"On The Basis of Sex:" A Conversation about the Supreme Court and LGBTQ Rights with ACLU Legal Director David Cole

On June 15, 2020, the Supreme Court ruled that Title VII of the Civil Rights Act protects Gay and Transgender individuals from workplace discrimination. ACLU National Legal Director David Cole, who spearheaded the victorious lawsuit, joins Then & Now to discuss this surprise ruling, how the ACLU and its allies framed the argument, what the decision's legal implications are for today, and how the Supreme Court’s approach to discrimination has evolved over time.

Transcript

David Myers 0:03

Welcome to Then and Now, brought to you by the UCLA Luskin Center for History and Policy. We are dedicated to studying change in order to make change, bringing knowledge of the past to the quest for a better future. Every week we interview thought leaders, historians, researchers, and policymakers about what happened then and what that means for us. Welcome Then and Now, a podcast sponsored by the Luskin Center for History and Policy at UCLA. My name is David Myers. I teach in the UCLA Department of History and direct the Luskin Center. Our goal of the center is to bring the past into conversation with the present, and in doing so to understand how we got where we are so that we can imagine alternative and better futures. Our guest today is David Cole, who is one of the country's leading constitutional lawyers. David is the national legal director of the American Civil Liberties Union, as well as the honorable George J. Mitchell, Professor and Law and Public Policy at the Georgetown University Law School. He's also the author of a number of important books, including No Equal Justice, Engines of Liberty, as well as almost monthly essays in the New York Review of Books. Welcome to the podcast, David.

David Cole 1:17

Thanks for having me.

David Myers 1:20

So several weeks ago, the United States Supreme Court issued a stunning six to three ruling prohibiting discrimination against LGBTQ people, quote, on the basis of text, unquote. You know that well because you argued in the court on behalf of one of the plaintiffs, Amy Stevens. Now, in that surprising decision, the court grounded its logic in a reading of Title VII of the 1964 Civil Rights Act. Can you tell us what Title VII was? And wasn't the Civil Rights Act directed against race-based discrimination?

David Cole 1:56

So it was principally directed against race-based discrimination. It was, it it was, it came out of the civil rights movement of the 60s, it was passed in 64. But in the um in the, I think, I believe it was in the Senate, uh, an effort was made by a Southern senator to try to kill the bill by adding a prohibition on sex discrimination. And on from his view, that was so ridiculous that you would have a law prohibiting sex discrimination that this would kill the bill. But the momentum in favor of uh civil rights legislation was so strong that it didn't kill the bill, and the bill was enacted prohibiting employers across the country uh from discriminating against their employees based on uh race, national origin, and sex. That's such an interesting history to it. I noticed, by the way, when I looked at it last night that Title VI did not include sex. It was just Title VII that included uh sex in that list of other um things to be protected. Um and I guess

David Myers 3:05

Yeah, is that right?

David Cole 3:07

Yeah, that's uh that's absolutely right. And and Title VI to this day, uh which governs discrimination in in entities that receive any federal funding, uh, prohibits um prohibits uh race discrimination, but not sex discrimination. So yeah, and I think I you know this this was a kind of a uh an anomaly at the time. I mean you have to remember this was before uh Ruth Bader-Ginsburg you know convinced the Supreme Court to recognize that uh sex discrimination violated the Equal Protection Clause at in the 60s. Denying women jobs because they were women was not only not a violation of federal statutory law, but it wasn't a violation of the uh Equal Protection Clause, even if the government did it. And it was really before, you know, feminism in its full full full um uh power uh came onto the scene. So it was an early adoption of this notion that you can't discriminate on the basis of sex. And would you trace the origins of the idea of sex discrimination as we know it to this, as it were, accidental uh inclusion or deliberate inclusion, but for uh not for the purposes that we may intend it uh today. Is this the origin point of sex or sex discrimination? I No, I don't think so. I mean, I I mean I I think it's it may it might be the first, it probably is the first federal law that prohibits sex discrimination, but you know, as as we just you know talked about, it was it was put in to try to kill a bill by someone who was opposed to the very idea of both you know prohibiting race and sex discrimination. I you know, I think sex discrimination as a concept, the notion that you know treating people differently because they are women or men, is you know, that that that stemmed from feminism and from uh women the women's rights movement and uh eventually got recognized in us you know in in in local statutes, in some state laws, uh, and then ultimately uh in the Constitution through um through the litigation efforts of Ruth Bader Ginsburg when she was the head of the women's rights project at the ACLU. So uh just give us a sense of historical framing.

