made se­rial hush-money pay­ments to ex­tra­mar­i­tal lovers.

States em­bold­ened by Trump’s rapid re­shap­ing of the fed­eral ju­di­ciary scram­bled to en­act abor­tion reg­u­la­tions that would de­lib­er­ately vi­o­late the core hold­ings of Roe, Casey, and Whole Woman’s Health. Con­fi­dent that they would win at the newly con­fig­ured Roberts Court, state leg­is­la­tures raced to pass so-called per­son­hood bills, fe­tal heart­beat bills, six-week abor­tion bans, eight-week abor­tion bans, eigh­teen-week abor­tion bans, “trig­ger” laws, fe­tal re­mains laws, and the kinds of TRAP, or Tar­geted Reg­u­la­tion of Abor­tion Providers, laws iden­ti­cal to those struck down in 2016 in Whole Woman’s Health. None of this was a sur­prise. In the spring of 2019, af­ter Brett Ka­vanaugh was con­firmed and Roe ap­peared doomed, Geor­gia, Ohio, Mis­sis­sippi, and Mis­souri passed what were, by de­sign, un­con­sti­tu­tional bans. The state of Al­abama went one fur­ther, ban­ning all abor­tions with vir­tu­ally no ex­cep­tions, and cer­tainly none for rape and in­cest. Mis­sis­sippi’s fif­teen-week ban, in which the state ex­plic­itly asked that Roe be over­turned, was up­held by a 6–3 vote in June 2022. These pur­pose­fully un­con­sti­tu­tional laws were in­tended as in­vi­ta­tions to the Supreme Court, with Brett Ka­vanaugh as the fifth vote and Amy Coney Bar­rett as the sixth, to end Roe for all time. That in­vi­ta­tion was ac­cepted with alacrity.

But it wasn’t just in­di­vid­ual states gun­ning for re­pro­duc­tive rights, and it wasn’t just the courts. The Trump ad­min­is­tra­tion it­self was be­hind moves to de­fund Planned Par­ent­hood; al­low em­ploy­ers to deny con­tra­cep­tion to em­ploy­ees; and dou­ble down on over­heated rhetoric de­scrib­ing abor­tion, as Trump did in a 2019 tweet, as “ex­e­cut­ing ba­bies AF­TER birth.” Ef­forts to pack the fed­eral courts on this is­sue have led to the whole­sale sidelin­ing of Sen­ate rules and norms and re­sulted in the seat­ing of life­time ap­pointees to the fed­eral bench, in­clud­ing Judge James Ho, who wrote that he de­plored abor­tion as a “moral tragedy.” These judges, some of whom are in their thir­ties and for­ties, will sit on the bench long af­ter our grand­chil­dren have be­gun to vote. And our grand­chil­dren may grow up in an Amer­ica in which only wealthy women, and preg­nant peo­ple only in blue states, can ter­mi­nate a preg­nancy. That was the point.

To be sure, rea­son­able peo­ple can dif­fer about when hu­man life be­gins. Rea­son­able peo­ple might also dif­fer about whether moral­ity steeped in re­li­gious dogma and doc­trine should color pub­lic pol­icy in an os­ten­si­bly sec­u­lar coun­try. But the stealth bat­tle­ground in the re­pro­duc­tive rights de­bate in Amer­ica has mi­grated in re­cent years to a fight about whether re­li­gious ac­tors can be forced to act against their con­science when faced with a neu­tral law or pol­icy that trou­bles them. Whether it was am­bu­lance driv­ers re­fus­ing to treat AIDS pa­tients for re­li­gious rea­sons, phar­ma­cists re­fus­ing to fill pre­scrip­tions for the morn­ing-af­ter pill, or a for-profit cor­po­ra­tion—a chain of craft stores named Hobby Lobby—re­fus­ing to al­low work­ers ac­cess to statu­to­rily guar­an­teed birth con­trol, re­li­gious con­science claims have be­come the sword with which in­di­vid­u­als claim­ing re­li­gious lib­erty could dis­man­tle laws and rul­ings that pro­tect civil equal­ity. As the Yale Law School pro­fes­sors Reva Siegel and Dou­glas Ne­Jaime have put it, “Af­ter fail­ing to pro­hibit abor­tion and same-sex mar­riage, con­ser­va­tives have sought to cre­ate re­li­gious ex­emp­tions from laws that pro­tect the right to abor­tion or same-sex mar­riage.” As hos­pi­tal own­er­ship be­came con­sol­i­dated na­tion­ally, and with re­li­gious hos­pi­tals de­clin­ing to per­mit abor­tions, these re­li­gious con­science claims work to limit pa­tient ac­cess to ba­sic med­i­cal care. Faith-based fos­ter care and adop­tion agen­cies may refuse to place chil­dren with same-sex or Jew­ish par­ents for re­li­gious rea­sons. Re­li­gious ex­emp­tions to the COVID vac­cine have pro­lif­er­ated na­tion­wide. In that spirit, even be­fore Trump was elected, faith-based shel­ters for teen im­mi­grants were de­clin­ing to par­tic­i­pate in law­ful ter­mi­na­tion of preg­nan­cies.

• • •

Amiri was work­ing on an ACLU law­suit at­tempt­ing to keep the last abor­tion clinic in Ken­tucky open, when she got a phone call from Su­san Hayes, at Jane’s Due Process, in Sep­tem­ber 2017. Ac­cord­ing to Amiri, Hayes told her, “We have a mi­nor who is in the Rio Grande val­ley matched with one of our vol­un­teer at­tor­neys there, who has taken her to get her by­pass, so she can con­sent to an abor­tion on her own. But ORR is now telling her she needs to go to a cri­sis preg­nancy cen­ter to be coun­seled and that they have to tell her par­ents in her home coun­try.” Soon Hayes called back to say the gov­ern­ment was now pro­hibit­ing Jane from leav­ing the shel­ter for any abor­tion-re­lated ap­point­ment, even the twenty-four-hour manda­tory coun­sel­ing ses­sion re­quired un­der Texas law. Amiri quickly called the Jus­tice De­part­ment. “I said, ‘You can’t do this,’ and they said, ‘Well, that is what our client wants.’ And I said, ‘Well, then you won’t be sur­prised when we sue you.’ ”

Amiri got in touch with Rochelle Garza, the guardian ad litem ap­pointed for Jane, and Chris­tine Cortez, the at­tor­ney ad litem ap­pointed to pro­tect her in­ter­ests. She talked to Jane on the phone and got a dec­la­ra­tion from her. “And I re­mem­ber think­ing,” she told me, “I’m go­ing to go home, put my kid to bed, and write the tem­po­rary re­strain­ing or­der pa­pers. This is an easy case. You can’t ban abor­tion.” She laughed. “We thought we’d be in and out of court, like that.” The ACLU first tried to at­tach the Jane Doe com­plaint to their on­go­ing Cal­i­for­nia case chal­leng­ing ORR poli­cies at shel­ters, but the judge felt it was the wrong venue. And the clock was still tick­ing down for Jane. “Jane at this point is nine weeks preg­nant,” Amiri said. These dates mat­ter be­cause ter­mi­nat­ing a preg­nancy be­comes more med­i­cally com­pli­cated the longer you wait and be­cause in Texas abor­tion was gen­er­ally il­le­gal at twenty weeks. So Amiri filed an emer­gency pe­ti­tion in a DC fed­eral court in Oc­to­ber 2017. “I’m not sure I’ve ever seen a fed­eral dis­trict court judge so an­gry at any party as she was at the gov­ern­ment,” said Amiri of Judge Tanya Chutkan, who over­saw that case. “She im­me­di­ately un­der­stood why this was out­ra­geous, that ef­fec­tively they were hold­ing Jane against her will, pre­vent­ing her from ac­cess­ing an abor­tion. She granted a tem­po­rary re­strain­ing or­der later that day, af­ter the hear­ing.”

Judge Chutkan or­dered HHS to al­low Jane to leave the shel­ter for her pro­ce­dure on ei­ther the twen­ti­eth or the twenty-first of the month and in­structed them not to in­ter­fere with her fur­ther. But the Jus­tice De­part­ment still re­fused to per­mit Jane to leave the shel­ter. It ap­pealed Chutkan’s or­der to the fed­eral ap­peals court in Wash­ing­ton, DC. At this point, the var­i­ous arms of the ACLU le­gal team be­gan to wrap tighter around the lit­i­ga­tion. Asked about her own im­mi­gra­tion law back­ground, Amiri smiled. “I have none,” she said, wav­ing to the cor­ri­dor. “I’m go­ing down the hall,” where the ACLU’s im­mi­grants’ rights team sits. “It’s now a huge team,” said Amiri, “my col­league Mea­gan Bur­rows, down the hall, and Jen Dal­ven, who’s my boss, and Art Spitzer and Scott Michel­man in DC, and we got the emer­gency pa­pers to the court of ap­peals. And we’re writ­ing the briefs in the mid­dle of the night, trad­ing things off. I wake up early; Art stays up late at night, get­ting four hours of sleep.”

The DC Cir­cuit Court of Ap­peals agreed to hear the case on a fast track. So on Oc­to­ber 19, Amiri got a call from the clerk, ask­ing if she could come down to DC the next day to ar­gue be­fore a three-judge panel on the court of ap­peals. “I keep a suit on the back of my of­fice door. I have a bunch of ran­dom un­com­fort­able shoes down here,” Amiri said, point­ing un­der her desk. She de­cided to go straight from her New York of­fice. “I go get a free T-shirt from the closet. I de­cided I’m go­ing to buy toi­letries and un­der­wear when I get to Union Sta­tion at the drug­store and Vic­to­ria’s Se­cret, re­spec­tively.” She checked her­self into a Wash­ing­ton ho­tel, then called Rochelle and Chris­tine and started pre­par­ing. There was go­ing to be real-time au­dio of the oral ar­gu­ment, still a rar­ity at many fed­eral ap­pel­late courts. There wasn’t even time for a moot court prac­tice ses­sion be­fore her ar­gu­ment.

The panel Amiri drew for oral ar­gu­ment in Garza v. Har­gan con­sisted of three ap­pel­late judges: Karen LeCraft Hen­der­son, Pa­tri­cia Mil­lett, and Brett Ka­vanaugh. At­tor­ney Cather­ine Dorsey, rep­re­sent­ing the Jus­tice De­part­ment, opened by telling the court that the gov­ern­ment was “not pre­vent­ing, block­ing, or im­pos­ing any ob­sta­cle on Ms. Doe pur­suant of an abor­tion here, such that it could con­sti­tute an un­due bur­den within the mean­ing of Casey. The Gov­ern­ment has not put any ob­sta­cle in her path; rather the Gov­ern­ment is re­fus­ing to fa­cil­i­tate an abor­tion, which it is per­mit­ted to do in fur­ther­ance of its le­git­i­mate in­ter­est in pro­mot­ing child­birth.” The gov­ern­ment wasn’t im­ped­ing her, it said; it just wouldn’t help her.

Judge Ka­vanaugh pressed Dorsey on how it could be true that if Jane were an adult in a fed­eral prison, she would have a con­sti­tu­tional right to abor­tion un­der Roe v. Wade, but not as an im­mi­grant mi­nor. Dorsey replied that “Ms. Doe has the op­tion of vol­un­tary de­par­ture” to her home coun­try. Later in the ar­gu­ment Dorsey would be asked whether Jane’s home coun­try al­lowed abor­tion. She con­ceded that it did not. Dorsey ex­plained to the court that adult mi­grants in ICE de­ten­tion can ob­tain an abor­tion but mi­nors can­not be­cause HHS has an in­ter­est in pro­mot­ing “the best in­ter­ests of the child,” which is, pre­sum­ably, to give birth in ev­ery sin­gle case. Judge Ka­vanaugh asked how many preg­nant mi­nors were cur­rently in ORR cus­tody. Dorsey did not know. Judge Mil­lett asked how it was pos­si­ble that ORR would be “fa­cil­i­tat­ing” an abor­tion given that Jane is “in the cus­tody of a grantee who has no op­po­si­tion to let­ting her go, other than . . . the Gov­ern­ment’s threat to take away fund­ing if they let her go have the abor­tion.” Dorsey ac­knowl­edged that the shel­ter needed only to do the pa­per­work to trans­fer her and pro­vide care for her post-pro­ce­dure. Mil­lett was con­fused: “So the one health care they’re not will­ing to do is for abor­tion. They’d be will­ing to do any­thing if she were to con­tinue the preg­nancy and do all this fa­cil­i­ta­tion if she were to con­tinue the preg­nancy?” Dorsey re­peated that the gov­ern­ment had an in­ter­est in pro­mot­ing child­birth. Mil­lett: “You’ve al­ready had a ju­di­cial by­pass that says she can make this de­ci­sion her­self, not her cus­to­dian. She’s got a guardian ad litem that agrees. And your po­si­tion is that the fa­cil­i­tat­ing would be ORR say­ing okay we’re go­ing to let you ex­er­cise your choice.”

Then it was Brigitte Amiri’s turn at the lectern. “May it please the court. Good morn­ing,” she opened. “Since 1973 the Supreme Court has held that the Gov­ern­ment may not ban abor­tion. By re­fus­ing to trans­port J.D. for an abor­tion, or re­fus­ing to al­low any­one to trans­port J.D., in­clud­ing the shel­ter or her guardian ad litem, the Gov­ern­ment is vi­o­lat­ing well es­tab­lished Supreme Court Prece­dent.” Judge Ka­vanaugh pressed her on why a spon­sor couldn’t be found for Jane. Giv­ing cus­tody of Doe from the gov­ern­ment to a spon­sor would pre­vent the shel­ter from fa­cil­i­tat­ing an abor­tion and thus al­low the court to avoid mak­ing a rul­ing on an un­doc­u­mented mi­nor’s right to an abor­tion in fed­eral cus­tody. Amiri replied that the gov­ern­ment had been un­suc­cess­fully seek­ing a spon­sor for six weeks al­ready, that one at­tempt to lo­cate a spon­sor had al­ready fallen through, and that find­ing a spon­sor could take months.

Judge Mil­lett asked why the fed­eral gov­ern­ment didn’t have an in­ter­est in help­ing un­ac­com­pa­nied mi­nors make de­ci­sions that are safe and ap­pro­pri­ate for them. Amiri replied, “Your Honor, they do have the re­quire­ment to act in the best in­ter­est of mi­nors. And I will say that they are not do­ing that with re­spect to J.D., when she has made a de­ci­sion to have an abor­tion. She has a ju­di­cial by­pass from a state court judge. What they are ac­tu­ally do­ing is sup­plant­ing their de­ci­sion about what J.D. should do with her preg­nancy and that is not act­ing in her best in­ter­est and that is ac­tu­ally veto power over J.D.’s abor­tion de­ci­sion.” Judge Ka­vanaugh pressed her on why hav­ing a spon­sor, an­other adult to talk to, wouldn’t help Jane make a bet­ter, more in­formed de­ci­sion. Amiri re­it­er­ated that Jane al­ready had a ju­di­cial by­pass, plus a guardian ad litem, plus an at­tor­ney ad litem for emo­tional sup­port. She added that Scott Lloyd had gone to an­other mi­nor in a shel­ter, per­son­ally “to talk to her about her preg­nancy and, I be­lieve, un­fairly pres­sure her to carry her preg­nancy to term.”

Amiri an­swered ques­tions about the gov­ern­ment’s fa­cil­i­ta­tion ar­gu­ment: “De­fen­dants re­ally only need to step aside. This idea that some­how they have to ap­prove the abor­tion by fill­ing out some pa­per­work is com­pletely un­per­sua­sive. Re­ally all that has to hap­pen is that the Of­fice of Refugee Re­set­tle­ment needs to make a phone call to the shel­ter and say that the shel­ter may now trans­port the mi­nor or that the guardian may do so.”

Later Amiri said this: “Peo­ple asked me about this later, about ap­pear­ing in front of Judge Ka­vanaugh. It was a very re­spect­ful ex­change. He asked press­ing ques­tions of the gov­ern­ment about why adults in ICE de­ten­tion would be al­lowed ac­cess to abor­tion. . . . So, I’m not leav­ing that ar­gu­ment think­ing, ‘That Judge Ka­vanaugh, he hates abor­tion and he’s go­ing to rule against us.’ ” Amiri closed her ar­gu­ments be­fore that ap­pel­late panel by fo­cus­ing on Jane Doe: “What we’re talk­ing about here is an un­ac­com­pa­nied im­mi­grant mi­nor, sev­en­teen years old, preg­nant, who has been forced to re­main preg­nant against her will for three weeks be­cause the Gov­ern­ment has blocked her abor­tion de­ci­sion. Ev­ery day she re­mains preg­nant takes a toll on her phys­i­cal and emo­tional health.” Jane had waited three weeks since a Texas judge had granted per­mis­sion to pro­ceed, and that, said Amiri, has al­ready been “three weeks too long. And bal­anc­ing her harm com­pared to the Gov­ern­ment’s mak­ing a phone call, it’s quite easy here.” The court tran­script shows the pro­ceed­ings con­cluded at 11:34 a.m. Amiri got on a train back to New York. That evening the panel is­sued its de­ci­sion.

Judges Hen­der­son and Ka­vanaugh had va­cated the lower court’s abor­tion or­der. They took the “com­pro­mise po­si­tion”—prof­fered at the oral ar­gu­ments by Ka­vanaugh—that Jane should stay in limbo for eleven more days as the state tried to lo­cate a spon­sor, some­thing it had not been able to do for weeks. The new or­der set a new dead­line of Oc­to­ber 31, stat­ing that if Jane couldn’t find a spon­sor by then, the lit­i­ga­tion could start up again. By that point Jane would be start­ing her en­tire case again at sev­en­teen-plus weeks. The usu­ally tem­per­ate judge Pa­tri­cia Mil­lett dis­sented with this sober ob­ser­va­tion: “There are no win­ners in cases like these. But there sure are losers. As of to­day, J.D. has al­ready been forced by the gov­ern­ment to con­tinue an un­wanted preg­nancy for al­most four weeks, and now, as a re­sult of this or­der, must con­tinue to carry that preg­nancy for mul­ti­ple more weeks.” Mil­lett wrote that the gov­ern­ment’s con­duct con­sti­tuted “not just a ‘sub­stan­tial ob­sta­cle’ [but] a full-on, un­qual­i­fied de­nial of and flat pro­hi­bi­tion on [Jane’s] right to make her own re­pro­duc­tive choice.” It was, she wrote, “an as­ton­ish­ing power grab, and it flies in the teeth of decades of Supreme Court prece­dent pre­serv­ing and pro­tect­ing the fun­da­men­tal right of a woman to make an in­formed choice whether to con­tinue a preg­nancy at this early stage.”

For Amiri, the loss was dev­as­tat­ing: “As soon as I got off the train, I was do­ing day-care pickup or af­ter-school pickup, and we got the de­ci­sion, and I’m on the side­walk in tears.” At that point, the press had started pay­ing at­ten­tion. “And so I’m also field­ing press calls, and the Wash­ing­ton Post re­porter who’d been fol­low­ing me says, ‘Oh, con­grat­u­la­tions.’ I’m like, ‘No, no, no.’ They kept say­ing, ‘Well, yeah, but in ten days . . .’ But I’m say­ing ‘No, no, no, no.’ We had to ex­plain that it’s not as if Judge Ka­vanaugh’s rul­ing said that in ten days Jane can get the abor­tion if they can’t find a spon­sor. He was say­ing we’d have to start our case all over again.” As Amiri had put it to me at that time, this was a gov­ern­ment that re­spects the au­ton­omy of women only if they make the one the­o­log­i­cal de­ci­sion fa­vored by the gov­ern­ment. “For the Trump ad­min­is­tra­tion, what Jane needs only mat­ters if it lines up with their ex­treme an­tiabor­tion agenda. If she wanted to re­main preg­nant or go to a fake clinic—they’d be all too happy to ‘re­spect’ her de­ci­sion.”

Amiri paused. “So that was Fri­day. I went home and had a glass of wine and col­lapsed into a pud­dle. And then the next day we started again, get­ting our pe­ti­tion for re­hear­ing pa­pers ready. I think we filed them on Sun­day. That night the court called for a re­sponse, eleven hours later, in the mid­dle of the night, from the gov­ern­ment. We got the de­ci­sion from the en banc court.” If a fed­eral ap­peals court wants to re­visit any three-judge panel’s de­ci­sion, they may do so sit­ting as a larger panel; it’s called a re­hear­ing “en banc,” from the French, mean­ing “on the bench.” In Jane’s case, again act­ing at light speed, with the en­tire DC Cir­cuit sit­ting to re­hear the mat­ter, the court voted by a 6–3 mar­gin to re­verse the Ka­vanaugh rul­ing and al­low Jane to ter­mi­nate her preg­nancy. Judge Ka­vanaugh penned a bit­ter dis­sent in which he ar­gued that the gov­ern­ment had a gen­uine in­ter­est in not “fa­cil­i­tat­ing” abor­tion, then con­demned the ma­jor­ity for find­ing that “un­law­ful im­mi­grant mi­nors have a right to im­me­di­ate abor­tion on de­mand.” By rul­ing in fa­vor of Jane Doe, he wrote, the court had strayed from prece­dent “hold­ing that the Gov­ern­ment has per­mis­si­ble in­ter­ests in fa­vor­ing fe­tal life, pro­tect­ing the best in­ter­ests of a mi­nor, and re­frain­ing from fa­cil­i­tat­ing abor­tion.” In his nine-page dis­sent­ing opin­ion, Ka­vanaugh ac­tu­ally used the words “abor­tion-on-de­mand” three times. That’s not a phrase with any le­gal mean­ing, but it is, and has long been, a talk­ing point for an­ti­choice ac­tivists. He was, it would seem, dis­sent­ing in part and au­di­tion­ing in part.

The ACLU had won, again, but it was still an up­hill bat­tle to get Jane her pro­ce­dure. All the clinic dates Amiri had sought in the orig­i­nal TRO ap­pli­ca­tion had ex­pired. They needed new dead­lines. Texas doc­tors were avail­able on lim­ited days, and there was a need to per­form an­other manda­tory coun­sel­ing ses­sion, by the same physi­cian who would per­form the pro­ce­dure, be­fore ter­mi­na­tion could oc­cur. Get­ting coun­sel­ing plus a date for the pro­ce­dure be­came an elab­o­rate jig­saw puz­zle. Amy Hagstrom Miller is CEO and founder of Whole Woman’s Health—the clin­ics that had pre­vailed at the Supreme Court in the sum­mer of 2016, which ended the pre­tex­tual laws Texas had passed in or­der to shut­ter women’s health fa­cil­i­ties. It was at one of her Texas clin­ics that Jane had orig­i­nally been seen and had her ul­tra­sound, and that was where the pro­ce­dure needed to be resched­uled. It was a clinic, she notes, that barely sur­vived Texas’s ef­forts to close all the clin­ics in 2016. “It’s a mir­a­cle that clinic was even open,” said Hagstrom Miller. “Af­ter the de­lay hap­pened, we were start­ing to, what we call, ‘chase the weeks’ be­cause not all of the physi­cians who go to that clinic are trained into the sec­ond trimester. And when she first came to us, she was in the first trimester. But af­ter the de­lays, we were left with just one provider we could bring in to see her. She just barely made that limit.” She added, “And this clinic only has a provider three days a week.”

Said Amiri, “So af­ter we got the good de­ci­sion from the en banc court, we had to go back to the dis­trict court to get a new TRO say­ing that Jane could go as soon as a doc­tor was avail­able, or as soon as the clinic was avail­able to see her.” On Oc­to­ber 24, the lower court judge, Tanya Chutkan, en­tered an­other or­der, again pre­vent­ing ORR from in­ter­fer­ing with Jane’s pro­ce­dure and spec­i­fy­ing that her ter­mi­na­tion now needed to hap­pen “promptly and with­out de­lay.”

“As soon as we got that,” Amiri said, “Rochelle called the shel­ter and said, ‘Okay, take her now. Take her now for her coun­sel­ing.’ And they dragged their feet, and they dragged their feet, and that’s when I sent an email to the DOJ and the shel­ter say­ing, ‘If you don’t take her right now, we are go­ing back to the court and say­ing that you are in con­tempt.’ ” And on Jane’s side? Said Amiri, “They were say­ing, ‘We’ve got to get the van ready.’ And ‘we’ve got to fig­ure out if there’s a driver to take her.’ So by the time they were on the road, the clinic calls us and says, ‘We can’t stay. At this point, we can’t . . . it’s too late.’ ”

The ACLU team de­cided to find out whether the doc­tor who had orig­i­nally coun­seled Jane, back on Oc­to­ber 19, would be will­ing to per­form the pro­ce­dure the next day, on Oc­to­ber 25. “That night I spent on my couch so as not to wake up my hus­band, with my com­puter and my phone by my head, un­til 1:00 in the morn­ing, try­ing to fig­ure out whether this was ac­tu­ally go­ing to work and whether the shel­ter was go­ing to ac­tu­ally do it. I was wo­ken up by a phone call from Rochelle and Chris­tine at, like, 5:00 my time, 4:00 their time, and they said, ‘We’re at the clinic. Jane’s here. The clinic staff is here. They let us in.’ And I just burst into tears be­cause at that mo­ment it was go­ing to hap­pen.”

Amy Hagstrom Miller took up the story from there: “We were con­stantly in com­mu­ni­ca­tion about, for this spe­cific pa­tient, try­ing to set up a doc­tor who could meet her needs on a day that she could get out. The doc­tor, with less than twelve hours’ no­tice, left at four in the morn­ing in or­der to get to the clinic. We got the pa­tient in be­fore sun­rise, un­der the cover of dark, ba­si­cally. And I re­mem­ber when the doc­tor landed in the com­mu­nity, the pa­tient and the staff were all in the clinic, and ev­ery­body in the whole clinic, in­clud­ing the pa­tient, cheered. . . . The staff went in, in the mid­dle of the night, and it was com­pleted be­fore ten o’clock in the morn­ing.” She added, “I ac­tu­ally spoke to her, be­cause I had to be­cause of what she had been through and to tell her what her per­sis­tence and her brav­ery rep­re­sented to all of us; that was re­ally pro­found.” In the days be­fore her pro­ce­dure, Jane did an in­ter­view with Vice News. She said she wasn’t ready at sev­en­teen to be a mother. “I want to get to the place I want to go,” she said, “and, if God al­lows it, study, to study and get ahead. I want to be a doc­tor.”

Hagstrom Miller added this: “There’s this nar­ra­tive about Jane, a hope­ful nar­ra­tive, which is what she ex­pe­ri­enced, right? She ex­pe­ri­enced the United States like we want peo­ple to ex­pe­ri­ence the United States. She left a coun­try where she wouldn’t have had ac­cess to abor­tion and came here seek­ing a bet­ter life for her­self and a bet­ter fu­ture for her­self, and she got it.” She stopped, then said, “Do you know how many more peo­ple are in de­ten­tion that need those ser­vices and that care that we’re not able to pro­vide it for [them]? That’s heart­break­ing to know that we don’t know who they are, or they might not know how to get to us, be­cause it took so much to be able to ad­vo­cate for this one per­son. And the thank-you that she had for us was so pro­found and it was so hum­bling. But we were all, ‘No, no, don’t, no, don’t. Thank you for all that you’ve taught us.’ ”

The Jus­tice De­part­ment be­lieved Jane would get manda­tory coun­sel­ing on the morn­ing of Oc­to­ber 25 and have the pro­ce­dure Oc­to­ber 26. The night be­fore, the ACLU had re­ceived an email from DOJ ask­ing about the new tim­ing. Amiri said she’d let them know, as­sum­ing their in­ter­ests were about lo­gis­tics and trans­porta­tion. I asked Amiri if she has any re­grets. “No, I don’t. I don’t have any re­grets. I’ve ob­vi­ously thought a lot about this, but no. I had no obli­ga­tion to tell them any­thing af­fir­ma­tive; we had a court or­der say­ing that Jane could get the abor­tion as soon as the abor­tion was avail­able. We did not ever tell them that we would let them know when she was go­ing to the clinic, other than for trans­porta­tion pur­poses.”

In an un­prece­dented move nine days af­ter Jane got her abor­tion, the US so­lic­i­tor gen­eral Noel Fran­cisco filed an ap­peal at the US Supreme Court seek­ing that the en banc panel de­ci­sion of the DC Cir­cuit Court of Ap­peals be wiped off the books so it would not im­pact any fu­ture Jane Does. Fran­cisco fur­ther asked the Supreme Court to sanc­tion the ACLU at­tor­neys, in­clud­ing Amiri, for fail­ing to no­tify them of Jane’s sched­uled abor­tion. The DOJ asked the Supreme Court to force Doe’s lawyers to “show cause why dis­ci­plinary ac­tion should not be taken” against the ACLU—ei­ther by the court it­self or by the state bars in the states in which they prac­ticed—for “ma­te­rial mis­rep­re­sen­ta­tions and omis­sions” de­signed to thwart an ap­peal.

“It felt like a punch in the stom­ach,” Amiri said. “I didn’t ac­tu­ally think they could take my law li­cense. But, look, I’ve al­ways as­pired to ar­gue in the Supreme Court some­day. And so I thought, could there be Supreme Court dis­ci­pline? And also, my rep­u­ta­tion, you know? I’m a good mid­west­ern girl, and no­body has ever ac­cused me of any­thing un­eth­i­cal in my whole life. And so it’s also just ‘Me? They’re ac­cus­ing me of this?’ I felt sick, I think, prob­a­bly for the first few days. Af­ter I pro­cessed it, I was just pissed.” She was lucky, she said, that the ACLU stood be­hind her, as did lead­ing mem­bers of the Supreme Court bar, in­clud­ing prom­i­nent lawyers who sup­ported her, but it was part of an on­go­ing pat­tern of Trump’s Jus­tice De­part­ment, which was go­ing af­ter lit­i­ga­tion shops and de­port­ing lead­ers of im­mi­grant rights groups.

“This was re­tal­i­a­tion against peo­ple who dared to stand up against gov­ern­ment, who dared to win,” Amiri said. “Lawyers who are do­ing their job.” She added, “I re­mem­ber a con­ver­sa­tion I had with my dad where I said, ‘This is some­thing that would hap­pen in Iran. This is some­thing that hap­pens in an op­pres­sive regime. This is not what hap­pens in the United States of Amer­ica.’ ” This also felt like an­other ver­sion of “Lock her up,” a call for dis­ci­plinary ac­tion against a woman lawyer who had helped an­other woman fight for a con­sti­tu­tion­ally pro­tected right. She hadn’t just beaten the Trump ad­min­is­tra­tion; she’d em­bar­rassed them. The coun­ter­punch seemed de­signed to pun­ish her for us­ing her law li­cense to do that.

Ul­ti­mately, Amiri said she started to think of the so­lic­i­tor gen­eral’s at­tack as a “badge of honor.” She said her boss, Jen­nifer Dal­ven, still tells her, “They’re up­set they got beat by girls.” It was hard not to see Jane and her team of women lawyers, along with a woman judge in DC, as do­ing bat­tle with Scott Lloyd and a Jus­tice De­part­ment that seemed hell-bent on claim­ing that the only real and last­ing in­jury in this lit­i­ga­tion would be to an inan­i­mate fa­cil­ity and an inan­i­mate gov­ern­ment body that didn’t want to have “caused” an abor­tion. That a teenage girl was suf­fer­ing seemed im­ma­te­rial. For so many women lawyers in­volved in the case, and for women fol­low­ing the law­suit in hor­ror, the no­tion that teenagers in gov­ern­ment cus­tody could be held hostage in fa­cil­i­ties de­signed to pro­tect them and forced to bear chil­dren was the stuff of night­mares. It was both heart­en­ing and hor­ri­fy­ing that Jane was passed along a chain of fe­male lawyers, judges, and re­pro­duc­tive rights ac­tivists and providers in or­der to cir­cum­vent a man in­sist­ing that he would be “com­plicit” by do­ing noth­ing at all. A mod­icum of imag­i­na­tion, if not ac­tual em­pa­thy, would re­veal that Scott Lloyd and ORR were not the vic­tims here. It should not be the case that imag­i­na­tion or em­pa­thy is the prov­ince of fe­males, but in this case the asym­me­try was stag­ger­ing.

In the mean­time, as they tried to tag Amiri for mis­con­duct, it be­came clear that Jus­tice De­part­ment lawyers had also been un­truth­ful in ar­gu­ing be­fore the DC Cir­cuit that they would never re­strict abor­tions in cases of rape. In­ter­nal ORR doc­u­ments re­vealed that Lloyd had done pre­cisely that, in De­cem­ber 2017, in a case in­volv­ing an­other mi­grant teen, known as Jane Poe, whose abor­tion he had also blocked. In sub­se­quent Jane Poe lit­i­ga­tion, there emerged a let­ter from Lloyd say­ing that abor­tion would not be in that teen’s best in­ter­est, even though she had been raped and was sui­ci­dal. Lloyd de­nied her abor­tion re­quest, he said, be­cause it would re­sult in the “ul­ti­mate de­struc­tion of an­other hu­man be­ing.” It was fi­nally be­ing said ex­plic­itly: there was no case un­der which he would have per­mit­ted a ter­mi­na­tion, not ever.

The Supreme Court even­tu­ally dis­missed the re­quest to sanc­tion Amiri, but it took al­most six months of closed-door con­fer­ences be­fore they de­cided to do so, sug­gest­ing that at least some of the jus­tices were con­sid­er­ing it. For Amiri it meant six whole months of just “wait­ing ev­ery Mon­day for the or­ders and click­ing ‘re­fresh’ to see what’s go­ing to hap­pen.” On June 4, 2018, the jus­tices did grant the DOJ pe­ti­tion to wipe the Garza case off the books.

While the en banc opin­ion in Garza is no longer prece­dent, the ACLU filed a sep­a­rate class ac­tion in Jan­u­ary 2018 seek­ing to pro­tect all of the young mi­grants in ORR shel­ters. Amiri said that find­ing the teen girls to make up that class was enor­mously chal­leng­ing: “We knew there were other young women out there, but we didn’t know how to get to them. There are shel­ters all across the coun­try, and we were try­ing to get out the word to im­mi­gra­tion at­tor­neys, but there’s no sys­tem­atic way of get­ting the word out and no en­try point. And then I got, via snail mail, an en­ve­lope with my name mis­spelled, and it was in pen­cil, and there was a let­ter in there with enough ac­cu­rate in­for­ma­tion to find what then be­came known as Jane Poe and then Jane Roe. And there was no in­di­ca­tion of who this came from, and I will never know.”

In March 2018, Judge Chutkan, the same dis­trict court judge who’d ruled for Jane Doe, barred DHS from deny­ing any im­mi­grants in fed­eral cus­tody ac­cess to abor­tion ser­vices. She also cer­ti­fied the ACLU’s class-ac­tion law­suit such that ev­ery sim­i­larly sit­u­ated Jane now had le­gal sta­tus and ac­cess to re­lief. At the time of Jane Doe’s case, HHS re­ported there were thirty-eight other preg­nant girls in ORR cus­tody. It wasn’t un­til Sep­tem­ber 2020, three years af­ter Jane Doe was able to ter­mi­nate her own preg­nancy, that the Trump ad­min­is­tra­tion fi­nally is­sued a new pol­icy clar­i­fy­ing that ORR and ORR-funded shel­ters may not block or in­ter­fere with un­ac­com­pa­nied im­mi­grant mi­nors’ ac­cess to re­pro­duc­tive health care, in­clud­ing abor­tion. Only then did the ACLU drop their class ac­tion on be­half of hun­dreds of other Janes.

“There is some book by John Irv­ing,” said Amiri, “where one of the char­ac­ters is prac­tic­ing a bas­ket­ball layup over and over again, and he doesn’t know why he’s prac­tic­ing that layup, nec­es­sar­ily. And then he’s in Viet­nam, and there’s a bomb, and he’s in this school with these kids and he has to throw these kids out the win­dow. And he re­al­izes that this thing that he’s been prac­tic­ing over and over again? This was the mo­ment. This was it. I’m in­cred­i­bly proud that this was the case I was able to lead, draw­ing from all those ten years. And the con­flu­ence of all the le­gal planes: I’d done pris­on­ers’ ac­cess to abor­tion claims; I’d done cases about parental in­volve­ment. The only case about a law forc­ing peo­ple to go to cri­sis preg­nancy cen­ters as a con­di­tion of get­ting an abor­tion is a law in South Dakota that I’m chal­leng­ing with Planned Par­ent­hood. So doc­tri­nally, you have this con­flu­ence of all of these is­sues I’d worked on for years.”

And of course this brings us back to Scott Lloyd, who had been prac­tic­ing his own layups for years, which in­volved deny­ing women their con­sti­tu­tional rights. Amiri was fi­nally able to de­pose him as a part of the lit­i­ga­tion over other Janes in his cus­tody. In his first de­po­si­tion, taken in De­cem­ber 2017, Lloyd ad­mit­ted un­der oath that he had con­sid­ered forc­ing a preg­nant mi­nor in his care, who had al­ready taken the first pill in a med­i­ca­tion abor­tion, to at­tempt a con­tro­ver­sial and med­i­cally un­sup­ported “abor­tion re­ver­sal” in or­der to “save the life of the baby.” In an­other de­po­si­tion, taken in Feb­ru­ary 2018, Lloyd told Amiri he didn’t ac­tu­ally know whether child­birth was safer than abor­tion—it is not—and when she asked him whether he be­lieved abor­tion in­volved “de­struc­tion of hu­man life,” he replied that this was “ob­jec­tive fact.” Amiri was thun­der­struck. From the tran­script:

amiri: “That’s ob­jec­tive?”

lloyd: “Um-hum.”

amiri: “You be­lieve ev­ery­one, re­gard­less of their be­lief sys­tems, be­lieves that abor­tion is the de­struc­tion of hu­man life?”

lloyd: “Well, it’s not just in my mind. . . . I think the ob­jec­tive facts are that it in­volves the de­struc­tion of a hu­man life. How peo­ple in­ter­nal­ize ev­ery el­e­ment is a dif­fer­ent ques­tion.”

Lloyd fur­ther said un­der oath that he be­lieved abor­tion was a sin and that he had con­ducted no real lit­er­a­ture re­view be­fore writ­ing his memo claim­ing that women who have abor­tions “ex­pe­ri­ence it as a dev­as­tat­ing trauma.” He claimed he had taken that view based on read­ing in­for­ma­tion pro­vided by his staff as well as “stuff” he found “on the in­ter­net” in­di­cat­ing “an in­creased like­li­hood of self-harm, sui­cide, that sort of thing.” There is no med­i­cal ev­i­dence what­so­ever sup­port­ing these claims.

Lloyd’s most stun­ning ad­mis­sion in this same de­po­si­tion in­volved Jane Poe, the mi­nor to whom he had de­nied ac­cess to an abor­tion in 2017, even though her preg­nancy was the re­sult of a rape. The DOJ had promised the DC ap­peals court that this would never hap­pen. But it had hap­pened. And Lloyd had writ­ten in an ORR memo that com­pelling mi­nors to carry to term was in their “best in­ter­est”—even in cases where they were likely to self-harm. Asked by Amiri about Jane Poe, Lloyd replied that she had “claimed to have been raped.”

The on­go­ing ACLU law­suit would come to re­veal that Lloyd had ded­i­cated an out­size share of his pro­fes­sional time to call­ing, vis­it­ing, and oth­er­wise mi­cro­manag­ing the teen mi­grants in ORR cus­tody. A FOIA re­quest showed that Lloyd had been keep­ing metic­u­lous track of the men­strual cy­cles of those girls and that this con­tin­ued long af­ter he had been or­dered by a court to stop block­ing young women seek­ing to ter­mi­nate their preg­nan­cies. The Hand­maid’s Tale des­ig­na­tion was fi­nally truly apt; these young women were be­ing held hostage by the US gov­ern­ment and forced to con­tinue un­wanted preg­nan­cies while one man mon­i­tored their fer­til­ity as part of his self-as­signed “job.”

It would later be­come clear that Lloyd was also at least partly re­spon­si­ble for the fed­eral gov­ern­ment’s cat­a­strophic in­abil­ity to keep proper track of thou­sands of im­mi­grant chil­dren sep­a­rated from their par­ents at the bor­der pur­suant to the Trump ad­min­is­tra­tion’s “zero tol­er­ance” pol­icy, an­nounced by the ad­min­is­tra­tion dur­ing the spring and sum­mer of 2018. Lloyd would tes­tify, in Feb­ru­ary 2019, that he had failed to alert HHS of­fi­cials about the dan­gers of fam­ily sep­a­ra­tion, even though he had been warned in ex­plicit de­tail by a sub­or­di­nate of the men­tal health catas­tro­phe that would fol­low. Al­though his of­fice was in charge of the thou­sands of chil­dren sep­a­rated from their par­ents, Lloyd had told his staff to stop keep­ing spread­sheets. His even­tual re­view of the case files of sep­a­rated fam­i­lies was so slow that his boss, Sec­re­tary of Health and Hu­man Ser­vices Alex Azar, had to even­tu­ally un­der­take it him­self. In law­suits, fed­eral judges or­dered ORR to re­move mi­grant chil­dren from fa­cil­i­ties—one lo­cated south of Hous­ton and an­other in Vir­ginia—when al­le­ga­tions sur­faced that staff had ad­min­is­tered psy­chotropic drugs in the Texas shel­ter and that mi­grant teens had been beaten and stripped naked at the Vir­ginia fa­cil­ity. But Lloyd du­ti­fully kept his spread­sheets of teen girls’ pe­ri­ods.

Amy Hagstrom Miller said that as a per­son of faith her­self, Lloyd’s con­duct was shock­ing. “It makes me shud­der that he was us­ing that po­si­tion to fur­ther his own per­sonal be­liefs, and the track­ing of the men­strual cy­cles is ab­so­lutely ter­ri­fy­ing. Es­pe­cially that they’re los­ing track of ac­tual peo­ple and ac­tual chil­dren, yet they have a spread­sheet for when peo­ple are get­ting their pe­ri­ods, it just speaks so loudly to this no­tion of women as ves­sels.” Hagstrom Miller added that it was only days af­ter her case, Whole Woman’s Health, was de­cided at the Supreme Court in 2016 that state leg­is­la­tors “piv­oted from the health and safety frame­work and from the no­tion that the state re­ally cared about women and fam­i­lies and started to talk about women as ‘hosts.’ ”

As Han­nah Lev­in­tova at Mother Jones noted in 2019, “Three fed­eral courts have re­buked Lloyd [in 2018] for mak­ing pol­icy de­ci­sions based on his per­sonal be­liefs—what one judge called his ‘flight of whimsy.’ ” In July 2018, he was qui­etly re­moved from any for­mal of­fi­cial over­sight of the of­fice, and in No­vem­ber 2018 he was re­de­ployed just as qui­etly from head of ORR to HHS’s Cen­ter for Faith and Op­por­tu­nity Ini­tia­tives, to fo­cus on out­reach to faith com­mu­ni­ties. One month later he pub­lished a novel, called The Un­der­grad­u­ate, based on his own es­say about his life in col­lege. His pro­tag­o­nist, William Fer­gu­son, has a girl­friend who be­comes preg­nant and has an abor­tion, which leads Will to rekin­dle his Catholic faith. The nar­ra­tor tells his priest, “I paid for the abor­tion of my baby, which . . . would mean that I have helped com­mit mur­der . . . of my own child. I can’t think of any­thing a per­son can do that is worse than that.” The el­lipses are his. The re­demp­tion, well, Lloyd forced that on all the rest of us. In May 2019, Lloyd qui­etly left the Trump ad­min­is­tra­tion once and for all.

Amiri was frus­trated that a man with a per­sonal mis­sion to save all women from his own col­le­giate abor­tion re­grets was given re­spon­si­bil­ity for thou­sands of vul­ner­a­ble mi­nors. “It was ab­so­lutely de­lib­er­ate,” she said. “It was ab­so­lutely based on his per­sonal op­po­si­tion to abor­tion. He came in know­ing that he was go­ing to use his power to do this, and that was prob­a­bly the only thing he cared about, given all of the kids he lost af­ter they were sep­a­rated from their fam­i­lies.”

The sud­den flurry of press at­ten­tion and TV hits at the time was also new to Amiri, even as a sea­soned lit­i­ga­tor. In­ter­viewed a year later, she said, of the weeks around the Garza case, “I couldn’t quite fig­ure out the size of it, and also I’m not sure what to com­pare it to. I’ve got these other cases that may get to the Supreme Court about whether Roe should be over­turned. That case was part of this larger nar­ra­tive of where we are right now on abor­tion rights. I re­ally felt like this was the ca­nary in the coal mine. So yes, this was the most at­ten­tion that the press has paid to a case of mine.” But, she added, the case was also part of a mass ef­fort that never stops. “There’s so much other stuff go­ing on that’s im­por­tant in this coun­try too.”

Brigitte Amiri is not un­like the mil­lions of us who al­lowed our­selves to be­lieve, af­ter the Supreme Court reaf­firmed the core hold­ing of Roe in its Whole Woman’s Health de­ci­sion in 2016, that we were on the brink of some­thing akin to the end of Amer­ica’s abor­tion wars. For so many of us that one big, big win in the courts sig­naled that we could move past the ar­ti­fice of pa­ter­nal­is­tic state claims about tragic lit­tle women who need help mak­ing hard de­ci­sions and pre­tex­tual poli­cies that had no pur­pose be­yond ter­ror­iz­ing vul­ner­a­ble preg­nant peo­ple and shut­ter­ing clin­ics. We had hoped that we could in­stead be­gin the gen­uinely im­per­a­tive work of rolling back the Hyde Amend­ment, im­prov­ing ma­ter­nal and in­fant health out­comes, and re­duc­ing the shame and stigma around re­pro­duc­tive choice. Like Amiri, we watched in hor­ror as the newly trans­formed courts set back the clock on abor­tion rights, side­lined the preg­nant and their physi­cians, and bol­stered the re­li­gious claims of the few over the rights of an en­tire na­tion. In the few years af­ter 2016, this at­tack moved rapidly from ban­ning abor­tion to un­der­min­ing the rights to con­tra­cep­tion, in vitro fer­til­iza­tion, and sur­ro­gacy. In 2021, we watched the sec­ond most pop­u­lous state in the na­tion ban abor­tion af­ter six weeks as a newly con­ser­va­tive Supreme Court stood by, wink­ing. And Amiri has stayed in the fight as his­tory speeds back­ward on women’s free­doms. She’s a liv­ing em­bod­i­ment of that sign that be­came fa­mil­iar af­ter the first Women’s March: i can’t be­lieve i’m still protest­ing this shit.

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. As Amiri put it to me, “I think that courts are in­cred­i­bly im­por­tant, and they have stopped a lot of bad stuff from hap­pen­ing, but I think that if peo­ple think that the courts are go­ing to be the place that will save us, we will be com­pla­cent about all the other work.” The Trump years of­fered us a lot of tri­als to watch as the­ater. When the travel ban was ar­gued in tele­phonic form at the Ninth Cir­cuit Court of Ap­peals, lis­ten­ers tuned in en masse. Trump’s first im­peach­ment trial fea­tured grip­ping tele­vised tes­ti­mony by steely women like Fiona Hill, one of Trump’s top Rus­sia ad­vi­sors, and his for­mer am­bas­sador to Ukraine, Marie Yovanovitch. I al­most find my­self miss­ing those block­buster pro­ceed­ings, as moral­ity plays if noth­ing else. Cov­er­ing the highs and lows of the law­suits chal­leng­ing cruel Trump poli­cies like those pro­hibit­ing mi­grant teens from ex­er­cis­ing bod­ily au­ton­omy was very sat­is­fy­ing work and made for good jour­nal­ism. But it was al­ways only half the story.

One of the things lawyers can do is win tri­als, in­clud­ing big sym­bolic tri­als like so many of the sig­na­ture wins of the Trump years. An ex­ten­sive re­view un­der­taken by the In­sti­tute for Pol­icy In­tegrity at the New York Uni­ver­sity School of Law showed the Trump ad­min­is­tra­tion’s win rate at about 17 per­cent in fed­eral courts, in the sum­mer of 2019. The usual win rate for the gov­ern­ment stands at about 70 per­cent. Why all the losses? Sham­bolic, hasty le­gal work, in­de­fen­si­ble new rules, at­tempts to fast-track law­suits that ended up back­fir­ing, fail­ures to com­ply with ba­sic ad­min­is­tra­tive de­mands of the fed­eral Ad­min­is­tra­tive Pro­ce­dure Act. Trump’s own tweets and state­ments had been the ba­sis for ad­verse rul­ings in mul­ti­ple law­suits. But as was the case with the travel ban, bad poli­cies can be cured, and le­gal losses can net out to even­tual wins. Amiri was can­did about the fact that lit­i­ga­tion can take you only so far: “I am a lit­i­ga­tor, so of course I have to say that the courts are im­por­tant. But this is where I do my work.”

This is where the or­ga­niz­ers and the pol­icy peo­ple step in, and as Amiri said, “I am not an or­ga­nizer. I am not that kind of ac­tivist.” As we will soon see, ex­tra­or­di­nary women were step­ping into the big pol­icy work around gen­der rights, im­mi­gra­tion pol­icy, vot­ing rights, court re­form, and so many other mat­ters. Ul­ti­mately, they worked hand in glove with the lit­i­ga­tors do­ing bat­tle in the court­room, en­sur­ing that le­gal wins be­came pol­icy vic­to­ries and vice versa. Amiri was drawn to lit­i­ga­tion be­cause it is tightly con­trolled and rule bound and re­wards prepa­ra­tion. (She is, I al­ways re­call, trained as a dancer.) For so many women who have thrived in the law, the pre­dictabil­ity and struc­ture are a draw. Play by the rules and you can pre­vail. But Amiri cau­tions that the two-front war—law­suits and or­ga­niz­ing—is im­per­a­tive. “I spend my days do­ing this work and writ­ing briefs,” she told me. “But or­ga­niz­ing and move­ment work re­in­force each other, and they be­come the safety nets for each other. Re­gard­less of the changes, I will con­tinue to do this work be­cause this is kind of the only thing I know how to do. And I also re­ally love it. I love be­ing a lawyer. I love be­ing a lit­i­ga­tor. I love be­ing in court, and I love the struc­tured con­flict, and I love the fight for my clients and for what is right.” For the women who went to law school to mas­ter the fine art of struc­tured con­flict, the Trump years were a prov­ing ground. For oth­ers, the chaos re­quired a move to large-scale or­ga­niz­ing; en­tire sys­tems would need to be re­struc­tured. The law would light their way as well.

Just a few months af­ter Jane Doe’s abor­tion, Brett Ka­vanaugh, who had been left off Pres­i­dent Trump’s var­i­ous Supreme Court short lists, found him­self at the very top of a new one. Many viewed his an­gry dis­sent in the Garza case, with his ref­er­ences to “abor­tion-on-de­mand,” as part of his try­out for the high court. Ka­vanaugh would be very quickly tapped to re­place the re­tir­ing jus­tice An­thony Kennedy, for whom he clerked, less than a year later. “The whole Ka­vanaugh thing was just, you know, sur­real,” said Amiri. “That this was his only abor­tion case, and now he might be the fifth vote to over­turn or un­der­mine Roe.” While Jane Doe and Jane Roe and Amiri all won their law­suits, the el­e­va­tion of Ka­vanaugh, and later of Amy Coney Bar­rett, to the Supreme Court be­came the surest threat to the vi­a­bil­ity of Roe v. Wade in our life­times. Ul­ti­mately, Amiri and Jane won the abor­tion bat­tle, but with his dis­sent, Ka­vanaugh po­si­tioned him­self to win the war.

By the sum­mer of 2022, Don­ald Trump’s three ap­point­ments to the US Supreme Court—Neil Gor­such, Ka­vanaugh, and Bar­rett—would help forge a new ma­jor­ity will­ing to find that Roe v. Wade was “egre­giously wrong from the start,” and needed to be over­turned. The is­sue of abor­tion would be “re­turned to the states” as law­mak­ers floated in­tro­duc­ing a fed­eral abor­tion ban and Ok­la­homa banned abor­tion, all be­fore the Supreme Court even is­sued a fi­nal rul­ing in the case, Dobbs v. Jack­son Women’s Health Or­ga­ni­za­tion, that was leaked be­fore it was re­leased. IVF, sur­ro­gacy, and birth con­trol be­came sus­pect in­cur­sions on “fe­tal per­son­hood.” And the Supreme Court aban­doned its ear­lier lan­guage around pro­tect­ing moth­ers in or­der to green-light a state-by-state as­sault on preg­nant peo­ple and their physi­cians and those who would “aid and abet” or coun­sel them. Most Amer­i­cans on read­ing the Dobbs opin­ion pro­fessed them­selves shocked to learn that a fifty-year-old con­sti­tu­tional pro­tec­tion could sim­ply dis­ap­pear overnight. We be­lieved Roe had been en­graved in stone. And yet ev­ery­thing that had hap­pened in those mi­grant shel­ters in Texas sign­posted the truth: for many women in Amer­ica, the right to con­trol their own body was al­ways merely a pa­per right, de­pen­dent on ge­og­ra­phy, in­come, race, and the courts. It could be taken away by judges in due time. In 2022, it was.

6

The Civil Rights Lawyer

Vanita Gupta: The In­sider-Out­sider

Vanita Gupta has lit­i­gated a lot of cases. She’s in­dis­putably gifted at it. But from her perch as CEO and pres­i­dent of the sto­ried Lead­er­ship Con­fer­ence on Civil and Hu­man Rights—a coali­tion of two hun­dred of Amer­ica’s most prom­i­nent civil and hu­man rights orga­ni­za­tions—she be­came, first and fore­most, an or­ga­nizer in re­sponse to the le­gal chal­lenges of the years from 2016 to 2020. And no­body was more sur­prised by that turn of events than Gupta, who had spent most of her pro­fes­sional life on the out­side, pound­ing on the doors of the Amer­i­can jus­tice sys­tem and de­mand­ing a seat at the ta­ble for mi­nori­ties, for the poor, and for women.

“To me, this mo­ment, more than lit­i­ga­tion, is about or­ga­niz­ing. Or­ga­niz­ing and power,” she told me in an in­ter­view in 2019 when she was still at the helm of the Lead­er­ship Con­fer­ence. It was Gupta who re­ally helped me un­der­stand that so much of democ­racy is won and lost in the blur of big, im­per­sonal sys­tems. So many of the most salient bat­tles in re­cent years in­volved neu­tral-sound­ing changes to ques­tions on the cen­sus form or seem­ingly in­vis­i­ble tweaks to the way mail-in bal­lots were de­liv­ered. Yes, law­suits were a part of bol­ster­ing sys­tems of democ­racy, but so was democ­racy it­self. So Gupta be­came, in a sense, a sys­tems wran­gler over those four years, and it was a strange fit for some­one who had trained as an at­tor­ney, then spent years in the trenches do­ing lit­i­ga­tion.

“As a per­son who has lit­i­gated her whole life,” Gupta ex­plained in an in­ter­view that took place be­fore the 2020 elec­tion, “what his­tory will say about this mo­ment is that in the face of lay­ers and lay­ers of chal­lenges for vul­ner­a­ble peo­ple, there was a very broad base of peo­ple who never saw them­selves as ac­tivists be­fore. And lit­i­ga­tion it­self doesn’t mean power. It is im­por­tant. It can be the back­stop. But in a lot of ways, what lit­i­ga­tors had failed to do is build power, and a pub­lic will, for the kind of coun­try we want to be.”

Born in Phil­a­del­phia to par­ents who were In­dian im­mi­grants, Gupta—who is just over five feet tall and pulls off “hav­ing style” more ably than any at­tor­ney I know—lived for much of her child­hood in Eng­land, where her fa­ther worked as a busi­ness man­ager for a multi­na­tional com­pany. She re­calls sit­ting at a Mc­Don­ald’s in Lon­don at age four as skin­heads, throw­ing French fries at her fam­ily, shouted, “Pakis, go home.” And as she told Rolling Stone in 2019, “There was a se­ries of in­ci­dents like that that made me acutely aware that my fam­ily was al­ways go­ing to be seen as an out­sider in a cer­tain way.” By the time she was in high school, back in the United States, Gupta was al­ready think­ing about racial in­equal­ity in le­gal sys­tems and “oth­er­ness.”

“I be­came an ac­tivist in high school,” she told Glam­our mag­a­zine in 2020. “There are no lawyers in my fam­ily, but I went to law school fo­cused on what was hap­pen­ing in our crim­i­nal jus­tice sys­tem.” Gupta went to Yale as an un­der­grad­u­ate and then on to New York Uni­ver­sity for law school, grad­u­at­ing in 2001. She had spent two years be­fore law school work­ing on youth vi­o­lence pre­ven­tion, and as she ex­plained, “I was see­ing young Black and brown kids get­ting fun­neled into the crim­i­nal jus­tice sys­tem. I was just dis­traught about the de­hu­man­iza­tion of so many of our chil­dren, and at a re­ally early age, I re­al­ized this was one of the great­est civil rights trav­es­ties of our time.” All this was ev­i­dent to her even in the mid-1990s. So she went to law school “with a keen sense that I wanted to fo­cus on jus­tice re­form is­sues and racial equal­ity.” Years later she tells me, “It didn’t even feel like mak­ing a choice; it just felt like the path I was on.”

Im­me­di­ately fol­low­ing grad­u­a­tion, Gupta took a job at the NAACP Le­gal De­fense and Ed­u­ca­tional Fund, and within three weeks of her ar­rival, she had be­come ob­sessed with a le­gal trav­esty in Tu­lia, Texas, that she learned about from a TV doc­u­men­tary. As part of an un­der­cover drug sting in Tu­lia in 1999, the lo­cal law en­force­ment sys­tem had ar­rested and con­victed more than 12 per­cent of the town’s Black pop­u­la­tion—all based on the un­cor­rob­o­rated tes­ti­mony of a sin­gle white un­der­cover cop who had a his­tory of us­ing racist lan­guage and of pro­foundly trou­bled polic­ing de­ci­sions. Forty-six peo­ple—of whom forty were Black—were ar­rested. Lo­cal me­dia was ec­static. The day af­ter the raid, The Tu­lia Her­ald feted Tu­lia’s law en­force­ment with the head­line tu­lia’s streets cleared of garbage.

The al­leged con­spir­a­tors in­cluded young moth­ers and a hog farmer, and of course the “raids” turned up al­most no ac­tual ev­i­dence of drugs or money. The ar­rest­ing of­fi­cer wore no wire and had no backup. Tes­ti­fy­ing at trial, he claimed to have recorded names, dates, and other per­ti­nent facts about his mass of drug buys by writ­ing all rel­e­vant in­for­ma­tion on his leg. The de­fen­dants, all poor, had court-ap­pointed lawyers who con­ducted no in­ves­ti­ga­tions. Many had been per­suaded to plead guilty. The re­sult­ing prison sen­tences would have seen some of them die in jail. One de­fen­dant was sen­tenced to 341 years.

By the time the twenty-six-year-old Gupta got her­self down to Tu­lia, most of the de­fen­dants had al­ready lost on ap­peal with­out lawyers. Gupta pledged that the Le­gal De­fense Fund would rep­re­sent all of them, bought a suit­case at a lo­cal Wal­mart that she filled with their case files, then re­turned to New York to or­ga­nize a sprawl­ing team of pro bono at­tor­neys from across the coun­try. She went back to Tu­lia as lead coun­sel for the ap­peals and filed her first pe­ti­tion in an ac­tion that would es­sen­tially put the lo­cal law en­force­ment sys­tem on trial.

In 2002, Nate Blakeslee of the Texas Tri­bune, fol­lowed by the New York Times colum­nist Bob Her­bert, helped pub­li­cize the Tu­lia trav­esty in a se­ries of scorch­ing col­umns that drew in­stant na­tional out­rage. And when even Texas me­dia be­gan to re­al­ize that the much-her­alded ar­rests and con­vic­tions had be­come ev­i­dence of a na­tional polic­ing and courts scan­dal, Gupta worked with state news or­ga­ni­za­tions to tell the story of mass sys­temic fail­ure. That me­dia at­ten­tion put new pres­sure on the Texas ap­peals courts. Af­ter two years of re­lent­less in­ves­ti­ga­tions and court fil­ings, Gupta’s team was able to dis­credit the un­cor­rob­o­rated tes­ti­mony of the one of­fi­cer on the case, had the law­suits taken away from a bi­ased judge, and en­tered into a mass set­tle­ment. On Au­gust 22, 2003, Texas’s gov­er­nor Rick Perry granted full par­dons to al­most all of the de­fen­dants. Gupta then helped ne­go­ti­ate a $6 mil­lion set­tle­ment on be­half of them all. As she would later write of the Tu­lia lit­i­ga­tion, in a 2005 law re­view ar­ti­cle, this con­clu­sion hardly rep­re­sented a “win”:

To those who hold the Tu­lia vic­tory as a sym­bol of a jus­tice sys­tem that works, I say that my clients who spent four years in prison on bo­gus charges did not have a sys­tem that worked. And our vic­tory came at enor­mous cost—both in terms of hu­man an­guish and real re­sources. It is a rare case that can glean as many re­sources as Tu­lia did. That it took so much time and money to right what was a fairly bla­tant in­jus­tice while in­di­vid­u­als suf­fered is not a sym­bol of a ma­chine at work, but in­stead of a bro­ken sys­tem that needs to be, and can be, fixed where there is po­lit­i­cal will to do so.

That proved pre­scient with re­spect to the years and years of po­lice shoot­ings and crim­i­nal in­jus­tices for Black and brown Amer­i­cans that would fol­low. As long as two decades ago, Tu­lia, in Gupta’s mind, was not just a high-pro­file crim­i­nal de­fense case. It was a ve­hi­cle for a des­per­ately needed pub­lic con­ver­sa­tion about a badly bro­ken and racially tainted crim­i­nal jus­tice sys­tem. As she told me years later, “I had poured my whole life into these [Tu­lia] cases, into rep­re­sent­ing these men and women, and I had be­come re­ally close to the fam­i­lies. But when they got out of prison, which was a huge deal, it felt like a Band-Aid, be­cause it was against the back­drop of laws and poli­cies that were all go­ing in one di­rec­tion at the time.”

