Screaming in Secret: Dahlia Lithwick on the Women Who Work Within the Legal System
“For all the flaws of the legal system, of the court system, and even of the #MeToo movement, it helped us find our way to one another.”
In October 2019, a year after the Brett Kavanaugh hearings, I wrote an article explaining why I would no longer cover the Supreme Court from inside the building. It was a brutal and public breakup. I explained that “my job as a Supreme Court reporter used to be to explain and translate the institution to people locked out of its daily proceedings” and that this project had been “swathed in black robes and velvet curtains, in polite questions, and case names and at least the appearance that this was all cool science, as opposed to blood sport.”
I noted that, a year later, polling had shifted in Kavanaugh’s favor, the other justices had welcomed him, and he was being feted in Washington. Indeed, because his vote mattered so much now, I wrote, “the game is forgiveness and forgetting, in service of long-term tactical appeasement.”
Two years later, Kavanaugh is the median vote at the court, the swing vote poised between two camps of four. Chief Justice John Roberts is now considered a liberal. Every brief is written to appeal to Kavanaugh; oral arguments are pitched to his preferences. He is the most powerful jurist on the court and it’s in everyone’s interest to pretend that Christine Blasey Ford never happened, that he is a champion of women’s equality, and that whatever that was in 2018 is well and truly behind us. As I wrote at the time, “That is the problem with power: It incentivizes forgiveness and forgetting… The problem with power is that there is no speaking truth to it when it holds all the cards.”
I loved my job beyond words. I believed in the courts beyond all things. But as I also confessed one year after the confirmation hearing,
It is not my job to decide if Brett Kavanaugh is guilty. It’s impossible for me to do so with incomplete information, and with no process for testing competing facts. But it’s certainly not my job to exonerate him because it’s good for his career, or for mine, or for the future of an independent judiciary. Picking up an oar to help America get over its sins without allowing for truth, apology, or reconciliation has not generally been good for the pursuit of justice.
I was at pains to praise my colleagues in the press corps, who remain the most talented journalists I know. But I no longer felt I could cover the court without also giving cover to a system that erased women. As I concluded in that piece, “There isn’t a lot of power in my failing to show up to do my job, but there is a teaspoon of power in refusing to normalize that which was simply wrong, and which continues to be wrong.”
For me, as I would later put it in an anthology about the Kavanaugh hearings, every one of us who sat in the room as Dr. Ford testified and found her credible and pretended that the confirmation process has worked had failed her. “Indelible in the hippocampus,” I wrote, “is that we sat there listening, and practicing reasoned ‘both sides’ journalism, and going on television, and all of us believed her. And it didn’t matter.”
This issue—of how long you stay inside a system that no longer serves justice and perhaps produces the simulacrum of justice—was an animating theme for me during the Trump years. I was constantly frustrated by the tension between those who walked away from collapsing institutions and those who remained to try to mitigate the damage. For myself, I felt that the country had betrayed Dr. Ford and her testimony, and there was a connection between the paternalism that led us to pity her, and yet step over her, and the paternalism of a legal system that would increasingly treat all women the same way.
In an interview years later, I asked Anita Hill whether and when it was appropriate to give up on the legal system, to walk away and claim that it was a force for more harm than good. So many of the women in this book shrugged and told me that the law is an imperfect solution at best, but Anita Hill recoiled when I suggested as much: “Without law it’s chaos, right? Because we will lose. We will lose with chaos. We will always lose.”
Perhaps more than anyone else she articulated the special that exists by necessity between vulnerable communities and the legal system. “Chaos,” she told me, “allows for behavior you could not anticipate. With institutions, if you understand an institution, you know how things work. They may not work perfectly for you, but you know how they work. Chaos, you don’t know how it works, and it’s survival of the fittest. And people can really act on their worst instincts. That may be true, to some extent, in institutions. But there is something that you can navigate.” Women have a special relationship with the law, because the next best alternative is violence.
Women have a special relationship with the justice system, Hill believes, because it is something we can navigate. But for the law, she told me, January 6, 2021, the day on which rioters stormed the US Capitol seeking to halt the certification of the 2020 presidential election, “could have been passed off as just like any other day in the White House or in the Capitol.” So we rely upon the law, she explained, because without it we have far less. And perhaps because we are so vulnerable to its failures, we tend to be especially vigilant, maybe even hypervigilant, when it feels as if it were sliding away.
Hill spoke for so many women lawyers I have interviewed when she told me about giving a talk, “probably in the ’90s,” about the court system and civil rights and how the Supreme Court was procedurally making access to class-action suits and punitive damages less and less accessible. “And this young white man,” she said, “on a college campus stepped up and he said, ‘Aren’t you just being a little paranoid? You act as though the sky is falling.’ I thought about it. I said, ‘Well, here’s the list. You can tell me when the sky is falling.’” She said she thought about that for a couple of days until she realized, as she told me, “it wasn’t just that the sky wasn’t falling for him. It was because we don’t live under the same sky.” For Hill, that was when she came to understand that she wasn’t paranoid; she simply resided in another world. “And you don’t have to know these things. But my very survival relies on me knowing these things.”