David Myers 5:26

What have been the peaks and valleys of uh of law and sex discrimination since 64? Um 70 is a period of new feminist activism and expression. Um does this give a significant push forward? Is it just beginning to germinate? What what does the trajectory look like such that we can understand um the decision of a couple of weeks ago?

David Cole 5:52

Yeah, so well, you know, I I think it really was sort of the 70s and the 80s were the were the the period, you know, following the civil rights movement, you had the the women's rights movement and feminism, and um it really you then had a host of organizations created, like the women's rights project or the ACLU or the Now Um uh National Organization for Women, Now Legal Defense Fund. Um that is a number of um uh abortion rights groups uh uh uh were were created, National Abortion Uh Rights uh Action Uh uh League. And and um and they engaged in strategic litigation uh while you know their sisters engaged in uh lobbying uh in in in state legislatures and uh ultimately uh the the the concept I would say by the sort of the by the 80s, uh early 80s, the concept that it is inherently suspect to treat someone differently because they are a woman uh or because they are a man uh was widely accepted in in state law, in federal law, and in constitutional law. Now, you know, there obviously are still we're still but fighting about it. We still have a women's rights project, the ACLU. There are still uh you know distinctions in how men and women are treated in with respect to dress codes, uh with respect to your ability to serve in certain parts of the military. Um but form but in some sense formal equality for women was attained in that you know 1970s, 80s period. And now we're in the sort of post-formal equality period where it's really making those rights meaningful by you know bringing lawsuits, by expanding the concept of sex discrimination, by um recognizing that discrimination on the basis of pregnancy, for example, is sex discrimination uh by looking at structural uh the structural causes of the fact that women still earn something like 70 some cents to every dollar that men earn and the like. Um so it's you know the battle continues, but the fight for formal recognition that sex discrimination was a problem, uh, I think was widely one in the 70s and 80s.

David Myers 8:21

And in that regard, as you sort of retrace the steps of the history of sex discrimination, um does that path conform to your theory in your book, Engines of Liberty, when you make a convincing argument that when it comes to carving out new rights, the most effective path to doing so is through bottom-up grassroots political organizing?

David Cole 8:47

Yeah, absolutely. I mean, I don't think it's a it's a uh coincidence that it was at the height of sort of that that feminism that we saw um you know both uh state and state and federal laws change and the the way that the Supreme Court interpreted the Constitution change. Um, people had been making those arguments for years and they'd been rejected, and now suddenly they were accepted. And I think it was, you know, in large part because the uh women acting together and and and speaking out and and and objecting to their treatment changed the way society uh thought about. I mean, I think for for a long time it was just sort of accepted. I mean, there were this are Supreme Court cases upholding laws prohibiting women from serving on juries because you know they were too fragile to serve on juries, or laws prohibiting women from from even entering the legal profession upheld by the Supreme Court on the on the uh ground that women are you know are are the fairer sex and in need of protection. And you know, it was women saying, no, you know, we we want equality, we don't want protection, we want to be treated equally, uh, and doing it collectively uh and through you know in all kinds of venues that I think made it possible for the law to uh reflect that change.

David Myers 10:16

So I guess to the uninitiated, um the question is how should we understand the Supreme Court's decision? Um should we understand the Supreme Court as driving change, or in this case as catching up to societal norms that had been shifting over the course of decades? Because it seems to us to be such a striking decision, especially given the composition of the Supreme Court at present.

