MSNBC’s Andrea Mitchell welcomed Slate senior legal correspondent Dahlia Lithwick onto her Friday show to promote her new book is Lady Justice: Women, the Law and the Battle to Save America and to declare that “many women” have questions about the legitimacy of the Supreme Court and mourn “the last truly great day in the Supreme Court.”
Mitchell kicked things off, “The new term at the Supreme Court is almost upon us and with the Court facing unprecedented scrutiny, many women in particular are questioning the legitimacy of the conservative majority's decisions.”
Women upset with the Court get no ideological label, but the Court does. It was a theme that would be present throughout the segment. After recalling the days when women couldn’t wear pants when addressing the Court, Mitchell turned to more contemporary issues, “you begin… with this extraordinary day, this oral argument in the Hellerstedt case, Texas solicitor general arguing for Texas on new restrictions placed on abortion, 2016 I think it was. Tell me about what you called the last truly great day in the Supreme Court.”
Waxing nostalgic, Lithwick recalled, "And for me, it just felt like this triumphal ‘we’re close, we’re not there, but we’re close.’ And then Justice Stephen Breyer who I always think of as the fourth radical feminist in that opinion that is so solicitous of women’s health, their interests, their families, their economic interests, he says ‘no more lying. If you’re going to close clinics, you can’t do it with the pretext that you’re putting their health first.’"
After Lithwick lamented “then it all, within a few months, falls away,” Mitchell turned more recent cases, “And then we have Texas leading the way in these extraordinary restrictions. The bounty system, all the rest in succeeding years.”
Describing SB 8 as “that vigilante bill,” Lithwick claimed the Court allowing it remain intact meant Roe’s demise was inevitable. She also claimed that the Court was “going to do it without even regard for who was being harmed. And so, yeah, it happened so fast. And you're right, Texas has been at the vanguard of making sure that it happened really, really without any real doctrinal thinking or work.”
After fawning over Breyer’s Hellerstedt opinion by citing a bunch of policy rationales, Lithwick has no standing to complain about the Court’s alleged lack of “real doctrinal thinking or work.”
Moving on from abortion, Mitchell asked, “So looking forward to the new Court term, what are your concerns, what are your hopes as you look at the cases coming before the Court?”
Again, Lithwick portrayed the Court as a bunch of conservative ideologues and herself as the straight-shooting law commentator. From affirmative action to cake bakers to election cases, “there’s almost nothing that isn't on the docket and, as you said, the Court enters this with a public that is deeply, deeply worried and concerned that the court is just a political beast. So there is a lot going on and I think that it is going to be another hard term for the Court in terms of the public's respect and regard for the institution.”
By “for the institution,” Mitchell and Lithwick really mean for liberals.
This segment was sponsored by Liberty Mutual.
Here is a transcript for the September 23 show:
MSNBC Andrea Mitchell Reports
9/23/2022
12:40 PM ET
ANDREA MITCHELL: As women register in unprecedented numbers to vote in the midterms, clearly energized by the Supreme Court's decision to overturn Roe v. Wade. The new term at the Supreme Court is almost upon us and with the Court facing unprecedented scrutiny, many women in particular are questioning the legitimacy of the conservative majority's decisions. Joining us now is Dahlia Lithwick, the senior legal correspondent at Slate, and her new book is Lady Justice: Women, the Law and the Battle to Save America and what a book it is with the pink color, so we're all in pink today. Actually not planned, but we’ll just. It's planned.
DAHLIA LITHWICK: I’m going to say it was planned.
MITCHELL: We’ll say it was planned.
LITHWICK: Thank you.
MITCHELL: Well, congratulations on the book.
LITHWICK: Thank you.
MITCHELL: So, your book, it’s is an extraordinary history of women, women lawyers, women judges, women Supreme Court justices, and the way women have been affected both empowered and disempowered by decisions of the Court going all the way back to 1873 was it when the Supreme Court ruled that women could not be lawyers?
LITHWICK: Right, because we're delicate.
MITCHELL: Yeah, and I remember an era when my friends were all becoming lawyers and were not allowed to wear pants.
LITHWICK: Pants! Yeah
MITCHELL: There was a dress code if you were addressing the Court. So you begin the Court [sic] with this extraordinary day, this oral argument in the Hellerstedt case, Texas solicitor general arguing for Texas on new restrictions placed on abortion, 2016 I think it was. Tell me about what you called the last truly great day in the Supreme Court.
LITHWICK: It was a day that felt like we were so close, that after centuries of trying to achieve not even parity, something close to parity, the idea that finally you had three women on the bench and you had women oral advocates and nobody was going to silence these women. There is an amazing moment in the audio where Ruth Bader Ginsburg more or less gently turns to Chief Justice John Roberts and says “you’re going to give her a little more time now.” And John Roberts goes “okay, a little more time” and it’s just this moment of women, their power, their identity, their stories are being told at the Court.
And for me, it just felt like this triumphal “we’re close, we’re not there, but we’re close”. And then Justice Stephen Breyer who I always think of as the fourth radical feminist in that opinion that is so solicitous of women’s health, their interests, their families, their economic interests, he says “no more lying. If you’re going to close clinics, you can’t do it with the pretext that you’re putting their health first."
It is an amazing day. And then it all, within a few months, falls away.
MITCHELL: And then we have Texas leading the way in these extraordinary restrictions. The bounty system, all the rest in succeeding years.
LITHWICK: Yeah, one year ago—one year ago-- that SB 8, that vigilante bill was blessed by the Supreme Court in the shadow docket without real reasoning. One year ago if you were reading the tea leaves it was clear that the Court was going to nullify Roe and they were going to do it without even regard for who was being harmed. And so, yeah, it happened so fast. And you're right, Texas has been at the vanguard of making sure that it happened really, really without any real doctrinal thinking or work.
MITCHELL: So looking forward to the new Court term, what are your concerns, what are your hopes as you look at the cases coming before the Court?
LITHWICK: I mean, the Court is as you said in your intro in trouble. It has the most shockingly low approval rating since the history of polling and last year it had the lowest approval rating since the history of polling until this year. It’s going into a term where affirmative action is on the docket, the follow-on to the cake baker case of the someone who doesn't want to participate in gay weddings.
It has huge election cases coming before it, including a case that I think doesn't get enough attention about essentially handing all power to state legislatures to determine how elections go. So there’s almost nothing that isn't on the docket and, as you said, the Court enters this with a public that is deeply, deeply worried and concerned that the court is just a political beast. So there is a lot going on and I think that it is going to be another hard term for the Court in terms of the public's respect and regard for the institution.