For Gupta, the prob­lem lay in mas­sive, face­less in­sti­tu­tions that were sup­posed to bring about jus­tice but were in­stead per­pet­u­at­ing its op­po­site. Af­ter that, Gupta turned her at­ten­tion to other as­pects of the Amer­i­can crim­i­nal jus­tice sys­tem that pro­duced gross racial dis­par­i­ties, fo­cus­ing on the war on drugs, the for-profit prison in­dus­try, in­creas­ing po­lice mil­i­ta­riza­tion, and an as­set for­fei­ture sys­tem that fi­nan­cially re­wards law en­force­ment for preda­tory polic­ing. In 2006, Gupta took a job at the Amer­i­can Civil Lib­er­ties Union, where she served as a staff at­tor­ney with its Racial Jus­tice Pro­gram. There, she won a land­mark set­tle­ment on be­half of im­mi­grant chil­dren and be­came deputy le­gal di­rec­tor and di­rec­tor of its Cen­ter for Jus­tice, with an eye to­ward pol­icy change on a large scale. As she ex­plained to me years later, “I went to the ACLU out of recog­ni­tion that lit­i­ga­tion was an im­por­tant but lim­ited tool. I wanted to work some­where where I could ac­tu­ally be­gin to change laws.” She ad­mits, “I didn’t know how to do that. I’d been trained in law school to file cases and how to rep­re­sent peo­ple. I had to con­vince the ACLU to launch the cam­paign to end mass in­car­cer­a­tion. But the ACLU had re­sources, they had a com­mu­ni­ca­tions de­part­ment, they had af­fil­i­ate power, so I was re­ally try­ing to lever­age all of that for broader sys­temic change.”

At the ACLU, Gupta worked to build col­lab­o­ra­tion be­tween law en­force­ment en­ti­ties, ad­vo­cates, and elected of­fi­cials to re­pair the crim­i­nal jus­tice sys­tem in ways that could gar­ner bi­par­ti­san sup­port. She di­rected the ACLU’s Na­tional Cam­paign to End Mass In­car­cer­a­tion. She sued the Bush ad­min­is­tra­tion in 2007, win­ning a land­mark set­tle­ment on be­half of im­mi­grant chil­dren de­tained in a pri­vately run prison in Texas. As with other crim­i­nal jus­tice is­sues, Gupta was call­ing out the fail­ures of mass in­car­cer­a­tion long be­fore it showed up on the na­tional radar. In a news­pa­per ed­i­to­rial she penned in 2013 for The New York Times, Gupta ex­plained that the Amer­i­can carceral sys­tem is a bi­par­ti­san prob­lem that de­mands bi­par­ti­san so­lu­tions. “I am not naïve,” she wrote, “about the chal­lenge, or of the needs of crime vic­tims.” In that piece, she ex­plained that in 1992, as she was fin­ish­ing high school, her own sev­enty-one-year-old pa­ter­nal grand­mother was mur­dered in a house rob­bery in Sahibabad, In­dia. “The killing re­mains un­solved, and the an­guish it caused my fam­ily will never fade away. But in Amer­ica, our crim­i­nal jus­tice sys­tem has too of­ten fo­cused on vengeance and pun­ish­ment (and racial sus­pi­cion) rather than on crime pre­ven­tion, resti­tu­tion for vic­tims and the so­cial and eco­nomic rein­te­gra­tion of re­leased pris­on­ers into our com­mu­ni­ties so that they do not turn to crime again.” Gupta was and is care­ful to lay blame for the buildup of our prison-in­dus­trial com­plex on a “bi­par­ti­san process that un­folded over decades,” but ar­gued that through un­likely po­lit­i­cal al­liances, the po­lit­i­cal process could stop over-in­car­cer­a­tion. Lit­i­ga­tion should be the vi­tally im­por­tant back­stop.

In 2014, Gupta was floored to re­ceive a phone call from At­tor­ney Gen­eral Eric Holder’s of­fice, want­ing to dis­cuss the pos­si­bil­ity of hav­ing her head up his Jus­tice De­part­ment’s Civil Rights Di­vi­sion. “I had spent my whole life su­ing the gov­ern­ment, so I never thought that any­one in the gov­ern­ment would put me in that po­si­tion,” she told Rolling Stone in 2019. Gupta was thirty-nine when she as­sumed stew­ard­ship of the Civil Rights Di­vi­sion, fa­mously dubbed the “crown jewel” of the Jus­tice De­part­ment. It was the Civil Rights Di­vi­sion that had done the work of de­seg­re­gat­ing schools fol­low­ing 1954’s Brown v. Board of Ed­u­ca­tion, and the Civil Rights Di­vi­sion that had spear­headed big po­lice re­forms at the LAPD fol­low­ing the 1991 beat­ing of Rod­ney King by po­lice of­fi­cers. Gupta ar­rived in gov­ern­ment at a cru­cible mo­ment for Black Lives Mat­ter protests, po­lice mis­con­duct, and a se­ries of bru­tal po­lice killings of un­armed African Amer­i­can men. In a way, the work she did in­side DOJ felt not dis­sim­i­lar to what she had done at the ACLU, as she ex­plains: “When I went to DOJ, it was of course en­force­ment based, but at DOJ you have a man­tle and a bully pul­pit that al­lows you through the course of lit­i­ga­tion to use your plat­form as a big mega­phone about what was hap­pen­ing.”

The change wasn’t just the plat­form, though. It was mov­ing to the in­side. “I had sued the gov­ern­ment my en­tire life be­fore I went into the Jus­tice De­part­ment,” she tells me, “and that was my first time ever be­ing on the in­side, but I got to see where the levers of power were. Sud­denly I was able to en­force the law to ad­dress these long-stand­ing prob­lems I had worked on for most of my ca­reer: the crim­i­nal­iza­tion of poverty, and polic­ing and racial jus­tice.” Gupta joined the Obama Jus­tice De­part­ment in the fall of 2014, only nine weeks af­ter Michael Brown was killed by a po­lice of­fi­cer in Fer­gu­son, Mis­souri. Brown had been shot shortly af­ter a po­lice of­fi­cer killed Eric Gar­ner in New York. She was at the helm when DOJ re­leased its mas­sive re­port on the Fer­gu­son Po­lice De­part­ment and court sys­tem, a re­port ul­ti­mately find­ing, among other things, that res­i­dents of some Black neigh­bor­hoods around Fer­gu­son had be­come “po­ten­tial of­fend­ers and sources of rev­enue” for the cops and the courts. At the same time, the re­port would ex­plain why no fed­eral civil rights charges would be filed against the of­fi­cer who shot Brown. Gupta wanted to use the re­port to talk—as she had done af­ter Tu­lia—about race and polic­ing and jus­tice, and to con­nect the Fer­gu­son Po­lice De­part­ment, their as­set for­fei­ture prac­tices, and lo­cal court sys­tems to the racial bias in­fect­ing and in­flam­ing ev­ery­thing that had hap­pened af­ter Fer­gu­son. Yet de­spite her ex­ten­sive work on civil rights is­sues, Gupta man­aged to forge an un­usual set of re­la­tion­ships with law en­force­ment lead­ers, po­lice chiefs, and the Fra­ter­nal Or­der of Po­lice, whose in­put she sought as the Jus­tice De­part­ment tried to de­velop its best prac­tices around polic­ing.

Gupta told me on my pod­cast in the sum­mer of 2020 that “the polic­ing is­sues were the most cen­tral kind of is­sues that I dealt with at the Jus­tice De­part­ment ev­ery week that I was there.” DOJ was en­forc­ing fif­teen con­sent de­crees in po­lice de­part­ments across the coun­try on her watch. She took heat from all sides over the mixed con­clu­sions in the Fer­gu­son re­port, but she also be­came adept at work­ing with con­stituen­cies—in law en­force­ment, drug pol­icy, and pris­ons—with whom she had once dif­fered about vir­tu­ally ev­ery­thing. As she ex­plains in an in­ter­view, “I was at the Jus­tice De­part­ment when we re­leased the Fer­gu­son Po­lice De­part­ment re­port, and it was a re­ally big deal. We had never done that. For a lot of peo­ple it was an in­dict­ment of the crim­i­nal jus­tice sys­tem com­ing from the very of­fice that up­holds the ma­chin­ery of law en­force­ment.” Gupta was rais­ing ques­tions about gov­ern­ment from in­side gov­ern­ment, but, as she tells me, “I was re­ally com­fort­able with those in­her­ent con­tra­dic­tions be­cause I do be­lieve ul­ti­mately in in­sti­tu­tions.” Gupta, like so many women lawyers, and even groups that seek change, is con­ser­va­tive in some ways. “I mean, look at the or­ga­ni­za­tions I’ve worked with—they’re all decades old,” she tells me. “I be­lieve in the power of in­sti­tu­tions while rec­og­niz­ing how un­equal and un­just they have been in peo­ple’s lives. That strug­gle to make them more just and in­clu­sive is some­thing I’ve spent my whole life try­ing to do.”

At a time in which it still ap­peared pos­si­ble to reach bi­par­ti­san pol­icy con­clu­sions about changes to the po­lice and jus­tice sys­tems, Gupta’s DOJ work on crim­i­nal jus­tice re­form thrilled pro­gres­sives and im­pressed con­ser­va­tives, in­clud­ing Grover Norquist, founder and pres­i­dent of Amer­i­cans for Tax Re­form, and David Keene, a for­mer pres­i­dent of the Na­tional Ri­fle As­so­ci­a­tion. Im­me­di­ately af­ter the Fer­gu­son in­ves­ti­ga­tion, Gupta had to turn to Bal­ti­more when Fred­die Gray died in po­lice cus­tody, again work­ing with com­mu­nity lead­ers, lo­cal res­i­dents, and the Fra­ter­nal Or­der of Po­lice in the in­ves­ti­ga­tion. In ad­di­tion to over­see­ing fif­teen ma­jor con­sent de­crees that had the Jus­tice De­part­ment mon­i­tor­ing city po­lice pol­icy re­forms, Gupta worked at DOJ to achieve re­forms in vot­ing rights, hous­ing, ed­u­ca­tion, hate crime leg­is­la­tion, LGBTQ rights, hu­man traf­fick­ing, dis­abil­ity rights, preda­tory lend­ing, and vot­ing. In a 2020 in­ter­view, she con­ceded that her work at DOJ was just a start: “I served a pres­i­dent and two at­tor­neys gen­eral who were lean­ing for­ward into po­lice re­form, crim­i­nal jus­tice re­form, LGBTQ rights, and vot­ing rights. But it was never enough, and it never felt like enough.”

• • •

Gupta left the Jus­tice De­part­ment just forty-eight hours be­fore Don­ald Trump was to be sworn in, heart­bro­ken it hadn’t been enough and that the work still wasn’t even close to be­ing done. In a New Yorker pro­file of her last day at the Civil Rights Di­vi­sion, Gupta said good­bye to the en­tire staff of the di­vi­sion—700 em­ploy­ees, in­clud­ing 383 lawyers—then teared up as she told her team, who would now be re­port­ing to the Jeff Ses­sions Jus­tice De­part­ment, “Good luck, keep the faith, and keep fight­ing.” That pro­file ended with her stuff­ing news­pa­per ac­counts of her work with the Bal­ti­more Po­lice De­part­ment and a pair of high heels into a bag, step­ping into an el­e­va­tor, and say­ing, “Good­bye, D.O.J.”

The Civil Rights Di­vi­sion un­der Jeff Ses­sions and later un­der Trump’s sec­ond at­tor­ney gen­eral, William Barr, would busy it­self rolling back the con­sent de­crees—le­gal in­stru­ments that force in­sti­tu­tions to re­form their prac­tices—as well as re­vers­ing it­self on vot­ing rights, af­fir­ma­tive ac­tion, and other Obama prac­tices. As Gupta told me in an episode of my pod­cast af­ter George Floyd was killed in 2020, the Trump Jus­tice De­part­ment “had not opened a sin­gle pat­tern and prac­tice in­ves­ti­ga­tion into a po­lice de­part­ment ex­cept on one with a very nar­row is­sue out of Spring­field, Mass­a­chu­setts.” She also noted that Barr had re­cently said in a speech that if Amer­i­cans crit­i­cized the po­lice, they may not re­ceive po­lice pro­tec­tion.

In­stead of pro­tect­ing im­mi­grants, pris­on­ers, and LGBTQ Amer­i­cans, the Trump Jus­tice De­part­ment would de­pri­or­i­tize civil rights en­force­ment. DOJ abruptly changed sides in vot­ing rights cases, rep­re­sent­ing those who would con­strict the fran­chise over those seek­ing to vote. In 2019, a Vice in­ves­ti­ga­tion found that the Civil Rights Di­vi­sion un­der Ses­sions and Barr had ini­ti­ated 60 per­cent fewer cases over civil rights vi­o­la­tions dur­ing the first two years of the Trump ad­min­is­tra­tion than dur­ing the Obama years and 50 per­cent fewer than un­der George W. Bush. De­spite the surge in hate crimes af­ter Trump was elected, the Jus­tice De­part­ment’s hate crimes pros­e­cu­tions fell by about 20 per­cent com­pared with the Obama ad­min­is­tra­tion. The Trump ad­min­is­tra­tion slashed the di­vi­sion’s staff and bud­get as well. It had be­come a shell of its for­mer self.

But Gupta had come to be­lieve that restor­ing trust be­tween po­lice and com­mu­ni­ties could not be achieved by DOJ pat­tern and prac­tices in­ves­ti­ga­tions alone. She wanted to tackle an­other big in­vis­i­ble sys­tem, what she char­ac­ter­ized as the “hy­per crim­i­nal­iza­tion in this coun­try, not new, not started in the last few years, but that we’ve been sad­dled with over the last fifty years.” She wanted to think about why “leg­is­la­tures had in­creas­ingly crim­i­nal­ized men­tal health, sub­stance use dis­or­ders, and other so­cial prob­lems and why we have placed those prob­lems at the feet of po­lice and ex­pected them to solve for them with one tool—the crim­i­nal jus­tice sys­tem. We did this while dis­in­vest­ing from ed­u­ca­tion, jobs, pub­lic hous­ing, and health­care.”

Had Hillary Clin­ton won the 2016 elec­tion, Gupta would likely have be­come the Sen­ate-con­firmed head of the Civil Rights Di­vi­sion. But af­ter that elec­tion, Gupta says, “I could have gone some­where and put my head down and lit­i­gated at a big law firm,” but it was the in­tractable, in­vis­i­ble sys­tems that drew her still. “I wanted the abil­ity to pro­tect civil rights in this mo­ment and also to fig­ure out how you build power at the state and lo­cal level for the kinds of things you ul­ti­mately want to see fed­er­ally. These at­tacks on civil rights and democ­racy kept me in pub­lic ser­vice. I just didn’t think that lit­i­ga­tion was go­ing to be enough to pro­tect our democ­racy.”

If women are, as I’ve ar­gued, par­tic­u­larly adept at the prac­tice of law, it al­most goes with­out say­ing that they are also uniquely gifted at strate­giz­ing, or­ga­niz­ing, and ac­ti­vat­ing. It was a foun­da­tional les­son of the fight for democ­racy from day one, and thus not an ac­ci­dent, that women in lead­er­ship roles were so fo­cused and ef­fec­tive as well. At the Lead­er­ship Con­fer­ence, Gupta turned to the big-pic­ture work of strate­giz­ing, co­or­di­nat­ing, mes­sag­ing, and mo­bi­liz­ing her part­ner or­ga­ni­za­tions to push back against the per­sis­tent ef­forts to at­tack civil rights. It was this daily, grind­ing work of ad­vo­cacy, or­ga­niz­ing, and show­ing up that mat­tered to Gupta, as much as the suc­cess­ful lit­i­ga­tion. “What we have seen,” she ex­plained to me in an in­ter­view be­fore the 2020 elec­tion, “was a weaponiza­tion of demo­cratic in­sti­tu­tions, from the cen­sus, to vot­ing rights, to the courts.” The scale of the as­sault was mas­sive, she said, “and while lit­i­ga­tion has been a re­ally im­por­tant back­stop, to me, the power of this mo­ment and what his­tory will say about this mo­ment is that in the midst of re­lent­less, lay­ered oth­er­ness, there is a very broad base of peo­ple who never saw them­selves as ‘oth­ers’ be­fore who now un­der­stand that we’re in a fight to save the soul of our coun­try.”

That seemed an es­sen­tial piece of the puz­zle to me, the re­ac­tion of peo­ple “who never saw them­selves as oth­ers” to be­ing told that they no longer had a place in Amer­ica. Gupta gave voice to so many women who ex­pressed the sense that 2016 awak­ened them to the fact that maybe all the progress they be­lieved them­selves to have achieved was il­lu­sory, that maybe the whole Amer­i­can dream thing re­ally was some­thing that could be snatched away. For Gupta, the work of col­lect­ing all those feel­ing in­vis­i­ble and left be­hind be­came the work. It was big­ger than le­gal change; it was about a much broader project of build­ing en­dur­ing po­lit­i­cal power. The court­room vic­to­ries, the pro­tec­tion and pro­mo­tion of in­di­vid­ual rights carved out in the War­ren Court era, were vi­tal. But they are not, in iso­la­tion, enough. As she ex­plained, the les­son of the decades be­fore 2016 was that “we had re­sorted to some­times moral strate­gies in lit­i­ga­tion, be­liev­ing the kind of ground­work we were lay­ing in the courts is go­ing to carry the day in terms of rights.” But as we learned, noth­ing achieved—even in the courts—was im­mutable. “I think that we’re in a mo­ment,” she told me, “where we’re reck­on­ing with the fact that the other side, for forty years, had an ad­van­tage be­cause they have been fairly sin­gle-minded and dis­ci­plined around un­der­stand­ing the im­por­tance of win­ning hearts and minds with sim­ple mes­sages; with or­ga­niz­ing for the long haul; with sce­nario plan­ning for the long haul; and we’ve been able to take things for granted in a way that to­day we are not able to, and it’s been a real cri­sis and wake-up call.”

And per­haps be­cause women never fully pos­sessed this kind of broad po­lit­i­cal power, or hadn’t be­come used to it, or taken it for granted, women were quick­est to see it slid­ing out of their reach. Gupta quickly rec­og­nized that it was women who were rac­ing to con­struct, join, and col­lab­o­rate in or­ga­niz­ing, and she told me she could see that women un­der­stood this les­son ab­so­lutely in­tu­itively. “I think that on a lot of these is­sues, women are lead­ing the way, or they are lead­ing or­ga­ni­za­tions that are chang­ing tac­tics. They’re lead­ing mass protests, lead­ing long-term plan­ning, and not just the touchy-feely stuff, but, for in­stance, think­ing about what a long-term cam­paign to pro­tect our courts could look like.” To go, overnight, from a top gov­ern­ment po­si­tion in the United States to a world of threats to “Lock her up” is a vis­ceral, pri­mal reck­on­ing. As a woman and as an at­tor­ney, Gupta rec­og­nized that law would never be an end in it­self un­less it was lashed to power.

Gupta be­came one leader of a mas­sive pro-democ­racy move­ment helmed by women of color, many of whom were step­ping into prom­i­nent, pub­lic-fac­ing roles for the first time in their lives. She em­pha­sizes that while she is grate­ful for the men­tor­ship and sup­port of those who blazed a trail be­fore her, in the trenches of the four years from 2016 to 2020, her peers opened her eyes to what young, new, mi­nor­ity lead­er­ship could be. Gupta said in an in­ter­view in 2020, “In just the last few years, I have got­ten a lot of guid­ance from other lead­ers, and par­tic­u­larly from other women-of-color lead­ers, some of whom are newer lead­ers in the move­ment. That kind of com­mu­nity of sup­port has been es­sen­tial to me.”

When she took on the his­toric role of the first woman, and first In­dian Amer­i­can, to helm the Lead­er­ship Con­fer­ence in June 2017, Gupta, forty-two at the time, helped turn the or­ga­ni­za­tion into a strate­gic hub of the re­sis­tance. Founded in 1950 as the Lead­er­ship Con­fer­ence on Civil Rights by three civil rights lead­ers—A. Philip Ran­dolph, head of the Broth­er­hood of Sleep­ing Car Porters; Roy Wilkins of the NAACP; and Arnold Aron­son, a leader of the Na­tional Jew­ish Com­mu­nity Re­la­tions Ad­vi­sory Coun­cil—the Con­fer­ence took as its an­i­mat­ing prin­ci­ple the idea that the strug­gle for civil rights in Amer­ica could be achieved only through coali­tions work­ing to­gether across nar­row parochial self-in­ter­ests. Known as the lob­by­ing arm of the civil rights move­ment, the Lead­er­ship Con­fer­ence has weighed in on be­half of ev­ery ma­jor civil rights law since its found­ing, sup­ple­ment­ing the marches and sit-ins of the civil rights era to en­sure the pas­sage of the Civil Rights Act of 1957, the Civil Rights Act of 1960, the Civil Rights Act of 1964, the Vot­ing Rights Act (VRA) of 1965, and the Fair Hous­ing Act of 1968. What be­gan as a coali­tion of thirty civil and hu­man rights or­ga­ni­za­tions at its found­ing has grown to more than two hun­dred groups to­day, and the fight to pro­tect civil rights now sweeps in women’s rights, LGBTQ rights, im­mi­grants’ rights, work­ers’ rights, and dis­abil­ity rights.

What Gupta did at the Lead­er­ship Con­fer­ence re­quired co­or­di­nat­ing all these dis­parate groups who might be du­pli­cat­ing ef­forts, or pulling in op­pos­ing di­rec­tions, to fo­cus and work to­gether, of­ten very quickly and in tan­dem with mul­ti­ple law­suits and pub­lic ac­tions. Asked what she did all day in the years she worked there, she had a lawyerly an­swer: “It de­pends.” She elab­o­rated: “Some­times I’m on the Hill in meet­ings push­ing lead­er­ship to do some­thing. Some­times I’m talk­ing on the phone with lead­ers around mak­ing sure that we’re uni­fied. . . . Some­times I’m giv­ing a speech and I’m run­ning back to meet with a coali­tion prin­ci­pal about a cam­paign they’re work­ing on or do­ing a me­dia in­ter­view around the cen­sus and mak­ing sure that our pub­lic mes­sag­ing is out there. . . . It’s all pol­icy or­ga­niz­ing, com­mu­ni­ca­tions, ac­tivism.” She stopped to con­cede, “Yeah, but I am not read­ing briefs any­more.”

Gupta brought her back­ground in po­lice re­form to the Lead­er­ship Con­fer­ence to build what she de­scribed as “a polic­ing pro­gram that could, in the void of a Jus­tice De­part­ment that fo­cused on these is­sues and the com­mu­ni­ties most in con­tact with the po­lice, ac­tu­ally be a re­source for con­tin­u­ing the con­ver­sa­tion around jus­tice re­form.” Af­ter George Floyd’s mur­der, the Lead­er­ship Con­fer­ence brought to­gether more than 430 or­ga­ni­za­tions to sup­port a plat­form for what Con­gress could do im­me­di­ately to re­form polic­ing and to build back com­mu­nity trust.

The Trump ad­min­is­tra­tion’s fam­ily sep­a­ra­tion pol­icy at the bor­der was an­other ex­am­ple, says Gupta, of an al­most spon­ta­neous ex­plo­sion of coali­tions and re­form­ers com­ing to­gether. “We were all learn­ing about what the Trump ad­min­is­tra­tion was do­ing in the sum­mer of 2018. And there were groups com­ing to­gether to or­ga­nize,” she told me. And women were ev­ery­where. What be­came the mas­sive Fam­i­lies Be­long To­gether ral­lies in June 2018 were spear­headed, says Gupta, by women: her­self, Rep­re­sen­ta­tive Pramila Jaya­pal, Anna Gal­land from MoveOn, Ai-jen Poo and Jess Morales Rock­etto from the Na­tional Do­mes­tic Work­ers Al­liance, and Lorella Praeli, the ACLU’s di­rec­tor of im­mi­gra­tion pol­icy and cam­paigns. Ul­ti­mately, in seven hun­dred cities across the coun­try, marchers gath­ered, in­clud­ing—ac­cord­ing to es­ti­mates from the or­ga­niz­ers—thirty-five thou­sand demon­stra­tors in ninety-six-de­gree weather in front of the White House, thirty thou­sand par­tic­i­pants in New York, sixty thou­sand in Chicago, and more than sev­enty thou­sand in Los An­ge­les.

In an in­ter­view af­ter those ral­lies, Gupta re­flected that when it comes to power and pow­er­less­ness, gen­der was surely part of the story, her own and that of the other or­ga­niz­ers. “It didn’t have to be women, but in that mo­ment, rec­og­niz­ing our own pow­er­less­ness and a com­plete lack of power in Con­gress, and the ma­jor­ity of Con­gress hav­ing ab­di­cated any over­sight of the pres­i­dent, we just weren’t go­ing to al­low this out­ward as­sump­tion of pow­er­less­ness to rule the day.” To her mind, those ral­lies protest­ing fam­ily sep­a­ra­tion at the bor­der were “our show of power,” and that hap­pened in seven hun­dred cities around the coun­try. “In the towns where fif­teen peo­ple came, but that was fif­teen peo­ple out of seven hun­dred in their town . . . that was also power.” This was women and peo­ple of color lead­ing a move­ment that said that even if they were not rep­re­sented in the gov­ern­ment or the courts or the ad­min­is­tra­tion, they would not be silent or in­vis­i­ble. That was a sea change for so many peo­ple, most es­pe­cially for women, and to Gupta it meant “we had to be so much more cre­ative than we’ve ever been, build­ing power and sus­tain­ing power in this mo­ment, and the key is go­ing to be or­ga­niz­ing, or­ga­niz­ing, or­ga­niz­ing.”

Gupta told me that there’s a sloppy ten­dency to think of law and leg­is­la­tion as some­how manly and pur­po­sive and to dis­miss or­ga­niz­ing and coali­tion build­ing as soft and fuzzy. Re­call that Sarah Palin got a big laugh by snark­ing at Obama as a com­mu­nity or­ga­nizer in her 2008 RNC speech, when she said of her own pro­fes­sional back­ground, “I guess a small-town mayor is sort of like a com­mu­nity or­ga­nizer, ex­cept that you have ac­tual re­spon­si­bil­i­ties.” Gupta dis­agrees that build­ing coali­tions and cre­at­ing move­ments rep­re­sent a form of soft power, but at the same time she told me that women are in­tu­itively nat­u­rals at or­ga­niz­ing: “I feel like some­times or­ga­niz­ing can feel very touchy-feely and that peo­ple for­get the power of just show­ing up. And it’s re­la­tional. I just think that so many women have ex­pe­ri­enced that on a very per­sonal level. . . . It takes ad­mit­ting to some feel­ings of weak­ness, un­til you can find a re­la­tion­ship and build coali­tions with oth­ers who are like-minded re­gard­less of party or back­ground.” One para­dox about power, also taught to me by Gupta and the groups she worked with, was that vul­ner­a­bil­ity—the ad­mis­sion that one felt pow­er­less and un­rep­re­sented and all alone—was a gate­way to or­ga­niz­ing. Ask any woman who found her way to a book group or an on­line voter reg­is­tra­tion group, and she’ll tell you that feel­ing iso­lated and un­seen was the key to find­ing a com­mu­nity.

The Lead­er­ship Con­fer­ence gath­ered its al­lies again to op­pose the ad­di­tion of an untested cit­i­zen­ship ques­tion to the 2020 cen­sus—a ques­tion that was likely to sig­nif­i­cantly de­press mi­nor­ity par­tic­i­pa­tion in the cen­sus, which would, in turn, have re­sulted in fewer re­sources and fewer con­gres­sional seats al­lo­cated to mi­nor­ity dis­tricts. Even­tu­ally, the US Supreme Court in June 2019 agreed that the ques­tion could not be added to the cen­sus, but the lit­i­ga­tion alone, the sub­ject of an­other chap­ter, wasn’t the whole story. Gupta told me later that while the law­suits were rag­ing, groups were at work be­hind the scenes. “The lit­i­ga­tion is just one piece,” she told me. “Lit­i­ga­tion is a tac­tic of re­sis­tance. But in a much big­ger way, it also re­quired or­ga­niz­ing peo­ple in the most vul­ner­a­ble com­mu­ni­ties in the coun­try and try­ing to build a nar­ra­tive about build­ing the coun­try we de­serve, and to rec­og­nize that no com­mu­nity and no in­di­vid­ual can be ren­dered in­vis­i­ble by their gov­ern­ment.”

As a jour­nal­ist, I have cov­ered many, many law­suits, in­clud­ing those in this book. But we some­times get so caught up in the drama of a court­room that we miss the big­ger shifts and trends. “Look, the me­dia cov­ers lit­i­ga­tion,” Gupta con­ceded to me. “And I be­lieve in the im­por­tance of lit­i­ga­tion, but I know first­hand that it isn’t the thing that builds power. And to rely on do­ing whack-a-mole lit­i­ga­tion case by case, with­out rec­og­niz­ing the im­por­tance of build­ing a com­mu­ni­ca­tions ef­fort, and build­ing an or­ga­niz­ing ef­fort, at the root of so­cial change, I just think, has not served us well.” Gupta was one of the first lawyers I in­ter­viewed who point­edly men­tioned that af­ter Trump seated more than two hun­dred life­time-ap­pointed judges to the fed­eral bench and ap­pointed what would turn out to be one-third of the cur­rent Supreme Court, the prospect of run­ning to court was start­ing to look like a so­lu­tion that came with new prob­lems. That’s why the com­po­si­tion of the courts them­selves be­came the is­sue on which she fought harder than most.

So­cial jus­tice ad­vo­cates are his­tor­i­cally ex­tremely good, Gupta told me, at fight­ing on in­di­vid­ual ideas. “We fight in si­los,” she ex­plained, “we fight is­sues. We build cam­paigns around that.” It meant they could win on cli­mate and win on mar­riage equal­ity and win on prison re­form but some­how lose on democ­racy it­self. For Gupta, the rev­e­la­tion of the years be­tween 2016 and 2020 was that siloed cam­paigns were not suf­fi­cient. “As a leader,” she told me, “I came in this mo­ment, and we pri­or­i­tized democ­racy, and for us that was the fair and ac­cu­rate count in the cen­sus. It was vot­ing rights. It was the courts. Be­cause we see that with­out those in­sti­tu­tions, and with­out re­ally fight­ing for them, ev­ery­thing else that we care about ba­si­cally falls.” In the face of at­tacks on civil rights from the ad­min­is­tra­tion, civil rights lawyers were hy­per-fo­cused on law­suits be­cause they were good sto­ries. But as the ad­min­is­tra­tion lost case af­ter case, it be­came clear that en­tire sys­tems needed re­pair. As Gupta told me bluntly at the time, “I find it in­cred­i­bly frus­trat­ing when or­ga­ni­za­tions are pour­ing money into is­sue-based fights that rely on the health of in­sti­tu­tions and see the work of re­pair­ing those in­sti­tu­tions as ugly, or po­lit­i­cal, or messy.”

For decades, the Lead­er­ship Con­fer­ence had re­viewed and eval­u­ated the records of ju­di­cial nom­i­nees, and through­out the Trump ad­min­is­tra­tion they had op­posed just 13 per­cent of the nom­i­nees put for­ward. But be­cause of the cru­cial role courts have played on ques­tions of civil rights and rule of law, the Lead­er­ship Con­fer­ence had pri­or­i­tized a thor­ough re­view of Judge Brett Ka­vanaugh even be­fore Dr. Chris­tine Blasey Ford came for­ward with al­le­ga­tions that he had sex­u­ally as­saulted her at a high school party. Groups al­lied with Gupta couldn’t un­der­stand why the Lead­er­ship Con­fer­ence was fight­ing over a nom­i­na­tion that couldn’t be won. In­deed, many re­pro­duc­tive rights groups had de­ter­mined to op­pose plac­ing Ka­vanaugh in An­thony Kennedy’s seat sim­ply be­cause his record was so clearly op­posed to those rights, as his tus­sle over mi­grant teens at the bor­der had con­firmed. As Il­yse Hogue, then at the helm of NARAL, would later tell Jen­nifer Ru­bin, even some pro­gres­sive donors were skit­tish about op­pos­ing Ka­vanaugh. With­out the Sen­ate votes to scup­per the nom­i­na­tion, why even fight? But fight they did, even be­fore Dr. Ford came for­ward. And long af­ter Ka­vanaugh was con­firmed, Hogue would point to the women who or­ga­nized to op­pose him as a wa­ter­shed mo­ment. Women turned up. They were fu­ri­ous. As she later told Ru­bin, “Even in the face of a dev­as­tat­ing loss, we had built some­thing re­silient. . . . Those women showed up again in the midterms and it proved to be a game changer.”

A year af­ter those hear­ings, Gupta co-wrote an op-ed with Fa­tima Goss Graves, pres­i­dent and CEO of the Na­tional Women’s Law Cen­ter, re­mind­ing fe­male vot­ers that the en­ergy women had brought to the Ka­vanaugh fight needed to fuel their op­po­si­tion to the largely white, male, con­ser­va­tive judges who rep­re­sented the bulk of Trump’s ju­di­cial nom­i­na­tions. That or­ga­niz­ing, that anger, the amass­ing of power, and, once again, the re­fusal to play nice and for­get and just move along were the weapons in that larger fight.

The Ka­vanaugh nom­i­na­tion was a wa­ter­shed mo­ment for mil­lions of women, and it be­came a tem­plate for rais­ing un­der­stand­ing of in­sti­tu­tions, in­clud­ing the fed­eral ju­di­ciary, that don’t sur­face as big is­sues and don’t pen­e­trate the pub­lic con­scious­ness. I used to joke for years that when I wrote ar­ti­cles about the com­po­si­tion of the fed­eral courts, only my dad read them. But that’s not quite right. I don’t think even he read them. The Ka­vanaugh con­fir­ma­tion was a les­son in why this rush to fill the courts mat­tered; that you could win ev­ery law­suit but still lose the courts. For Gupta, “the suc­cess in fill­ing these seats was gal­va­niz­ing.”

Of that day in 2018, when Dr. Ford tes­ti­fied about be­ing as­saulted, so many of us who sat in the hear­ing room felt some­thing I have since heard from hun­dreds of women. They be­lieved her. They saw her. And when Ka­vanaugh be­gan to shout, they started to feel the prick­ling of gen­uine fear. Some sheathed vi­o­lence or threat of it was in that room. And watch­ing Dr. Ford tes­tify, fol­lowed by Ka­vanaugh’s an­gry re­sponse, changed ev­ery­thing, both be­cause Brett Ka­vanaugh would take a seat on the Supreme Court as Trump fol­low­ers chanted “Lock her up” about his ac­cuser, and be­cause we all saw some­thing in that dy­namic we had rec­og­nized in our own lives. The blue wave elec­tion in 2018 be­came the re­demp­tion. Yet still we kept hear­ing that it was en­er­giz­ing the Re­pub­li­can men in ways that would throw the midterm elec­tion.

Gupta took a les­son from all the push­back around Ka­vanaugh, she told me. “We were get­ting crit­i­cized for fight­ing. When ac­tu­ally, for women, that rage women felt, and the anger, had prov­able im­pact in ac­ti­vat­ing women.” In the end, she and other lead­ers de­cided that there was value in speak­ing out even among per­cep­tions of in­evitabil­ity. “There was so much en­ergy among women that it wasn’t in the power of any leader or or­ga­ni­za­tion to quell or di­rect. This was so much big­ger than any sin­gle or­ga­ni­za­tion.”

This is all, in a way, a refu­ta­tion of the “Great Man” movie about le­gal change, in which one lone ad­vo­cate moves moun­tains with a sem­i­nal law­suit. But Gupta, who moved moun­tains in Tu­lia, Texas, in­stead fo­cused on en­trenched sys­tems that don’t grab head­lines or buckle un­der even the most im­pact­ful law­suits. Per­haps no more en­trenched sys­tem ex­ists than the ma­chin­ery of vot­ing, and one of Gupta’s first pri­or­i­ties when she came to the Lead­er­ship Con­fer­ence be­came just that. Long be­fore Don­ald Trump the man be­gan to in­sist that the 2020 elec­tion had been stolen from him, var­i­ous states were try­ing to make it harder for peo­ple of color, the poor, stu­dents, and those who lived in cities to vote. They did so with a raft of ger­ry­man­ders, new voter-ID laws, and voter purges, all rooted in per­sis­tent false claims about vote fraud and il­le­gal vot­ing. Gupta pre­sciently told me that the politi­ciza­tion of vot­ing rights would be­come the next bat­tle­ground. She tes­ti­fied in sup­port of H.R. 1, which be­came the first bill passed when Democrats re­cap­tured Con­gress in the blue wave of 2018. That bill is a set of com­pre­hen­sive an­ti­cor­rup­tion, anti-vote-sup­pres­sion, and pro-democ­racy re­forms. In con­gres­sional tes­ti­mony be­fore the Ju­di­ciary Com­mit­tee sup­port­ing that leg­is­la­tion in Jan­u­ary 2019, Gupta noted that the Trump ad­min­is­tra­tion never filed a sin­gle Vot­ing Rights Act case, but stood silently by in the face of myr­iad ef­forts to erect bar­ri­ers to the bal­lot box for com­mu­ni­ties of color. She con­cluded her tes­ti­mony by say­ing that “vot­ing, and the abil­ity to par­tic­i­pate in democ­racy, is a racial jus­tice is­sue. It is a civil rights is­sue.” This, too, would be­come a defin­ing is­sue around the 2020 elec­tion.

In the sum­mer of 2020, af­ter the killings of George Floyd and Ah­maud Ar­bery and Tony Mc­Dade, as Amer­i­cans took to the streets to protest racial­ized polic­ing and vig­i­lante law en­force­ment, Gupta worked to help shape yet an­other ma­jor fed­eral bill—the Jus­tice in Polic­ing Act—tes­ti­fy­ing in both the House of Rep­re­sen­ta­tives and the Sen­ate in one week. When it comes to the types of changes she is seek­ing, Gupta can be pur­pose­fully mis­read to sound like a rad­i­cal. Sen­a­tor Ted Cruz (R-Tex.) tried to char­ac­ter­ize her as seek­ing to “ex­plic­itly, un­equiv­o­cally, with no wig­gle room” sup­port “abol­ish­ing the po­lice,” a claim that has been de­bunked mul­ti­ple times by FactCheck.org.

These ac­cu­sa­tions tend to come from some of the same peo­ple who voted against cer­ti­fy­ing the pres­i­den­tial elec­tion re­sults in Jan­u­ary 2021 and who con­tin­ued to par­rot de­bunked claims about the elec­tion re­sults. It’s hard, bor­der­ing on im­pos­si­ble, to en­vi­sion Gupta as some­one who seeks to de­stroy gov­ern­ment in­sti­tu­tions, but it’s even more ab­surd when it comes from those who ac­tively par­tic­i­pated in just such an ef­fort.

“There are some who think I’m a con­ser­va­tive be­cause I still be­lieve in the sys­tems, but I do,” Gupta in­sists. “I don’t know what it looks like to tear it all down. You can’t just be re­sist­ing all the time. You can’t cri­tique ev­ery­thing and have a dis­man­tle par­a­digm with­out of­fer­ing some kind of for­ward-look­ing vi­sion. . . . I’m a prag­matic ide­al­ist. It’s why I worked across the po­lit­i­cal spec­trum when I was at ACLU.”

That’s the para­dox in­side that greater para­dox, and it helps ex­plain why women were quick to take up the le­gal bat­tles against Trump. Gupta spent the bulk of her le­gal ca­reer mak­ing com­mon cause with po­lice lead­er­ship, prison re­form­ers, big busi­ness in­ter­ests, and other con­stituen­cies that seem­ingly had noth­ing in com­mon. That’s why ev­ery ma­jor na­tional law en­force­ment or­ga­ni­za­tion sup­ported her nom­i­na­tion to be as­so­ciate at­tor­ney gen­eral un­der Mer­rick Gar­land in 2021. Put aside the undis­puted facts that she is a woman of color de­scended from im­mi­grant par­ents, and Gupta would have emerged as one of the most small-c con­ser­va­tive re­form­ers of the Trump era, be­cause, as she ex­plained to me in an in­ter­view, the in­sti­tu­tions of a demo­cratic so­ci­ety are only as ro­bust as our will­ing­ness to bat­tle for them. “If ev­ery­one just be­comes cyn­i­cal, we lose. That’s how we lose.”

Gupta doesn’t seek to prop up in­sti­tu­tions merely so that they may serve the com­mu­ni­ties she cares about. She gen­uinely wants to re­store pub­lic faith in first prin­ci­ples she echoes from Sally Yates: an in­de­pen­dent Jus­tice De­part­ment; a fair and ac­cu­rate cen­sus; one per­son, one vote; and the rule of law. And that re­quires trust in the gov­ern­ment. Part of the rea­son democ­racy is still un­der threat, she says, is ap­a­thy. “It is low voter turnout. It is the be­lief that gov­ern­ment doesn’t do enough and why trust a state that hasn’t given us mean­ing­ful change in our lives?” It is why she once gen­tly scolded me for writ­ing that even af­ter the chal­lengers won big in the cen­sus case, Trump’s DOJ would merely find an­other way to sup­press mi­nor­ity par­tic­i­pa­tion in the cen­sus. In her speeches, Gupta warns fre­quently that “de­spair is the en­emy of jus­tice,” and also that “a feel­ing of com­pla­cency is the en­emy of jus­tice.” She says that in hard times, hope it­self “is a dis­ci­pline be­cause you have to keep work­ing ev­ery day. But yet, I also think that if we don’t find hope as a dis­ci­pline, it’s a self-ful­fill­ing prob­lem.” That, then, is the para­dox for Gupta the or­ga­nizer and the so-called rad­i­cal. She be­lieves in in­sti­tu­tions and in slow re­form from the in­side out. “These in­sti­tu­tions,” she said, “have never worked for women and they have his­tor­i­cally ex­cluded women and peo­ple of color, but the strug­gle is to make them work.”

The law is fun­da­men­tally both the cause of and the so­lu­tion to women’s equal­ity bat­tles in Amer­ica. As 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.” Her ca­reer has strad­dled both sides of that para­dox. “I started out as a crim­i­nal jus­tice re­former, and I used the law to de­fend peo­ple who stood ac­cused be­fore the gov­ern­ment,” she ex­plained. “And un­der­stand­ing that all of these things can be true at once, which is that you’re us­ing the sys­tem to seek change while rec­og­niz­ing the gross in­jus­tice of the sys­tem it­self, that’s a para­dox I’ve be­come re­ally com­fort­able with.”

“Law,” she con­ceded, “has of­ten been a source of op­pres­sion, and yet civil rights ad­vo­cates have re­lied on the rule of law to be able to end seg­re­ga­tion, to be able to en­sure in­te­grated schools, to ex­pand civil rights pro­tec­tions to vul­ner­a­ble com­mu­ni­ties, and we have been fight­ing the fight for a long, long time, and it just didn’t start in re­cent years.” Mak­ing peace with the fact that these in­sti­tu­tions of democ­racy “were never per­fect so we’re go­ing to con­tinue to fight for them while rec­og­niz­ing the in­her­ent con­tra­dic­tion” re­quires, in her mind, that we “draw on this larger his­tor­i­cal arc and sit­u­ate all of us in some­thing big­ger.”

For Gupta, strad­dling the line be­tween work­ing from within and with­out “is some­thing I think I do ev­ery day; do­ing the in­side-out­side thing. I’ve al­ways been an in­side-out­side player. And even when I was in­side, I was an in­side-out­side player. I was an ACLU lawyer com­ing in to head up the Civil Rights Di­vi­sion, and there weren’t that many peo­ple with my back­ground on the in­side.” Even Gupta con­cedes that she can get “in­sti­tu­tion­al­ized.” As she fights from within sys­tems, she says, “I do rec­og­nize, now, the im­por­tance of be­ing pushed and of big ideas, and it can be re­ally un­com­fort­able, be­cause there is a gen­er­a­tional thing. I think young folks now have big ideas and they are tired of the sta­tus quo, but that’s why you see or­ga­niz­ing around vot­ing rights and Dream­ers, be­cause they say, ‘We don’t care that it’s al­ways been like this.’ And I love that. Be­cause I suc­cumb to the idea that ‘you can’t change that, peo­ple have tried and failed.’ ”

Women work­ing to bol­ster in­sti­tu­tions that have marginal­ized women for decades de­fies logic, right? But it was Gupta, years ago, who first re­minded me that pub­lic faith in the in­sti­tu­tions of democ­racy can be ephemeral, it can be shaken, and when it’s lost, it can­not al­ways be re­stored. “I think to whole­sale dis­miss in­sti­tu­tions,” she told me, “is to ig­nore the role they have in our lives and to hope that some­body else is go­ing to take care of that. And just, I don’t think we have that priv­i­lege.”

One big shift she has seen in re­cent years was “women work­ing on the in­side too. That has pro­duced a lot of change, and peo­ple of color be­com­ing a part of these in­sti­tu­tions and be­ing seen as le­git­i­mate voices, push­ing for change.” Even if it was not ev­i­dent to ev­ery­one, that made a dif­fer­ence, “if you only have peo­ple on the out­side—that’s an im­por­tant role to play—but the re­al­ity is, you won’t win just through out­side ag­i­ta­tion.” In part be­cause ac­tivist women have long been dis­cour­aged from be­ing too wild, too hys­ter­i­cal, and too rad­i­cal, work­ing in­side in­sti­tu­tions gives some mea­sure of cover. As she ex­plained, “As women who are trained to ex­press our­selves through the ma­chin­ery of in­sti­tu­tions, there’s pro­to­col and po­lite be­hav­ior that we are in­structed to use, be­cause oth­er­wise, if we’re scream­ing, peo­ple will just stop lis­ten­ing to us.” It’s un­fair, sure. The dou­ble stan­dard per­sists, she said, “and you can­not imag­ine a woman dis­play­ing that kind of be­hav­ior and hav­ing any­one lis­ten to her.”

“It’s not even a dou­ble stan­dard,” Gupta added. “It’s ex­ist­ing in dif­fer­ent uni­verses.” Gupta and I both ap­peared on the same tele­vi­sion show the night Dr. Ford tes­ti­fied. Years later, I still re­call screw­ing on my game face to talk about it dis­pas­sion­ately, be­cause that is what we do.

This is a book about women who some­times oc­cupy dual worlds, and Gupta’s is a con­sum­mate story of be­ing a huge suc­cess in Amer­i­can le­gal cir­cles but never quite be­long­ing. Her sense of be­ing an out­sider, not sim­ply to Amer­i­can in­sti­tu­tions, but to Amer­ica it­self, is un­com­fort­able but also gal­va­niz­ing. It’s no ac­ci­dent that so many of the defin­ing le­gal chal­lenges of the Trump years were to no­tions of cit­i­zen­ship, res­i­dency, ac­cess to the bal­lot, and be­long­ing. This is the “oth­er­ing” Gupta re­called as a les­son from her own child­hood, be­cause the years af­ter 2016 re­quired re­cal­i­brat­ing ba­sic is­sues of who be­longs in the United States and who doesn’t. It was, says Gupta, most fun­da­men­tally an era of “try­ing to re­de­fine who de­serves to be in this coun­try and who is an Amer­i­can. It goes to the cen­sus, it goes to vot­ing rights, it goes to the de­lib­er­ate ef­fort to change how dis­tricts are go­ing to get drawn, who gets to be counted, who doesn’t, who’s in­side, who isn’t.”

Gupta has spent her whole life on that seam, in the most per­sonal ways. “I’ve had folks throw these taunts of ‘go back to your home, you’re not from here.’ ” What has been most painful about re­cent years, about the main­stream­ing of white supremacy, and about ef­forts to over­turn the 2020 elec­tion is just that, for her, that which was unimag­in­able be­came true, and “now we’ve seen what the fail­ure of our imag­i­na­tion can yield.” The work ahead is to shore up the in­sti­tu­tions and demo­cratic norms so that in the fu­ture they can pro­tect those who have been most vul­ner­a­ble. In her view “these are not ab­stract prin­ci­ples.” This is about power and democ­racy it­self.

Toni Mor­ri­son ar­gues that the crit­i­cal func­tion of racism was al­ways dis­trac­tion. Racism “keeps you from do­ing your work,” she has said. “It keeps you ex­plain­ing, over and over again, your rea­son for be­ing.” Vanita Gupta re­fuses to al­low the dis­trac­tions of racism, misog­yny, xeno­pho­bia, and ni­hilism to stand in the way of the work, her dream of large-scale struc­tural re­form that val­ues in­vis­i­ble com­mu­ni­ties in full. If 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.

7

#MeToo

The Kozin­ski Ac­cusers

Istarted law school in the fall of 1992, the year af­ter Anita Hill tes­ti­fied about al­le­ga­tions of sex­ual ha­rass­ment against then Supreme Court nom­i­nee Clarence Thomas, who had once been her su­per­vi­sor at the Equal Em­ploy­ment Op­por­tu­nity Com­mis­sion (EEOC). I watched ev­ery minute of her tes­ti­mony and of Judge Thomas’s. Like so many other women, I ap­plied to law school be­liev­ing that an all-male Sen­ate Ju­di­ciary Com­mit­tee ask­ing in­sult­ing and porno­graphic ques­tions of a cred­i­ble wit­ness was not re­ally Amer­ica do­ing its finest work to re­solve a fac­tual em­ploy­ment dis­pute. The di­a­logue from that hear­ing doesn’t age well. “You tes­ti­fied this morn­ing,” Sen­a­tor Arlen Specter (R-Pa.) said, “that the most em­bar­rass­ing ques­tion in­volved—this is not too bad—women’s large breasts. That is a word we use all the time. That was the most em­bar­rass­ing as­pect of what Judge Thomas had said to you.” Sen­a­tor How­ell Heflin (D-Ala.) of­fered this: “Now, in try­ing to de­ter­mine whether you are telling false­hoods or not, I have got to de­ter­mine what your mo­ti­va­tion might be. Are you a scorned woman?”

I also watched what hap­pened when the Ju­di­ciary Com­mit­tee—con­trolled by Democrats and chaired by Joe Biden—el­e­vated the Sen­ate’s clubby norms of “ci­vil­ity” and “deco­rum” over its obli­ga­tion to un­earth the truth. In 1992, I wit­nessed the so-called Year of the Woman that swept women into the Sen­ate and onto con­gres­sional com­mit­tees af­ter Hill tes­ti­fied, which be­came an­other stut­ter step both to­ward and away from the project of erad­i­cat­ing ha­rass­ment and bias in the gov­ern­ment and in the law. I also started school that fall in the full knowl­edge that had San­dra Day O’Con­nor not al­ready been seated at the Supreme Court, I prob­a­bly would not have ap­plied to law school at all. As one em­pir­i­cal study af­ter an­other has shown, it’s vi­tal for young women and peo­ple of color to see other women and peo­ple of color in po­si­tions of au­thor­ity in or­der to imag­ine some­day seek­ing such jobs for them­selves.

I grad­u­ated from law school in 1996. (I took off a se­mes­ter in the mid­dle to try to un­der­stand what I was do­ing there. I never quite fig­ured it out.) I had never in­tended to clerk for a judge, but I was of­fered a last-minute op­por­tu­nity to clerk for Proc­ter R. Hug, then the chief judge of the US Court of Ap­peals for the Ninth Cir­cuit. Ju­di­cial clerk­ships, es­pe­cially on the fed­eral ap­peals courts, were and still are pretty much the golden ticket in the world of post-law-school em­ploy­ment, the Su­per Bowl ring to an al­ready lu­cra­tive and grat­i­fy­ing le­gal life. At the na­tion’s elite law schools, these year­long ap­pren­tice­ships with judges can be the launch­pad for a clerk­ship with an even more pow­er­ful judge and—if one plays one’s cards just ex­actly right—a clerk­ship at the Supreme Court.

Once upon a time, law clerks were es­sen­tially just clerks—ap­pren­tice read­ers and opin­ion drafters for over­worked judges. To­day, clerk­ing for a so-called feeder judge—the prom­i­nent ap­peals court judges who serve as the al­most ex­clu­sive pipe­line to Supreme Court clerk­ships—not only gets you in the door at the high court, it also af­fords ac­cess to the high­est ech­e­lons of the le­gal acad­emy and prac­tice. The last time I checked, for­mer Supreme Court law clerks were be­ing of­fered a cool $400,000 sign­ing bonus at tony DC law firms, fol­low­ing their year of clerk­ing at the court.

But that’s not all. Of the nine cur­rent jus­tices at the Supreme Court, six of them—Brett Ka­vanaugh, Neil Gor­such, Amy Coney Bar­rett, Elena Ka­gan, John Roberts, and Ke­tanji Brown Jack­son—all clerked at the same court on which they sit to­day. It is no ex­ag­ger­a­tion to say that elite fed­eral clerk­ships, right or wrong, are the coin of the realm at elite law schools, where the im­pulse to com­pete for ab­so­lutely any­thing just be­cause there’s a com­pe­ti­tion afoot can be par­tic­u­larly acute.

The les­son law clerks quickly in­ter­nal­ize is that they can and should put up with just about any­thing, at least for a year. In my case, I learned to shut up about some­thing for sev­eral decades.

• • •

One leg­endary feeder judge was Alex Kozin­ski, the for­mer chief judge of the West Coast–based Ninth Cir­cuit Court of Ap­peals. From 2007 to 2017—just for in­stance—twelve out of the forty clerks for the for­mer Supreme Court jus­tice An­thony Kennedy had pre­vi­ously clerked for Kozin­ski. So suc­cess­ful was Kozin­ski in plac­ing his for­mer clerks in cov­eted seats at the high court that Brett Ka­vanaugh, who had clerked for Kozin­ski in 1991 and then later, at Kozin­ski’s sug­ges­tion, for An­thony Kennedy at the Supreme Court in 1993, even­tu­ally se­cured a Supreme Court seat him­self. Sub­se­quent re­port­ing by The Wash­ing­ton Post’s Ruth Mar­cus re­vealed that when Kennedy gave up his seat, he ex­pressly asked Don­ald Trump to put Judge Ka­vanaugh into it. This of course is how pow­er­ful sys­tems op­er­ate.

Over the course of sev­eral years, Kozin­ski and Ka­vanaugh were tasked with help­ing se­lect clerks for Jus­tice Kennedy. Heady stuff, to be a king­maker at that level. You are quite lit­er­ally pick­ing once and fu­ture jus­tices. It prob­a­bly won’t sur­prise you to learn that of the top feeder judges to the Supreme Court, vir­tu­ally all are white men. It prob­a­bly also won’t sur­prise you to hear that male clerks out­num­ber fe­male clerks two to one at that court and that—as of the most re­cent study, done in 2018 by the Supreme Court re­porter Tony Mauro—“since 2005, 85% of all Supreme Court law clerks have been white.” Women, rep­re­sent­ing 50 per­cent of law school grad­u­ates, still con­sti­tute a third of all Supreme Court clerks.

This, too, should sur­prise no­body. As of Au­gust 2019, 73 per­cent of all sit­ting fed­eral judges were men.

Alex Kozin­ski was uni­ver­sally ac­knowl­edged as an en­fant ter­ri­ble of the fed­eral ap­pel­late bench. He served for thirty-two years, hav­ing been ap­pointed in 1985 by Ronald Rea­gan. Kozin­ski was born in Ro­ma­nia in 1950, left for the United States at twelve, and had a rep­u­ta­tion on the courts as a big, col­or­ful per­son­al­ity. He was ap­pointed to the Ninth Cir­cuit at the age of thirty-five, mak­ing him, at the time, the youngest ap­peals court judge since William Howard Taft. That record has changed: in late No­vem­ber 2020, the Sen­ate con­firmed a thirty-three-year-old woman to a life­time ap­pel­late judge­ship. The Trump nom­i­nee had taken part in only two one-day tri­als in her ca­reer, both con­ducted while she was an in­tern.

Iron­i­cally, be­cause the same thing would hap­pen to Ka­vanaugh, back in 1985, hav­ing just ap­proved Kozin­ski’s nom­i­na­tion, the Sen­ate Ju­di­ciary Com­mit­tee re­opened his con­fir­ma­tion hear­ing af­ter for­mer Kozin­ski em­ploy­ees charged him with “sadis­tic” and “abu­sive” be­hav­ior. As with Ka­vanaugh, it went nowhere: Kozin­ski was con­firmed to the Ninth Cir­cuit none­the­less. Kozin­ski’s charm is that he’s a show­man on a court built upon the fun­da­men­tal prin­ci­ple that if ev­ery­one is wear­ing a black robe, no­body can dif­fer­en­ti­ate one per­son from the next. As a fed­eral ap­pel­late judge in 1996, Kozin­ski fa­mously shared in Slate an ac­count of vis­it­ing a Mal­ibu pa­jama and lin­gerie party with his law clerk. In 2004, he sent a link to a video of him­self bungee jump­ing in an email to Un­der­neath Their Robes, an ir­rev­er­ent blog about the fed­eral ju­di­ciary. Years be­fore his el­e­va­tion to the bench he’d ap­peared on the TV show The Dat­ing Game, where he planted a mas­sive sur­prise kiss on the con­tes­tant who picked him to be her date.

Kozin­ski’s ju­di­cial opin­ions were also spec­tac­u­lar per­for­mance art. While uni­ver­sally ac­knowl­edged to be bril­liantly writ­ten, they were read­able, ac­ces­si­ble, and edgy. In a Sec­ond Amend­ment opin­ion, he tartly ob­served that “it is wrong to use some con­sti­tu­tional pro­vi­sions as spring­boards for ma­jor so­cial change while treat­ing oth­ers like se­nile rel­a­tives to be cooped up in a nurs­ing home un­til they quit an­noy­ing us.” In one fa­mous ap­peal, over a trade­mark dis­pute be­tween the toy com­pany Mat­tel and the com­pany that pro­duced the 1997 song “Bar­bie Girl,” Kozin­ski fa­mously wrote that “the par­ties are ad­vised to chill.” And in a 2014 dis­sent, he raised the pos­si­bil­ity of a re­turn to the fir­ing squad as a means of cap­i­tal pun­ish­ment, mus­ing, “Sure, fir­ing squads can be messy, but if we are will­ing to carry out ex­e­cu­tions, we should not shield our­selves from the re­al­ity that we are shed­ding hu­man blood. If we, as a so­ci­ety, can­not stom­ach the splat­ter from an ex­e­cu­tion car­ried out by fir­ing squad, then we shouldn’t be car­ry­ing out ex­e­cu­tions at all.”

And, as the charges raised at his 1985 hear­ing sug­gested, he was also a no­to­ri­ously de­mand­ing boss. In a 2004 pro­file of the judge in Le­gal Af­fairs, the le­gal jour­nal­ist Emily Bazelon wrote,

The down­side of clerk­ing for Kozin­ski is that he owns you. The hours are 9:30 a.m. to 1:30 a.m., with Fri­day nights and some Sat­ur­day nights off. There have been clerks who have been chewed up and spit out by the pres­sure. “He goes around telling clerks ‘You’re the gold medal clerk, you’re the sil­ver medal, you’re the bronze medal,’ ” one pro­fes­sor said. “You sub­or­di­nate your­self to him and maybe he gets you to the Supreme Court. It’s a Faus­tian bar­gain.”

But even when he pub­licly and lustily went af­ter a for­mer Supreme Court clerk, Ed­die Lazarus, for writ­ing a tell-all Supreme Court book called Closed Cham­bers, or made ap­pel­late ad­vo­cates cry in court, there seemed to be a tacit agree­ment on the fed­eral bench that it was all just “Alex be­ing Alex.”

In 2001, Kozin­ski and an­other judge jerry-rigged an in­ter­net se­cu­rity sys­tem the fed­eral courts had erected in the wake of a re­view of the court’s use of band­width af­ter it was de­ter­mined that judges were down­load­ing porn on gov­ern­ment servers. Nearly 4 per­cent of the sites vis­ited had in­cluded im­agery of sex­ual abuse. The work-around al­lowed hack­ers to breach the court’s se­cu­rity. The then di­rec­tor of the Ad­min­is­tra­tive Of­fice of the US Courts de­scribed the re­sults as pro­mot­ing “the un­fet­tered abil­ity of all judges and court em­ploy­ees to il­le­gally down­load pornog­ra­phy and view it in fed­eral courts.”

It gets bet­ter. From 2007 to 2014, Kozin­ski served as chief judge of the Ninth Cir­cuit. In 2008, Scott Glover of the Los An­ge­les Times re­vealed that the judge and his son had main­tained a pub­licly ac­ces­si­ble web­site that con­tained porno­graphic im­ages and ma­te­rial. It in­cluded im­ages of “naked women on all fours painted to look like cows and a video of a half-dressed man ca­vort­ing with a sex­u­ally aroused farm an­i­mal.”

Kozin­ski told the Los An­ge­les Times he thought the video was “funny.” He con­tended that the web­site was in­tended to be pri­vate and that var­i­ous other peo­ple had con­trib­uted posts to it. Later that same year, Glover re­ported that Kozin­ski had main­tained an email list to send out crude and dirty jokes and emails to for­mer clerks, jour­nal­ists, and lawyers. In 2009, af­ter a lengthy in­ter­nal ju­di­cial in­ves­ti­ga­tion re­quested by Judge Kozin­ski, an eleven-judge panel of the Ju­di­cial Coun­cil of the Third Cir­cuit handed down its find­ings on Kozin­ski’s al­leged ju­di­cial mis­con­duct. They de­clined to im­pose sanc­tions, de­ter­min­ing that his “ac­knowl­edg­ment of re­spon­si­bil­ity to­gether with other cor­rec­tive ac­tion, his apol­ogy, and our ad­mon­ish­ment, com­bined with the pub­lic dis­sem­i­na­tion of this opin­ion, prop­erly con­clude this pro­ceed­ing.”

