“I had this nightmare, but I didn’t know it was mine:” Dahlia Lithwick on Trump’s crisis of law

From the moment he first stepped into the White House, Donald Trump’s goal was to use the presidency’s enormous powers to wage war on all that’s good in the U.S., from a commitment to human rights to a belief in the importance of truth over lies. But perhaps nothing was battered so heavily as rule of law. Trump spent four years stacking the courts with corrupt cronies, testing the boundaries of presidential powers and committing crimes with the assurance that the Republican Party would rally to shield him from consequences. It all culminated in an attempted coup, for which he has still paid no legal consequences. As his battle with the Department of Justice over stolen classified documents shows, his all-too-successful efforts to end rule of law in the U.S. are ongoing. 

“As long as voting matters, as long as organizing matters, as long as some of these markers of the rule of law and democracy count, women are enormously powerful.”

Trump created a true crisis in the legal profession, which many lawyers are still struggling to deal with — when they can even admit how bad things have gotten. In her new book, “Lady Justice: Women, the Law, and the Battle to Save America,” Slate’s legal expert Dahlia Lithwick covers this crisis from the angle of how female lawyers, in particular, used often creative legal strategies to resist both Trump and the neo-fascist movement that’s risen up to support him. It’s a book that is at times troubling and optimistic but never loses sight of why rule of law is important to democracy, and why we need these women who are doing everything in their power to save it. This interview has been edited for clarity and length. 

In this book, you focus on the successes that a number of female lawyers have had in the past few years, using the law to resist Donald Trump and his MAGA movement. Obviously, there’s been some male lawyers who did the same, but you posit that women have shown exceptional courage and creativity in the past few years when it comes to the strategy. Why do you think that is? What is it about women?

I want to be super clear that I, in no way, wanted to suggest that men were not also holding up the sky. I could have certainly written a book about all the amazing lawyers that I have met generally. I just found some themes that I thought were really interesting commonalities for the women. Every one of the people that I profile had men on their teams who are exemplary.

You’ve written about this, too, but I just felt that there was a sense of urgency after 2016 that was almost felt in the bones for a lot of women. It was the urgency that led to the Women’s March happening. It was an almost spontaneous feeling that this couldn’t be borne. I had an immense number of women writing to me about the Emoluments Clause, arcane constitutional doctrines.

I think you and I are of this generation where we just thought the law was this cast-iron thing that protected us. We moved around in a suit of armor of equality and dignity. We had parity in school. We were closing the pay gap. We could vote and have credit cards in our own names.  Women quickly realized that the suit of armor was one of those kitchen sieves. It was full of holes and that it might in fact be repurposed to be used against women. It’s one of the reasons the book starts with the “lock her up, lock her up” crowds chanting about Hillary Clinton. It was just too close to the skin for a lot of women to do a lot of sitting around to see how this would play out.

For sure. Men can be terrible to you. Men can talk down to you, boyfriends can be abusive, your dad can make sexist jokes. But a lot of women felt well, we also have Roe v. Wade. Whatever people in the world may think, legally, you are equal. Having it taken away has just been so gut-wrenching for women.

And not just taken away. I think taken away was the first piece. The thing that we didn’t understand until Dobbs wasn’t just that it was going to be taken away. It’s that our miscarriages could be criminalized. If the state wants spy on you and determines that you’re taking drugs during pregnancy, therefore you can be incarcerated. It’s not just that we assumed that this thing was immutable and irrevocable, but the idea that it’s now being used to set us back for years. Even among women who don’t remember before Roe, don’t remember before Griswold. We know that’s what happened to our mothers and our grandmothers. I just think it’s familiar and familiar in the worst possible way. Familiar like, oh, I had this nightmare, but I didn’t know it was mine.

So much of your book highlights the success stories of people who successfully leveraged rule of law. I was particularly struck by the Charlottesville story where the people who organized this riot ended up having to pay the consequences in the civil lawsuit. Yet with Dobbs, with this Trump judge giving him a special master, with decisions like that, I think a lot of our faith that the rule of law has been deeply shaken. What’s it been like for you trying to square those two truths?

I’m glad you asked. You’re the first person who’s asked, and for me, it all this started when Republicans held open Merrick Garland’s Supreme Court seat. I was just like, “wait, but how can they do this?” It felt existential to me because this is the court that I covered with often criticism, but never a sense that the whole institution could be corrupted on a dime. 

