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    July 26, 2023 HUMAN RIGHTS

    Sherrilyn Ifill’s Remarks on the Future of Our Democracy from the 2022 ABA Thurgood Marshall Award Ceremony

    by Sherrilyn Ifill

    I want to say, because I think it’s important to say it out loud, that we are in a moment of grave democratic crisis. Not saying it doesn’t change the truth. We are in a moment of grave democratic crisis. The trick about it, about this moment, is that whatever happens, we may all meet in this same room next year. 

    Our lives may be okay. We may still have a place to live. We may still have our cars. We may still have a practice. We may have even more of a practice. We’ll still eat dinner and drink coffee and wine. But if we don’t take this very seriously, we will not be doing all of those things in a democracy. 

    And ultimately, as a profession, we have to decide whether that matters to us. What I learned, to be honest, over the last five or six years, is that there are whole swaths of our profession that appear to be agnostic about whether or not we are a democracy. I’m going to say that again, there are members of our profession, many of them prominently placed, who are agnostic about whether or not we are a democracy. 

    It’s probably the only thing that has shocked me over the last five or six years. So it’s important for those of us who believe in democracy to be honest about the nature of the crisis that we are in so that we can understand what we have to do. 

    The reason I think it’s important to describe it as a crisis, because when you’re in a crisis, you do things differently than you do them in normal times, right? If you’re in a crisis in your family; if you have a health crisis; if you have a crisis in the infrastructure of your home, your roofs falling in; when you face a crisis, you behave as though you’re in a crisis. 

    And that means that you do things differently than you normally would. I think this is the challenge at this moment for all of us at large, but certainly for those of us in this profession and certainly for those of us in this American Bar Association [ABA]. Are we behaving as though we are in a democratic crisis? Are we behaving with the kind of urgency that you do when you are in a crisis? 

    Democracies unravel when the rule of law unravels. There is no place that is a democracy that doesn’t uphold the rule of law.

    Democracies unravel when the rule of law unravels. There is no place that is a democracy that doesn’t uphold the rule of law.

    ADAM MUSIC

    Justice Thurgood Marshall was one of one, and his leadership at LDF [Legal Defense Fund] really inspired me to understand the kind of courage I needed to bring to lead the organization to expand it beyond what had been its limits. Marshall had no fear of showing up and being present wherever there was the need. That’s why Fred Gray knew he could call Thurgood Marshall, after Rosa Parks was arrested, and say, I need your help. 

    That’s why members of the military who were being court-martialed at alarming rates in Korea had their mothers write to Thurgood Marshall, who tangled with General Douglas MacArthur and got permission to go out to Korea and interview these Black service members who were being wrongfully court-martialed and intervened on their behalf. It’s why Thurgood Marshall went out to the West Coast to deal with the Port Chicago Mutiny Trials when Black soldiers who saw unsafe conditions refused to work and were accused of mutiny. 

    And he went out to do the investigation and concluded it was not mutiny, it was racism. He understood that in addition to your docket of cases, you have to show up in the moments that are going to define the civil rights questions of the day. And that is how we [LDF] ended up creating a policing reform project in 2014. 

    We understood that a seismic shift was happening. And that’s what I think has to happen in the ABA. I believed that LDF was strong enough, that our reputation was sound enough, that our record was beyond reproach, and that I could step out a little bit, at first, from the confines of the way I think people traditionally saw the organization to speak in ways that were more direct, to bring cases that caused some to hesitate. 

    I want you to know that it was not easy for me either. We worried about everything that we did. It’s not easy to sue the president of the United States. In the history of LDF prior to 2016, I think we had sued entities of the federal government twice, maybe Adams and the Mary Frances Berry Civil Rights Commission. Twice within two years, between 2016 and 2018, we had sued seven Cabinet members, the president, and the attorney general. 

    It wasn’t easy. We didn’t know, particularly when it became clear that there was a sense of retaliation, what we might be exposing ourselves to. We weren’t sure when we would get the audit from hell. It wasn’t easy in December of 2020, after we saw what was happening after the election, to sue the president of the United States under the KKK Act. 

    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.

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    Sherrilyn Ifill

    President and Director-Counsel Emeritus of the NAACP Legal Defense and Educational Fund, Inc.

    Sherrilyn Ifill, President and Director-Counsel Emeritus of the NAACP Legal Defense and Educational Fund, Inc. (LDF), has dedicated her life's work to fighting for racial justice and equality. The Section awarded Ifill the 2022 Thurgood Marshall Award to celebrate her long-term contributions the advancement of civil rights in the United States.