Dahlia Lithwick's Lady Justice: Women, the Law, and the Battle to Save America was published in 2022 by Penguin Press.
Showing and Telling in Lady Justice
Steady through the Tempest
We Won’t Go Back: Lawyering as Radical Resistance
It Takes Women to Move the Law Forward
Short Takes: Provocations on Public Feminism, an open-access feature of Signs: Journal of Women in Culture and Society, offers brief comments from prominent feminists about a book that has shaped popular conversations about feminist issues. Short Takes is part of the Feminist Public Intellectuals Project.
Showing and Telling in Lady Justice
Like many readers of this journal, I’m a fan of Dahlia Lithwick. Her knowledge, insight, and invigorating style have made her a peerless guide to the Court and the Constitution. And Lady Justice, her group portrait of tenacious women lawyers fighting the incursions of the Trump presidency, promised a needed antidote to the existential dread of this political time. So I was surprised to find myself struggling with this book, looking for something I couldn’t quite find.
One feature that puzzled me was the book’s premise that there is something inevitable and provident in the pairing of women and law, in Lithwick’s terms: “women plus law equals magic.” This equation offered more confidence than I thought warranted, and less guidance than I had hoped for. Some feminist lawyers, as Lithwick claims, have viewed law as “the most conventional way with which to effect radical change.” But that paradoxical gamble has not always paid off. The turn to law has often curtailed the claims that we have asserted, leaving behind the most vulnerable. This is true both of the explicit defeats (the denial of a right to abortion funding) and of the partial victories (sexual harassment decisions that grant relief without fully grasping justification, entrenching doctrine that protects employers as often as women).The implication that a besieged nation can seek refuge in the law seems incomplete, even anachronistic, in 2022.Click To Tweet
More importantly, the implication that a besieged nation can seek refuge in the law seems incomplete, even anachronistic, in 2022. “The law” to which Lithwick’s lawyers turned is undergoing deep transitions, most of them ominous for political outsiders. “The law” as doctrine – in the areas of reproductive rights, minority vote dilution, gun control, separation of church and state – has accelerated its retreat from the protection of the historically oppressed or politically marginal. And “the law” as the operation of principle, insulated from the surrounding political chaos, is also under siege, as the Court has abandoned established precedent and eschewed even the appearance of nonpartisanship. How women and other advocates for political outsiders, should operate in this changed environment is the urgent question. Will we find new ways of articulating and supporting the values once encompassed by “the law”? Will lawyers redirect their focus from the federal courts, toward state and local institutions? Will organizing experience prove to be at least as valuable a qualification as legal training? And will the dazzling, improvisational insight displayed by many of Lithwick’s protagonists prove less essential than the gritty work of building and holding coalitions? These were the questions I sought, unsuccessfully, to answer as I moved through Lithwick’s book.
But it also occurred to me, as I read, that I might be mining the book for the wrong kind of guidance. No book focused on resistance during the Trump years can provide a roadmap to the post-Dobbs political landscape -- however urgently we may want or need one. More centrally, the sustained instruction for which I searched may not be Lithwick’s goal in this volume. “Women plus law equals magic” is less an argument than an exhortation, framed through exhilarating examples. A key virtue Lithwick finds in these women lawyers is their refusal to be numbed or deterred at a time when “so many of us have fallen asleep,” exhausted by incessant partisanship and institutional upheaval. And her vivid portraits – individual and legal though they may be – encompass a variety of strategies, with and alongside the law.
We meet not only unyielding institutional defenders like Sally Yates or incisive, irrepressible litigators like Robbie Kaplan. Lithwick also introduces examples like Becca Heller or Vanita Gupta, whose genius lies less in litigating than in organizing lawyers toward new goals. Or Stacey Abrams, who mobilized thousands of people to counter racialized voter suppression by exercising the franchise – a task she undertook with a broad coalition and that did not require a law degree to perform. Despite the shared identity of her protagonists, Lithwick’s emphasis as she fleshes out these portraits seems more on “law” than on “women.” We learn only by fleeting inference – the influence of a grandmother, or an ongoing struggle to be heard -- how gender shaped the perspectives we see, although the position of the outsider, often traced to intersecting attributes such as race, sexuality, or migration history, plays a role in many. Yet without didacticism or even sustained argument, these portraits highlight the variety of paths to resistance, and the range of strategic resources at the disposal of women and others, their pluralism suggesting change already in progress.
