SideBar 2023 Highlights: Defending Democracy, Challenging the Supreme Court, and Pursuing a Pluralistic Society Free from Bias with Jackie Gardina and Mitch Winick

Episode Notes

Transcript

Speaker 1:

SideBar is brought to you by Monterey College of Law, San Luis Obispo College of Law, Kern County College of Law, empire College of Law, located in Santa Rosa and the colleges of Law with campuses in Santa Barbara and Ventura.

David Eakin:

Welcome to SideBar discussions with local, state and national experts about protecting our most critical individual and civil rights Co-hosts Law Deans, Jackie Gardina and Mitch Winick.

Mitch Winick:

Today I’m very excited that we’re going to do a recap episode that captures many of the highlights and special moments of our guests throughout the season.

Jackie Gardina:

Mitch. One of the things that has been really amazing about the last year of SideBar, or I should say the first year of SideBar, is how many amazing people said yes to invitations to join us on this show. We had 25 incredible guests on our show this first season, and it was a privilege to have conversations with each of them and to read their books. All of them are doing really important work within our legal system. People like Elie Mystal, Nina Totenberg, Dahlia Lithwick, Julie Suk, David Pepper, all contributed their time to SideBar so that we could bring their messages to a broader audience. I am really looking forward to season two so that we can have more of those conversations.

Mitch Winick:

I am as well, Jackie Jackie. I think Elie Mystal captured the essence of what we were trying to do with this podcast this year. He’s not only hilariously funny, but thoughtful, intelligent follows the court for years. Let’s hear what he had to say about the program.

Elie Mystal:

Accessibility is actually a great place for us to start our conversation because that’s one of the reasons why I agreed to do your show. It is important to make law accessible to people. That is how it was always intended. The law is not supposed to be something that comes down from on high is opaque and regular people can’t understand it. Now, I understand as lawyers look, we have very expensive educations and we like to show that expensive education off with our Latin and our clever terms of phrases and the intricacies of our knowledge base. And I’m not saying the law is simple, I’m not saying that it’s uncomplicated, it’s a complicated thing, but it is important that people in the legal profession, certainly people like me who talk and write about the law for a living, it’s important that we bring the law to a point where normal people, regular people, literate people can understand it because it’s only through, from my view, it’s only through understanding how our laws work that people become enraged enough To fix it.

Jackie Gardina:

I think Elie described perfectly what I love about teaching the law, which is to really spark curiosity, to intrigue people, to want them to learn more and hopefully to recognize what needs to happen to move us towards that more perfect union that is promised in the preamble of the Constitution

Mitch Winick:

And we have a great opportunity through SideBar this season to dig into many of these constitutional law issues.

Jackie Gardina:

One of the big shadows over everything related to the Supreme Court when we started the podcast was its decision to overturn Roe v Wade and essentially strip women of a constitutional right that they had had for over 50 years. It was a stunning move. We didn’t have a particular episode that was focused on that decision, but it wove itself into many of our episodes simply because of its just enormous impact on women’s lives and constitutional rights writ large.

Mitch Winick:

Let’s listen to a couple of comments from Dahlia.

Dahlia Lithwick:

Here’s the silver lining because I have to claw a silver lining out of Dobbs, but I think there is a silver lining, which is there’s that slightly fatuous line that Justice Alito offers in Dobbs where he’s like, women are not without power. If you don’t like it, go vote. And I sort of feel like the midterms was us making good on that. I think it matters that your experience post-ops was very much mine and the one that I was experiencing even being on TV all week, which is everybody saying, how could this have possibly happened? How can a position that is such a fringe position that is also not just fringe but requires overturning doctrine without any solicitude for reliance interests and the other ways we think about precedent, how can that have just prevailed? And the answer to that is an illegal question. That’s a democracy question.

And so if the silver lining of Dobbs is we got to a place of profound, and I would say almost violent minority rule on women’s rights because of gerrymandered red states, because of vote suppression, because of a mala portion Senate that does not reflect the way people vote or think because of the electoral college. If every one of those things is suddenly, huh, that’s in play. That’s how it happened that a court that absolutely disregarded precedent for the first time to turn, not to confirm more rights, but to take away rights and the explanations for that are structural as you said. And so in fact, if you have a pure democracy to the extent that a ballot initiative reflects that you are going to have these outcomes. And so if what this means is that folks are looking around and saying, okay, well minority rule feels kind of bad when it’s taking away your rights,

Mitch Winick:

Jackie, those are very prescient words from Dahlia Lithwick, and yet as we sit here today, six, seven months from that episode, 21 states have actually gone the other direction and limited abortion rights further.

Jackie Gardina:

I think she made a really important point that others have made as well, connecting the Dobbs decision to democracy and how our democracy is or isn’t working. David Pepper made a similar comparison in the last episode of the first season.