David Cole 10:41

Yeah. So I think it's reflecting change. Um it's in this case, it might be accelerating change, um but uh but it's mostly reflecting change. And I you know and and I and I'll so so just you know, to to unpack that a little bit. I mean, the argument that we prevailed upon in the Supreme Court was that when you discriminate against someone for being gay or for being transgender, you are necessarily discriminating against them on the basis of sex. And the the you know, the easiest way to see this is an employer who fires a man because he is gay. He is objecting to that man because that man is attracted to men. If he had a female employee who was attracted to men, he would not fire her. Uh and so he is treating the this male employee differently from a female employee for the same conduct of being attracted to men. That's a form of sex discrimination in the sort of most simplest sense. It is treating two people differently because of their sex. And the same thing for transgender equality. Um, my client, Amy Stevens, was a transgender uh woman, and she notified her employer, a funeral home, that she was going to come in and, you know, um she came out as a transgender woman, and she was gonna come in and dress as a woman, and her name would be uh Amy Stevens, and she would follow the dress code for women. And and he said, you know, no, no thanks. Uh you're not coming back to work. Why? Because I think you are a man, because she was assigned a male sex at birth. He objected to her identifying and appearing as a woman. If she had been identified, if she had been assigned a female sex at birth, he would have no objection to her identifying and and dressing and uh uh appearing, living openly as a woman. So he is he was treating her differently uh because of his view of her sex. Um and so that was the argument, right? And that's an argument. We didn't make up that argument. I mean, you know, Iserly didn't make up that argument. That argument had been made on behalf of gay people for a very long time, starting in the 1970s, and it had been rejected time and time again, so that in the federal courts of appeals, there are about 12 federal courts of appeals or circuits around the country, and 10 of them had had rejected the notion that when you fire someone for being gay, that is inherently sex discrimination. And in the last couple years, two circuits, two, reversed that view. Uh they went en banc, meaning that the whole court got together and they reversed their earlier decisions, and they said, no, actually, discriminating against someone for being gay is a form of sex discrimination. But still, the the courts were 10 to 2 against us when we went into the Supreme Court. Um and, you know, the it wasn't that the argument changed, I think it was that the world changed. And that the notion that uh that discriminating against people because they are gay is somehow uh you know rational or acceptable, uh became unacceptable because uh gay people and transgender people came out, uh were open about who they were, uh they you know uh formed organizations to to advocate for their equal dignity, and um and and made it possible for us to prevail on an argument that uh that that had lost time and time again before. So I would say that that's part of the story. The other part of the story going to your questions, you know, yeah, but this is a conservative court. Well, the argument we made to the court was one that was very consciously designed to appeal to conservatives. Because the only way you win in the Supreme Court is if you appeal to at least one conservative, because there are five conservatives and four liberals on the court. So you've got to make arguments that are gonna appeal to conservatives. And the argument was a textualist argument. And textualism is a conservative doctrine of constant of statutory interpretation, which says the role of the court in interpreting a statute is to give meaning to the words in the text, not to try to figure out what Congress intended, not to ask what Congress thought it was doing at the time. And if you ask what Congress intended in 1964, or what it thought it was doing at the time in 1964, it was not intending to protect gay people or transgender people. But it wrote a law that prohibited discrimination, any discrimination because of sex. And the textualist on the court, and Gorsuch is the sort of strongest textualist on the court, writes the opinion saying, you know, it doesn't matter that Congress didn't contemplate, it doesn't matter that Congress didn't intend it. We're guided by and and and not only guided, but controlled by the terms on the page that Congress passed. They said if you treat people differently because of sex, that's prohibited. When you fire someone for being gay, you are necessarily uh treating them differently than uh a woman who is also who is attracted to men, and that's discrimination because of sex. So we made a textualist conservative argument, but we were buoyed by this political movement of LGBT rights uh to make the argument you know uh uh acceptable.

David Myers 16:23

Right. So that's really helpful. Um, but can you help me understand um how that um principle, and as it evolved over time, took hold in the Supreme Court, fits with what seems to be the Supreme Court's decision to uphold the right of a baker in Colorado to refuse to make a wedding cake on religious grounds for a gay wedding. Because that would seem to be discrimination on the basis of sex. And yet it's permitted. So why is that permitted for other forms of discrimination do not?

