The law is the quintessential masculine field, made by men and wielded by them down through the centuries to serve and preserve their privileges and assumptions. For much of our history women were barred from becoming lawyers, let alone judges; I was a high-school senior when Constance Baker Motley became the first Black woman to be seated on the federal bench and in my 30s when Sandra Day O’Connor, who had been offered only a job as a legal secretary after graduating near the top of her class at Stanford Law in 1952, became the first female Supreme Court justice. It’s a different world today, of course: More than 50 percent of today’s law students are female, and despite ongoing discrimination and sexual harassment, quite a few hold powerful positions and lead important organizations. (Fun fact: Sixty percent of public-interest lawyers are women.) What difference those lawyers—feminist, anti-racist lawyers backed by social movements—have made in holding back the Trumpian tide and challenging masculine bias is the subject of Lady Justice. If you know Dahlia Lithwick’s work from Slate, where she writes about law and the courts and hosts its podcast “Amicus,” you won’t be surprised that she has a lot to say in her characteristically witty and energetic way.
She begins on a note of triumph. In 2016, she was present at the Supreme Court for oral arguments in Whole Woman’s Health v. Hellerstedt, in which Texas argued that state regulations that effectively closed abortion clinics were intended to protect women’s health. The three women justices—Elena Kagan, Ruth Bader Ginsburg, and Sonia Sotomayor—plus the “fourth feminist,” Stephen Breyer, “took turns snacking on Texas’s beleaguered lawyer,” ignoring formal time limits, “talking exuberantly over their flummoxed male colleagues,” and even adding extra time for testimony from a female reproductive rights advocate. (This makes quite a contrast to the arguments for Griswold v. Connecticut, the landmark 1965 case that legalized birth control for married couples: In that case, Lithwick reminds us, the nine male justices were too embarrassed even to name the device the case was about.) For Lithwick, that day “felt like the end of constitutionally sanctioned mansplaining. It felt, in a way, like the end of history.”
Hellerstedt was a victory for abortion rights, but as we all know, it was ephemeral. The election of Donald Trump was a catastrophe for women’s rights, as well as for Muslims, people of color, immigrants, and millions of potential voters. But it would have been an even worse disaster, Lithwick argues, were it not for the women lawyers who boldly, cleverly, tirelessly used the law to push for progress, or at least to maintain the status quo. Sally Yates, the acting attorney general in the days after Trump’s inauguration, was able to thwart the original version of the Muslim ban, which was broader than the one finally upheld by the Supreme Court. Robbie Kaplan, a “powerhouse commercial litigator” with Paul, Weiss, Rifkind, Wharton & Garrison, was able to organize a legal fire brigade that ultimately, thanks to skillful deployment of the Klan Act of 1871, brought to justice the organizers of the violent white supremacist Unite the Right 2017 rally in Charlottesville, Virginia. The wildly charismatic Stacey Abrams developed a whole new way of mobilizing unregistered Black voters in Georgia; like some other contemporary social movements, it was led by Black women. Abrams is probably more responsible than any other person for swinging the Senate to the Democrats, thanks to the 2020 election victories of Raphael Warnock and Jon Ossoff.
Lithwick has chosen her subjects well, so that they function as both profiles of different personalities and a kind of walk down memory lane of the Trump Administration’s extremism and sheer weirdness. Thus the profile of the American Civil Liberties Union’s Brigitte Amiri, a razor-sharp and indefatigable litigator, guides us through the awful story of Jane Doe, a 17-year-old unaccompanied immigrant who fled parental abuse in Central America and was placed in a government shelter. Unfortunately, the person in charge of the shelter system was a Trump appointee, Scott Lloyd, a fanatical Christian anti-choicer, who was determined to prevent nine-weeks pregnant Jane from getting the abortion she wanted and to which she was legally entitled. Eventually Amiri and her cohorts prevailed—despite the best efforts of Brett Kavanaugh, one of three appellate court judges hearing the case, who thought Jane should find a sponsor who would remove her from the shelter, a remedy that had already been tried without success, and tellingly referred to “abortion-on-demand”—which should have told Susan Collins all she needed to know about how he would decide abortion cases as a Supreme Court justice. Amiri won the case, but Jane got her abortion only because women lawyers and activists organized a mad dash from the shelter to the only clinic that could see her in time. And the victory was partially Pyrrhic: “Ultimately, Amiri and Jane won the abortion battle, but with his dissent, Kavanaugh positioned himself to win the war.”