At this precarious moment, many of us may crave more prescriptive guidance. Yet the value of Lady Justice lies less in what it tells than what it shows: a set of galvanizing examples from which lawyers and organizers can fashion strategies for the rugged road ahead.
Kathryn Abrams is Herma Hill Kay Distinguished Professor of Law at UC-Berkeley Law School. Her work on feminist legal theory, social movements, and the relation(s) between law and the emotions has been published in Yale Law Journal, Columbia Law Review, California Law Review, Law and Philosophy, Law and Social Inquiry, Nomos, and WSQ, among others. Her book, Open Hand, Closed Fist: Practices of Undocumented Organizing in a Hostile State, was published by University of California Press this year.
Steady through the Tempest
When Dobbs v. Jackson Women’s Health came down this past June, I was teaching a summer seminar on Sexuality, Gender, and the Law. I figured I would need to set aside 10 to 15 minutes in the next class to allow the students to vent and relocate their sense of purpose. I was off by about 80 minutes. I have aged in the job: there was no way we were getting back to our regular course of business with the wound so fresh. It was about the loss of the abortion right, yes, but for students who entered law school to train themselves to fight for justice, it was also, What am I doing here?
And its subparts: How can I spend my career in a system that could do this? Was Audre Lorde right that the master’s tools can never dismantle the master’s house? Should I quit law school and devote myself to organizing, social work, art, or whatever else my non-law friends are doing?While a loss like Dobbs is crushing, it is never the final score. To my students: Get back to your highlighting. The struggle did not end.Click To Tweet
A moment such as Dobbs (or the election of Trump, or Bush v. Gore, or the Senate approvals of Justices Thomas and Kavanaugh, or the acquittals of police guilty of homicide) can catapult law students from the diligence of highlighting in their casebooks into a crisis. You can’t do much to help; they have to go through this.
Lady Justice, by the extraordinary Dahlia Lithwick, is a beautiful and frank elaboration of this painful but necessary journey. It carries the reader back and forth with the waves, from the impersonal “rule of law” to law’s brutal power, from suspended disbelief in procedures and institutions to the undeniable failures of each. Becoming a social-justice lawyer is a process—not just an intellectual one, but a psychological one akin to getting your sea legs. If you cannot find a way to stand, the endless swings will send you tumbling.
The heroines in Lady Justice are heroines precisely because they held steady—or at least were able to return to position—through the most tempestuous of times. They are not just smart, dedicated lawyers; they are also women who have managed, through careers of astonishing achievement, to keep a beady eye on law’s capacities as well as its hazards. They see what those who have given up on law cannot: that law contains—in the dual sense of holds and restricts—possibilities for social change. It provides language and norms that can benefit the marginalized, even as it constrains our options and erects obstacles. A lawyer cannot afford to be the kind of radical that stands outside and shouts for revolution; if she is a radical it is because she is scanning law’s horizon for critical resources to make the unimaginable possible.
Vanita Gupta describes hope as “a discipline” and despair as “the enemy of justice.” She explains to Lithwick that law “has always been a source of oppression, and yet civil rights advocates have relied on the rule of law … to expand civil rights protections to vulnerable communities.” And when Lithwick asked Anita Hill about giving up on law, Hill reacted with shock: “Without law it’s chaos, right? .... We will lose with chaos. We will always lose.”
Neither Lithwick nor her interlocutors lose track of law as one among several terrains of social change, as something not to be relied on as the solution without also organizing, developing coalitions, and remaining mindful that the infrastructure built in the process of losing is reason enough to fight. None of them, however, gives up on the crucial role that law has to play. The reality that Lithwick and her heroines see so clearly is that law is a provenance of oppression and of justice. Relegating it to one sphere or the other is a fatal category error. Moreover, while a loss like Dobbs is crushing, it is never the final score. To my students: Get back to your highlighting. The struggle did not end.
Libby Adler is Professor of Law and Women’s, Gender, and Sexuality Studies at Northeastern University. She is the author of Gay Priori: A Queer Critical Legal Studies Approach to Law Reform (Duke 2018).
We Won’t Go Back: Lawyering as Radical Resistance
Although many of us who have long battled against the ever-increasing onslaught of abortion restrictions knew deep in our bones, even before the leaked opinion, that the overturn of Roe was likely, we nonetheless reacted with a sense of utter shock and dislocation when the Court handed down its decision in Dobbs v. Jackson Women’s Health Organization. It was like the death of a loved one after a long illness—you know it’s coming, but that doesn’t lessen the shock or grief, and in this case, also the irrepressible rage. Capturing this duality, Dahlia Lithwick writes, “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.”