David Pepper:

What we saw over the last year, and I think this is a really important bigger picture point, is a battle over reproductive freedom became a battle over democracy itself because reproductive freedom was polling in the high fifties and rather than accepting that reality, this is all by the way consistent with what Dobbs told America, which is, hey, these decisions should be made by the people of the states. The whole thrust was it shouldn’t be the federal government, it shouldn’t be the constitution, send it back to the people to the side. But in states like Ohio where it was very clear the people would support reproductive freedom, like in most states, the government here did all it could to keep that majority will from being reflected. So over the last year they started off trying to rig the rules midstream raise the threshold to change the Ohio constitution to 60% because they knew that 60% was probably high enough to stop this thing. 50% was too low and it would pass. They turned out to be right. We defeated that.

Jackie Gardina:

It’s an important thing to understand. While 21 states have made it more challenging, if not impossible for women to get an abortion in 2024, there are even more ballot initiatives on the agenda to see if the people of a state won’t make a different decision than the legislature of the state just like Ohio did in November of 2023. Thinking about gerrymandering and voter suppression and a Supreme Court decision together really helps us link a Dobbs decision with democratic processes writ large. It wasn’t just Dalia Lithic or David Pepper that connected Dobbs and democracy. Julie Suk also connected Dobbs and Democracy cautioning us about using the Supreme Court as a pathway to seek constitutional change. Pointing out that the Supreme Court is an anti-democratic institution, and so we need to be more thoughtful about how it is we go about seeking change.

Julie Suk:

I think the way in which we’ve sought constitutional change in this country is to expect lawyers to convince the Supreme Court, and I think we’re seeing now that it’s actually a dead end from the beginning. The Supreme Court was not well-designed today the idea of giving life tenure to appointed justices where only the president and the Senate, the House has no say in who gets to be on the Supreme Court. And so if you think about the Supreme Court as being anti-democratic because of the appointment process and because of the life tenure feature which is really out of sync with the way that modern democracies work, it’s a little bit crazy for us to think that our ticket to constitutional change in the direction of inclusion would come from the Supreme Court, and I really do wish that we would stop thinking that way and we would try to make Congress functional again in trying to achieve our aims with regard to our rights. But it’s also understandable that people don’t go to Congress because its design has also made it extremely difficult to pass legislation that most of the country supports.

Jackie Gardina:

Julie makes a really good point about the dangers with going to the Supreme Court right now, but unfortunately we do have some cases before the Supreme Court that could have some rather large implications for not just access to abortion in states that have prohibited it, but access to abortion more broadly and the FDA’s power to continue to allow Opry or the so-called abortion pill to be used by women no matter where they’re located. We are still watching the Supreme Court and watching what they’re doing as it relates to abortion and reproductive freedom, but we also need to be paying close attention to what’s happening at the state and at the federal level.

Mitch Winick:

Jackie, I think it’s important to recognize one of the outcomes not at the US Supreme Court level, but if we’re expecting state courts to protect women’s rights, you only have to look at the outrageous outcome in Texas in which we have judges stepping in to make medical determination of a woman’s healthcare. It’s hard to believe that it would so quickly come to that point and yet it has.

Jackie Gardina:

One of the things Julie brings up is districts that are essentially safe so that there’s no competition around ideas or policies and a particular member of a party is certain to win, allows for more extreme agendas to be implemented across states and we’re seeing that happen and the Supreme Court had a role in having that happen as well. Steve Vladeck really showed that in the episode around the shadow docket. The shadow docket and the use of it seems to have actually tipped the balance of in Congress

Steve Vladeck:

Last February, a five four majority with no explanation saved for a two Justice concurrence, which doesn’t speak for the court, allowed Alabama to use congressional maps that lower courts said violated the Voting Rights Act. You can draw a straight line from the Alabama ruling to similar rulings in Louisiana and Georgia and with just one slight additional leap, you can get to rulings in Ohio and South Carolina right there, you’ve got five congressional seats at a minimum that in the 2022 cycle were safe Republican seats. Had they been drawn in accordance with the lower court rulings, you can’t guarantee a Democrat would’ve been elected, but certainly the odds were much higher that they at least be lean democratic seats given the way they would’ve had to been drawn, and the Republicans currently have a five seat majority in the house. I mean you switch five members from Republican to Democrat and you’ve got a tied house right now.

It would be one thing if the court’s intervention last February was simply previewing the merit, we’re going to uphold Alabama’s maps next year, so why not let ’em use them Now I have problems with that even if that were the narrative, but for the court to then turn around as it did in June and say actually the district courts were right, Alabama’s maps are unlawful is such a powerful illustration of the impact these rulings have where Alabama and four other states were able to use unlawful maps that perhaps affected the balance of power in Congress because of unsigned unexplained orders from the Supreme Court. And I don’t know how you crystallized more directly why these orders are important and why it’s important that the court treat these orders as important.

Mitch Winick:

Jackie Steven Vladeck was not the only guest who talked about the Supreme Court gerrymandering and particularly the Alabama Maps. Nina Totenberg raised that as one of the key issues.

Jackie Gardina:

What was scary about the Nina Totenberg interview was it had happened after the Supreme Court had issued its decision, but Alabama had essentially defied that decision and we can hear her reaction to that.

