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December 26, 2022
Strict Scrutiny
Civil Rights Queen

In This Episode

Tomiko Brown-Nagin joins Melissa and Kate to discuss her book Civil Rights Queen: Constance Baker Motley and the Struggle for Equality. You may recognize the name Constance Baker Motley from Ketanji Brown Jackson’s speech upon receiving her nomination to SCOTUS. Motley was the first black woman to be appointed to the federal bench– and she and Justice Jackson share a birthday. Judge Motley’s story illustrates the fights for equality, across race and gender lines, in the mid-20th century.




Show Intro Mr. Chief Justice, may it please the court. It’s an old joke but when an argumed, man argues against two beautiful ladies like this. They’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off on necks.


Melissa Murray Welcome back. This is Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I’m Melissa Murray.


Kate Shaw And I’m Kate Shaw.


Melissa Murray And we are joined today by a very special guest. So, Kate, do you want to do the honors?


Kate Shaw Absolutely. We have a terrific guest today. Joining us today is the dean of the Harvard Radcliffe Institute. Tomiko Brown-Nagin. She’s also a constitutional law professor at Harvard, Dean Brown. Nagin has published countless articles about the Supreme Court and Equal Protection has also recently been in the news for her work as the chair of the Harvard and Slavery Committee. The committee recently released a report documenting Harvard’s connections to slavery and pledging $100 million commitment to address that history. So she has been busy. And for our purposes, she recently released a book about Constance Baker Motley, the pathbreaking lawyer, politician and the first black woman appointed to the federal judiciary. Today, we’re going to do a deep dove on that book, which is called Civil Rights Queen: Constance Baker Motley and the Struggle for Equality.


Melissa Murray Now, listeners, the name Constance Baker Motley may be quite familiar to you because if you’ll recall, when she was nominated to the Supreme Court Justice Ketanji Brown Jackson reference, Judge Motley. As it happens, I share a birthday with the first black woman ever to be appointed as a federal judge. The Honorable Constance Baker Motley. We were born exactly. 49 years to the day apart. Today, I proudly stand on Judge Motley shoulders, sharing not only her birthday, but also her steadfast and courageous commitment to equal justice under law. Judge Motley’s life and career has been a true inspiration to me as I have pursued this professional path. So we wanted to learn as much as we could about Judge Constance Baker Motley, and in particular, we’d love to know why she hasn’t been as celebrated as some other civil rights icons like Martin Luther King Jr, or for our purposes, Thurgood Marshall. What could be the cause of this neglect? We wondered, could it be race and gender? Probably. And with that in mind, we are so delighted that Jean Brannigan is here because she does a great deal of work centering those questions in the book Civil Rights Queen. So welcome, Dean Brown-Nagin.


Tomiko Brown-Nagin Wonderful to be here. Melissa and Kate, excited to talk to you about my book.


Kate Shaw So we thought maybe we would start by just giving our listeners some background on Constance Baker Motley. This woman had an incredibly impressive resume. Maybe I could just ask you to talk us through just a little bit of her early life story, and then we’ll sort of do deep dives on the major phases of her professional career as a civil rights lawyer, as a politician in New York City and on the federal bench. But give us a little bit of a sense of where she came from and then her trajectory up until this illustrious career as a civil rights litigator.


Tomiko Brown-Nagin Sure, I’m happy to start there. Her life growing up and her parents and their interests and background are very important parts of the story. Content Speaker grew up in New Haven, Connecticut, in the shadow of Yale University. She was born to Rachel and Willoughby, who were immigrants to this country from Nevis in the West Indies. It was a working class family where her father and virtually all of her male relatives worked for Yale. And yet, as I explain in the book, that did not breed resentment in the family as it might have to the contrary content. His father in particular read the privilege of his of the wealthy white young men at Yale and who himself. And it only reinforced his sense that he and his family as West Indians were superior to black Americans, to black migrants from the South in particular. He taught to Constance and all of her siblings. He would not allow his children to play with the children from the South. And I conclude that either because of or despite of her father’s teachings, Motley grew up to be the civil rights queen.


Melissa Murray You actually touch on a really interesting sort of intra racial conflict that doesn’t get surfaced as much as perhaps it should within the black community and in the larger discourse about African-Americans. But there is a deep fissure, even in New Haven, between this community of West Indian emigres and native born blacks. And you talk about in the book how Willoughby and Rachel are deeply, deeply proud of their roots in a British colonial system. Like they drink tea. They revere the Queen. Sounds a little bit like someone on this podcast, but I digress for moments. My love of Meghan Markle is not quite the same as this, but it really does put them apart and sets them apart. They are purposely setting themselves apart from African-Americans and the New Haven community. And as you know, they are growing up in the shadow of Yale. But despite their sort of visions of grandeur, their associations with the British crown and the colonial system, there is absolutely no chance that their children are going to be a part of the world, that they are tangential to Yale University. Their daughters are not going to go to college. And so what intervenes to put Constance Baker on this trajectory that propels her into higher education and then on to this life where she’s sort of working at odds with what her parents taught her growing up.