The chapter on Amiri is particularly gripping, due to its tightly focused race-against-the-clock plot complete with outrageous villain (Scott Lloyd kept menstrual charts of the girls in his thrall and persisted in doing so for months after he was told to stop). But Lithwick really comes into her own when she takes on the downfall of Alex Kozinski, the powerful chief judge on the Ninth Circuit Court of Appeals, whose office served as a feeder for Supreme Court clerkships and, in the case of his former clerk and good buddy Kavanaugh, the High Court itself. (Funny how Kavanaugh keeps popping up, isn’t it?) For decades, Kozinski had made life a misery for the women who worked for him, sexually harassing them and in general being an insufferable bully. With his son, he ran a publicly accessible website that featured pornographic and misogynistic humor—for example, a picture of naked women on all fours painted to look like cows; he also maintained an email list that sent out crude dirty jokes to cronies who included former clerks, journalists, and lawyers. As so often happens, all this was an open secret—the Los Angeles Times revealed the website’s existence back in 2008, and women had been warning each other about Kozinski for years—but was tolerated as “Alex being Alex,” the impunity granted to so many powerful, and even not so powerful, men. Lithwick herself was the object of his creepy attentions, and she blames herself for not speaking up at the time. It took the #MeToo movement to break the silence: In 2017, the stories of six female former clerks and lower-level staffers were published in The Washington Post, and ten days later Kozinski took retirement. But in this case as in so many others, what looks like a victory turns out to be something less. Kozinski’s retirement meant the Second Circuit Judicial Council discontinued its investigation, so there are no factual record and no findings about whether the allegations were true. In 2018, the complaint was dismissed. Also unaddressed is the larger question of whether a judge can be fair to people he likens to farm animals.
I learned a lot from Lady Justice, although as a nonlawyer I sometimes found the complex legal play-by-play a bit of a challenge. I admire the book’s ambitions, too. Lithwick is searching for a different, more collaborative, more feminist model of heroism than Clarence Darrow or Atticus Finch—a model that pulls back the curtain to show the social movements, the local leaders, and the other less heralded lawyers who helped make victory possible. As Lithwick writes, “[C]hange doesn’t result exclusively from the biographies of a Guy in a Hat Who Did a Thing.” Sally Yates didn’t defeat the first version of the Muslim ban all by herself. There was a raft of colleagues involved, and “the airport revolution,” too: the thousands of people who sped to the airports to support the incoming travelers whose rights to remain in the United States had been cancelled midflight. “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,” Lithwick writes. If only it had actually been the end.
We hear a lot these days about “girlbosses,” women who are condemned by left and right for being laser-focused on personal success, whatever the cost to others. It’s good to have Lithwick’s profiles of very successful women lawyers who are using their talents for good and who seem like decent people too. She’s interested both in what drives them—“something extraordinary happens when female anger and lawyering meet”—and in the ways they are different from one another: Some are pearl-wearing institutionalists who revere the law, while others fell into the legal profession as a way to serve social movements and sometimes wonder if they made the right decision. At times she seems a bit overenthusiastic: Are women really “intuitively naturals at organizing”? (Don’t look at the mess on my desk!) And I did note the way she breezed by the downfall of Robbie Kaplan, who co-founded the anti-harassment group Time’s Up and had to resign when her involvement in plans to smear one of Governor Andrew Cuomo’s accusers came to light. (One might also mention the unedifying career trajectory of Susan Estrich, who came to fame in 1987 with a terrific book, Real Rape, eventually became a Fox commentator, served as legal counsel to Roger Ailes, and appears in this book as—wait for it—Kozinski’s lawyer.)
It is as if Lithwick started out to write an optimistic, peppy book about the power of law to make lasting change for women and the role of women lawyers in achieving that—note the lighthearted title—only to find herself describing a much darker world, the one in which Donald Trump placed three arch-reactionaries on the Supreme Court and appointed 231 other federal judges, most of them young, male, and white. By the end, when Lithwick compares the treatment of Christine Blasey Ford with that of Anita Hill almost 30 years earlier, she sees mostly superficial progress, and although she notes that far more people believed Ford than Hill, Kavanaugh is sitting up there with Clarence Thomas, and the Court is now so reactionary he’s actually the swing vote.
Can the master’s tools dismantle the master’s house? Can feminists use the law to overturn the entrenched male bias of the law itself? Can they do so at a time when anti-feminism and outright misogyny flourish outside the courtroom, and in which the very levers of the law are increasingly in the hands of ultra-conservatives? Lithwick wants to say yes, let’s celebrate law as the best tool women have, but the story she tells provides plenty of evidence for skepticism. All on its own, the Dobbs decision overturning Roe will set women back for decades, ensuring that whatever women’s movement exists will be preoccupied with mitigating its enormous damage. At the same time, Supreme Court decisions like Citizens United and the gutting of the Voting Rights Act have placed democracy itself under threat, with more decisions in the same vein almost certain to come.
Lithwick passionately believes in the law as the only way to preserve the gains of social movements. She is right to label as naïve claims that demonstrations and marches and “people power” are enough. For one thing, there is a right-wing, anti-feminist, racist social movement as well as a feminist, progressive, anti-racist one. Right now, it’s not at all clear which is more powerful. Nor is it clear that there’s a simple relationship between the popular will and the law, even over time. We need the law to codify victories and to gum up the works for those who would undo them, like Scott Lloyd or Donald Trump. But who the judges are can matter a lot more than what the people want. Dobbs is proof of that.
“We have a long way to go,” Lithwick writes in conclusion, “the road will be bumpy, and the destination still feels less than clear. But women plus law equals magic; we prove that every day.” I wish I felt her confidence. Magic or no magic, I suspect we’re going to be hearing an awful lot of “constitutionally sanctioned mansplaining” for many years to come.