But we did. And we did it because we felt this is what we were made for. We did it because we felt that the mere fact that we were doing it would convey an urgency. And we did it because we were going to bring to it all the signature features of LDF: meticulous research, excellent lawyering, collaboration with law firms and other leaders in the profession.
We were going to kick every tire to make sure that our claims were sound, and we were going to conduct ourselves in the way we always do—with respect for the system that we have pledged an oath to and with a sense of decorum as we do the work. And so we were able to step out and do these things.
I still remember the Saturday morning I woke up and I called our litigation director and said I think we have to sue the United States Postal Service. And we did. And we worked on getting ballots delivered. And now we have an ongoing injunction that still covers the United States Postal Service for the next eight years so that for elections, we can continue to make sure that absentee ballots get prioritized in the mail system.
Elaine Jones began LDF’s deep engagement around the issue of judicial appointments, and I have tried to borrow from each director-counsel and from Elaine. I borrowed the deep engagement in Washington, D.C., both with legislation and with the appointment of judicial nominees. And I know that the ABA plays obviously a powerful role in that as well, and we continue to play that role. And that wasn’t easy for us either. We litigate in all of these courts. We litigate in the United States Supreme Court.
It’s not easy to be on primetime talking about a nominee. But when you all don’t speak out; let me back up and say this first, and then come back around to the hard part of it. One of the things that was so remarkable about Thurgood Marshall is that he was a trial lawyer. And I’ve always kept that in my head. It matters to me. He genuinely believed in the rule of law and the power of law to address injustice and discrimination. And I am the same. I’m a true believer, still. I’m also a true believer in litigation. I taught civil procedure for 20 years because I love it. I loved civil procedure in law school.
That’s how weird I am. Because I believe that litigation has a power for the people that I represent. It allows them to speak. If you can get yourself to trial in a courtroom in which everyone has to stay still and listen to them.
So, when we talk about respect for the courts and respect for the legitimacy of the courts and judges and the system, it is that ability to be heard. These are harder things to explain to your clients and have them still believe in the justice system. So, when you hear conversations about the shadow docket, it’s not some arcane thing for Supreme Court litigators. It’s about a process increasingly used in ways that affect the rights of millions of ordinary people, prisoners at risk of COVID, voters. We know that this is true.
Women in Texas, that period until Dobbs was ultimately decided, was and should have been one of the most horrifying and frightening periods for our profession. When the Supreme Court allowed a state to go forward with a plan that would allow essentially bounty hunters to be created to interfere with what the Court had said was a fundamental right in 1973, Roe had not been overturned, and yet the Court allowed Texas to continue.
And if you believe it can’t happen here, think about all of the elements of voter suppression, the willingness now not only to just suppress votes but to overturn elections, intimidation of election officials that is happening unabated. We still don’t have legislation that would protect election workers from threats or police violence. Maybe it’s gone out of everyone’s head since millions of people took to the street after George Floyd was killed.
These are all the hallmarks of rising fascism and authoritarianism, and lying to ourselves will not make it go away. So, my charge is for you to step out. Do what Thurgood did. Go to Korea, tangle with General MacArthur if you have to. Do what he had the courage to do. It’s not easy. The personal threats are real.
We’ve all had to change our lives in ways you can’t imagine. I don’t talk about it publicly because it’s nothing to compare to the danger that Thurgood faced in his day. It’s just part of what we have to deal with. But just know that when we are all appropriately concerned, when we fear that judges may face violence, as Judge [Esther] Salas did several years ago in New Jersey, just know that those of us who do this work have also been living with the reality of threats and have had to accommodate our lives in order to speak.
And so I feel quite comfortable requiring you to do so as well. I’m grateful to you tonight for this award. I’m incredibly proud to be part of the team of civil rights lawyers who I think do the noblest work in this country as lawyers. I love being part of this profession, but it’s our profession. And if we don’t protect it, if we don’t use it for the purposes of justice and equality, if we don’t make our voices heard on Capitol Hill, in state bars, in our own communities, in the places where they’re debating issues like stare decisis, we will have disserved ourselves in this profession.
It’s no accident that the dissenting justices in Dobbs quoted from the final dissent of Thurgood Marshall in Payne v. Tennessee, in which Marshall lamented the Court’s decision to step away from an abandoned stare decisis in a case involving criminal law. And Marshall opened his dissent with the line “Power, not reason, is the currency of this new court’s decision making.”
And that is the line Justices Breyer and Kagan and Sotomayor quoted to describe the majority opinion in Dobbs. We’re in a crisis moment, and I hope that you all will feel inspired, encouraged, and convicted to behave as though we are in a crisis moment and that you will use your voice in this important organization to ensure that we uphold the oaths that every one of us took when we became lawyers.
Democracies unravel when the rule of law unravels. There is no place that is a democracy that doesn’t uphold the rule of law. So, we’re an essential part of the future of this country.