Tomiko Brown-Nagin Right. Well, first of all, she is precocious. She’s very smart. And she early develops an interest in not only going to college, but to law school. And second, she has help. And that help comes in the form of teachers who introduce her to the writings of W.E.B. Dubois and James Weldon Johnson. She meets Robert Crawford, who is a graduate, black graduate of Yale from the South, who becomes a corporation counsel for the city of New Haven and also is a collaborator with the NAACP. She’s growing up in the context of the Great Depression, where there’s so much need all around her, and she develops an interest in social justice from a relatively young age, at least from the time when she was a teenager. And the most important intervention, I would say, is by a New Haven philanthropist who was a Yale graduate, a wealthy contractor who volunteers to pay for her college and law school tuition because he finds her so impressive after she gives a talk at a civic club in New Haven. And Baker Motley herself says that it’s like a fairy tale to have this man, this white man, intervene in her life and support her education. And he not only does that, he actually mentors her. He stays with her. He writes her letters when she is in college and in law school and supports her, much like a father would. And so there’s a there’s a sense of almost divine intervention in the life of this precocious girl who would not have made it out of New Haven, but for that help.


Melissa Murray So she literally talks her way into a college education.


Tomiko Brown-Nagin She does. She does. She she knows the King’s English or the queen’s English. Right. And she is able to convince BLAKESLEY that that she really deserves to be. It would be a disservice not only to her, but to society for her not to attend college and pursue her dreams. And that’s precisely what she does.


Kate Shaw And you describe another incredibly fortuitous meeting that she has during law school with Thurgood Marshall. So she attends NYU as an undergraduate Columbia for law school. And during, I think her last few months of law school gets hired as a legal clerk at the NAACP Legal Defense Fund. That’s kind of a result of this fortunate meeting with Marshall. And she’s the first woman lawyer at the NAACP and is one of two women in the office at the time. So can you talk a little bit about her trajectory as what ultimately is just this incredible superstar of a civil rights litigator who argues ten and wins nine cases before the United States Supreme Court? And that’s just the Supreme Court level, right? In some ways, I found her trial work like the most incredible to hear described in the book. So can you talk a little bit about her time at the NAACP, LDF?


Tomiko Brown-Nagin Sure. She was hired by Thurgood Marshall in 1945 while she’s still a law student. She makes her way to the Ink Fund on the suggestion of a classmate who had been working as an intern there. And he is moving on to something else and he says, Why? Why don’t you go and see Thurgood Marshall and check it out? And she does. And he hires her on the spot. He regales her with stories about women professionals in his life. These primarily would have been schoolteachers, which was the profession open to black women in particular at the time. And he can see that she is talented, she is interested, and he hires her. And she she is so grateful for the way in which he treated her because it’s so different from what she’d experienced when she. Applied to New York City law firms and had the door closed in her face because the firms did not want women and did not want black people. And she was both. So she stays at the fund for 20 years under the tutelage of of Marshall and becomes this fabulous litigator. She is not the first woman lawyer at the NAACP Legal Defense Fund. She is the only woman lawyer for most of her time there because when she becomes a lawyer, the other person goes off to another job. So for for her time there, she’s the only woman lawyer working in this with these men who are alpha males, and she’s able to make her way. And it’s a tremendous story, a testament to her talent, to her grit and grit, because it’s not easy for her. She has a lot to overcome, including because she is a woman. She’s unfamiliar, she has a child during the same period that the brown cases are being litigated and then relitigated at the Supreme Court. And so it’s just a terrific story about an excellent lawyer, as well as a woman professional who is making her way at a time when women just don’t get a lot of respect as lawyers and they’re not meant to be there. She certainly is not meant to be there.


Melissa Murray So there’s an interesting vignette that you describe in the book about her first meeting with Thurgood Marshall, who himself is a an incredibly charismatic person. He tells great stories. He’s incredibly handsome and he likes a good looking woman. And she is tall and stately, very well put out. And when he’s interviewing her. He asked her to get up on a ladder so that he can see for himself whether she has shapely legs. And I mean, it is. I read that and my jaw literally dropped. You know, in this environment that she views as, you know, the safest space that she could be in, especially relative to what she experienced at those New York law firms. She’s still getting checked out by this man who does prove to be an amazing mentor to her, and she will not hear a word against him ever. I mean, she sort of takes the good with the bad and that’s a blip that she can overlook given all of the other things that he does for her career.


Tomiko Brown-Nagin That’s right. It is a story that I needed to tell.


Melissa Murray It’s a story I needed to hear.


Tomiko Brown-Nagin Yes. Well, it it is relatable, right? Perhaps not in a stark fashion. That is an experience that that many women, working women can relate to. Just the idea of being scrutinized and checked out. And that did happen to her. And yet, as I explain in the book, she is the one who’s being transgressive there. He is not. He is doing what men certainly of his era do. I know that at the time that Motley is signing on for work at the Ink Fund, Jet magazine, which is this this this magazine published by Ebony, and one that, you know, most black families would have on the coffee table, has a swimsuit issue or a social spread in the middle of the magazine. So women’s bodies are subject to the male gaze all the time, and Motley Experiences says, but it is just a blip. And she goes on, and she makes her way as a lawyer. I did want to include that story in the book because it humanizes Marshall. It also humanizes her and just paints a picture of all of the just the many things she had to deal with as she was becoming. Constance Baker Motley, the Civil Rights Queen.