Nina Totenberg:

As I understand it, the Attorney general in Alabama and others deliberately did this in order to bring the case back to the Supreme Court so they could challenge section two of the Voting Rights Act. They thought the court didn’t take their argument seriously about that and that if they go back, they might get a decision striking down section two of the Voting Rights Act. It only takes four votes to hear a case and there might be four votes on the court, but I don’t think that the black voters have much of a choice in this. I think they have to hold the court’s feet to the fire and if they lose, they lose.

Jackie Gardina:

That’s going to be two house elections 22 and 24 that arguably will now be under maps that violate the voting rights.

Nina Totenberg:

Well, I think that they would probably go back to the court very quickly. I think that they would not wait on this. The court that heard this before will either say that you’re right or you’re wrong and you have defied what the Supreme Court said and then the Alabama Attorney General can go up to the Supreme Court and the court may not want to take the case. It doesn’t have to take the case if they lose in the Court of Appeals, but if the court of appeals sides with Alabama and says this is enough, then the court either has to take the case or basically portray itself as a bit of a patsy on race and

Mitch Winick:

Jackie. That case has continued to be reviewed by the Supreme Court and Alabama has still not issued new maps that meet the criteria set by the court under the Voting Rights Act

Jackie Gardina:

And Alabama isn’t alone. North Carolina, Louisiana, Georgia, there’s multiple states, Ohio as David Pepper talked about in our most recent episode, gerrymandering is an enormous issue because it’s essentially not a democracy in that district any longer. Gerrymandering is by design and in 2010, Carl Rove wrote an op-ed in the Wall Street Journal that essentially laid the plan out. They recognized that if they captured the state legislatures that they could then control drawing the congressional maps and essentially control Congress, and it’s pretty much worked out that way. It forced us to really focus on state legislatures in so many of our episodes and we had an opportunity to speak to multiple guests, David Noll, Joel Rogers, Buffy Wicks, David Pepper, all of whom are focused on what’s happening at the state and local level. David Noll really opened our eyes to what’s happening and why we should pay attention to states.

David Noll:

The scientists and other observers have noted the extent to which state legislatures are becoming a really important launching off point or point of intervention for people who are participating in national political battles, and that’s absolutely what is happening here. The laws for the most part are not being written at the state level by lawmakers who are responding to local conditions. It’s rather that you have national advocacy organizations that are drafting model legislation and they look around and they say, where’s a state legislature where we can get this bill through where is sometimes a city council or a school board where we can get one of these measures through? And you’re really losing that connection between local government and local concerns and states and local governments are becoming points of least resistance for national activist networks to put these policies in place and to empower these hyper motivated partisans.

Mitch Winick:

That was a great lead into what we further learned from Joel Rogers when we realized that many of these model laws that David Noll was referencing at the state level are not being written by legislators at all. They’re being written by advocacy groups who do exactly what he just suggested and send out as many as a thousand or 2000 versions of model laws to state legislatures, to ask them to essentially rubber stamp them and with the gerrymandering that you talked about, Jackie, they can pinpoint which of the states already have the votes aligned to implement these type of issues. Things such as censorship, abortion rights, race relations, police brutality. These are all laws that are being passed at the state level but not being written by state legislatures.

Joel Rogers:

These state legislatures were people basically who were not really that into what they were doing. They never got the respect that the constitutional offices of the state level got, and they were very understaffed and looking for some way to do their jobs more, not necessarily a higher degree of self-respect, but a higher degree of efficacy so that if you could get a bunch of business people around who wanted to get some law passed and promise to write the law for them and then back them if they were willing to carry the law, you could get a big audience of people and that’s essentially what Alec is,

Jackie Gardina:

What Joel Rogers is referring to. Alec is the American Legislative Exchange Council, which if you go back and listen to that episode, you’re going to learn about its founding in the 1970s as a way to influence what’s happening at the state level economically, socially, culturally, and in many ways it has been incredibly successful. Mitch, I think it was during that episode where you really identified some startling statistics. Alec was responsible for over 2000 bills implemented in 21 different states. It’s alarming when you think that one organization is able to influence that many states and the legislation that’s being passed there.

Mitch Winick:

However, it wasn’t all doom and gloom because as much as Joel Rogers warned us that there were state laws being written by national organizations who had specific agendas, we had a wonderful episode with Buffy Wicks, assembly member from California.

Buffy Wicks:

I don’t have to tell your listeners who know this better than I do. Law is always evolving and I we want to evolve it in a way that is inclusive and seeks justice and fairness and all of those doctrines that we believe in, and it takes active participation by our citizenry, by our elected officials and others to ensure that that’s exactly what happens. So we all have a responsibility towards that end. First and foremost, I’d recommend getting to know your state legislator, your assembly member and your senator, and we have a lot of really thoughtful people in this space. We have people that specialize in different things. We are always looking for good ideas because we want to solve problems and we want to do it with our constituents.