David Cole 16:57

Yeah. Yeah. So so good question. Um and I uh that that was also our case, the masterpiece cake shop case. I represented the gay couple who was um who was uh uh denied a wedding cake by the um by Masterpiece Cake Shop on religious grounds, as you suggested. The argument in that case that the baker made and that the United States, the Trump administration, made was exactly the argument you just articulated, which is that if you are you know refusing to serve somebody because you object to the message it sends on religious grounds, you don't have to serve them, even though even if state law says that you have to serve people uh regardless of their um uh you know of their sexual orientation. The court did not accept that argument. Uh the court took the case and people thought they might accept that argument, but the court ultimately um decided the case on a much narrower ground. It decided uh that the Colorado Civil Rights Commission that had adjudicated the baker's, the complaint against the baker, was itself um anti-religious because the uh one of the commission members made some comments that were um were viewed as uh very condemning of religion. And basically the court said, we're not deciding whether the baker has a right to discriminate against a gay couple because of um you know his religious views. We're we're we're not deciding that. Well, all we're deciding is the baker has a right to be to have his case adjudicated by a forum that is not itself infected by religious discrimination. And so, you know, we lost that case, but we lost it in a very narrow way that does not establish a kind of First Amendment right to discriminate. And the court actually went out of its way to say, in the in the opinion, religious or philosophical objections do not generally permit businesses um to uh violate non-discrimination laws. Um and that's not a holding because the ruling in the case was that in this case the commission's discriminated, but it it did not establish the right to discriminate. Um that's still, you know, that issue still has to be litigated. And actually at the end of the decision, Justice Gorsuch is in in the Title VII cases uh two weeks ago, he says, he adds he has a last paragraph that says not presented in this case is whether and how the Religious Freedom Restoration Act, which is a federal law that um requires federal requires us to accommodate as a a burden on religious exercise. We're not deciding uh whether the Religious Freedom Restoration Act, in some circumstances, might trump Title VII, um because it's not presented in this case, and so we're not deciding it. It's possible that it could for another day. I that is the fight of the future. Conservatives on this court in particular believe in very strongly, um will will create some kind of First Amendment right to discriminate. But they haven't yet uh gone that far. Uh and and I the last thing I'd say is that you know in the the those arguments were made in the 1960s and 70s to try to oppose uh uh anti-segregation laws. People said my religion compels segregation, uh, and therefore I should not have to uh run an integrated restaurant, and the court, the Supreme Court rejected them out of hand. So I think in the end it will reject those arguments with respect to LGBT discrimination as well, but it we haven't gotten there yet.

David Myers 20:57

Yeah. Meanwhile, we have seen this expanded purchase for the notion of religious liberty in ways that would seem to uh uh butt up against um uh the protections against sexual sex discrimination that remains to be seen. Um I guess without questions without so um you are a veteran uh observer of um and litigant in the Supreme Court. Um and on base of that, perhaps you can tell us what's going on in the Supreme Court these days. Since the appointment of Neil Dorsett and Brett Capital, it seemed that there was an unbreakable conservative majority. And yet over the past few weeks, we've seen a string of decidedly unconservative outcomes in the case you argue, together with Emma Carlin and the DACA case, um, in the recently announced abortion case. Um, and I guess they're different grounds any. In your case, actually, in the Borsing case, with two doctors Robert uh processed. What's going on here? Can you help us understand? Um Why the Supreme Court is not acting like it would seem to be uh supposed to be acting?

David Cole 22:05

Yeah. So I would say three things about that. The first is that in each of these critical cases and you know, to some degree surprising cases, Title VII, uh DACA and the um abortion case, the arguments made were conservative arguments. So our we've already talked about how ours is conservative. The argument that prevailed in the abortion case was an appeal to starry decisives, to sticking to precedent. That's an inherently conservative notion, right? Uh and then in the DACA case, it was um uh the the court concluded that the uh Trump administration had acted arbitrarily and capriciously uh in the reasons it gave for seeking to revoke the the DACA protections that the 700,000 young uh undocumented immigrants uh were given by uh President Obama. The notion was that the pr the government has to give some reason, some rational reason for its action. That also is a conservative argument. So, you know, in each case, a conservative argument won the day, and that's how you got a conservative, most usually Justice Roberts, but in uh in our case both Roberts and Gorsuch, to to join liberal results. The second thing I'd say is that in all three cases there's been tremendous um political uh uh uh organizing and pressure, right? Uh uh on, we've already talked about the LGBT movement, uh on DACA. I mean, the the the amount of public protest about you know about the the dreamers has really turned them into a very, very um sympathetic group. And so even the major the vast majority of Republicans think that dreamers should stay, should not be uh deported. And and I think that has an effect. It's not a direct effect, but I think it has an effect. And and on abortion, you know, there's been concerted political activity on both sides, right? Uh on the side to overturn Roe vs. Wade, but also and very much on the side to uphold Roe v. Wade. So you have conservative arguments, you have you know liberal uh movements that have have that are that exert some pressure, I think, on how the court decides these cases. Uh and then I do think you have this sort of sense that the court to be legitimate has to rise above partisan politics. If these issues had gone to a a legislature that was made up of five Republicans and four Democrats, no one doubts how they'd all come out. They would have all come out five to four with the Republicans lining up on one side and the Democrats landing up on the other side, and no one would have been surprised. And that's just how you know the legislature works. But that's not how a court should work. We we appoint judges for life, uh, they never have to run for re-election. And the the sort of the quid pro quo there is they're not supposed to be partisan. They're supposed to decide things based on law, uh, based on you know commitment to precedent, uh uh putting aside their political uh uh you know judgments in to some to as much of a degree as they can. And that's an ideal, and it's a much kind of criticized ideal, and people think you know, judges often fail to live up to it. But it's a very powerful ideal, and I think the court understands that it's it is central to their legitimacy. And so I think that operates also in the back of the minds of some of the justices, and especially Chief Justice Roberts, that you know, we can't have every controversial case come out 5-4 Republican-Democrat, or we will just you know lose our legitimacy as an institution. And I don't think he thinks, okay, I'm just gonna give one to the Democrats in this instance, but I do think it operates at a kind of, you know, at a at the margins to say, let me let me be open, let me let me keep an open mind uh on these cases. Um it's it sends the message that, you know, as he has said, we are not Trump judges and Obama judges uh and Clinton judges, we are judges.