Bookended by her discussion of the Supreme Court’s decisions in Whole Women’s Health v. Hellerstadt and Dobbs, Lithwick’s book chronicles this seemingly inevitable but nonetheless dislocating result. She shares her heady optimism about the former, articulating that it “asks courts and lawyers to puncture centuries of accumulated lies and stereotypes about fragile, confused women,” and her outrage at Dobbs, which imagines women’s bodies as “dangerous, unwholesome places,” particularly if “Native American, young, poor, or Black.” While I share Lithwick’s rage over the transformation of “the womb into a crime scene,” I am less rhapsodic about Whole Women’s Health, which, while an important victory for abortion access, I read more as a highwater of the Court’s careful reliance on evidence-based studies to invalidate an onerous abortion restrictions, rather than as offering a sweeping “glimpse of what gender parity or near gender parity might have meant for future women in powerful legal institutions.” However, this does not diminish my appreciation of the heavy lifting Lady Justice does to connect the dots between them.Writing that the “extraordinary happens when female anger and lawyering meet,” Lithwick centers most of her chapters around these assemblages anchored in the featured lawyer’s “dogged refusal to accept and normalize terrible injustice.”' Click To Tweet
They are powerfully connected by the refrain of “lock her up,” which runs through the book. Brilliantly encapsulating the chilling misogyny of this chant—and the variation “send her back,” aimed at Representative Ilhan Omar—Lithwick writes that “as a prong of Make America Great Again,” the chant became “a promise to weaponize the machinery of law to silence, threaten, and isolate women.” And hence the critical importance of documenting the resistance waged by a “small army of female lawyers” willing to fight against keeping “the law itself from being used against them” and other targets of the Trump administration.
Writing that the “extraordinary happens when female anger and lawyering meet,” Lithwick centers most of her chapters around these assemblages anchored in the featured lawyer’s “dogged refusal to accept and normalize terrible injustice.” The genius of the book is Lithwick’s ability to interweave a lawyer’s own personal and professional story with that of the struggle she is engaged in. For example, in chapter 5, “Abortion at the Border—Brigitte Amiri: The Litigator,” we learn about Amiri’s early battles against gender inequality alongside the meticulously documented narrative of the legal battle Amiri waged against the Trump-era effort to strip young women in federal immigration custody of abortion access.
I must, however, confess to grumbling at times about Lithwick’s tendency to veer from the topic, such as by detailing the arc of Supreme Court abortion jurisprudence in chapter 5, including struggles over judicial nominations. At other times, however, the background information is highly instructive. For instance, in chapter 4 (“Charlotteville Nazis—Robbie Kaplan: The Big Firm Litigator”), Lithwick recounts how the 1977 Nazi march in Skokie resulted in a Supreme Court decision that stands “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.” This illuminates the critical importance of developing a legal strategy making clear that the 2017 March to Unite the Right was “about premediated and carefully planned racial violence, not free speech as in Skokie.” In short, there could have been more judicious editing.
A few other things also troubled me. Although the theme of “lock her up” is woven through the book, it was not thick enough to thematically tie together the chapters in a more wholistic way so as to reveal the interconnections between the struggles. Additionally, although Lithwick declares she is “loath to essentialize,” she nonetheless proclaims that there is a “special relationship between women and the law.” This extends to the assertion that “if women are… particularly adept at the practice of law, it almost goes without saying that they are also uniquely gifted at strategizing, organizing, and activating” without any effort to unpack these statements in order to avoid falling headlong into the essentialist trap. Lastly, while I understand the symbolic value of the moniker “Lady Justice,” I nonetheless found myself recoiling at the word “lady.” Although there has been some effort to reclaim the term, it nonetheless remains permeated with layers of meaning about female respectability and decorum, often in a deeply classed and racialized manner.