Jackie Gardina:

That is a theme that we heard over and over again, Mitch as well, which is for democracy to work. It really takes us as citizens to fully participate in that democracy. Which brings up another theme that came out during our episodes, which is the First Amendment because the First Amendment has embedded in it this idea of public participation in the public forum and the protections of speech is seen as essential to democracy itself, but we’ve seen an enormous effort to restrict speech and one of the places we’ve seen that restriction happen is in book bans and educational gag orders. We had Suzanne Nossell from Penn America join us. The

Suzanne Nossell:

Thing about the United States is that there’ve always been debates about how we talk about our history, about how much emphasis we put on social change, how fast social change should move, but that should be the subject of debate and give and take. It should not be the basis for legislation or heavy handed bans emanating from school boards, local governments at public institutions. That’s not the American way. We believe in the exchange of ideas that the best answer to ideas you may disagree with is to present other ideas. What concerns me so much is witnessing the ways in which we backed away from that very principle and that even though as you say overwhelmingly, Americans are against book bans nonetheless in certain communities, certain parts of the country, people have become seized with the idea that these stories and volumes are so dangerous that they warrant a resort to banon. Something that I think every American can recognize is something that goes against our core values. In the First Amendment,

Mitch Winick:

Jackie, it was much easier for me to understand the orientation of protecting the freedom of speech for books on the shelf and teachers in the classroom, but we also had the challenge of talking with Jeff Kosseff about what happens when we take these questions of free speech, who should control or should control or if we should control free speech on the internet.

Jackie Gardina:

Jeff’s book is specifically focused on lies, disinformation, Mitch. Both you and I struggled with the idea that that could be protected, but Jeff was really clear that he didn’t think the government should be the one that decides what is disinformation and what isn’t. Instead he had some other ideas about how we can better protect ourselves.

Jeff Kosseff:

Another big part of it is better educating people. When I say education, it’s not telling people what is true and what is false. That’s never going to work and that actually is a bit too ministry of truthy for me. I think giving people tools to better question what they see on the internet, I don’t think we really do that very well. I have a fourth grader who’s in a good public school and they’ve never talked yet about media literacy, which is unfortunate because in other countries they do. In the book I talk about Finland, that Finland has a K through 12 and then into college program where it’s not telling people this is what’s true and what’s false, but this is how you look for primary sources and this is how you evaluate the veracity of a claim, and I think that’s really important because then it makes people less likely to believe crazy things they see on the internet

Jackie Gardina:

And Mitch, I think one of the things that was so frustrating for me about that answer, while it’s an important one, it’s a long-term solution and we’ve got an election coming up in 2024 in which disinformation is going to be a major issue and you were able to bring some guests on that I think spoke to what the potential threats were. Really. Well,

Mitch Winick:

Jackie, you’re exactly right. One of our greatest concerns is what type of information is going to be flooding the airwaves, and in this case, the airwaves aren’t just radio television, traditional news. We’re talking about social media and websites, deep fakes, false information, intentionally false information, information being presented as if it were true from foreign governments who have the sole intent of disrupting free and fair elections in the United States. Fortunately, we have a number of individuals who are working on trying to understand how we can control or monitor or at least notify people when information is original from the source or being created by sources such as artificial intelligence. Drew Liebert and Jonathan Meine joined us to discuss those issues.

Steve Vladeck:

I’ve spent the last decade working on expanding access to the electorate, expanding access to voter registration and voting and in a number of other ways, trying to build the healthiest, strongest democracy possible. None of that will ever happen if we can’t trust the information that we as voters and members of an informed electorate are receiving. It requires a healthy functioning public square. It requires a healthy functioning democratic discourse, and we are rapidly entering a new political era, and I think right now some people are realizing this, but most voters haven’t. We are entering a new political era in which disinformation is more powerful than anything we’ve ever seen. Generative ai, which has progressed by leaps and bounds in just the past year, as Mitch alluded to earlier, is going to make it such that non-state actors, conspiracy theorists, election deniers and just online trolls have unbelievably powerful tools with no barriers to access and no cost associated to create audio, video and images meant to deceive us. And we may be entering the first election cycle in which voters simply do not know what they can trust and what they can’t

Jackie Gardina:

Mitch. I’m imagining that this is going to be an issue that we’re going to have to talk about for years to come and certainly in this next season,

Mitch Winick:

Jackie one year ago almost to the week, we talked with Professor Charles Geyh an expert on judicial ethics, and he felt strongly that the Supreme Court needed to take steps to have a code of ethics, and it has been an amazing 12 months while that issue has been debated in Congress by the lower courts, by the public, and finally we saw action, but let’s hear what Charles J had to say 12 months ago on this issue.