The for­mal re­view de­ter­mined that Kozin­ski and his son had merely been care­less in al­low­ing the pri­vate server to be pub­licly ac­ces­si­ble on the in­ter­net, that Kozin­ski didn’t per­son­ally main­tain it, and that he had cured the prob­lem by re­mov­ing the ex­plicit ma­te­rial. Kozin­ski tes­ti­fied that he “does not visit and has no in­ter­est in porno­graphic web­sites,” ac­cord­ing to the fi­nal re­port. As the in­ves­tiga­tive re­porter Lise Olsen pointed out in her 2021 book, Code of Si­lence, the Third Cir­cuit re­view lasted nine months, and “other than Kozin­ski him­self, it wasn’t clear how many wit­nesses were in­ter­viewed.” Af­ter he was cleared, the Los An­ge­les–based at­tor­ney Cyrus Sanai, who had been com­plain­ing about the judge for years, wrote, “In a ju­di­cial mis­con­duct pro­ceed­ing brought by Alex Kozin­ski against Alex Kozin­ski, the sole wit­ness for the pros­e­cu­tion and de­fense was Alex Kozin­ski. Not sur­pris­ingly, Alex Kozin­ski was largely vin­di­cated.”

In De­cem­ber 2017, two women, Heidi Bond and Emily Mur­phy, and four other un­named for­mer clerks and ex­terns of Kozin­ski’s came for­ward to Matt Za­po­to­sky of The Wash­ing­ton Post al­leg­ing in­ap­pro­pri­ate sex­ual con­duct and mis­con­duct, in­clud­ing ask­ing them to view porn in his cham­bers. Bond, who had gone on to clerk at the Supreme Court af­ter she clerked for Kozin­ski on the Ninth Cir­cuit in 2006, had left the law to be­come a suc­cess­ful ro­mance nov­el­ist, pub­lish­ing un­der the name Court­ney Mi­lan. The same day The Wash­ing­ton Post re­ported her story, she posted her first­hand ac­count to her own web­site. This is part of what she wrote about her clerk­ship in 2006–2007:

“Heidi, honey,” the Judge said one day, when he’d beeped me into his of­fice alone, “you’re the com­puter clerk. I need your opin­ion on some­thing.” . . . This time, the thing he needed an opin­ion on was a set of pic­tures. He pulled them up from where he had saved them—a pri­vate server, run by his son, that he used as a mas­sive ex­ter­nal hard drive. Those pic­tures showed a hand­ful of naked col­lege-age peo­ple sup­pos­edly at a party where other peo­ple were clothed and drink­ing beer. In one of those pho­tos, a man and a woman were sit­ting naked on a couch. “I don’t think your co-clerks would be in­ter­ested in this,” he said. “Do you think this is pho­to­shopped?” At the time, I didn’t know what to say. I re­mem­ber think­ing that I didn’t want to be there, not with­out my co-clerks. It would have felt en­tirely dif­fer­ent if my co-clerks—both male—were present; it would have felt like I was be­ing treated as one of the guys. . . . I re­mem­ber feel­ing like the sounds of the cars pass­ing were very loud. I re­mem­ber want­ing to be so small I could dis­ap­pear. “Yes,” I said. “It’s pho­to­shopped.” “Does this kind of thing turn you on?” he asked.

Bond’s ac­count went on to re­count mul­ti­ple episodes in which the judge showed her porn, as well as his “knock chart,” a “typed piece of pa­per list­ing all the girls that he and his friends had banged while they were in col­lege.” She re­called the ways in which Kozin­ski took con­trol of her time, what she read, and then—hav­ing trashed her—de­manded to know whether she still loved him.

It had been ten years, but for Bond, who had tried in vain to find some mech­a­nism to re­port the mis­con­duct to the fed­eral ju­di­ciary, the trauma still lin­gered. On her blog that day, she wrote,

If some­one con­trols when you eat, when you sleep, what you dream, they con­trol who you love, too. I said it and I told my­self it was true, be­cause it is eas­ier to feel love than to tell your­self that you must lie for your own pro­tec­tion. It took me years af­ter­ward to un­der­stand that the re­lief I felt at the ab­sence of pain was not love. It was not any­thing like love.

The other per­son will­ing to use her real name in that Wash­ing­ton Post ar­ti­cle was Emily Mur­phy. She had just started clerk­ing for a dif­fer­ent judge on the Ninth Cir­cuit in 2012 when, as she later told the Post, Kozin­ski “ap­proached her when she was talk­ing with a group of other clerks at a re­cep­tion at a San Fran­cisco ho­tel. The group had been dis­cussing train­ing reg­i­mens, and Mur­phy said she com­mented that the gym in the 9th Cir­cuit court­house was nice be­cause other peo­ple were sel­dom there.” Ac­cord­ing to Mur­phy and two oth­ers who cor­rob­o­rated her ac­count, Kozin­ski said that “if that were the case, she should work out naked. Those in the group tried to change the sub­ject, Mur­phy and the oth­ers present said, but the judge kept steer­ing the con­ver­sa­tion to­ward the idea of Mur­phy ex­er­cis­ing with­out clothes.” As Mur­phy said in the in­ter­view, “It wasn’t just clear that he was imag­in­ing me naked, he was try­ing to in­vite other peo­ple—my pro­fes­sional col­leagues—to do so as well. That was what was hu­mil­i­at­ing about it.”

The other four women who spoke to the Post did not pro­vide their names. One said the judge had asked her to watch porn in his cham­bers, but she never re­ported it for fear of re­tal­i­a­tion. “I was afraid,” the for­mer clerk said. “I mean, who would I tell? Who do you even tell? Who do you go to?”

The night that story, and Heidi Bond’s per­sonal blog ac­count, posted, I re­ceived it in a text from at least seven peo­ple. Most of them knew that I had kept my own se­crets about the judge for two decades. My first im­pulse was to cry, which I did, and then I went out to din­ner with my hus­band and sons. Then I waited for the fa­mous judge to step down or apol­o­gize to the women who had come for­ward.

But that wasn’t what hap­pened. Kozin­ski’s first pub­lic com­ment to The Wash­ing­ton Post was a blan­ket de­nial: “I have been a judge for 35 years and dur­ing that time have had over 500 em­ploy­ees in my cham­bers. I treat all of my em­ploy­ees as fam­ily and work very closely with most of them. I would never in­ten­tion­ally do any­thing to of­fend any­one, and it is re­gret­table that a hand­ful have been of­fended by some­thing I may have said or done.”

Af­ter the ini­tial Wash­ing­ton Post story was pub­lished, Kozin­ski went on the of­fense, telling the Los An­ge­les Times, “I don’t re­mem­ber ever show­ing porno­graphic ma­te­rial to my clerks,” then went fur­ther: “If this is all they are able to dredge up af­ter 35 years, I am not too wor­ried.” He fin­ished with a set of dis­con­nected thoughts meant to em­bar­rass Bond. Af­ter she had left the le­gal pro­fes­sion, he said, Bond sent him an email ask­ing if he wanted an au­dio ver­sion of one of her nov­els. Kozin­ski de­scribed it as a ro­mance novel with one chap­ter con­tain­ing “very tor­rid sex.” He told the L.A. Times he wished Heidi Bond had said some­thing to him if she was of­fended by his be­hav­ior, al­though he ad­mit­ted that he had used “salty lan­guage” on oc­ca­sion, say­ing again that he treated his law clerks “like fam­ily.”

Of course, Kozin­ski had no real rea­son to worry about these rev­e­la­tions. Fed­eral judges serve for life once they are nom­i­nated and con­firmed. They can be im­peached for bad be­hav­ior, but ex­ten­sive re­views, in­clud­ing one un­der­taken in 2018 by CNN’s Joan Biskupic, have an­a­lyzed the ap­prox­i­mately five thou­sand ju­di­cial or­ders re­lated to ac­cu­sa­tions of ju­di­cial mis­con­duct and the re­sults are mad­den­ing. “The ju­di­ciary it­self is hid­ing the depth of the prob­lem of mis­con­duct by judges,” the CNN sur­vey con­cluded. Im­peach­ment vir­tu­ally never hap­pens; thou­sands of com­plaints about ju­di­cial mis­con­duct are never in­ves­ti­gated or re­solved.

In the very worst cir­cum­stances, judges ac­cused of mis­con­duct are al­lowed to step down vol­un­tar­ily, at which point their in­ves­ti­ga­tions are closed, but they con­tinue to col­lect a life­time pen­sion. As Biskupic put it in 2018, “The abuse women have suf­fered in the na­tion’s court­houses has been a largely un­told story. And its sys­tem for com­plaints—where judges po­lice fel­low judges—is a world so closely con­trolled and cloaked in se­crecy that it de­fies pub­lic scru­tiny.” Head­lines con­tinue to ex­pose state and fed­eral judges ac­cused of abuse, ha­rass­ment, and worse. Two sit­ting Supreme Court jus­tices have been cred­i­bly ac­cused of ha­rass­ment and as­sault in episodes that have never been thor­oughly in­ves­ti­gated or ad­ju­di­cated be­yond back­ground checks and a Sen­ate hear­ing.

I spent that week­end af­ter the first Wash­ing­ton Post story broke on the phone with two close friends, with whom I had shared my own sto­ries about Judge Kozin­ski years ear­lier. I talked to my friend, the jour­nal­ist Re­becca Trais­ter, who had re­ported ex­ten­sively on #MeToo at New York mag­a­zine. I talked to an­other for­mer Kozin­ski clerk who lived near me in Brook­lyn. Then I sent emails to the best email ad­dresses I could find for Emily Mur­phy, who is a law pro­fes­sor now, and to Heidi Bond. My hus­band and I talked to my two sons, who were twelve and four­teen at the time, about what I should do. I no longer felt as though I could wait for some­one else to step up.

What haunted me then, and what still haunts me, was the sense that if, in 1996, I had re­ported what I knew, Heidi Bond and Emily Mur­phy and the women who fol­lowed might never have had to en­dure what they did. (Emily Mur­phy, be­fore go­ing on the record with The Wash­ing­ton Post, wrote to the stu­dents in her con­tracts class at UC Hast­ings that she was com­ing for­ward based on her “pro­fes­sional obli­ga­tion to do what­ever I can to make the le­gal pro­fes­sion bet­ter for the next gen­er­a­tion.”) For years I told my­self and a hand­ful of friends that if Kozin­ski was ever el­e­vated to the Supreme Court, that would be my time to come for­ward. That would be—we would learn—Chris­tine Blasey Ford’s cal­cu­lus as well.

Over that week­end sev­eral other women re­ported, mostly via Twit­ter, on what was an open se­cret among fed­eral ju­di­cial clerks: Kozin­ski was a well-known men­ace to­ward women, es­pe­cially young ones. Joanna Gross­man, now a law pro­fes­sor at South­ern Methodist Uni­ver­sity, tweeted, “When I clerked on the Ninth Cir­cuit, Kozin­ski sent a memo to all the judges sug­gest­ing that a rule pro­hibit­ing fe­male at­tor­neys from wear­ing push-up bras would be more ef­fec­tive than the newly con­vened Gen­der Bias Task Force. His dis­re­spect for women is leg­endary.” Alexan­dra Brod­sky, a civil rights at­tor­ney, tweeted that as a stu­dent at Yale, “Ev­ery­one knew, and women didn’t ap­ply to clerk for Judge Kozin­ski de­spite his pres­tige and con­nec­tions to the Supreme Court. I al­ways felt the men who took their places were traitors.” Nancy Rapoport, spe­cial coun­sel to the pres­i­dent of UNLV, wrote, “I view his state­ment to the Los An­ge­les Times as a chal­lenge; hence, this post to add to the other voices.” She said that 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?”

The piece I wrote about the judge for Slate was fact-checked mul­ti­ple times over sev­eral days. My friends, two for­mer co-clerks, and my hus­band all cor­rob­o­rated my ac­count of what had hap­pened years ear­lier. So did Richard Hasen, a law pro­fes­sor at UC Irvine, who had wit­nessed an­other awk­ward en­counter be­tween me and the judge at a con­fer­ence only a few months ear­lier and had been so dis­com­fited by it that he’d sought me out af­ter­ward.

My ed­i­tors reached out to Judge Kozin­ski and to the Ninth Cir­cuit for com­ment. These were the first lines of the story I pub­lished, five days af­ter The Wash­ing­ton Post ran its first piece about Judge Kozin­ski:

The first time I met Alex Kozin­ski was in 1996. I was clerk­ing for the chief judge of the 9th U.S. Cir­cuit Court of Ap­peals, and there was an ori­en­ta­tion for new clerks in San Fran­cisco. One of my co-clerks and I were in­tro­duced to the al­ready leg­endary, life­time-tenured young judge at a re­cep­tion, and we talked for a while. I can­not re­call what we talked about. I re­mem­ber only feel­ing quite small and very dirty. With­out my prompt­ing, my for­mer co-clerk de­scribed this in­ter­ac­tion in an email to me this week. “He com­pletely ig­nored me and ap­peared to be un­dress­ing you with his eyes,” he wrote. “I had never seen any­one ogle an­other per­son like that and still have not seen any­thing like it. Was so un­com­fort­able to watch, and I wasn’t even the sub­ject of the stare.”

The first time I spoke to Judge Kozin­ski on the phone came weeks later, when I called his cham­bers late at night. Our judge had a sit­ting in the same city as Judge Kozin­ski, and I had made plans with one of Kozin­ski’s then-clerks, an old col­lege friend, to meet late at night for a drink. When I called his cham­bers, Judge Kozin­ski him­self an­swered the phone. I in­tro­duced my­self and asked to speak to his clerk, ex­plain­ing that we had plans to meet up. The judge asked where I was. I said I was in my ho­tel room. Then he said, “What are you wear­ing?”

In the hours be­fore my piece went live, I was pre­par­ing to de­liver a key­note speech in Flor­ida. I stood out­side the en­trance to an ur­gent care clinic, next to my ho­tel, rea­son­ably con­vinced that I was ex­pe­ri­enc­ing a heart at­tack. I had man­aged over an al­most twenty-year ca­reer in le­gal jour­nal­ism to write with a kind of wry, dis­pas­sion­ate scrim be­tween me and my sub­jects. 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, “Alex was Alex,” none of this was re­ally harm­ing any­one, and clerks needed to toughen up and live with it, even when it in­cluded sly jokes and lewd touch­ing and look­ing at porn. I’d kept my own Kozin­ski story to my­self for more than two decades, not just be­cause I knew that drill and had ben­e­fited pro­fes­sion­ally from that drill, but be­cause the very na­ture of “open se­crets,” it seems, is that ev­ery­one un­der­stands that keep­ing se­crets is part of the bar­gain.

My older son took me by sur­prise the morn­ing of my key­note/ur­gent care/Flor­ida episode as I de­bated whether to get an EKG or find the ban­quet hall I was sched­uled to ad­dress. He’s surely the less likely to get sen­ti­men­tal of my two sons, but he called on my cell just mo­ments be­fore the Kozin­ski ar­ti­cle went live on­line as I hov­ered in the park­ing lot. “Mom,” he said, “I just wanted to tell you that I know this is re­ally hard for you, and I know you never like to be the story, but some­times in or­der for other peo­ple to tell their sto­ries, you re­ally do have to tell yours.”

I pulled it to­gether and gave my speech. As au­di­ence mem­bers at the event learned that my story had just posted, some­one asked how I was feel­ing. I par­roted back the line I had once heard from Becca Heller: “I’m afraid I’ve just writ­ten the first line of my obit­u­ary.”

The re­ac­tion to my piece was not pre­cisely what I had in­tended. Twit­ter was briefly abuzz with the news that Dahlia Lith­wick just #MeTooed Alex Kozin­ski. But that had never been my pri­mary in­ten­tion. My piece was about com­plic­ity and power and open se­crets and by­standers. I was fu­ri­ous with my­self and hu­mil­i­ated by my own will­ing­ness to cover for the bad be­hav­ior of pow­er­ful men, and I had done it to pro­tect my own ca­reer.

I had watched the re­port­ing that fall, around #MeToo and Har­vey We­in­stein and other un­touch­able men, and I un­der­stood the dy­namic in which I had par­tic­i­pated. In my ar­ti­cle that day I had tried to write a long med­i­ta­tion on why vir­tu­ally ev­ery­body I knew in the fed­eral courts and in the le­gal acad­emy and through­out the wide world of law clerks, so many of whom had known that this par­tic­u­lar life­time ap­pointee was wildly sex­u­ally in­ap­pro­pri­ate, never said or did any­thing. It was, for me, a story about se­crets and au­thor­ity and si­lence. It was also a story about per­fectly closed power sys­tems in which there are no op­por­tu­ni­ties for re­dress and only ter­ri­ble pro­fes­sional con­se­quences for speak­ing out. I found my­self think­ing about how I’d failed both Bond and Mur­phy that night when I wrote,

I am also think­ing about those who opted not to ap­ply for clerk­ships with him, sidestep­ping an op­por­tu­nity to get within close range of a cov­eted Supreme Court clerk­ship. Like oth­ers who have now come for­ward, I had told young fe­male law stu­dents ab­so­lutely not to clerk for him. I am think­ing about the hun­dreds of plain­tiffs in the dis­crim­i­na­tion and ha­rass­ment suits he heard in the years he was on the bench. I am think­ing of all the ways in which “open se­crets” be­come their own spheres of truth, in which the idea that “ev­ery­body knew” some­thing aw­ful ab­solved all of us of the bur­den of do­ing any­thing. The for­mer Kozin­ski and 9th Cir­cuit clerks I’ve spo­ken to in re­cent days feel heart­sick, as I do, that for the sake of our own ca­reers and pro­fes­sional le­git­i­macy we con­tin­ued to go to the din­ners and mod­er­ate the pan­els, all the while hop­ing this story would break some­day and we’d be off the hook.

Ev­ery­body knew, I wrote, and I still be­lieve that to be true. But I didn’t blame them the way I blamed my­self for my own moral cow­ardice:

This story re­ally shouldn’t be about me. I never worked for Kozin­ski, and even though his be­hav­ior af­fected me, my fu­ture never de­pended on him. But here is the part that does im­pli­cate me: When a prom­i­nent jour­nal­ist with a na­tional plat­form chooses—year af­ter year—not to re­port on an open se­cret, or agrees to slouch through yet an­other din­ner or panel or cock­tail party, how can it only be about the vic­tims and the ha­rassers? Be­cause re­ally, if you can’t tell a man to back off when you’re 50 and at the peak of your jour­nal­is­tic power, who is ever go­ing to do it? Back in the ’90s, it was too early to re­port what I knew, what we all knew. And now it is too late. As my friend Re­becca Trais­ter has put it, “the stink got on me any­way. I was im­pli­cated. We all are, our pro­fes­sional con­tri­bu­tions weighed on scales of fuck­a­bil­ity and will­ing­ness to go along, to be good sports, to not be hu­mor­less scolds or of­fice gor­gons.”

In the days fol­low­ing its pub­li­ca­tion, I was the ben­e­fi­ciary of a tsunami of sup­port, largely build­ing on what my son had said to me first: This was painful, but nec­es­sary. I got kind notes from judges on the Ninth Cir­cuit and from aca­demic friends in law schools. Rob­bie Ka­plan and Karen Dunn, work­ing on the early days of the Char­lottes­ville Nazi lit­i­ga­tion, both of­fered to rep­re­sent any of the Kozin­ski vic­tims pro bono af­ter it was an­nounced that he had re­tained Su­san Es­trich as coun­sel.

Within a few short days of my own piece, nine more women came for­ward to The Wash­ing­ton Post’s Matt Za­po­to­sky, bring­ing the to­tal num­ber of women al­leg­ing in­ap­pro­pri­ate sex­ual be­hav­ior to at least fif­teen. One had been a law stu­dent in 2016 when the judge de­lib­er­ately touched her breast, pur­port­ing to be push­ing a lapel to see a name tag. An­other, Chris­tine O. C. Miller, a for­mer US Court of Fed­eral Claims judge, said Kozin­ski had “grabbed and squeezed each of her breasts as the two drove back from an event in Bal­ti­more in the mid-1980s.”

Leah Lit­man, then a law pro­fes­sor at the Uni­ver­sity of Cal­i­for­nia at Irvine, came for­ward in that fol­low-up story in The Wash­ing­ton Post. She opted to use her name when she re­al­ized that most of the ac­cusers had re­mained anony­mous. She de­scribed be­ing at a din­ner be­fore a July panel at which “Kozin­ski talked of hav­ing just had sex and pinched her side and her leg, just above the knee, with his thumb and mid­dle fin­ger.” Lit­man would later de­scribe to the in­ves­tiga­tive re­porter Lise Olsen that he had been “rub­bing his hand on her bare knee, un­der the ta­ble, while de­scrib­ing how he kept Play­boy in his cham­bers so his clerks could learn to write well.” A for­mer Kozin­ski clerk told the Post that Kozin­ski, in cham­bers, showed her an “open-legged im­age of a male fig­ure that was naked.” Ev­ery one of those re­ports was cor­rob­o­rated by con­tem­po­ra­ne­ous wit­nesses or peo­ple who had been told.

No­body had done any­thing be­cause no­body had be­lieved that any­thing would or could change.

An in­ves­ti­ga­tion was promptly opened into Kozin­ski’s be­hav­ior, and all three of his clerks for that year abruptly quit with­out pub­lic com­ment, leav­ing the judge with­out staff. Su­san Es­trich, Kozin­ski’s lawyer, re­leased a new state­ment in which he said, “Many of the things that are be­ing said about me are sim­ply not true, but I deeply re­gret that my un­usual sense of hu­mor caused of­fense or made any­one un­com­fort­able. I have al­ways treated my male and fe­male law clerks the same.”

Judge Kozin­ski stepped down on De­cem­ber 18, 2017, just ten days af­ter the ini­tial re­ports had sur­faced. “I can­not be an ef­fec­tive judge and si­mul­ta­ne­ously fight this bat­tle,” Kozin­ski, then sixty-seven, said in a state­ment dis­trib­uted by the Ninth Cir­cuit Court of Ap­peals. “Nor would such a bat­tle be good for my beloved fed­eral ju­di­ciary.” He added the clos­est thing he had ever of­fered to an apol­ogy. “I’ve al­ways had a broad sense of hu­mor and a can­did way of speak­ing to both male and fe­male law clerks alike,” he wrote. “In do­ing so, I may not have been mind­ful enough of the spe­cial chal­lenges and pres­sures that women face in the work­place. It grieves me to learn that I caused any of my clerks to feel un­com­fort­able; this was never my in­tent. For this I sin­cerely apol­o­gize.” The apol­ogy en­com­passed only his own for­mer clerks, not Lit­man, Mur­phy, Gross­man, my­self, or most of the other ac­cusers. The apol­ogy sug­gested that it was okay to show ex­plicit porn to law clerks, as long as you treated the males and fe­males “alike.”

The Sec­ond Cir­cuit Ju­di­cial Coun­cil an­nounced that it would not con­tinue its in­ves­ti­ga­tion. Be­cause the judge had now stepped down, it lacked “au­thor­ity to do any­thing more.” By statute the ma­chin­ery of ju­di­cial mis­con­duct re­view does not ap­ply to for­mer judges. That meant there would never be a fac­tual record or con­clu­sive find­ings about whether the al­le­ga­tions were true. As Lise Olsen later re­ported, the com­plaint against Kozin­ski was dis­missed in Feb­ru­ary 2018, in an or­der that made it clear no in­ves­ti­ga­tion had taken place.

• • •

Two prob­lems con­tin­ued to be con­found­ing in the months and years that fol­lowed this episode, both of which have changed the way I think about sex­ual im­pro­pri­ety in the work­place. Re­demp­tion was the first. A prom­i­nent Cal­i­for­nia at­tor­ney at a pri­vate law firm, Kathy Ku, was an­other of Kozin­ski’s for­mer clerks who had been shown porn and be­lit­tled. She, too, had risked her pro­fes­sional rep­u­ta­tion—she prac­ticed in the fed­eral courts—to come for­ward. Ku wrote in The Wash­ing­ton Post in Jan­u­ary 2018, a few weeks af­ter Kozin­ski’s res­ig­na­tion, “With his im­me­di­ate re­tire­ment, it ap­pears that he has es­sen­tially shut down the fed­eral ju­di­ciary’s in­ves­ti­ga­tion of his con­duct and de­flected fur­ther rev­e­la­tions in the press. That al­lows him to dis­ap­pear, qui­etly re­ceiv­ing his pen­sion, un­til the out­rage dies down. It al­lows him a greater chance at re­demp­tion.” Ku, a su­perb lawyer who was think­ing in terms of le­gal pro­cesses and in­ves­ti­ga­tions, cau­tioned that “in a few years, we may see an at­tempt at quiet reemer­gence—not on the fed­eral bench, but per­haps through a law school teach­ing ap­point­ment or in the realm of pri­vate dis­pute res­o­lu­tion.”

She was right. Within six months, Kozin­ski was writ­ing ed­i­to­ri­als and giv­ing ra­dio in­ter­views in which no­body in an ed­i­to­rial po­si­tion saw fit to men­tion that he wasn’t just a “re­tired” fed­eral judge. In 2018, he pub­lished a trib­ute to Jus­tice An­thony Kennedy on his re­tire­ment. He was back be­fore his own court as an ad­vo­cate soon af­ter.

That leads us to the sec­ond prob­lem: the com­plete ab­sence of fac­tual de­ter­mi­na­tion of what ac­tu­ally hap­pened. Be­cause there had been no for­mal ad­ju­di­ca­tion of any of the claims, when Leah Lit­man, Emily Mur­phy, and Kathy Ku, in co­op­er­a­tion with other vic­tims and ad­vo­cates, went to write an op-ed in The New York Times, com­plain­ing that there had been no reck­on­ing and that it was not yet time for the tri­umphant come­back that seems to fol­low ev­ery ha­rasser, the ed­i­tors made them change the lan­guage. Even though more than fif­teen women had “al­leged” sex­ual mis­con­duct, it had never been proven, so “al­leged” it re­mained. As Lit­man, Mur­phy, Ku, and other com­plainants noted in their op-ed, the other vex­ing prob­lem was the com­plic­ity of by­standers: “Sex­ual ha­rass­ment of­ten per­sists be­cause third par­ties are silently com­plicit in it. #MeToo re­quires some ret­ro­spec­tion from peo­ple who are not ha­rassers them­selves.”

Kathy Ku had also tack­led the prob­lem of by­standers who failed to come for­ward in her own Wash­ing­ton Post ar­ti­cle, not­ing that with­out any for­mal find­ings it was not only the ha­rasser who was let off the hook but also ev­ery sin­gle wit­ness. “In the ab­sence of an of­fi­cial in­quiry,” she wrote, “few ad­di­tional tar­gets of, or wit­nesses to, Kozin­ski’s trans­gres­sions are likely to speak pub­licly. They may not want to be seen as pil­ing on. They may think that the mo­ment to speak is over. Or they may have con­cerns about reper­cus­sions in their ca­reers.”

As seems to have been the pat­tern, the lion’s share of the re­spon­si­bil­ity fell on the hand­ful of women who risked pro­fes­sional and rep­u­ta­tional harms in speak­ing out first. “In writ­ing this piece,” warned Ku, “I’m the first and only for­mer Kozin­ski clerk still in pri­vate prac­tice to go on the record, by name, with al­le­ga­tions against the judge. And it’s not some­thing I do ea­gerly. The pres­sures to re­main silent can be over­whelm­ing.”

One of the en­dur­ing lessons sev­eral years later is about who bears the heav­i­est bur­den of telling the truth and why so many do it alone. I be­lieve there were lit­er­ally hun­dreds of peo­ple who knew about Judge Kozin­ski. Some of them still seek me out at speeches, years later, to con­firm—off the record—what they knew. In the ear­li­est days of the re­port­ing, only one man stepped for­ward to put his own name in the record. UC Irvine’s Richard Hasen was one of the few men who would come to pub­licly cor­rob­o­rate both my story and Leah Lit­man’s. One of Heidi Bond’s co-clerks tweeted a sen­tence about how her story ex­plained how mis­er­able she had been through­out the clerk­ship. Oth­ers retweeted her story with­out com­ment. I re­ceived lit­er­ally dozens of emails from women and men in the days and weeks af­ter my piece was pub­lished, say­ing, “Of course we all knew about Kozin­ski.” Vir­tu­ally none of them ever went on the record. Many wished to thank the orig­i­nal ac­cusers for go­ing pub­lic—jeop­ar­diz­ing their own aca­demic or le­gal ca­reers—so that no­body else would have to.

In the wake of the rev­e­la­tions about Alex Kozin­ski, Chief Jus­tice John Roberts noted in his 2017 year-end re­port on the state of the ju­di­ciary, that “re­cent months have il­lu­mi­nated the depth of the prob­lem of sex­ual ha­rass­ment in the work­place, and events in the past few weeks have made clear that the ju­di­cial branch is not im­mune.” He or­dered the ju­di­ciary to con­duct “a care­ful eval­u­a­tion of whether its stan­dards of con­duct and its pro­ce­dures for in­ves­ti­gat­ing and cor­rect­ing in­ap­pro­pri­ate be­hav­ior are ad­e­quate to en­sure an ex­em­plary work­place for ev­ery judge and ev­ery court em­ployee.”

Fol­low­ing ex­ten­sive re­view, the fed­eral ju­di­ciary amended its Code of Con­duct to in­clude in its def­i­ni­tion of mis­con­duct en­gag­ing in “un­wanted, of­fen­sive, or abu­sive sex­ual con­duct.” The courts added more train­ing and stream­lined re­port­ing of mis­con­duct, but most of the crit­ics who have spent years try­ing to re­form the ju­di­cial branch felt the so­lu­tions were patchy and in­suf­fi­cient. The prob­lem tran­scends re­port­ing and dis­ci­pline. It de­mands huge shifts in the way we think about power, se­crecy, and loy­alty.

It also de­mands con­sis­tency. Sen­a­tor Chuck Grass­ley, the Iowa Re­pub­li­can who chaired the Ju­di­ciary Com­mit­tee at the time, held a hear­ing in June 2018 in which he cel­e­brated Heidi Bond and Emily Mur­phy for their brav­ery, de­nounced Kozin­ski’s con­duct, and faulted the ju­di­ciary’s work­ing group re­port for “kick­ing the can down the road.” A few months later, Grass­ley would chair the con­fir­ma­tion hear­ings for the for­mer Kozin­ski clerk and ad­vi­sor Brett Ka­vanaugh.

Of course, when Judge Brett Ka­vanaugh was asked dur­ing his con­fir­ma­tion process about his close as­so­ci­a­tion with Kozin­ski, he de­nied wit­ness­ing or even know­ing about any im­proper be­hav­ior. The le­gal jour­nal­ist Irin Car­mon, writ­ing in Sep­tem­ber 2018, sum­ma­rized the pro­fes­sional ties be­tween the two men:

Un­til re­cently, the two were part of an elite group that pre-in­ter­viewed law stu­dents for clerk­ships with Jus­tice An­thony Kennedy, whom Ka­vanaugh seeks to re­place. The two men sat on pan­els to­gether; on one at the Fed­er­al­ist So­ci­ety, Politico re­ported, Ka­vanaugh “praised a 1991 ar­ti­cle Kozin­ski wrote about ju­di­cial clerk­ship se­lec­tion, ti­tled ‘Con­fes­sions of a Bad Ap­ple.’ ” He even hired Kozin­ski’s son to clerk for him. Bill Burck, the lawyer who is charged with de­cid­ing which of Ka­vanaugh’s doc­u­ments get pub­licly re­leased, is a for­mer Kozin­ski clerk who rep­re­sented the judge af­ter the ac­cu­sa­tions.

Re­port­ing re­vealed that Ka­vanaugh had phoned Kozin­ski when the sto­ries about him first sur­faced, be­cause he was wor­ried about the judge’s men­tal health. At Ka­vanaugh’s con­fir­ma­tion hear­ing in Sep­tem­ber 2018, Sen­a­tor Or­rin Hatch of Utah asked him about the list­serv of friends, for­mer law clerks, col­leagues, and jour­nal­ists to whom Kozin­ski had for years dis­trib­uted crude ma­te­rial. Ka­vanaugh told Hatch, “I don’t re­mem­ber any­thing like that, Sen­a­tor.” Hatch then asked, “Did you know any­thing about these al­le­ga­tions?” “Noth­ing.” “OK. Be­fore they be­came pub­lic last year?” “No. . . . It was a gut punch for me.”

It was hard to be­lieve. Sen­a­tor Mazie Hi­rono of Hawaii tried to un­der­stand how Ka­vanaugh could have known ab­so­lutely noth­ing about the open se­cret around his men­tor. His re­sponse was to de­flect, in­sist­ing that the judges who worked in Cal­i­for­nia should have been the whistle­blow­ers. “No, Sen­a­tor,” Ka­vanaugh said em­phat­i­cally. “And I worked in Wash­ing­ton, DC. There were 10 judges in the court­house with him in Pasadena, prom­i­nent fed­eral judges in the court­house with him. Who worked side by side with him day af­ter day while he was Chief Judge in the Ninth Cir­cuit.”

That was of course cor­rect, but also wholly un­re­spon­sive. Hi­rono pressed again: “To be clear, while this kind of be­hav­ior on the part of Judge Kozin­ski was go­ing on for 30 years—it was an open se­cret—you saw noth­ing, you heard noth­ing, and you ob­vi­ously said noth­ing. Judge Ka­vanaugh, do you be­lieve the women who re­cently came for­ward to ac­cuse Judge Kozin­ski of this kind of be­hav­ior?” Ka­vanaugh’s re­ply: “I have no rea­son not to be­lieve them, Sen­a­tor.”

What does it mean, to claim to be­lieve women and yet de­spite a years-long re­la­tion­ship with the ac­cused claim ig­no­rance of what is widely known? In Feb­ru­ary 2020, just weeks be­fore the coun­try locked down for the coro­n­avirus pan­demic, Olivia War­ren, who had clerked for one of Kozin­ski’s clos­est friends, Stephen R. Rein­hardt, a civil rights leg­end on the Ninth Cir­cuit who died in 2018, tes­ti­fied be­fore a con­gres­sional com­mit­tee that Rein­hardt “rou­tinely and fre­quently” sex­u­ally ha­rassed her and other fe­male clerks. Over the course of her clerk­ship, which lasted from 2017 to 2018, Rein­hardt—a prom­i­nent feeder judge for lib­eral Supreme Court jus­tices—would, among other things, spec­u­late—some­times in front of other em­ploy­ees—that War­ren’s hus­band “must ei­ther lack a pe­nis, or not be able to get an erec­tion,” be­cause she was so unattrac­tive. As she tes­ti­fied un­der oath, “There may have been a day in which I was not ha­rassed. But I can­not re­mem­ber one af­ter search­ing my mem­ory.”

Like Bond, War­ren tes­ti­fied that she felt im­pelled to keep her ex­pe­ri­ence se­cret be­cause she was “scared of of­fend­ing the judge and alien­at­ing his pow­er­ful net­work of clerks, scared of end­ing my le­gal ca­reer be­fore it had even be­gun, scared that the judge would ex­act re­venge on me.” And like Bond, she couldn’t man­age to fig­ure out how to file a com­plaint, or whom to tell, in the fed­eral ju­di­cial ma­chin­ery, al­though she did re­port to mem­bers of the Har­vard Law School ad­min­is­tra­tion, where she had grad­u­ated. Leah Lit­man, one of the Kozin­ski ac­cusers from 2017 and now an as­sis­tant pro­fes­sor at the Uni­ver­sity of Michi­gan Law School, cor­rob­o­rated one part of War­ren’s tes­ti­mony on Twit­ter, ac­knowl­edg­ing that Judge Rein­hardt had pub­licly con­fronted and in­sulted her about her ac­cu­sa­tions against his dear friend Kozin­ski.

Lit­man, who has be­come one of the most pow­er­ful voices de­mand­ing change and ac­count­abil­ity both in the le­gal pro­fes­sion and on the ju­di­ciary, con­firmed on Twit­ter that while many for­mer Rein­hardt clerks would later ex­press sup­port for War­ren, the num­ber of peo­ple who would con­firm it would be min­i­mal. That proved true. A let­ter signed by more than sev­enty for­mer Rein­hardt clerks af­firmed both that the sig­na­to­ries “be­lieve the clerk’s tes­ti­mony” and that some of them “ex­pe­ri­enced or wit­nessed con­duct in cham­bers that we would call sex­ist, work­place bul­ly­ing or mis­treat­ment,” and oth­ers did not, but that most were “shocked” by War­ren’s al­le­ga­tions.

But be­ing told you are be­lieved and also that no­body plans to do any­thing about it is not jus­tice. Chris­tine Blasey Ford, in a 2021 pod­cast with Anita Hill, dis­puted the util­ity of telling vic­tims of sex­ual ha­rass­ment and abuse that you “be­lieve” them. As she ex­plained, when you tell some­one your name, the cor­rect re­sponse isn’t usu­ally “I be­lieve you.” Pre­sum­ably, the rea­son we con­structed a le­gal sys­tem is so that whether or not we “be­lieve” some­one is not the rel­e­vant in­quiry.

“Even though a lot of peo­ple on Twit­ter will ex­press sup­port for you when you come for­ward with an ac­cu­sa­tion like this, a lot of peo­ple—in­clud­ing very pow­er­ful and ad­mired peo­ple—will be an­gry with you,” Leah Lit­man tweeted, af­ter War­ren tes­ti­fied. “They will de­mean you and un­der­mine you in ways you can see and ways you can­not. That is part of why it is not fair to say it is the re­spon­si­bil­ity of the per­son who is sub­ject to ha­rass­ment to do some­thing about it.”

I tes­ti­fied along­side War­ren at that House Ju­di­ciary Com­mit­tee hear­ing in 2020, meet­ing her for the first time that morn­ing. I knew noth­ing spe­cific about the Rein­hardt claims—al­though I had heard clerks al­lude to sex­ism and bul­ly­ing about him for years—but I wanted to sup­port Liv War­ren, and also to try to make the point I had tried to make two years ear­lier about the need for re­form in the ju­di­cial sys­tem. My tes­ti­mony am­pli­fied what I had writ­ten in 2017:

Rightly or wrongly, the le­gal pro­fes­sion is among the most con­ser­va­tive and risk-averse of any mod­ern pro­fes­sion, and the im­pulse to look away, down­play, se­cret-keep, and jus­tify is stronger among at­tor­neys than any group I know. In ad­di­tion to help­ing judges fig­ure out how best to po­lice them­selves, we need to cre­ate a cul­ture of by­standers will­ing to step up and re­port abuse, and to de­fend vic­tims, even if at some per­sonal and pro­fes­sional cost. We en­trust the ju­di­cial branch with the sole power and au­thor­ity to ad­ju­di­cate com­pli­cated mat­ters ev­ery day; find­ing out what has hap­pened in a given cham­bers and why should not be an im­pos­si­ble task. The only cure I know for “open se­crets” and sug­ges­tions that young lawyers might ben­e­fit from abu­sive haz­ing is trans­parency and sun­light. The al­ter­na­tive—whis­per cam­paigns and sum­mary dis­missals—doesn’t only hurt in­di­vid­ual vic­tims, but also slowly un­der­mines the ju­di­ciary as a whole.

I first met Judge Rein­hardt in per­son at a con­fer­ence early in the first decade of the twenty-first cen­tury in Wash­ing­ton, DC, where we were both speak­ing. He stepped into an el­e­va­tor with me and my tod­dler son, and when the judge asked my son’s name, he said, “Jack” (which is not his real name). So Judge Rein­hardt called my son Jack all week­end, and I didn’t cor­rect him. That’s how dif­fi­cult it is to talk back to a fed­eral judge with a life­time ap­point­ment. Just as Liv War­ren was crushed that her for­mer judge’s com­ments about her at­trac­tive­ness and her hus­band’s anatomy were now pre­served for­ever in the Con­gres­sional Record of 2020, I was of course mor­ti­fied to learn that her tes­ti­mony in­cluded Judge Rein­hardt’s snark­ing to his as­sem­bled law clerks, af­ter I wrote about Judge Kozin­ski, “No one has ever ogled Dahlia Lith­wick.”

No­body wants to be ad­ju­di­cated a silly, ugly lit­tle girl in the pages of the Con­gres­sional Record, and cer­tainly not by a lion of the pro­gres­sive le­gal move­ment who had only ever been kind to me. But as War­ren ex­plained in a law re­view ar­ti­cle pub­lished in 2021, this end­less, ex­haust­ing work of bear­ing wit­ness is at least the­o­ret­i­cally im­por­tant be­cause “there is virtue in scream­ing into the face of deaf­en­ing in­dif­fer­ence, if only be­cause the sound of my voice re­minds me that I have not yet suc­cumbed to it.”

Leah Lit­man and Deeva Shah, both of whom have ded­i­cated years of their pro­fes­sional lives to un­der­stand­ing #MeToo in the ju­di­ciary, wrote a law re­view ar­ti­cle in 2020 in which they ar­gued that the en­tire le­gal pro­fes­sion needs to take in­di­vid­ual re­spon­si­bil­ity for sex­ual ha­rass­ment in the courts. This would, they wrote, re­quire a mas­sive shift across the le­gal acad­emy and law firms and among at­tor­neys. In the face of col­lec­tive si­lence and tacit re­lief that oth­ers have spo­ken up, Lit­man and Shah ar­gued,

When we del­e­gate the is­sue of ha­rass­ment to a small num­ber of com­mit­ted in­di­vid­u­als, we also force those in­di­vid­u­als into a box. They be­come peo­ple who are known or ex­pected to speak out about ha­rass­ment, which min­i­mizes the force of their state­ments. That iden­tity min­i­mizes their work in other ar­eas, since they be­come known as in­di­vid­u­als fo­cused on ha­rass­ment and work­place mis­con­duct, rather than for their other pro­fes­sional ac­com­plish­ments.

Like so many of the women men­tioned in this chap­ter, I find my­self called on rou­tinely to brief judges, law stu­dents, law­mak­ers, lawyers’ groups, and women’s groups about how #MeToo has both suc­ceeded and failed in the fed­eral ju­di­ciary. I some­times note rue­fully that I may ma­jor in the law and the courts, but I have come to mi­nor in #MeToo. The women in this chap­ter have be­come friends and ad­vi­sors and sound­ing boards, but all of them would likely tell you that all of this ex­tracur­ric­u­lar, un­paid work takes time and en­ergy and fo­cus from their own ca­reer ad­vance­ment and their fam­i­lies and their per­sonal goals.

And un­err­ingly, at al­most ev­ery speech and panel, some­one in the au­di­ence si­dles up to whis­per a story about a judge who abused clerks, or staff, or court per­son­nel, and when I ask them to put it on the record, they de­mur. As Lit­man and Shah noted, the peo­ple who have done the most rig­or­ous and sys­temic think­ing about the cul­ture of si­lence in the le­gal pro­fes­sion are law stu­dents, who have their own ca­reers and plans to which they should be at­tend­ing. And as the two con­clude,

Prob­lems of col­lec­tive ac­tion are no­to­ri­ously dif­fi­cult to solve. If ev­ery­one has some stake in the prob­lem, then the af­fected, in­ter­ested group is so large that it can be dif­fi­cult to co­or­di­nate that group to do any­thing. A large group may also limit in­di­vid­ual group mem­bers’ feel­ings of per­sonal re­spon­si­bil­ity. If ev­ery­one is part of or con­trib­utes to a prob­lem, then our own role may seem in­signif­i­cant, which makes it eas­ier for us to sit on the side­lines. But that means ha­rass­ment will con­tinue.

• • •

As Vanita Gupta noted, it bor­ders on im­pos­si­ble to rely on the very same jus­tice sys­tem that has caused so much in­equal­ity to also rem­edy it. By the same to­ken it seems too fan­ci­ful to hope that a ju­di­cial branch that has turned a blind eye to abuse in its ranks can ei­ther cure it­self or pro­vide just rul­ings for women.

And yet with few ex­cep­tions, it’s been women lawyers, aca­demics, and judges who have ded­i­cated years to try­ing to re­form the ju­di­cial sys­tem. It has prob­a­bly not es­caped your no­tice by now that while women lawyers were at the fore­front of beat­ing back Trump­ism, they were al­most alone in their at­tempts to root out sex­ual ha­rass­ment and abuse in the ju­di­ciary. If women are go­ing to use the law to make change, they re­quire equal ac­cess to op­por­tu­ni­ties for clerk­ships, judge­ships, and power. And if women are vir­tu­ally alone in re­form­ing the le­gal sys­tem, it ap­pears, yet again, that they are still do­ing ser­vice work while men are ad­vanc­ing.

Anita Hill has been talk­ing about the need for sys­temic re­forms, process re­forms, and broad cul­tural re­forms since her own ex­pe­ri­ence be­fore the Ju­di­ciary Com­mit­tee in 1991. She has no il­lu­sions that a hand­ful of high-pro­file cases will change work­places in which most preda­tors op­er­ate with im­punity and most ac­cusers re­main too ter­ri­fied to speak up. “What we want to make sure is that it doesn’t stop with just a few high-pro­file cases,” she told NPR in Sep­tem­ber 2020, when a broad sur­vey of the en­ter­tain­ment in­dus­try re­vealed that 64 per­cent of those sur­veyed did not be­lieve that a per­son who was found to have ha­rassed a sub­or­di­nate would be held ac­count­able. “We know that there are prob­lems through­out work­places, and we want to make sure that ev­ery­body, what­ever their po­si­tion is, can count on be­ing heard,” she added. Hill’s fo­cus has al­ways been lawyerly and sweep­ing: en­tire pro­cesses need to change, and the role of by­standers must change, be­fore any one sys­tem can be­gin to fix it­self.

This is why the voice that echoes in my head through­out ev­ery new cy­cle of #MeToo is that of the jour­nal­ist Irin Car­mon, who was ac­cept­ing a Mir­ror Award in 2018, be­stowed by the New­house School at Syra­cuse Uni­ver­sity on re­porters in­ves­ti­gat­ing sex­ual mis­con­duct. Car­mon was be­ing hon­ored along­side the Wash­ing­ton Post re­porter Amy Brit­tain for their piece on the tele­vi­sion host Char­lie Rose’s con­duct at CBS and that net­work’s plod­ding and in­ef­fec­tual re­sponse. At New York’s Cipri­ani 42nd Street, in a room­ful of jour­nal­ists, lawyers, pun­dits, and CBS em­ploy­ees, Car­mon told the as­sem­bled crowd,

There’s a temp­ta­tion to think the last few months have been about in­di­vid­ual men, that it was about a hand­ful of bad ap­ples and if we get rid of them it will end the cy­cle of ha­rass­ment and abuse. But it’s not true. The sto­ries that we have been do­ing are about a sys­tem. The sys­tem has lawyers and a good rep­u­ta­tion. It has pub­li­cists. It has a per­fectly rea­son­able ex­pla­na­tion about what hap­pened. It has pow­er­ful friends that will ask if it’s re­ally worth ru­in­ing the ca­reer of a good man based on what one woman says, what four women say, what 35 women say. In­deed, the sys­tem is sit­ting in this room. Some more than oth­ers. The sys­tem is still pow­er­ful men get­ting sto­ries killed that I be­lieve will one day see the light of day.

I learned from Heidi Bond, Emily Mur­phy, and the other #MeToo ac­cusers that a sys­tem of jus­tice is only re­ally as ro­bust as one’s abil­ity to ac­cess it. Bond spent years try­ing to fig­ure out how to bring a ha­rass­ment com­plaint be­fore the fed­eral ju­di­ciary, ques­tion­ing her own com­mit­ments to judge/clerk se­crecy and cir­cum­nav­i­gat­ing the byzan­tine re­port­ing rules. Sim­i­larly, Liv War­ren couldn’t find a chan­nel to re­port what she knew, what ev­ery­one who worked with her knew. In their Oc­to­ber 2021 pod­cast to­gether, as part of the se­ries Be­cause of Anita, Chris­tine Blasey Ford and Anita Hill tried to ex­plain how in­tol­er­a­ble it is to want to bring in­for­ma­tion—Dr. Ford called it “data”—to a sys­tem that has no mech­a­nism with which to re­ceive it. In the end, Ford brought her com­plaint about Brett Ka­vanaugh to her own mem­ber of Con­gress. But even then, she was sub­ject to dis­be­lief and dis­dain for some­how re­port­ing it in the wrong way.

If even women like Bond, like Anita Hill, and like my­self, who un­der­stand the shape of the le­gal sys­tem, can’t al­ways find the front door, there is some­thing wrong that tran­scends for­mal equal­ity. Sys­tems, in­clud­ing le­gal sys­tems, can­not change if they have been set up to thwart change and if they al­low men to rocket from the out­side to the in­side by way of se­cret dirty email threads, ad­vance­ment op­por­tu­ni­ties, and a vault in which “open se­crets” can go to die. So many women who be­lieved that the United States had achieved a mea­sure of equal­ity by 2016 quickly came to un­der­stand that if you can’t even ac­cess the sys­tem, you can­not be­gin to re­pair it, and maybe that is why no book about women and the law should con­fine it­self to the rock-star lit­i­ga­tors and ad­vo­cates and or­ga­niz­ers. In one sense, women, non­bi­nary peo­ple, and other mi­nori­ties are still on the out­side look­ing in.

Their work is as es­sen­tial as it is of­ten in­vis­i­ble.

• • •

One coda to my own ex­pe­ri­ence in both writ­ing about and re­port­ing out the mis­con­duct al­le­ga­tions around Kozin­ski in 2017: in the days af­ter I wrote my ar­ti­cle, and im­me­di­ately af­ter a host of other ac­cusers came for­ward and Judge Kozin­ski stepped down, I lived in fear of be­ing bankrupted or run out of jour­nal­ism, and even of per­sonal threats of ret­ri­bu­tion. The in­ter­net, as you might have heard, is un­kind. I imag­ined sources in the ju­di­ciary, col­leagues in the press, for­mer clerks, all melt­ing away from me. In those days, I was in near-daily phone con­tact with the first two Kozin­ski ac­cusers who had gone on the record: Emily Mur­phy and Heidi Bond. We were all feel­ing raw, and ex­posed, and col­lec­tively couldn’t shake the sense that we were in­deed liv­ing out those first lines of our re­spec­tive obit­u­ar­ies. I had re­ceived a kind email from Anita Hill, and I asked Emily and Heidi whether it would be help­ful to try to wran­gle a con­fer­ence call with her. Pro­fes­sor Hill agreed im­me­di­ately. So I ar­ranged a call be­tween Emily in San Fran­cisco, Heidi in Col­orado, Pro­fes­sor Hill from her of­fice at Bran­deis Uni­ver­sity, and my­self at the mag­a­zine’s bu­reau in Brook­lyn.

At the last minute I asked my then four­teen-year-old son—who had been my bal­last when I was hav­ing my wholly fan­ci­ful car­diac event only the week be­fore—to come sit with me in our Slate con­fer­ence room. I had shown him the footage, from twenty-six years ear­lier, of Pro­fes­sor Hill’s tes­ti­mony be­fore the Sen­ate Ju­di­ciary Com­mit­tee. He was un­char­ac­ter­is­ti­cally quiet. Af­ter Heidi, Emily, and Pro­fes­sor Hill had all di­aled into the call, I asked if it was okay if my son lis­tened in and ex­plained that he, too, had had a hard, sad week and that he had been my life­line on what had felt like my very worst day.

Pro­fes­sor Hill asked me to put him on the line for a mo­ment, and I did. He leaned into the speak­er­phone, and she thanked him and told him she gen­uinely be­lieved young men like him would some­day make a dif­fer­ence. I cried be­cause I have lit­er­ally no choice but to be­lieve that is true.

8

#Her­Too

Chris­tine Blasey Ford and Anita Hill

When I first started cov­er­ing the US Supreme Court, it was 1999 and I had never been in­side the build­ing. Most of the daily press corps have a some­what ob­structed view of the nine jus­tices, and on crowded days, the reporters in the back rows have no view at all. Even­tu­ally, one de­vel­oped keen voice recog­ni­tion skills, but in the big-ticket cases, you re­lied on some­one from the press of­fice who would flash the num­ber of fin­gers cor­re­spond­ing to the se­nior­ity of which­ever jus­tice was speak­ing. “Four fin­gers! Four! Scalia!” Un­til fairly re­cently, like 2004, if you pe­rused an oral ar­gu­ment tran­script, the name of the jus­tice speak­ing went un­men­tioned; the tran­script used “Ques­tion” in­ter­change­ably for ev­ery mem­ber. The jus­tices are, af­ter all, fun­gi­ble and orac­u­lar, nine brains in a vat of con­sti­tu­tional un­der­stand­ing, me­chan­i­cally call­ing balls and strikes.

The whole me­dia setup at SCO­TUS was al­ways slightly lu­di­crous: re­porters are pro­hib­ited from record­ing the oral ar­gu­ments; we were per­mit­ted to take one pen and one notepad into the cham­ber. (My fa­vorite true story was the time the fed­eral mar­shal took my copy of Kafka’s The Trial from me as I en­tered the room, my pa­tient ex­pla­na­tion of “irony” hav­ing fallen on deaf ears.) Ev­ery­thing about the way we cov­ered the court felt feu­dal to me: the byzan­tine ac­cred­i­ta­tion rules for the me­dia; the way we were marched into the cham­ber and then seated in rows in the pre­cise or­der of pres­tige and im­por­tance (at my peak I was the sev­en­teenth most im­por­tant Supreme Court cor­re­spon­dent in the room). The jus­tices al­most never gave in­ter­views, and the Pub­lic In­for­ma­tion Of­fice ap­peared largely to ex­ist in or­der to say no to in­ter­view re­quests. Un­like other gov­ern­ment in­sti­tu­tions, the ar­range­ment is re­spect­ful and def­er­en­tial, and press cov­er­age in­clines to courtly rev­er­ence and schol­arly ex­pli­ca­tion of doc­trine. Even with all the be­holden­ness and the Patty Hearst syn­drome, I al­ways knew from day one that I had the best job in jour­nal­ism.

This is the story about why in 2018 I quit the court, and it, too, has a place in a book about women and the law. For years I told peo­ple the Supreme Court press corps fea­tured so many prizewin­ning fe­male jour­nal­ists be­cause it was an ideal beat for women. The corps is un­fail­ingly well pre­pared, steeped in case law, and—as I have re­marked more than once—tends to cover the in­sti­tu­tion as though the Con­sti­tu­tion were alive and the jus­tices were dead. No gos­sip, no opin­ion, no muck­rak­ing. That was the prov­ince of the po­lit­i­cal re­porters and blog­gers out­side the build­ing. Supreme Court re­porters largely had evenings and week­ends and sum­mers, un­less a jus­tice died, which is good for work-life ar­range­ments, and this is, for the most part, not a beat that de­mands claw­ing through dump­sters for scoops or meet­ing with sun­glasses-wear­ing sources in grimy DC bars. We cov­ered af­fir­ma­tive ac­tion, abor­tion, and vot­ing and gun rights. The jus­tices were in­ci­den­tal to all that. In many ways, then, we in the press corps col­luded a bit with the mem­bers of the high court to tell the story of a prophetic and non­par­ti­san court that neu­trally “ap­plied the law” us­ing sci­en­tific in­ter­pre­tive prin­ci­ples.

I was lucky enough to be in the room for oral ar­gu­ments in Bush v. Gore and to have a front-row seat—not re­ally, I was af­ter all ranked sev­en­teenth—to his­toric ar­gu­ments and de­ci­sion an­nounce­ments in sem­i­nal cases like Oberge­fell v. Hodges, find­ing a right to mar­riage equal­ity in the Con­sti­tu­tion, and Dis­trict of Co­lum­bia v. Heller, find­ing a right to own firearms in the home. I groused at what I be­lieved to be some of the “bad” de­ci­sions—like Heller—and I cel­e­brated the “good” ones, like the 2016 abor­tion case, Whole Woman’s Health. But even if I al­ways un­der­stood that the court could be par­ti­san, and ide­o­log­i­cal and po­lit­i­cal, I never doubted that it was in fact a court. I write this know­ing that I be­gan to cover the court only a few years af­ter a tele­vi­sion au­di­ence of more than twenty mil­lion had watched as Anita Hill, a young Black law pro­fes­sor, tes­ti­fied be­fore the Sen­ate Ju­di­ciary Com­mit­tee about sex­ual ha­rass­ment she said she ex­pe­ri­enced while work­ing for the nom­i­nee Clarence Thomas at the Equal Em­ploy­ment Op­por­tu­nity Com­mis­sion. For one gen­er­a­tion of women, af­ter that point the court had al­ready stopped be­ing a court.

The Thomas hear­ings left an in­deli­ble im­pres­sion on me, as they did on mil­lions of us. It’s part of why I went to law school. Thomas fa­mously and fu­ri­ously de­nied Hill’s metic­u­lous claims, char­ac­ter­iz­ing the en­tire process as a “high-tech lynch­ing for up­pity blacks.” By the time I started to cover the court, Thomas had gone fa­mously silent through­out oral ar­gu­ments and was writ­ing lone dis­sents that put him fur­ther to the ide­o­log­i­cal right than even Jus­tice An­tonin Scalia, the court’s con­ser­va­tive fire­brand. At that time, Thomas was dis­sent­ing alone, with a co­her­ent if rad­i­cal view of race, gen­der, crim­i­nal law, and the role of gov­ern­ment. Thirty years later, Thomas still sits on the US Supreme Court, and his ideas are as­cen­dant. It is no ex­ag­ger­a­tion to say that, ef­fec­tive 2022, this is the Clarence Thomas Court. Thirty years later, Pro­fes­sor Hill teaches so­cial pol­icy, law, and gen­der, sex­u­al­ity, and women’s stud­ies at Bran­deis Uni­ver­sity. Peo­ple like to say that they be­lieved her all along.

Watch­ing Joe Biden se­cure the pres­i­dency in 2020 was com­pli­cated for a lot of Amer­i­can women, in no small part be­cause of what had hap­pened, on his watch, to Anita Hill back in 1991. As Jill Abram­son and Jane Mayer re­ported ex­pan­sively in their 1994 book, Strange Jus­tice, the then sen­a­tor Biden con­trolled the process of the Clarence Thomas hear­ings in the Sen­ate Ju­di­ciary Com­mit­tee, and for mil­lions of women who watched those hear­ings play out, that process was clearly flawed and in­deed abu­sive. Re­pub­li­can mem­bers of the Sen­ate set out to trash and dis­credit Hill. Sen­a­tor Alan Simp­son, a Re­pub­li­can from Wyoming, rant­ing about “this sex­ual ha­rass­ment crap,” omi­nously threat­ened, “I re­ally am get­ting stuff over the tran­som about Pro­fes­sor Hill. . . . I’ve got let­ters hang­ing out of my pocket. I’ve got faxes. I’ve got state­ments from Tulsa say­ing: ‘Watch out for this woman.’ ” Or­rin Hatch, the Re­pub­li­can sen­a­tor from Utah, por­trayed her as a sex­ual de­viant who had lifted scenes from The Ex­or­cist to pro­duce false claims about Thomas. Hatch also in­sisted that any­one who could pro­duce al­le­ga­tions “so graphic and so crude and so out­ra­geous” as Hill’s was “not a per­son” but a “psy­cho­pathic sex fiend or per­vert.”

It all had the de­sired ef­fect. Polls taken at the time showed that af­ter the hear­ings only 29 per­cent of Amer­i­cans be­lieved Hill, be­cause the pre­vail­ing sense was that if her charges were true, she should have made them back when the al­leged sex­ual ha­rass­ment hap­pened. But when the “Year of the Woman” that fol­lowed pushed women into Con­gress and onto the Ju­di­ciary Com­mit­tee, pub­lic opin­ion started to change around an em­ploy­ment prob­lem that no­body had quite un­der­stood, much less named. We started to think dif­fer­ently about work and power and re­port­ing and why we don’t re­port. And for many Amer­i­can women, the Anita Hill tes­ti­mony came to stand as a quasi-le­gal, faux-neu­tral process of fact-find­ing that was it­self the mech­a­nism for fur­ther abuse. Pow­er­ful men had cre­ated a pow­er­ful sys­tem that looked as if it were fer­ret­ing out truth but was in­stead de­stroy­ing a woman’s life and rep­u­ta­tion while mak­ing no ef­fort to reach rea­soned con­clu­sions.

Biden’s Demo­cratic col­leagues in the Sen­ate later con­firmed to Abram­son and Mayer that he had been flat-out out­gunned and out­ma­neu­vered by Sen­ate Re­pub­li­cans wag­ing scorched-earth war­fare. Biden, an in­sti­tu­tion­al­ist and life­long be­liever in bi­par­ti­san­ship and due process, had strug­gled to be fair to both sides. Cyn­thia Hogan, one of the lawyers on Biden’s Sen­ate staff dur­ing the con­fir­ma­tion hear­ings, later told The Wash­ing­ton Post, “We got re­ally po­lit­i­cally out­played by the Re­pub­li­cans. . . . They came with a pur­pose, and that pur­pose was to de­stroy Anita Hill.” Ex­haus­tive re­port­ing even­tu­ally re­vealed that the process Biden had put in place was in­ad­e­quate and that it failed Hill en­tirely. As Elise Viebeck con­cluded in The Wash­ing­ton Post in 2019, “Biden failed to use the pow­ers af­forded to Sen­ate com­mit­tee chair­men to con­duct a ju­di­cious and thor­ough in­quiry into Hill’s al­le­ga­tions. He did not give full con­sid­er­a­tion to wit­nesses whose al­le­ga­tions seemed to cor­rob­o­rate her tes­ti­mony or curb the at­tacks and in­nu­endo lev­eled at her dur­ing the hear­ing.” Three other women were stand­ing by to tes­tify with sto­ries sim­i­lar to Hill’s, but they were never called. They were al­lowed only to sub­mit de­po­si­tions or writ­ten state­ments to the record at the last minute, which no­body cred­ited. Hill was iso­lated and left vul­ner­a­ble, which led to what was es­sen­tially a he said/she said con­test in which facts didn’t mat­ter nearly so much as the sub­jec­tive opin­ions of the viewer. In 2018, a new gen­er­a­tion of Amer­i­can women would have the chance to wit­ness that his­tory re­peat­ing it­self.

