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Discussions of race are everywhere and nowhere in 2025. On one hand, President Donald Trump is openly insulting Somali immigrants, describing entire nations as “shithole” countries, and insisting that the most persecuted class of humans are white South Africans. On the other, none of this is actually registering as anything other than Trump being Trump, and so when the Supreme Court agrees to revisit a foundational doctrine like birthright citizenship, too many of us shrug it off. On this week’s Amicus podcast, Dahlia Lithwick spoke to civil rights attorney Sherrilyn Ifill about her recent Substack, “Is It Too Late,” in which she argued that it is not too late to save American ideals of democracy and equality, but it is assuredly too late to remain indifferent. Part of that conversation has been edited and condensed for clarity below.
Dahlia Lithwick: There is a very human propensity, especially in times of crisis, to normalize and rationalize and temporize. We comfort the comfortable, and we look for hope in norms and in institutions and in rationality. So many people have this perpetual hope that something’s going to come along and life is going to go back to 2010 or 2012. This hope says that with enough time, and even if it’s uncomfortable right now, someone else is going to come along, or some institution is going to come along, and put us in the DeLorean and we’re all going to go back. Can you talk about the ways in which American exceptionalism and the American normalization bias and the profound—just to talk about the Supreme Court as an example—American trust in institutions can get us to the point where it’s not that we don’t see the fire, we can’t even smell the smoke. You write, “everyone should be on full alert,” but you and I both know that not only are people not on full alert, I’m not even sure what could put them on full alert.
Sherrilyn Ifill: I think things are unraveling pretty fast and people will get on full alert. The only question is, when they get on full alert, will it be too late? That’s why I’m saying: “You might want to do that now.” I’ve been guilty of this as well: not ringing the alarm bell with sufficient urgency. This is something lawyers do all the time, because we’re used to finding the little interstices and figuring out how to move within these small spaces so that we can get where we want to go and so that we can make change. I was trained in that tradition—you find a way, you find a pathway, and all of that presumes the legitimacy of the framework.
I’m not a nihilist. I actually always do have hope. And I think one of the reasons I feel so clear, in this moment, is that I have no desire to return to 2010. I have no desire to return to the ’80s. I’ve been a civil rights lawyer for 35 years. The ’80s were a nightmare.
What are we returning to? I don’t have a dream time calling out to me. People will say, “When Obama was president.” I mean, really? Because most of the videos you’ve seen of police killing unarmed black men, most of that was in the second Obama administration. That was Eric Garner. That was Ferguson. That was Walter Scott running in that park. So if you’ve been doing the work that I’ve been doing, you’re always invested in the future.
I have excitement and hope in this time because as this whole thing begins to unravel, we have the opportunity to create something new. This is where the 14th Amendment is so helpful for me, because it’s one of the biggest moments of creating something absolutely new in this country, so I use it as inspiration, not only its very words and provisions and guarantees, but also to remind me that we have the right and the obligation to refound our country when it goes astray. That’s what those young kids in college during the Civil Rights Movement did. They did a version of refounding. So I don’t want to suggest that I don’t feel hope for the future. I do feel quite hopeful. But I also feel that pretending that all we need to do is just make some incremental changes to get us back to 2010 interferes with our ability to do that reset. What has been laid bare is that 2010 ain’t it.
We have some serious structural problems. As a litigator, I don’t know how anyone can purport to pretend that they know what the rules are at the Supreme Court anymore. We have a Supreme Court that not only has the power to say what the law is, pursuant to Chief Justice John Marshall and Marbury v. Madison, but they’ve now decided that they have the power to say what the facts are. That has never been part of our system of adjudication and litigation. Assigning factual findings to the Supreme Court? No, that is for the trial courts, for district courts. But we are now seeing a majority on the Supreme Court that regularly swats away the findings of the district court. That is the power of the district court. They are closest to the conflict. They can evaluate the credibility of the witnesses. They’re seeing the exhibits, the documents, all of it. It’s playing out in real time. It’s not theoretical for them. And now we have a Supreme Court that months later will swat away a two-week trial and the findings of fact over 160 pages by a district court. That’s real. That is real and structural. And it should not be dependent on the personnel of the court.
Last week was a startling and arresting moment for me in terms of the Trump v. Slaughter arguments about Humphrey’s Executor. Put aside originalism, that’s gone, there’s not even a pretense of text and history. But the idea that, “Well, you know, since agencies don’t look like they did 100 years ago, I guess we don’t have to think about them the same way.” It is so strange to see serious people pretending to be doing serious work in this serious place, when all pretense of intellectual seriousness has fallen away. Instead you have feelingsball and “How does executive power make me feel today?” There is no commitment to the principles that were laid out and in which people like you and I as institutionalists took a lot of solace. Part of what is so challenging about this moment is that by the time most Americans get around to the point that they can say the sentence “Amy Coney Barrett’s not going to save us,” or “Brett Kavanaugh is not going to save us,” it’s all going to be too late.
It seems we are so committed to the principle that they are originalists, that they are textualists, that they care about a precedent, and so committed to the proposition that the U.S. Supreme Court is going to save us in the end.
The irony of it is that the U.S. Supreme Court got this reputation and the confidence of the American public after Brown. And that’s why, as much as this court is hollowing out Brown, they’ll never overturn it because that is how they became—how they got the reputation, certainly among Black people, for many decades, of being the people who come to your rescue. The shift started to happen with the Burger court in the 1980s.
So many of those who have the greatest platforms are still speaking and behaving in a way that suggests that this is something easily solved, or this is just how it goes, or we can just do this for a couple of years. But if you are watching the videos of people being chased by masked figures who claim to be federal agents, but we don’t know, and who are kidnapping people and throwing them in vans and doing this to American citizens and holding them? The danger is just there. It is apparent. The more we treat it as though this is just Trumpism, this is Trump 2.0—all the little things that we say to tamp down the alarm are really profoundly problematic.
Many of those who have the greatest microphones frankly don’t know very much about race or racism or the history of it in this country. They want to be experts, so they play to their expertise. These are also the people who have said, “We talk about race too much. We talk about identity too much. We’re scaring people off with that. Everything’s not race.” We’ve made it seem illegitimate to talk about racism. It’s almost like you’re being soft, you’re being anti-intellectual, you’re not doing the rigorous work of politics if you’re talking about race.
In fact, race is threaded through every institutional structure of this country. And we have someone who is exploiting it every day. It’s not that I’m talking about race, it’s that he just stood up the other day and said, We want the Danes, the Swedes, and the Norwegians. We don’t want people from shithole countries. We’re being told that it’s illegitimate to keep talking about race when we’re confronting a tsunami of a movement that uses racism as its stalking horse. It is the lure that brought so many people into this movement. It’s important to help people understand that that’s the bait they’re using. The bait that says, “Yeah, I’m not sure that those people are qualified,” right? Yeah, all of that stuff that just lives in this country, that’s being used as the bait for this smash-and-grab, for this power grab. And I don’t think we’re doing this country any favors by steering people away from that realization.
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