Melissa Murray Well, I love the point that you make that he is not transgressive. This is what men do even in the workplace at this time. She’s the one who’s transgressing boundaries because she is a woman in a place where there are no other women doing things that no woman has done in that space before.


Tomiko Brown-Nagin Right. Right. Absolutely.


Melissa Murray You’ve mentioned a couple of times the fact of her motherhood. And as you noted, while the Brown case is being litigated and relitigated, she is pregnant and she gives birth to her son, her only son, Joel, at this time. And so she’s sort of in and out of the action in Brown and that really wears on her. She knows this is a pivotal moment and it kind of grates that she is not in the thick of it because she is pregnant, because she’s giving birth, because she’s at home. And she really chafes at some of this even as she loves her family. So can you talk a little bit about that tension because it seems to sort of be laced through the book. She’s constantly straddling the line between what is required of her by her family and what is required of her, of her work. And this calling, this incredible passion that she feels for the work that she’s doing.


Tomiko Brown-Nagin Yes, she had an uneasy relationship with traditional motherhood in that she was working as she was working as a high powered professional, the only woman among men. The expectation would have been that she was at home taking care of her own children, and she was home often. But she also was gone quite a bit and was self-conscious about this, about how she wasn’t, you know, the average mother at the coffees at her son’s prep school in New York City, for instance, which is one of the reasons why she she she met Betty Friedan there. And they they were friends because they were of a similar type among women. She did have her child around the same time, but Brown was being litigated and relitigated. And this was a moment when the lawyers were essentially required to live at work. And and she could do what she could do, but she couldn’t do it in the same extent to the same extent as the men. She had to go home and see her child. And she worried or at least was aware that there might be the perception that she wasn’t pulling her weight. But then again, there might be the perception that she should just be at home anyway. And so it was difficult for her also when she traveled because she either had to leave her husband and child behind or she had she might take them. With her. She did on some occasions, which created its own problems. For instance, after Brown, the lawyers had to engage in the difficult, laborious work of actually convincing courts to implement the decision at the K-through-12 level and also follow its logical conclusion in the higher education cases. And I tell a story about how the family drove from New Haven to Florida to litigate where Mottley was litigating the University of Florida College of Law case. And they couldn’t stay in hotels. They had to rely on family friends to put them up. And they experienced this awful instance of segregation. When Joel little Joel needed to use the bathroom at a gas station and he was turned away. And this is the this is a three year old who can’t use the restroom at a facility because he’s black. And it’s just heartbreaking to to to think about what that might have been like, because as a parent, you want to do whatever you can for your child whenever you can. And this would have been a she would have been helpless. And so there are a lot of those stories throughout the book showing that she was different even as she was making her way as a woman in a male dominated profession.


Melissa Murray [AD]


Kate Shaw Can we pivot now to you’re talking about in the post brown years like the follow on litigation included a lot of litigation around access to higher education. And there’s an incredible chapter in the book about the desegregation of the University of Mississippi, Right. Or Ole Miss, and her work with the plaintiff in that case, James Meredith, to desegregate that institution. And as I recall her, she’s mostly away from her family during her very extended periods in Mississippi to litigate that case. So can you talk a little bit about who James Meredith was and just kind of some of what it took for Mottley to successfully desegregate this unbelievably resistant institution that is seeking to remain segregated with the very clear and explicit assistance of the federal judiciary in Mississippi. So can you just talk a little bit through that story?


Tomiko Brown-Nagin Sure. Well, when Thurgood Marshall came into Motley’s office to explain that James Meredith wanted to sue the University of Mississippi, Ole Miss for entry, he said, This man has got to be crazy because who would want to do that? Who would try to do this? And he thought that because Mississippi had a reputation well-deserved, as the most racist state. It was assumed that if you saw racial change in Mississippi, it could be a death sentence. You might get yourself killed for trying to register to vote or for seeking a raise, as the black teachers did one of these cases during the fifties. And certainly, if you want to do something so audacious as desegregate this bastion of white supremacy, the flagship university in the state. And so who would want to do this? Who would try to do this? James Meredith was a veteran. He was a slight of build, an incredibly courageous person who, after he served overseas, was like like many black soldiers, were veterans, were just determined to come back to this country fighting for their own rights. And that is what he did, although he was living in Mississippi, and he understood that it was a dangerous endeavor. Now courageous, yes. But also James Meredith, when he started to experience the full weight of of white resistance, during that case, he sometimes faltered. So he wrote this letter to the Ink Fund, saying he wanted to challenge segregation at Ole Miss. But there came a time when he wrote a different letter to Motley saying, I can’t take this anymore. I am human, after all. This is just too much. My friends have already graduated from college. They have their families. They have their houses. And he had none of that because he was struggling against the infrastructure of Mississippi. All of it, not just the higher education leadership, but the entire apparatus of government, was opposed to James Meredith desegregating Ole Miss. And so it took Motley several trips to the state to litigate the case to rebut claims that James Meredith was literally mentally ill, because that’s the only kind of black man who would want to do this, that he was an instigator and so forth and so on. It just took a long time. It was a she called it the last battle of the Civil War because it was just so hard fought. Open defiance from federal judges. Even after Meredith received the order from the Supreme Court, Hugo Black, allowing him to matriculate. There was there was violent resistance. Two people were killed in the course of his desegregating the university. And then once he was on campus, first of all, he had to live separately from everyone else. He had to eat separately from everyone else. He had a guard and it was just lonely for him. Lonely for him. So just a terribly important case and also one that illustrates the human toll and costs on both Meredith, but also motley of this landmark civil rights case.


