Saturday, October 1, 2022

Dahlia Lithwick’s FAU Keynote Address Lively, Bold and Illuminating

Yesterday afternoon, as part of its Constitution Day special events, Florida Atlantic University welcomed esteemed legal commentator Dahlia Lithwick to keynote its annual Symposium on the First Amendment. In her opening remarks, Lithwick noted that the event was her first public keynote in two and a half years. “I’m told it’s like riding a bicycle, but I might fall off,” she cautioned.

No such caveats were necessary. Speaking mostly extemporaneously, and communicating with her arms as well as her voice, Lithwick enraptured what appeared to be a mostly progressive audience with granular procedural insights about the Supreme Court, an illuminating history of the Court’s role in shaping (or not) public policy and law, and the dire consequences of its present record-low approval rating, among other oratorical avenues.

In a prescient move from FAU, Lithwick was booked for this appearance months before the Supreme Court’s divisive June ruling overturning the constitutional right to abortion. The Court and its relationship to American women is a key component of Lithwick’s recent focus. A senior editor and podcast host at Slate who appears regularly on MSNBC, Lithwick is also the author of Lady Justice: Women, the Law, and the Battle to Save America, which releases next week. Her FAU talk was subtitled “Women, the Courts and the Shifting Notions of Liberty.”

It has been a time of extremes for the nation’s highest court, Lithwick noted, in terms of its influence (historically outsized) and its popular confidence (historically low). The Court’s most recent term was its “most momentous in history,” with impactful rulings not just on reproductive rights but on COVID mediation, gun rights, the environment and religious liberty. Hand in hand with these controversial rulings is a Court approval rating in the high 20s or low 30s, which Lithwick noted is the lowest since she began covering the institution in 1999.

Yet despite the seemingly immense power the Supreme Court currently yields, Lithwick added that it represents, by design, the weakest of the three governmental branches. It has “neither army nor budget” and “no real power” outside of “public respect and acceptance.” As an example, she cited the case of Andrew Jackson, whose notorious Indian Removal Act came in direct opposition to a Supreme Court ruling that preserved Native American sovereignty. The president refused to recognize the Court’s opinion; as a result, 4,000 people died on the Trail of Tears.

By the time of the Court’s contentious ruling on Bush v. Gore, which stopped the recount of 2000 election and paved the way for George W. Bush’s presidency, the Court had accumulated so much public legitimacy that few imagined defying it. Yet today, Lithwick suggested, the Court has continually undermined its decades of accrued respect. As contributing factors, she noted the “unprecedented number of partisan speeches” in which its Justices partake, the Court’s lack of public transparency, and its codependent but spiteful relationship to the media—“They hate us. They think we’re a bunch of gossips.” We’re at a point, Lithwick said, with much sorrow for an institution she grew up respecting, that the Court required the erection of protective fencing for months following the Dobbs decision.

Lithwick, though furiously opposed to the Court’s rightward shift and its implications, is a nuanced thinker, not a firebrand. The Court would like to present itself, she said, as above politics, or in her vivid analogy, as “nine brains in vats, interchangeable …” Much of the public, of course, sees nine “political actors doing political work.” For Lithwick, it’s possible to “believe both at the same time. It’s ideological except when it isn’t.”

Lithwick ended her keynote with a dollop of positivity in what appears to be a dark moment for women’s self-determination in the eyes of the highest court in the land. Women may be “invisible” in the Dobbs opinion, but the blowback from the majority of Americans who support abortion rights is not being ignored. Tidal shifts are noted, despite the Court’s insistence that it remains above the fray.

The Justices are people, and people adapt and evolve. Their opinions change, especially when informed by personal experiences and relationships. “I didn’t know what I didn’t know” is a pithy way of conveying how knowledge breeds compassion and ultimately progress. As one example, Lithwick said that because of his relationship to former flame Sandra Day O’Connor, William Rehnquist’s decisions in gender cases shifted 25-percent in favor of women’s equity. As Lithwick summarized: “Thinking like a woman is contagious, and men could catch it.”


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John Thomason
As the A&E editor of bocamag.com, I offer reviews, previews, interviews, news reports and musings on all things arty and entertainment-y in Palm Beach, Broward and Miami-Dade counties.

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