Monday, June 27, 2022

Anita Hill on the future of the Supreme Court

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Anita Hill made history in 1991 when she launched a national conversation about workplace sexual harassment during the live televised nomination hearings of Supreme Court nominee Clarence Thomas. Hill, a lawyer, scholar, professor and black woman, discussed in excruciating detail the harassment she suffered, allegedly at the hands of Thomas, when he chaired the Equal Employment Opportunity Commission and she advised him.

In a few hours of poignant testimony, Hill sat before the Senate Judiciary Committee, a group of 14 white men chaired by Joe Biden, then the Democratic senator from Delaware, who put her to the test about her experiences with Thomas. Their way of asking questions was notoriously debilitating, portraying Hill as an aggressor rather than a victim. The Senate eventually confirmed Thomas’ nomination.

Thirty years later, Hill—who has repeatedly said witnessing was an ethical responsibility—still leads conversations about how gender-based violence permeates American society, and she still has a lot to say about the Supreme Court. She hosts a new podcast, Getting right with Anita Hilland last fall she released her latest book, Believing: Our 30-Year Journey to End Gender Violencein which she describes the movement to trust and support survivors.

With the recent confirmation of Ketanji Brown Jackson, who will be the first black woman to serve on the Supreme Court, I’ve reached out to Hill for the latest episode of cafemadrid conversations, to discuss Jackson’s confirmation, Hill’s work as an activist and the future of the Supreme Court. At the heart of Hill’s scholarship is her quest to strengthen equality, whether she examines how women judges influence the justice system or the ethical obligations of American institutions such as the Supreme Court to improve the lives of all Americans.

Although Hill and I chatted before the leaked Supreme Court draft opinion was released publicly, we discussed the prospect of the Court soon overruling its turning point. Roe v. Wade decision, effectively making abortion inaccessible in much of the country. (I reached out to Hill for her thoughts on the leak and whether she still feels the same about the court, but cafemadrid received no response by publishing time.)

Below is an excerpt of our conversation, edited for length and clarity. There’s a lot more in the full podcast, so subscribe cafemadrid conversations On Apple PodcastsGoogle PodcastsSpotifystitcheror wherever you listen to podcasts.

Fabiola Cinemas

I have a pretty big question for you. Do you still believe in the Supreme Court as an institution?

Anita Hill

Oh, as an institution I believe in the Supreme Court. But I also only know from history that the Supreme Court is only as good as the people in it. As a lawyer who has studied the law and the evolution of the law, it was the Supreme Court that gave us Dred Scott v. Sandford† That basically meant that black people had no rights that white people had to respect. It gave us Plessy v. Ferguson

And so I know that the Supreme Court is not blameless, but I also know that it is my responsibility, and, in my view, the responsibility of everyone who has taken the bar and swore an oath to the Constitution. Our responsibility is to make sure that the Supreme Court is what it should be, that it has the integrity it should have, and that the people in it have that integrity. And so I can restore my confidence in the Court.

Fabiola Cinemas

Do you think it will take a long time for your faith to be complete? Because we’re moving to a place where the Court is likely to fall Roe v. Wade the end of June. We know that Justices [Sonia] soto mayor, [Elena] Kagan and now Brown Jackson become part of a liberal minority that writes dissent. How can we have faith when everything looks so bleak?

Anita Hill

Well, I think the only way we can really have faith is to look at this long term because, like I said, I’ve read history. And I know there’s one Plessy v. Fergusonbut i also know that there is one Brown v Board of Education and that in many ways Brown overthrown Plessy† I am not saying that the Court is infallible or that I agree with every decision made, but if the Court has real integrity, it can change and change the law. And it’s done because people are developing strategies to bring the law closer to the Constitution.

Fabiola Cinemas

So then I wonder how the general public should feel. You mentioned how unpopular the Court is now, and I have some numbers from… Gallup’s latest poll, as of September 2021. Only 40 percent of Americans approve of the work the Supreme Court does and 53 percent disapprove of it. That is a new low for the Court.

For people unfamiliar with Plessy, and are unfamiliar with these other terrible decisions the Supreme Court has made, but eventually overturned by other rulings – how are they supposed to find hope in the Supreme Court? And I will also add: With the new information that has come to light – that the spouse of a Supreme Court judge appears to be actively campaigning to nullify the results of the 2020 presidential election – how can an ordinary person be excited about the Supreme Court with this kind of information?

Anita Hill

I’m not sure they can be happy with where the Court stands now. I think there are probably people who are very happy with it, but I know there are others who are not. And I know that people are working on the strategies that will eventually lead to better decisions, just like in the 1890s, when there was so much to overcome in terms of what was wrong with the Supreme Court decisions.

It is difficult to have such a long view of the Court. But I think we should be there now. We have what I would call a super-majority of people in the Court who are likely to continue to undermine things like voting rights. They will surely continue to undermine and languish Roe v. Wade, if not completely reverse. That’s where we are now, but I know from the past that doesn’t mean we have to be there all the time. And I know there are too many people fighting that to keep it forever. I just hope that too much damage is not done to our rights and protections and to the Constitution before we can get back on track.

Let me also say that there are other ways in which we can reverse some decisions. We can do it legislatively, at the federal level. So elections are important. We can do that at the state and local levels to protect people when federal law lets us down. We can consider whether we are complying with the laws of our country outside the Supreme Court. The Supreme Court is not the only body responsible for enforcing the Constitution.

Fabiola Cinemas

I know that some legislators have introduced a number of bills to introduce a code of conduct for the Supreme Court, such as creating very specific guidelines for determining when a for example, the judiciary should withdraw from a particular case. Of course, these accounts have stalled. So I wonder if the Supreme Court should just do this [on their own] because they have the power to create such a thing for themselves. Are you in favor of such a thing?

Anita Hill

I’m sure it should happen. I don’t think we can create this bubble for the Supreme Court from the reality of what conflict means. Conflicts pile up and then undermine the integrity of our justice system. We are a country that respects the rule of law. And when our justice system is undermined—when open conflict is allowed to be presented without any recourse or no response—then what we’ve done is really taken away from our entire government. We have now reached that level where people are shaking their heads and not knowing how to trust the system because it is now openly failing them.

I think we need to get a handle on that. There are plenty of people who have expressed their opinion about what Justice [John] Roberts should do as chief justice. But ultimately it’s something that has to be done in a way where there’s real support from different government agencies. So I think the Senate should be involved. I think the House should be involved, as well as the judiciary.

I will say this, and I may sound naive, but I think the American public really wants there to be a level playing field. They don’t want a court that at first glance appears to be biased with no recourse. They want courts to represent integrity, fairness and justice.

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