Kate Shaw And of course, you mentioned that seeking racial justice in Mississippi at the time could literally mean a death sentence. And, of course, Medgar Evers was a close friend of Motley’s and was literally assassinated in the course of that litigation.


Tomiko Brown-Nagin That’s right. And let me speak about that for a minute. It’s so important to the story because it does illustrate how Motley herself experienced trauma from litigating these cases. That one in particular, Medgar Evers, was the chief operative in Mississippi. He was the person who met her at the airport, drove her to the federal courthouse. It was dangerous to do so. When they were driving, he would say things to her like put away your your legal pad. And The New York Times, the state police are trailing us and you don’t want to be caught doing that racial justice work. They might stop us. And he was assassinated a month after Motley completed the case there and in a way that she had anticipated had warned him might happen. She stayed with Medgar and Myrlie. When? She was in Mississippi and she said to him, you know, you need to cut those bushes close to your house because someone might harm you from that space. And that’s what happened. And it devastated her. She couldn’t go to his funeral. She couldn’t get out of bed for weeks because he was her friend and was just a wonderful person and courageous foot soldier in the fight for desegregation. And his life was taken because of it.


Melissa Murray So that was a major traumatic episode that really marked her time in Mississippi. But you also chronicle the litany of petty indignities she endures, which is interesting because part of why she is sent to Mississippi is because the INC fund believes that as a woman, she might be spared some of the racialized violence that Thurgood Marshall and Bob Carter regularly ran into when they were litigating cases. But she isn’t immune from these petty indignities, as can you talk about A, what is it like for ordinary Mississippians to find this stately New Yorker woman, black lawyer in the courtroom? Like minds are blown, as you note in the book. And how do the lawyers treat her? What is this professional community that she finds herself in in Mississippi like?


Tomiko Brown-Nagin Well, one of the reasons that her relationship with Medgar Evers was so important to her was because he provided a community to her that was otherwise lacking in the state of Mississippi. She suffered horrible indignities at the hands of a white bar in Mississippi and in other places who were defending the state. The lawyer would not call her Mrs. Motley, which was the way in which a respectable woman would have been addressed with her married name with Mrs.. He wouldn’t call her anything. He would just referred to her indirectly. And this is in court and it’s so horrible the way he disrespects her that the judge in the case, who himself is a segregationist, says you got to do a little bit better. And so the so the solution is for him to refer to Motley as the New York counsel. He will not call her Mrs. Motley, and he will not shake your hand. So she recounts how she saw this lawyer at the airport once, and as she would have been accustomed to doing, she went to shake his hand and it just stayed out there because he was not going to touch her. And frankly, she was just both amused and perplexed by all of this, because here she was, this graduate of Columbia Law School and of NYU and this well-respected lawyer. And she just couldn’t quite understand how it could be that racism was just so irrational. It didn’t care if you were Constance Baker, Motley, Thurgood Marshall or W.E.B. Dubois. You were considered less than. That was the premise of the system. And one had to adhere to that exclusion for white supremacy to hold. It also, as I mentioned, it was scary to be down there litigating those cases with people trailing you. Of course, civil rights workers were killed in Mississippi and elsewhere. And so it was it was difficult for her, but also the black community loved her. They just were fascinated by her and would make their way into the courtroom just to see this black woman lawyer from New York observe her to cheer her on. This happened in all of the courtrooms at UGA when she litigated that case. Or Ms.. She was fascinating. And she was defying white supremacy. She was asking white men to account for their activities. And it was just a sight to see. And it was one of the most rewarding parts of writing the book to write about those scenes where the black community is excited to see these civil rights lawyers come into town. MOTLEY Especially, they’re like gladiators from the perspective of the community, even if these lawyers are also fighting for dignity for themselves.


Kate Shaw You describe Motley’s relationship with obviously a number of civil rights luminaries in the book. MARSHALL And we were just talking about Medgar Evers. You talk also about her relationship with Dr. King. You say that she always spoke very highly of Dr. King, that he treated her with respect because in some ways he viewed her as an exception to her gender. Can you share more about about what you mean by that and about their relationship?


Melissa Murray And also, can you dish on the Marshall and King relationship? Because that was also fascinating.


Kate Shaw Much more contentious than I had realized. I was just like no lionization in the book. Right? Like the people in all of their complexity are on display in a really amazing way. I’m sorry. So. So there’s.


Melissa Murray We’re fangirl-ing.


Kate Shaw a lot but we’d love for you to talk about it.