The way Hill tells the story, when she re­turned to her law school in 1991, af­ter her Sen­ate tes­ti­mony, she’d in­tended to take a few weeks to an­swer the stack of let­ters she’d re­ceived from vic­tims of sex­ual ha­rass­ment in her ab­sence. When I first in­ter­viewed her, back in 2014, she put it this way: “Ini­tially, I thought I would just go back and do what I do: com­mer­cial law and con­tracts. But within months I was get­ting so many re­quests that it just felt that there was a sin­cere ef­fort for peo­ple to un­der­stand sex­ual ha­rass­ment.” At the time, she told me she gave it two years. “[Twenty-three] years later,” she would tell me back in 2014, “I say to peo­ple I do know how to count. There just seem to be so many lay­ers to the prob­lem that we’re still try­ing to ad­dress them.”

For Pro­fes­sor Hill, even with the wa­ter­shed awak­en­ing of the #MeToo move­ment, in­sti­tu­tional progress on work­place sex­ual ha­rass­ment, bul­ly­ing, and abuse hap­pens in stut­ter steps. Progress is in­vari­ably fol­lowed by back­lash. Yet Hill has never stopped pub­lish­ing, speak­ing, ad­vo­cat­ing, teach­ing, and giv­ing in­ter­views, be­cause she un­der­stands that two steps for­ward, one step back, is still vastly prefer­able to one step for­ward, ten steps closer to The Hand­maid’s Tale.

Hill has made this point time and time again over the years, and we never quite seem to hear her: The il­lu­sion of a neu­tral fact-find­ing process that ob­scures ac­tual fact-find­ing is vastly worse than hav­ing no process at all. As Hill told The Wash­ing­ton Post in 2017, her hear­ing was a “trial that lacked all of the pro­tec­tions of a trial.” As she noted at the time, among its many ba­sic pro­ce­dural flaws was this: “Even if some­body had been sit­ting at the ta­ble with me, you couldn’t ob­ject, no­body could speak but me. . . . [I]t was worse than be­ing put on trial be­cause in a trial you’ve got le­gal pro­tec­tions.” The prob­lem, then and now, was that there was no ac­tual sys­tem in place to test the cred­i­bil­ity of Hill’s or Thomas’s claims. We re­lied on spec­ta­cle and our own sub­jec­tive feel­ings and pub­lic per­for­mance—dig­ni­fied in Hill’s case and rage­ful in Thomas’s—to de­cide for our­selves whom to be­lieve. That is—not to put too fine a point on it—how we once de­ter­mined whether one was a witch or if the earth was round. It’s why we have evolved to an un­der­stand­ing of truth and due process that de­mands com­pet­ing claims be tested by neu­tral fact find­ers and sub­jected to co­her­ent pro­ce­dural rules.

If you watched the Brett Ka­vanaugh con­fir­ma­tion hear­ings in Sep­tem­ber 2018, it was plain that there was no neu­tral fact finder and no agreed-upon pro­ce­dural rules. One of Ka­vanaugh’s ac­cusers (an­other was never called) sat at a ta­ble and po­litely told the truth as she re­called it. Then Ka­vanaugh was al­lowed to scream his refu­ta­tion and in­sult those who ques­tioned him. What­ever fact-find­ing that oc­curred “back­stage” was never re­vealed. Ground­hog Day, sep­a­rated by twenty-seven years.

Not too long af­ter Sen­a­tor Chuck Grass­ley held his hear­ing on sex­ual abuse in the ju­di­ciary, hold­ing forth on how ap­palling it was that fed­eral judges ac­cused of wrong­do­ing could re­tire with their full fed­eral pen­sions in­tact, he would con­vene the con­fir­ma­tion hear­ing for Brett Ka­vanaugh. Jus­tice An­thony Kennedy, a stal­wart con­ser­va­tive on the high court who had in­her­ited the role of its “swing jus­tice” af­ter San­dra Day O’Con­nor stepped down, was a re­li­able con­ser­va­tive vote on ex­ec­u­tive power, crim­i­nal jus­tice, polic­ing, and guns, but he had proven un­pre­dictably cen­trist in a hand­ful of ar­eas, in­clud­ing af­fir­ma­tive ac­tion, gay rights, the rights of ju­ve­nile crim­i­nal de­fen­dants, and of course abor­tion. The in­stant Kennedy an­nounced his re­tire­ment, it was clear that un­like the re­place­ment of Jus­tice An­tonin Scalia with Neil Gor­such in 2017, this would be a wa­ter­shed ap­point­ment. Trump’s next ap­pointee could swing the court to the far right for a gen­er­a­tion.

Ka­vanaugh, as we have seen, au­di­tioned to get onto Trump’s short list with his opin­ion in the ap­peal of a preg­nant mi­grant teen at the bor­der. He’d worked on the Bush team—along with John Roberts and Amy Coney Bar­rett—in the case that be­came Bush v. Gore in 2000. He also worked un­der Ken Starr on the Bill Clin­ton im­peach­ment re­port, ul­ti­mately draft­ing a memo that ex­co­ri­ated Clin­ton for his im­moral­ity and urged sex­u­ally graphic ques­tions to be asked of the pres­i­dent in­clud­ing “If Mon­ica Lewin­sky said you in­serted a cigar into her vagina, while you were in the Oval Of­fice area, would she be ly­ing?” and “If Mon­ica Lewin­sky says that you had phone sex with her on ap­prox­i­mately 15 oc­ca­sions, would she be ly­ing?” Ka­vanaugh had also re­port­edly been less than com­pletely can­did with the Sen­ate Ju­di­ciary Com­mit­tee in an­swers about his work in the Bush ad­min­is­tra­tion dur­ing his con­fir­ma­tion hear­ings for the fed­eral ap­peals court in 2006.

But Jus­tice Kennedy wanted Ka­vanaugh, and so did the pres­i­dent. His hear­ings should have been straight­for­ward, but as the sum­mer of 2018 pro­gressed, re­porters be­gan to hear ru­mors that a #MeToo story was bub­bling con­nected to Judge Ka­vanaugh. On Sep­tem­ber 14, The New Yorker’s Jane Mayer and Ro­nan Far­row re­ported that Sen­ate Democrats had re­ceived an anony­mous al­le­ga­tion from a woman claim­ing that Ka­vanaugh, as a high school stu­dent, had “held her down, and . . . at­tempted to force him­self on her” at a house party in Mary­land in 1982. Two days later, that woman, Chris­tine Blasey Ford, came for­ward and con­firmed her al­le­ga­tion on the record. Shortly af­ter, an­other ac­cuser, Deb­o­rah Ramirez, a Yale un­der­grad­u­ate class­mate of Ka­vanaugh’s, al­leged pub­licly that he had ex­posed him­self to her while drunk. A third came for­ward with claims that did not seem cred­i­ble at the time.

For the women who had come for­ward a few months ear­lier with claims about his for­mer men­tor Kozin­ski, Ka­vanaugh’s in­sis­tence that he never saw any­thing or knew any­thing was dou­bly desta­bi­liz­ing. As Heidi Bond would later write in Slate, the only way Ka­vanaugh could have been com­pletely un­aware of his for­mer boss and col­league’s fond­ness for porn and dirty jokes in cham­bers “would be if he had am­ne­sia about the clerk­ship in its en­tirety.” As Ka­vanaugh told a group of stu­dents in 2014 about his law school years, they had a motto around the school’s drink­ing cul­ture: “What hap­pens on the bus stays on the bus.” Hav­ing buried the in­ves­ti­ga­tion into Kozin­ski, the Ju­di­ciary Com­mit­tee had en­sured that we would never know what hap­pened in those cham­bers, or on the bus.

Chris­tine Blasey Ford, a pro­fes­sor of psy­chol­ogy with a deep un­der­stand­ing of neu­ro­bi­ol­ogy, would come to say un­der oath be­fore the Ju­di­ciary Com­mit­tee that Ka­vanaugh at­tempted to rape her at a party while they were both teenagers. In her open­ing tes­ti­mony, she said of Ka­vanaugh’s friend Mark Judge, who was also drunk and in the room, “Mark was urg­ing Brett on, al­though at times he told Brett to stop. A cou­ple of times I made eye con­tact with Mark and thought he might try to help me, but he did not.” Judge, hav­ing au­thored a book in 1997 about his youth­ful black­out drink­ing that in­cluded a char­ac­ter named “Bart O’Ka­vanaugh” who “puked in some­one’s car” and “passed out on his way back from a party,” wasn’t called to par­tic­i­pate in the in­quiry. One of Judge’s for­mer girl­friends, Eliz­a­beth Ra­sor, told The New Yorker that he had “told her ashamedly of an in­ci­dent that in­volved him and other boys tak­ing turns hav­ing sex with a drunk woman.” In a let­ter to the com­mit­tee, Judge claimed to re­call noth­ing at all of the events and de­clined to speak pub­licly be­cause “as a re­cov­er­ing al­co­holic and a can­cer sur­vivor, I have strug­gled with de­pres­sion and anx­i­ety. As a re­sult, I avoid pub­lic speak­ing.” Judge would spend the hear­ing holed up at a friend’s beach house in Del­a­ware.

In The Ed­u­ca­tion of Brett Ka­vanaugh, the 2019 ac­count by Robin Pogre­bin and Kate Kelly, the two New York Times re­porters combed through all avail­able ev­i­dence, in­clud­ing re­ports ig­nored by the FBI, and ar­rived at their con­clu­sion that Ka­vanaugh was a stu­dent partier and an ath­lete who drank too much. (He scored his big break clerk­ing for Judge Alex Kozin­ski when the law pro­fes­sor who rec­om­mended him de­scribed him as a “good stu­dent” and not a “great one,” but added, “I got to know his char­ac­ter from bas­ket­ball.”) The au­thors found no smok­ing gun but ul­ti­mately con­cluded that both Ford and Ramirez were cred­i­ble and were likely mis­treated by Ka­vanaugh as teenagers. Their con­clu­sion was also that over the next thirty-five years he be­came a bet­ter per­son and a men­tor to young women.

When Dr. Ford came for­ward in the sum­mer of 2018, Pro­fes­sor Hill wrote a mea­sured and lawyerly opin­ion piece in The New York Times, sug­gest­ing the types of for­mal mech­a­nisms and pro­to­cols the Ju­di­ciary Com­mit­tee might adopt in or­der to do a bet­ter job with the up­com­ing hear­ing than it had done with hers. As she pointed out, the stakes were as high as they had been in 1991: “The in­tegrity of the court, the coun­try’s com­mit­ment to ad­dress­ing sex­ual vi­o­lence as a mat­ter of pub­lic in­ter­est, and the lives of the two prin­ci­pal wit­nesses who will be tes­ti­fy­ing hang in the bal­ance.” The Re­pub­li­can-con­trolled Sen­ate in­stead opted to cull from the worst el­e­ments of the Thomas-Hill de­ba­cle while adding a few pro­ce­dural mea­sures that would make it yet worse.

When the Ka­vanaugh hear­ings opened, there had been no neu­tral out­side in­ves­ti­ga­tion of Dr. Ford’s claims, and the pro­ceed­ings them­selves were trun­cated and rushed. Many Demo­cratic ac­tivists fret­ted pri­vately, as Vanita Gupta has in­di­cated, that the bat­tle was un­winnable in the Re­pub­li­can-con­trolled Sen­ate and would en­gen­der an elec­toral back­lash in the midterms. Women’s groups, know­ing that the Re­pub­li­cans would not de­fect on Ka­vanaugh’s nom­i­na­tion, elected to press ahead with their op­po­si­tion.

Re­pub­li­can sen­a­tors, all eleven of them men, were too afraid to at­tack Dr. Ford per­son­ally, and thus had hired Rachel Mitchell, an Ari­zona sex crimes pros­e­cu­tor, to ques­tion the wit­ness. Mitchell did so from a small ta­ble po­si­tioned be­low their dais. Mitchell spent lit­tle time on the al­leged as­sault, try­ing to catch Ford out on mat­ters that would im­pugn her cred­i­bil­ity, such as that she’s trav­eled on air­planes de­spite her fear of fly­ing. Ford—a white, PhD-ed­u­cated mother of two from Palo Alto—tes­ti­fied halt­ingly, po­litely, over four hours, in a voice so tiny she was dif­fi­cult to hear. “In­deli­ble in the hip­pocam­pus is the laugh­ter, the up­roar­i­ous laugh­ter be­tween the two,” she said, de­scrib­ing the mem­ory of Ka­vanaugh and Judge mock­ing her.

Even­tu­ally, the Re­pub­li­can Ju­di­ciary Com­mit­tee chair­man, Grass­ley, cut Mitchell’s ques­tion­ing of Brett Ka­vanaugh shortly af­ter his tes­ti­mony had be­gun, at which point the men on the com­mit­tee re­took con­trol and ig­nored her. The com­mit­tee’s Re­pub­li­can ma­jor­ity also de­clined to give a pub­lic hear­ing to Ramirez, who had come for­ward to re­port an in­ci­dent of in­ap­pro­pri­ate sex­ual touch­ing that she al­leged had hap­pened at Yale, or to her many class­mates seek­ing to cor­rob­o­rate her story. One thing that had changed since the Thomas hear­ings? The pres­ence of sev­eral ex­tra­or­di­nary women lawyers on the Democrats’ side of the hear­ing, in­clud­ing Sen­a­tors Ka­mala Har­ris, Amy Klobuchar, and Mazie Hi­rono. In her al­lot­ted time, Sen­a­tor Klobuchar asked Ka­vanaugh a ques­tion about whether he had ever had so much to drink that he couldn’t re­call what hap­pened. Ka­vanaugh’s re­sponse was to de­mand whether Klobuchar had a drink­ing prob­lem her­self. Rock, meet bot­tom.

Be­cause no mean­ing­ful in­de­pen­dent in­ves­ti­ga­tion had been con­ducted and key wit­nesses with ma­te­rial in­for­ma­tion were never asked to tes­tify, the fact-find­ing part of the hear­ing turned on whom you liked bet­ter. Af­ter the hear­ing, the lim­ited FBI in­ves­ti­ga­tion—ex­tended for a few ad­di­tional days in a feint to­ward bi­par­ti­san­ship and a stated de­sire to get to the bot­tom of the com­pet­ing claims—was con­trolled by the same en­ti­ties that wanted Ka­vanaugh seated. Mul­ti­ple wit­nesses with ma­te­rial ev­i­dence left mes­sages for the FBI that went un­re­turned. Twenty wit­nesses wish­ing to speak about the Ramirez al­le­ga­tions were not con­tacted. Ka­vanaugh used the lack of cer­tainty both to pro­claim that he had been ex­cul­pated and to threaten re­venge on the groups and in­di­vid­u­als who had sup­ported Dr. Ford dur­ing his tes­ti­mony at the hear­ings. He was swiftly con­firmed and sworn in. Ka­vanaugh was fifty-three at the time. He will likely serve for thirty years or more.

I was in the Sen­ate cham­ber when both Dr. Ford and Judge Ka­vanaugh tes­ti­fied. There were a small num­ber of jour­nal­ists present, and af­ter Dr. Ford was done with her tes­ti­mony, the con­sen­sus was that she was com­pletely cred­i­ble and poised. “This is a dis­as­ter for the Re­pub­li­cans,” said Fox News’s Chris Wal­lace in the break be­tween the two wit­nesses. When Ka­vanaugh be­gan to slam his binder and shout that the pro­ceed­ing was all about Democrats seek­ing “re­venge on be­half of the Clin­tons” and promis­ing the Demo­cratic sen­a­tors, “You sowed the wind for decades to come,” one of my sons texted me from his high school class­room to ask whether I was per­fectly safe in a room with some­one who ap­peared un­sta­ble. I texted back that the nom­i­nee was be­ing shouty to im­press the shouty pres­i­dent. That I was of course per­fectly safe in that room. And of course, af­ter that, none of us would be per­fectly safe at all.

The pub­lic polling fol­low­ing the Ka­vanaugh hear­ing re­vealed at least one sea change from 1991. Ac­cord­ing to Kelly and Pogre­bin, af­ter the hear­ings, the ma­jor­ity of vot­ers polled by the re­search firm Per­ryUn­dem be­lieved Ka­vanaugh had lied about his ac­tions as a teenager. Forty-nine per­cent of re­spon­dents had an un­fa­vor­able im­pres­sion of him, as com­pared with the 29 per­cent who had a fa­vor­able one. Thirty-five per­cent said the Sen­ate did the right thing by con­firm­ing him; 41 per­cent dis­agreed. Pub­lic opin­ion polling, to be sure, does not rep­re­sent truth. But pub­lic un­der­stand­ing about the nu­ance of mem­ory, re­port­ing, power, and gen­der had at least come a long way since the Thomas con­fir­ma­tion. Be­fore the vote on Ka­vanaugh could be held, a woman, Ana Maria Archila, con­fronted Ari­zona sen­a­tor Jeff Flake in an el­e­va­tor. She had her­self re­mained silent about a sex­ual as­sault that had hap­pened more than thirty years ear­lier. “This is not tol­er­a­ble,” Archila told Flake as the tele­vi­sion cam­eras rolled. “You have chil­dren in your fam­ily. Think about them.”

In her open­ing state­ment, Dr. Ford had de­scribed why she’d been un­will­ing to go pub­lic ear­lier with her high school mem­o­ries. “I be­lieved that if I came for­ward, my voice would be drowned out by a cho­rus” of pow­er­ful po­lit­i­cal men who would say any­thing to pro­tect her al­leged at­tacker. Af­ter the hear­ing it was clear that she had been pre­scient. “Judge Ka­vanaugh showed Amer­ica ex­actly why I nom­i­nated him,” tweeted Pres­i­dent Trump. Ka­vanaugh’s out­rage, the open threats, the in­sults hurled at com­mit­tee Democrats, was all per­fect come­up­pance for #MeToo as a move­ment. As Adam Ser­wer would write in The At­lantic, “Those who chanted ‘Lock her up!’ for more than two years have re­dis­cov­ered the prin­ci­ple that peo­ple are in­no­cent un­til proved guilty.”

With Trump and Ka­vanaugh claim­ing that he’d been for­mally vin­di­cated, it was time for the death threats and in­tim­i­da­tion against Dr. Ford to be­gin. At a rally in Oc­to­ber in Mis­sis­sippi, Pres­i­dent Trump said that the en­dur­ing les­son of #MeToo was that “it’s a very scary time for young men in Amer­ica when you can be guilty of some­thing you may not be guilty of.” He be­gan mock­ing Dr. Ford about her lack of a de­tailed mem­ory of events. “ ‘How did you get home?’ ‘I don’t re­mem­ber’ ”—he whis­pered in a baby girl voice—“ ‘How’d you get there?’ ‘I don’t re­mem­ber’ ” (same baby girl voice). The crowd roared, “Lock her up, lock her up.” Only days ear­lier the pres­i­dent had been quoted say­ing he found Dr. Ford’s tes­ti­mony “very cred­i­ble.”

But pub­lic opin­ion polling is also not a truth-seek­ing process. And that is where we per­sist in mis­ap­pre­hend­ing what #MeToo had hoped to achieve. We might have wit­nessed a cul­ture shift be­tween the spec­ta­cle of pub­lic tes­ti­mony of Anita Hill and Chris­tine Blasey Ford around who should be be­lieved and why, but the fac­tual in­quiry as to what ac­tu­ally hap­pens be­tween men and women in al­legedly abu­sive sit­u­a­tions still re­mained sus­pended in time, sealed in am­ber, along with the big shoul­der pads and the shabby in­sults of 1991. The le­gal philoso­pher Martha Nuss­baum has writ­ten in Citadels of Pride: Sex­ual Abuse, Ac­count­abil­ity, and Rec­on­cil­i­a­tion that the fail­ure to scaf­fold the #MeToo move­ment with le­gal pro­cesses and checks has meant that com­pet­ing forces roam around de­mand­ing pun­ish­ment, with­out a mech­a­nism for as­sess­ing or even un­der­stand­ing the crime. “#MeToo has helped win ac­count­abil­ity,” she writes. “But the fact that so much of the #MeToo move­ment is so­cial rather than le­gal cre­ates a prob­lem: how to se­cure jus­tice and pro­tect equal dig­nity when pun­ish­ment is meted out not by im­par­tial le­gal in­sti­tu­tions but by sham­ing and stigma­ti­za­tion.”

Dr. Ford and Pro­fes­sor Hill cre­ated so­cial change. But where was the law? When sham­ing and rep­u­ta­tional and pro­fes­sional stigma are meted out fol­low­ing per­for­ma­tive in­ves­ti­ga­tions—in­ves­ti­ga­tions that fea­ture the the­ater of cross-ex­am­i­na­tion and tes­ti­mony un­der oath—it cre­ates the false im­pres­sion that fact-find­ing has oc­curred when it has not. Those who per­sis­tently de­manded that Judge Ka­vanaugh re­ceive “due process” didn’t un­der­stand that he wasn’t be­ing de­prived of any rights; he was in­ter­view­ing for a job. And those who be­lieved that con­fir­ma­tion hear­ing rep­re­sented “due process” failed to un­der­stand that what they had watched was a TV show that passed it­self off as a le­gal event. That is the real dan­ger Hill has tried to warn about since 1991. Pro­cesses that pre­tend to be about truth but that are in fact about ob­scur­ing truth un­der the levers of power and ac­cess to power vic­tim­ize both ac­cusers and vic­tims. And that part—the ac­tual process—is what needs to change.

Dr. Ford lives with the out­come to this day. She has moved her fam­ily mul­ti­ple times and con­tends with the trauma of threats of vi­o­lence. One year af­ter the con­fir­ma­tion hear­ings, Hill told The New York Times that one of the cen­tral prob­lems with the Sen­ate’s con­fir­ma­tion process for Ka­vanaugh was that “they should’ve had a process in place for re­ceiv­ing com­plaints. They had none.” In a pod­cast done in 2021, Ford told Hill that even af­ter she de­cided to come for­ward, she couldn’t fig­ure out “who I was sup­posed to call, who I was sup­posed to con­tact.” She added that there’s no HR de­part­ment in gov­ern­ment, and no­body to con­tact as a cit­i­zen, that she had friends sug­gest­ing she needed an at­tor­ney. But “I didn’t see why I needed an at­tor­ney be­cause I didn’t think I had done any­thing wrong.” Both Ford and Hill pointed out that no­body had told them the in­ves­ti­ga­tion would stop at their tes­ti­mony, that no other ev­i­dence would be as­sessed.

Hill, as a lawyer and pro­fes­sor, wor­ries about the pub­lic per­cep­tion of the court, an in­sti­tu­tion that re­lies wholly upon pub­lic ac­cep­tance for its con­tin­ued le­git­i­macy. As she told me in an in­ter­view, “Can you imag­ine that we are putting judges on the bench—not just on the Supreme Court, but on the trial court benches, on the courts of ap­peals benches—who may in fact have com­plaints against them, but where peo­ple are not able to come for­ward be­cause they don’t have a sys­tem to come for­ward in?” In part, that is be­cause a tranche of ju­di­cial ethics com­plaints filed against Ka­vanaugh were dis­missed by a fed­eral court in 2019, af­ter he was sworn in at the Supreme Court. The Com­mit­tee on Ju­di­cial Con­duct and Dis­abil­ity of the Ju­di­cial Con­fer­ence of the United States de­ter­mined that as soon as Ka­vanaugh was el­e­vated to the high court, it had no ju­ris­dic­tion to probe “com­plaints against a judge who has re­signed his or her ju­di­cial of­fice and there­after been con­firmed as a Jus­tice of the Supreme Court.” In plain Eng­lish? No­body has ju­ris­dic­tion to in­ves­ti­gate a sit­ting jus­tice. That is pre­cisely why Hill ad­vo­cated for a thor­ough in­ves­ti­ga­tion be­fore­hand.

On Oc­to­ber 5, 2018, Su­san Collins, the Re­pub­li­can sen­a­tor from Maine, was con­scripted be­cause of her gen­der to of­fer a per­fectly in­co­her­ent ex­pla­na­tion for why she would be vot­ing to con­firm Brett Ka­vanaugh. While she found Dr. Ford’s tes­ti­mony to be “sin­cere, painful, and com­pelling” and while she in­sisted that she did “be­lieve that she is a sur­vivor of a sex­ual as­sault and that this trauma has up­ended her life,” she con­cluded that the lack of “cor­rob­o­rat­ing ev­i­dence” meant Ka­vanaugh was off the hook. She said that al­though “this is not a crim­i­nal trial, and I do not be­lieve that claims such as these need to be proved be­yond a rea­son­able doubt,” she also wanted to be on record as some­one who be­lieved the “#MeToo move­ment is real.” Collins said, “It mat­ters. It is needed” and that “rape and sex­ual as­sault are less likely to be re­ported to the po­lice than other forms of as­sault” and that “we must lis­ten to sur­vivors, and ev­ery day we must seek to stop the crim­i­nal be­hav­ior that has hurt so many.” Then she sided with Ka­vanaugh. Lost some­where in this hour-long speech, to which logic had clearly gone to die hor­ri­bly, was any the­ory of how one could be­lieve the ac­cuser, and also the ac­cused, and also all the wit­nesses, and also all women, and also in the rule of law. There was no stan­dard of proof, there was no way to learn what had hap­pened, and no­body had both­ered to try. As com­pared with the male sen­a­tors who had once de­rided Anita Hill as a sex-ob­sessed ero­to­ma­niac, Collins’s per­for­mance was, in one sense, progress. But the im­pli­ca­tion that one should be­lieve all women with­out ever find­ing out what had hap­pened to them show­cased the stalled-out dis­course of #MeToo. The cul­ture has boldly moved from sham­ing the ac­cuser be­fore dis­count­ing her to feel­ing sorry for the ac­cuser be­fore dis­count­ing her. Baby steps.

• • •

In 2019, af­ter pres­i­den­tial can­di­date Joe Biden tele­phoned her to apol­o­gize for the way the 1991 Sen­ate Ju­di­ciary Com­mit­tee had han­dled the process for the Thomas hear­ings, Anita Hill again in­sisted that none of this was a mat­ter of per­sonal for­give­ness and that it couldn’t be cor­rected by ex­pres­sions of em­pa­thy for her pain. The prob­lem was, as it al­ways has been, a de­fi­cient mech­a­nism for dis­cov­er­ing the truth. Writ­ing once again for The New York Times, Hill ar­gued that in Amer­ica, for­mal sys­tems for re­port­ing, in­ves­ti­gat­ing, and re­dress­ing sex­ual ha­rass­ment and abuse con­tinue to be in­ad­e­quate. “Af­ter Dr. Blasey’s coura­geous tes­ti­mony, many saw the cal­lous and ham-handed ap­proach of Sen­a­tor Charles Grass­ley of Iowa, the com­mit­tee’s chair­man, as a re­play of the Thomas hear­ings,” she wrote. “Even worse, a new gen­er­a­tion was forced to con­clude that pol­i­tics trumped a ba­sic and es­sen­tial ex­pec­ta­tion: that claims of sex­ual abuse would be taken se­ri­ously.”

If you are a per­son who be­lieves that in a shape-shift­ing world, words, facts, and law mat­ter, and that they mat­ter most par­tic­u­larly to women and vul­ner­a­ble com­mu­ni­ties that rely on the rule of law to vin­di­cate their rights, the Thomas and Ka­vanaugh hear­ings are in fact worse than no process at all. They are show tri­als, with fore­or­dained out­comes, that give the im­pri­matur of a le­gal in­quiry, with none of its guar­an­tees. The threat of “Lock her up”—so chill­ing to women who heard it hurled at Hillary Clin­ton, Nancy Pelosi, and Chris­tine Blasey Ford—is the threat that what looks like law will be­come the mech­a­nism for un­do­ing the law. For the mil­lions of Amer­i­can women who wit­nessed Ford’s tes­ti­mony and Ka­vanaugh’s re­sponse, the icy re­al­iza­tion that male en­ti­tle­ment, threats, and fury could still out­run and over­mas­ter the truth, even in a process that pur­ported to sur­face the truth, was an­other earth­quake in the Trump years. Law or the trap­pings of law could be used to si­lence and side­line women. That isn’t a fight about equal­ity; it’s a fear of ret­ri­bu­tion.

When Biden apol­o­gized for Hill’s pain, he per­formed a ver­sion of the dance that now passes for le­gal con­clu­sions. Due process is for men; women can mostly just hope for sym­pa­thy. In a 2021 pod­cast con­ver­sa­tion be­tween Hill and Ford, Hill noted that the so­lu­tion here is not for the next #MeToo vic­tim to walk head­long into the wood chip­per and then the next one af­ter that. “I re­ject the idea that it will change if more women step up, I dis­agree. We need bet­ter pro­cesses and sys­tems.” Nei­ther Hill nor Ford wants to be told they were cred­i­ble and to move on. Both just wanted to en­sure that sus­pected sex­ual ha­rassers and abusers are not the ul­ti­mate ar­biters of what is law­ful and what is not. Claims of sex­ual abuse re­main dead se­ri­ous, and our sys­tems to re­dress them are not work­ing. Among other things, Hill cited a re­cent sur­vey by the De­part­ment of De­fense show­ing that sex­ual ha­rass­ment and as­sault in the mil­i­tary rose by 38 per­cent from 2016 to 2018, and CDC re­ports that one in three women and one in four men will ex­pe­ri­ence sex­ual vi­o­lence dur­ing their life­times. Ac­cord­ing to the EEOC, claims of sex­ual ha­rass­ment in­creased by more than 12 per­cent from 2017 to 2018. While the world fo­cused once again, for a fleet­ing mo­ment, on an in­di­vid­ual woman’s pain, Hill called not for a rev­o­lu­tion but for bet­ter ma­chin­ery for test­ing what hap­pened: she is not say­ing that all women tell the truth or that all men are preda­tors. What she calls for is hardly rad­i­cal: the kind of sys­tem we use to re­dress ev­ery other harm we deem to be a so­cial ill.

Pro­fes­sor Hill is a sys­tems per­son, a process per­son, a small-bore struc­tures per­son. Like so many of the women in this book, she is one of the most con­ser­va­tive rad­i­cals you will ever come across. As a re­sult of her own brush with the Sen­ate Ju­di­ciary Com­mit­tee, Hill has been tapped to work on #MeToo is­sues on mul­ti­ple com­mis­sions on work­place equal­ity and sex­ual abuse. She’s writ­ten mul­ti­ple books, in­clud­ing an au­to­bi­og­ra­phy, and has been the sub­ject of a ma­jor doc­u­men­tary as well as a Hol­ly­wood film. Still, what seems to ex­cite her most is a high-oc­tane dis­cus­sion of ar­cane re­port­ing and in­ves­ti­ga­tory sys­tems. Hill hardly be­lieves that the law alone can right this bal­ance be­tween women’s pain and ac­count­abil­ity. It’s just that it’s her so­lu­tion. “Part of the rea­son I think the pro­cesses and sys­tems alone can’t get us there,” she told me in an in­ter­view, “is be­cause I think the pro­cesses and sys­tems are in such bad shape.” But even when the law is func­tion­ing cor­rectly, it’s al­ways go­ing to be in a footrace against the larger cul­ture. “For me,” she says, “I al­ways go back to things like, think the South, in Mis­sis­sippi in the 1960s, where there were these break­through mo­ments in the law. . . . And it was al­most as though this was what’s go­ing to change things. But then there was the cul­ture. And it’s a strong, in­vis­i­ble force. The law is much more vis­i­ble. It has build­ings. It has court­houses. It’s got lawyers; it’s got par­ties, plain­tiffs and de­fen­dants. But these cul­tural things are just so enor­mous. And they are of­ten in­vis­i­ble in the way that they in­ter­act with the law.”

In Anita Hill’s view, the law alone can’t make change. Even dur­ing her own hear­ings, she told me, al­though Ti­tle VII had been a part of the Civil Rights Act of 1964, “even late in 1991, peo­ple had no idea that sex­ual ha­rass­ment was a real thing that you could ac­tu­ally sue some­one for. Some­thing was hap­pen­ing to in­ter­fere. And it wasn’t as though there hadn’t been cases. There were cases. But there hadn’t been a cul­ture that ac­tu­ally even talked about those cases.” There was a law, but no­body be­lieved it. She told me, “When I was teach­ing em­ploy­ment law in the ’80s, there were three cases in the case­book that I was us­ing. In this huge, thick case­book on em­ploy­ment law, there were three blurbs of cases on sex­ual ha­rass­ment.” And this, she said, was af­ter the 1970s, af­ter the gen­der the­o­rist Catharine MacK­in­non “had wo­ken us all up to it. There was still, even the peo­ple who were talk­ing about the very area of law that it sits in, were not talk­ing about it.”

And why is that? Hill be­lieves it’s “largely be­cause we just don’t value women’s ex­pe­ri­ences.”

There is for­mal equal­ity. That is the thing Ruth Bader Gins­burg started her ca­reer push­ing for: women should be al­lowed to serve on ju­ries; they should be able to in­herit prop­erty; they should be al­lowed to serve in the mil­i­tary and own credit cards. But what Hill is con­tem­plat­ing is some­thing be­yond what she imag­ined even when she started law school in the 1970s. “We find our­selves fur­ther be­hind be­cause we are, ev­ery day, learn­ing how far be­hind we were,” she told me. “I grad­u­ated from law school in 1980. And it was a decade in which a record num­ber of women be­came law stu­dents. I think by the end of the ’60s . . . some­thing like 7 to 8 per­cent of law stu­dents were women. And by the end of the ’70s, that num­ber was up to maybe a third or so.” She told me that if you looked around, even then, “you thought things look pretty good, like you’re a lit­tle bit off on this tra­jec­tory. But then when you get to the ’90s and even to­day, and you re­al­ize, hey, those women, they’re not in po­si­tions of power. There’s stag­na­tion in terms of ca­reers.”

For Anita Hill, look­ing back, the stag­na­tion was in some sense a fail­ure of le­gal imag­i­na­tion: “I think the law framed a suc­cess as ‘will women be hired in a po­si­tion? So, hey, you got hired, there you go. That’s it.’ The law didn’t nec­es­sar­ily count on pay dis­crim­i­na­tion or preg­nancy dis­crim­i­na­tion; even in 1964, when the fram­ing started, it didn’t count on sex­ual ha­rass­ment.” For Hill, the real rea­son women can­not seem to catch up is that “we didn’t even know what equal­ity was. We thought it was as the law had framed it.”

For the mil­lions of Amer­i­can women who watched the Ka­vanaugh hear­ings in dis­may, for the pro­test­ers in the Sen­ate cham­ber in 2018, dressed up in the blood­red gowns and white hats of Mar­garet At­wood’s Hand­maid’s Tale, the feel­ing was that we were all mov­ing back­ward to an Amer­ica in which women had no con­trol over their own bod­ies, or to a dystopian fu­ture in which their au­ton­omy and dig­nity would for­ever be de­ter­mined by pow­er­ful men. In Sep­tem­ber 2021, af­ter Amy Coney Bar­rett be­came the third Don­ald Trump ap­pointee on the Supreme Court, and a six-jus­tice su­per­ma­jor­ity ap­peared ready to strike down Roe v. Wade, 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 Lyft driv­ers or men­tal health coun­selors, would re­sult in at least $10,000 re­wards to any cit­i­zen, any­where, dep­u­tized to bring suit. All pri­vate en­force­ment was re­moved from the state and put into the hands of vig­i­lantes. Sud­denly Uber driv­ers, high school coun­selors, and in­sur­ance com­pa­nies could be sub­ject to mul­ti­ple civil law­suits, forced to pay out the boun­ties again and again. The day af­ter the law went into ef­fect, by a 5–4 mar­gin, and in an un­signed one-para­graph or­der, the Supreme Court re­fused to en­join it, cit­ing “com­plex and novel” pro­ce­dural prob­lems.

The day the law went into ef­fect, all abor­tions af­ter six weeks ef­fec­tively stopped. Vic­tims of rape, in­cest, and vi­o­lence must ei­ther travel out of state to ter­mi­nate preg­nan­cies or carry to term. The State of Texas had nul­li­fied Roe v. Wade, and the Supreme Court had rat­i­fied it. In De­cem­ber 2021, af­ter for­mal brief­ing and ar­gu­ments in the same case, the court al­lowed the law to stand again. Brett Ka­vanaugh and Amy Coney Bar­rett, vot­ing with the ma­jor­ity, may feel great sym­pa­thy for these women, but it seems their hands were tied. That is how re­pro­duc­tive free­dom ended for 10 per­cent of the women of child­bear­ing age in Amer­ica, through cow­ardice dressed up as sym­pa­thy—the same le­gal out­come Su­san Collins showed for Chris­tine Blasey Ford. Sym­pa­thy, em­pa­thy, “I be­lieve you,” and “she seemed very cred­i­ble” are not le­gal out­comes. They are cold com­fort in­tended to mol­lify you as ac­tual power slips away.

What Brett Ka­vanaugh would do to women’s free­dom and equal­ity was not in doubt dur­ing his con­fir­ma­tion hear­ings; his record was clear. The added in­sult—that no­body would ever in­ves­ti­gate the claims against him—was al­most be­yond bear­ing. For weeks and then months af­ter he was in­stalled at the Supreme Court, I stopped at­tend­ing oral ar­gu­ments. I would pre­tend to have a cold or tell my ed­i­tors that I was work­ing on some­thing else. At some point, it be­came clear to me that I couldn’t go back into the build­ing, couldn’t pre­tend that some­thing about the con­fir­ma­tion hear­ing had “cleared” him, and couldn’t pre­tend that he hadn’t threat­ened at that hear­ing that any­one who had op­posed him would “reap the whirl­wind.” As con­ven­tional and re­spect­ful as I had al­ways been about the norms of ci­vil­ity at the court, the idea that, like Thomas, Ka­vanaugh was now cleansed of any al­le­ga­tions be­cause a ma­jor­ity of the Sen­ate de­clined to eval­u­ate them wasn’t just a fail­ure of law or process. It was gaslight­ing.

In Oc­to­ber 2019, a year af­ter the hear­ings, I fi­nally wrote an ar­ti­cle ex­plain­ing why I would no longer cover the Supreme Court from in­side the build­ing. It was a bru­tal and pub­lic breakup. I ex­plained that “my job as a Supreme Court re­porter used to be to ex­plain and trans­late the in­sti­tu­tion to peo­ple locked out of its daily pro­ceed­ings” and that this project had been “swathed in black robes and vel­vet cur­tains, in po­lite ques­tions, and case names and at least the ap­pear­ance that this was all cool sci­ence, as op­posed to blood sport.”

I noted that, a year later, polling had shifted in Ka­vanaugh’s fa­vor, the other jus­tices had wel­comed him, and he was be­ing feted in Wash­ing­ton. In­deed, be­cause his vote mat­tered so much now, I wrote, “the game is for­give­ness and for­get­ting, in ser­vice of long-term tac­ti­cal ap­pease­ment.” Two years later, Ka­vanaugh is the me­dian vote at the court, the swing vote poised be­tween two camps of four. Chief Jus­tice John Roberts is now con­sid­ered a lib­eral. Ev­ery brief is writ­ten to ap­peal to Ka­vanaugh; oral ar­gu­ments are pitched to his pref­er­ences. He is the most pow­er­ful ju­rist on the court and it’s in ev­ery­one’s in­ter­est to pre­tend that Chris­tine Blasey Ford never hap­pened, that he is a cham­pion of women’s equal­ity, and that what­ever that was in 2018 is well and truly be­hind us. As I wrote at the time, “That is the prob­lem with power: It in­cen­tivizes for­give­ness and for­get­ting. . . . The prob­lem with power is that there is no speak­ing truth to it when it holds all the cards.”

I loved my job be­yond words. I be­lieved in the courts be­yond all things. But as I also con­fessed one year af­ter the con­fir­ma­tion hear­ing,

It is not my job to de­cide if Brett Ka­vanaugh is guilty. It’s im­pos­si­ble for me to do so with in­com­plete in­for­ma­tion, and with no process for test­ing com­pet­ing facts. But it’s cer­tainly not my job to ex­on­er­ate him be­cause it’s good for his ca­reer, or for mine, or for the fu­ture of an in­de­pen­dent ju­di­ciary. Pick­ing up an oar to help Amer­ica get over its sins with­out al­low­ing for truth, apol­ogy, or rec­on­cil­i­a­tion has not gen­er­ally been good for the pur­suit of jus­tice.

I was at pains to praise my col­leagues in the press corps, who re­main the most tal­ented jour­nal­ists I know. But I 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.”

For me, as I would later put it in an an­thol­ogy about the Ka­vanaugh hear­ings, ev­ery one of us who sat in the room as Dr. Ford tes­ti­fied and found her cred­i­ble and pre­tended that the con­fir­ma­tion process has worked had failed her. “In­deli­ble in the hip­pocam­pus,” I wrote, “is that we sat there lis­ten­ing, and prac­tic­ing rea­soned ‘both sides’ jour­nal­ism, and go­ing on tele­vi­sion, and all of us be­lieved her. And it didn’t mat­ter.” This is­sue—of how long you stay in­side a sys­tem that no longer serves jus­tice and per­haps pro­duces the sim­u­lacrum of jus­tice—was an an­i­mat­ing theme for me dur­ing the Trump years. I was con­stantly frus­trated by the ten­sion be­tween those who walked away from col­laps­ing in­sti­tu­tions and those who re­mained to try to mit­i­gate the dam­age. For my­self, I felt that the coun­try had be­trayed Dr. Ford and her tes­ti­mony, and there was a con­nec­tion be­tween the pa­ter­nal­ism that led us to pity her, and yet step over her, and the pa­ter­nal­ism of a le­gal sys­tem that would in­creas­ingly treat all women the same way.

In an in­ter­view years later, I asked Anita Hill whether and when it was ap­pro­pri­ate to give up on the le­gal sys­tem, to walk away and claim that it was a force for more harm than good. So many of the women in this book shrugged and told me that the law is an im­per­fect so­lu­tion at best, but Anita Hill re­coiled when I sug­gested as much: “With­out law it’s chaos, right? Be­cause we will lose. We will lose with chaos. We will al­ways lose.” Per­haps more than any­one else she ar­tic­u­lated the spe­cial re­la­tion­ship that ex­ists by ne­ces­sity be­tween vul­ner­a­ble com­mu­ni­ties and the le­gal sys­tem. “Chaos,” she told me, “al­lows for be­hav­ior you could not an­tic­i­pate. With in­sti­tu­tions, if you un­der­stand an in­sti­tu­tion, you know how things work. They may not work per­fectly for you, but you know how they work. Chaos, you don’t know how it works, and it’s sur­vival of the fittest. And peo­ple can re­ally act on their worst in­stincts. That may be true, to some ex­tent, in in­sti­tu­tions. But there is some­thing that you can nav­i­gate.”

Women have a spe­cial re­la­tion­ship with the law, be­cause the next best al­ter­na­tive is vi­o­lence. Women have a spe­cial re­la­tion­ship with the jus­tice sys­tem, Hill be­lieves, be­cause it is some­thing we can nav­i­gate. But for the law, she told me, Jan­u­ary 6, 2021, the day on which ri­ot­ers stormed the US Capi­tol seek­ing to halt the cer­ti­fi­ca­tion of the 2020 pres­i­den­tial elec­tion, “could have been passed off as just like any other day in the White House or in the Capi­tol.” So we rely upon the law, she ex­plained, be­cause with­out it we have far less. And per­haps be­cause we are so vul­ner­a­ble to its fail­ures, we tend to be es­pe­cially vig­i­lant, maybe even hy­per­vig­i­lant, when it feels as if it were slid­ing away.

Hill spoke for so many women lawyers I have in­ter­viewed when she told me about giv­ing a talk, “prob­a­bly in the ’90s,” about the court sys­tem and civil rights and how the Supreme Court was pro­ce­du­rally mak­ing ac­cess to class-ac­tion suits and puni­tive dam­ages less and less ac­ces­si­ble. “And this young white man,” she said, “on a col­lege cam­pus stepped up and he said, ‘Aren’t you just be­ing a lit­tle para­noid? You act as though the sky is fall­ing.’ I thought about it. I said, ‘Well, here’s the list. You can tell me when the sky is fall­ing.’ ” She said she thought about that for a cou­ple of days un­til she re­al­ized, as she told me, “it wasn’t just that the sky wasn’t fall­ing for him. It was be­cause we don’t live un­der the same sky.” For Hill, that was when she came to un­der­stand that she wasn’t para­noid; she sim­ply resided in an­other world. “And you don’t have to know these things. But my very sur­vival re­lies on me know­ing these things.”

When SB 8 went into ef­fect in Texas, an aw­ful lot of peo­ple told me that my cov­er­age sounded “para­noid” and “hys­ter­i­cal” and over­heated and slightly in­sane. And I re­al­ized that much like the 6–3 con­ser­va­tive su­per­ma­jor­ity that now con­trols the court, they sim­ply don’t live un­der the same sky. Hill’s for­mu­la­tion—that we don’t all live un­der the same sky—is an el­e­gant en­cap­su­la­tion of what the Trump era, the COVID pan­demic, and the #MeToo move­ment un­peeled for mil­lions of women who be­lieved that the Amer­i­can sys­tem of jus­tice was for­ever chug­ging along on its own steam to a more per­fect, just union: that de­spite claims of fun­da­men­tal and foun­da­tional equal­ity and ac­cess to jus­tice, the sky was cloud­less and blue for many Amer­i­cans from 2016 on­ward, and for many oth­ers it wasn’t just buck­et­ing down end­less suf­fer­ing and mis­ery, but they were also be­ing told, over and over again, that they weren’t ac­tu­ally get­ting wet.

So many of the women I in­ter­viewed for this book men­tioned mo­ments in re­cent years in which, de­spite their cre­den­tials, their im­pres­sive law de­grees and achieve­ments, their in­vi­ta­tions to speak in crowded ball­rooms with lush flower ar­range­ments and ta­ble linens, they found them­selves sur­rounded by pro­gres­sive al­lies telling them to calm down, take a beat, or see the big pic­ture. It of­ten came from a place of seem­ingly gen­uine con­cern. The im­pulse was sim­ply to warn them that their over­re­ac­tion was some­how in­tem­per­ate, or pre­ma­ture, or coun­ter­pro­duc­tive to pro­gres­sive ob­jec­tives. The prob­lem was that it was al­most un­err­ingly di­rected to­ward women by men, who found them­selves liv­ing un­der a dif­fer­ent sky. For Hill, it looked and sounded some­thing like this: “I was at an event and it was a big thing, and all the peo­ple, at least that I knew, were lib­er­als.” She says the year was 2018 or 2019. She told the crowd, “ ‘I used to feel we are go­ing to be okay, as long as we have the court . . . but we’re los­ing the court.’ And af­ter­ward there was an­other speaker, a his­to­rian. And he said, ‘Oh, we’ve had times this bad be­fore. . . . We’ll get through this.’ And the or­ga­nizer came up to me and said, ‘Well, I hope you’re feel­ing bet­ter af­ter lis­ten­ing to that speech.’ And I said that the speaker was a south­erner and he has learned to serve his cold wa­ter warm.” The mir­ror im­age of telling a woman you be­lieve her is telling her she is be­ing hys­ter­i­cal. Be­ing told you are be­lieved with­out con­se­quences be­ing levied is nei­ther jus­tice nor power. And that is the real prob­lem when women’s pain is sub­sti­tuted for ac­tual jus­tice. Pain seems to have a sell-by date. Jus­tice does not.

Al­most ev­ery woman in this book has de­scribed scream­ing in se­cret, melt­ing down in the pri­vacy of el­e­va­tors and bath­rooms, be­ing told to calm down be­cause the sky isn’t re­ally fall­ing. I think one rea­son we all turned to law as a sta­bi­liz­ing force is that it was, as Hill put it, nav­i­ga­ble, and it presents as neu­tral and ra­tio­nal even when you are scream­ing on the in­side. And es­pe­cially for women who are taught to sup­press emo­tion, grief, pain, and trauma to ap­pear more cred­i­ble, the dou­ble in­sult of be­ing told you are hys­ter­i­cal as you evince per­fect con­trol is be­yond imag­in­ing. So where do women who feel scorch­ing, lethal rage put all that scorch­ing, lethal rage? Cit­ing the work of Re­becca Trais­ter and Brit­tney Cooper, who have writ­ten about women and anger, Anita Hill told me that “the best way to ex­press it is how we’ve learned to talk about is­sues, es­pe­cially as lawyers. That’s what we do. We know this can be ef­fec­tive. We have enough his­tory with that to say it can ef­fec­tively change things by mak­ing re­ally strong ar­gu­ments.” But she added, “I think we all have rage in us, and I think we all ex­press it dif­fer­ently.”

When I asked her where she had stuffed her rage dur­ing her per­fectly con­trolled tes­ti­mony in 1991, she replied that when she thought back on that tes­ti­mony, “as con­tained as it ap­peared to be, it was an out­ra­geous thing to do. And it was out­ra­geous as a woman. It was out­ra­geous as a Black woman. It was out­ra­geous. And I think we are all in some ways ex­er­cis­ing our rage at dif­fer­ent times in dif­fer­ent ways. But I think we all feel it. And I also think that some­times our very pres­ence is out­ra­geous. And the fact that we even say any­thing is a sign of re­sis­tance.” This was Olivia War­ren’s tes­ti­mony as well: “scream­ing into the face of deaf­en­ing in­dif­fer­ence, if only be­cause the sound of my voice re­minds me that I have not yet suc­cumbed to it.”

That was the mo­ti­va­tion for my own re­fusal to re­turn to the Supreme Court; a male ed­i­tor I knew once re­ferred to it as my “lit­tle boy­cott.” A re­minder that I had not suc­cumbed to it. For Anita Hill, and for so many of the women lawyers who have grave doubts about the jus­tice sys­tem and the cur­rent Supreme Court, the real work to achieve en­dur­ing jus­tice for women re­quires a re­cal­i­bra­tion of both the ma­chin­ery of jus­tice it­self and a cul­ture that can ac­cept the out­ra­geous­ness of women’s voices. And maybe, above all, what drew so many women to the law was the pos­si­bil­ity of be­ing out­ra­geous to­gether. For all the flaws of the le­gal sys­tem, of the court sys­tem, and even of the #MeToo move­ment, it helped us find our way to one an­other, and on the very worst days that was enough. When women marched against Don­ald Trump in 2017, or protested against Brett Ka­vanaugh’s con­fir­ma­tion and then fam­ily sep­a­ra­tion in 2018, or or­ga­nized to get out the vote in 2020, what they were do­ing was fun­da­men­tally jus­tice work and fun­da­men­tally out­ra­geous. And that is of course why it is al­ways met with the blow­back, the rape threats, the per­sonal hate and in­tim­i­da­tion. That is why the chant is al­ways “Lock her up.”

For Anita Hill, the ques­tion is, “Can we push at the mo­ment in which we have the eyes of the pub­lic on us? Can we push far enough that we can with­stand the back­lash?” So why do we do it? Why did she do it and why did Dr. Ford do it? Why do we con­tinue to de­mand that the next woman do it and the women who fol­low? Why does the woman who is now be­lieved by the great ma­jor­ity of Amer­i­cans to have told the truth in 1991 still main­tain that it was worth­while, even as the man she ac­cused of sex­u­ally ha­rass­ing her sits in a life-tenured po­si­tion at the US Supreme Court, de­cid­ing cases that shape the lives of ev­ery woman in Amer­ica? Asked for the two thou­sandth time to ex­plain why it was all worth it, Anita Hill told me this: “What would I be do­ing if I didn’t? If I were hold­ing my tongue and keep­ing silent?”

She then quoted Leon Hig­gin­botham, a prom­i­nent fed­eral cir­cuit judge who had cham­pi­oned Hill at the time of the con­fir­ma­tion fight. “I think at one point, I might have been com­plain­ing, ‘Why did I have to tell these peo­ple in these rooms what’s wrong?’ And he said, ‘Just think about where we would be if no­body was do­ing it. And think about how you would feel if you walked away and you didn’t even try.’ So here we go.”

9

elec­tions part 1

Vot­ing Geor­gia 2018

Stacey Abrams: The Game Changer

No­body would have guessed that one of the most trans­for­ma­tional po­lit­i­cal fig­ures of the Trump years would be Stacey 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. Had Abrams pre­vailed in that elec­tion, she would have be­come the na­tion’s first fe­male African Amer­i­can gov­er­nor and likely gone on to be­come a house­hold name in pol­i­tics. But Abrams lost that race and is now eas­ily one of the most rec­og­niz­able thinkers and ac­tivists in the coun­try. That’s a tes­ta­ment both to her prodi­gious skills as a vot­ing rights or­ga­nizer and to the re­al­ity that, by 2018, the prospect of free and fair elec­tions had al­ready be­come vis­i­bly di­min­ished. Abrams put a voice to the propo­si­tion that with­out se­ri­ous na­tion­wide re­me­di­a­tion of the bar­ri­ers Geor­gia vot­ers had faced in her own gov­er­nor’s race, democ­racy it­self was in trou­ble. Abrams—who’d served as mi­nor­ity leader in Geor­gia’s state leg­is­la­ture for six and a half years with­out se­ri­ous po­lit­i­cal blow­back—would soon be­come one of the most vo­cal and ef­fec­tive mes­sen­gers about the cen­tral­ity of vot­ing rights to ev­ery other free­dom. Abrams had iden­ti­fied and cracked the prob­lem of free and fair elec­tions, and she did it be­fore most of us were aware that this was a cri­sis.

Stacey Abrams was born in Madi­son, Wis­con­sin, in 1973 and raised in Gulf­port, Mis­sis­sippi, the sec­ond of six chil­dren. In 1989, when she was fif­teen, her par­ents de­cided to at­tend Methodist di­vin­ity school and en­rolled at Emory Uni­ver­sity’s Can­dler School of The­ol­ogy in At­lanta. Her par­ents would both even­tu­ally be­come Methodist min­is­ters. In 1991, Abrams—as vale­dic­to­rian of her high school class—was in­vited to meet the gov­er­nor of Geor­gia. As she told CBS News in 2021,

My par­ents and I ar­rived on the MARTA bus, be­cause we didn’t have a car. We go up the drive­way of the gov­er­nor’s man­sion. We get to the guard gate, and the guard stops us and tells us we don’t be­long there, that it’s a pri­vate event. My dad says, “No, this is my daugh­ter, Stacey. We have an in­vi­ta­tion.” But the guard doesn’t ask for my in­vi­ta­tion that my mom has. And I re­mem­ber watch­ing him watch the bus pull off. . . . And if my mother had not had my arm in a death grip, I would have been back on that bus. I think two things hap­pened that day. One, they were not go­ing to let me be de­nied this honor that I’d achieved. But two, I think they wanted me to see my re­spon­si­bil­ity is to not let some­one else tell me who I am and where I be­long.

Abrams was a vo­ra­cious reader, and she con­stantly watched PBS, in part be­cause it was one of only two chan­nels her fam­ily’s TV got. She has said that her fa­ther was an orig­i­nal fem­i­nist role model for her, be­cause he un­hesi­tat­ingly told peo­ple that his wife was the smartest woman he knew. As a stu­dent, Abrams ex­celled. She was al­ways in ad­vanced stud­ies, though she fre­quently found her­self the only Black stu­dent in her classes. She read en­cy­clo­pe­dias and dic­tio­nar­ies be­cause her mother rou­tinely di­rected her to look things up. In 1991, Abrams headed to Spel­man Col­lege, a his­tor­i­cally Black women’s uni­ver­sity, where she was elected stu­dent gov­ern­ment pres­i­dent, which she came to credit with her first lessons in fundrais­ing and the al­lo­ca­tion of funds. At Spel­man, she ma­jored in in­ter­dis­ci­pli­nary stud­ies (po­lit­i­cal sci­ence, eco­nom­ics, and so­ci­ol­ogy) and mi­nored in the­ater. Abrams went on to earn a mas­ter’s de­gree in pub­lic pol­icy from the Uni­ver­sity of Texas, then en­tered Yale Law School, where she opted for a ca­reer in tax law. She told The Wash­ing­ton Post that she be­came a tax lawyer be­cause af­ter a stint work­ing in the mayor’s of­fice, she re­al­ized that if she wanted to be a pub­lic ser­vant, she needed to learn how the en­tire sys­tem worked.

It was at Yale that she started writ­ing ro­mance nov­els un­der the pseu­do­nym Se­lena Mont­gomery. In 2021, Abrams told Essence that she was al­ways, first and fore­most, a writer: “The writ­ing. I’ve been writ­ing as long as I can re­mem­ber. I learned to read when I was very young. I learned to write soon there­after and I love telling sto­ries.” She has al­ways con­nected her writ­ing to her pol­i­tics and to her in­ter­est in gov­ern­ment, and swims as eas­ily in pop­u­lar cul­ture ref­er­ences as she does in lofty po­lit­i­cal the­ory. While Abrams has told in­ter­view­ers that she isn’t a “glad-han­der” and that she is per­fectly happy to sit in si­lence, she em­phat­i­cally be­lieves that po­lit­i­cal lead­er­ship de­mands a cer­tain amount of vul­ner­a­bil­ity, goofi­ness, and lack of pre­ten­sion. In a 2020 in­ter­view with New York mag­a­zine’s Re­becca Trais­ter, Abrams ex­plained why a re­cent tweet about Buffy the Vam­pire Slayer is cen­tral to how she thinks about lead­er­ship: “It’s im­por­tant that we en­joy what it means to live in a free so­ci­ety and to have these mo­ments of respite. But it’s also an or­ga­niz­ing tool. If you can meet peo­ple where they are, and they want to be with you when you get there, that helps a lot.” For Abrams, the lofty, prophetic hec­tor­ing will back­fire. “If we en­ter this work chastis­ing, lec­tur­ing, and hec­tor­ing,” she told Trais­ter, “you might get a few peo­ple to do some­thing in that mo­ment to get you to shut up, but you’re never go­ing to con­vert them or con­vince them that it’s worth do­ing again.”

Abrams said she wants peo­ple to “see the nor­mal­ness” of ac­tivism and po­lit­i­cal en­gage­ment, and if they see that “nor­mal­ness can be pro­found in how their lives get bet­ter, then they’re go­ing to be more will­ing to risk show­ing up and stand­ing in that line and be­ing rained on and be­ing yelled at by some guy in a truck who’s telling them to go home. They’re go­ing to be more will­ing if they think that they’re in this to­gether, as op­posed to they’re be­ing sort of led to do this by peo­ple who think they’re too im­por­tant to show up.” For the mil­lions of women who launched them­selves into or­ga­niz­ing and knock­ing on doors and march­ing af­ter 2016, what Abrams was nam­ing here was the way in which you could sweep ac­tivism into your ev­ery­day life, with Face­book groups, wine-tast­ing cir­cles, or Etsy projects. Pol­i­tics needed to be­come a thing you did while you drove to work and were on the side­lines at the school play.

Abrams isn’t just a pro­lific writer. She’s also a metic­u­lous re­searcher. “I’m the daugh­ter of a re­search li­brar­ian,” Abrams told CBS News in 2021. “I grew up not only writ­ing but learn­ing how to re­search, learn­ing how to dive in and think strate­gi­cally about how to learn new things.” And what Abrams had been re­search­ing for years was how to ex­pand the elec­torate in ways that would al­low Geor­gia, a state that hadn’t gone for a Demo­crat since Bill Clin­ton in 1992, to turn blue. New York mag­a­zine’s Trais­ter de­scribed her as hav­ing “one of the most de­tail-ori­ented, for­ward-look­ing, com­pul­sively or­ga­nized brains in pol­i­tics.”

In 2006, Abrams won a seat as a Demo­crat in the Geor­gia As­sem­bly, go­ing on to be­come the first fe­male mi­nor­ity leader of her party. What she came to un­der­stand was that be­tween re­dis­trict­ing and vote di­lu­tion, some­thing mas­sive needed to be done to re­verse a tide that led to a Re­pub­li­can sweep of state of­fices in 2010. So she put to­gether a twenty-one-page Pow­er­Point di­ag­nos­ing the chal­lenges fac­ing Geor­gia Democrats and lay­ing out what would have to hap­pen if state Democrats wanted to re­cal­i­brate power by 2020. Abrams then took that Pow­er­Point on the road, first to her cau­cus and then to po­ten­tial big donors around the coun­try, and her pitch was, as she says now, straight­for­ward: “Please pay at­ten­tion to Geor­gia. We are not the South that you re­mem­ber. We’ve got some real op­por­tu­ni­ties, and we need you to pay at­ten­tion.” Abrams wanted peo­ple to un­der­stand that more than half a mil­lion Black Geor­gians were not reg­is­tered to vote. Her big idea was sim­ply to “reg­is­ter and civi­cally en­gage the ris­ing elec­torate in our state.”