Charles Geyh:

The reason I think it’s necessary is you begin with the proposition that these codes have been in place in one way, shape, or form since the 1920s. All 50 states have them. The lower federal courts have one. There are 25,000 judicial officers in the United States. All but nine are subject to a code of conduct, the nine that aren’t are on the highest court of the land. You highlighted Justice Clarence Thomas’s involvement in essentially presiding over a case in which his wife would seem to have a vested interest insofar as her correspondence was part of the subpoena at issue in the case, and so he probably should have disqualified himself and didn’t, but that’s not an isolated example. A few years ago, justice Ginsburg was interviewed by CNN and others in which he openly criticized then candidate Donald Trump, which was also in violation of the code of conduct Justice Scalia earlier on, was speaking at a fundraiser for the Federalist Society, likewise, a violation of the code of conduct for lower court judges.

So my point is simply that this is a problem that has afflicted multiple justices over recent years and while the chief justice has said, well, we don’t need a code because our justices consult the code applicable to lower court judges, the reality is they’re not consulting it close enough. They keep breaking it. I should add by the way that the leak of the Dobbs opinion if that was done by a justice would likewise violate the code of conduct. So you’ve got a variety of circumstances in which you got Supreme Court justices doing stuff that is unethical if you consult codes applicable to everybody else accepting,

Jackie Gardina:

And Charles Geyh wasn’t the only one that we talked to about the ethics issue. We raised it with Elie Mystal and we raised it with Nina Totenberg and you really held her feet to the fire about Chief Justice Roberts and whether or not his legacy was essentially going to be the ethics scandals that were plaguing the court and she said something interesting. What do you want him to do? If he can’t get all the justices to agree to an ethics code, then they don’t have to abide by an ethics code. Well, as we discovered, he must have gotten the votes, although we can question whether it has any meaning given that it’s completely unenforceable

Mitch Winick:

And Jackie, these issues are going to be right back in front of the court and we’re going to test whether this new code of conduct and particularly the section on conflicts of interest is going to take force for the court because just as Charles Day mentioned a year ago in the January 6th case that’s coming back in front of the court, there are question whether Justice Thomas’s wife creates a conflict of interest for him because of her active public involvement in the issues that are involved in that case.

Jackie Gardina:

What’s amazing Mitch is how far the Supreme Court has fallen when it comes to this ethics issue. When we had Judge McCune on and we discussed her book about Justice Douglas, we spent some time talking about the fact that Justice Douglas was in some serious hot water and impeachment charges had been brought against him by then Representative Ford for essentially taking $500 and for sitting on a case that involved a publication that he had published a piece of writing in that seems like nothing compared to what’s come out about the current justices

Mitch Winick:

Jackie. It was very powerful to have Dahlia lithic remind us that democracy is not served When we limit the voices we hear, and particularly when we’re limiting the voices of women lawyers and women judges,

Jackie Gardina:

She starts a book with Pauly Murray who is probably unknown to most of our listeners because she was to me when I first read that and then I was sparked to watch the Netflix documentary and what an amazing life she’s had. What she talks about in that book is really about unsung heroes and how important it is to celebrate not just those who are famous, but those who do the work day in and day out.

Dahlia Lithwick:

Ours is a system that is so entrenched in there are no schools other than Harvard and Yale. There are no justices other than Harvard and Yale, the people who go to Harvard and Yale, clerk for the people who went to Harvard and Yale, and then they go on to become justices. And I think that the messaging is absolutely, this is who is visible and this is who is not. And you’re asking me this question, which is exactly the correct question, which is every single human being with a JD is actually perfectly suited to have a clerkship. Every one of them is perfectly suited to do the work that the women in this book do. And we have a really ossified, deeply ossified legal system, not just in terms of who advances and who gets opportunities and who knows who, but also in terms of who gets celebrated and who gets modeled as doing the work, which is I think one of the reasons that as Mitch said at the beginning, I’m obsessed with these Ruth baby Ginsburg’s because they’re all around us.

We as lawyers sometimes get trapped in this idea that the person who gets famous is the one that matters. The person who gets credit is the one that matters. The person who advances in their career is the one that matters. And it seemed to me that democracy is not really well served by that vision of what attorneys can do that attorneys actually can just do justice every single day and maybe not get throw pillows and mugs like RBG and maybe more like Pauly Murray be almost all but forgotten by history, but still change the world. And then more urgently, it is clearly the way women have been doing work in this lane of justice because women weren’t getting credit, they weren’t getting to be senior partners, they weren’t getting until RBG came along, throw pillows and mugs. And so I think it serves us as lawyers to really think about those two themes when approaching the material in the book, which is this isn’t about fame and notoriety. This isn’t about who knows your name after you’re gone. This is about doing the work that lawyers can do to bring about justice and then more emphatically that this is how women have been organizing around gender justice and racial justice and justice for L-G-B-T-Q populations and minority populations forever because this is the only lane we had and that I want to lift up those stories. I think they’re really a credit to the practice of law

Jackie Gardina:

Mitch. It wasn’t just about women’s voices in the legal profession, in the Courtroom in the boardroom, but also Nicole Clark exposed us to how women entrepreneurs are similarly silenced or unheard with her description of how challenging it was to get venture capital funding for what is a successful project.