David Myers 26:23

Yeah. And it turns out that he is the decider because he apparently has uh voted with the majority 98% of the time, and is himself uh not just the self-anointed and also officially anointed guardian of the institutional reputation of the Supreme Court, but very often the swing vote. Um he can actually take this agenda and take this public image of the court. And from what um other legal observers know, he very much um accepts that role. Is that is that your sense?

David Cole 26:57

Totally. Yeah, totally. But you know, it's interesting that when Kennedy was on the court playing that role, Roberts felt much less need to do so. And there were a couple cases, you know, the most uh significant one being uh Obamacare, where he, you know, he did play that role, but way more often Kennedy played that role. Um and then when Kennedy left, you know, and and and Kavanaugh came onto the court, who's gonna play that, you know, is anybody gonna play that role? And I think, you know, I I think there's sort of a there's kind of a um uh institutional pressure for somebody to play that role. Roberts has, I think, stepped into the breach. Now, I don't think he's gonna be as likely to side with liberals on on cases as Justice Kennedy was, but um he's more likely to do that now, I think, than he was when Kennedy was on the court.

David Myers 27:51

Yeah. So you've argued before the Supreme Court on many occasions. Um I'm wondering uh if you could just share with us what uh what it's like. Um and really at the end of the day, whether you believe that A, oral arguments matter, and B whether you, as the National Legal Director of the ACLU, can get a fair hearing.

David Cole 28:16

Well, um you know uh we won this last case, so there you go. Uh, you know, I I think I mean it's an incredible uh experience to argue before the court. I mean it's a it's I I I I think oral advocacy, appellate advocacy is just a um it's my favorite thing to do in all the things I do as a as a professional. It's because you you you you come into a forum, you've got judges who are very well prepared, uh, you know, with very smart people working for them, uh they're very smart, you know, thinking through all the hard questions in the case. You've got somebody on the other side who's gonna be pushing back, you know, on you, and and and you have to meet, you have you can't like you know finesse your way out of a hard question. You've got to answer the question. Um so it's a tremendously exciting kind of intellectual challenge, I think. And um, and this court is a you know, is really, I mean, there are a lot of very, very smart, uh, smart people on this court, and so you can get you know really great questions from any of them. Uh so you know, I think it's a uh I I I love doing it. Um uh it's you know, whether it makes a difference, you know, it's funny because you spend massive amounts of time preparing for arguments. I mean, you spend more time writing the briefs, and people think the briefs are ultimately more likely to be dispositive because that's where the judges, justices form their views. But you can finesse your way around difficult questions when you're writing, much harder when you're you know confronting a judge who says, answer the question, yes or no, you know. And uh and so you spend a tremendous amount of time preparing. And then, you know, who's to say whether it makes a difference? It's very hard to know. I people say you can definitely lose a case at oral argument, harder to win a case at oral argument. That is if you do a really bad job or you really don't have good answers to the hard questions, it can reveal the weaknesses in your case. Um uh whether you can win a case at oral argument, I you know, I don't know, you know, I don't think anybody really knows. But I do think you know that judges come into arguments uh pretty, you know, often knowing sort of where they're where they're leaning, but um but wrecking every case the court takes, virtually every case the court takes, is a hard case. They wouldn't wouldn't get up there if it wasn't a hard case. There's good arguments on both sides. And so the ability of an advocate to answer questions in a way that gives comfort to a judge who might think you're on the right side, but he's not sure, uh, I think can play a can play an important role.

David Myers 31:03

For example, like feeding them lines about textualism or sorry to type it.

David Cole 31:10

Exactly.

David Myers 31:11

Right. So David, having uh secured this really stunning triumph um uh in the case of uh LGBTQ right, um what are you what is the next horizon um in fighting for the rights of uh the discriminated or underrepresented? Um what bottom-up bottom-up efforts are underway to take a note of, like those that you identified in engines of liberty?