Tomiko Brown-Nagin Well, so, so one of the things that is so interesting to appreciate is that there were professional rivalries. Jealousy is. In relationships among civil rights leaders, just as there are generally. Marshall thought that King was an upstart, that his approach civil disobedience was irresponsible, that he was going to get people killed, that what really matters mattered was the law itself, the courtroom battles. And he just sort of looked down at King. And moreover, Marshall was Mr. Civil Rights, right. And he jealously guarded his place in as black America’s representative. And then along comes King, having had a law degree. Right? He’s a minister and he is able to gain so much respect. And to some extent, he displaces marshal as the chief representative of black America. And so Martial is not a fan of King. And yet Motley adores King is happy to go to Birmingham and work for the movement when she is called. She thinks that King is heroic, and yet, if one reads the literature on King, one quickly realizes that he is a womanizer and he is criticized by people like Ella Baker for not recognizing the talent of women. And so it’s curious in a way that Motley and King have such a great relationship. The way I explain it is that she is able to transcend her gender in a sense, by being a lawyer who represents him, who can hold her own with the men. As is typically the case when she’s in Birmingham, she is interacting with this group of incredibly assertive men and she is the savior of them. And so under those circumstances, he appreciates her. He lifts her up, talks about her fondly. Even after the moment of her representing him as past, he was he sends her letters congratulating her on her promotions. And it’s just a very they have a lot of affection for one another.


Melissa Murray You note that he views her as exceptional, even as the traditional civil rights movement is overlooking other women in their midst. Like Ella Baker, like Claudette Colvin, she sort of stands out and stands apart. But back at the Ink Fund, she kind of becomes the Ella Baker or the Claudette Colvin. It particularly when the question of leadership secession comes up. So Thurgood Marshall is exiting the Ink Fund. He will go on to be the solicitor general and a second circuit judge and ultimately a justice on the U.S. Supreme Court. And the question is, who is going to fill his shoes as the head of the INC fund? And there are a couple of candidates among them, Constance Baker, Motley and Bob Carter, who have been sort of foot soldiers for Thurgood Marshall in all of these segregation cases down in the south. And there’s also Jack Greenberg and ultimately Marshall anoints Jack Greenberg, who happens to be the only white lawyer in the group or the most prominent white lawyer in the group. And he does so because he is white. Right. That’s a big part of why he selects Jack Greenberg and Motley is overlooked. Carter is overlooked, and she feels it acutely. But she’s not necessarily angry at Marshall or it doesn’t damage her relationship with Marshall. So can you explain like what leads to her being overlooked and what it means for the dynamics in the Ink Fund and what it propels her to do later?


Tomiko Brown-Nagin It’s an important part of the book and the story because it is an example of a setback for Molly. If one knew just at a cursory level her career and where she ended up as the first black woman judge, one might not think about the reality that she experienced setbacks as as most people do in their careers. She’s very disappointed by having been passed over. She thinks that it is not only because of race, but because of her gender that Thurgood Marshall could not imagine a woman as the leader of this great, important national institution, this civil rights organization. And yet she does think that she is a good candidate. Now, I will say that had Thurgood Marshall anointed her, it would have been an incredibly progressive thing to do, because, of course, there were there were no women heading organizations of this type, you know, not at the ACLU or other such nonprofits. And so although as I was writing that chapter, I could absolutely appreciate. Motley’s perspective. I also was entirely unsurprised that Marshall did what he did, including because his own career is tied up in the choice. So although by the mid 1960s, Malcolm X, for instance, is calling someone like Thurgood Marshall an Uncle Tom, in fact, he has to. He’s considered a radical right, a black radical when he is questioned for the judicial seat. There are questions about whether he can be fair to white people. And so to elevate, Jack Greenberg proved that he was fair, he was open, he was honest. And so it was a shrewd move, but one that certainly was disappointing. And I should also point out that Jack Greenberg was a fabulous lawyer who did a great job at the Ink Fund. And so the story is not meant to actually pass judgment on who should have gotten the job, but rather to tell the story and to appreciate it from Motley’s perspective and show that there is a a thread of gender disadvantage that runs through her career.


Melissa Murray She has an amazing career at the Ink Fund, but this really does give her pause and she starts thinking about what comes next for her now that she’s been passed over for this. And her next chapter is actually a surprising one because it takes her out of the courtroom and puts her in the public sphere. So can you tell us a little bit about how the civil rights queen becomes the queen of New York politics?


Tomiko Brown-Nagin Yeah, it’s an unexpected turn of events, and yet it does show that the setback is opened her to new opportunities. She ends up in politics because she’s she’s living in New York and the Democratic machine there can see that she might be a great candidate. She has name recognition. She is extraordinarily impressive. And she is invited to run for state Senate. She says no initially, but she finally decides to do it and then she becomes Manhattan borough president. And it’s just a fascinating turn of events, first of all, because one of the things about Molly that’s important to appreciate is that she a pretty reserved person. She’s not the kind of person who really wanted to be out there shaking hands with people. And there’s a reason that she’s called the queen, right? She’s she’s regal. And she sort of apart from from others. And yet she ends up a politician who does, in fact, have to shake hands and have people get to know her because she moves into this new realm. And there are people who think that she should just stay in her lane. They’re not happy men in particular. Adam Clayton Powell, Jr, for instance, thinks that it’s ridiculous that she’s the one who is the Manhattan borough president or in the Senate. He doesn’t think she’s authentic. Sure, she knows how to litigate desegregation cases, but what does that have to do with representing the people of New York City? To her credit, it also because she has a lot of backers among white liberals, she is able to gain those offices. She does a great job, although she also is subject to quite a bit of scrutiny not only from people like Powell, but just from random New Yorkers and Americans who write in and say things like, Was there a white person who could do this job? How are you paying a black woman $35,000 a year to do anything and certainly to be to be in politics? And she has a really interesting work. Her family is is racially mixed. And there are people who write in to say she’s not even black. If you’re going to have a black person in this job, at least let it be an authentic black person or a real black person. I’m paraphrasing the sentiments, obviously, but she has to go through a lot in those positions. But she endures and it just opens the door to another professional achievement, and that is the judgeship.