Shoshanna Ehrlich is a professor in the Women’s, Gender, and Sexuality Studies Department at UMass Boston. Her interdisciplinary scholarship and advocacy address the legal regulation of reproduction and sexuality, with a particular focus on the rights of teens. Her books include Abortion Regret: The New Attack on Women’s Reproductive Freedom (2019, coauthored with Alesha E. Doan); Regulating Desire: From the Virtuous Maiden to the Purity Princess (2014), and Who Decides? The Abortion Rights of Minors (2006). Most recently, she has been actively engaged in public scholarship aimed at highlighting the gendered and racialized impacts of the Supreme Court’s decision to overturn Roe v. Wade.
It Takes Women to Move the Law Forward
This is exactly the book that I didn’t know I needed right now. In Lady Justice, Dahlia Lithwick does a beautiful job of packaging and showcasing the critical contributions of women lawyers in the past few years. Even though it was traumatizing to relive and learn more details about several awful moments in our recent history, this book left me feeling hopeful and powerful at a time when I’m often left feeling powerless and vulnerable. Lithwick demonstrates that “women plus law equals magic.” As I wrapped up the book just eight days before the 2022 midterm elections, the timing proved perfect to receive that message.
Many of the women featured are longtime heroes of mine, as is Lithwick. I’ve long followed their careers and groundbreaking work. And yet I had not taken a step back to reflect upon their collective and historical impact. As Lithwick documents, the contributions of women, however impactful, are often overlooked. This book strives to correct that by bringing to light the historic contributions of several women who have challenged unjust laws and legal systems and, in doing so, it challenges its readers to keep the focus on the contributions of women going forward, especially within the legal system.As a Black woman lawyer who works in constitutional law and policy, I found promise and hope in reflecting on the impact of women in shaping our laws and legal systems. We see how important the courts are to this progress, which underscored for me the specific importance of female judges.Click To Tweet
Ultimately, the book serves as a reminder that progress, both generally and particularly in law, is slow and steady. On the rare occasion, victory can be swift, but generally progress in transforming oppressive and discriminatory laws and legal systems requires methodical persistence over many years. And women have been central to many prolonged, relentless legal efforts, with years of uphill slogs encapsulated in one eventual victory. The featured women all understand the long game and have spent their careers committed to it – to our collective benefit.
As a Black woman lawyer who works in constitutional law and policy, I found promise and hope in reflecting on the impact of women in shaping our laws and legal systems. We see how important the courts are to this progress, which underscored for me the specific importance of female judges. Today, women make up only 36.35 percent of the federal judiciary. President Biden is striving to change this with his judicial nominees; 75 percent of Biden’s confirmed judges have been women thus far. This is compared to Trump’s 24 percent at the end of his first two years. While President Biden’s recent progress is fantastic, we still have a long way to go to achieve a federal judiciary that reflects the diversity of the public it serves. Voters need to keep this in mind as they vote for US Senators, who are responsible for confirming federal judges.
When we turn to state courts, women make up 34 percent of the state judiciary. State courts have enormous impact on our fundamental rights, and yet judicial races receive a minute fraction of the attention that top-of-the-ticket races do. This must change. We need to shine a spotlight on judicial races, including the importance of increasing diversity on our state courts. This same spotlight needs to highlight the role that certain state offices have in appointing judges.
If Lithwick is correct - and I believe she is – that women plus law equals magic, then we need more women at all levels of the law, including on our courts, and we must highlight their great work as it happens. The impact of Justice Ketanji Brown Jackson’s historic confirmation – and her undeniable contributions to the Supreme Court’s oral arguments already – is proof that diversity matters on the bench and women are essential to moving this country forward.
Zinelle October (they/them) is Executive Vice President at the American Constitution Society (ACS). They serve as a thought partner to the President and focuses on the programmatic, network, and external aspects of the organization. Before joining ACS, Zinelle was a national urban fellow at the National Association of Latino Elected and Appointed Officials Educational Fund. Before their fellowship, Zinelle practiced law for six years at firms in Florida and New York. Zinelle currently serves as a National Advisory Committee member for the Culture of Health Leadership Institute for Racial Healing. In addition, they are a member of the Hispanic National Bar Association and National Bar Association. Zinelle received their JD from Florida State University, their MPA from Baruch College, and their BA in history from Columbia University.
I want to thank the team at Signs and Kathryn Abrams, Libby Adler, J. Shoshanna Ehrlich, and Zinelle October for their deep and complicated comments about Lady Justice, and for their insights on both the potential and the worrying limits of the law. As Kathryn Abrams notes in her comments, the entire book lives uneasily on the seam between this precise tension: “The turn to law,” she notes “has often curtailed the claims that we have asserted, leaving behind the most vulnerable.”
