Trial Magazine

Worse Than Nothing: The Dangerous Fallacy of Originalism

By Erwin Chemerinsky
Yale University Press
264 pp.; $28
https://yalebooks.yale.edu

In this critique, Erwin Chemerinsky, dean of the University of California, Berkeley, law school, calls the “originalist” approach to constitutional interpretation “an emperor with no clothes.” The theory only emerged in the 1970s, Chemerinsky explains, and it rests on shaky ground, because most constitutional provisions do not have an “original meaning” to rely on—especially since the Constitution is a living document that has changed over time. Instead, he posits, originalism is a red herring that cloaks itself in the guise of being neutral while generally operating to limit people’s rights and stifle advancements in equality. Ultimately, he argues, there is no such thing as a “neutral” interpretation of the Constitution because all judicial decisions involve “value choices” by the humans sitting on the bench.

Dinners With Ruth: A Memoir on the Power of Friendships

By Nina Totenberg
Simon & Schuster
320 pp.; $27.99
https://www.simonandschuster.com

In this memoir, NPR correspondent Nina Totenberg recounts her decades-long friendship with the late Ruth Bader Ginsburg, whom she describes as a loyal and funny person who was also tenacious and unwavering in her dedication to her work. Totenberg first met Ginsburg when she was working on a story about the young lawyer’s novel arguments in sex discrimination cases before the Supreme Court. Against a backdrop of pioneering women breaking barriers in their professional lives, Totenberg paints a more personal picture of the justice: They enjoyed opera together and Ginsburg officiated Totenberg’s wedding. The pair also frequently shared meals, with Saturdays being “reserved for Ruth,” Totenberg writes. The book is both a reflection of the icon that Ginsburg was, as well as a tribute to enduring friendship.

Lady Justice: Women, the Law, and the Battle to Save America

By Dahlia Lithwick
Penguin Random House
368 pp.; $29
https://www.penguinrandomhouse.com

As threats to justice and equality have endangered women, people of color, immigrants, and others since the 2016 election, female lawyers have been holding the line. Slate’s senior legal correspondent Dahlia Lithwick tells the stories of women who have stepped up to protect rights that have been under siege like never before. Lithwick links these individual stories to the broader legal world that marginalized groups live in—such as Supreme Court rulings that have had real implications for women’s careers, finances, education, and bodies. The book is a cautionary call to action, especially in the wake of the Court overturning Roe v. Wade. But the ultimate message is one of hope—and of how ordinary people can make an extraordinary difference.

Before Bostock: The Accidental LGBTQ Precedent of Price Waterhouse v. Hopkins

By Jason Pierceson
University Press of Kansas
216 pp.; $34.95
https://kansaspress.ku.edu

The Supreme Court’s ruling in Bostock v. Clayton County was a monumental step forward for LGBTQ rights—holding that Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on gender identity and sexual orientation. But before Bostock there was Price Waterhouse v. Hopkins, writes political science professor Jason Pierceson, which helped lay the groundwork nearly 30 years earlier. Even though the case was not about LGBTQ rights—it dealt with “sex stereotyping” and gender nonconformity in the workplace—it created an unexpected precedent for Bostock and other LGBTQ cases. Pierceson traces how advocates built a foundation for LGBTQ rights step by step in the lower courts and gained favorable outcomes, using Price Waterhouse as an essential building block.

At the Altar of the Appellate Gods: Arguing Before the U.S. Supreme Court

By Lisa Sarnoff Gochman
Red Lightning Books/Indiana University Press
232 pp.; $24
https://iupress.org

Few lawyers have the experience of arguing before the justices of the Supreme Court. As a deputy attorney general for New Jersey, Lisa Sarnoff Gochman worked in the office’s appellate division and was tasked with defending the constitutionality of the state’s hate crimes statute and whether a judge could increase a criminal defendant’s sentence instead of a jury. In this memoir, she details the fear and excitement of standing before a formidable bench that included the late Justices Antonin Scalia, Ruth Bader Ginsburg, and Sandra Day O’Connor—with just 20 minutes to make her case. Even though her arguments did not prevail, Sarnoff Gochman gives readers a front-row seat to what it was like to argue a case before the highest court in the land, and the emotional ups and downs of preparing for a once-in-a-lifetime opportunity.