When SB 8 went into effect in Texas, an awful lot of people told me that my coverage sounded “paranoid” and “hysterical” and overheated and slightly insane. And I realized that much like the 6–3 conservative supermajority that now controls the court, they simply don’t live under the same sky. Hill’s formulation—that we don’t all live under the same sky—is an elegant encapsulation of what the Trump era, the COVID pandemic, and the #MeToo movement unpeeled for millions of women who believed that the American system of justice was forever chugging along on its own steam to a more perfect, just union: that despite claims of fundamental and foundational equality and access to justice, the sky was cloudless and blue for many Americans from 2016 onward, and for many others it wasn’t just bucketing down endless suffering and misery, but they were also being told, over and over again, that they weren’t actually getting wet.
So many of the women I interviewed for this book mentioned moments in recent years in which, despite their credentials, their impressive law degrees and achievements, their invitations to speak in crowded ballrooms with lush flower arrangements and table linens, they found themselves surrounded by progressive allies telling them to calm down, take a beat, or see the big picture. It often came from a place of seemingly genuine concern. The impulse was simply to warn them that their overreaction was somehow intemperate, or premature, or counterproductive to progressive objectives.
The problem was that it was almost unerringly directed toward women by men, who found themselves living under a different sky. For Hill, it looked and sounded something like this: “I was at an event and it was a big thing, and all the people, at least that I knew, were liberals.” She says the year was 2018 or 2019. She told the crowd, “‘I used to feel we are going to be okay, as long as we have the court… but we’re losing the court.’ And afterward there was another speaker, a historian. And he said, ‘Oh, we’ve had times this bad before… We’ll get through this.’ And the organizer came up to me and said, ‘Well, I hope you’re feeling better after listening to that speech.’ And I said that the speaker was a southerner and he has learned to serve his cold water warm.” The mirror image of telling a woman you believe her is telling her she is being hysterical. Being told you are believed without consequences being levied is neither justice nor power. And that is the real problem when women’s pain is substituted for actual justice. Pain seems to have a sell-by date. Justice does not.
Almost every woman in this book has described screaming in secret, melting down in the privacy of elevators and bathrooms, being told to calm down because the sky isn’t really falling. I think one reason we all turned to law as a stabilizing force is that it was, as Hill put it, navigable, and it presents as neutral and rational even when you are screaming on the inside. And especially for women who are taught to suppress emotion, grief, pain, and trauma to appear more credible, the double insult of being told you are hysterical as you evince perfect control is beyond imagining. So where do women who feel scorching, lethal rage put all that scorching, lethal rage?That is the real problem when women’s pain is substituted for actual justice. Pain seems to have a sell-by date. Justice does not.
Citing the work of Rebecca Traister and Brittney Cooper, who have written about women and anger, Anita Hill told me that “the best way to express it is how we’ve learned to talk about issues, especially as lawyers. That’s what we do. We know this can be effective. We have enough history with that to say it can effectively change things by making really strong arguments.” But she added, “I think we all have rage in us, and I think we all express it differently.”
When I asked her where she had stuffed her rage during her perfectly controlled testimony in 1991, she replied that when she thought back on that testimony, “as contained as it appeared to be, it was an outrageous thing to do. And it was outrageous as a woman. It was outrageous as a Black woman. It was outrageous. And I think we are all in some ways exercising our rage at different times in different ways. But I think we all feel it. And I also think that sometimes our very presence is outrageous. And the fact that we even say anything is a sign of resistance.” This was Olivia Warren’s testimony as well: “screaming into the face of deafening indifference, if only because the sound of my voice reminds me that I have not yet succumbed to it.”
That was the motivation for my own refusal to return to the Supreme Court; a male editor I knew once referred to it as my “little boycott.” A reminder that I had not succumbed to it. For Anita Hill, and for so many of the women lawyers who have grave doubts about the justice system and the current Supreme Court, the real work to achieve enduring justice for women requires a recalibration of both the machinery of justice itself and a culture that can accept the outrageousness of women’s voices.
And maybe, above all, what drew so many women to the law was the possibility of being outrageous together. For all the flaws of the legal system, of the court system, and even of the #MeToo movement, it helped us find our way to one another, and on the very worst days that was enough. When women marched against Donald Trump in 2017, or protested against Brett Kavanaugh’s confirmation and then family separation in 2018, or organized to get out the vote in 2020, what they were doing was fundamentally justice work and fundamentally outrageous. And that is of course why it is always met with the blowback, the rape threats, the personal hate and intimidation. That is why the chant is always “Lock her up.”
For Anita Hill, the question is, “Can we push at the moment in which we have the eyes of the public on us? Can we push far enough that we can withstand the backlash?” So why do we do it? Why did she do it and why did Dr. Ford do it? Why do we continue to demand that the next woman do it and the women who follow? Why does the woman who is now believed by the great majority of Americans to have told the truth in 1991 still maintain that it was worthwhile, even as the man she accused of sexually harassing her sits in a life-tenured position at the US Supreme Court, deciding cases that shape the lives of every woman in America? Asked for the two thousandth time to explain why it was all worth it, Anita Hill told me this: “What would I be doing if I didn’t? If I were holding my tongue and keeping silent?”
She then quoted Leon Higginbotham, a prominent federal circuit judge who had championed Hill at the time of the confirmation fight. “I think at one point, I might have been complaining, ‘Why did I have to tell these people in these rooms what’s wrong?’ And he said, ‘Just think about where we would be if nobody was doing it. And think about how you would feel if you walked away and you didn’t even try.’ So here we go.”
Excerpted from Lady Justice: Women, the Law, and the Battle to Save America by Dahlia Lithwick. Copyright © 2022. Available from Penguin Press, an imprint of Penguin Publishing Group, a division of Penguin Random House, LLC.