Abrams trav­eled to New York and to Cal­i­for­nia and to Wash­ing­ton, DC, as a slightly au­da­cious mi­nor­ity leader in a south­ern state that shouldn’t be writ­ten off, and she told po­ten­tial donors that she had a plan, that they should pay at­ten­tion, and that she would be back to ask for their money. Back in 2012, as she later told Trais­ter, “peo­ple were skep­ti­cal but will­ing to meet with me be­cause they’d never had a mi­nor­ity leader from a South­ern cham­ber come to them and say, ‘Give me your money.’ ”

Abrams iden­ti­fied a host of groups on the ground do­ing im­por­tant work, but it was all work that needed to scale up. She gath­ered a fleet of dis­parate en­ti­ties that were or­ga­niz­ing vot­ers: the Geor­gia Coali­tion for the Peo­ple’s Agenda; the Con­cerned Black Clergy of Met­ro­pol­i­tan At­lanta; the Geor­gia As­so­ci­a­tion of Latino Elected Of­fi­cials; the Asian Amer­i­can Ad­vo­cacy Fund; and He­len Kim Ho of Asian Amer­i­cans Ad­vanc­ing Jus­tice-At­lanta. They reached out to churches, NAACP chap­ters, his­tor­i­cally Black Greek let­ter or­ga­ni­za­tions, loop­ing in Black com­mu­ni­ties that were un­der­funded in South Geor­gia or ger­ry­man­dered so as to be in­vis­i­ble in white dis­tricts. In 2012, af­ter state Re­pub­li­cans had drawn dis­tricts that seemed guar­an­teed to give them a su­per­ma­jor­ity in the elec­tion cy­cle, Abrams, who had raised more than $300,000 in sup­port of Demo­cratic can­di­dates, funded get-out-the-vote strate­gies that in­cluded can­vass­ing teams and vol­un­teer net­works in­stead of TV and ra­dio ads. In that elec­tion, the Democrats im­prob­a­bly held on to four re­dis­tricted seats.

Af­ter the 2012 elec­tion, donors were sud­denly in­ter­ested. Abrams had ini­tially launched the New Geor­gia Project to help Geor­gia’s vul­ner­a­ble res­i­dents en­roll for health-care cov­er­age un­der the Af­ford­able Care Act. But she was also see­ing that no leg­isla­tive or pol­icy so­lu­tions could be counted on if the elec­toral power of Geor­gia Democrats was be­ing hol­lowed out by the tea­spoon­ful. In 2013, while serv­ing in the Geor­gia state leg­is­la­ture, Abrams had fig­ured out why state Democrats were be­ing crushed elec­torally, even as de­mo­graph­ics sug­gested they should have been win­ning. De­spite the coun­try it­self, and par­tic­u­larly the South, be­com­ing more di­verse al­most by the hour, state Re­pub­li­cans were lock­ing in their own elec­toral power, cre­at­ing su­per­ma­jori­ties that con­trolled ev­ery as­pect of state gov­ern­ment. Women, young peo­ple, and peo­ple of color were en­gaged and in­ter­ested in lo­cal and na­tional pol­i­tics, but oddly they were less and less rep­re­sented in of­fice. In the pres­i­den­tial elec­tions of 2008 and 2012, Black women fa­mously had the high­est voter-par­tic­i­pa­tion rates of any de­mo­graphic group but were still the least likely to hold elected po­si­tions. What Abrams in­tu­ited over a decade ago was that if you could get out the vote in num­bers that could counter and even ex­ceed red state ef­forts to sup­press the vote, you might claw back power, at least in some key races, and start to win elec­tions. Giv­ing up on the South, on mi­nor­ity vot­ers, or on places that skewed Re­pub­li­can was hand­ing over power that would soon be lever­aged to be­come per­ma­nent. Her for­mula would prove to be the sil­ver bul­let that de­feated Trump in 2020 and flipped the two Geor­gia Sen­ate seats, and thus the US Sen­ate, blue in the first days of 2021.

The prob­lem Abrams named be­fore it had a name was ac­tu­ally also the old­est prob­lem on record: racial­ized vote sup­pres­sion. Amer­ica had, af­ter all, been founded on the premise that vot­ing would be ex­cep­tion­ally easy if you were white and wealthy and male, whereas it would be chal­leng­ing, if not im­pos­si­ble, if you were not. As Jus­tice Elena Ka­gan char­ac­ter­ized it in her dis­sent in Brnovich v. Demo­cratic Na­tional Com­mit­tee, the 2021 case that would shrink the power of the Vot­ing Rights Act to fight race-based vot­ing re­quire­ments, “Demo­cratic ideals in Amer­ica got off to a glo­ri­ous start; demo­cratic prac­tice not so much.” While the Dec­la­ra­tion of In­de­pen­dence made lofty prom­ises about “de­riv­ing [its] just pow­ers from the con­sent of the gov­erned,” for at least a hun­dred years, con­sent was nec­es­sary only from white men. African Amer­i­cans, Na­tive Amer­i­cans, women, and all those who didn’t hold prop­erty were pre­sumed to just float along in the slip­stream of lib­erty.

Af­ter the Civil War, the Fif­teenth Amend­ment held out at least the hope of mean­ing­ful new rep­re­sen­ta­tion: “The right of cit­i­zens of the United States to vote shall not be de­nied or abridged by the United States or by any State on ac­count of race, color, or pre­vi­ous con­di­tion of servi­tude.” But again, Black Amer­i­cans ran head­long into what Ka­gan called the “not so much.” De­spite the for­mal le­gal regime, in ac­tual prac­tice poll taxes, un­der­stand­ing clauses, lit­er­acy tests, lynch mobs, and in­tim­i­da­tion made vot­ing a right on pa­per and a life-threat­en­ing propo­si­tion all over the South. In 1867, af­ter the Civil War, more than 65 per­cent of newly en­fran­chised Blacks had reg­is­tered to vote in Mis­sis­sippi. That num­ber stood at 4.3 per­cent in 1955. As Ka­gan noted, again dis­sent­ing in Brnovich, “By 1965, only 27% of black Geor­gians, 19% of black Al­abami­ans, and 7%—yes, 7%—of black Mis­sis­sip­pi­ans were reg­is­tered to vote.” Many of the prac­tices that kept Blacks, His­pan­ics, and Na­tive Amer­i­cans out of the vot­ing booth were neu­tral sound­ing on their face. And on March 7, 1965, when civil rights pro­test­ers—among them a young John Lewis—were beaten bloody on the Ed­mund Pet­tus Bridge as a hor­ri­fied na­tion watched, Pres­i­dent Lyn­don B. John­son asked for and re­ceived a piece of leg­is­la­tion to “help rid the Na­tion of racial dis­crim­i­na­tion in ev­ery as­pect of the elec­toral process and thereby in­sure the right of all to vote.” John­son signed the Vot­ing Rights Act into law in Au­gust 1965.

The VRA was the land­mark leg­is­la­tion guar­an­tee­ing that the right to choose one’s elected rep­re­sen­ta­tive would be pro­tected from racist Jim Crow poli­cies. Among other things, Sec­tion 5 of the VRA made it harder for states with long his­to­ries of racist vot­ing prac­tices to en­act new racist vot­ing prac­tices by re­quir­ing “pre­clear­ance”—a green light from the Jus­tice De­part­ment or a fed­eral court—be­fore any new vot­ing rules could go into ef­fect. It worked. As Ka­gan points out in Brnovich, “In the five years af­ter the statute’s pas­sage, al­most as many African Amer­i­cans reg­is­tered to vote in six South­ern States as in the en­tire cen­tury be­fore 1965.”

The VRA was de­signed to ad­dress leg­isla­tive sneak­i­ness that came dressed in sheep’s cloth­ing. In his 1965 ad­dress on the Vot­ing Rights Act, Pres­i­dent John­son put it this way: “The harsh fact is that in many places in this coun­try, men and women are kept from vot­ing sim­ply be­cause they are Ne­groes. Ev­ery de­vice of which hu­man in­ge­nu­ity is ca­pa­ble has been used to deny this right.” Well, maybe not ev­ery de­vice. Be­cause even af­ter the VRA was passed, we were dis­cov­er­ing that there were plenty of new and in­ge­nious ways to im­pede mi­nor­ity bal­lots so long as you didn’t come out and say what you were do­ing.

In a Sen­ate Ju­di­ciary Com­mit­tee re­port on the 1982 Amend­ments to the Vot­ing Rights Act, the prob­lem, post-1965, was laid out ex­plic­itly: “Fol­low­ing the dra­matic rise in reg­is­tra­tion, a broad ar­ray of vote di­lu­tion schemes were em­ployed to can­cel the im­pact of the new black vote. Elec­tive posts were made ap­pointive; elec­tion bound­aries were ger­ry­man­dered; ma­jor­ity runoffs were in­sti­tuted to pre­vent vic­to­ries un­der a prior plu­ral­ity sys­tem. . . . The in­ge­nu­ity of such schemes seems end­less. Their com­mon pur­pose and ef­fect has been to off­set the gains made at the bal­lot box un­der the Act.” This was Lee At­wa­ter’s clas­sic for­mu­la­tion of the south­ern strat­egy as ap­plied to racial­ized vot­ing prac­tices, a primer on how to be racist with­out sound­ing racist: “You start out in 1954 by say­ing, ‘N——, n——, n——.’ By 1968 you can’t say ‘n——’—that hurts you, back­fires. So you say stuff like, uh, forced bus­ing, states’ rights, and all that stuff.” The new vot­ing rules, like forced bus­ing and states’ rights, would achieve the ef­fects of sup­press­ing mi­nor­ity vot­ing with­out the overt lan­guage.

In 2013 in Shelby County v. Holder, un­der cover of “states’ rights and all that stuff,” the Supreme Court hacked out the heart of Sec­tion 5 of the Vot­ing Rights Act. Chief Jus­tice John Roberts, writ­ing for five jus­tices, soothed him­self that racial­ized vot­ing prob­lems were long past in Amer­ica. And his ev­i­dence for that propo­si­tion lay in the fact that fewer racist vot­ing laws were in ef­fect. To be sure, do­ing away with pre­clear­ance be­cause pre­clear­ance pre­vented racist vot­ing prac­tices didn’t mean that racism was over. In 2006, a near-bi­par­ti­san Con­gress had re­viewed ev­i­dence of racial dis­crim­i­na­tion and reau­tho­rized the pre­clear­ance for­mula for the VRA for an­other twenty-five years be­cause they knew it was still work­ing.

That’s be­cause it was still work­ing. As Jus­tice Ruth Bader Gins­burg noted in her dis­sent in Shelby County, be­tween the 1982 amend­ments and the 2006 reau­tho­riza­tions of the Vot­ing Rights Act, the De­part­ment of Jus­tice had blocked more than seven hun­dred pro­posed changes to vot­ing laws be­cause they were racially dis­crim­i­na­tory. That could have at least plau­si­bly re­flected the fact that pre­clear­ance was ef­fec­tive and not that it was su­per­flu­ous. As Gins­burg then tartly—and no­to­ri­ously—ob­served in her dis­sent, “Throw­ing out pre­clear­ance when it has worked and is con­tin­u­ing to work to stop dis­crim­i­na­tory changes is like throw­ing away your um­brella in a rain­storm be­cause you are not get­ting wet.”

But in Roberts’s view, by 2013 “things have changed dra­mat­i­cally,” and Sec­tion 5 of the VRA 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. The ma­jor­ity opin­ion re­quired that the stigma suf­fered by states that had par­tic­i­pated in Amer­ica’s racist vot­ing his­tory be re­moved, and this could only be done by tac­itly al­low­ing the states to re­in­state racist vot­ing laws. Those states were de­lighted to ac­cept the in­vi­ta­tion. Shelby County in­stantly re­leased nine states—Al­abama, Alaska, Ari­zona, Geor­gia, Lou­i­si­ana, Mis­sis­sippi, South Car­olina, Texas, and Vir­ginia, along with var­i­ous other ju­ris­dic­tions—from su­per­vi­sion un­der the pre­clear­ance for­mula; they were now free to en­act vot­ing rules as they liked. Within twenty-four hours of the Supreme Court’s rul­ing, Texas was pass­ing one of the strictest voter-ID laws in the coun­try, a law that had failed pre­clear­ance. That Texas voter-ID law was even­tu­ally deemed to have left 600,000 African Amer­i­cans and Lati­nos with­out the req­ui­site ID needed to vote.

De­spite con­sti­tu­tional amend­ments, vot­ing laws, and court over­sight, states with Re­pub­li­can gov­er­nors fell all over them­selves to make elec­tions hard­est for the very peo­ple who were mak­ing Amer­ica what it had long promised to be: an ac­tual democ­racy. Texas, Geor­gia, and Flor­ida went on a spree. Al­abama got drunk. North Car­olina danced on the bar. It doesn’t much mat­ter which tac­tic they used. Strict new voter iden­ti­fi­ca­tion laws, chal­leng­ing new reg­is­tra­tion re­quire­ments, clos­ing mi­nor­ity polling places, purges of the voter rolls. It was open sea­son, and any old trick that could shave a few points off elec­tion re­sults was in play.

Just two days af­ter Shelby County came down, the mayor of Pasadena, Texas, pro­posed chang­ing the struc­ture of the city coun­cil elec­tions to di­lute the num­ber of Latino seats. His can­dor was re­fresh­ing. He ex­plained that it could be done “be­cause the Jus­tice De­part­ment can no longer tell us what to do.” But it wasn’t just Texas. Al­abama tried to close thirty-one DMV of­fices, many in ma­jor­ity-Black coun­ties, af­ter in­sti­tut­ing new photo-ID rules. A few weeks af­ter Shelby, North Car­olina passed the strictest voter sup­pres­sion law in the coun­try, elim­i­nat­ing same-day reg­is­tra­tion and out-of-precinct vot­ing and re­duc­ing early vot­ing, in­clud­ing souls-to-the-polls drives that tra­di­tion­ally aided Black vot­ing on Sun­days. (That law was even­tu­ally deemed by a fed­eral ap­peals court to have tar­geted “African Amer­i­cans with al­most sur­gi­cal pre­ci­sion.”) Geor­gia? Check. Flor­ida? Also check. Vice re­ported in 2018 that “in the years fol­low­ing the Shelby de­ci­sion, ju­ris­dic­tions once sub­ject to fed­eral su­per­vi­sion shut down, on av­er­age, al­most 20 per­cent more polling sta­tions per capita than ju­ris­dic­tions in the rest of the coun­try.”

As Ari Berman, the vot­ing rights colum­nist at The Na­tion, would ex­plain af­ter Shelby County came down, the 2016 elec­tion was to be “the first in 50 years with­out the full pro­tec­tions of the act.” Un­sur­pris­ingly, he went on, “four­teen states had new vot­ing re­stric­tions in ef­fect in 2016, in­clud­ing strict voter ID laws, fewer op­por­tu­ni­ties for early vot­ing and re­duc­tions in the num­ber of polling places. These re­stric­tions de­pressed turnout in key states like Wis­con­sin, par­tic­u­larly among black vot­ers.” Maybe the bluntest way to put it is this: In the face of de­mo­graphic changes that were turn­ing red states pur­ple and pur­ple states blue, it was man­i­festly eas­ier to make vot­ing harder or im­pos­si­ble for the kinds of vot­ers who tend to pull the lever for Democrats than to mod­er­ate an in­creas­ingly con­ser­va­tive GOP agenda to at­tract their votes. Cookie-cut­ter laws were be­ing passed all over Re­pub­li­can-con­trolled states that would, in the ag­gre­gate, en­sure that some votes would once again be more equal than oth­ers.

Stacey Abrams calls all of this “Jim Crow in a suit and tie.” It’s vote sup­pres­sion un­der cover of “elec­tion in­tegrity” that makes it vastly harder to vote if you are poor or Black or a stu­dent or Latino or dis­abled. And long be­fore Don­ald Trump promised that he would only ac­cept the re­sults of the 2016 elec­tion if he won (and then later re­vealed that he would never ac­cept the re­sults of the 2020 elec­tion be­cause he had lost), false claims that bus­loads of for­eign­ers were vot­ing in state elec­tions were be­ing used to jus­tify laws that made vot­ing more dif­fi­cult for ev­ery­one. Re­pub­li­can leg­is­la­tors were mak­ing it harder to vote with false claims that dead peo­ple, Mickey Mouse, the heavy­weight boxer Joe Fra­zier (dead since 2011), and Marx­ist ag­i­ta­tors were vot­ing mul­ti­ple times at the same precincts.

It was Stacey Abrams who more than fif­teen years ago rec­og­nized that this bur­geon­ing im­pulse—to un­der­mine the le­git­i­macy of cer­tain (read: mi­nor­ity) vot­ers, in cer­tain (read: mi­nor­ity) ju­ris­dic­tions, with claims that cer­tain (read: mi­nor­ity) pop­u­la­tions were cheat­ing in elec­tions—needed to be coun­tered by an equal and op­po­site im­per­a­tive. That im­per­a­tive was that more peo­ple should vote and that un­less ev­ery bal­lot is val­ued and counted equally, democ­racy it­self is in peril. Af­ter her 2018 elec­tion run, Abrams be­came both the voice and the sym­bol of that propo­si­tion.

Abrams un­fail­ingly ref­er­ences her­self as just an­other avatar, some­one who merely rep­re­sents a le­gion of ex­tra­or­di­nary Black fe­male elected of­fi­cials, vot­ing rights ad­vo­cates, and com­mu­nity or­ga­niz­ers on the ground who are all work­ing to­gether to reg­is­ter new pop­u­la­tions and to get out the vote. That claim un­der­states the ex­tent to which she was also the ar­chi­tect of a strat­egy that would be­come a jug­ger­naut in the face of ef­forts to limit the fran­chise af­ter Shelby County. What Abrams un­der­stood, fif­teen years be­fore most of us, was that Geor­gia, like the rest of Amer­ica, was chang­ing faster than racist vot­ing laws. She ar­rived on the po­lit­i­cal scene in 2006 and watched as Geor­gia Democrats lost al­most ev­ery­thing elec­torally and Re­pub­li­cans won vir­tu­ally ev­ery im­por­tant of­fice across the state.

But in Abrams’s view, Geor­gia was chang­ing too. The Latino pop­u­la­tion had dou­bled; the state was wit­ness­ing an ex­plo­sion in its Asian Amer­i­can and Pa­cific Is­lander pop­u­la­tion. Abrams was track­ing what she has de­scribed as the start of a “re­verse mi­gra­tion of African Amer­i­cans who had moved to the Mid­west and were re­lo­cat­ing back South.” At present, ac­cord­ing to The At­lanta Jour­nal-Con­sti­tu­tion, the pop­u­la­tion of Geor­gia is around 10.5 mil­lion, and that pop­u­la­tion was 57.5 per­cent white in 2008. It was 54.2 per­cent white in 2018. It was 50.1 per­cent white in 2021. Abrams’s take is that if mi­nori­ties were poised to be­come ma­jori­ties, that should be re­flected in who gets elected to of­fice.

In 2014, af­ter Democrats held on to the seats they had won in 2012, Abrams was rais­ing mil­lions of dol­lars from across the coun­try—earn­ing some blow­back from ven­er­a­ble civil rights groups in Geor­gia who saw her as an up­start and a new­comer. For her gu­ber­na­to­rial cam­paign in 2018, she raised $40 mil­lion—more money spent than on any gov­er­nor’s race in his­tory. Abrams was build­ing and fund­ing and grow­ing an in­fra­struc­ture con­sist­ing al­most wholly of hu­man cap­i­tal. As she later ex­plained to Trais­ter, “In 2013, I cre­ated the New Geor­gia Project, which trained poor folks in South Geor­gia to be quasi-nav­i­ga­tors, de­ploy­ing them across 39 coun­ties to help folks sign up for the Af­ford­able Care Act. Fast-for­ward: in 2014 it be­came a voter-reg­is­tra­tion project.” She said she re­al­ized that peo­ple didn’t rec­og­nize that it wasn’t Obama deny­ing them ac­cess to Med­ic­aid; “it was the gov­er­nor and that Re­pub­li­can state leg­is­la­tor you keep vot­ing for. Vote him out and maybe things will get bet­ter.” The mes­sage at that point was sim­ple: “You can’t vote him out if you’re not reg­is­tered.” Her fo­cus turned to the 800,000 un­reg­is­tered Black and brown peo­ple in Geor­gia. Af­ter the 2014 elec­tion cy­cle, she cre­ated a group called the Voter Ac­cess In­sti­tute, “be­cause low-propen­sity vot­ers are only 20 per­cent likely to turn out and vote. We needed to think about how to boost that num­ber.”

The spe­cial sauce Abrams added was ed­u­ca­tion and en­gage­ment. It wouldn’t be enough just to reg­is­ter new vot­ers. They would need a whole tool kit on how and why to vote. As Abrams ex­plained it, “It’s the equiv­a­lent of giv­ing some­one keys to a car but never teach­ing them how to drive.” Peo­ple needed to learn where to vote, how to vote, and what to do if their at­tempts to vote were be­ing di­min­ished. In 2020, she told Trais­ter that “hav­ing vol­un­teers is great, but hav­ing ex­pe­ri­enced vol­un­teers is vi­tal. So when some­one learns how to door-knock, when some­one learns how to or­ga­nize and get other peo­ple to work with them, that is gold.”

Abrams de­scribed what she was striv­ing to build as cam­paign “mus­cle mem­ory,” and her chal­lenge was to cre­ate that in places where it hasn’t ex­isted be­fore. If you think, then, about the vast com­mu­ni­ties of women you know who surged into po­lit­i­cal con­scious­ness af­ter 2016, Stacey Abrams had ac­tu­ally helped set the tem­plate for that long be­fore Don­ald Trump even an­nounced his can­di­dacy. And it was Abrams who was tar­get­ing what she called the “New Amer­i­can Ma­jor­ity—peo­ple of color, those 18 to 29 years of age, and un­mar­ried women”—as the keys to Geor­gia’s fu­ture. Since 2014, the New Geor­gia Project has reg­is­tered 500,000 Geor­gians to vote.

In a book about women lawyers who make change, about fame and not-fame, about in­sid­ers and out­siders, and about law ver­sus power, Stacey Abrams struck me as an ex­em­plar of all of the above. What she sought to do, in a po­lit­i­cal cul­ture driven by cults of fame and per­son­al­ity and by sto­ries of Great Men with marked cow­boy lean­ings, was to de­cen­ter the can­di­date and change the view of an elec­tion as a re­al­ity show or moral­ity play. It was Abrams who un­der­stood that po­lit­i­cal cam­paigns must rise and fall less on the charisma and pop­u­lar­ity of any one can­di­date than on the agency and pas­sion of ev­ery last voter. It was Abrams who didn’t just want vot­ers who swooned for an Obama or knocked on doors for a Hillary. She wanted vot­ers who fully bought into the idea that ev­ery part of gov­ern­ment needed to work for and re­spond to the elec­torate. As she would put it, “For me, the through-line is: If it’s en­tirely based on a sin­gle per­son’s per­son­al­ity, or rep­u­ta­tion, when that gets hit, ev­ery­thing falls apart.”

Abrams ex­plained this in a gran­u­lar way to Trais­ter: “I don’t run Fair Fight. Lau­ren Groh-Wargo is the CEO of Fair Fight. I don’t run Fair Count. Re­becca De­Hart is the CEO of Fair Count. I’m al­ways very cog­nizant of the fact that when we place the fo­cus on a sin­gle per­son in­stead of on the work, if that per­son fal­ters, the work be­comes in­val­i­dated.” What Abrams em­pha­sized, both in her run for the Geor­gia gov­er­nor’s seat in 2018 and as a through line in her elec­tions work, is that if it’s about any one in­di­vid­ual, no mat­ter how fa­mous or charis­matic, the risks of that per­son screw­ing up even­tu­ally be­come in­tol­er­a­ble. She had found and built the cure for elec­toral pol­i­tics as re­al­ity show. At min­i­mum, she was help­ing vot­ers to un­der­stand that if elec­toral pol­i­tics are a re­al­ity show, it is the voter her­self who is the star. And as I re­flected on women and their spe­cial con­nec­tion to law and to jus­tice and to equal­ity, the no­tion that they would by ne­ces­sity be­come some of the pri­mary agents be­hind the bat­tle to pro­tect vot­ing rights seemed ever more apt. Women had to fight for this very right for decades.

An­other el­e­ment of Abrams’s strat­egy? You cam­paign in Ev­ery. Sin­gle. Dis­trict. You go to the town halls and the meet and greets even in the dis­tricts where seven vot­ers show up for events and only four of them will ul­ti­mately vote for you. In her 2018 gu­ber­na­to­rial run, Abrams knocked on doors in ru­ral Geor­gia where the Con­fed­er­ate flag stood at min­i­mum for “south­ern her­itage” if not for overt white supremacy. Again, this comes down to Abrams’s broader vi­sion of elec­toral en­gage­ment: you aren’t build­ing a cult of per­son­al­ity; you’re build­ing a po­lit­i­cal in­fra­struc­ture. Abrams cam­paigned in ev­ery county in 2018, even in coun­ties that wouldn’t elect a Demo­crat if she were run­ning against a Mup­pet. As Je­lani Cobb put it in The New Yorker in 2019, for Abrams, the point of con­tin­u­ing to try to or­ga­nize in deep red coun­ties was to cre­ate “a cross-racial coali­tion that can make the state more com­pet­i­tive for Democrats. In that sense, her ef­forts look less like a Hail Mary than like a pass hurled down­field to­ward a spe­cific re­ceiver whom no one else has no­ticed.” Abrams es­chewed TV ads and knocked on doors, talked to ru­ral vot­ers about is­sues that re­ally wor­ried them where they lived their lives: health and ed­u­ca­tion and green jobs and a restora­tive crim­i­nal-jus­tice sys­tem. As she and her for­mer cam­paign man­ager Lau­ren Groh-Wargo would write in 2021 of their ten-year plan to flip Geor­gia blue,

Geor­gians de­served bet­ter, so we de­vised and be­gan ex­e­cut­ing a 10-year plan to trans­form Geor­gia into a bat­tle­ground state. As the world knows, Pres­i­dent Biden won Geor­gia’s 16 elec­toral votes in No­vem­ber, and the Jan­u­ary runoff elec­tions for two Sen­ate seats se­cured full con­gres­sional con­trol for the Demo­cratic Party. Yet the re­sult wasn’t a mir­a­cle or truly a sur­prise, at least not to us. Years of plan­ning, test­ing, in­no­vat­ing, sus­tained in­vest­ment and or­ga­niz­ing yielded the record-break­ing re­sults we knew they could and should.

So. That 2018 gov­er­nor’s race in Geor­gia.

Abrams had at this point de­vel­oped her gi­gan­tic war chest, her na­tional rep­u­ta­tion, and the strate­gic plan she’d been work­ing up for years. By her lights, if ev­ery­thing went right, a Black woman re­ally might be elected gov­er­nor in a south­ern red state. But Abrams was also run­ning against Brian Kemp, who ran as a “Trump con­ser­va­tive” and bragged dur­ing the cam­paign that he had a pickup truck big enough to “round up crim­i­nal il­le­gals.” That wasn’t the main con­cern. The deeper prob­lem was that can­di­date Kemp was also serv­ing as Geor­gia’s sec­re­tary of state through­out the race. It was Brian Kemp, then, who was for­mally tasked with set­ting the rules for the elec­tion he was also run­ning in. Is that weird? Yes. Yes, it is. For­mer pres­i­dent Jimmy Carter would later say that this con­flict of in­ter­est ran “counter to the most fun­da­men­tal prin­ci­ple of demo­cratic elec­tions—that the elec­toral process be man­aged by an in­de­pen­dent and im­par­tial elec­tion au­thor­ity.”

In some sense, the cur­rent ob­ses­sion with a myth­i­cal rash of “vote fraud” that has been de­ployed to re­strict mi­nor­ity vot­ing had been in­cu­bat­ing in Geor­gia for decades. One of the mod­ern fore­fa­thers of the voter fraud myth, Hans von Spakovsky, got his start in Geor­gia, where he was chair­man of the Ful­ton County GOP and a mem­ber of the elec­tion board in the 1990s. Vote fraud be­came the ba­sis for Kemp’s long-stand­ing ef­forts to throw vot­ers off the rolls. That means that among other ir­reg­u­lar­i­ties around the 2018 elec­tion, dur­ing his time as sec­re­tary of state, Kemp had purged 1.5 mil­lion vot­ers from Geor­gia’s elec­tion rolls. That ef­fort took sev­eral forms that have be­come in­creas­ingly fa­mil­iar. For in­stance, as Je­lani Cobb ex­plained in The New Yorker, ac­cord­ing to a study by Amer­i­can Pub­lic Me­dia, Sec­re­tary Kemp’s of­fice had can­celed 100,000 voter reg­is­tra­tions for Geor­gians who hadn’t voted in seven years un­der a “use it or lose it” pol­icy. Kemp also, in the name of fight­ing “vote fraud,” put in place an “ex­act match” pol­icy that de­manded voter reg­is­tra­tion ap­pli­ca­tions be a flaw­less match to the in­for­ma­tion con­tained on of­fi­cial gov­ern­ment doc­u­ments. The spell­ing of a name, a mis­placed hy­phen, an ac­cent in the wrong place—any­thing at all could be the ba­sis for re­ject­ing reg­is­tra­tions. Some­how, voter reg­is­tra­tions of 53,000 vot­ers, of whom 70 per­cent were Black, were sud­denly flagged for re­view. As the race ap­proached, there were more and more re­ports of pe­cu­liar­i­ties: ab­sen­tee bal­lots that were re­quested but never mailed, new cit­i­zens told they were in­el­i­gi­ble to vote, a re­port of 4,700 ab­sen­tee bal­lot re­quests that were lost in DeKalb County. In 2020, a House com­mit­tee study­ing the 2018 elec­tion de­ter­mined, among other ir­reg­u­lar­i­ties, that af­ter re­mov­ing 500,000 vot­ers from rolls—per­haps the largest sin­gle can­cel­la­tion of voter reg­is­tra­tions in US his­tory, as re­ported by The At­lanta Jour­nal-Con­sti­tu­tion—Kemp and a cam­paign staffer shared a Demo­cratic can­di­date’s press re­lease about the threat of sys­temic voter sup­pres­sion, an­no­tat­ing it with the word “us” with laugh­ing and smil­ing emo­jis.

The his­to­rian Carol An­der­son, writ­ing in The At­lantic in 2018, pointed out that while Kemp was in­sist­ing to the me­dia that these tens of thou­sands of new voter reg­is­tra­tions pour­ing into his of­fice were per se ev­i­dence of voter fraud that he was un­will­ing to tol­er­ate, and launch­ing in­ves­ti­ga­tions of Abrams and the New Geor­gia Project, by at least 2014 he was telling fel­low Re­pub­li­cans the truth in pri­vate: “Democrats are work­ing hard, and all these sto­ries about them, you know, reg­is­ter­ing all these mi­nor­ity vot­ers that are out there and oth­ers that are sit­ting on the side­lines, if they can do that, they can win these elec­tions in No­vem­ber.”

Four days be­fore the gu­ber­na­to­rial elec­tion, a fed­eral dis­trict judge ruled that the ex­act-match pol­icy was a bur­den for vot­ers, and Com­mon Cause Geor­gia brought a suit to en­sure that pro­vi­sional bal­lots were prop­erly counted. Two days be­fore the No­vem­ber elec­tion, Kemp’s of­fice an­nounced, with lit­tle ev­i­dence, that it was open­ing an in­quiry into the state Demo­cratic Party af­ter a pri­vate cit­i­zen re­ported what was termed “a failed at­tempt to hack the state’s voter reg­is­tra­tion sys­tem.” No such hack was ever proven, al­though the Geor­gia Bu­reau of In­ves­ti­ga­tion con­ducted a thor­ough in­ves­ti­ga­tion. In ad­di­tion to miss­ing ab­sen­tee bal­lots and bal­lots tossed for fail­ing to ex­actly match the cor­re­spond­ing reg­is­tra­tions, Geor­gians suf­fered from shut­tered polling places and mad­den­ingly long lines, power fail­ures in mi­nor­ity precincts, precincts with too few vot­ing ma­chines, and polling places with too few pro­vi­sional bal­lots. If that sounds like a point-by-point weaponiza­tion of the post-Shelby strate­gies, it’s be­cause it was. And prior to Shelby, Geor­gia would have been un­der pre­clear­ance, mean­ing that new vot­ing prac­tices would have re­quired ap­proval. Post-Shelby, it was Calv­in­ball.

Kemp was ul­ti­mately de­clared the win­ner by a mar­gin of less than two per­cent­age points. In her Brnovich dis­sent on the Vot­ing Rights Act in 2021, Jus­tice Ka­gan em­pha­sized that “elec­tions are of­ten fought and won at the mar­gins” and that Geor­gia’s elec­tion was all about the mar­gins. The 2018 gov­er­nor’s race was de­cided by fifty-five thou­sand votes, of nearly four mil­lion cast, in an elec­tion in which hun­dreds of thou­sands of voter reg­is­tra­tions had been can­celed. In No­vem­ber 2018, Abrams gave a speech in which she ex­plained why she found it im­pos­si­ble to con­cede. “I ac­knowl­edge that for­mer Sec­re­tary of State Brian Kemp will be cer­ti­fied as the vic­tor of the 2018 gu­ber­na­to­rial elec­tion,” she an­nounced. “But to watch an elected of­fi­cial—who claims to rep­re­sent the peo­ple of this state—baldly pin his hopes for elec­tion on the sup­pres­sion of the peo­ple’s demo­cratic right to vote has been truly ap­palling. So, to be clear, this is not a speech of con­ces­sion.” We may never know for cer­tain what did or did not de­cide the 2018 Geor­gia race, but we know with­out a doubt that the tac­tic of mak­ing it ever more dif­fi­cult for mi­nori­ties to vote would only be­come more preva­lent.

When Don­ald Trump would refuse to con­cede in 2020, it would be said that Stacey Abrams started it. But of course Abrams could ar­gue, and mul­ti­ple law­suits would later show, that her own elec­tion was sig­nif­i­cantly flawed. De­spite tens of law­suits af­ter the 2020 pres­i­den­tial con­test, Don­ald Trump has still failed to pre­vail in le­gal claims al­leg­ing mas­sive im­pro­pri­ety, stolen bal­lots, or wide­spread ir­reg­u­lar­ity. Geor­gia would come to stand as a dry run for close elec­tions, for voter sup­pres­sion, and for coun­ter­claims of vote fraud and of “il­le­gal” vot­ers. That Geor­gia gu­ber­na­to­rial con­test, with the vote sup­pres­sion pit­ted against claims of fraud and il­le­gal or­ga­niz­ing, was the mi­nor-league game that per­fectly pre­saged the 2020 con­test to come.

But in one im­por­tant sense, that 2018 elec­tion be­came a huge win for the prin­ci­ple that ev­ery vote must count. In Geor­gia, the par­tic­i­pa­tion rate for nine­teen- to twenty-eight-year-old vot­ers in­creased by 476 per­cent from the 2014 midterms. African Amer­i­can and Latino turnout in the state went up 165 per­cent and 571 per­cent, re­spec­tively. The statis­tic Abrams of­ten cited af­ter the 2018 con­test was this one: 925,000 African Amer­i­cans voted in the 2014 gu­ber­na­to­rial race; in 2018, 1.4 mil­lion African Amer­i­cans voted. And 94 per­cent of them had voted for Stacey Abrams. That is trans­for­ma­tional power, and it was har­nessed and helmed at least in part by a fe­male tax lawyer who was still, in 2018, writ­ing ro­mance nov­els un­der a pseu­do­nym.

Af­ter that elec­tion, Stacey Abrams says she went into mourn­ing for ten days and then got back to work. She was soon be­ing courted for the vice pres­i­den­tial nom­i­na­tion in 2020, had her name floated as a prospec­tive Demo­cratic pres­i­dent’s Supreme Court nom­i­nee, and was also asked to run for the Geor­gia Sen­ate in 2020. But she did none of the above. In ser­vice to her own credo about mak­ing elec­toral change as op­posed to build­ing a per­sonal brand, Abrams stayed in Geor­gia. She scaled up. She raised money. And she con­tin­ued to evan­ge­lize for the propo­si­tion that the best cure for ram­pant voter sup­pres­sion was ram­pant voter en­gage­ment.

Stacey Abrams never be­lieved she was owed the Geor­gia gov­er­nor­ship in 2018, but she main­tains that both she and Geor­gia vot­ers were owed an elec­tions sys­tem that func­tions to count ev­ery sin­gle vote.

So af­ter the 2018 elec­tion was called, Abrams founded Fair Fight Ac­tion, a new vot­ing rights or­ga­ni­za­tion that ad­vo­cates against vote sup­pres­sion, and Fair Count, which sought to get com­mu­ni­ties of color, ru­ral pop­u­la­tions, and other marginal­ized groups counted in the 2020 cen­sus. To­gether with Care in Ac­tion, a group that or­ga­nizes do­mes­tic work­ers in the state, Abrams also filed a law­suit seek­ing to over­haul the en­tire Geor­gia elec­tions sys­tem. The sixty-six-page com­plaint, com­bined with a host of other law­suits filed statewide to chal­lenge the 2018 elec­tion, laid out the ways in which voter purges, sus­pended reg­is­tra­tion ap­pli­ca­tions, long lines and other prob­lems at non­white vot­ing precincts, and mis­han­dled ab­sen­tee and pro­vi­sional bal­lots un­con­sti­tu­tion­ally bur­dened the state’s vot­ers of color. In ad­di­tion to de­mand­ing re­forms in ad­vance of the 2020 elec­tion, the law­suit asked that Geor­gia be placed back un­der the pre­clear­ance re­quire­ments of the Vot­ing Rights Act, mean­ing that a fed­eral court would need to preap­prove any new vot­ing prac­tices to en­sure they didn’t vi­o­late mi­nor­ity vot­ing rights. As UC Irvine’s vot­ing rights ex­pert Richard Hasen wrote in Slate in No­vem­ber 2018, when the suit was filed, the scope of this new law­suit was ca­pa­cious by de­sign: It at­tacked the voter purges and the strict “ex­act match” pol­icy that kept thou­sands of vot­ers off the rolls for dis­crep­an­cies be­tween vot­ing forms and driv­ing records as mi­nor as a miss­ing hy­phen. It went af­ter the state’s an­cient voter reg­is­tra­tion data­base and vot­ing ma­chines, the clos­ing and mov­ing of polling places, the in­ac­cu­rate voter reg­is­tra­tion rolls, the man­age­ment of pro­vi­sional bal­lots and ab­sen­tee bal­lots. “The suit,” he wrote, “al­leges these prob­lems to­gether vi­o­late the Vot­ing Rights Act, the Help Amer­ica Vote Act, and the due process and equal pro­tec­tion clauses of the 14th Amend­ment.”

Ad­di­tion­ally, the suit was filed far in ad­vance of the 2020 elec­tion so that courts would have plenty of time to re­view claims with­out run­ning afoul of a le­gal pre­sump­tion against chang­ing vot­ing prac­tices im­me­di­ately be­fore vot­ing is set to be­gin. The com­plaint de­tailed sup­pres­sion of law­ful Geor­gia vot­ers, like Car­los del Rio, chair of the De­part­ment of Global Health at the Rollins School of Pub­lic Health at Emory Uni­ver­sity, who was ini­tially turned away from his vot­ing precinct on No­vem­ber 6, 2018, be­cause the state data­base wrongly listed his last name as be­ing spelled “del­Rio.” Abrams was putting a face on an ab­strac­tion—how seem­ingly race-neu­tral tweaks within a de­cen­tral­ized state elec­tions ma­chin­ery fall most heav­ily on peo­ple who are poor, Black, brown, or new im­mi­grants. That lit­i­ga­tion be­came a ve­hi­cle for chal­leng­ing a 2019 purge of twenty-two thou­sand vot­ers in Geor­gia, and while the law­suit re­mains un­re­solved, Don­ald Trump still faults his 2020 loss in Geor­gia on a con­sent de­cree that re­sulted from the lit­i­ga­tion.

Elec­tion law was fast be­com­ing the sex­i­est thing a young lawyer could do. And Geor­gia was just the be­gin­ning. Any­one who be­lieved that voter roll purges and shut­tered polling places and sig­na­ture match re­quire­ments were lim­ited to At­lanta was miss­ing the fact that it was hap­pen­ing in their own back­yard. As Abrams would ex­plain to Trais­ter in 2020, it wasn’t just that she scaled up voter en­gage­ment, reg­is­tra­tion, and ed­u­ca­tion. She also na­tion­al­ized the mes­sage that throw­ing out bal­lots would be an on­go­ing strat­egy in tight elec­tions. The les­son of 2018, she said, was to mit­i­gate “voter sup­pres­sion across the coun­try. Voter sup­pres­sion ex­isted in ’16; it ex­isted in ’18. But we had a voter-pro­tec­tion ap­pa­ra­tus that cov­ered the coun­try through these bat­tle­ground states: Wis­con­sin, Michi­gan, Penn­syl­va­nia, Ari­zona, Nevada, Min­ne­sota. The work done through Fair Fight to mit­i­gate voter sup­pres­sion got peo­ple to the polls. It’s not the only thing, but it is a huge thing.”

The other les­son of that 2018 gu­ber­na­to­rial elec­tion that be­came cru­cial in or­ga­niz­ing around vot­ing rights in 2020 was that it forced in­choate and un­proven claims about wide­spread vote fraud to be proven. Just as the then sec­re­tary of state Brian Kemp had waved vaguely at un­founded claims about “vote fraud” to jus­tify hold­ing on to, throw­ing out, and re­fus­ing to match bal­lots to voter reg­is­tra­tions, the whole coun­try would soon fall prey to false claims about tainted mail-in bal­lots and elec­tions stolen by for­eign­ers, vir­tu­ally all of which were proven false in a court of law. The trial run in Geor­gia af­forded pro­po­nents of gen­er­ous vot­ing rights am­ple time and re­sources to de­fend against the imag­i­nary vote fraud that would soon be de­ployed to try to choke off vot­ing by mail, early reg­is­tra­tion, drop boxes, and the other ex­pan­sions of the fran­chise that would come to de­fine the 2020 elec­tion wars.

Let’s do this quickly, then: There is no wide­spread cri­sis of in-per­son vote fraud in Amer­ica. None. There is also no wide­spread cri­sis of mail-in vote fraud or early vot­ing fraud. None. Based on the most gen­er­ous set of data col­lected by the Her­itage Foun­da­tion, the in­ci­dence of voter fraud in the two decades be­fore the 2020 elec­tion was about 0.00006 per­cent of to­tal bal­lots cast. That’s about twelve hun­dred cases dat­ing back to the 1980s. The non­par­ti­san Bren­nan Cen­ter’s mas­sive study from 2007 put that num­ber at some­where be­tween 0.0003 per­cent and 0.0025 per­cent. That same study fa­mously con­cluded that it’s more likely an Amer­i­can “will be struck by light­ning than that he will im­per­son­ate an­other voter at the polls.”

Why, then, do we keep hear­ing about boxes of stolen bal­lots, guys who vote once then put on a fake mus­tache to vote again, cor­rupt elec­tion work­ers who steal or dam­age great quan­ti­ties of bal­lots, and vot­ing ma­chines cun­ningly pro­grammed by ne­far­i­ous Ital­ians and George Soros to rig and steal and dam­age elec­tions? Be­cause those claims serve a very de­lib­er­ate pur­pose, which is to make vot­ing far more dif­fi­cult for far more peo­ple. This, too, has been hap­pen­ing for more than a decade. An­o­dyne “voter in­tegrity” mea­sures with names like Kemp’s “ex­act match” sys­tem and the in­fa­mous In­ter­state Cross­check sys­tem are cum­ber­some com­put­er­ized data­base-match­ing pro­grams that toss el­i­gi­ble vot­ers off the rolls based on triv­ial er­rors, of which the bur­den will fall on spellings of for­eign-sound­ing names. One team of re­searchers at Har­vard, Yale, Stan­ford, and the Uni­ver­sity of Penn­syl­va­nia de­ter­mined that the Cross­check pro­gram once pressed by Kan­sas’s sec­re­tary of state Kris Kobach had an eye-pop­ping er­ror rate of 99 per­cent and that for ev­ery fraud­u­lent vote it stopped, it would im­pede two thou­sand el­i­gi­ble vot­ers from cast­ing a bal­lot. Texas of­fi­cials were sued af­ter a “re­view” of their own state voter rolls led to chal­lenges to the cit­i­zen­ship sta­tus of thou­sands of vot­ers who turned out largely to be nat­u­ral­ized cit­i­zens. Voter sup­pres­sion, as Jus­tice Ka­gan put it in her Brnovich dis­sent, is all a big game of whack-a-mole, and Stacey Abrams’s re­sponse was to sign up vot­ers faster than they were be­ing turned away and to chal­lenge state prac­tices that bur­den mi­nor­ity vot­ers dis­pro­por­tion­ately. More than a lawyer and an or­ga­nizer, Abrams be­came a teacher, a roam­ing con­sti­tu­tional law class on elec­tion ma­nip­u­la­tion.

• • •

The Roberts Court has worked hand in glove with states try­ing to turn vot­ing into an ob­sta­cle course, and that has been done in re­sponse to a nonex­is­tent emer­gency that has never been proven by way of sta­tis­ti­cal anal­y­sis, po­lit­i­cal sci­ence mod­el­ing, or lit­i­ga­tion. “The right to vote freely for the can­di­date of one’s choice is of the essence of a demo­cratic so­ci­ety, and any re­stric­tions on that right strike at the heart of rep­re­sen­ta­tive gov­ern­ment,” Chief Jus­tice Earl War­ren an­nounced in 1964 in Reynolds v. Sims—the high-wa­ter mark for vot­ing rights at the Supreme Court. That is the mes­sage Stacey Abrams car­ried out of 2018 and it was very much a mes­sage Amer­i­cans needed to hear.

It wasn’t just Shelby County that opened the flood­gates to wide­spread sup­pres­sion of mi­nor­ity vot­ing. The high court had signed off on strict voter-ID laws in Craw­ford v. Mar­ion County in 2008, even as it ac­knowl­edged that the scourge of so-called vote fraud it was in­tended to de­ter was van­ish­ingly rare. In a 2018 case, Husted v. A. Philip Ran­dolph In­sti­tute, the Supreme Court blessed Ohio’s voter purge sys­tem, al­low­ing the state to use one’s fail­ure to vote to trig­ger the process of re­mov­ing some­one from the voter rolls. In 2019 in Ru­cho v. Com­mon Cause, the Supreme Court de­cided that po­lit­i­cal ger­ry­man­der­ing claims are be­yond the reach of fed­eral courts and can­not be lit­i­gated be­cause they are not “jus­ti­cia­ble.” And of course, in 2010, the Supreme Court opened the flood­gates to dark, un­trace­able money in fi­nanc­ing po­lit­i­cal cam­paigns with the de­ci­sion in Cit­i­zens United v. FEC. Geor­gia in 2018 was run­ning the play­book, but the Roberts Court was writ­ing the plays.

It is a cliché to as­sert that one of the en­dur­ing lessons of the four years Trump held of­fice was that norms that did not have the force of law could col­lapse so swiftly un­der the weight of lies and de­cep­tions. One of the norms Trump sought to crush was the con­vic­tion that vot­ing is a se­cure and ra­tio­nal ac­tiv­ity in which ev­ery­one who is el­i­gi­ble should be al­lowed to par­tic­i­pate. Af­ter they were re­peat­edly told that vote fraud is ev­ery­where and that Trump lost the pop­u­lar vote to Hillary Clin­ton in 2016 only be­cause mil­lions of peo­ple cast il­le­gal bal­lots, it was cer­tainly pos­si­ble that Amer­i­cans would sim­ply give up on vot­ing. That, more so even than vote sup­pres­sion, was the ex­is­ten­tial fear of the Trump at­tack on vot­ing. The mes­sage he would at­tempt to con­vey in the 2020 pres­i­den­tial elec­tion was not merely that vot­ing sys­tems were rife with cheat­ing but that vot­ing is fun­da­men­tally point­less. Ni­hilism, as much as shut­tered polling places and re­jected voter reg­is­tra­tions, was the real cur­rency in which Trump was trad­ing. Tell enough vot­ers that Democrats, Ital­ians, let­ter car­ri­ers, George Soros, the peo­ple who build vot­ing ma­chines, for­eign vot­ers, and non­par­ti­san state elec­tion of­fi­cials are all con­spir­ing to throw the elec­tion, and why would any­one vote again? Bet­ter to stay at home and root for the in­sur­rec­tion.

Vot­ing in the United States is, at bot­tom, a fan­tas­ti­cal act of trust in com­pli­cated, de­cen­tral­ized, and ag­ing elec­tion sys­tems op­er­ated by hu­mans who make fewer er­rors than one might ex­pect. Why would any­one, amid claims that the me­dia was ly­ing and for­eign­ers were flip­ping elec­tion ma­chines, en­gage in the mon­strously ir­ra­tional act of stand­ing in end­less lines, some­times for hours and, in 2020, dur­ing a global health catas­tro­phe, to do some­thing that’s fun­da­men­tally just sta­tis­ti­cally sense­less? The ni­hilism and de­nial­ism that swamped so much of Amer­i­can dis­course and thought could eas­ily have over­mas­tered any­one’s in­ter­est in or de­sire to vote. One 2009 study found that in the states in which any sin­gle vote was most likely to mat­ter, one vote had an ap­prox­i­mate one-in-ten-mil­lion chance of de­ter­min­ing the na­tional elec­tion out­come. On av­er­age, the same study con­cluded, any one voter in Amer­ica had a one-in-sixty-mil­lion chance of be­ing de­ci­sive in the pres­i­den­tial elec­tion. Vot­ing is math­e­mat­i­cally point­less. It’s a whis­pered prayer. It’s an act of col­lec­tive hope and ac­tivism that feels anachro­nis­tic when the temp­ta­tion to be­lieve that the fix is in is over­whelm­ing. Trump’s en­dur­ing con­tri­bu­tion to Amer­ica—long be­fore the 2020 con­test he still dis­putes—was to un­der­mine voter trust in the ab­sence of any ev­i­dence. It’s en­dur­ing be­cause, as of this writ­ing, about six in ten Re­pub­li­cans be­lieve that Joe Biden lost the 2020 elec­tion, with­out any ev­i­dence to sup­port that view. And that statis­tic is vi­tal be­cause un­der cover of “elec­tion in­tegrity” claims, vot­ing is be­ing sup­pressed na­tion­wide.

Even be­fore COVID and a last-minute ef­fort by Trump’s at­tor­ney gen­eral and post­mas­ter gen­eral to un­der­mine vot­ing by mail, I was be­set by the fear that if I put into writ­ing that vot­ing was un­der at­tack, I was invit­ing my own read­ers to sit out elec­tions; that just talk­ing and writ­ing about vote sup­pres­sion and voter in­tim­i­da­tion and long lines and court in­ter­ven­tions would give prospec­tive vot­ers a rea­son to give up and stay home. Geor­gia his­to­rian Carol An­der­son, au­thor of One Per­son, No Vote, was hav­ing none of that. In an in­ter­view in Feb­ru­ary 2020, when I asked her on a pod­cast why any­one should even bother at­tempt­ing to vote con­sid­er­ing all the bar­ri­ers faced by mi­nori­ties, young peo­ple, and other vul­ner­a­ble com­mu­ni­ties, she re­minded me that cit­i­zens are per­son­ally re­spon­si­ble for shoring up the Fif­teenth Amend­ment, and that when states erect bar­ri­ers to vot­ing, one’s in­di­vid­ual re­spon­si­bil­ity only in­creases:

When I talk about putting the re­spon­si­bil­ity of ad­her­ing to the 15th Amend­ment on the shoul­ders and on the backs of the in­di­vid­u­als, that means check­ing your voter reg­is­tra­tion on a con­sis­tent ba­sis to make sure you’re still reg­is­tered and to make sure your vot­ing place is where you know it is, and then mak­ing a screen­shot of it. So you have ev­i­dence of it. It means know­ing that the lines are prob­a­bly go­ing to be re­ally long, if you vote in a mi­nor­ity precinct. So you come pre­pared. You come with your cell­phone. You come with a bat­tery pack. You come with wa­ter, you come with snacks, you come with com­fort­able shoes. Be­cause if we don’t do that now, what comes af­ter­wards is some­thing that’s go­ing to be ab­so­lutely hor­rific to deal with.

In the face of bar­ri­ers to vot­ing, you vote, she was urg­ing. You vote in pre­cisely the way most Black peo­ple have voted in Amer­ica for decades, if and when they were per­mit­ted to vote at all. Vote for the prom­ise be­cause there is no backup plan. At the Demo­cratic Na­tional Con­ven­tion in Au­gust 2020, for­mer pres­i­dent Barack Obama sounded the same un­char­ac­ter­is­ti­cally wary note, warn­ing of Trump, “This pres­i­dent and those in power—those who ben­e­fit from keep­ing things the way they are—they are count­ing on your cyn­i­cism. They know they can’t win you over with their poli­cies. So they’re hop­ing to make it as hard as pos­si­ble for you to vote, and to con­vince you that your vote doesn’t mat­ter.” For­mer first lady Michelle Obama, in her own DNC speech, of­fered a more graphic cau­tion. “Right now,” she said, “folks who know they can­not win fair and square at the bal­lot box are do­ing ev­ery­thing they can to stop us from vot­ing. They’re clos­ing down polling places in mi­nor­ity neigh­bor­hoods. They’re purg­ing voter rolls. They’re send­ing peo­ple out to in­tim­i­date vot­ers and they’re ly­ing about the se­cu­rity of our bal­lots. These tac­tics are not new.” The Oba­mas’ fi­nal charge in the months be­fore the 2020 elec­tion was that in the face of elec­toral cyn­i­cism and fear, mak­ing any one vote mat­ter is how you make vot­ing mat­ter, and that long af­ter the found­ing, long af­ter the Re­con­struc­tion Amend­ments, long af­ter the Vot­ing Rights Act and Shelby County, vot­ing when the fran­chise is un­der as­sault is the most pa­tri­otic act of all. It was the ad­vice Anita Hill had given in de­fense of stand­ing up and nam­ing your sex­ual ha­rasser: you do it be­cause “think about where we would be if no­body was do­ing it.”

• • •

As I was fin­ish­ing this chap­ter—os­ten­si­bly about the events of the 2018 gu­ber­na­to­rial race in Geor­gia—the Supreme Court handed down an opin­ion on July 1, 2021, in a vot­ing rights case I men­tioned ear­lier, called Brnovich v. DNC. Dis­sent­ing in this de­ci­sion on the last day of the term, Jus­tice Elena Ka­gan es­sen­tially ghost­wrote this chap­ter about the 2018 Geor­gia gov­er­nor’s race by set­ting forth the long his­tory of state-sanc­tioned vote sup­pres­sion in the United States. It may well be­come the most im­por­tant dis­sent­ing opin­ion she ever writes, and she’s al­ready penned some doozies.

In a crush­ing blow to democ­racy, and vot­ing along 6–3 lines, the high court in Brnovich ef­fec­tively put an end to Sec­tion 2 of the Vot­ing Rights Act of 1965. The Supreme Court had al­ready evis­cer­ated Sec­tion 5 of the VRA back in 2013 in Shelby County v. Holder. Sec­tion 2 barred any “vot­ing qual­i­fi­ca­tion,” any “pre­req­ui­site to vot­ing,” or any “stan­dard, prac­tice, or pro­ce­dure” that “re­sults in a de­nial or abridge­ment of the right” to “vote on ac­count of race.” Sec­tion 5 was in­tended to get around the fact that lit­i­ga­tion is slow, ex­pen­sive, and bur­den­some by putting ju­ris­dic­tions with racist vot­ing his­to­ries un­der fed­eral su­per­vi­sion, or pre­clear­ance. Gut­ting Sec­tion 5 in 2013, the court soothed it­self by not­ing that vul­ner­a­ble vot­ers would al­ways be able to rely upon the pro­tec­tions of Sec­tion 2 to fight racial­ized vot­ing prac­tices. In 2021, Sec­tion 2 was blown up as well. Jus­tice Ka­gan, dis­sent­ing on be­half of her­self, So­nia So­tomayor, and Stephen Breyer in Brnovich, wrote what can only be de­scribed as an el­egy to the Amer­i­can ef­forts to build a true rep­re­sen­ta­tional democ­racy. Her open­ing pas­sage set forth the his­tory of re­cent decades:

If a sin­gle statute rep­re­sents the best of Amer­ica, it is the Vot­ing Rights Act. It mar­ries two great ideals: democ­racy and racial equal­ity. And it ded­i­cates our coun­try to car­ry­ing them out. Sec­tion 2, the pro­vi­sion at is­sue here, guar­an­tees that mem­bers of ev­ery racial group will have equal vot­ing op­por­tu­ni­ties. Cit­i­zens of ev­ery race will have the same shot to par­tic­i­pate in the po­lit­i­cal process and to elect rep­re­sen­ta­tives of their choice. They will all own our democ­racy to­gether—no one more and no one less than any other.

If a sin­gle statute re­minds us of the worst of Amer­ica, it is the Vot­ing Rights Act. Be­cause it was—and re­mains—so nec­es­sary. Be­cause a cen­tury af­ter the Civil War was fought, at the time of the Act’s pas­sage, the prom­ise of po­lit­i­cal equal­ity re­mained a dis­tant dream for African Amer­i­can cit­i­zens. Be­cause States and lo­cal­i­ties con­tin­u­ally “con­triv[ed] new rules,” mostly neu­tral on their face but dis­crim­i­na­tory in op­er­a­tion, to keep mi­nor­ity vot­ers from the polls . . . Be­cause “Con­gress had rea­son to sup­pose” that States would “try sim­i­lar ma­neu­vers in the fu­ture”—“pour[ing] old poi­son into new bot­tles” to sup­press mi­nor­ity votes . . . Be­cause Con­gress has been proved right.

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. It is as­tound­ing that in­stead of start­ing from the pre­sump­tion that ev­ery­one should vote, there are state leg­is­la­tures, state courts, and fed­eral judges who are in­tent on mak­ing it ever harder for peo­ple to vote be­cause of a wholly imag­i­nary scourge of fraud­u­lent vot­ing that has never been proven. Most as­tound­ing of all is that this is how the coun­try that calls it­self the world’s old­est con­sti­tu­tional democ­racy has cho­sen to em­bark upon the twenty-first cen­tury.

Stacey Abrams’s con­tri­bu­tion to the seem­ing doom loop of shrink­ing vot­ing rights, as aided and abet­ted by the Supreme Court, was to refuse to suc­cumb to the doom. In her view, vot­ing is an act of con­fi­dence, a choice to be vis­i­ble, a web of con­nec­tions, a mech­a­nism to bet­ter your con­di­tion, and a re­fusal to be told that you don’t be­long in the gov­er­nor’s man­sion, whether you’re a high schooler who ar­rived via pub­lic trans­port or a Black woman try­ing to or­ga­nize un­com­mit­ted vot­ers. Abrams came out of the 2018 gov­er­nor’s race with no il­lu­sions about the haz­ards of vot­ing while Black. She told CBS News in 2021 that this was part of the point: “When you’ve never had to think about 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 in their lives.”

In short, what Stacey Abrams of­fered Amer­i­cans was rooted in the trans­for­ma­tional force of tak­ing back power and be­liev­ing in democ­racy in the face of be­ing told noth­ing mat­ters. But also what she of­fered up was the obli­ga­tion to take on the ex­tra­or­di­nary act of em­pa­thy and imag­i­na­tion re­quired to un­der­stand what Ka­gan was say­ing in Brnovich in 2021: that just be­cause you have voter ID, and just be­cause you have a mail­box up the street, and just be­cause you have the last name Smith doesn’t make vot­ing sim­ple for ev­ery­one. And if thou­sands of peo­ple can­not vote be­cause of where they live or how their last name is spelled or be­cause they live on an In­dian reser­va­tion with a PO box, then no­body is vot­ing in a real democ­racy. Jus­tice Samuel Al­ito, writ­ing for the ma­jor­ity in Brnovich, failed to even at­tempt to imag­ine what vot­ing might be like on a reser­va­tion. The only suf­fer­ing he seemed able to see was his own un­founded fear about ram­pant vote fraud.

One of the things women bring to the law 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. It’s why it mat­ters that Stacey Abrams writes ro­mance nov­els and that Pauli Mur­ray wrote po­ems. Both are acts of imag­i­na­tion and gen­eros­ity. Abrams didn’t just build a ma­chine that would “get out the vote” in Geor­gia. She told a story that would set the stage for a 2020 elec­tion in Geor­gia, and across the na­tion, in which mil­lions of Amer­i­cans who never had the ex­pe­ri­ence of vot­ing while Black could fi­nally both imag­ine what that was like and pre­pare them­selves to do so.

10

elec­tions part 2

The Elec­tions Long Game: Re­dis­trict­ing and the Cen­sus

Nina Perales: The Latino Vote Strate­gist

Nina Perales, who helms vot­ing rights lit­i­ga­tion at MALDEF, the Mex­i­can Amer­i­can Le­gal De­fense and Ed­u­ca­tional Fund, always starts with the re­minder that the right to vote is sin­gu­lar: “The right to vote has been de­scribed as fun­da­men­tal to the ex­er­cise of all other rights. With­out the abil­ity to have a voice in gov­ern­ment, you lose on a lot of other fronts, in­clud­ing pub­lic ed­u­ca­tion and im­mi­gra­tion pol­icy. Par­tic­u­larly for the Latino com­mu­nity, the abil­ity to trans­late our de­mo­graphic growth into a voice in pol­i­tics is cen­tral to our en­try into Amer­i­can life.”

That bat­tle has been Perales’s daily ex­is­tence for more than two decades. Perales is laugh-out-loud funny and dis­arm­ingly frank for a tac­ti­cian and lit­i­ga­tor. She wears her brown hair in a tidy bun and de­scribes the Women’s March in DC in 2017 in terms of “these women that went to DC and they wore pink hats with lit­tle cat ears on them.” But that wasn’t her ex­pe­ri­ence of Jan­u­ary 2017. She told me she saw pho­tos of the first Women’s March, sure, but “that wasn’t re­ally nec­es­sar­ily some­thing that was big hap­pen­ing in Texas.” Perales was born in New York, and she holds an as­so­ciate of arts de­gree from Bard Col­lege at Si­mon’s Rock, a bach­e­lor’s de­gree from Brown Uni­ver­sity, and a JD from Co­lum­bia Law School. “I was def­i­nitely a stu­dent ac­tivist,” she says. “I went to Brown un­der­grad and I was a stu­dent ac­tivist.” She went to law school al­ways know­ing she wanted to be­come a civil rights at­tor­ney be­cause she was born to it. “My dad,” she says, “was also a civil rights lawyer, and he was a founder of the Puerto Ri­can Le­gal De­fense Fund. Some of the other founders re­mem­ber me be­ing very small and go­ing to some of those meet­ings.”