Nicole Clark:

There’s no question when I started the company, I knew that only less than 2% of capital goes to female founders. You go in trying to counter against that, but just getting the meetings in the first place can be incredibly hard as a female. There’s not enough success stories yet of us building massive businesses. And what VCs tend to do is just pattern recognition. They know that the last unicorn was built by someone who dropped out of Stanford was an 18-year-old white male, and so they then create and move forward with, that’s what I’m looking for, for who I believe will be able to build the next business. So you have to counter against that. The other thing that I’ve noticed and probably other female founders would say is the questions that we get asked are slightly differently. So questions posed to male founders often are around how big can this be? Right? And for women it’s often what are the risks involved, right? And so we’re set up just by the questioning sometimes to not be successful.

Jackie Gardina:

Nicole, what do you think made it possible for you to be one of the 2%?

Nicole Clark:

The truth is you have to go through a lot of nos and just keep pushing through. It’s interesting. As a founder, you can probably get 10 20 nos that won’t hurt, and then there’s one that just comes in that’s painful and you don’t always know why. But I’d say I was ultimately incredibly lucky. I did have a white male co-founder on the technology side, and I would say that no doubt probably helped a little bit in the overall assessment of us as an early business. Another thing I’d say, which is probably an unpopular opinion, is that there are a lot of women VCs, and I think I really early on hoped that it would be that group that would be most sympathetic empathetic. That wasn’t actually my experience. My experience was that the female VCs talked a lot about empowering women, but when it came down to it were probably some of the most risk averse and we weren’t able to get any early real capital from female VCs. And that was difficult because you hear a lot of talk, but you don’t actually see the actions backing it up.

Jackie Gardina:

Mitch, I have to admit, I was skeptical when I first started Orli Lo Bell’s book, the Equality Machine, which focuses on how AI can actually be used to create equality or equity in our society. But by the time I finished the book, she had won me over and she had won me over in part because of the many chapters that she had on how AI can be used to increase healthcare equity, especially for women and for marginalized women. One of the things that infuriated me in the book and that I didn’t know before I read it was that the FDA, the federal government had essentially excluded women of childbearing age from any clinical trials. So it makes complete sense that there’s no data on how women will respond to certain drugs or other kind of healthcare innovations, and it really wasn’t until recently, until the 1990s that they started to collect data on women. What Orly Lobel opened my eyes to was not just what’s possible with AI in the healthcare field, but why women have been excluded from it for so long.

Orly Lobel:

We need to recognize that the vast majority of people around the world of women around the world don’t have access to high skilled expert radiologist for a once a year mammogram screening that they can afford. But technology can actually be scaled in ways that radiologists, human radiologists cannot be scaled in that kind of ease. So I think we should be having that kind of conversation of the level of risks that we’re willing to and inaccuracies that we may be willing to accept versus the benefits of having more people have access to these technologies around the world, curing more, detecting early more diseases. Those are the right questions to be asking.

Mitch Winick:

Jackie, in addition to what you and orally pointed out about the sheer lack of healthcare and healthcare records and healthcare research on women’s healthcare globally as well as in the United States, we shouldn’t forget that orally also challenge us about who should regulate the use of AI and these types of digital research tools. She was adamant that the government is not the place to regulate software, intellectual property and artificial intelligence. She and I had a bit of a back and forth on that because I’m not convinced I trust the companies to do it when they have a for-profit motive and she was convinced there was no way the government could do it from a bureaucratic motive. So I think that’s a great reason for people to listen to this episode. Jackie, I have to believe when you listen to Julie Suk talk about equality, that if we were having greater success of that in the United States, we wouldn’t be looking at the outcome we saw recently in Texas where a male attorney general and a male court would decide at this day and age, what a women’s healthcare should be.

Jackie Gardina:

And I think one of the things that Julie’s book after misogyny really brought to the forefront and I think was so important for me to hear because I am such a fan of the American system that I sometimes forget its flaws, is that the Constitution of the United States is incredibly hard to change. When our Supreme Court embeds an idea in there, or in the case of Dobbs takes one away, it’s really hard to change the constitution to say the Supreme Court got it wrong, or the people want something different. That’s not the case in Europe or in parts of South America where the constitutions are more modern, changes can be made more easily and women have rallied to make those changes in the way that in the United States, we haven’t been able to, I mean, we’ve been sitting on the ERA for 50 years now. It was really powerful for her to point out that in many ways the amendment process to our constitution is once again one of those anti-democratic issues.

Julie Suk:

By the time you get to the end of the 20th century, some people understand that to mean that something’s wrong if you don’t have equal numbers of men and women represented in positions of power. So you should have rules that ensure that in some of these countries, constitutional courts, like in France, the Constitutional Council strikes it down and says, equality means you treat everyone the same, and that means you can’t have an equal representation rule that says you need to have a certain percentage of women. That’s a gender quota that’s unconstitutional. That’s actually pretty consistent with the way that our Supreme Court has consistently thought about equal protection for at least the last 50 years. But in these countries, once the courts did that, women mobilized and then amended the constitutions again to make clear the vision of equality means that the law shall promote the actual implementation of equal rights and eradicate disadvantages that now exist that paves the way to having quotas for women in politics, which it’s a dirty word in the United States, but in most of rest of the world. It’s a pretty normal way in which democracies have been able to get equal representation of men and women in their positions of decision-making power, both their legislatures and on corporate boards.