Kate Shaw Okay. So that’s a perfect segue way to her move to the federal bench. She’s in limbo for a while, right? She knows that she’s under consideration. She actually almost doesn’t run for Manhattan borough president because she’s like expecting the call from the White House does run for and win as borough president. But eventually President Johnson calls and it turns out like they’re just so I learned so much from this book. So Johnson has this very. His actual view of her appointment, right. In some ways, it’s a little bit about kind of like a civil rights, one upsmanship of President Kennedy. And also so Bobby Kennedy is a little bit less than thrilled actually about Judge Motley’s appointment. So can you tell us a little bit more about those dynamics like the White House and Judge Motley Dynamics prior to and then around her actual nomination?


Tomiko Brown-Nagin Right. Well, these judicial appointments are at bottom political and hers was two was the result of a political calculus. And in it, as you mentioned, Johnson wants to one up the Kennedys, who even as they were credited with being supporters of civil rights, in fact, appointed a number of out and out segregationists to the bench in the South, where the funds litigating all of these cases. And they also just look down their noses upon him, and he wants to do something better than them. And so he wants to appoint blacks and women to federal office, including the bench. Motley comes is is on the top of everyone’s list for an appointment because she’s so great. She has name recognition and so forth. And yet it it’s not easy for her, including because these are plum appointments and one has to run the gantlet, one has to be approved and signed off on by various important people. And Bobby Kennedy is not interested in signing off. In the beginning, when Johnson wants to appoint her to the Second Circuit. And Kennedy says, Well, I thought you were talking about the district court for the district court. I might support her, but not for the Second Circuit. That’s a bridge too far. And how about this white guy over here? And and she. She was locked out of the Second Circuit. And even there were problems she encountered with the district court appointment with people weaponizing her civil rights practice against her. Again, asking the question of could she be fair? Which they mean they really meant to two white litigants or male litigants. She was called a communist. And it was a it was a hard path. But as I recount in the book, she says Thurgood Marshall held her hand the entire way, which is a reason to you know, she she had that maintain that relationship wisely. And I’m not saying it was merely strategic, but it was good that she could look to him during that period. And she did take her seat on the bench. But that back and forth was just a preview of what she would continue to confront as a judge with the Civil Rights Queen moniker being a double edged sword for her.


Kate Shaw I mean, we thought we’d talk a little bit about a case or two from her time on the district court. Sure. I think it’s pretty clear she gets on the bench. She’s facing around the confirmation process, not just these allegations of all these communist affiliations in her youth, but that she could not possibly be fair in particular to male litigants and white litigants in front of her. It’s pretty clear from the broad survey of her record that she is what we would say today is like well within the mainstream. She’s a fair and careful judge. But she does make some quite notable decisions in a couple of criminal justice cases, anti-discrimination cases. So I thought maybe we’d ask you to talk a little bit about MARTIN So straight, right? Like, who is he? How does he get before Judge Molly? What does she do with his case?


Tomiko Brown-Nagin The South case is the most courageous decision that Mottley issued over the course of her three decades on the bench. Sastry was a jailhouse lawyer. He was a black Puerto Rican who ended up in prison on what we now know were trumped up drug charges. He is a muslim and he is unafraid of the guards in the prison and just the culture undignified that incarcerated people are subjected to. He files a case arguing that she had been subject to retaliation, including by being confined in in the hole in solitary confinement. And Mottley draws the case. There is a trial that is just it is high profile. And she ends up ruling on his behalf. She awards and damages and some of her decision is overturned by the Second Circuit. Nevertheless, it is a really important decision vindicating the. The basic claims of the prisoner rights movement, and that is that litigants do not lose their constitutional rights merely because they are incarcerated, that incarcerated people should retain their dignity and that they should be able to speak to their lawyers. And it’s just a tremendous case that really does show illustrate some continuity from the sort of gladiator role that she played as a civil rights lawyer and her role on the bench. This was a decision that she just did not have to reach if she had not reached this decision. No one other than those who were actually in the prisoners rights movement would have been unhappy with her because it was just it was it was a it was a landmark. I was really happy to include it among the decisions that I discussed, in part because it really does show her being progressive in a fashion that is atypical. She she really is just a judge on the district court who, like other judges, tends to rule across the gamut. So she rules for big corporations and for defendants in civil rights cases. But there are these these cases that show her being truly progressive.


Melissa Murray You cover a number of cases. But one that was especially striking is BLANKE versus Sullivan and Cromwell, which is a pay discrimination case that really takes aim at the sort of white shoe New York law firms which have it. I think it’s pretty clear from the record in this case have been discriminating against women, not including them in the ranks of partnership, giving them different pay than male associates and male partners. And it all sort of comes to a head in this case. And one of the questions that arises is whether or not Judge Mottley can be impartial or whether, as a woman lawyer, the civil rights queen is ready to levy the hammer against Sullivan Cromwell. So can you talk a little bit about this case, the way she handled it? And then what are the repercussions of this in the legal community more generally? And what does it mean for Judge Mottley, who gets kind of branded a feminist firebrand but is far from it in a lot of ways?