Af­ter a five-year stint at the Puerto Ri­can Le­gal De­fense and Ed­u­ca­tion Fund in New York City and hav­ing at­tended the fourth UN World Con­fer­ence on Women in Bei­jing in 1995, with a del­e­ga­tion of Latina women, Perales moved with her hus­band to Texas, where they have lived for twenty-five years. She ar­rived in Texas, she says, “as a young bride” and ap­plied for a vot­ing rights at­tor­ney po­si­tion at MALDEF in San An­to­nio. “I must’ve in­ter­viewed when I was nine months preg­nant,” she told me, “be­cause I looked like a house. . . . In fact, some­body had to drive me to the in­ter­view be­cause I couldn’t reach the steer­ing wheel any­more. And I got the job, and so I came right off ma­ter­nity leave and started work­ing at MALDEF and that was twenty-five years ago.”

To­day, Perales man­ages all the day-to-day lit­i­ga­tion ac­tiv­ity of MALDEF’s re­gional of­fices, and her vot­ing rights work de­mands more and more at­ten­tion to re­dis­trict­ing, fo­cus­ing on how elec­toral dis­tricts are drawn to di­lute mi­nor­ity vot­ing. In a 2021 pod­cast, she ex­plained 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.” In other words, when voter purges and voter ID and oner­ous reg­is­tra­tion re­quire­ments can’t get the job done, re­dis­trict­ing can en­sure that even if you man­age to vote, you are not heard or rep­re­sented. That’s a sim­ple mat­ter of draw­ing maps that drown out some voices and am­plify oth­ers.

Perales started at MALDEF do­ing vot­ing rights, then, in the 2001 re­dis­trict­ing cy­cle, she moved onto a Texas case that went all the way to the Supreme Court. In 2006, she ar­gued and won a vote di­lu­tion case pressed by Latino vot­ers un­der the Vot­ing Rights Act, League of United Latin Amer­i­can Cit­i­zens v. Perry. In that case, the jus­tices found that the Texas leg­is­la­ture had blocked West Texas’s Latino vot­ers from elect­ing their pre­ferred can­di­date by re­mov­ing 100,000 Lati­nos from their con­gres­sional dis­trict. Perales has since been in­volved in re­dis­trict­ing in Texas, Ari­zona, and Ar­kan­sas, and with the 2020 cen­sus just taken, she told me, “we’re get­ting ready to do re­dis­trict­ing all over the map for this up­com­ing round.” Re­dis­trict­ing cases fall to a rel­a­tively small group of at­tor­neys, and al­most none of them are women.

Asked whether dis­crim­i­na­tion against Lati­nos looked dif­fer­ent grow­ing up in New York than it does to­day in Texas, Perales ex­plained, “It was dif­fer­ent for me, be­cause my eth­nic ori­gin is Puerto Ri­can. But I moved to Laredo—for the first year my hus­band was clerk­ing in Laredo—and Laredo is 98 per­cent Mex­i­can Amer­i­can.” In one sense, she told me, she “moved from one Span­ish-speak­ing com­mu­nity to an­other Span­ish-speak­ing com­mu­nity.” But she added that New York once had a lit­er­acy test while Texas did not. Perales told me that a good deal of vot­ing rights work done in New York came amid a lot of back­lash against ar­riv­ing im­mi­grants. “That’s where the lit­er­acy test in New York came from,” she said.

“The Puerto Ri­can ex­pe­ri­ence in New York,” Perales added, “the great mi­gra­tion of the ’50s and the ’60s, in­volved a lot of push­back against brown folks ar­riv­ing. And Puerto Ri­cans are US cit­i­zens by birth, so they were el­i­gi­ble to vote, and there were still so many bar­ri­ers put up, par­tic­u­larly for lan­guage.” Com­ing from that to Texas, she told me, was very dif­fer­ent, “but a lot of the his­tor­i­cal trends were the same.” Perales ex­plained that the coali­tion built around re­dis­trict­ing and Latino vot­ing rights first took root af­ter World War II: “One of my clients is the GI Fo­rum. Those are Latino war vet­er­ans. And when I did the re­dis­trict­ing in the 2000 round, a lot of my guys were still from World War II. These were the guys that came back from Eu­rope, where they saw in­te­gra­tion, to the United States.” Re­turn­ing to the United States, these sol­diers “saw the same Jim Crow seg­re­ga­tion they were raised with: seg­re­gated parks, swim­ming pools, li­braries, schools, restau­rants, the­aters, where you have to go in a sep­a­rate en­trance and sit in a dif­fer­ent area.” In some ways, though, they were lucky, she told me: they were young, able to get a good ed­u­ca­tion be­cause of the GI bill. “And these were the guys that re­ally built the legs un­der the Latino civil rights move­ment, and they built the legs un­der MALDEF and many other or­ga­ni­za­tions.”

Perales told me that Latino vot­ers don’t nec­es­sar­ily skew to the Democrats, who have not al­ways served their in­ter­ests. “Some of these guys were still around in the 2000s when I was rep­re­sent­ing the GI Fo­rum, and their mem­o­ries go deeply into the time when Texas was a Demo­cratic state and deeply racist and seg­re­gated.” For those vot­ers, she added, “the party la­bel was not as im­por­tant as the op­por­tu­nity for the Latino com­mu­nity to be able to cast a bal­lot.” In the last round of re­dis­trict­ing, Perales said, “it was in­sti­tu­tional mem­ory of these Latino or­ga­ni­za­tions that were com­ing to­gether say­ing, ‘We need to get on top of this, or we’re just go­ing to end up at the dis­ad­van­tage we had be­fore.’ ”

Long be­fore Trump’s elec­tion in 2016, Perales saw that vot­ing rights were go­ing to be swept up into a larger po­lit­i­cal dis­course that fo­mented fear of im­mi­grants and com­mu­ni­ties of color, that “Make Amer­ica Great Again” never re­ally en­vi­sioned al­low­ing ev­ery Amer­i­can to vote, and that this would be about color and im­mi­gra­tion, more than who was, strictly speak­ing, Amer­i­can. That’s been her life these past years. In 2018, Perales started de­fend­ing the fed­eral De­ferred Ac­tion for Child­hood Ar­rivals pro­gram that of­fered the chil­dren of un­doc­u­mented im­mi­grants who were brought to the States a path­way to cit­i­zen­ship. That same year MALDEF chal­lenged a Texas law re­quir­ing coun­ties and cities to en­force fed­eral im­mi­gra­tion law against lo­cal res­i­dents. In 2018, Perales was at the Supreme Court with an­other racial ger­ry­man­der­ing case in Texas. Be­cause one of the truly en­dur­ing lega­cies of Trump­ism has been about mak­ing mi­nori­ties in Amer­ica in­vis­i­ble.

Trump took of­fice in 2017 with a clear plan to di­min­ish vot­ing rights, and he used the lie of wide­spread vote fraud to do so. His first at­tor­ney gen­eral, Jeff Ses­sions, was no­to­ri­ous for his (botched) ef­forts as a US at­tor­ney in Al­abama to con­vict three African Amer­i­can ac­tivists for voter fraud. His overzeal­ous pros­e­cu­tion of those vot­ing rights ac­tivists was one of the rea­sons the Sen­ate re­jected Ses­sions for a fed­eral judge­ship in 1986. Over the twenty years Ses­sions sat in the US Sen­ate, only one Black per­son was ever ap­pointed to a fed­eral judge­ship in Al­abama, a state that is 26 per­cent African Amer­i­can. But what once pre­cluded Ses­sions from a ju­di­cial seat made him dou­bly at­trac­tive as a Trump sur­ro­gate on the cam­paign trail and then as Trump’s first at­tor­ney gen­eral.

When Trump was out cam­paign­ing for the pres­i­dency in 2016, Ses­sions was am­pli­fy­ing his false claims about voter ID and mass vote fraud and echo­ing Trump’s in­sis­tence that the Democrats were “at­tempt­ing to rig this elec­tion.” When it emerged that Trump had lost the pop­u­lar vote to Hillary Clin­ton by 2.9 mil­lion votes in the 2016 pres­i­den­tial race, Trump re­fused to ac­cept that those bal­lots were cast le­git­i­mately. He hastily as­sem­bled the nom­i­nally bi­par­ti­san Pres­i­den­tial Ad­vi­sory Com­mis­sion on Elec­tion In­tegrity in 2017. That com­mis­sion was tasked with de­ter­min­ing which “laws, rules, poli­cies, ac­tiv­i­ties, strate­gies, and prac­tices . . . un­der­mine the Amer­i­can peo­ple’s con­fi­dence in the in­tegrity of vot­ing pro­cesses used in Fed­eral elec­tions,” all in the hopes of fur­ther un­der­min­ing the Amer­i­can peo­ple’s con­fi­dence in the in­tegrity of vot­ing pro­cesses. The com­mis­sion was co-chaired by Vice Pres­i­dent Mike Pence and the long­time elec­tion fraud en­thu­si­ast/fab­u­list Kris Kobach.

While he was Kan­sas’s sec­re­tary of state, Kobach’s sig­na­ture le­gal in­ter­ven­tion had re­quired ev­ery new voter to prove cit­i­zen­ship be­fore reg­is­ter­ing, a mea­sure that had blocked the reg­is­tra­tions of more than thirty-five thou­sand el­i­gi­ble Kan­sas vot­ers. That re­quire­ment was even­tu­ally struck down in 2018 by a fed­eral judge, Julie Robin­son. Kobach, who ar­gued on be­half of Kan­sas in court, was fined, sanc­tioned, and sent to a lawyers’ equiv­a­lent of traf­fic school for his mis­con­duct dur­ing the trial. Judge Robin­son con­cluded in her 2018 opin­ion that af­ter scrupu­lously ex­am­in­ing all the sta­tis­ti­cal ev­i­dence put forth by Kobach, “while there is ev­i­dence of a small num­ber of nonci­t­i­zen reg­is­tra­tions in Kan­sas, it is largely ex­plained by ad­min­is­tra­tive er­ror, con­fu­sion, or mis­take.” Kobach, she added, had promised that the fraud he had al­leged was just the tip of the ice­berg, and yet “the Court draws the more ob­vi­ous con­clu­sion that there is no ice­berg; only an ici­cle, largely cre­ated by con­fu­sion and ad­min­is­tra­tive er­ror.” In his eight-year cru­sade to un­earth mass vote fraud in Kan­sas, Kobach ul­ti­mately se­cured nine con­vic­tions in a state of nearly two mil­lion vot­ers.

Trump’s so-called Elec­tion In­tegrity Com­mis­sion was sim­i­larly doomed to fail. In its first of­fi­cial act in 2017, the com­mis­sion de­manded vast quan­ti­ties of pub­lic in­for­ma­tion from the states about their vot­ers, in­clud­ing names, ad­dresses, dates of birth, po­lit­i­cal af­fil­i­a­tions, vot­ing his­tory, and the last four dig­its of their So­cial Se­cu­rity num­bers. That trig­gered out­rage from both sides of the po­lit­i­cal spec­trum, as well as mul­ti­ple law­suits that even­tu­ally led to the dis­in­te­gra­tion of the com­mis­sion in 2018. Like Kobach’s spec­tac­u­lar flame­out in the Kan­sas fed­eral courts, it was ob­vi­ous the en­tire pur­pose of this com­mis­sion wasn’t to un­earth vote fraud but to use the specter of imag­i­nary vote fraud to roll back the vote and to ter­ror­ize im­mi­grants and vot­ers of color.

One les­son of the Trump years with re­spect to vot­ing rights was this: just as there is no sin­gle way to choke off the right to vote, there is no one way to de­fend against it. While there were armies of elec­tion lawyers and law­suits in the four years Trump was pres­i­dent, there was never the vot­ing rights case of the Trump era, and you’d be hard-pressed to name the vot­ing rights lawyer. As Vanita Gupta sug­gested ear­lier in this book, vot­ing rights wins across the coun­try were achieved by hun­dreds of or­ga­niz­ers and lit­i­ga­tors. The ACLU’s Dale Ho, with a pha­lanx of staff at­tor­neys, pre­vailed in the Kan­sas law­suit against Kobach’s cit­i­zen­ship law. Marc Elias and his col­leagues at Perkins Coie beat back dozens of elec­tion chal­lenges from Trump and his al­lies around the 2020 elec­tion. Sher­ri­lyn Ifill at the NAACP Le­gal De­fense Fund, Paul Smith at the Cam­paign Le­gal Cen­ter, Kris­ten Clarke at the Lawyers’ Com­mit­tee for Civil Rights, and Stacey Abrams in Geor­gia were all “the lawyer,” and they op­er­ated in coali­tions na­tion­wide, part­nered with pri­vate law firms, aca­demic ad­vi­sors, vol­un­teer lawyers, and law stu­dents.

As of this writ­ing, Lati­nos con­sti­tute 18 per­cent of the US pop­u­la­tion and rep­re­sent half the pop­u­la­tion growth in the United States over the past ten years. Texas is now home to the sec­ond-big­gest Latino pop­u­la­tion in the coun­try, be­hind Cal­i­for­nia, and by 2040 it’s pro­jected that Lati­nos will con­sti­tute the ma­jor­ity of its cit­i­zens. And in Texas, Perales was see­ing the trends Abrams had clocked in Geor­gia. Mi­nori­ties flex­ing new elec­toral mus­cle. “What hap­pened in 2018,” she told me, “in a midterm elec­tion where Lati­nos bumped their vote share up by five per­cent­age points . . . I’ve never seen that hap­pen be­fore, ever.”

What ac­counted for that mas­sive uptick in Latino en­gage­ment? Perales laughed. “I don’t know ex­actly what was go­ing on in 2018, ex­cept Beto O’Rourke, who by the way is not Latino. Beto O’Rourke re­ally caught fire in the young peo­ple.” As was the case with re­spect to women vot­ers around the coun­try, young Lati­nos in 2018 were mo­bi­lized and ac­ti­vated, and there was a huge jump in voter turnout. “And I think that was very scary for the peo­ple who are in lead­er­ship in Texas right now. I think that’s why we are see­ing so many pro­pos­als now that would make it more dif­fi­cult to vote in Texas.”

At the time of its found­ing, MALDEF was con­tend­ing with Jim Crow–style dis­crim­i­na­tion lev­eled against Mex­i­can Amer­i­cans in hous­ing, school­ing, pub­lic ac­com­mo­da­tions, and em­ploy­ment. MALDEF has since ex­panded to rep­re­sent all Lati­nos, not just in the South­west but around the coun­try. They lit­i­gate around racist and un­fair elec­tions, lo­cal or­di­nances, and em­ploy­ment prac­tices. And Perales was quick to point out that while we think of Jim Crow in terms of de­lib­er­ate dis­crim­i­na­tion against Black Amer­i­cans, le­gal dis­crim­i­na­tion against Mex­i­can Amer­i­cans in the South­west was al­ways per­va­sive. Texas’s long his­tory of vot­ing dis­crim­i­na­tion against its Latino and African Amer­i­can cit­i­zens dates back to 1845. Sec­tion 5 of the Vot­ing Rights Act was in fact ex­panded to in­clude Texas for pre­clear­ance of new elec­tion rules in 1975.

One rea­son Perales has been in­volved in so many vot­ing and re­dis­trict­ing cases around the coun­try is that Texas has been a kind of dark lab­o­ra­tory for years of ef­forts to sup­press Latino votes. Three decades ago, a Re­pub­li­can op­er­a­tive, Thomas Hofeller, in­fa­mously said, “I de­fine re­dis­trict­ing as the only le­gal­ized form of vote-steal­ing left in the United States to­day.” The same Hofeller ex­plained glee­fully in 2001 that “re­dis­trict­ing 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!”

It was Hofeller who would be­come the pri­mary ar­chi­tect of the GOP’s broad, years-long ger­ry­man­der­ing pro­gram that re­lied on col­lect­ing data on race and vot­ing be­hav­ior, then craft­ing maps sur­gi­cally re­verse en­gi­neered to di­lute the in­flu­ence of mi­nor­ity vot­ers. It was also Hofeller, even in death, who would be­come a cen­tral part of the Trump ad­min­is­tra­tion’s at­tempt to add a cit­i­zen­ship ques­tion to the 2020 cen­sus. That cen­sus would be the ba­sis for new vot­ing maps drawn in 2021 and for dis­tort­ing the mi­nor­ity count. In 2019, MALDEF was part of a coali­tion of groups that suc­cess­fully chal­lenged that ef­fort.

That Trump cit­i­zen­ship cen­sus case was not the most im­por­tant of the big Trump-era law­suits, but it is quite prob­a­bly one of the most pre­pos­ter­ous. The ad­min­is­tra­tion’s ham-fisted at­tempt to rig the 2020 cen­sus to di­lute and de­press the power of mi­nor­ity vot­ers and ter­ror­ize nonci­t­i­zens was em­blem­atic of the ways in which un­skilled and sloppy lawyer­ing ul­ti­mately blunted the most racist Trump im­pulses. Had they suc­ceeded, the move would have dis­cour­aged mi­nori­ties from be­ing counted in the cen­sus, which would have led to elec­toral maps that dra­mat­i­cally un­der­counted them. In tan­dem with the voter sup­pres­sion hap­pen­ing na­tion­wide, the ef­fect would have been to en­sure that even if Latino vot­ers were able to reg­is­ter and vote, their votes would count for less.

Perales ex­plained that the cit­i­zen­ship cen­sus ques­tion took aim at a very dif­fer­ent pop­u­la­tion from the groups that or­ga­nize around vot­ing or re­dis­trict­ing. “The cit­i­zen­ship ques­tion,” she ex­plains, would have “had a strong de­ter­rent ef­fect on peo­ple an­swer­ing the cen­sus.” The tar­get was al­ways “newly ar­rived im­mi­grants.” That’s a dif­fer­ent con­stituency from her re­dis­trict­ing clients, who are “usu­ally voter-el­i­gi­ble folks that are do­ing a lot of the ad­vo­cacy around re­dis­trict­ing,” she ex­plains. “Peo­ple who would iden­tify as Chi­cano, peo­ple who would use that word for them­selves, peo­ple who are Mex­i­can Amer­i­can and who iden­tify as Mex­i­can Amer­i­can. But the cen­sus cit­i­zen­ship ques­tion was aimed di­rectly at the heart of the im­mi­grant com­mu­nity.”

The cen­sus lit­i­ga­tion even­tu­ally re­vealed that as early as July 2017, Kan­sas’s sec­re­tary of state, Kris Kobach, had writ­ten to Trump’s com­merce sec­re­tary, Wilbur Ross, who over­saw the Cen­sus Bu­reau, urg­ing that a cit­i­zen­ship ques­tion be added to the de­cen­nial cen­sus of 2020. In Kobach’s mind, this was “es­sen­tial” be­cause a fail­ure to con­firm cit­i­zen­ship “leads to the prob­lem that aliens who do not ac­tu­ally ‘re­side’ in the United States are still counted for con­gres­sional ap­por­tion­ment pur­poses.”

Ar­ti­cle 1, sec­tion 2, of the Con­sti­tu­tion re­quires an “ac­tual Enu­mer­a­tion” of the pop­u­la­tion ev­ery ten years, “in such Man­ner as [Con­gress] shall by Law di­rect,” so that con­gres­sional rep­re­sen­ta­tives may be “ap­por­tioned among the sev­eral States.” Sec­tion 2 of the Four­teenth Amend­ment fur­ther adds that “Rep­re­sen­ta­tives shall be ap­por­tioned among the sev­eral States ac­cord­ing to their re­spec­tive num­bers, count­ing the whole num­ber of per­sons in each State.” “Per­sons” doesn’t mean “cit­i­zens” of course. The Con­sti­tu­tion man­dates that ev­ery “per­son” be counted. And the Cen­sus Bu­reau’s of­fi­cial po­si­tion has long been that ask­ing ques­tions about cit­i­zen­ship would de­press the count for “hard to count” groups, in­clud­ing nonci­t­i­zens and Lati­nos, be­cause they would be afraid—not un­rea­son­ably—that the in­for­ma­tion would be used against them and their loved ones. The Cen­sus Bu­reau stopped ask­ing about cit­i­zen­ship on the de­cen­nial cen­sus af­ter 1950.

But anti-im­mi­grant groups have long been push­ing the idea that only cit­i­zens should be counted, be­cause data from the cen­sus is used to al­lo­cate hun­dreds of bil­lions of dol­lars in fed­eral fund­ing each year and to de­ter­mine re­dis­trict­ing and con­gres­sional reap­por­tion­ment. The ef­fect of count­ing only cit­i­zens would be to push power and fund­ing away from ur­ban ar­eas to less pop­u­lated ru­ral dis­tricts, a move al­ready ac­com­plished by both Sen­ate malap­por­tion­ment and the Elec­toral Col­lege. The Supreme Court re­jected the cit­i­zen­ship ar­gu­ment in 2016, in a case called Even­wel v. Ab­bott, reaf­firm­ing that states must draw leg­isla­tive maps based on their to­tal pop­u­la­tion and not the num­ber of cit­i­zens in a dis­trict. Jus­tice Ruth Bader Gins­burg in an 8–0 opin­ion was clear: “It re­mains be­yond doubt that the prin­ci­ple of rep­re­sen­ta­tional equal­ity fig­ured promi­nently in the de­ci­sion to count peo­ple, whether or not they qual­ify as vot­ers.”

Sec­re­tary Ross’s own Cen­sus Bu­reau didn’t want a cit­i­zen­ship ques­tion. So he over­ruled them. Vir­tu­ally no con­ser­va­tive groups or think tanks sup­ported adding the cit­i­zen­ship ques­tion. Oh, well. Six for­mer di­rec­tors of the Cen­sus Bu­reau wrote to Ross warn­ing that adding the untested ques­tion would un­der­mine the ac­cu­racy of the cen­sus data. It didn’t mat­ter. Sec­re­tary Ross first an­nounced that he was adding a cit­i­zen­ship ques­tion to the cen­sus in 2018, and he said it needed to be done in re­sponse to a De­cem­ber 2017 re­quest from the Jus­tice De­part­ment for in­for­ma­tion they could use to bet­ter en­force Sec­tion 2 of the Vot­ing Rights Act. The Trump ad­min­is­tra­tion’s DOJ had not at that point filed even one case to en­force the Vot­ing Rights Act, so it was not clear why they might feel any ur­gency to start now. We would even­tu­ally learn, through this lit­i­ga­tion, that Ross was de­ter­mined to put the ques­tion on the cen­sus, that he was pes­ter­ing DOJ to for­mally ask him to add the ques­tion, and that they kept putting it off un­til he was forced to go di­rectly to the then at­tor­ney gen­eral, Jeff Ses­sions, and pitch a fit. Ev­ery lower court judge who ul­ti­mately heard this case even­tu­ally agreed that Ross’s claims about the DOJ’s pur­ported need to bet­ter en­force the Vot­ing Rights Act were pre­tex­tual and that Ross in fact worked back­ward from the de­sire to add a cit­i­zen­ship ques­tion to cob­bling to­gether a ra­tio­nale that would sound le­git­i­mate.

A coali­tion of blue states, cities, and ad­vo­cacy groups sued the ad­min­is­tra­tion, chal­leng­ing the de­ci­sion to add a cit­i­zen­ship ques­tion. Six dif­fer­ent law­suits were filed in courts around the coun­try, with MALDEF as one of the lit­i­gants. Their case La Unión del Pueblo En­tero v. Ross was filed in fed­eral court in Mary­land in May 2018. Other chal­lenges pro­ceeded in court­rooms around the coun­try. Ross re­fused to tes­tify—a dis­pute that it­self ended up go­ing all the way to the Supreme Court in Oc­to­ber 2018. The high court would ul­ti­mately shield him from hav­ing to tes­tify. All told, three dif­fer­ent fed­eral judges ruled that the cit­i­zen­ship ques­tion was im­prop­erly added and that Ross was not truth­ful about the fact that the de­ci­sion had orig­i­nated with him and not the Jus­tice De­part­ment. It was a spank­ing for the Trump ad­min­is­tra­tion.

Af­ter a full trial in Man­hat­tan, the fed­eral dis­trict court judge Jesse Fur­man was the first to find in 2019 that Ross had vi­o­lated the Ad­min­is­tra­tive Pro­ce­dure Act’s pro­hi­bi­tion on “ar­bi­trary and capri­cious” agency de­ci­sions. “The ev­i­dence is clear,” Fur­man wrote in his opin­ion, “that Sec­re­tary Ross’s ra­tio­nale was pre­tex­tual—that is, that the real rea­son for his de­ci­sion was some­thing other than the sole rea­son he put for­ward in his Mem­o­ran­dum, namely en­hance­ment of DOJ’s VRA en­force­ment ef­forts.” That was the case that was ap­pealed di­rectly to the Supreme Court and heard on an ex­pe­dited ba­sis; the clock was now tick­ing to have the cen­sus forms printed that sum­mer.

In March 2019, a fed­eral judge in Cal­i­for­nia found that the ad­min­is­tra­tion’s de­ci­sion to add the ques­tion vi­o­lated ad­min­is­tra­tive law. The fol­low­ing month the US dis­trict judge George Hazel of Mary­land re­leased a 119-page opin­ion sid­ing with the MALDEF chal­lengers in yet an­other law­suit: “The un­rea­son­able­ness of De­fen­dants’ ad­di­tion of a cit­i­zen­ship ques­tion to the Cen­sus is un­der­scored by the lack of any gen­uine need for the cit­i­zen­ship ques­tion, the woe­fully de­fi­cient process that led to it, the mys­te­ri­ous and po­ten­tially im­proper po­lit­i­cal con­sid­er­a­tions that mo­ti­vated the de­ci­sion and the clear pre­text of­fered to the pub­lic.” Both the Cal­i­for­nia and the Mary­land courts also found the cen­sus ques­tion un­con­sti­tu­tional be­cause, at a time of in­creased im­mi­gra­tion en­force­ment and anti-im­mi­grant rhetoric, it would ham­per the gov­ern­ment’s abil­ity to count ev­ery US per­son.

While the MALDEF de­ci­sion headed to the Fourth Cir­cuit Court of Ap­peals, the US Supreme Court heard ar­gu­ments in the ap­peal of the New York law­suit in April 2019. Af­ter that oral ar­gu­ment, the high court ap­peared poised to hand down a 5–4, con­ser­va­tive/lib­eral rul­ing in fa­vor of Ross and the Trump ad­min­is­tra­tion, per­mit­ting the cit­i­zen­ship ques­tion to be printed. But be­fore the de­ci­sion came down, The New York Times, in May 2019, pub­lished a bomb­shell: Thomas Hofeller, the afore­men­tioned Re­pub­li­can vot­ing strate­gist, had once been asked to craft a mech­a­nism for re­dis­trict­ing that would ad­van­tage “Re­pub­li­cans and non-His­panic whites.” His work had been used al­most ver­ba­tim, and un­cred­ited, to bol­ster the let­ter from the Jus­tice De­part­ment seek­ing cit­i­zen­ship data.

Hofeller had been dubbed “the Michelan­gelo of ger­ry­man­der­ing.” He died in Au­gust 2018. His es­tranged daugh­ter found files on his hard drive as she went through his per­sonal ef­fects, re­veal­ing that Hofeller had pro­duced a study in 2015 the­o­riz­ing about new ways to help Texas Re­pub­li­cans cre­ate ex­treme ger­ry­man­ders. He’d sug­gested craft­ing new rules for re­dis­trict­ing so that leg­isla­tive dis­tricts could be drawn based on the num­ber of vot­ing cit­i­zens, not the to­tal num­ber of peo­ple liv­ing there. Sure, Hofeller ac­knowl­edged, this would rep­re­sent a “rad­i­cal de­par­ture from the fed­eral ‘one per­son, one vote’ rule presently used in the United State[s].” But if you could count only cit­i­zens of vot­ing age, he’d urged, and ex­clude nonci­t­i­zens and their chil­dren, these new po­lit­i­cal maps “would be ad­van­ta­geous to Re­pub­li­cans and non-His­panic whites” while di­lut­ing the po­lit­i­cal power of Texas’s His­panic vot­ers.

Of course, Hofeller’s prob­lem in 2015, when he sug­gested ap­por­tion­ment based on cit­i­zen­ship, was that there was no de­tailed cit­i­zen­ship in­for­ma­tion be­ing col­lected. So, as he put it in his study, “with­out a ques­tion on cit­i­zen­ship be­ing in­cluded on the 2020 De­cen­nial Cen­sus ques­tion­naire, the use of cit­i­zen vot­ing age pop­u­la­tion is func­tion­ally un­work­able.” (In his study, Hofeller opted to side­step the ques­tion of whether “the gain of GOP vot­ing strength [would] be worth the alien­ation of Latino vot­ers who will per­ceive a switch to CVAP [Cit­i­zen Vot­ing Age Pop­u­la­tion] as an at­tempt to di­min­ish their vot­ing strength.”) In other words, in or­der to be able to draw leg­isla­tive dis­tricts that would ad­van­tage Re­pub­li­cans and whites, Hofeller needed an in­stru­ment to mea­sure cit­i­zen­ship. That proved to be the en­gine that drove the cen­sus cit­i­zen­ship ques­tion.

The dis­cov­ery of the Hofeller hard drives re­vealed that Trump of­fi­cials had lied. The plain­tiffs filed a let­ter with the court while the case was pend­ing, putting the new rev­e­la­tions di­rectly be­fore the jus­tices as they drafted opin­ions. This made vot­ing for Team Wilbur Ross awk­ward, at least for Chief Jus­tice John Roberts. The US Supreme Court re­leased its opin­ion in the New York lit­i­ga­tion in late June with a 5–4 split and a ma­jor­ity opin­ion penned by Roberts. He had joined the court’s lib­eral wing to con­clude that Sec­re­tary Ross’s stated rea­son for adding the ques­tion was pre­tex­tual. The court held that Ross was re­quired un­der the Ad­min­is­tra­tive Pro­ce­dure Act to pro­vide the true rea­son for adding the ques­tion, and left open the pos­si­bil­ity that he could still do so, al­though time was run­ning out to print the cen­sus forms. But the chief jus­tice was un­stint­ing in his crit­i­cism of the moun­tain of dis­hon­esty the cen­sus lit­i­ga­tion had un­earthed:

Al­to­gether, the ev­i­dence tells a story that does not match the ex­pla­na­tion the Sec­re­tary gave for his de­ci­sion. In the Sec­re­tary’s telling, Com­merce was sim­ply act­ing on a rou­tine data re­quest from an­other agency. Yet the ma­te­ri­als be­fore us in­di­cate that Com­merce went to great lengths to elicit the re­quest from DOJ (or any other will­ing agency). And un­like a typ­i­cal case in which an agency may have both stated and un­stated rea­sons for a de­ci­sion, here the VRA en­force­ment ra­tio­nale—the sole stated rea­son—seems to have been con­trived.

“Con­trived” is a sober in­sti­tu­tion­al­ist’s word for “pants on fire.” Roberts con­cluded, “Our re­view is def­er­en­tial, but we are ‘not re­quired to ex­hibit a naivete from which or­di­nary cit­i­zens are free.’ ” The four con­ser­va­tive jus­tices were out­raged that the courts sought to probe Sec­re­tary Ross’s gen­uine mo­ti­va­tions and de­sires, with Clarence Thomas writ­ing to ques­tion the trial court judge Jesse Fur­man’s per­sonal in­tegrity: “I do not deny that a judge pre­dis­posed to dis­trust the Sec­re­tary or the ad­min­is­tra­tion could ar­range those facts on a cork­board and—with a jar of pins and a spool of string—cre­ate an eye-catch­ing con­spir­acy web.”

For a few weeks, it looked as if the ad­min­is­tra­tion was go­ing to at­tempt to craft a new cit­i­zen­ship ques­tion ra­tio­nale that would mol­lify the high court, and in July 2019, Trump an­nounced that the ques­tion was still go­ing to be on the cen­sus. “We are ab­so­lutely mov­ing for­ward, as we must, be­cause of the im­por­tance of the an­swer to this ques­tion,” Trump tweeted, on July 3, 2019, lead­ing Judge Hazel, who was over­see­ing the MALDEF chal­lenge, to de­mand an emer­gency tele­phone hear­ing with the ad­min­is­tra­tion’s lawyers, who had them­selves learned of the pres­i­dent’s new plans via tweet. Within days, a group of ca­reer Jus­tice De­part­ment at­tor­neys who had been work­ing on the New York and Mary­land cases asked to be re­moved from the law­suit al­to­gether. Ev­i­dently, even they had seen enough.

In July, Trump signed an ex­ec­u­tive or­der bar­ring un­doc­u­mented im­mi­grants from be­ing counted for con­gres­sional ap­por­tion­ment pur­poses and seek­ing cit­i­zen­ship data that would be col­lected by other means. That, too, was chal­lenged in court. Fi­nally, Trump and Ross at­tempted to shorten the cen­sus count by a month, a move also chal­lenged in court. Most of these ef­forts evap­o­rated when Trump left of­fice, but they do shine a light on the myr­iad ways in which the bat­tle has ex­panded from overt vote sup­pres­sion to sneaky ap­por­tion­ment.

Nina Perales con­tin­ued to lit­i­gate the cen­sus cases into 2020, and she re­flected that the ef­fort to de­press mi­nor­ity turnout might well have had the de­sired ef­fect, even af­ter Trump and Ross failed to get the cit­i­zen­ship ques­tion onto the form. “There’s a strong sense here among my clients that there was an un­der­count,” she told me. “As the cen­sus was hap­pen­ing in the mid­dle of the pan­demic, I was talk­ing to one of my clients, the lead plain­tiff in the cen­sus lit­i­ga­tion, LUPE [La Unión del Pueblo En­tero], and they were say­ing, ‘We’re try­ing to get peo­ple to an­swer the cen­sus, but the self-re­sponse rates were far be­low 50 per­cent.’ So, cen­sus ques­tion­naires were go­ing out, and they weren’t com­ing back in re­ally high num­bers.” She added that “LUPE was do­ing ev­ery­thing they could to try to get peo­ple to re­turn those cen­sus forms. And I re­mem­ber them say­ing, there’s go­ing to be a huge un­der­count.”

Does that mean the Trump ad­min­is­tra­tion won, even by los­ing, in that the de­pressed nonci­t­i­zen re­sponse rates would lead to an un­der­count? No, Perales was quick to say. “They did not win. They may have sup­pressed some of the re­sponse on the cen­sus, but they didn’t win.” These vic­to­ries mat­ter to her clients. “We were able to get that cen­sus done with­out a cit­i­zen­ship ques­tion on it, and then we sub­se­quently lit­i­gated this is­sue of whether Trump could try to come up with an­other cit­i­zen­ship data­base. And then be­cause of de­lays in the cen­sus, that re­solved it­self while we were still in court.”

Perales told me that when her case went back to the Fourth Cir­cuit Court of Ap­peals, “our three-judge panel was so happy when we dis­missed that case.” With a small coda for her. “By the way,” she said with a smile. “That was a three-judge panel of all women. And I have to tell you, ar­gu­ing in front of a three-judge panel on this case was amaz­ing.” I asked her why. “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.’ ” This was be­ing ar­gued re­motely be­cause of COVID. “And it was a Zoom ar­gu­ment, so I had my three judges, I had min­i­mized my Zoom win­dow across the top as close to my cam­era as I could be. So, he was up there in the tray all by him­self over there, the only guy, and I didn’t have to deal with any­body mak­ing bas­ket­ball analo­gies or the usual things that hap­pen to me when I’m in court. Be­cause it’s al­ways men, es­pe­cially in re­dis­trict­ing.”

Perales has been lit­i­gat­ing for decades and was of a gen­er­a­tion in which women and men had reached par­ity or near par­ity in law school. The fact that the fed­eral bench re­mains over­whelm­ingly white and male goes to some of the sys­temic bar­ri­ers to par­ity across the pro­fes­sion flagged by Anita Hill. It also high­lights the ways in which we will live un­der the dead hand of Don­ald Trump’s ju­di­cial se­lec­tions for decades to come. Of the 816 life-tenured fed­eral judges on the Supreme Court, the thir­teen fed­eral ap­peals courts, and the ninety-four dis­trict courts, Trump seated 28 per­cent in a sin­gle term in of­fice. The vast ma­jor­ity of his ap­point­ments were white males, and the av­er­age age of his ap­pel­late judges was forty-seven. (Obama’s nom­i­nees were on av­er­age five years older.) The Fed­eral Ju­di­cial Cen­ter es­ti­mated that Trump judges will serve 270 more years than Obama’s judges. Trump’s judges have been largely uni­fied in their op­po­si­tion to LGBTQ rights, women’s rights, and im­mi­grants’ rights. The no­tion that lawyers may spend years ar­gu­ing be­fore pan­els of all-white, all-male Trump nom­i­nees is dispir­it­ing, es­pe­cially for women lawyers who, like Perales, didn’t think they would have to wait twenty years to see an all-fe­male panel. Jus­tice Ruth Bader Gins­burg was of­ten asked how many women would be “enough” at the Supreme Court. Her an­swer was al­ways “nine,” be­cause it had been nine men for so long.

Perales teaches young fe­male law stu­dents. It’s im­por­tant that they see that in a field like re­dis­trict­ing, where men still dom­i­nate, a woman can rise to the top. When I cov­ered the So­nia So­tomayor con­fir­ma­tion hear­ings in 2009, I no­ticed a long line of young Latina women that snaked out­side the Sen­ate cham­ber, with many of them stand­ing for hours to get a seat in the hear­ing room for a few mo­ments. With that vis­ual, I came to un­der­stand that they were all open­ing a door to a fu­ture self they had never imag­ined. The young Black women who saw them­selves in a new light as Judge Ke­tanji Brown Jack­son was con­firmed in 2022 had the same ex­pe­ri­ence. Rep­re­sen­ta­tion isn’t just about op­tics, though. It’s about ex­pe­ri­ence and his­tory too.

• • •

Perales says it’s not hap­pen­stance that some­one like Kan­sas’s Kris Kobach slid from his orig­i­nal anti-im­mi­grant ini­tia­tives into at­tempts at voter sup­pres­sion and cen­sus rig­ging. In her mind, the two are in­ex­tri­ca­bly linked. “The idea that non-US cit­i­zens are reg­is­ter­ing and vot­ing, which is not true ex­cept in very, very, very iso­lated in­stances of mis­takes, is used as the wedge to bring in all kinds of other vote sup­pres­sion tac­tics,” she told me. “So when Texas en­acted voter ID in 2011, it was pro­moted as an im­mi­gra­tion con­trol mea­sure. Voter ID was im­mi­gra­tion con­trol in Texas.” She added that the web­sites of some leg­is­la­tors put voter-ID ini­tia­tives on their im­mi­gra­tion land­ing page, as an ex­am­ple of what they were do­ing on im­mi­gra­tion, “and it was fre­quently said that we needed voter ID to pre­vent non-US cit­i­zens from vot­ing.”

Perales told me that ev­ery­where she goes she en­coun­ters the as­sump­tion that if you don’t speak Eng­lish, you can’t be Amer­i­can. She de­scribed a de­po­si­tion in one case in which a state rep­re­sen­ta­tive in­sisted her client could not pos­si­bly be a US cit­i­zen be­cause she needed in­ter­pre­ta­tion as­sis­tance. In an­other case she lit­i­gated, she ques­tioned some­one who in­sisted that non-US cit­i­zens couldn’t ob­tain driver’s li­censes. “They said voter ID would pre­vent non-US cit­i­zens from vot­ing,” she told me, but they were fail­ing to un­der­stand that many, many green card hold­ers hold driver’s li­censes. “Leg­is­la­tors use Eng­lish as a proxy for cit­i­zen­ship and driver’s li­censes as a proxy for cit­i­zen­ship, fail­ing to com­pre­hend that the for­mer cat­e­gory is too nar­row and the lat­ter is too broad.”

This leg­isla­tive prom­ise that you are merely go­ing af­ter the scourge of for­eign­ers vot­ing is in­evitably used to jus­tify vote sup­pres­sion of nat­u­ral­ized Amer­i­cans. Perales told me, “They use the anti-im­mi­grant sen­ti­ment very ef­fec­tively to bol­ster the claim of vote fraud by non-US cit­i­zens.” And this, she ex­plained, is a very old story that has been told in Amer­ica for a very long time: “The in­vad­ing hordes. It’s ev­ery eth­nic group that’s ever ar­rived in the United States. It’s anti-Semitism. It’s the same stuff over and over. The con­spir­ing peo­ple who are com­ing in to take what’s ours—those themes are so old in the US and come back to stok­ing a sense of griev­ance.” That’s the “great re­place­ment the­ory” that launched the Char­lottes­ville Nazis and is re­peated on a loop by Tucker Carl­son on Fox News. It’s why you have to keep adding new vot­ing re­stric­tions. As Perales stated, “There are groups of peo­ple who lack ID; it’s not a ma­jor­ity, but there it is. And that’s a group of peo­ple who won’t be able to vote. And then there’s go­ing to be this other group of peo­ple who can’t vote. And then if we scare peo­ple so ter­ri­bly that they don’t par­tic­i­pate in the cen­sus, then we don’t have to send re­sources to that area. And then we can also gain an ad­van­tage from re­dis­trict­ing.”

Perales is un­like some of the other sub­jects of this book in­so­far as she doesn’t look at the courts—es­pe­cially the fed­eral courts—with the grim tol­er­ance of some­one forced to dance with the ju­di­ciary that brought her. She gen­uinely be­lieves that most fed­eral judges want to do the right thing, and more of­ten than not ac­tu­ally will do the right thing, when it comes to vot­ing rights. Cer­tainly, the sixty-plus law­suits pressed by Don­ald Trump’s lawyers seek­ing to set aside the re­sults of the 2020 elec­tion re­flect the fact that par­ti­san ef­forts to side­line vot­ing for the most cyn­i­cal rea­sons would not move George Bush ap­pointees, Ronald Rea­gan ap­pointees, and even in some cases, Don­ald Trump ap­pointees. Perales felt strongly that it wasn’t pol­i­tics; it’s what the courts are de­signed to do. “In Texas and in many other places,” she told me, “the Latino com­mu­nity turns to the fed­eral court to de­fend us against racial dis­crim­i­na­tion. For us, the fed­eral courts stand be­tween us and dis­crim­i­na­tion. And some­times it is hard to con­vince a fed­eral judge that racism is hap­pen­ing, and that can be frus­trat­ing, but I can point to times when racism was hap­pen­ing and there was not a damn thing the peo­ple in that town or wher­ever could do about it.” It’s why she is a lawyer, she told me. “And we went to fed­eral court and peo­ple took the stand, at per­sonal risk, and a fed­eral judge said, ‘Yes, there is racism go­ing on,’ and forced the place to fix it. And if we hadn’t done it, that bad sit­u­a­tion would still be hap­pen­ing.”

For Perales, “those are the suc­cess sto­ries.” Fed­eral judges step­ping in where no­body else can help. She cited the re­dis­trict­ing case MALDEF did in 2011, the racial ger­ry­man­der­ing claim she lit­i­gated at the Supreme Court, and case af­ter case where, as she says, they could show dis­crim­i­na­tion. “We did well with the voter purge case where Texas tried to purge ninety-eight thou­sand newly nat­u­ral­ized cit­i­zens off the voter rolls. We did well in Pasadena, when we got the judge to strike down what the city was do­ing. In the re­dis­trict­ing round of 2011, we were able to get a new con­gres­sional dis­trict. We got ger­ry­man­der­ing fixed up in Tar­rant County.”

Perales ex­plained that judges will al­ways pre­fer to see straight-up ev­i­dence of racism, what she called “jump-up-and-slap-you-in-the-face, in­ten­tional racial dis­crim­i­na­tion.” She added that it re­quires skill­ful lit­i­ga­tion to sat­isfy a judge’s de­sire for that kind of ev­i­dence. But, she ob­served, “that’s what we did.” In Pasadena, she ex­plained, “we had ev­ery-thing, in­clud­ing the mayor bring­ing a gun with him to the city coun­cil meet­ing when they were go­ing to talk about re­dis­trict­ing.” These are real vic­to­ries, for Perales, for MALDEF and its coali­tion mem­bers, and for thou­sands of vot­ers. And just as the law is al­ways inch­ing ahead, she told me, the judges are do­ing so as well: “Judges also are not in the place where they were be­fore. It used to be that sep­a­rate and equal was okay un­der the Con­sti­tu­tion be­cause, hey, ev­ery­body had it equal! And so the judges have made very, very slow progress, but in the right di­rec­tion.”

Ul­ti­mately, these ef­forts to kill off vot­ing, by what Perales calls a thou­sand cuts, can be met in the courts by a thou­sand small acts of re­pair in the op­po­site di­rec­tion: re­dis­trict­ing suits here, voter purge chal­lenges there, Vot­ing Rights Act lit­i­ga­tion, even un­der the tougher new stan­dards. “They push,” Perales ex­plained, “and we push back, and they push, we push back.” She isn’t just lit­i­gat­ing. She’s also watch­ing. She told me that one of her fa­vorite emails from the 2011 re­dis­trict­ing cy­cle came when a court re­leased a tranche of emails from mem­bers of Con­gress. “All of those emails from the mem­bers of Con­gress fell into our sweaty lit­tle clutches,” she said, in­clud­ing an email from a con­gress­man writ­ing of a re­dis­trict­ing ef­fort, ‘Well, MALDEF is go­ing to op­pose this.’ And this con­gress­man wrote back and said, ‘What does Nina know that we don’t?’ ” To Perales it was an ac­knowl­edg­ment that “if they were go­ing to try to ma­neu­ver to get what they wanted, there was this other pres­ence that was there . . . that was keep­ing an eye on them, that was go­ing to push back.”

Of Kris Kobach and his dozens of failed ef­forts to frighten im­mi­grants and new cit­i­zens, Perales pulls no punches: “[Kobach] started out and he wasn’t in the vot­ing world. We first met him when he was do­ing anti-im­mi­grant or­di­nances in cities, cities that said if you’re un­doc­u­mented, you can’t rent an apart­ment in the city.” She added, “We beat him soundly and con­sis­tently. . . . We beat him all over the place, ev­ery­where he went.” When he shifted to vote sup­pres­sion and claims about nonci­t­i­zen im­mi­grants cast­ing bal­lots in Kan­sas, she told me, “the ACLU and my friend Dale Ho went out there and did that trial, and Kris was a dis­as­ter in the court­room and got rep­ri­manded and sanc­tioned by the judge, and the ACLU won that case.” When Kobach turned next to the cen­sus cit­i­zen­ship ques­tion, she says, “we beat him, too, on this case in­volv­ing proof of cit­i­zen­ship for voter reg­is­tra­tion. . . . So you know what? Give me more Kris Kobachs. I’ll take a Kris Kobach any day.”

Re­dis­trict­ing and the cen­sus and ger­ry­man­der­ing might seem hope­lessly ab­stract, but Perales be­lieves this is an­other area in which or­ga­niz­ing and young peo­ple have made a mas­sive dif­fer­ence in a short time. “I do think it can be very de­tailed, it can be very ab­stract,” she told me, “but for the Latino com­mu­nity . . . I’ll give you a quote from one of my fa­vorite po­lit­i­cal sci­en­tists, Cardi B. When Cardi B was do­ing cen­sus out­reach, she said, ‘Par­tic­i­pat­ing in the cen­sus, be­ing counted, is about three things, money, power, and re­spect.’ ” Perales told me that in her work through­out Texas, young peo­ple are tuned in to find out how they can ad­vo­cate for them­selves in re­dis­trict­ing.

One of the unan­tic­i­pated bonuses of four years of Trump­ism is that an elec­torate that couldn’t ex­plain the va­garies of the emol­u­ments clause and its pro­hi­bi­tions on gifts, or ap­por­tion­ment or po­lit­i­cal ger­ry­man­der­ing or the Elec­toral Col­lege, now un­der­stands just how much devil lies in these con­sti­tu­tional de­tails. Those four years proved to be a mas­ter class in cit­i­zen­ship. “If you don’t get an op­por­tu­nity to elect in a re­dis­trict­ing plan,” Perales said, “that in­equity is locked in for ten years, and that is a mes­sage peo­ple un­der­stand.” She ex­plained how this lit­i­ga­tion works, and it proves to be the other side of the Stacey Abrams coin: Af­ter their last round of re­dis­trict­ing, there was a lot of growth in South Texas, which is ma­jor­ity Latino, so they tried to get a seat ap­por­tioned from the up­per part of the state into the lower part of the state. When Texas wouldn’t add a seat, they lit­i­gated to have it brought down to the Rio Grande val­ley. She told me, “I put a lo­cal per­son on the stand in Wash­ing­ton, DC, . . . and we had him walk through what it meant to have an ad­di­tional House seat in the Rio Grande val­ley. And he talked about in­fra­struc­ture. He talked about a child who died in a house fire, be­cause the am­bu­lance could not get to where the house was, be­cause the road was not paved, and the road was muddy, and the am­bu­lance got bogged down. The child died in this man’s arms.”

Perales ob­jected to Amer­i­can poll­sters and their ten­dency to lump all Latino vot­ers into a uni­fied cat­e­gory. She said it’s com­pli­cated: “We have con­ser­va­tive Lati­nos; we have pro­gres­sive Lati­nos. You get ev­ery­thing from Cubans in Mi­ami, to Puerto Ri­cans in New York, to Mex­i­can Amer­i­cans in Phoenix.” She de­scribed a mas­sive gen­der gap among Latino Trump vot­ers, both in 2016 and in 2020. “So within the Latino com­mu­nity, we have some peo­ple, I think, who didn’t want to vote for a woman for pres­i­dent,” she ex­plained. “And Trump him­self was re­ally overtly misog­y­nis­tic, and I think that there were some peo­ple in the Latino com­mu­nity who found that ap­peal­ing, who found his un­apolo­getic misog­yny spoke to them.” On the flip side, she said, “I think Latino women were not at all drawn in by Trump, and I think young Lati­nos were not drawn in by Trump, but there may have been a cer­tain mid­dle-aged male de­mo­graphic within the Latino com­mu­nity that thought, ‘Yeah, this guy, he doesn’t apol­o­gize.’ ”

For Perales, it was al­ways about fos­ter­ing a sense of male griev­ance. “He stoked misog­yny and made men feel like they wanted to re­turn to a time when men were more pow­er­ful.” But at least for Perales, the arc of the uni­verse un­err­ingly bends to­ward in­clu­sion. She told me that of­ten when she speaks on pan­els, some­one will ask plain­tively whether any­thing has got­ten any bet­ter. She noted that she al­ways says, “Hell yes, things have got­ten bet­ter. Of course they’ve got­ten bet­ter, partly be­cause we’re nudg­ing it in that di­rec­tion. Yes, there are peo­ple who are try­ing to re­duce vot­ing and re­duce re­sponse to the cen­sus, and they’re get­ting some of this done, but the tide is in our di­rec­tion, and that’s why I’m al­ways pos­i­tive. I will spend ev­ery day get­ting up and fight­ing that stuff, so that nat­u­ral tide can oc­cur.”

For Perales, then, it’s not just the law that is slouch­ing slowly in the right di­rec­tion. And it’s not just that the judges and the courts are also inch­ing to­ward a broader and more in­clu­sive idea about what it means to be Amer­i­can. It’s also de­mo­graph­ics, and youth, and the in­evitabil­ity of change that brings progress. Nina Perales likes to talk about her sta­tis­tics: in Texas, data shows that the An­glo pop­u­la­tion has grown by less than half a mil­lion, while Lati­nos have grown by more than 2 mil­lion, some­times 2.3 mil­lion, some­times 2.5 mil­lion, over the three decades she’s been work­ing. “That is a tide that will not be stopped. And they can try to limit the polling place hours and they can try to make it a lit­tle more dif­fi­cult to reg­is­ter to vote, but the tide is rolling in our di­rec­tion.”

The Trump years were, in so many ways, an ef­fort to lit­i­gate who was pre­sump­tively Amer­i­can and who was “other.” As so much of this book has sug­gested, fights over the Mus­lim ban, over preg­nant mi­grant teens at the bor­der, over il­le­gal “car­a­vans” of al­leged rapists, were only a part of that wide­spread “oth­er­ing.” This de­bate about what it meant to be a “real Amer­i­can” had an in­tra­mu­ral team as well, and we in­creas­ingly heard the lan­guage of for­eign­ness and oth­er­ness de­ployed against cer­tain Amer­i­cans based on ge­og­ra­phy or lan­guage or color or race. That de­bate about who be­longed and who was an in­vader mor­phed to take the form of white men march­ing through south­ern towns in which they did not re­side, chant­ing, “You will not re­place us,” and of Fox News ped­dling the fear of non­white “re­place­ment.” A will­ing­ness to turn on other Amer­i­cans, as some sort of fifth col­umn in­vad­ing from within, be­came part of that. And be­cause you can’t build a wall against “other” Amer­i­cans—you can’t eas­ily split up their fam­i­lies and place them in ICE de­ten­tion fa­cil­i­ties; you can’t con­quer them by might—what’s left is to just stop count­ing them. That is why the cen­sus cases and the re­dis­trict­ing ef­forts and the vote sup­pres­sion be­came the hill so many Trump ad­min­is­tra­tion of­fi­cials were pre­pared to die on.

As this book goes to press, the maps emerg­ing from the 2020 cen­sus are re­veal­ing that yet again in this new re­dis­trict­ing cy­cle Re­pub­li­cans in swing states—in­clud­ing Penn­syl­va­nia, Wis­con­sin, Texas, and Geor­gia—con­tinue to draw highly ger­ry­man­dered leg­isla­tive maps in both state leg­isla­tive dis­tricts and con­gres­sional dis­tricts. Par­ti­san court rul­ings add to the chaos, as do Supreme Court in­ter­ven­tions that seem to fit par­ti­san pat­terns as well. Politi­cians pick­ing their vot­ers in­stead of vice versa is a sys­tem guar­an­teed to thwart real democ­racy. Ap­por­tion­ment and re­dis­trict­ing re­main the least sexy vot­ing rights work out there, and it’s a place where Perales has seen women and young peo­ple ac­ti­vated and in­spired, be­cause the stakes re­main so high. The is­sue goes to the very heart of the Trump­i­est ideas about who be­longs in the United States and who is merely tol­er­ated. Perales, like many other women lawyers, rose up to do bat­tle on be­half of those who may not be white, may not speak Eng­lish, and might not have been born here. She told me that this is sys­tems work; it’s not glam­orous, and it’s data-driven and hy­per-tech­ni­cal. It re­quires co­or­di­nat­ing with ac­tivists and or­ga­niz­ers and af­fil­i­ate groups on the ground, many of which are also led by women and women of color. It’s a per­sis­tent, grind­ing coun­ternar­ra­tive to the le­gal work that gets front-page news cov­er­age and Net­flix se­ries. 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.

EPI­LOGUE

This book opened on the heady oral ar­gu­ments in Whole Woman’s Health, the 2016 abor­tion case where, for the first time in his­tory, three fe­male jus­tices on the US Supreme Court man­aged to beat back a cyn­i­cal at­tempt on the part of Texas to shut­ter abor­tion clin­ics by pre­tend­ing to pro­tect ma­ter­nal health. Five and a half years later, it con­cludes the month the court over­turned Roe in Dobbs v. Jack­son Women’s Health Or­ga­ni­za­tion. The de­ci­sion in Dobbs rep­re­sents the end of a con­sti­tu­tion­ally pro­tected right to ter­mi­nate a preg­nancy, the first ma­jor prece­dent over­turned in or­der to deny free­dom rather than to ex­pand it. The Mis­sis­sippi law up­held in Dobbs made no ex­cep­tions for preg­nan­cies due to rape or in­cest. As I type these words, a Utah clinic an­nounced it will no longer pro­vide med­i­ca­tion abor­tions to res­i­dents of neigh­bor­ing states with abor­tion bans and a ten-year-old Ohio rape vic­tim was re­ferred to a doc­tor in In­di­anapo­lis for an abor­tion. As of this writ­ing, abor­tion has been un­avail­able af­ter six weeks of preg­nancy in Texas for many, many months, again be­cause the Supreme Court al­lowed a law that per­mit­ted any­one to col­lect a $10,000 bounty for turn­ing in some­one who aided or abet­ted an abor­tion to con­tinue, first in an un­signed one-para­graph or­der in Sep­tem­ber 2021 and then again af­ter ar­gu­ments and brief­ing in De­cem­ber 2021. Copy­cat vig­i­lante bills have pro­lif­er­ated in other states. In the span of a very few years, Amer­i­can women now face ma­te­rial threats not just to their bod­ily au­ton­omy and eco­nomic equal­ity but to con­tra­cep­tion, in vitro fer­til­iza­tion, and sur­ro­gacy. As the no­tion of “fe­tal per­son­hood” be­comes as­cen­dant, ma­ter­nal per­son­hood is less im­por­tant by the day. “Lock her up” will likely mean that women who mis­carry or en­dan­ger their preg­nan­cies will face crim­i­nal sanc­tions. These cases—at the hands of zeal­ous state pros­e­cu­tors or tur­bocharged bounty-seek­ers—have al­ready put women in jail, and fre­quently the women are Na­tive Amer­i­can, young, poor, or Black. Women’s bod­ies in 2022 are lurid crime scenes; in the Dobbs opin­ion, they are dan­ger­ous, un­whole­some places in which state ac­tors and ran­dom vig­i­lantes must keep watch and level con­se­quences. Women are be­ing turned away from emer­gency rooms in Al­abama. Women may face homi­cide charges for fe­tal en­dan­ger­ment in Lou­i­si­ana. And still we are told we are hys­ter­i­cal and over­re­act­ing when we ex­press dis­may that for the first time in his­tory, the high court is over­turn­ing prece­dent to re­store a no­tion of “lib­erty” and “pri­vacy” that dates back to a time in which women were con­sid­ered prop­erty. The law, once again, has be­come a cud­gel to iso­late and pun­ish the most vul­ner­a­ble preg­nant peo­ple: the young, the Black and brown, and the poor.

A book about women and the law must ac­count, as Anita Hill does, for the fact that law doesn’t change the cul­ture and the cul­ture only very slowly shapes the law. One of the rea­sons the string of wildly thrilling le­gal vic­to­ries against Don­ald Trump, white su­prem­a­cists, and voter sup­pres­sion cap­tured so much of our at­ten­tion over the last six years was that while the for­mer pres­i­dent was a tele­vi­sion char­ac­ter, flout­ing the rule of law and us­ing it to pun­ish his crit­ics, the dusty, pedes­trian le­gal rules just kept trip­ping him up. In the face of his cul­ture of chaos, the foun­da­tions of the le­gal sys­tem, for the most part, held fast. That was a com­fort. And per­haps we all learned that the law is al­ways in mo­tion and that if your side isn’t en­gaged with it, you may just be los­ing.

One of the things Stacey Abrams truly mas­tered in the 2020 elec­tions was mar­ry­ing ac­tivism in the law to ac­tivism in the cul­ture. Build­ing on the his­toric work she had be­gun in Geor­gia, she helped vot­ers un­der­stand that their right to vote was un­der at­tack. Peo­ple who never con­sid­ered that democ­racy could be hard work were sud­denly faced with a lethal pan­demic, a Supreme Court that had made vot­ing in pri­maries dur­ing a pan­demic ever more dif­fi­cult in the months be­fore that elec­tion, states de­ter­mined to use what­ever tac­tic they might find at hand to shrink mar­gins, ger­ry­man­dered dis­tricts that dis­torted ma­jori­tar­ian will, a post of­fice seem­ingly dis­in­ter­ested in pro­vid­ing postal ser­vices, and a pres­i­dent not only un­der­min­ing voter con­fi­dence but weaponiz­ing his own Jus­tice De­part­ment to cast doubt upon the out­comes.

The only cure was to vote.

Abrams would run the 2018 play again, but this time it was not just in Geor­gia. She told CNN in the win­ter of 2021 that as she cam­paigned around the coun­try for Biden and Har­ris, “I had two mes­sages. One, voter sup­pres­sion is real and we have to have a plan to fight back. Two, Geor­gia is real. You’ve got to have a plan to fight here.” In ad­di­tion to the pan­demic, the sum­mer of 2020 was shaped by the bru­tal mur­der of George Floyd by a po­lice of­fi­cer, cap­tured on video. That gal­va­nized the Black Lives Mat­ter move­ment into a sum­mer of fu­ri­ous protest and or­ga­niz­ing and mean­ing­ful con­ver­sa­tions about po­lice re­form. Black vot­ers, and par­tic­u­larly Black women, were ex­cited by the Demo­cratic ticket of Joe Biden and Ka­mala Har­ris—who might be­come the first Black woman elected to the vice pres­i­dency. It had long been an ar­ti­cle of faith that Black women were the heart of the Trump re­sis­tance. Black women had car­ried Doug Jones to a sen­a­to­rial vic­tory in Al­abama in 2017, and Black women lifted up Biden’s lack­lus­ter pres­i­den­tial cam­paign with a vic­tory in South Car­olina’s Demo­cratic pri­mary. Geor­gia’s Demo­cratic state sen­a­tor Nikema Williams, elected to suc­ceed the late vot­ing rights war­rior John Lewis in the Fifth Con­gres­sional Dis­trict, told CNN that not one thing about this was new: “Black women have al­ways been the back­bone of the Demo­cratic Party, but what we are see­ing now is peo­ple dig­ging into the data and rec­og­niz­ing us for what we have been do­ing.”