Mitch Winick:

Jackie, we talked earlier that race and democracy is an issue that continues to, I don’t think it’s unfair to say, continues to plague us as much as we attempt to move forward the issues of equity, inclusion, fairness, and to combat racism in our country. We are reminded that court cases, legislatures and public policy in many cases continue to institutionalize these processes. We were very fortunate to have Dr. Pinene, Joseph Damon Hewitt and Cezar Garcia Hernandez talk to us about these issues.

Jackie Gardina:

Mitch, I love history inviting Dr. Peniel Joseph on to talk about his book The Third Reconstruction, and really being able to see in that book the arc of our struggle with race and democracy, and for him to put the current events into that historical context was incredibly helpful. But I was really struck by his comments about something that is often celebrated as a turning point in our history, which is the integration of a school in Little Rock, Arkansas. Let’s listen to him talk about that.

Peniel Joseph:

Why should we have a thousand troops escort little black girls into Little Rock Central High School? So from Malcolm X’s perspective, and I agree with his perspective, 1957, what happened in Little Rock is a catastrophe. King has a different perspective. He’s writing a memo to Eisenhower praising President Eisenhower for sending the troops, but the fact that we have a mob when we have kids going to school, it’s a huge disgrace. Can’t everybody see? It’s a disgrace. It’s a disgrace in 57 and it’s a disgrace. Now, I know I wouldn’t have sent my daughter into Little Rock Central High School. I wouldn’t have sent my little daughter in there. No, no, not at all. She’s got too much dignity to do that, even as the people who did had huge dignity and grace, but it’s showing that the country, it’s in a catastrophic state. Can you imagine all of us here on this call that somebody’s going to school and they need bodyguards to go to school, and then years later we celebrate and we recon that story and say, this is a proud moment in American history. It’s a shameful moment. It’s morally reprehensible and politically indefensible then and now. But again, we don’t tell the truth about that moment even as those young people there are heroes. What about the mob? What does that mob tell us about who we are? Those are white children and teens and adults. This is 57 in Little Rock Central High School, and that scene was played out throughout the entire country for decades and decades.

Jackie Gardina:

Mitch interesting thing is it came up in the Supreme Court again when the Supreme Court decided to hear the affirmative action case and whether or not race could be considered when admissions committees were considering whether or not to admit particular students to higher education institutions. It was an eye-opening conversation with Damon Hewitt about the arguments that were being presented and to juxtapose them against Dr. Joseph’s historical story was quite striking.

Damon Hewitt:

There’s a broader political project from the courts and conservatives, ultra conservatives in particular, which is not much trying to persuade us that racism no longer exists, but trying to leverage the fact that race itself is a social construct and telling us that race doesn’t matter, or even more so in the case is that anytime race comes up, it is inherently wrong. That is in a nutshell what this made up organization students with fair admissions is saying in these race conscious admissions cases, they did the same thing, same people elsewhere at UT Austin and elsewhere, but it’s also similar to what we’re being told in the K 12 context. Well, if you mention race or racism, that is divisive and that’s going to separate people, so you can’t talk about that in the curriculum, and in fact, you can’t have any books in this school or in this library that go to those issues

Mitch Winick:

And Jackie the issues are just as important when we talk about race as it relates to immigration in this country, and we had César García Hernández be able to talk to us about the work that he’s doing in that area.

César García Hernández:

I think the important consideration is not whether people are in the United States, because of course there are people in the United States who run the legal spectrum from being born in the United States and therefore US citizens courtesy of the 14th Amendment to the US Constitution and all the way to people who have only recently arrived in the last few days or last few hours, and who do not have the federal government’s permission and are not on the federal government’s radar. And then there’s lots of people in between and some status or some situation that sort of straddles those two extremes, including very commonly folks who come to the United States entirely with the government’s permission and permission to stay for a certain period of time, and that time comes and goes, and the person does not. That certainly includes people from Latin America, but it actually also includes people from Canada, people from Western Europe, people from Australia.

All of these are countries whose citizens do not have to apply for or receive visas in order to visit the United States. And so we often talk about immigration as being an area of law that when it’s violated, it’s violated by people from Latin America, people from the Caribbean, maybe China, India, but very rarely do we talk about the fact that every year there are tens of thousands of people who violate immigration law from the countries of Western Europe and the European Union from Canada, Australia. This is a phenomenon that stretches across the of the earth and we see it happening playing out in the United States daily.