The theme that you’re pulling on is a theme that comes out so often in the book, where you have different people essentially saying, “I’m in love with my captor. I’m in thrall to this legal system.” Several of them say “this is the only thing I know how to do.” There is this deep reckoning that a lot of them are going through, and that I too am going through. You’ve dedicated your life, you went to law school and you ordered your life around certain legal principles. Now the whole thing is a joke to people. 

If one single unelected judge in Florida decides that selling classified nuclear secrets is cool, then we’re all just stymied by that. But where I come back to: Law is all we have. It’s not like there’s a second-best system. The second best system, I often say, it’s the army. That’s just what Steve Bannon wants: A world of power and violence. I don’t want to get into a world where the number of guns I have is determinative of how much power I have, because I’m really screwed. The ambivalence you’re detecting and that you’re feeling is something that most of the women in this book have grappled with. If there were a plan B where we could affect massive world change through break dancing or being a mime, I would be for those things. But I don’t see another locus of massive organizing power and justice other than law. I certainly don’t find one that would be to the benefit of women. 

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What we’re up against is, to use Joe Biden’s term, “semi-fascism.” Or I would just say outright fascist movement that believes that their will to power matters more than Enlightenment values like rationality, evidence, debate and discourse. The rule of law is premised on this idea that you can debate and discuss, and eventually come to a conclusion. On one hand Trump is right that power is, well, power. There’s so much evidence against him, but he’s corrupted the judges. He gets whatever decision he wants. It doesn’t matter how irrational it is. On the other hand, we didn’t get human rights or science or modernity because rationality has no power in the world. 

I don’t have illusions that this can’t all get lost. I think it can. Empires rise and empires fall and this could end. But I think one of the reasons I wanted to write this book is that I just don’t think women know how powerful they can be in forestalling that. As long as voting matters, as long as organizing matters, as long as some of these markers of the rule of law and democracy count for stuff, women are enormously powerful.

That’s the story of Kansas. That’s the story of Michigan. That’s the story of Alaska. That’s the story of that New York special election. The thing that can make a difference in the margins is for women to realize how freaking powerful they are. This is why the book ends on gerrymandering and malapportionment and all of the system stuff. You can win a million lawsuits and lose democracy. 

I know there were certainly women among the January 6th rioters and I know that women judges like Aileen Cannon in Florida who are not for the rule of law. But I just have a deep sense, especially after Dobbs and the real attack on women’s bodies that women, again, have a real reliance interest in protecting the rule of law. So much of this comes down to the systems and structures of democracy that were originally designed to hurt us, but we can refashion to protect us. 

I think Dobbs really helped millions and millions of people, particularly women, who were very sanguine about their safety. I was at a dinner party before the Dobbs leak, the night before and all these people were telling me, Roe’s never going to fall. You knew, I knew. We knew. It made a lot of people look around and say, how can an unelected juristocracy wreck my life if most of the population doesn’t want this? Maybe just connecting those two things was useful.

You end the book with Stacy Abrams. It’s an interesting choice because a lot of her success has been from convincing people to connect these dots. How do you feel about that? Do you think that that’s become easier since she first ran for governor?

Oh, for sure. I remember writing about vote suppression going into her race with Brian Kemp. Nobody really understood the problem. Nobody understood the fix, nobody knew how it mattered. That wasn’t that long ago. I think that it took us a really long time to look around and say, oh, they can’t win if everyone votes. That’s why they have to disenfranchise all the felons. Got it. That’s why they’re purging the voter rolls in Ohio. It happened years ago and Stacey Abrams for sure was clarion clear that that was happening, but I’m not sure the zeitgeist was with her or understood.

I open the book with Sally Yates, who’s white, she’s at the apex of the Justice Department, third generation lawyer in her family. The most establishment, definitely a badass and somebody I wanted to write about. But very much the lone hero that I’m trying to undermine a little bit with this book. I end with Stacy Abrams and this huge army of women of color and the people who rise up with her and say, “oh hell no, we’re not losing the special election for the Georgia Senate.”

I want to shift from talking about solitary heroes of the law to huge communities of the law. Organizing is not a thing that anyone is going to make, necessarily, into a Netflix series, but it’s really, really important. This is a book ostensibly about women lawyers, but it’s also about all of us. The law is treated like it’s this thing high up in the sky, handed down from the Supreme Court in its marble temple. But in fact, it is the thing that we generate every day on the ground and force it through. I wanted to end up, as you said, in a place of slight optimism and power, because otherwise I’d be drunk in a bar.

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about the post-Dobbs abortion battle


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