Since 2018, Abrams’s group the New Geor­gia Project had been work­ing with the Na­tional Coali­tion on Black Civic Par­tic­i­pa­tion, the Geor­gia Coali­tion for the Peo­ple’s Agenda, Pro­Ge­or­gia, the Black Vot­ers Mat­ter Fund, Geor­gia STAND-UP, and other groups to mo­bi­lize Black vot­ers. Those groups were also helmed by Black women. So while vot­ing rights lawyers and Democrats na­tion­wide and the Biden cam­paign mo­bi­lized to ed­u­cate vot­ers about vote sup­pres­sion and mail-in bal­lots, and as elec­tion lawyers chal­lenged state vot­ing prac­tices, Abrams and the or­ga­niz­ers at Fair Fight and the New Geor­gia Project were go­ing all in to flip Geor­gia blue. And no­body thought Abrams was pie-in-the-sky this time around. Geor­gia seemed get­table. By the time of the 2020 elec­tion the New Geor­gia Project said that it had reg­is­tered about 500,000 new vot­ers. Abrams later told Stephen Col­bert that she had been tex­ting with Fair Fight Ac­tion’s CEO, Lau­ren Groh-Wargo, and re­al­ized, as the Geor­gia num­bers started com­ing in, “This is the first time I’ve wo­ken up in No­vem­ber with­out curl­ing into the fe­tal po­si­tion first.” She said, “The num­bers got big­ger and big­ger and we got hap­pier and hap­pier.”

De­spite the pan­demic, 2020 was a his­toric elec­tion with his­toric turnout. By the time the Geor­gia bal­lots were counted, Biden had be­come the first Demo­crat to win the state in al­most thirty years. Ac­cord­ing to exit polls, 92 per­cent of Black women in Geor­gia had pulled the lever for Biden. He man­aged to win more than 2.4 mil­lion votes in Geor­gia, beat­ing out the in­cum­bent pres­i­dent by nearly 12,000 votes. Abrams’s strat­egy mar­ried law to cul­ture to en­gage­ment. Build­ing coali­tions of vot­ers who had checked out, or never checked in, who had given up on gov­ern­ment, or who didn’t see them­selves re­flected or re­spected there? That was the sil­ver bul­let.

The Geor­gia Sen­ate race went to a runoff elec­tion in Jan­u­ary. When the num­bers were tal­lied on Jan­u­ary 5, the Rev­erend Raphael Warnock and Jon Os­soff had scored de­ci­sive vic­to­ries against the in­cum­bents Kelly Lo­ef­fler and David Per­due. Geor­gians had cho­sen a Black pas­tor and the thirty-three-year-old son of Jew­ish im­mi­grants to rep­re­sent them in the Sen­ate, a call­back to a part­ner­ship of the vot­ing rights strug­gle of the 1960s. A record-break­ing 4.5 mil­lion peo­ple voted in those runoff elec­tions, about 88 per­cent of the num­ber vot­ing in No­vem­ber’s con­test, and roughly 93 per­cent of Black vot­ers sup­ported Os­soff and Warnock. Abrams and her coali­tion had flipped two Sen­ate seats, and Democrats con­trolled the Sen­ate. As Sher­ri­lyn Ifill of the NAACP Le­gal De­fense Fund ex­plained on my pod­cast, you can­not un­der­stand Jan­u­ary 6, 2021, with­out rec­og­niz­ing the im­pact of trans­for­ma­tional em­pa­thy and vot­ing power that took place on Jan­u­ary 5.

Peo­ple were, sud­denly, awake. Speak­ing at an At­lanta con­fer­ence called Par­a­digm Shift 2.0: Black Women Con­fronting HIV, Health, and So­cial Jus­tice in the spring of 2020, Abrams told a roar­ing crowd of fans that the 2018 gov­er­nor’s race in Geor­gia was never for, or about, her. “When I ran for gov­er­nor, I did not run sim­ply for me. We went around this state to all 159 coun­ties, and ev­ery­where we went we talked about the power of peo­ple to make a choice. . . . On No­vem­ber 6, when malfea­sance and in­com­pe­tence and my op­po­nent who was a car­toon vil­lain stole the voices of Geor­gians when he purged 1.4 mil­lion vot­ers and over­saw the shut­down of 214 precincts that left 50,000 to 60,000 peo­ple with­out the abil­ity to vote, when Geor­gia had the long­est lines in the na­tion and the high­est re­jec­tion rates of ab­sen­tee bal­lots and pro­vi­sional bal­lots . . . it was not just about me. He was do­ing that to Geor­gians.”

It was never about me, she said, and then she de­liv­ered her punch line: “And the thing is, if I had fought back and said, ‘I am go­ing to con­test this elec­tion and make my­self gov­er­nor,’ then ev­ery­one who loved me and stood with me would have thought, ‘Well, this is about her fight.’ My re­spon­si­bil­ity was in­stead to fo­cus on the right to vote and not my right to be gov­er­nor. I had no right to be gov­er­nor, but I have an obli­ga­tion to do the work that I said I would do if I were gov­er­nor.” It’s a nar­ra­tive we don’t hear of­ten enough: how democ­racy is about com­plex sys­tems, not big per­son­al­i­ties. It’s about vot­ers, not lead­ers. The law is about cit­i­zens, not lawyers. That was the big idea at the found­ing and that’s the big idea still.

The 2020 elec­tion story ended with Amer­i­cans wak­ing up on the morn­ing of Jan­u­ary 6, 2021, to the news that Warnock and Os­soff had won their re­spec­tive runoff races. But within just a few hours, in­sur­rec­tion­ists would be scal­ing the walls of the US Capi­tol, at­tempt­ing to de­cer­tify Biden’s vic­tory in the Elec­toral Col­lege. Peo­ple would die. The seat of gov­ern­ment would be trashed. Elected mem­bers ran for their lives and hid in their of­fices. Don­ald Trump would later fete the in­sur­rec­tion­ists as peace­ful pa­tri­ots. In time, they would be hailed as free­dom fight­ers.

Within a few short weeks, states like Geor­gia and Texas were pass­ing the most dra­co­nian voter sup­pres­sion bills in the coun­try. Other states hastily fol­lowed suit. Al­though the amount of in-per­son vote fraud was neg­li­gi­ble in the 2020 elec­tion, as it has been for decades—as even At­tor­ney Gen­eral Bill Barr ac­knowl­edged—un­der cover of “elec­tion pro­tec­tion,” in the first months of 2021, eigh­teen states en­acted more than thirty laws re­strict­ing ac­cess to the bal­lot. Pro­jec­tions sug­gest around thirty-six mil­lion peo­ple, or about 15 per­cent of all el­i­gi­ble vot­ers, will be af­fected. Un­der false claims of bol­ster­ing voter con­fi­dence in elec­tion in­tegrity, states would try to can­cel souls to the polls Sun­day vot­ing and would im­pose oner­ous new ID re­quire­ments. Geor­gia would make it il­le­gal to bring food or wa­ter to vot­ers stand­ing in long lines. Par­ti­san poll watch­ers would be em­pow­ered to ha­rass vot­ers. In the most dan­ger­ous move, new pow­ers to set aside elec­tion re­sults are be­ing be­stowed on state leg­is­la­tures, with au­thor­ity re­moved from non­par­ti­san elec­tion of­fi­cials. Some states have ar­ro­gated new pow­ers over elec­tion ad­min­is­tra­tion and cer­ti­fi­ca­tion and au­tho­rized elec­tion “au­dits” that will be used to dis­credit the 2022 and 2024 elec­tions. The GOP has purged mod­er­ates or those who ques­tion the propo­si­tion that Trump won in 2020 from party lead­er­ship. Re­pub­li­can sen­a­tors have fil­i­bus­tered na­tional vot­ing rights leg­is­la­tion from even be­ing de­bated. And a grow­ing spirit of vig­i­lan­tism has al­lowed cit­i­zens to take law en­force­ment into their own hands, from Texas’s SB 8 en­force­ment, to stand your ground laws, to state-sanc­tioned ha­rass­ment of school of­fi­cials.

This is hor­ri­ble, if largely in­vis­i­ble. In many ways, the rule of law feels more frag­ile in 2022 than it seemed dur­ing the Trump years, but vot­ers, in­clud­ing women, seem to be suf­fer­ing from what some ac­tivists have dubbed the Great For­get­ting: an abid­ing de­sire to rel­e­gate the Trump crazi­ness to the ash heap of his­tory; the blind be­lief that ac­tivism saved the coun­try and will pre­vail in the fu­ture; and the as­sess­ment that be­cause “the sys­tem held” in 2020, it must be magic. None of that is true. About one-third of all vot­ers (and 78 per­cent of Re­pub­li­cans) be­lieve the 2020 elec­tion was stolen by Joe Biden and that those who stormed the Capi­tol in Jan­u­ary 2021 are he­roes. State elec­tion of­fi­cials and politi­cians are openly cam­paign­ing for 2022 and 2024 on The Big Lie.

I am not sure why, in the face of this sort of ex­is­ten­tial threat to democ­racy, it feels as if so many of us have fallen asleep. COVID and par­ti­san­ship have surely ex­hausted us all. Maybe that’s why these women lawyers seem more es­sen­tial than ever to my mind. Their voices and plead­ings play out on a loop in my ears late at night—de­mand­ing ba­sic dig­nity, fam­ily au­ton­omy, bod­ily in­tegrity, and other val­ues en­shrined in the Four­teenth Amend­ment. They hold on to our mem­o­ries when we all just want to for­get and move on. Rob­bie Ka­plan and Karen Dunn kept the Char­lottes­ville torch march of 2017 alive for four years. Stacey Abrams kept the 2018 gov­er­nor’s race in Geor­gia burn­ing for two. I some­times cling to the fan­ci­ful no­tion that one of the spe­cial points of con­nec­tion be­tween women and the law is that the law’s slow, mea­sured progress al­lows it to pre­serve his­to­ries that might oth­er­wise be erased. That re­casts these Trump re­sis­tance at­tor­neys as mod­ern-day Philome­las, weav­ing the de­tails of long-for­got­ten crimes into a ta­pes­try so that it may stand as ev­i­dence.

Mary Beard opens her book Women and Power: A Man­i­festo with Pene­lope from The Odyssey, whose son, Telemachus, scolds her for speak­ing out in the great hall of her palace. He tells her to “go back up to your quar­ters, and take up your own work, the loom and the distaff,” and re­minds her that “speech will be the busi­ness of men, all men, and me most of all; for mine is the power in this house­hold.” Pene­lope, too, scoots off to her loom. Per­haps all of this loom­ing of the truth is an an­cient fe­male re­sponse to be­ing si­lenced. But it also leads back to what Vanita Gupta and Stacey Abrams keep say­ing about women and the ac­cu­mu­la­tion of power. Abrams talks com­pul­sively about power. The pa­per­back Abrams pub­lished in 2019 is ti­tled Lead from the Out­side: How to Build Your Fu­ture and Make Real Change, a pro­tracted med­i­ta­tion on power and how to build it and use it: “The ques­tions for those in search of power abound: Who has it? How do we get and wield it? What do we do when we have less than the other guy? What do we do when we lose it?”

Beard writes about why con­tem­po­rary no­tions of power still ex­clude women and why “women are still per­ceived as be­long­ing out­side power.” She says we still cling to mod­els (thanks, Telemachus) of power as some­thing “elite, cou­pled to pub­lic pres­tige, to the in­di­vid­ual charisma of so-called ‘lead­er­ship’ ” that al­most al­ways comes with celebrity. (Thanks, cow­boys!) Beard imag­ines struc­tural changes to how we think about power, “de­cou­pling it from pub­lic pres­tige,” and it seems to me that the law has emerged as a sys­tem that does ex­actly that. Framed in the ways lead­ers like Gupta, Hill, and Abrams de­scribe it, law and power can blos­som and grow, far from the klieg lights of re­al­ity TV.

The women lawyers and or­ga­niz­ers who sprang up in op­po­si­tion to Trump and Trump­ism seem to be a nat­u­ral ex­per­i­ment in adopt­ing Beard’s broader pre­scrip­tion for power, which de­mands “think­ing about the power of fol­low­ers, not just of lead­ers.” For Beard, that means, above all, “think­ing about power as an at­tribute or even a verb (‘to power’), not as a pos­ses­sion.” The women who used the law to save democ­racy since 2016 taught us how “to power.” They both mod­eled and har­nessed the “power of fol­low­ers,” whether it was women protest­ing the travel ban and fam­ily sep­a­ra­tions or get­ting out the vote. 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.

We are in a truly fright­en­ing mo­ment. Elec­tion de­niers are lay­ing the tracks to set aside the 2024 elec­tion and the Supreme Court has, for the first time in his­tory, re­versed prece­dent in or­der to take away free­dom rather than ex­pand it. Jus­tice Samuel Al­ito pro­duced an opin­ion in Dobbs in which women were imag­i­nary and fe­tal per­son­hood was real. He told us to vote if we didn’t like it, even as the court works ever harder to limit vot­ing rights. Gun mas­sacres of school chil­dren seem to con­tinue un­abated. Yet in 2022, the Supreme Court ex­panded gun rights sub­stan­tially. States pun­ish LGBTQ fam­i­lies and ban books in schools. The Supreme Court will hear a case af­ford­ing state leg­is­la­tures the right to de­ter­mine elec­tion out­comes; the dis­cred­ited le­gal the­ory de­ployed to try to set aside the 2020 con­test. This will not be re­versed in a year or maybe even a decade. But I don’t be­lieve women sleep through re­van­chist back­slid­ing any eas­ier than they sleep through colic. We hear things, we see things. We are awake.

Just as Jus­tice Gins­burg un­fail­ingly name-checked Pauli Mur­ray, Stacey Abrams never fails to men­tion He­len But­ler, Nsé Ufot, Deb­o­rah Scott, Tamieka Atkins, At­lanta’s mayor Keisha Lance Bot­toms, LaTosha Brown, and the women who work along­side her. Af­ter Biden was sworn in, Vanita Gupta was cho­sen and con­firmed (by a sin­gle vote) as as­so­ciate at­tor­ney gen­eral of the United States, over­see­ing the Jus­tice De­part­ment’s civil rights lit­i­ga­tion as well as its an­titrust, civil, and en­vi­ron­men­tal di­vi­sions. She, too, is scrupu­lous in high­light­ing the com­mu­ni­ties and or­ga­ni­za­tions that do the work in the trenches. Judge Ke­tanji Brown Jack­son, Biden’s nom­i­nee to re­place re­tir­ing Jus­tice Stephen Breyer, told us she stood on the shoul­ders of Con­stance Baker Mot­ley, the first Black woman ever seated as a fed­eral judge.

Through­out the Trump years, women who were ask­ing them­selves, “What can I do?” learned that whether we no­tice it or not, the law or­ga­nizes ev­ery part of our lives. Lash­ing our­selves to le­gal ideas, move­ments, and causes gave us power. It or­ga­nized us. It fo­cused us. It con­nected us to first prin­ci­ples and lofty ideas. And ev­ery step of the way, the wins felt tan­gi­ble and ma­te­rial and en­dur­ing. Women have come so far in a few decades, and the law, even with its flaws and its anachro­nisms, has been a quiet, per­sis­tent source of or­der and mean­ing in a world that feels ever more out of our con­trol. It’s been a source of power be­yond just rage. We have a long way to go, the road will be bumpy, and the des­ti­na­tion still feels less than clear. But women plus law equals magic; we prove that ev­ery day. And bear­ing wit­ness to what it can and will achieve has been the great priv­i­lege of my life­time.

AC­KNOWL­EDG­MENTS

When peo­ple tell you their sto­ries about Tina Ben­nett, su­per agent, be­lieve them. It’s all true. This book—and in­deed much of my ca­reer—has been the re­sult of Tina’s in­fi­nite pa­tience, del­i­cate ca­jol­ing, and oc­ca­sional ham­mer-drop­ping. Words can­not ex­press my grat­i­tude. Ann God­off at Pen­guin Press is an­other pub­lish­ing leg­end, and it turns out that is also for good rea­son. She un­der­stood this project bet­ter than I did when I pitched it, and she shaped it with a tran­scen­dent vi­sion and un­der­stand­ing of why we need he­roes in or­der to have hope. Casey De­nis and Vic­to­ria Lopez at Pen­guin Press have been be­yond in­valu­able and gra­cious. My pro­duc­tion ed­i­tor at Pen­guin, Megan Ger­rity, showed in­fi­nite pa­tience and grace. And big, big thanks to Pen­guin’s Gail Brus­sel and Lau­ren Lau­zon for sort­ing pub­lic­ity and mar­ket­ing in an ever-chang­ing pan­demic.

The team at WME, in­clud­ing Erin Mal­one, Jay Man­del, and their staff have been won­der­ful. Mon­ica Gra­ham gave me a guest­house, and my whole fam­ily a fairy god­mother, when it was time to craft a pro­posal. The folks at Mesa Refuge of­fered me a place to breathe and stretch and birth this project thanks to Re­becca Sol­nit and Marty Kras­ney. Ramón Castell­blanch and Robert Franklin, my first part­ners in crime at that dreamy spot, gave early sup­port and feed­back. Same goes for the amaz­ing writ­ers who com­prise the David Green­berg Writ­ers Groups in Man­hat­tan, who helped shape the early chap­ters.

I’ve been at Slate al­most longer than there has been an in­ter­net, but this book could never have hap­pened with­out the sup­port of Jared Hohlt and the phe­nom­e­nal co-pi­lot who is Mark Joseph Stern. Jeremy Stahl and Nicole Lewis teach me about le­gal writ­ing ev­ery day. How I lucked into both Su­san Matthews, the world’s great­est ed­i­tor, and Sara Burn­ing­ham, the world’s great­est pod­cast pro­ducer, is a mys­tery of both sci­ence and faith.

Robin Rice dreamed this book with me us­ing glit­ter­ing bits of glass and alchemy; she dragged this project to the start­ing line ev­ery time I balked, and the winged Mikhaila Fo­gel—amid harps and puffy clouds—helped haul it over the fin­ish line. Along the way I had in­valu­able read­ers and boost­ers in Sonja West, Ron­Nell An­der­sen Jones, Perry Gross­man, Wal­ter Dellinger, Claire Pot­ter, Jen­nifer Taub, Eve­lyn Ru­bin, Siân Gibby, Gar­rett Epps, and Liv War­ren, and from Sandy who asked to be in my ac­knowl­edg­ments. To the sub­jects of this book who gave me time, an­swers, friend­ship, and above all hope, I have prob­a­bly not done jus­tice to the ways you Do Jus­tice. But you trusted me and in­spired me and I am grate­ful to my bones for you all.

Peo­ple who think they’re too old to make new friends just don’t know Michelle Shul­man, whom I met in the Siberia that was COVID and who nev­er­the­less read ev­ery sin­gle word of a man­u­script from a fran­tic stranger in a strange land. My par­ents, Har­vey and Yvonne Lith­wick, and in-laws, Mar­cia and Harold Fein, have been in­valu­able boost­ers, as have Alex Lith­wick and Car­olyn Bick­er­ton and Hil­lel Lith­wick and Jackie Harari. My sons, Coby and So­pher, whose wis­dom peeps out of some of these pages, have pro­vided both rocket fuel and bal­last ev­ery day. This book is for the men they are be­com­ing. And fi­nally, my hus­band, Aaron, read drafts, de­signed art, un­stuck men­tal hair balls, cooked din­ners, cir­cled wag­ons, trou­bleshot tech crises, and be­lieved. This book is for a world he helps me imag­ine can come true.

NOTES

IN­TRO­DUC­TION

the last truly great day: Dahlia Lith­wick, “The Women Take Over,” Slate, March 2, 2016, slate.com/news-and-pol­i­tics/2016/03/in-oral-ar­gu­ments-for-the-texas-abor­tion-case-the-three-fe­male-jus­tices-up­end-the-supreme-courts-bal­ance-of-power.html.

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Gris­wold v. Con­necti­cut, the law­suit pro­tect­ing: Oral ar­gu­ment tran­script, Gris­wold v. Con­necti­cut, 381 U.S. 479 (1965), www.oyez.org/cases/1964/496.

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women made up only one-third: Kerry Abrams, “Fam­ily, Gen­der, and Lead­er­ship in the Le­gal Pro­fes­sion,” Women and Law, Feb. 1, 2020, schol­ar­ship.law.duke.edu/wom­e­nand­law/1/.

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their in­ter­ro­ga­tion of Scott Keller: Lith­wick, “Women Take Over.”

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The 5–3 rul­ing that came down: Adam Lip­tak, “Supreme Court Strikes Down Texas Abor­tion Re­stric­tions,” New York Times, June 27, 2016, www.ny­times.com/2016/06/28/us/supreme-court-texas-abor­tion.html.

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The GOP can­di­date for pres­i­dent: Suzanne Gam­boa, “Don­ald Trump An­nounces Pres­i­den­tial Bid by Trash­ing Mex­ico, Mex­i­cans,” NBC News, June 16, 2015, www.nbc­news.com/news/latino/don­ald-trump-an­nounces-pres­i­den­tial-bid-trash­ing-mex­ico-mex­i­cans-n376521; David A. Fahren­thold, “Trump Recorded Hav­ing Ex­tremely Lewd Con­ver­sa­tion About Women in 2005,” Wash­ing­ton Post, Oct. 8, 2016, www.wash­ing­ton­post.com/pol­i­tics/trump-recorded-hav­ing-ex­tremely-lewd-con­ver­sa­tion-about-women-in-2005/2016/10/07/3b9ce776-8cb4-11e6-bf8a-3d26847eeed4_s­tory.html.

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By No­vem­ber of 2016, we learned that: Jea­nine San­tucci, Jim Ser­gent, and George Pe­tras, “19 Women Have Ac­cused Trump of Sex­ual Mis­con­duct. Here’s What Their Sto­ries Have in Com­mon,” USA To­day, Oct. 21, 2020, www.us­ato­day.com/in-depth/news/in­ves­ti­ga­tions/2020/10/21/trump-sex­ual-as­sault-al­le­ga­tions-share-sim­i­lar-pat­terns-19-women/5279155002/.

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Ka­plan would later re­sign: Jodi Kan­tor and Michael Gold, “Roberta Ka­plan, Who Aided Cuomo, Re­signs from Time’s Up,” New York Times, Aug. 9, 2021, www.ny­times.com/2021/08/09/nyre­gion/roberta-ka­plan-times-up-cuomo.html.

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CHAP­TER 1: THE BE­GIN­NING

“Lock her up!” “Lock her up!”: Nick Gass, “ ‘Lock Her Up’ Chant Rules Re­pub­li­can Con­ven­tion,” Politico, July 20, 2016, www.politico.com/story/2016/07/rnc-2016-lock-her-up-chant-hillary-clin­ton-225916; Ryan Teague Beck­with, “Michael Flynn Led a ‘Lock Her Up’ Chant at the Re­pub­li­can Con­ven­tion. Now He’s Charged with Ly­ing to the FBI,” Time, Dec. 1, 2017, time.com/5044847/michael-flynn-hillary-clin­ton-re­pub­li­can-con­ven­tion-lock-her-up/.

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Trump warned Clin­ton: Josh Hafner, “Trump: If I Win, I Want Spe­cial Pros­e­cu­tor Look­ing into Clin­ton’s ‘Sit­u­a­tion,’ ” USA To­day, Oct. 9, 2016, www.us­ato­day.com/story/news/pol­i­tics/on­pol­i­tics/2016/10/09/trump-if-win-want-spe­cial-pros­e­cu­tor-look­ing-into-clin­tons-sit­u­a­tion/91839398/.

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Jeff Ses­sions, gave a speech: Ju­lia Ja­cobs, “Jeff Ses­sions Laughs and Echoes ‘Lock Her Up’ Chant with Con­ser­va­tive High School­ers,” New York Times, July 24, 2018, www.ny­times.com/2018/07/24/us/pol­i­tics/jeff-ses­sions-lock-her-up-hillary-clin­ton.html.

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“Iron my shirt”: Fer­nando Suarez, “Heck­lers Want Clin­ton to Iron Their Shirts,” CBS News, Jan. 7, 2008, www.cb­snews.com/news/heck­lers-want-clin­ton-to-iron-their-shirts/.

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“some form of pun­ish­ment” for women: Matt Fle­gen­heimer and Mag­gie Haber­man, “Don­ald Trump, Abor­tion Foe, Eyes ‘Pun­ish­ment’ for Women, Then Re­cants,” New York Times, March 30, 2016, www.ny­times.com/2016/03/31/us/pol­i­tics/don­ald-trump-abor­tion.html.

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Trump led ador­ing crowds to chant “Lock her up”: Matthew Rozsa, “ ‘Lock Her Up’: Trump Rally Erupts When the Pres­i­dent At­tacks Ka­vanaugh Ac­cuser Chris­tine Blasey Ford,” Sa­lon, Oct. 3, 2018, www.sa­lon.com/2018/10/03/lock-her-up-trump-rally-erupts-when-the-pres­i­dent-at­tacks-ka­vanaugh-ac­cuser-chris­tine-blasey-ford/; Brett Samuels, “Trump Rally Crowd Chants ‘Lock Her Up’ About Pelosi,” Hill, Feb. 20, 2020, the­hill.com/home­news/cam­paign/482427-trump-rally-crowd-chants-lock-her-up-about-pelosi; Tom Mc­Carthy, “Trump Rally Crowd Chants ‘Send Her Back’ Af­ter Pres­i­dent At­tacks Il­han Omar,” Guardian, July 18, 2019, www.the­guardian.com/us-news/2019/jul/17/trump-rally-send-her-back-il­han-omar.

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Which brings me to Pauli Mur­ray: Brit­tney Cooper, “Black, Queer, Fem­i­nist, Erased from His­tory: Meet the Most Im­por­tant Le­gal Scholar You’ve Likely Never Heard Of,” Sa­lon, Feb. 18, 2015, www.sa­lon.com/2015/02/18/black_queer_feminist_erased_from_history_meet_the_most_important_legal_scholar_youve_likely_never_heard_of/; Kathryn Schulz, “The Many Lives of Pauli Mur­ray,” New Yorker, April 10, 2017, www.newyorker.com/mag­a­zine/2017/04/17/the-many-lives-of-pauli-mur­ray.

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“It may be that when his­to­ri­ans”: Su­san Ware, No­table Amer­i­can Women: A Bi­o­graph­i­cal Dic­tio­nary Com­plet­ing the Twen­ti­eth Cen­tury (Cam­bridge, Mass: Belk­nap Press, 2004).

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film about her that was re­leased in 2021: Me­lena Ryzik, “Pauli Mur­ray Should Be a House­hold Name. A New Film Shows Why,” New York Times, Sept. 15, 2021, www.ny­times.com/2021/09/15/movies/pauli-mur­ray-doc­u­men­tary.html.

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In 1977, she be­came the first: Lak­shmi Varanasi, “Yale Will Name a New Res­i­den­tial Col­lege Af­ter Awe­some Civil Rights Ac­tivist Pauli Mur­ray,” Slate, April 10, 2016, slate.com/hu­man-in­ter­est/2016/04/yale-names-new-res­i­den­tial-col­lege-af­ter-pauli-mur­ray.html.

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“a dream / haunt­ing as am­ber wine”: Pauli Mur­ray, Dark Tes­ta­ment, and Other Po­ems (Nor­walk, Conn.: Sil­ver­mine, 1970).

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“are likely to be sto­ries”: Carol Sanger, “Cur­ricu­lum Vi­tae (Fem­i­nae): Bi­og­ra­phy and Early Amer­i­can Women Lawyers,” Stan­ford Law Re­view 46, no. 5 (May 1994), wlh.law.stan­ford.edu/wp-con­tent/up­loads/2011/01/sanger-cv-fem­i­nae.pdf.

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“lived on the edge of his­tory”: Eleanor Holmes Nor­ton, in­tro­duc­tion to Song in a Weary Throat, by Pauli Mur­ray (New York: Harper & Row, 1987).

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“And, by the way,” she wrote: Abi­gail Adams to John Adams, March 13, 1776, www.masshist.org/dig­i­ta­l­adams/ar­chive/doc?id=L17760331aa.

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Af­ter Myra Brad­well took her quest: Brad­well v. The State, 83 U.S. 130 (1873).

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“Fe­male doc­tors could claim”: Bar­bara J. Har­ris, Be­yond Her Sphere: Women and the Pro­fes­sions in Amer­i­can His­tory (West­port, Conn.: Green­wood Press, 1978).

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peo­pled his ad­min­is­tra­tion: Sam Petulla, “Charts Show How Trump’s Cab­i­net Breaks with Tra­di­tion,” NBC News, Jan. 20, 2017, www.nbc­news.com/sto­ry­line/in­au­gu­ra­tion-2017/trump-cab­i­net-break­down-race-gen­der-n708986; Ja­son Lange, “White and Male: Broader Bu­reau­cracy Mir­rors Trump’s Cab­i­net Pro­file,” Reuters, Oct. 20, 2017, www.reuters.com/ar­ti­cle/us-trump-ef­fect-di­ver­sity/white-and-male-broader-bu­reau­cracy-mir­rors-trump-cab­i­nets-pro­file-idUSKB­N1CP1D1; Alana Wise, “Biden Pledged His­toric Cab­i­net Di­ver­sity. Here’s How His Nom­i­nees Stack Up,” NPR, Feb. 5, 2021, www.npr.org/sec­tions/pres­i­dent-biden-takes-of­fice/2021/02/05/963837953/biden-pledged-his­toric-cab­i­net-di­ver­sity-heres-how-his-nom­i­nees-stack-up.

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de­ter­mined to be abusers: Tim Dick­in­son, “A His­tory of Sex and Abuse in the Trump Ad­min­is­tra­tion,” Rolling Stone, Feb. 23, 2018, www.rolling­stone.com/pol­i­tics/pol­i­tics-news/a-his­tory-of-sex-and-abuse-in-the-trump-ad­min­is­tra­tion-202833/.

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he filled the fed­eral bench: Matthew Nuss­baum, “Trump’s Judges, U.S. At­tor­neys Over­whelm­ingly White Men,” Politico, May 10, 2018, www.politico.com/story/2018/05/10/trump-judges-at­tor­neys-white-men-582345.

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im­pe­tus for the Women’s March: Kaveh Wad­dell, “The Ex­haust­ing Work of Tal­ly­ing Amer­ica’s Largest Protest,” At­lantic, Jan. 23, 2017, www.the­at­lantic.com/tech­nol­ogy/ar­chive/2017/01/wom­ens-march-protest-count/514166/.

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to re­sign in protest: “The Trump Ad­min­is­tra­tion Of­fi­cials Who Re­signed over Capi­tol Vi­o­lence,” New York Times, Jan. 17, 2021, www.ny­times.com/ar­ti­cle/trump-res­ig­na­tions.html.

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I in­ter­viewed Jus­tice Ruth Bader Gins­burg: Gins­burg, in­ter­view by au­thor, Jan. 2020.

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It is not, we learned, self-en­forc­ing: See, for ex­am­ple, Bob Bauer and Jack Gold­smith Af­ter Trump: Re­con­struct­ing the Pres­i­dency (Wash­ing­ton, DC: Law­fare Press, 2020).

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bring­ing mer­it­less chal­lenges: Jeremy W. Pe­ters and Alan Feuer, “How Is Trump’s Lawyer Jenna El­lis ‘Elite Strike Force’ Ma­te­rial?,” New York Times, Dec. 20, 2020, www.ny­times.com/2020/12/03/us/pol­i­tics/jenna-el­lis-trump.html; Emma Brown et al., “Sid­ney Pow­ell Group Raised More Than $14 Mil­lion Spread­ing Elec­tion False­hoods,” Wash­ing­ton Post, Dec. 6, 2021, www.wash­ing­ton­post.com/in­ves­ti­ga­tions/sid­ney-pow­ell-de­fend­ing-re­pub­lic-do­na­tions/2021/12/06/61bdb004-53ef-11ec-8769-2f4ecd­f7a2ad_s­tory.html; Dahlia Lith­wick, “Real Ac­count­abil­ity for Those Re­spon­si­ble for Jan. 6 Is Ac­tu­ally Start­ing to Pile Up,” Slate, Aug. 26, 2021, slate.com/news-and-pol­i­tics/2021/08/sid­ney-pow­ell-sanc­tions-jan-6-in­sur­rec­tion.html; Bren­nan Cen­ter for Jus­tice and Bi­par­ti­san Pol­icy Cen­ter, “Elec­tion Of­fi­cials Un­der At­tack,” June 16, 2021, www.bren­nan­cen­ter.org/our-work/pol­icy-so­lu­tions/elec­tion-of­fi­cials-un­der-at­tack.

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“We like our lone and ex­cep­tional he­roes”: Re­becca Sol­nit, “When the Hero Is the Prob­lem,” LitHub, April 2, 2019, lithub.com/re­becca-sol­nit-when-the-hero-is-the-prob­lem.

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CHAP­TER 2: THE FIRST NO

signed into law an ex­ec­u­tive or­der: Evan Perez, Pamela Brown, and Kevin Lip­tak, “In­side the Con­fu­sion of the Trump Ex­ec­u­tive Or­der and Travel Ban,” CNN, Jan. 30, 2017, www.cnn.com/2017/01/28/pol­i­tics/don­ald-trump-travel-ban/in­dex.html; Ben­jamin Wittes, “Malev­o­lence Tem­pered by In­com­pe­tence: Trump’s Hor­ri­fy­ing Ex­ec­u­tive Or­der on Refugees and Visas,” Law­fare, Jan. 28, 2017, www.law­fare­blog.com/malev­o­lence-tem­pered-in­com­pe­tence-trumps-hor­ri­fy­ing-ex­ec­u­tive-or­der-refugees-and-visas.

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that it was in­tended for Mus­lim trav­el­ers: Zainab Ramahi, “The Mus­lim Ban Cases: A Lost Op­por­tu­nity for the Court and a Les­son for the Fu­ture,” Cal­i­for­nia Law Re­view 108, no. 2 (April 2020), www.cal­i­for­nialawre­view.org/print/mus­lim-ban-cases.

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Yates once told The New Yorker’s Ryan Lizza: Ryan Lizza, “Why Sally Yates Stood Up to Trump,” New Yorker, May 22, 2017, www.newyorker.com/mag­a­zine/2017/05/29/why-sally-yates-stood-up-to-trump.

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“She would have been a heck of a lawyer”: Henry Unger, “U.S. At­tor­ney Sally Yates: ‘No­body Is a Suc­cess on Their Own,’ ” At­lanta Jour­nal-Con­sti­tu­tion, Sept. 14, 2013, www.ajc.com/busi­ness/at­tor­ney-sally-yates-no­body-suc­cess-their-own/douXrIvS­M94Uc­Gac­c2pbdM.

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“I didn’t go for the right rea­sons”: “Re­code De­code: Sally Yates,” Re­code De­code, Nov. 12, 2018, www.vox.com/2018/11/12/18086580/sally-yates-at­tor­ney-gen­eral-jus­tice-de­part­ment-doj-don­ald-trump-cor­rup­tion-kara-swisher-pod­cast.

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Yates was grilled by Sen­ate Re­pub­li­cans: Euan McKirdy, “Jeff Ses­sions Grilled Sally Yates on Con­sti­tu­tional Duty Dur­ing Con­fir­ma­tion Hear­ing,” CNN, Jan. 31, 2017, www.cnn.com/2017/01/31/pol­i­tics/sally-yates-jeff-ses­sions-deputy-at­tor­ney-gen­eral-hear­ing/in­dex.html; Josh Ger­stein, “Sally Yates Con­firmed as No. 2 at Jus­tice De­part­ment,” Politico, May 13, 2015, www.politico.com/blogs/un­der-the-radar/2015/05/sally-yates-con­firmed-as-no-2-at-jus­tice-de­part­ment-207069.

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Obama’s point per­son on prison re­form: Sari Hor­witz, “Obama to Com­mute Hun­dreds of Fed­eral Drug Sen­tences in Fi­nal Grants of Clemency,” Wash­ing­ton Post, Jan. 17, 2017, www.wash­ing­ton­post.com/world/na­tional-se­cu­rity/obama-to-com­mute-hun­dreds-of-fed­eral-drug-sen­tences-in-fi­nal-grants-of-clemency/2017/01/16/c99b4ba6-da5e-11e6-b8b2-cb5164be­ba6b_s­tory.html; “Deputy At­tor­ney Gen­eral Sally Q. Yates De­liv­ers Re­marks at Har­vard Law School on Sen­tenc­ing and Prison Re­form,” Jan. 9, 2017, www.jus­tice.gov/opa/speech/deputy-at­tor­ney-gen­eral-sally-q-yates-de­liv­ers-re­marks-har­vard-law-school-sen­tenc­ing-and.

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As she later tes­ti­fied, his re­sponse: Matt Apuzzo and Em­marie Huet­te­man, “Sally Yates Tells Sen­a­tors She Warned Trump About Mike Flynn,” New York Times, May 8, 2017, www.ny­times.com/2017/05/08/us/pol­i­tics/michael-flynn-sally-yates-hear­ing.html.

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her deputy at the Jus­tice De­part­ment: Nicole Sganga, “Sally Yates Talks About Her 10 Days as Act­ing At­tor­ney Gen­eral,” CBS News, May 20, 2018, www.cb­snews.com/news/sally-yates-talks-about-her-10-days-as-act­ing-at­tor­ney-gen­eral.

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for­mer ACLU di­rec­tor Burt Neuborne: Burt Neuborne, Madi­son’s Mu­sic: On Read­ing the First Amend­ment (New York: New Press, 2015).

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for a “to­tal and com­plete shut­down”: Jes­sica Tay­lor, “Trump Calls for ‘To­tal and Com­plete Shut­down of Mus­lims En­ter­ing’ U.S.,” NPR, Dec. 7, 2015, www.npr.org/2015/12/07/458836388/trump-calls-for-to­tal-and-com­plete-shut­down-of-mus­lims-en­ter­ing-u-s.

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an en­tire team of DOJ lawyers: Michael Wines, Katie Ben­ner, and Adam Lip­tak, “Jus­tice Dept. to Re­place Lawyers in Cen­sus Cit­i­zen­ship Ques­tion Case,” New York Times, July 7, 2019, www.ny­times.com/2019/07/07/us/pol­i­tics/cen­sus-cit­i­zen­ship-ques­tion-jus­tice-de­part­ment.html.

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Yates wrote up a state­ment: Josh Ger­stein, “Trump Fires De­fi­ant Act­ing At­tor­ney Gen­eral,” Politico, Jan. 30, 2017, www.politico.com/story/2017/01/trump-im­mi­gra­tion-ex­ec­u­tive-or­der-234401.

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in 2018, in Trump v. Hawaii: Trump v. Hawaii, 17-965, 585 U.S. __ (2018).

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fire her via email: Er­ica Or­den, “Sally Yates, Preet Bharara Stress High Bar for Crim­i­nal Charges in the Rus­sia Probe,” Wall Street Jour­nal, Oct. 4, 2017, www.wsj.com/ar­ti­cles/sally-yates-preet-bharara-stress-high-bar-for-crim­i­nal-charges-in-rus­sia-probe-1507158408.

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“Mon­day Night Mas­sacre”: Derek Hawkins, “ ‘Mon­day Night Mas­sacre’? Af­ter Fir­ing of Yates, Nixon’s Sor­did Mo­ment Has Been Re­pur­posed for Trump,” Wash­ing­ton Post, Jan. 31, 2017, www.wash­ing­ton­post.com/news/morn­ing-mix/wp/2017/01/31/mon­day-night-mas­sacre-af­ter-fir­ing-of-yates-nixons-sor­did-mo­ment-has-been-re­pur­posed-for-trump.

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tweeted out a threat: De­vlin Bar­rett and Sari Hor­witz, “Sally Yates to Tes­tify About Her Dis­cus­sions with the White House on Rus­sia,” Wash­ing­ton Post, May 8, 2017, www.wash­ing­ton­post.com/world/na­tional-se­cu­rity/yates-to-tes­tify-about-her-dis­cus­sions-with-the-white-house-on-rus­sia/2017/05/05/02a33032-31dd-11e7-9534-00e4656c22aa_s­tory.html.

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Sen­a­tor Ted Cruz (R-Tex.) peered down: “Ted Cruz Gets into a Heated Ex­change with Sally Yates, Prompt­ing Laugh­ter and Groans,” Bos­ton Globe, May 8, 2017, www.boston­globe.com/news/pol­i­tics/2017/05/08/ted-cruz-gets-into-heated-le­gal-ex­change-with-sally-yates-prompt­ing-laugh­ter-and-groans/9Wf3Fk­woG4TW­Par6iQ­PapO/story.html.

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Leon Ney­fakh noted at the time: Leon Ney­fakh, “Slayer of Ted Cruz, De­fender of Jus­tice,” Slate, May 9, 2017, slate.com/news-and-pol­i­tics/2017/05/sally-yates-walked-out-of-an-aaron-sorkin-script-and-into-lib­er­als-hearts.html.

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The blog­ger Yashar Ali posted: Yashar Ali (@yashar), “WATCH: Here’s who Sally Yates re­minds me of. . . . . wait for it,” Twit­ter, May 8, 2017, 5:11 p.m., twit­ter.com/yashar/sta­tus/861690012412366848.

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his sec­ond at­tor­ney gen­eral, Bill Barr: Jen Kirby, “At­tor­ney Gen­eral Bill Barr Con­tra­dicted Trump on Voter Fraud. Now He’s Re­sign­ing,” Vox, Dec. 14, 2020, www.vox.com/2020/12/14/22175221/bill-barr-re­signs-trump-at­tor­ney-gen­eral.

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many lawyers chose to cut ties: Tom Mc­Carthy and Jon Swaine, “Don Mc­Gahn: White House Coun­sel to Re­sign, Trump Con­firms,” Guardian, Aug, 29, 2018, www.the­guardian.com/us-news/2018/aug/29/don-mc­gahn-re­sign-trump-white-house-coun­sel; Betsy Woodruff Swan and Nicholas Wu, “Top DOJ Of­fi­cial Drafted Res­ig­na­tion Email amid Trump Elec­tion Pres­sure,” Politico, Aug. 4, 2021, www.politico.com/news/2021/08/04/doj-of­fi­cial-res­ig­na­tion-trump-elec­tion-pres­sure-502413; Bloomberg In­dus­try Group, “Cur­rent Em­ploy­ment of Top Trump Lawyers,” Flour­ish, June 14, 2021, pub­lic.flour­ish.stu­dio/vi­su­al­i­sa­tion/6368569.

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The Mueller re­port it­self is re­plete: Spe­cial Coun­sel Robert S. Mueller III, “Re­port on the In­ves­ti­ga­tion into Rus­sian In­ter­fer­ence in the 2016 Pres­i­den­tial Elec­tion,” U.S. De­part­ment of Jus­tice, March 2019, www.jus­tice.gov/ar­chives/sco/file/1373816/down­load.

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Chuck Park re­signed: Chuck Park, “I Can No Longer Jus­tify Be­ing a Part of Trump’s ‘Com­pla­cent State.’ So I’m Re­sign­ing,” Wash­ing­ton Post, Aug. 8, 2019, www.wash­ing­ton­post.com/opin­ions/i-can-no-longer-jus­tify-be­ing-a-part-of-trumps-com­pla­cent-state-so-im-re­sign­ing/2019/08/08/fed849e4-af14-11e9-8e77-03b30bc29f64_s­tory.html.

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fa­mously re­buffed pub­lic pres­sure: “The Pub­lic Ser­vant (with Sally Yates),” Stay Tuned with Preet, Dec. 12, 2019, cafe.com/stay-tuned/the-pub­lic-ser­vant-with-sally-yates.

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her fa­ther’s sui­cide: Sally Yates, “Sally Yates: When Dark­ness Falls—My Dad’s Bat­tle with De­pres­sion,” CNN, June 11, 2018, www.cnn.com/2018/06/11/opin­ions/when-my-dad-lost-his-strug­gle-with-de­pres­sion-sally-yates/in­dex.html.

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CHAP­TER 3: THE AIR­PORT REV­O­LU­TION

Trump’s ex­ec­u­tive or­der bar­ring: Michael D. Shear, Nicholas Kul­ish, and Alan Feuer, “Judge Blocks Trump Or­der on Refugees amid Chaos and Out­cry World­wide,” New York Times, Jan. 28, 2017, www.ny­times.com/2017/01/28/us/refugees-de­tained-at-us-air­ports-prompt­ing-le­gal-chal­lenges-to-trumps-im­mi­gra­tion-or­der.html.

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travel ban elec­tri­fied the rifts: Ash­ley Parker, Philip Rucker, and Robert Costa, “From Or­der to Dis­or­der: How Trump’s Im­mi­gra­tion Di­rec­tive Ex­posed GOP Rifts,” Wash­ing­ton Post, Jan. 30, 2017, www.wash­ing­ton­post.com/pol­i­tics/from-or­der-to-dis­or­der-how-trumps-im­mi­gra­tion-di­rec­tive-ex­posed-gop-rifts/2017/01/30/b4e42044-e70f-11e6-b82f-687d6e6a3e7c_s­tory.html.

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In the hours fol­low­ing the launch: Lyric Lewin, “These Are the Faces of Trump’s Travel Ban,” CNN, Jan. 2017, www.cnn.com/in­ter­ac­tive/2017/01/pol­i­tics/im­mi­gra­tion-ban-sto­ries; Clau­dia Ko­erner, “Trump’s Travel Ban Is Keep­ing Sick Kids from Med­i­cal Care, So Canada Is Step­ping In,” Buz­zFeed News, Feb. 3, 2017, www.buz­zfeed­news.com/ar­ti­cle/clau­di­ako­erner/trumps-travel-ban-is-keep­ing-sick-kids-from-med­i­cal-care-so; Yeganeh Tor­bati, Jeff Ma­son, and Mica Rosen­berg, “Chaos, Anger as Trump Or­der Halts Some Mus­lim Im­mi­grants,” Reuters, Jan. 28, 2017, www.reuters.com/ar­ti­cle/us-usa-trump-im­mi­gra­tion-chaos-idUSKB­N15C0LD; Jerry Markon, Emma Brown, and Kather­ine Shaver, “Judge Halts De­por­ta­tions as Refugee Ban Causes World­wide Furor,” Wash­ing­ton Post, Jan. 29, 2017, www.wash­ing­ton­post.com/lo­cal/so­cial-is­sues/refugees-de­tained-at-us-air­ports-chal­lenge-trumps-ex­ec­u­tive-or­der/2017/01/28/e69501a2-e562-11e6-a547-5fb9411d332c_s­tory.html.

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“like Tom Hanks at the air­port”: Adam Lip­tak, “3 Judges Weigh Trump’s Re­vised Travel Ban, but Keep Their Poker Faces,” New York Times, May 15, 2017, www.ny­times.com/2017/05/15/us/pol­i­tics/trump-travel-ban-ap­peals-court.html.

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Two such trav­el­ers: Rachel Weiner and Gre­gory S. Schnei­der, “Yemeni Broth­ers De­ported at Dulles Will Prob­a­bly Be Al­lowed Back into U.S.,” Wash­ing­ton Post, Feb. 2, 2017, www.wash­ing­ton­post.com/lo­cal/pub­lic-safety/yeme­nese-broth­ers-de­ported-at-dulles-will-likely-be-al­lowed-back-into-us/2017/02/02/7daa044c-e94c-11e6-bf6f-301b6b443624_s­tory.html.

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An­other stranded trav­eler: Hameed Dar­weesh, “I Risked My Life for the U.S. Army in Iraq. But When I Came Here, I Was Nearly Sent Back,” Wash­ing­ton Post, Feb. 10, 2017, www.wash­ing­ton­post.com/postev­ery­thing/wp/2017/02/10/i-worked-for-the-u-s-army-in-iraq-but-when-i-landed-in-amer­ica-i-was-de­tained.

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In Phil­a­del­phia, two Syr­ian fam­i­lies: Brian X. Mc­Crone, John Tay­lor, and David Chang, “Two Syr­ian Fam­i­lies De­tained at Phil­a­del­phia In­ter­na­tional Air­port, Then Put on Re­turn Flight Home, Fam­ily Mem­ber Says,” NBC Phil­a­del­phia, Jan. 29, 2017, www.nbcphiladel­phia.com/news/lo­cal/two-syr­ian-fam­i­lies-de­tained-at-phil­a­del­phia-in­ter­na­tional-air­port-told-to-fly-back-fam­ily-mem­ber-says/26565.

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be­ing held in Chicago: Elyssa Cher­ney, Nereida Moreno, and Tony Briscoe, “Chicagoans De­cry Travel Re­stric­tions as Fam­ily, Friends Held at O’Hare,” Chicago Tri­bune, Jan. 30, 2017, www.chicagotri­bune.com/news/break­ing/ct-ohare-im­mi­gra­tion-met-20170129-story.html.

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Fifty other trav­el­ers were de­tained: Di­anne So­lis et al., “U.S. Judge Blocks De­por­ta­tions Un­der Trump Or­der as Pro­test­ers Flock to DFW, Other Air­ports Na­tion­wide,” Dal­las Morn­ing News, Jan. 29, 2017, www.dal­las­news.com/news/pol­i­tics/2017/01/29/u-s-judge-blocks-de­por­ta­tions-un­der-trump-or­der-as-pro­test­ers-flock-to-dfw-other-air­ports-na­tion­wide.

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A re­cent Clem­son PhD: Martha Wag­goner, “South Car­olina Tech Worker Vis­it­ing Iran Can’t Re­turn to US,” As­so­ci­ated Press, Jan. 29, 2017, ap­news.com/ar­ti­cle/29c5163604c14d618e8d7e877d­d1735e.

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A Syr­ian fam­ily of six: Sarah Jor­gensen, “Syr­ian Chris­tian Fam­ily, Visas in Hand, Turned Back at Air­port,” CNN, Jan. 29, 2017, www.cnn.com/2017/01/28/us/syr­ian-fam­ily-trump-travel-ban/in­dex.html.

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Over­all, the ACLU es­ti­mated: Javier E. David and Ja­cob Pra­muk, “Judge Blocks US from De­port­ing Visa Hold­ers De­tained Af­ter Trump’s Refugee Or­der,” CNBC, Jan. 31, 2017, www.cnbc.com/2017/01/28/aclu-mounts-le­gal-chal­lenge-to-trumps-refugee-ban-call­ing-it-un­law­ful.html.

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De­part­ment of Home­land Se­cu­rity (DHS) put out a state­ment: “De­part­ment of Home­land Se­cu­rity Re­sponse to Re­cent Lit­i­ga­tion,” De­part­ment of Home­land Se­cu­rity, Jan. 29, 2017, www.dhs.gov/news/2017/01/29/de­part­ment-home­land-se­cu­rity-re­sponse-re­cent-lit­i­ga­tion.

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Haider Sameer Ab­dulkhaleq Al­shawi: Manny Fer­nan­dez, “Refugee Ban In­jects Chaos into Iraqi Fam­ily’s Re­union,” New York Times, Jan. 28, 2017, www.ny­times.com/2017/01/28/us/refugee-ban-in­jects-chaos-into-iraqi-fam­ilys-re­union.html.

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“most likely to de­bate with a teacher”: Miriam Jor­dan, “A Travel Ban’s Foe: A Young Fire­brand and Her Pro Bono Brigade,” New York Times, May 7, 2017, www.ny­times.com/2017/05/07/us/travel-ban-lawyer.html.

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“I’d worked on a range of dif­fer­ent is­sues”: Becca Heller, in­ter­view by au­thor, Feb. 2019.

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as I re­ported out the story: Dahlia Lith­wick, “The Lawyers Showed Up,” Slate, Jan. 28, 2017, slate.com/news-and-pol­i­tics/2017/01/lawyers-take-on-don­ald-trumps-mus­lim-ban.html.

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three thou­sand lawyers had vol­un­teered: Reeves Wiede­man, “24 Hours at JFK: The Hour-by-Hour Ac­count of Two Iraqis’ De­tain­ment and Re­lease,” New York, Jan. 31, 2017, ny­mag.com/in­tel­li­gencer/2017/01/24-hours-at-jfk-two-iraqi-refugees-de­tain­ment-and-re­lease.html.

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New York Taxi Work­ers Al­liance: Eli Blu­men­thal, “The Scene at JFK as Taxi Driv­ers Strike Fol­low­ing Trump’s Im­mi­gra­tion Ban,” USA To­day, Jan. 28, 2017, www.us­ato­day.com/story/news/2017/01/28/taxi-driv­ers-strike-jfk-air­port-fol­low­ing-trumps-im­mi­gra­tion-ban/97198818.

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Thirty thou­sand peo­ple turned up: Daniel Altschuler (@al­tochulo), “The march was ut­terly end­less. Our fi­nal count is 30,000 beau­ti­ful NY­ers. #NoBan­NoWall,” Twit­ter, Jan. 29, 2017, 6:06 p.m., twit­ter.com/al­tochulo/sta­tus/825842703342649346.

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“By the end of the day”: Eli Rosen­berg, “Protests Grow ‘Out of Nowhere’ at Kennedy Air­port Af­ter Iraqis Are De­tained,” New York Times, Jan. 28, 2017, www.ny­times.com/2017/01/28/nyre­gion/jfk-protests-trump-refugee-ban.html.

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By 3:00 p.m. Sat­ur­day: Chas Dan­ner, “Protests Against Trump’s Travel Ban Break Out Across Amer­ica,” New York, Jan. 29, 2017, ny­mag.com/in­tel­li­gencer/2017/01/protests-against-trumps-travel-ban-break-out-across-amer­ica.html.

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at­tor­neys were hunched on the floor: Jonah En­gel Bromwich, “Lawyers Mo­bi­lize at Na­tion’s Air­ports Af­ter Trump’s Or­der,” New York Times, Jan. 29, 2017, www.ny­times.com/2017/01/29/us/lawyers-trump-mus­lim-ban-im­mi­gra­tion.html.

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As Jen­nifer Ru­bin put it: Jen­nifer Ru­bin, Re­sis­tance: How Women Saved Democ­racy from Don­ald Trump (New York: Harper­Collins, 2021).

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The first emer­gency hear­ing hap­pened: Muneer I. Ah­mad and Michael J. Wish­nie, “Call Air Traf­fic Con­trol! Con­fronting Cri­sis as Lawyers and Teach­ers,” in Cri­sis Lawyer­ing: Ef­fec­tive Le­gal Ad­vo­cacy in Emer­gency Sit­u­a­tions, ed. Ray Bres­cia and Eric K. Stern (New York: New York Uni­ver­sity Press, 2021); Raya Jal­abi and Alan Yuhas, “Fed­eral Judge Stays De­por­ta­tions Un­der Trump Mus­lim Coun­try Travel Ban,” Guardian, Jan. 28, 2017, www.the­guardian.com/us-news/2017/jan/28/fed­eral-judge-stays-de­por­ta­tions-trump-mus­lim-ex­ec­u­tive-or­der; Geor­gett Roberts, Jen­nifer Bain, and Kathi­anne Boniello, “Fed­eral Judge Grants Stay for Those De­tained Un­der Trump’s Travel Ban,” New York Post, Jan. 28, 2017, ny­post.com/2017/01/28/fed­eral-judge-grants-emer­gency-stay-for-those-de­tained-un­der-trumps-travel-ban.

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Don­nelly, a for­mer fed­eral pros­e­cu­tor: Christo­pher Mele, “Judge Who Blocked Trump’s Refugee Or­der Praised for ‘Firm Moral Com­pass,’ ” New York Times, Jan. 29, 2017, www.ny­times.com/2017/01/29/us/judge-trump-refugee-or­der-ann-don­nelly.html.

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She or­dered the Trump ad­min­is­tra­tion to re­frain: Tim­o­thy B. Lee and Dara Lind, “Read: Full Text of the New Stay Halt­ing De­por­ta­tions Un­der Trump’s Im­mi­gra­tion Or­der,” Vox, Jan. 28, 2017, www.vox.com/2017/1/28/14427846/trump-mus­lim-ban-or­der.

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two fed­eral judges in Bos­ton: Daniel A. Gross, “In Bos­ton, a Late-Night Vic­tory Against Trump’s Im­mi­gra­tion Ban,” New Yorker, Jan. 29, 2017, www.newyorker.com/news/news-desk/in-bos­ton-a-late-night-vic­tory-against-trumps-im­mi­gra­tion-ban.

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Re­searchers have been study­ing the data: Jen­nifer L. Pere­sie, “Fe­male Judges Mat­ter: Gen­der and Col­le­gial De­ci­sion­mak­ing in the Fed­eral Ap­pel­late Courts,” Yale Law Jour­nal 114, no. 7 (May 2005), www.yalelawjour­nal.org/note/fe­male-judges-mat­ter-gen­der-and-col­le­gial-de­ci­sion­mak­ing-in-the-fed­eral-ap­pel­late-courts.

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Jus­tice San­dra Day O’Con­nor fa­mously re­jected: San­dra Day O’Con­nor, “James Madi­son Lec­ture: Por­tia’s Progress,” NYU Law Jour­nal 66 (Dec. 1991), www.law.nyu.edu/sites/de­fault/files/ECM_PRO_059255.pdf.

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while Jus­tice So­nia So­tomayor: So­nia So­tomayor, “A Latina Judge’s Voice,” Berke­ley La Raza Law Jour­nal 13, no. 1 (March 2002), law­cat.berke­ley.edu/record/1118136.

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Those num­bers mat­ter whether or not: John Gram­lich, “How Trump Com­pares with Other Re­cent Pres­i­dents in Ap­point­ing Fed­eral Judges,” Pew Re­search Cen­ter, Jan. 13, 2021, www.pewre­search.org/fact-tank/2021/01/13/how-trump-com­pares-with-other-re­cent-pres­i­dents-in-ap­point­ing-fed­eral-judges/.

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“mas­sive suc­cess story”: Josh Ger­stein, “Home­land Se­cu­rity De­ployed ‘Cri­sis Ac­tion Team’ to En­force First Trump Travel Ban,” Politico, Jan. 2, 2018, www.politico.com/blogs/un­der-the-radar/2018/01/02/trump-travel-ban-dhs-cri­sis-team-319894.

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“It’s not a Mus­lim ban”: Roberts, Bain, and Boniello, “Fed­eral Judge Grants Stay for Those De­tained Un­der Trump’s Travel Ban.”

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A week af­ter a raft: Joanna Wal­ters, “Four States Sue Trump Ad­min­is­tra­tion over ‘Un-Amer­i­can’ Travel Ban,” Guardian, Feb. 1, 2017, www.the­guardian.com/us-news/2017/jan/31/trump-travel-ban-state-law­suits; Nausheen Hu­sain, “Time­line: Le­gal Fight over Trump’s ‘Mus­lim Ban’ and the Supreme Court Rul­ing,” Chicago Tri­bune, June 26, 2018, www.chicagotri­bune.com/data/ct-travel-ban-rul­ing-time­line-html­story.html; Steve Al­masy and Dar­ran Si­mon, “A Time­line of Pres­i­dent Trump’s Travel Bans,” CNN, March 30, 2017, www.cnn.com/2017/02/10/us/trump-travel-ban-time­line/in­dex.html.

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a third ver­sion was un­furled: Trump v. Hawaii, 17-965, 585 U.S. __ (2018).

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He would cite this vic­tory: Olivia Paschal, “Read Pres­i­dent Trump’s Speech Declar­ing a Na­tional Emer­gency,” At­lantic, Feb. 15, 2019, www.the­at­lantic.com/pol­i­tics/ar­chive/2019/02/trumps-dec­la­ra­tion-na­tional-emer­gency-full-text/582928.

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CHAP­TER 4: CHAR­LOTTES­VILLE NAZIS

Nazis marched in Char­lottes­ville: Phil Mc­Caus­land, “White Na­tion­al­ist Leads Torch-Bear­ing Pro­test­ers Against Re­moval of Con­fed­er­ate Statue,” NBC News, May 14, 2017, www.nbc­news.com/news/us-news/white-na­tion­al­ist-leads-torch-bear­ing-pro­test­ers-against-re­moval-con­fed­er­ate-statue-n759266.

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“It has a pop­u­la­tion”: Richard C. Schrag­ger, “When White Su­prem­a­cists In­vade a City,” Vir­ginia Law Re­view 104 (Jan. 2018), www.vir­ginialawre­view.org/ar­ti­cles/when-white-su­prem­a­cists-in­vade-city.

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Ja­son Kessler, a lo­cal white su­prem­a­cist: Natasha Bertrand, “Here’s What We Know About the ‘Pro-white’ Or­ga­nizer of ‘Unite the Right,’ Who Was Chased Out of His Own Press Con­fer­ence,” Busi­ness In­sider, Aug. 14, 2017, www.busi­nessin­sider.com/who-is-ja­son-kessler-unite-the-right-char­lottes­ville-2017-8.

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“the Har­vard of the Con­fed­er­acy”: Amiri Baraka, The Au­to­bi­og­ra­phy of LeRoi Jones (Chicago: Lawrence Hill Books, 1984).

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Mon­ti­cello, home of Thomas Jef­fer­son: An­nette Gor­don-Reed, The Hem­ingses of Mon­ti­cello: An Amer­i­can Fam­ily (New York: W. W. Nor­ton, 2008).

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“Blood and soil” (or the orig­i­nal: David Nei­w­ert, “When White Na­tion­al­ists Chant Their Weird Slo­gans, What Do They Mean?,” South­ern Poverty Law Cen­ter, Oct. 10, 2017, www.spl­cen­ter.org/hate­watch/2017/10/10/when-white-na­tion­al­ists-chant-their-weird-slo­gans-what-do-they-mean.

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“a beau­ti­ful aes­thetic”: Oliver Laugh­land, “White Na­tion­al­ist Richard Spencer at Rally over Con­fed­er­ate Statue’s Re­moval,” Guardian, May 14, 2017, www.the­guardian.com/world/2017/may/14/richard-spencer-white-na­tion­al­ist-vir­ginia-con­fed­er­ate-statue.

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the KKK de­cided to get in on: Hawes Spencer and Matt Stevens, “23 Ar­rested and Tear Gas De­ployed Af­ter a K.K.K. Rally in Vir­ginia,” New York Times, July 8, 2017, www.ny­times.com/2017/07/08/us/kkk-rally-char­lottes­ville-robert-e-lee-statue.html; Sarah Toy, “KKK Rally in Char­lottes­ville Met with Throng of Pro­test­ers,” USA To­day, July 8, 2017, www.us­ato­day.com/story/news/na­tion-now/2017/07/08/kkk-holds-rally-vir­ginia-and-met-pro­test­ers/462146001.