Tomiko Brown-Nagin Yeah. So the cases in which she does rule according to what her conservative critics, you might say, would expect of her crowd out all of the other cases which are mundane and show her being a pretty pragmatic middle of the road. Judge Blank versus Sullivan Cromwell is brought by a number of women, many of them graduates of NYU Law School, who claim that Sullivan and Cromwell doesn’t hire women as it should, doesn’t promote them, gives them different assignments, doesn’t pay them as much. And Motley draws the case. It’s just by lottery that the lawyer for Sullivan and Cromwell is not happy. And he writes her a letter saying that as a woman, she likely will be biased in this case and not even know that she’s being biased. And that’s because of experiences that she had, he alleges, as a woman, experiences of discrimination. And he asks her to withdraw from the case and goes on to file a motion of recusal against her. Well, Molly does not withdraw from the case at all. Instead, she turns the lawyer’s logic on its head and says that if race or gender or practice background alone were enough to disqualify a judge, that no judge on the court could hear the case because white men, for instance, have a race and a gender. And so it’s just a brilliant opinion, pushing back against the notion that a civil rights lawyer should not be in a position of deciding discrimination cases. In fact, what I would say the lawyer should be afraid of is that she knows the law. She knows what a good case looks like, and this is a good case. And she ends up approving a settlement that brings more women into the workplace, to professional workplace and to law firms. Of course, it’s a it’s a sweet outcome, given her own experiences not being hired by New York City law firms when she applied after law school. And yet it does have the effect Blanck, as well as the Sastry case and a few others of branding her as a little. A judge who favors plaintiffs in civil rights cases. And it’s certainly not good for her prospects for promotion. And she she’s unhappy with that reputation. She thinks it’s unfair. She doesn’t like that. Some believe that she’s not wrestling with the law and intellectually engaging with the law, but instead just going along with whatever the civil rights bar has to say, whatever claims they make. And so it is it is a case that really captures how her reputation, her background was a double edged sword. And yet, in that case, blank versus Sullivan, Cromwell lives on and has an enduring relevance and in litigation with other judges who have been asked to recuse on the basis of, say, sexual orientation or religion or gender, citing that opinion for the proposition that those identity characteristics alone do not amount to bias. That is not what it’s meant to, to be impartial.


Kate Shaw So her relationship to both sex equality and organized feminism is pretty complex, as the story you were telling kind of starts to allude to. And so she’s obviously breaking barriers. She’s breaking gender barriers well before the rise of second wave feminism. She’s a huge figure in the fifties and sixties. She’s appointed to the federal bench in 1966. She’s friends with Shirley Chisholm, Bella Abzug, two leaders of the feminist movement. She was also close to Pauli Murray, who we’ve talked about quite a bit on the podcast. So her example paved the way for other women in all kinds of ways. And at the same time, I think she always refused to assume the label of or identify as a feminist. Right. So could you talk a little bit about both her influence on feminism and the feminist movement? And also how has your research uncovered how she viewed feminism so far as we can tell?


Tomiko Brown-Nagin MM It’s an important question and what I conclude is that she certainly was in the forefront of women’s liberation and she did it, although she did not apply that label to herself. And one way to understand her skepticism of the label goes back to her time in politics. She was asked by reporters, Are you a feminist? And she says No. And it makes perfect sense within the context of being an elected official. After all, she she already had a lot going against her. Why take on that additional burden of that label? And so I see it as a pragmatic move by Mottley. Who was that always? But it also likely represents a theme in the historical and the legal literature about how feminism, as traditionally understood and represented in the media, tends to be associated with white women. Right. She was uneasy with that, and I think that one can think about her and her relationship to feminism in the same way that one might appreciate our insistence on intersectionality for analyzing legal and social problems today. So I ended up not thinking it was odd at all that she refused the label and insisting that we appreciate the way she paved for others and also her community. So even if she didn’t call herself a feminist, all of her friends were feminist. So I think that is telling us something, right?


Melissa Murray Some of my best friends or family, I want to just come back to the theme of gender and sort of the way gender works and is layered on top of race in her life, her complicated relationship with being one of the few women, if not the only woman in the room so many times in her career, she portrayed herself and understood herself to be a sort of steely, stoic kind of person. Like, you know, she weathered the blows that came against her and she didn’t complain, she didn’t explain. She’s kind of took them and she prevailed. Despite the odds, she has this very businesslike, professional demeanor that she studiously cultivates. And it is a kind of armor. You talk about her fashion quite a lot in the book, which I appreciated. And and that is a kind of armor that she uses and she never really sheds any of that. And I remember when I was clerking for Justice Sotomayor, we were at some kind of event in Foley Square and Judge Motley was present. And I wanted very much to go meet Judge Motley. And I asked Judge Sotomayor if she could introduce. And she said, not until you change your pants. Because such a motley apparently did not like to see young women attired in pants. She wanted you to be in a skirt suit. And so so there were sort of like professional norms that she observed a kind of professional aura that she cultivated. How do you think that plays out today? I mean, if she were around today, would she still have that kind of aura, that sense of propriety, the steeliness, presenting herself in a particular way? And in what way did you know, her being so rigid about that presentation allow other women to be a little less formal in the way they presented themselves, like Justice Sotomayor. I think of Justice Sotomayor with the earrings and the red nails or Ketanji Brown Jackson wearing sister locks when she’s being confirmed by the Senate. To what extent did she walk so everyone else could run?