That the law has been the weapon of choice with which to oppress and do violence against women and vulnerable communities is the paradox that winds through not just through the pages of Lady Justice but also through the interviews with its various subjects: “I think a lot of the law is completely ridiculous,” says refugee activist Becca Heller, who contends that “to me, getting a law degree is just about using the master’s tools to destroy the master’s house.” Yet Anita Hill, toward the end of the book, comes down on the other side of that same fault line: “Without law it's chaos right?” she asks. “Because we will lose. We will lose with chaos.”
Libby Adler precisely captures how destabilizing the thin veil between law as engine of harm and equality is, with reference to her own law students, so traumatized after Dobbs: To believe in and to teach about the rule of law, with all its limitations, is an unending journey, “back and forth with the waves, from the impersonal ‘rule of law’ to law’s brutal power, from suspended disbelief in procedures and institutions to the undeniable failures of each.” She reminds us that law alone, without organizing and democracy building, isn’t enough. But also that “law is a provenance of oppression and of justice. Relegating it to one sphere or the other is a fatal category error.” We must work within both truths.
To be candid, this same tension very much buffeted me, as the author, through the dark years of family separation and Muslim bans and in the days after Dobbs came down in June 2022, requiring frantic revision. “Will the rule of law eventually hurt us more than it helps us?” may be the defining question of my journalistic career. What Abrams so beautifully names in her critique is the fact that real tension here is not between what the law has done (and still does) to harm women and what it can do to protect them, but about how we use it to force the latter. That makes Lady Justice less an instruction manual than a call to arms: as Abrams observes, “’Women plus law equals magic’ is less an argument than an exhortation, framed through exhilarating examples.”
Shoshanna Ehrlich deftly cautions against the kind of gendered “essentialist trap” that was necessary to construct the fundamental argument of the book. Indeed the fact that so very many women work so hard to harm and undermine the values of equality and dignity for all troubled me as I built the book and troubles me ever more, as I watch women lawyers fight to set aside election results and female judges attempting to shield a former president from the investigation into a potential crime. To the extent I have landed on a solution to the critique, it is this: The fear of “lock her up” that Ehrlich flags -- as both a piece of rhetoric and actual threat of violence post-Dobbs -- seems to have activated women in two fundamentally different ways: Some women have sprung into action to protect women, others have doubled down on protecting the patriarchy. Every civil rights struggle sees manifestations of the latter response. It has ever been thus.'Will the rule of law eventually hurt us more than it helps us?' may be the defining question of my journalistic career.Click To Tweet
Zinelle October’s urgent contribution to this conversation cannot be repeated often enough. Women can only use the law as an engine of transformational power when they are represented at the highest levels. That this is not yet the case is one of the mysteries Hill tackles in her own chapter, and the answer, as October notes, lies in paying attention: paying attention to the work women have already done in the law, often with “years of uphill slogs encapsulated in one eventual victory,” and paying more focused attention to the nominations, elections, confirmations, and retention of women in the courts and the law to ensure that the still-elusive goals of parity and diversity can be achieved.
It was my fondest hope in writing Lady Justice that it could crack open new conversations about what law can and cannot do for democracy in the hands of brilliant, skilled, and powerful women. This terrific set of reflections is irrefutable and moving proof that such conversations are both necessary in this moment and that they can spark hope, which Vanita Gupta in her chapter calls a “discipline,” about how best to move forward.
Dahlia Lithwick is a senior editor at Slate and in that capacity has been writing their "Supreme Court Dispatches" and "Jurisprudence" columns since 1999. Her work has appeared in the New York Times, Harper’s, The New Yorker, The Washington Post, The New Republic, and Commentary, among other places. She is host of Amicus, Slate’s award-winning biweekly podcast about the law and the Supreme Court.
Lithwick has held visiting faculty positions at the University of Georgia Law School, the University of Virginia School of Law, and the Hebrew University Law School in Jerusalem. She has testified before Congress about access to justice in the era of the Roberts Court and how #MeToo impacts federal judicial law clerks. She has appeared on CNN, ABC, The Colbert Report and The Daily Show and is a frequent guest on The Rachel Maddow Show.
Lithwick earned her BA in English from Yale University and her JD degree from Stanford University. She is the coauthor of Me Versus Everybody (with Brandt Goldstein) and of I Will Sing Life (with Larry Berger).