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so-called Unite the Right rally: Adam Bhala Lough, Alt-Right: Age of Rage (Net­flix, 2018); El­lie Sil­ver­man, “Neo-Nazi Told Leader of Group at Deadly 2017 Char­lottes­ville Rally: ‘We’re All Do­ing It To­gether,’ ” Wash­ing­ton Post, Nov. 4, 2021, www.wash­ing­ton­post.com/dc-md-va/2021/11/04/char­lottes­ville-law­suit-nazis-he­im­bach-trial/; Dara Lind, “Unite the Right, the Vi­o­lent White Su­prem­a­cist Rally in Char­lottes­ville, Ex­plained,” Vox, Aug. 14, 2017, www.vox.com/2017/8/12/16138246/char­lottes­ville-nazi-rally-right-uva.

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David Duke would at­tend: Libby Nel­son, “ ‘Why We Voted for Don­ald Trump’: David Duke Ex­plains the White Su­prem­a­cist Char­lottes­ville Protests,” Vox, Aug. 12, 2017, www.vox.com/2017/8/12/16138358/char­lottes­ville-protests-david-duke-kkk.

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Trump had ini­tially re­fused to con­demn: Danielle Kurt­zleben, “Trump’s Fuzzy His­tory of De­nounc­ing White Na­tion­al­ism,” GBH News, Aug. 15, 2017, www.wgbh.org/news/2017/08/15/pol­i­tics-gov­ern­ment/trumps-fuzzy-his­tory-de­nounc­ing-white-na­tion­al­ism.

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a Twit­ter ac­count called WhiteGeno­cideTM: Nolan D. Mc­Caskill, “Trump Retweets An­other White Su­prem­a­cist,” Politico, Feb. 27, 2016, www.politico.com/blogs/2016-gop-pri­mary-live-up­dates-and-re­sults/2016/02/don­ald-trump-white-su­prem­a­cist-retweet-219915.

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the most speech-pro­tec­tive court: Joel Gora, “Free Speech Mat­ters: The Roberts Court and the First Amend­ment,” Jour­nal of Law and Pol­icy 25, no. 1 (2016), brook­lyn­works.brook­law.edu/jlp/vol25/iss1/4.

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A vast ar­ray of sketchy: Ter­miniello v. City of Chicago, 337 U.S. 1 (1949); Man­ual En­ter­prises Inc. v. Day, 370 U.S. 478 (1962); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); United States v. Play­boy En­ter­tain­ment Group, 529 U.S. 803 (2000); Sny­der v. Phelps, 562 U.S. 443 (2011).

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Skokie, Illi­nois, had a pop­u­la­tion: Na­tional So­cial­ist Party of Amer­ica v. Vil­lage of Skokie, 432 U.S. 43 (1977).

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coun­ter­protesters “drowned out”: Dou­glas E. Knee­land, “2,000 Pro­test­ers Drown Out Nazis at Chicago Rally,” New York Times, June 25, 1978, www.ny­times.com/1978/06/25/ar­chives/2000-pro­test­ers-drown-out-nazis-at-chicago-rally.html.

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“un­spec­tac­u­lar end af­ter 10 min­utes”: James Yuenger and Ronald Koziol, “Fear, Loathing, but Lit­tle Else, at Nazi Rally,” Chicago Tri­bune, June 25, 1978.

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tapped a Jew­ish at­tor­ney—David Gold­berger: As­so­ci­ated Press, “Lawyer Who Aided Illi­nois Nazis Re­calls a ‘Very Dif­fi­cult Odyssey,’ ” New York Times, April 29, 1979, www.ny­times.com/1979/04/29/ar­chives/lawyer-who-aided-illi­nois-nazis-re­calls-a-very-dif­fi­cult-odyssey.html.

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ACLU mem­bers re­signed: Dou­glas E. Knee­land, “Nazi De­fense by A.C.L.U. Has Cost 2,000 Mem­bers,” New York Times, Sept. 6, 1977, www.ny­times.com/1977/09/06/ar­chives/nazi-de­fense-by-aclu-has-cost-2000-mem­bers.html.

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“if we don’t be­lieve in free­dom of ex­pres­sion”: “MIT Li­braries Re­ceive Pa­pers of Dis­tin­guished Lin­guist, Philoso­pher, and Ac­tivist Noam Chom­sky,” MIT Li­braries, Feb. 9, 2012, cit­ing The Guardian, Nov. 23, 1992, li­braries.mit.edu/news/li­braries-re­ceive-pa­pers/7765/.

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sued the City of Char­lottes­ville: Claire Guthrie Gas­tañaga and Steve Levin­son, “Why We Rep­re­sented the Alt-Right in Char­lottes­ville,” Rich­mond Times-Dis­patch, Aug. 26, 2017, rich­mond.com/opin­ion/their-opin­ion/guest-colum­nists/gasta-aga-and-levin­son-col­umn-why-we-rep­re­sented-the-alt/ar­ti­cle_15d8a11b-bddf-54af-9a1a-17f21f­dae7e4.html.

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Hawes Spencer de­scribed it: Hawes Spencer, “A Far-Right Gath­er­ing Bursts into Brawls,” New York Times, Aug. 13, 2017, www.ny­times.com/2017/08/13/us/char­lottes­ville-protests-unite-the-right.html.

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in his 2018 book, Sum­mer of Hate: Hawes Spencer, Sum­mer of Hate: Char­lottes­ville, USA (Char­lottes­ville: Uni­ver­sity of Vir­ginia Press, 2018).

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po­lit­i­cal com­men­ta­tor Larry Sabato: Terry McAuliffe, Be­yond Char­lottes­ville: Tak­ing a Stand Against White Na­tion­al­ism (New York: St. Mar­tin’s Press, 2019).

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“we’d still do you”: Terry McAuliffe, “The In­side Story of Char­lottes­ville—and How the Vi­o­lence Could Have Been Avoided,” Newsweek, July 30, 2019, www.newsweek.com/2019/08/09/what-hap­pened-char­lottes­ville-vir­ginia-terry-mcauliffe-book-1451608.html.

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“first f—— boat home”: Joel Gunter, “A Reck­on­ing in Char­lottes­ville,” BBC, Aug. 13, 2017, www.bbc.com/news/world-us-canada-40914748.

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De­An­dre Har­ris, was bru­tally beaten: Ian Shapira, “The Park­ing Garage Beat­ing Lasted 10 Sec­onds. De­An­dre Har­ris Still Lives with the Dam­age,” Wash­ing­ton Post, Sept. 16, 2019, www.wash­ing­ton­post.com/lo­cal/the-park­ing-garage-beat­ing-lasted-10-sec­onds-de­an­dre-har­ris-still-lives-with-the-dam­age/2019/09/16/ca6­daa48-cfbf-11e9-87fa-8501a456c003_s­tory.html.

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David Duke of­fered up: Hi­lary Han­son, “Ex-KKK Leader David Duke Says White Su­prem­a­cists Will ‘Ful­fill’ Trump’s Prom­ises,” Huff­in­g­ton Post, Aug. 12, 2017, www.huff­post.com/en­try/david-duke-char­lottes­ville-rally-trump_n_598f3­ca8e4b0909642974a10 (video recorded and up­loaded by Mykal McEl­downey of The In­di­anapo­lis Star).

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a Dodge Chal­lenger driven by James Alex Fields Jr.: Com­plaint in Sines et al. v. Kessler et al., 324 F.Supp.3d 765 (W.D. Va. 2018).

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The trauma didn’t end: Com­plaint in Sines et al. v. Kessler et al., 324 F.Supp.3d 765 (W.D. Va. 2018).

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Ac­tivists and an­tiracist pro­test­ers: Ian Shapira, “Find­ing the White Su­prem­a­cists Who Beat a Black Man in Char­lottes­ville,” Wash­ing­ton Post, Aug. 31, 2017, www.wash­ing­ton­post.com/lo­cal/find­ing-the-white-su­prem­a­cists-who-beat-a-black-man-in-char­lottes­ville/2017/08/31/9f36e762-8cfb-11e7-84c0-02cc069f2c37_s­tory.html.

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A pro­file in The Wash­ing­ton Post: Karen Heller, “At­tor­ney Roberta Ka­plan Is About to Make Trump’s Life Ex­tremely Dif­fi­cult,” Wash­ing­ton Post, Jan. 18, 2021, www.wash­ing­ton­post.com/life­style/style/roberta-ka­plan-lawyer-at­tor­ney-trump/2021/01/17/ae8890f2-50f8-11eb-bda4-615aaefd0555_s­tory.html.

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Edie Wind­sor, the eighty-three-year-old widow: United States v. Wind­sor, 570 U.S. 744 (2013).

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Ka­plan was an out­sider: Roberta Ka­plan, in­ter­view by au­thor, July 2019.

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Ka­plan had lost a big ACLU suit: Samuels v. New York State De­part­ment of Health, 4 N.Y.3d 825 (2005).

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Wind­sor’s vic­tory in 2013 would be­come: Oberge­fell v. Hodges, 576 U.S. 644 (2015).

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she and Edie were gay women: Roberta Ka­plan, Then Comes Mar­riage: United States v. Wind­sor and the De­feat of DOMA, with Lisa Dickey (New York: W. W. Nor­ton, 2015).

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“we con­demn in the strong­est pos­si­ble terms”: Dan Mer­ica, “Trump Con­demns ‘Ha­tred, Big­otry, and Vi­o­lence on Many Sides’ in Char­lottes­ville,” CNN, Aug. 13, 2017, www.cnn.com/2017/08/12/pol­i­tics/trump-state­ment-alt-right-protests/in­dex.html.

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The neo-Nazi An­drew An­glin: Com­plaint in Sines et al. v. Kessler et al., 324 F.Supp.3d 765 (W.D. Va. 2018).

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“You had some very bad peo­ple”: Rosie Gray, “Trump De­fends White-Na­tion­al­ist Pro­test­ers: ‘Some Very Fine Peo­ple on Both Sides,’ ” At­lantic, Aug. 15, 2017, www.the­at­lantic.com/pol­i­tics/ar­chive/2017/08/trump-de­fends-white-na­tion­al­ist-pro­test­ers-some-very-fine-peo­ple-on-both-sides/537012.

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In later years, he would claim: David Jack­son, “Trump De­fends Re­sponse to Char­lottes­ville Vi­o­lence, Says He Put It ‘Per­fectly’ with ‘Both Sides’ Re­mark,” USA To­day, April 26, 2019, www.us­ato­day.com/story/news/pol­i­tics/2019/04/26/trump-says-both-sides-char­lottes­ville-re­mark-said-per­fectly/3586024002.

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never went to the Supreme Court: Planned Par­ent­hood of Co­lum­bia/Willamette Inc. v. Amer­i­can Coali­tion of Life Ac­tivists, 290 F.3d 1058 (9th Cir. 2002).

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Ku Klux Klan Act of 1871: 42 U.S.C. §§ 1983–86.

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Ka­plan and Dunn filed their suit: Com­plaint in Sines et al. v. Kessler et al., 324 F.Supp.3d 765 (W.D. Va. 2018).

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“The trauma will never go away”: Neil Mac­Far­quhar, “The Char­lottes­ville Rally Civil Trial, Ex­plained,” New York Times, Oct. 25, 2019, www.ny­times.com/live/2021/char­lottes­ville-rally-trial-ex­plained.

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Julie Fink is the man­ag­ing part­ner: Julie Fink, in­ter­view by au­thor, July 2019.

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James E. Kolenich, a civil rights at­tor­ney: Mon­roe Trombly, “In a Sub­ur­ban Cincin­nati Of­fice Park, White Na­tion­al­ists Have Found Their Lawyer—and an Ally,” Cincin­nati In­quirer, Feb. 26, 2018, www.cincin­nati.com/story/news/2018/02/26/sub­ur­ban-cincin­nati-of­fice-park-white-na­tion­al­ists-have-found-their-lawyer-and-ally/338365002.

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in a sixty-two-page rul­ing: Sines et al. v. Kessler et al., 324 F. Supp.3d 765 (W.D. Va. 2018).

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Unite the Right’s an­niver­sary: Richard Faus­set, Serge F. Ko­valeski, and Alan Feuer, “A Year Af­ter Char­lottes­ville, Dis­ar­ray in the White Su­prem­a­cist Move­ment,” New York Times, Aug. 13, 2018, www.ny­times.com/2018/08/13/us/char­lottes­ville-unite-the-right-white-su­prem­a­cists.html; Joe Heim et al., “White-Su­prem­a­cist Rally near White House Dwarfed by Thou­sands of Anti-hate Pro­test­ers,” Wash­ing­ton Post, Aug. 12, 2018, www.wash­ing­ton­post.com/lo­cal/wash­ing­ton-read­ies-for-to­days-planned-white-su­prem­a­cist-rally-near-white-house/2018/08/12/551720c4-9c28-11e8-8d5e-c6c594024954_s­tory.html.

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Nathan Damigo, an­other de­fen­dant: Aaron Kater­sky, “Char­lottes­ville Rally Law­suit to Pro­ceed De­spite Nathan Damigo’s Bank­ruptcy Fil­ing,” ABC News, Feb. 19, 2019, abc­news.go.com/US/char­lottes­ville-rally-law­suit-pro­ceed-nathan-dami­gos-bank­ruptcy-fil­ing/story?id=61149383.

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James Fields Jr. was sen­tenced: CBS/As­so­ci­ated Press, “Man Gets Life Plus 419 Years in Deadly Char­lottes­ville Car At­tack,” CBS News, July 15, 2019, www.cb­snews.com/news/james-alex-fields-jr-char­lottes­ville-car-at­tack-sen­tenced-life-plus-419-years-to­day-2019-07-15.

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Matthew He­im­bach was ar­rested: Marwa Elt­agouri and Avi Selk, “How a White Na­tion­al­ist’s Fam­ily Came to Blows over a Trailer Tryst,” Wash­ing­ton Post, March 14, 2018, www.wash­ing­ton­post.com/news/post-na­tion/wp/2018/03/13/white-na­tion­al­ist-leader-matthew-he­im­bach-ar­rested-for-do­mes­tic-bat­tery.

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can­celed a speak­ing tour: Su­san Svr­luga, “ ‘An­tifa Is Win­ning’: Richard Spencer Re­thinks His Col­lege Tour Af­ter Vi­o­lent Protests,” Wash­ing­ton Post, March 12, 2018, www.wash­ing­ton­post.com/news/grade-point/wp/2018/03/12/an­tifa-is-win­ning-richard-spencer-re­thinks-his-col­lege-tour-af­ter-vi­o­lent-protests/.

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Emails re­leased as part of the suit: Brett Bar­rou­quere, “ ‘Let’s Just Ghost Him’: Alt-Right Lead­ers Were Leery of Ja­son Kessler Be­fore ‘Unite the Right.’ Text Mes­sages Show They Wanted Him Out of the Move­ment,” South­ern Poverty Law Cen­ter, Oct. 17, 2018, www.spl­cen­ter.org/hate­watch/2018/10/17/alt-right-lead­ers-were-leery-ja­son-kessler.

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Kessler was caught on video: Isaac Stan­ley-Becker, “Ja­son Kessler’s Anti-Jew­ish Screed Was In­ter­rupted by His Fa­ther: ‘Hey, You Get Out of My Room,’ ” Wash­ing­ton Post, Aug. 16, 2018, www.wash­ing­ton­post.com/news/morn­ing-mix/wp/2018/08/16/ja­son-kesslers-anti-jew­ish-screed-was-in­ter­rupted-by-his-fa­ther-hey-get-out-of-my-room.

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two prom­i­nent clients: Kelly Weill, “ ‘Cry­ing Nazi’ Christo­pher Cantwell Al­legedly Threat­ened Char­lottes­ville Lawyer Su­ing Him,” Daily Beast, July 2, 2019, www.thedai­ly­beast.com/cry­ing-nazi-christo­pher-cantwell-al­legedly-threat­ened-char­lottes­ville-lawyer-su­ing-him; Kelly Weill, “Char­lottes­ville Lawyers Dump Nazi Clients,” Daily Beast, July 29, 2019, www.thedai­ly­beast.com/char­lottes­ville-lawyers-dump-nazi-clients-chris-the-cry­ing-nazi-cantwell-and-robert-azzmador-ray.

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dropped in toi­lets: “Trial of White Na­tion­al­ists Be­hind the 2017 Char­lottes­ville Rally Is Set to Be­gin,” PBS New­sHour, Oct. 24, 2021, www.pbs.org/new­shour/show/trial-of-the-white-na­tion­al­ists-be­hind-the-2017-char­lottes­ville-rally-is-set-to-be­gin.

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The trial was de­layed: Roberta Ka­plan and Karen Dunn, in­ter­views by au­thor, July 2019.

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“for all the women in the coun­try”: Heller, “At­tor­ney Roberta Ka­plan Is About to Make Trump’s Life Ex­tremely Dif­fi­cult.”

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the Char­lottes­ville jury: El­lie Sil­ver­man et al., “Spencer, Kessler, Cantwell, and Other White Su­prem­a­cists Found Li­able in Deadly Unite the Right Rally,” Wash­ing­ton Post, Nov. 23, 2021, www.wash­ing­ton­post.com/dc-md-va/2021/11/23/char­lottes­ville-ver­dict-live-up­dates; Neil Mac­Far­quhar, “Jury Finds Rally Or­ga­niz­ers Re­spon­si­ble for Char­lottes­ville Vi­o­lence,” New York Times, Nov. 23, 2021, www.ny­times.com/2021/11/23/us/char­lottes­ville-rally-ver­dict.html.

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“Once they are in gov­ern­ment”: David Ce­sarani, Fi­nal So­lu­tion: The Fate of the Jews, 1933–1949 (New York: St. Mar­tin’s Press, 2016).

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CHAP­TER 5: ABOR­TION AT THE BOR­DER

Mar­garet At­wood’s dystopic novel The Hand­maid’s Tale: Mar­garet At­wood, The Hand­maid’s Tale (New York: Houghton Mif­flin, 1986).

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Brigitte Amiri knows all about: Brigitte Amiri, in­ter­view by au­thor, May 2019.

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“Jane Doe” was the name given: Com­plaint for In­junc­tive Re­lief and Dam­ages in Garza v. Har­gan, Oct. 13, 2017, www.aclu.org/le­gal-doc­u­ment/garza-v-har­gan-com­plaint-in­junc­tive-re­lief-and-dam­ages.

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Marie Chris­tine Cortez, an at­tor­ney from Jane’s Due Process: Cris­tian Farias, “Meet the Texas Lawyer Who Helped an Un­doc­u­mented Teen Fight for an Abor­tion,” New York, Nov. 3, 2017, www.the­cut.com/2017/11/this-lawyer-helped-un­doc­u­mented-teen-fight-for-an-abor­tion.html.

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As Politico noted in 2018: Adam Can­cryn and Renuka Rayasam, “Meet the Anti-abor­tion Trump Ap­pointee Tak­ing Care of Sep­a­rated Kids,” Politico, June 21, 2018, www.politico.com/story/2018/06/21/scott-lloyd-anti-abor­tion-sep­a­rated-kids-642094.

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The threat of sex­ual vi­o­lence is per­va­sive: Manny Fer­nan­dez, “ ‘You Have to Pay with Your Body’: The Hid­den Night­mare of Sex­ual Vi­o­lence on the Bor­der,” New York Times, March 3, 2019, www.ny­times.com/2019/03/03/us/bor­der-rapes-mi­grant-women.html; Ke­jal Vyas, “Rapes of U.S.-Bound Mi­grants Make a Treach­er­ous Route Even More Dan­ger­ous,” Wall Street Jour­nal, Sept. 6, 2021, www.wsj.com/ar­ti­cles/rapes-of-u-s-bound-mi­grants-make-a-treach­er­ous-route-even-more-dan­ger­ous-11630956539; Ju­lia Lurie, “Beat­ings, Kid­nap­pings, and Rape: Sober­ing New Data Shows Just How Much Vi­o­lence Mi­grants Through Mex­ico En­dure,” Mother Jones, Aug. 21, 2019, www.moth­er­jones.com/pol­i­tics/2019/08/beat­ings-kid­nap­pings-and-rape-sober­ing-new-data-shows-just-how-much-vi­o­lence-mi­grants-through-mex­ico-en­dure.

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The ACLU had been in­ves­ti­gat­ing: Brigitte Amiri, “The Obama Ad­min­is­tra­tion Is Al­low­ing Re­li­gious Or­ga­ni­za­tions to Re­strict Health Care for the Most Vul­ner­a­ble, but We Just Won the First Round,” ACLU, Dec. 5, 2016, www.aclu.org/blog/re­pro­duc­tive-free­dom/re­li­gion-and-re­pro­duc­tive-rights/obama-ad­min­is­tra­tion-al­low­ing-re­li­gious; Com­plaint for In­junc­tive and Declara­tory Re­lief, RILR v. John­son, Dec. 16, 2014, www.aclu.org/le­gal-doc­u­ment/rilr-v-john­son-com­plaint?re­di­rect=im­mi­grants-rights/rilr-v-john­son-com­plaint; Shoshanna J. Ehrlich, “The Body as Bor­der­land: The Abor­tion (Non)Rights of Un­ac­com­pa­nied Teens in Fed­eral Im­mi­gra­tion Cus­tody in the Trump-Pence Era,” UCLA Women’s Law Jour­nal 28, no. 1 (2021), eschol­ar­ship.org/uc/item/797961p3.

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Lloyd put a new pol­icy into ef­fect: Com­plaint for In­junc­tive Re­lief and Dam­ages in Garza v. Har­gan.

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Lloyd wrote in an email: Jen­nifer Wright, “The U.S. Is Track­ing Mi­grant Girls’ Pe­ri­ods to Stop Them from Get­ting Abor­tions,” Harper’s Bazaar, April 2, 2019, www.harpers­bazaar.com/cul­ture/pol­i­tics/a26985261/trump-ad­min­is­tra­tion-abor­tion-pe­riod-track­ing-mi­grant-women; Rachel Siegel, “The Trump Of­fi­cial Who Tried to Stop a De­tained Im­mi­grant from Get­ting an Abor­tion,” Wash­ing­ton Post, Oct. 26, 2017, www.wash­ing­ton­post.com/news/post-na­tion/wp/2017/10/26/the-trump-of­fi­cial-who-tried-to-stop-a-de­tained-im­mi­grant-from-get­ting-an-abor­tion.

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Lloyd’s new ORR pol­icy: Sec­ond Amended Com­plaint for In­junc­tive Re­lief, Garza v. Har­gan, Nov. 11, 2018, www.acludc.org/sites/de­fault/files/field­_­doc­u­ments/garza­_v_har­gan_2nd_a­mend­ed_­com­plaint_1-11-2018.pdf; Michelle Gold­berg, “The Trump Ad­min­is­tra­tion’s Power over a Preg­nant Girl,” New York Times, Oct. 20, 2017, www.ny­times.com/2017/10/20/opin­ion/trump-preg­nancy-abor­tion-.html; Ehrlich, “Body as Bor­der­land.”

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“to be an ad­vo­cate for peo­ple”: Farias, “Meet the Texas Lawyer Who Helped an Un­doc­u­mented Teen Fight for an Abor­tion.”

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“I’m the daugh­ter of an Ira­nian im­mi­grant”: Brigitte Amiri, in­ter­view by au­thor, May 2019.

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just se­cured a huge vic­tory: Whole Woman’s Health v. Heller­st­edt, 579 U.S. 582 (2016).

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a 7–2 opin­ion in Roe v. Wade: Roe v. Wade, 410 U.S. 113 (1973).

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re­place­ment with Amy Coney Bar­rett: Nicholas Fan­dos, “Sen­ate Con­firms Bar­rett, De­liv­er­ing for Trump and Re­shap­ing the Court,” New York Times, Oct. 26, 2020, www.ny­times.com/2020/10/26/us/pol­i­tics/sen­ate-con­firms-bar­rett.html.

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In 1992, in Planned Par­ent­hood v. Casey: Planned Par­ent­hood v. Casey, 505 U.S. 833 (1992).

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But in 2016, in Whole Woman’s Health v. Heller­st­edt: Whole Woman’s Health v. Heller­st­edt, 579 U.S. 582 (2016).

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Mitch Mc­Connell’s un­prece­dented block­ade: Ron Elv­ing, “What Hap­pened with Mer­rick Gar­land in 2016 and Why It Mat­ters Now,” NPR, June 29, 2018, www.npr.org/2018/06/29/624467256/what-hap­pened-with-mer­rick-gar­land-in-2016-and-why-it-mat­ters-now.

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am­biva­lent evan­gel­i­cal vot­ers: Olga Khazan, “Why Chris­tians Over­whelm­ingly Backed Trump,” At­lantic, Nov. 9, 2016, www.the­at­lantic.com/health/ar­chive/2016/11/why-women-and-chris­tians-backed-trump/507176.

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should suf­fer “some form of pun­ish­ment”: Matt Fle­gen­heimer and Mag­gie Haber­man, “Don­ald Trump, Abor­tion Foe, Eyes ‘Pun­ish­ment’ for Women, Then Re­cants,” New York Times, March 30, 2016, www.ny­times.com/2016/03/31/us/pol­i­tics/don­ald-trump-abor­tion.html.

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He even pub­lished a list: Alan Rappe­port and Char­lie Sav­age, “Don­ald Trump Re­leases List of Pos­si­ble Supreme Court Picks,” New York Times, March 18, 2016, www.ny­times.com/2016/05/19/us/pol­i­tics/don­ald-trump-supreme-court-nom­i­nees.html; Nina Toten­berg, “Don­ald Trump Un­veils New, More Di­verse Supreme Court Short List,” NPR, Sept. 23, 2016, www.npr.org/2016/09/23/495216645/don­ald-trump-un­veils-new-more-di­verse-supreme-court-short-list.

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Trump won a higher per­cent­age: Jes­sica Martínez and Gre­gory A. Smith, “How the Faith­ful Voted: A Pre­lim­i­nary 2016 Anal­y­sis,” Pew Re­search Cen­ter, Nov. 9, 2016, www.pewre­search.org/fact-tank/2016/11/09/how-the-faith­ful-voted-a-pre­lim­i­nary-2016-anal­y­sis.

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a crit­i­cal fac­tor in their vote: Myr­iam Re­naud, “Myths De­bunked: Why Did White Evan­gel­i­cal Chris­tians Vote for Trump?,” Sight­ings, Jan. 19, 2017, di­vin­ity.uchicago.edu/sight­ings/ar­ti­cles/myths-de­bunked-why-did-white-evan­gel­i­cal-chris­tians-vote-trump.

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Tony Perkins, who helms the anti-LGBTQ group: “Fam­ily Re­search Coun­cil,” South­ern Poverty Law Cen­ter, www.spl­cen­ter.org/fight­ing-hate/ex­trem­ist-files/group/fam­ily-re­search-coun­cil.

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“First, he chose a pro-life con­ser­va­tive”: Kather­ine Stew­art, “Eighty-one Per­cent of White Evan­gel­i­cals Voted for Don­ald Trump. Why?,” Na­tion, Nov. 17, 2016, www.then­ation.com/ar­ti­cle/ar­chive/eighty-one-per­cent-of-white-evan­gel­i­cals-voted-for-don­ald-trump-why.

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the most an­tiabor­tion US pres­i­dent: Gabby Orr, “Trumps Sets a New GOP Stan­dard in the Abor­tion Fight,” Politico, Jan. 24, 2020, www.politico.com/news/2020/01/24/march-for-life-trump-abor­tion-speech-103994; Ryan Lu­cas, “New Doc­u­ments Re­veal How Trump, Co­hen, Aides Worked to Seal Hush Money Deals,” NPR, Jan. 18, 2019, www.npr.org/2019/07/18/743112028/trump-spoke-with-co­hen-as-they-aides-sealed-hush-money-deals-in-2016; Shane Gold­macher, “F.E.C. Drops Case Re­view­ing Trump Hush-Money Pay­ments to Women,” New York Times, May 6, 2021, www.ny­times.com/2021/05/06/us/pol­i­tics/trump-michael-co­hen-fec.html.

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States em­bold­ened by Trump’s: Mark Sher­man and Jes­sica Gresko, “Jus­tices Sig­nal They’ll OK New Abor­tion Lim­its, May Toss Roe,” As­so­ci­ated Press, Dec. 1, 2021, ap­news.com/ar­ti­cle/abor­tion-don­ald-trump-us-supreme-court-health-amy-coney-bar­rett-a3b5cf9621315e6c623d­c80a790842d8; Elyssa Spitzer and Nora Ell­mann, “State Abor­tion Leg­is­la­tion in 2021,” Cen­ter for Amer­i­can Progress, Sept. 21, 2021, www.amer­i­can­progress.org/ar­ti­cle/state-abor­tion-leg­is­la­tion-2021/; Zoe Till­man, “Trump’s Judges Are Play­ing a Huge Role in Up­hold­ing Anti-abor­tion Laws Across the Coun­try,” Buz­zFeed News, Sept. 12, 2012, www.buz­zfeed­news.com/ar­ti­cle/zoetill­man/trump-judges-abor­tion-ac­cess-le­gal-chal­lenge; Scott S. Green­berger, “Trump-Ap­pointed Judges Fuel Abor­tion De­bate in the States,” Pew Trusts: State­line, Jan. 25, 2021, www.pewtrusts.org/en/re­search-and-anal­y­sis/blogs/state­line/2021/01/25/trump-ap­pointed-judges-fuel-abor­tion-de­bate-in-the-states; Nora Ell­man, “State Ac­tions Un­der­min­ing Abor­tion Rights in 2020,” Cen­ter for Amer­i­can Progress, Aug. 27, 2020, www.amer­i­can­progress.org/ar­ti­cle/state-ac­tions-un­der­min­ing-abor­tion-rights-2020/; What if Roe Fell? (New York: Cen­ter for Re­pro­duc­tive Rights, 2019), re­pro­duc­tiverights.org/sites/de­fault/files/2019-11/USP-2019-WIRF-Re­port-Web.pdf.

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moves to de­fund Planned Par­ent­hood: Pam Bel­luck, “Trump Ad­min­is­tra­tion Blocks Funds for Planned Par­ent­hood and Oth­ers over Abor­tion Re­fer­rals,” New York Times, Feb. 22, 2019, www.ny­times.com/2019/02/22/health/trump-de­funds-planned-par­ent­hood.html.

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em­ploy­ers to deny con­tra­cep­tion to em­ploy­ees: Devin Dwyer, “Supreme Court Al­lows Trump to Ex­empt Em­ploy­ers from Oba­macare Birth Con­trol Man­date,” ABC News, July 9, 2020, abc­news.go.com/Pol­i­tics/supreme-court-trump-ex­empt-em­ploy­ers-oba­macare-birth-con­trol/story?id=71254754.

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“ex­e­cut­ing ba­bies AF­TER birth”: Denise Grady, “ ‘Ex­e­cut­ing Ba­bies’: Here Are the Facts Be­hind Trump’s Mis­lead­ing Abor­tion Tweet,” New York Times, Feb. 26, 2019, www.ny­times.com/2019/02/26/health/abor­tion-bill-trump.html.

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Ef­forts to pack the fed­eral courts: Stacy Hawkins, “Trump’s Dan­ger­ous Ju­di­cial Legacy,” UCLA Law Re­view, June 13, 2019, www.uclalawre­view.org/trumps-dan­ger­ous-ju­di­cial-legacy; Mark Sher­man, Kevin Frek­ing, and Matthew Daly, “Trump’s Im­pact on Courts Likely to Last Long Be­yond His Term,” As­so­ci­ated Press, Dec. 26, 2020, ap­news.com/ar­ti­cle/joe-biden-don­ald-trump-mitch-mc­connell-elec­tions-ju­di­ciary-d5807340e86d05f­bc78ed50f­b43c1c46; Car­rie John­son, “Le­gal Opin­ions or Po­lit­i­cal Com­men­tary? A New Judge Ex­em­pli­fies the Trump Era,” NPR, July 26, 2018.

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am­bu­lance driv­ers re­fus­ing to treat: Steven Krey­tak, “Bus Driver Says Re­li­gious Views Led to Fir­ing,” Austin Amer­i­can-States­man, Sept. 1, 2012, www.states­man.com/story/news/lo­cal/2012/09/01/bus-driver-says-re­li­gious-views-led-to-fir­ing/9849616007.

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re­fus­ing to fill pre­scrip­tions: Minyvonne Burke, “A Woman’s Doc­tor Pre­scribed a Morn­ing-Af­ter Pill. Phar­ma­cists Re­fused to Fill It, Suit Says,” NBC News, Dec. 13, 2019, www.nbc­news.com/news/us-news/woman-s-doc­tor-pre­scribed-morn­ing-af­ter-pill-phar­ma­cists-re­fused-fill-n1101586.

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craft stores named Hobby Lobby: Bur­well v. Hobby Lobby, 573 U.S. 682 (2014).

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“Af­ter fail­ing to pro­hibit abor­tion”: Reva Siegel and Dou­glas Ne­Jaime, “Con­science and the Cul­ture Wars,” Amer­i­can Prospect, June 29, 2015, prospect.org/la­bor/con­science-cul­ture-wars.

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hos­pi­tal own­er­ship be­came con­sol­i­dated: Shamane Mills, “With Hos­pi­tal Con­sol­i­da­tion, Abor­tion and Tubal Lig­a­tion Rates Drop,” Wis­con­sin Pub­lic Ra­dio, Jan. 1, 2018, www.wpr.org/hos­pi­tal-con­sol­i­da­tion-abor­tion-and-tubal-lig­a­tion-rates-drop; Rikha Sharma Rani, “Wor­ried About Abor­tion Laws? Catholic Hos­pi­tal Merg­ers Also Seen as Threat to Women’s Health Care,” USA To­day, Dec. 27, 2019, www.us­ato­day.com/story/news/2019/12/27/wor­ried-abor­tion-laws-more-catholic-hos­pi­tals-also-seen-threat/4269242002.

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Faith-based fos­ter care: As­so­ci­ated Press and Tim Fitzsim­mons, “S.C. Group Can Re­ject Gays and Jews as Fos­ter Par­ents, Trump Ad­min Says,” NBC News, Jan. 24, 2019, www.nbc­news.com/fea­ture/nbc-out/s-c-group-can-re­ject-gays-jews-fos­ter-par­ents-trump-n962306.

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ex­emp­tions to the COVID vac­cine: Hay­ley Fowler, “Re­li­gious Ex­emp­tions to COVID Vac­cine: What Counts, What Doesn’t, and How It Works,” Mi­ami Her­ald, Nov. 23, 2021, www.mi­ami­her­ald.com/news/coro­n­avirus/ar­ti­cle255509366.html; Deepa Shiv­aram, “1 in 10 Amer­i­cans Say the COVID-19 Vac­cine Con­flicts with Their Re­li­gious Be­liefs,” NPR, Dec. 9, 2021, www.npr.org/2021/12/09/1062655300/sur­vey-re­li­gion-vac­cine-hes­i­tancy-ex­emp­tions.

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Amiri was work­ing: Amiri, in­ter­view by au­thor, May 2019.

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the judge felt it was the wrong venue: Or­der Deny­ing Mo­tion for Leave to Amend and a Tem­po­rary Re­strain­ing Or­der, Amer­i­can Civil Lib­er­ties Union of North­ern Cal­i­for­nia v. Bur­well (N.D. Cal., June 24, 2016) (on file with au­thor).

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Amiri filed an emer­gency pe­ti­tion: Com­plaint for In­junc­tive Re­lief and Dam­ages in Garza v. Har­gan, Oct. 13, 2017.

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Judge Chutkan or­dered HHS: Tem­po­rary Re­strain­ing Or­der in Garza v. Har­gan, Oct. 18, 2017, www.acludc.org/sites/de­fault/files/garza­_v_har­gan_tro_order_10-18-2017.pdf.

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The panel Amiri drew for oral ar­gu­ment: Amiri, in­ter­view by au­thor, May 2019; “Garza v. Har­gan Oral Ar­gu­ment (AU­DIO ONLY),” C-SPAN, Oct. 20, 2017, www.c-span.org/video/?436060-1/dc-cir­cuit-court-hears-un­doc­u­mented-teen-de­tainee-abor­tion-case-au­dio-only.

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The new or­der set a new dead­line: Or­der in Garza v. Har­gan, Oct. 20, 2017, www.acludc.org/sites/de­fault/files/field­_­doc­u­ments/garza­_v_har­gan_ap­peal­s_c­t_de­ci­sion_10-20-2017.pdf.

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judge Pa­tri­cia Mil­lett dis­sented: Or­der (at­tached state­ment of Judge Mil­lett), Oct. 20, 2017, www.acludc.org/sites/de­fault/files/field­_­doc­u­ments/garza­_v_har­gan_ap­peal­s_c­t_mil­let­t_dis­sent_10-20-2017.pdf.

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As Amiri had put it to me: Dahlia Lith­wick, “The Trump Ad­min­is­tra­tion Gets Re­li­gion,” Slate, Oct. 24, 2017, slate.com/news-and-pol­i­tics/2017/10/the-con­nec­tion-be­tween-hobby-lobby-and-the-jane-doe-abor­tion-case.html.

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the court voted by a 6–3 mar­gin: Or­der from the Re­hear­ing En Banc of the U.S. Cir­cuit Court of Ap­peals for the Dis­trict of Co­lum­bia in Garza v. Har­gan, Oct. 24, 2017, www.acludc.org/sites/de­fault/files/field­_­doc­u­ments/garza­_v_har­gan_­ful­l_ap­peal­s_c­t_order_10-24-2017.pdf.

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Ka­vanaugh penned a bit­ter dis­sent: Or­der from the Re­hear­ing En Banc of the U.S. Cir­cuit Court of Ap­peals for the Dis­trict of Co­lum­bia in Garza v. Har­gan, Oct. 24, 2017.

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au­di­tion­ing in part: Robert Barnes and Ann E. Ma­ri­mow, “In Ma­jor Abor­tion Rul­ing, Ka­vanaugh Of­fers Clues of How He Might Han­dle Di­vi­sive Is­sue on the Supreme Court,” Wash­ing­ton Post, July 11, 2018, www.wash­ing­ton­post.com/pol­i­tics/court­s_law/in-ma­jor-abor­tion-rul­ing-ka­vanaugh-of­fers-clues-of-how-he-might-han­dle-di­vi­sive-is­sue-on-the-supreme-court/2018/07/11/1acd980a-8515-11e8-9e80-403a221946a7_s­tory.html.

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Amy Hagstrom Miller is CEO and founder: Hagstrom Miller, in­ter­view by au­thor, Aug. 2019.

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On Oc­to­ber 24, the lower court judge: Amended Tem­po­rary Re­strain­ing Or­der, Garza v. Har­gan, Oct. 24, 2017 (on file with the au­thor).

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in­ter­view with Vice News: An­to­nia Hyl­ton, “EX­CLU­SIVE: ‘Jane Doe’ Talks About Her Abor­tion Bat­tle with Trump’s DOJ,” Vice News, Oct. 25, 2017, www.vice.com/en/ar­ti­cle/7xweag/ex­clu­sive-jane-doe-talks-about-her-abor­tion-bat­tle-with-trumps-doj.

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Noel Fran­cisco filed an ap­peal: Pe­ti­tion for a Writ of Cer­tio­rari, Garza v. Har­gan, 183 S.Ct. 1790 (2018).

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In­ter­nal ORR doc­u­ments: E. Scott Lloyd, “Let­ter from E. Scott Lloyd to Jonathan White re: Use of Fed­eral Funds to Ter­mi­nate a Preg­nancy for [redacted]—DE­CI­SION,” Dec. 6, 2017, www.acludc.org/sites/de­fault/files/field­_­doc­u­ments/garza­_v_har­gan_or­r_let­ter_12-22-2017.pdf.

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On June 4, 2018, the jus­tices did grant: Azar v. Garza, 138 S.Ct. 1790 (2018).

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filed a sep­a­rate class ac­tion: Plain­tiff’s Re­newed Mo­tion for Class Cer­ti­fi­ca­tion and a Pre­lim­i­nary In­junc­tion Based on New Facts Demon­strat­ing Con­tin­ued Need for Ur­gent Re­lief, Garza v. Har­gan, March 2, 2018 (on file with au­thor).

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barred DHS from deny­ing: Mem­o­ran­dum and Or­der, Garza v. Har­gan, March 30, 2018, www.acludc.org/sites/de­fault/files/field­_­doc­u­ments/garza­_v_har­gan_mem­o­_opin­ion_and_order_3-30-2018.pdf.

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cer­ti­fied the ACLU’s class-ac­tion: Or­der Grant­ing Class Cer­ti­fi­ca­tion, Garza v. Har­gan, March 20, 2018, www.acludc.org/sites/de­fault/files/field­_­doc­u­ments/garza­_v_har­gan_order_­grant­ing_­class_cert_3-30-2018.pdf.

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is­sued a new pol­icy: Joint Stip­u­la­tion of Dis­missal With­out Prej­u­dice (Ex­hibit A), Garza v. Har­gan, Sept. 29, 2020, www.acludc.org/sites/de­fault/files/field­_­doc­u­ments/garza.168.stip­u­la­tion_of_dis­missal_with­out_prej­u­dice.pdf.

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drop their class ac­tion: Joint Stip­u­la­tion of Dis­missal With­out Prej­u­dice, Garza v. Har­gan, Sept. 29, 2020.

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“There is some book by John Irv­ing”: John Irv­ing, A Prayer for Owen Meany (New York: Harper­Collins, 1989).

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Lloyd ad­mit­ted un­der oath: Christina Cauterucci, “Trump Of­fi­cial Con­sid­ered Forc­ing Un­doc­u­mented Mi­nor into Untested ‘Abor­tion Re­ver­sal’ Pro­ce­dure,” Slate, Jan. 31, 2018, slate.com/news-and-pol­i­tics/2018/01/trump-of­fi­cial-con­sid­ered-forc­ing-un­doc­u­mented-mi­nor-into-untested-abor­tion-re­ver­sal-pro­ce­dure.html.

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In an­other de­po­si­tion, taken in Feb­ru­ary: Mark Joseph Stern, “Scott Lloyd Tells All,” Slate, Aug. 5, 2018, slate.com/news-and-pol­i­tics/2018/04/aclu-de­po­si­tion-shows-scott-lloyd-abused-power-to-pre­vent-un­doc­u­mented-mi­nors-from-get­ting-abor­tions.html.

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fur­ther said un­der oath: Stern, “Scott Lloyd Tells All.”

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call­ing, vis­it­ing, and oth­er­wise mi­cro­manag­ing: Renuka Rayasam, “Trump Of­fi­cial Halts Abor­tions Among Un­doc­u­mented, Preg­nant Teens,” Politico, Oct. 16, 2017, www.politico.com/story/2017/10/16/un­doc­u­mented-preg­nant-girl-trump-abor­tion-texas-243844.

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metic­u­lous track of the men­strual cy­cles: Rachel Mad­dow, “Trump Ad­min Tracked In­di­vid­ual Mi­grant Girls’ Preg­nan­cies,” MSNBC, March 15, 2019, www.msnbc.com/rachel-mad­dow/watch/trump-ad­min-tracked-in­di­vid­ual-mi­grant-girls-preg­nan­cies-1459294787849?cid=sm_tw_­mad­dow.

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The Hand­maid’s Tale des­ig­na­tion: Wright, “U.S. Is Track­ing Mi­grant Girls’ Pe­ri­ods to Stop Them from Get­ting Abor­tions.”

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at least partly re­spon­si­ble: Dan Di­a­mond, “Trump Ap­pointee Un­der Scru­tiny for Han­dling of Child Sep­a­ra­tions,” Politico, Feb. 26, 2019, www.politico.com/story/2019/02/26/trump-refugee-di­rec­tor-fam­ily-sep­a­ra­tions-1211032.

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he had failed to alert HHS of­fi­cials: Dan Di­a­mond, “For­mer Trump Refugee Di­rec­tor Says He Never Warned Higher-Ups About Fam­ily Sep­a­ra­tions,” Politico, Feb. 26, 2019, www.politico.com/story/2019/02/26/scott-lloyd-mi­grant-fam­ily-sep­a­ra­tions-1216323.

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men­tal health catas­tro­phe: Dan Di­a­mond, “Fed­eral Health Of­fi­cial Warned of Risk of Sep­a­rat­ing Mi­grant Chil­dren,” Politico, Feb. 7, 2019, www.politico.com/story/2019/02/07/democrats-mi­grant-fam­ily-sep­a­ra­tions-1155524.

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stop keep­ing spread­sheets: Dan Di­a­mond, “HHS Re­views Refugee Op­er­a­tions as Trump Calls for Bor­der Crack­down,” Politico, Oct. 23, 2018, www.politico.com/story/2018/10/23/trump-car­a­van-bor­der-hhs-873152.

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even­tual re­view of the case files: Di­a­mond, “HHS Re­views Refugee Op­er­a­tions as Trump Calls for Bor­der Crack­down.”

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In law­suits, fed­eral judges or­dered: Lance Williams and Matt Smith, “Judge Or­ders Gov­ern­ment to Re­lease Im­mi­grant Kids from Trou­bled Texas Shel­ter,” Texas Tri­bune, July 31, 2018, www.tex­as­tri­bune.org/2018/07/31/judge-or­ders-gov­ern­ment-re­lease-im­mi­grant-kids-texas-shel­ter.

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al­le­ga­tions sur­faced that staff: As­so­ci­ated Press, “Teens Kept at Vir­ginia Cen­ter Say They Were Cuffed, Beaten,” ABC8 News, June 21, 2018, www.wric.com/news/vir­ginia-news/teens-kept-at-vir­ginia-cen­ter-say-they-were-cuffed-beaten.

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Amy Hagstrom Miller said: Hagstrom Miller, in­ter­view by au­thor, Aug. 2019.

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“Three fed­eral courts have re­buked”: Han­nah Lev­in­tova, “The Trump Of­fi­cial Who Failed to Re­unify Dozens of Sep­a­rated Chil­dren Is Get­ting a New Role,” Mother Jones, Jan./Feb. 2019, www.moth­er­jones.com/pol­i­tics/2018/11/scott-lloyd-abor­tion-child-mi­grants-of­fice-of-refugee-re­set­tle­ment.

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One month later he pub­lished a novel: E. Scott Lloyd, The Un­der­grad­u­ate (n.p.: Lib­erty Is­land, 2018).

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Lloyd qui­etly left: Di­a­mond, “For­mer Trump Refugee Di­rec­tor to De­part HHS.”

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im­per­a­tive work of rolling back: Mag­gie As­tor, “What Is the Hyde Amend­ment? A Look at Its Im­pact as Biden Re­verses His Stance,” New York Times, June 7, 2019, www.ny­times.com/2019/06/07/us/pol­i­tics/what-is-the-hyde-amend­ment.html.

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at­tack moved rapidly from ban­ning abor­tion: Wynne Davis, “As the Supreme Court Weighs the Fu­ture of ‘Roe v. Wade,’ Ex­perts Look Be­yond Abor­tion,” NPR, Dec. 10, 2021, www.npr.org/2021/12/10/1062702221/supreme-court-weighs-mis­sis­sippi-abor­tion-law-ex­perts-look-fur­ther; David H. Gans, “The Mis­sis­sippi Abor­tion Case Threat­ens the Right to Use Birth Con­trol, Marry, and Even Make Choices About Sex,” Slate, Oct. 12, 2021, slate.com/news-and-pol­i­tics/2021/10/mis­sis­sippi-abor­tion-birth-con­trol-lgbtq-sco­tus.html; Marisa En­di­cott, “A New Fed­eral Judge Ap­pointed by Trump Has Fought Against Abor­tion, Fer­til­ity Treat­ments, and Sur­ro­gacy,” Mother Jones, Dec. 4, 2019, www.moth­er­jones.com/pol­i­tics/2019/12/a-new-fed­eral-judge-ap­pointed-by-trump-has-fought-against-abor­tion-fer­til­ity-treat­ments-and-sur­ro­gacy.

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sec­ond most pop­u­lous state: Adam Lip­tak, “Supreme Court Al­lows Chal­lenge to Texas Abor­tion Law but Leaves It in Ef­fect,” New York Times, Dec. 10, 2021, www.ny­times.com/2021/12/10/us/pol­i­tics/texas-abor­tion-supreme-court.html.

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that sign that be­came fa­mil­iar: Joseph Hur­ley, “I Can’t Be­lieve I’m Still Protest­ing This Shit Sign, Women’s March on Wash­ing­ton, 2017-01-21,” Jan. 21, 2017, Geor­gia State Uni­ver­sity Li­brary Ex­hibits, ex­hibits.li­brary.gsu.edu/cur­rent/items/show/3221.

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lis­ten­ers tuned in en masse: “Huge Num­bers Tune In to Lis­ten to Court on Trump Travel Ban,” As­so­ci­ated Press, Feb. 7, 2017, ap­news.com/ar­ti­cle/6dc42276c3044cb8a9d891466e­b95f08.

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In­sti­tute for Pol­icy In­tegrity: Bethany A. Davis Noll, “ ‘Tired of Win­ning’: Ju­di­cial Re­view of Reg­u­la­tory Pol­icy in the Trump Ad­min­is­tra­tion,” Ad­min­is­tra­tive Law Re­view 73, no. 2 (2021), www.law.nyu.edu/sites/de­fault/files/Davis­Noll-Tired­ofWin­ning_0.pdf.

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CHAP­TER 6: THE CIVIL RIGHTS LAWYER

And no­body was more sur­prised by: Vanita Gupta, in­ter­view by au­thor, Aug. 2019.

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“There was a se­ries of in­ci­dents”: Zoe Car­pen­ter, “The Woman Lead­ing a ‘Strate­gic Hub of the Re­sis­tance’ in the Age of Trump,” Rolling Stone, March 8, 2019, www.rolling­stone.com/pol­i­tics/pol­i­tics-fea­tures/vanita-gupta-lead­er­ship-coun­cil-civil-rights-802158.

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“I be­came an ac­tivist in high school”: Mat­tie Kahn, “ ‘De­spair Is the En­emy of Jus­tice’: Vanita Gupta on Vot­ing, March­ing, and Stay­ing in the Fight,” Glam­our, Aug. 26, 2020, www.glam­our.com/story/vanita-gupta-on-vot­ing-march­ing-and-stay­ing-in-the-fight.

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The Tu­lia Her­ald feted Tu­lia’s law en­force­ment: Vanita Gupta, “Crit­i­cal Race Lawyer­ing in Tu­lia, Texas,” Ford­ham Law Re­view 73, no. 5 (2005), ir.lawnet.ford­ham.edu/cgi/view­con­tent.cgi?ar­ti­cle=4071&con­text=flr.

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Bob Her­bert, helped pub­li­cize: Bob Her­bert, “Kafka in Tu­lia,” New York Times, July 29, 2002, www.ny­times.com/2002/07/29/opin­ion/kafka-in-tu­lia.html; Bob Her­bert, “ ‘Law­man of the Year,’ ” New York Times, Aug. 1, 2002, www.ny­times.com/2002/08/01/opin­ion/law­man-of-the-year.html; Bob Her­bert, “Tu­lia’s Shat­tered Lives,” New York Times, Aug. 5, 2002, www.ny­times.com/2002/08/05/opin­ion/tu­lia-s-shat­tered-lives.html; Bob Her­bert, “Rail­roaded in Texas,” New York Times, Aug. 8, 2002, www.ny­times.com/2002/08/08/opin­ion/rail­roaded-in-texas.html; Bob Her­bert, “Jus­tice Goes into Hid­ing,” New York Times, Aug. 12, 2002, www.ny­times.com/2002/08/12/opin­ion/jus­tice-goes-into-hid­ing.html; Bob Her­bert, “A Con­fused In­quiry,” New York Times, Aug. 22, 2002, www.ny­times.com/2002/08/22/opin­ion/a-con­fused-in­quiry.html; Bob Her­bert, “The Lat­est from Tu­lia,” New York Times, Dec. 26, 2002, www.ny­times.com/2002/08/22/opin­ion/a-con­fused-in­quiry.html; Bob Her­bert, “Mug­ging the Needy,” New York Times, April 2, 2003, www.ny­times.com/2003/04/03/opin­ion/mug­ging-the-needy.html; Bob Her­bert, “The Tu­lia Story Isn’t Over,” New York Times, April 28, 2003, www.ny­times.com/2003/04/28/opin­ion/the-tu­lia-story-isn-t-over.html; Bob Her­bert, “Part­way to Free­dom,” New York Times, June 16, 2003, www.ny­times.com/2003/06/16/opin­ion/part­way-to-free­dom.html; Bob Her­bert, “A Good Day,” New York Times, June 19, 2003, www.ny­times.com/by/bob-her­bert.

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To those who hold the Tu­lia vic­tory: Gupta, “Crit­i­cal Race Lawyer­ing in Tu­lia, Texas.”

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win­ning a land­mark set­tle­ment: “Land­mark Set­tle­ment An­nounced in Fed­eral Law­suit Chal­leng­ing Con­di­tions at Im­mi­grant De­ten­tion Cen­ter in Texas,” ACLU, Aug. 27, 2007, www.aclu.org/press-re­leases/land­mark-set­tle­ment-an­nounced-fed­eral-law­suit-chal­leng­ing-con­di­tions-im­mi­grant.

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“I am not naïve”: Vanita Gupta, “How to Re­ally End Mass In­car­cer­a­tion,” New York Times, Aug. 14, 2013, www.ny­times.com/2013/08/15/opin­ion/how-to-re­ally-end-mass-in­car­cer­a­tion.html.

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mas­sive re­port on the Fer­gu­son Po­lice: “In­ves­ti­ga­tion of the Fer­gu­son Po­lice De­part­ment,” U.S. De­part­ment of Jus­tice Civil Rights Di­vi­sion, March 4, 2015, www.jus­tice.gov/sites/de­fault/files/opa/press-re­leases/at­tach­ments/2015/03/04/fer­gu­son_po­lice_de­part­men­t_re­port.pdf.

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Gupta told me on my pod­cast: “Race, Po­lice, and the Law,” Am­i­cus with Dahlia Lith­wick, June 6, 2020, slate.com/pod­casts/am­i­cus/2020/06/amer­i­cas-over­polic­ing-prob­lem.

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“I served a pres­i­dent”: Kahn, “ ‘De­spair Is the En­emy of Jus­tice’.”

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In a New Yorker pro­file: Jen­nifer Gonner­man, “Last Day at the Civil Rights Di­vi­sion,” New Yorker, Jan. 21, 2017, www.newyorker.com/news/news-desk/last-day-at-the-civil-rights-di­vi­sion.

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In 2019, a Vice in­ves­ti­ga­tion: Rob Arthur, “EX­CLU­SIVE: Trump’s Jus­tice De­part­ment Is In­ves­ti­gat­ing 60% Fewer Civil Rights Cases Than Obama’s,” Vice News, March 6, 2019, www.vice.com/en/ar­ti­cle/bjq37m/ex­clu­sive-trumps-jus­tice-de­part­ment-is-in­ves­ti­gat­ing-60-fewer-civil-rights-cases-than-oba­mas.

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what she char­ac­ter­ized as: Vanita Gupta, in­ter­view by au­thor, Aug. 2019.

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“In just the last few years”: Kahn, “ ’De­spair Is the En­emy of Jus­tice’.”

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into a strate­gic hub of the re­sis­tance: Vanita Gupta, in­ter­view by au­thor, Aug. 2019.

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to sup­port a plat­form: “Civil Rights Coali­tion Let­ter on Fed­eral Po­lice Pri­or­i­ties,” Lead­er­ship Con­fer­ence on Civil and Hu­man Rights, June 1, 2020, civil­rights.org/re­source/civil-rights-coali­tion-let­ter-on-fed­eral-polic­ing-pri­or­i­ties/#; “How We’re Fight­ing for Po­lice Re­form and Sys­temic Change in Amer­ica,” Lead­er­ship Con­fer­ence on Civil and Hu­man Rights, June 12, 2020, civil­rights.org/blog/how-were-fight­ing-for-po­lice-re­form-and-sys­temic-change-in-amer­ica/#.

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in seven hun­dred cities across the coun­try: Jen Kirby and Emily Stew­art, “Fam­i­lies Be­long To­gether Protest Un­der­way in More Than 700 Cities,” Vox, June 30, 2018, www.vox.com/2018/6/18/17477376/fam­i­lies-be­long-to­gether-march-june-30; Phil Mc­Caus­land, Pa­tri­cia Guadalupe, and Kalhan Rosen­blatt, “Thou­sands Across U.S. Join ‘Keep Fam­i­lies To­gether’ March to Protest Fam­ily Sep­a­ra­tion,” NBC News, June 30, 2018, www.nbc­news.com/news/us-news/thou­sands-across-u-s-join-keep-fam­i­lies-to­gether-march-protest-n888006; Joe Mahr, Tony Briscoe, and Ese Olumhense, “Demon­stra­tors Rally in the Loop Against Sep­a­ra­tion of Im­mi­grant Fam­i­lies,” Chicago Tri­bune, June 30, 2018, www.chicagotri­bune.com/news/break­ing/ct-met-loop-im­mi­gra­tion-fam­ily-sep­a­ra­tion-rally-20180630-story.html; Dino-Rey Ramos, “Hol­ly­wood Shows Up in Full Force to Sup­port ‘Fam­i­lies Be­long To­gether’ Im­mi­gra­tion Ral­lies Across the Na­tion,” Dead­line, June 30, 2018, dead­line.com/2018/06/fam­i­lies-be­long-to­gether-im­mi­gra­tion-protest-rally-john-leg­end-chrissy-teigen-laura-dern-lin-manuel-mi­randa-kerry-wash­ing­ton-amer­ica-fer­rera-don­ald-trump-1202420138/; Alexan­dra Yoon-Hen­dricks and Zoe Green­berg, “Protests Across U.S. Call for an End to Mi­grant Fam­ily Sep­a­ra­tion,” New York Times, June 30, 2018, www.ny­times.com/2018/06/30/us/pol­i­tics/trump-protests-fam­ily-sep­a­ra­tion.html; Alan Tay­lor, “Pho­tos from the Na­tion­wide ‘Fam­i­lies Be­long To­gether’ Marches,” At­lantic, July 1, 2018, www.the­at­lantic.com/photo/2018/07/pho­tos-from-the-na­tion­wide-fam­i­lies-be­long-to­gether-marches/564251.

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Sarah Palin got a big laugh: Lin­ton Weeks, “A Small-Town Mayor vs. a Com­mu­nity Or­ga­nizer,” NPR, Sept. 12, 2008, www.npr.org/tem­plates/story/story.php?sto­ryId=94526145.

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ques­tion could not be added: De­part­ment of Com­merce v. New York, 18-966, 588 U.S. __ (2019).

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Gupta co-wrote an op-ed: Vanita Gupta and Fa­tima Goss Graves, “We Mo­bi­lized to Op­pose Ka­vanaugh. Let’s Cor­ral That Same En­ergy to Pro­tect Our Democ­racy Now,” Morn­ing Con­sult, Oct. 23, 2019, morn­ing­con­sult.com/opin­ions/we-mo­bi­lized-to-op­pose-ka­vanaugh-lets-cor­ral-that-same-en­ergy-to-pro­tect-our-democ­racy-now.

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The Ka­vanaugh nom­i­na­tion was a wa­ter­shed mo­ment: Jen­nifer Ru­bin, Re­sis­tance: How Women Saved Democ­racy from Don­ald Trump (New York: Harper­Collins, 2021); Opheli Gar­cia Lawler, “The Col­lec­tive Wail of Women,” New York, Oct. 6, 2018, www.the­cut.com/2018/10/women-re­act-to-brett-ka­vanaughs-supreme-court-con­fir­ma­tion.html; David Bauder, “More Than 20 Mil­lion Peo­ple Watched the Ka­vanaugh Hear­ing,” As­so­ci­ated Press, Sept. 28, 2018, ap­news.com/ar­ti­cle/ap-top-news-jeff-flake-ju­di­ciary-sex­ual-as­sault-supreme-courts-caa510f21d­cd4c569a4c8ea91f587a44; Jen­nifer Wright, “With Ka­vanaugh Con­firmed, It’s Time to Burn It Down,” Harper’s Bazaar, Oct. 6, 2018, www.harpers­bazaar.com/cul­ture/pol­i­tics/a23509937/brett-ka­vanaugh-con­fir­ma­tion-re­bel­lion; Ed­i­to­rial Board, “Women on Watch­ing,” New York Times, Sept. 28, 2018, www.ny­times.com/2018/09/28/opin­ion/brett-ka­vanaugh-jeff-flake-gop-women.html; Kelly Virella, “We Asked Women What the Ka­vanaugh Vote Means for the Next Gen­er­a­tion. 40,000 Re­sponded,” New York Times, Oct. 9, 2018, www.ny­times.com/2018/10/09/reader-cen­ter/women-ka­vanaugh-con­fir­ma­tion.html.

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tes­ti­fied in sup­port of H.R. 1: Pe­ter Overby, “House Democrats In­tro­duce Anti-cor­rup­tion Bill as Sym­bolic 1st Act,” NPR, Jan. 5, 2019, www.npr.org/2019/01/05/682286587/house-democrats-in­tro­duce-anti-cor­rup­tion-bill-as-sym­bolic-first-act; Ella Nilsen, “House Democrats Just Passed a Slate of Sig­nif­i­cant Re­forms to Get Money Out of Pol­i­tics,” Vox, March 8, 2019, www.vox.com/2019/3/8/18253609/hr-1-pelosi-house-democrats-anti-cor­rup­tion-mc­connell.

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In con­gres­sional tes­ti­mony be­fore the Ju­di­ciary Com­mit­tee: Vanita Gupta, “State­ment of Vanita Gupta, Pres­i­dent and CEO, the Lead­er­ship Con­fer­ence on Civil and Hu­man Rights,” U.S. House Com­mit­tee on the Ju­di­ci