Tomiko Brown-Nagin Yeah. So that’s a great question. I will mention the notion of bringing your whole self to work, which we are familiar with now. That’s not the dictum that she followed. Right. She she thought that one needed to present oneself in a certain way, as buttoned down as as formal and wearing a skirt, no pants allowed. And that was both an armor. But it also reflected how she had been raised in this socially and culturally conservative West Indian family, where they believed in the stiff upper lip and not really displaying emotion of any sort. And so it can be hard to understand or appreciate or even know where Motley begins and where her the trappings, the cultural trappings and social conventions. And I think they sort of meld into one. I don’t think she would have changed that much had she lived longer. And I do think that she paved the way for women that today, including women lawyers, to hopefully have a greater sense of the space that they can occupy and the the ways that they can show up and perform. And, of course, she was friends with Justice Sotomayor. And I interviewed the justice for the book. And she she spoke so highly of of Motley. And I do think that there’s a way in which she passes the torch to Sotomayor. Right. And I just think that’s lovely.


Kate Shaw You got the same sense from your description of her relationships with her clerks. Now, clearly, she’s not cultivating a chamber atmosphere where people are wearing jeans like there is the sort of decorum and formality is obviously there. And yet the substance was what was important. And she not only expected excellence and worked very hard and had everybody worked very hard, she really prioritized hiring women, hiring people of color as clerks, encouraging their work and their career trajectories, which is absolutely something that Justice Sotomayor has picked up the torch and continued to do. Could you talk a little bit about that, the hiring and mentoring part of her role as a judge and how jurors today could potentially learn from that part of her legacy?


Tomiko Brown-Nagin Well, it’s a vitally important facet of who she was. She believed in mentoring. She believed in giving opportunity to women and people of color. She did hire clerks who were great students, but nevertheless were being overlooked by other judges. Derrick Bell fed students to her from Harvard Law School. And once they were in chambers. Although it is true that she worked her clerks very hard and was formal. She also nurtured them and she let them see a less formal side of her. She invited them to her summer home in Connecticut, where she would wear jeans. She wore jeans in the summer in Connecticut, and she made and fed them meals. And there was a rule at these dinners that they were to talk about anything other than work. You were not to talk about work. You were to relax and feel like a family. And I interviewed some of those clerks, and they were just forever indebted to her, for her humanity and for promoting their careers. People like Dorothy Roberts, for example. And it’s important to know that she made a way for others. She didn’t have to do it. It was other judges weren’t doing this. And as a. As I’m sure that you likely know, judicial chambers still are pretty non-diverse, shall we say. And there were many who would point to the pool problem, I don’t think, as a pool problem. I think it’s all about exclusive networks and assessments of talent that turn on what the judges are, the professors talent looks like or who they know or whose parents they know. But yeah, it’s still a problem.


Melissa Murray When you say this, it sort of brings to mind one of the most arresting photographs in the book. At the end, there is this photograph of Judge Motley with her colleagues, and she’s the only woman, the only person of color in this array of black robed jurists. And it is worth thinking about that trajectory. And then the invocation of Judge Motley by now, Justice Jackson, when she was introduced to the American public. And, you know, the trajectory shows how much something can change in just a generation or two. And it really is remarkable. With that in mind, it’s worth underscoring that you are an historian. And this is not just a biography. It is a book of history. And at a time when history is being critiqued and being attacked by some as presenting a less fulsome or a less attractive portrait of who we are as a nation, I wonder what you would say about how you want this book to be received, not just by those of us who are fans of Judge Motley and who want to know more, but by those who need to know more.


Tomiko Brown-Nagin Hmm. I want every American or as many Americans as possible to know Judge Motley, because knowing her helps us appreciate how America changed over time. Who rebuilt America? And one of those individuals was this woman who started out as a working class black girl in an immigrant household in New Haven. A striver, a woman, a female. It’s just so important to appreciate that the change makers in this country come from every background, but in particular from that one. It’s important for those who mottley visibly represented to know about her, to appreciate the possibilities for their lives that she presents. And also, I will say in this moment that I think the book is important to illustrate that it takes individuals to push legal institutions and push this country towards a better place. It’s not to be taken for granted, certainly not now. And I think that with the ascension of Associate Justice Jackson to the bench, with the timely publication of this book, I hope that we can appreciate both the possibility of change and just how fragile our institutions are.


Melissa Murray That is a perfect way to end. So thank you so much, Dean Brown-Nagin for joining us. Thank you for this fantastic book. The book is called Civil Rights Queen: Constance Baker Motley and the Struggle for Equality. And it is available where all great books are sold. So please check it out and pick up a copy. This concludes our fantastic special episode of Strict Scrutiny. Thank you so much for listening. As always, Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell with Audio Engineering by Kyle Seglin. Music by Eddie Cooper and production support from Michael Martinez, Sandy Girard, and Ari Schwartz. And Digital Support from Amelia Montooth and Intern Support from Anoushka Chander. Thank you so much for joining us.