David Cole 31:34

Yeah. So, you know, there's still so first, I mean, well the the the the the the nice thing about this decision is because it says that discriminating against someone because they are gay or transgender is inherently sex discrimination, it basically in one and even though it was only in the context of the of Title VII, one federal statute involving employment, it basically turns every sex discrimination statute in the country, both federal sex discrimination statutes and state sex discrimination statutes, into LGBT discrimination statutes. Because, by definition, when you discriminate against someone for being LGBTQ, you are discriminating against them because they're sex. And so it has a really broad uh impact in terms of achieving formal equality for LGBT folks. Um you know, I we still don't have constitutional protection. This is statutory protection. You know, it is it is conceivable that a legislature that that you know um was anti-gay or anti-trans could uh enact its own statute that says, you know, we are expressly excluding discrimination on the basis of sexual orientation or LGBT or or uh transgender status, and that would trump this uh this reading. Um so you know, getting constitutional recognition of the impermissibility of discriminating against LGBTQ people is still on the horizon. Um but in addition, you know, you still have the battle that that you know African Americans are facing long after the courts recognized that race discrimination was impermissible and that women continue to face long after the courts recognize that discrimination on the basis of sex is impermissible, which is the challenge of achieving lived equality, um, making these rights on paper meaningful, which is a much more difficult and complicated um uh challenge. Um and then I do think in particular we have in the LGBT space the same, the the issue you you identified earlier, which is how does religious freedom um interplay with LGBT equality and and as justice course it's signaled, you know, we don't have an answer to that yet from the court.

David Myers 33:53

Right. So maybe by way of conclusion, I want to just pick up on uh one of the things you just said, um, which is very much relevant to our current moment, and ask um what role law uh legal advocates, the ACLU, have to play in this current moment and movement of protest against racial inequality? Uh what role can progressive legal advocates play in advancing the ball and pushing us beyond uh this deep structure of racism in American society?

David Cole 34:26

Well, I think you know that these these protests have um you know really put the spotlight on the criminal justice system as an engine of inequality in this country. And uh and and that's where you know the momentum is right now, that's where the focus is for reforming our criminal justice system. And and you know, and I I have long believed that. My first book was called No Equal Justice, Race and Class in the American Criminal Justice System. And uh, you know, you see some of the starkest racial disparities in our criminal justice system, and you see, you know, we have seen in our criminal justice system a willingness on the part of the of the larger community to invest in the inner city in the form of police and prosecutors and prisons, much more so than a willingness to invest in the inner city in the form of education, jobs, job training, after care, uh, and all the other uh sorts of affirmative investments that would uh lift people up. Uh instead, we police them down. Uh, and and and I think um you know that there's tremendous uh uh room for reforming and rethinking how we deal with inner city communities. And it includes um restructuring uh police departments, it includes reducing the presence of police and uh in schools and uh uh providing social service responses to people as opposed to police responses as the first response, particularly with nonviolent kinds of uh infractions and the like. But it also includes uh reducing the criminal sentences that we uh that legislatures have authorized. We have the longest sentences by far in the you know in the Western world for the same kinds of offenses. There's no uh justification for the harshness of our sentences. It includes reforming prosecutors. Uh, prosecutors have play a tremendous role in, uh have tremendous discretion in how people are charged, whether people are prosecuted, how long they go, they're sent away for by by virtue of the charging decisions they make. If you have prosecutors that are committed to reform, um you can do a lot to reduce uh incarceration, reduce police presence and the like. And so, you know, there's been a movement in many places across the country to elect progressive prosecutors. And you've seen it in San Francisco, in Dallas, in uh Philadelphia, and many other places where progressive prosecutors have won elections and have really changed the way the criminal justice system responds to poverty in the inner city. And that's what it really is. It's about poverty uh in the inner city. So the ACLU is we support those efforts. We have a smart justice program that's been in around for a decade that is committed to reducing mass incarceration and reducing racial uh disparities in the criminal justice system. Um and um and we're you know uh all in on supporting uh police reform as well.

David Myers 37:37

Well, thank you very much for a really illuminating conversation, David Cole. Uh we're delighted to have hosted you on Then and Now.

David Cole 37:47

Thanks so much for having me, David.

David Myers 37:48

Then and Now is a product of the UCLA Luskin Center for History and Policy with support from the UCLA History Department. We can make support you listen to your podcast. Thank you to our executive executive producer Maia Ferdman, and David Cole for joining us.