Mitch Winick:

Jackie, again, as challenging as this issue is of discussing race and social order and democracy, we’ve asked each of our guests, what is the way out? What is the positive direction we can take in discussing these issues? And I believe you thought Damon Hewitt had the answer,

Damon Hewitt:

The thing that everyday people can do to help move forward with the goal of developing and fostering and nurturing and protecting a multiracial democracy that is healthy and effective is to get off the sidelines. Neutrality is status quo and status quo despite progress over the decades is impression. Being neutral does not work, and that’s why race neutrality is a fallacy. Someone could say, I don’t see race. See, I voted for Barack Obama, and what you’re saying is, see, I voted for a black man. We all see race. The question is, do we value it and are we honest with ourselves about it? I would say to everyone, get off the sidelines and not just pick a political side, but pick the side of justice, the truth. Pick the side of standing in solidarity with people in your own community who don’t look like you, see your humanity in theirs and hopefully theirs and yours, because at the end of the day, this experiment called a multiracial democracy that we’re trying to build here requires everyone to have voice opportunity and frankly, power in ways that are not adverse to each other, but have significance for each person, each community in their own right.

Everyone deserves that, and so let’s see if we’re committed to it.

Jackie Gardina:

I think it’s so important to start where Damon Hewitt encourages us to, because these issues aren’t going away. We see this push or this idea of race blindness continuing to happen in context other than higher education. These are going to continue to be issues that we face in 2024 and beyond, and it’s really important. That idea of recognizing each other and each other’s humanity is really a big theme that came through in so many of our guests. The question, what should we be doing to change what’s happening on the ground?

Mitch Winick:

Jackie Damon Hewitt wasn’t the only one that had great advice for our listeners, let’s wrap up season one with these words of wisdom from our guests, Thaddeus Johnson, Joanna Schwartz, Wendy Par, drew Liebert, Morgan Hazelton, Lisa Kloppenburg, Rachel Hinkle, Suzanne Nossel, Damon Hewitt, David Pepper, and Joel Rogers. Each of them giving us guidance and suggestions on how to move so many of these critical issues forward.

Speaker 22:

We got to make a change to things that we’re doing, not police versus community. Police and community are one, first of all, you got to have community trust, trust change and leadership both at the police level but also at the political level. You have to have the political will to make these things happen.

Suzanne Nossell:

The imperative for campuses to become more equal and inclusive can and must be reconciled with robust protections for free speech and academic freedom that these things are not pitted against each other.

Speaker 23:

In sports, there’s the idea of winning isn’t the most important thing, it’s the only thing. Well, of course, in Supreme Court, Litigation, the actual precedent that will affect the future is incredibly important.

Speaker 24:

When called serve on a jury and don’t manufacture a dentist appointment or a prepaid vacation, that will prevent you from serving. Having a true representative community sitting in those juries is an important part of the process.

Speaker 25:

I think for one thing, we all need to start thinking about and talking about health in a different way to our friends, to our neighbors, to our colleagues. In our public writings, people on all sides of the political spectrum need to get off of the bandwagon of thinking about everything as individual. We need to understand and recognize that our health is more dependent on the health of our neighbors.

Damon Hewitt:

I’ll say to everyone, get off the sidelines and not just pick a political side, but pick the side of justice, the truth. Pick the side of standing in solidarity with people in your own community who don’t look like you, see your humanity in theirs and hopefully theirs in yours.

Speaker 26:

I think we have to take individual responsibility as well. That is one of your great powers. I tell all of my colleagues and friends, as much as we might love that instant communication and source of information from a social media platform, if you determine that it’s really engaged in absolutely unacceptable conduct, you have the power to vote with your own attitudes and your perspectives.

David Pepper:

If you are not the challenger, help that person. There are so many things we all could be doing to lift democracy. Then too often we’re not even thinking about registering people is as harmless and as positive a public service as you can do. Let’s make sure that people are part of our democracy. Let’s help them get registered. So my worry is we’re only doing a sliver of what we could be doing, and we need to be doing all of it to get to scale what we need to do.

Speaker 27:

The issues we face are very similar. They haven’t changed that much, and we really need to support each other. If we’re going to see the change want in the world,

Speaker 22:

We have to be willing to forgive. Maybe not forget, but forgive and move forward, and that’s hard, and that may be one of the bigger, bigger options we have to overcome and figure out. But it often comes down to communication and finding space for us to be vulnerable with each other. And if we’re not doing that, these great ideas won’t work.

Joel Rogers:

People might say, well, that doesn’t sound like fun. And then I’d say, well, what do you think of fun as then? If talking to people and spreading light and love in the world and getting some back and laughing or ass off isn’t fun, what is your idea of fun?

David Eakin:

This is David Eakin, producer and composer of the SideBar Podcast. On behalf of Mitch Jackie and the Legal Talk Network, we hope you have enjoyed and been challenged by the incredible guests and topics we covered in season one of SideBar. If this recap episode has sparked your interest in listening to any of our 29 prior episodes, please join us on the Legal Talk Network or the SideBar website at SideBar media.org. Thank you also to Gogo Zoger, our social media marketing guru, and to our season one corporate sponsors, sailor Legal Services Pro Sertas, trellis, and Kaplan. We look forward to joining you for season two of a SideBar starting January 16th.

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