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Brian Lehrer: Brian Lehrerr on WNYC. We've been celebrating Women's History Month here on the Brian Lehrer Show by highlighting women working in what are traditionally seen as male professions. Last week, we covered women in what we call the trades. Before that, we heard from women working in tech. Today, we will add to this with a discussion centering women in the field of constitutional law. Of course, the Constitution was written by a group of men. We often refer to them as the founding fathers. They had a specific vision of the type of person who would even be considered a citizen of this country or had the right to vote.

Eventually, women got the right to vote, and a hundred years ago, just after women got the right to vote, a group of women drafted and introduced the Equal Rights Amendment. Well, today, the ERA remains unratified, of course, although lawmakers are currently drumming up support for the amendment as women and members of the LGBTQ community face growing discrimination and threats to their rights.

With us now on two tracks in this last segment of the show today to talk about the state of the ERA 100 years after its initial introduction, and also to talk about judges and lawyers who interpret the Constitution and also happen to be women is Elizabeth Wydra, president of the Constitutional Accountability Center. Elizabeth, hi, welcome back to WNYC. Good to have you Again.

Elizabeth Wydra: Thank you so much. Always good to talk to you.

Brian Lehrer: Listeners, we want your voice. If you are a woman working in constitutional law, or because that might be a needle in a haystack, any other form of law for that matter, why did you decide to become a lawyer and what is it like to be a woman practicing law in 2023? Do you feel that there are still glass ceilings, barriers to be taken seriously? Do you read the Constitution?

If you are in constitutional law, per se, if you're a lawyer or a judge or retired woman judge, may be having time at this time of day to listen, do you think you read the Constitution differently at all based on gender? 212-433-WNYC. Women Lawyers, 212-433-9692. Elizabeth, the Constitution was written entirely by men, as I mentioned in the intro. Do you see that influencing the language of the document at all beyond the fact that women were not included as voters?

Elizabeth Wydra: Absolutely. If you think about the way in which women might have written the Constitution differently, obviously, thinking about who is included in democracy, who gets to serve on juries, who gets to vote and be voted for? Also, I just want to make sure that we're not defaulting to white women, because certainly if we had the voices of Black women, Indigenous women included in the drafting of the Constitution, a lot of the original sins of our Constitution related to the institution of slavery or the treatment of native Americans, I think, would not have been included in that language.

We also probably would've had protections against equality- and liberty-limiting state laws included from the beginning, instead of having to wait until after the Civil War to have those things amended into the Constitution. Really, that second founding after the Civil War is where we really start to see equality, liberty, equal citizenship in the words of the Constitution. The ideals of the Declaration didn't really get written into the Constitution until after the Civil War, and after generations of activists and abolitionists amended the Constitution to make it more in line with those inclusive, equitable ideals of the Declaration of Independence.

Brian Lehrer: Are women mentioned at all in the Constitution explicitly?

Elizabeth Wydra: That's an interesting question. The word male doesn't appear in the Constitution until the 14th Amendment. Even when we talk about the 19th Amendment, which obviously expanded the right to vote to women, it talks about how the right to vote shall not be discriminated against on the basis of sex. Also, the Equal Rights Amendment also does not specifically mention the rights of women. It says that equality of rights under the law shall not be denied or abridged on account of sex. I think that one thing about the language of the Constitution, and I thought you asked a really great question in your request to the listeners to call in, does being a woman make you read the Constitution differently?

Obviously, I think the law is the law, but one thing that I will say about that is that those of us who were excluded from many of the promises of the founding, whether it's people of color, women of all colors, we are keenly aware of the Constitution as an amended document and an amendable document, because we had to write ourselves into the story of our nation's legal charter.

We had to ensure that we staked our claim as 'we the people' in a way that I think others are not always so aware that we have this arc of constitutional progress because of the amendments to the Constitution, because of these generations of activists who said, "We are part of 'we the people', and we are going to write ourselves into the United States Constitution, and in the process, push our country further along this arc of progress."

Brian Lehrer: Let's take a phone call. I think we have Judith in Fairfield County with a little Women's History Month history from her family that relates to women in the law. Judith, you are, WNYC. Oh, we don't have her line. There we go. Judith, you're on WNYC. Hi, there.

Judith: Hi. Big fan of yours. Just a quick thing on my mom who I really admire. She was a single mom of five, a college professor, and at 40 decided to go to law school, one of the first women at Willamette Law School in Oregon. Then, we moved to Wyoming. The first thing she did was interview with a very famous Wyoming defense lawyer. After interviewing with him, he said, "Nice bust." His partner apologized. My mom quickly came back and said something like, "I found that men that talk big, don't perform well."

That was shocking. Then, my last story was as soon as the Supreme Court ruled that lawyers could advertise, mom was the first in her county in Wyoming to advertise. She wanted to let people know there was a new lawyer in town, a woman lawyer in town, and she received so much flack from men lawyers saying, "That makes us just like car mechanics or something." She prevailed and the local newspaper just ran this story like the 40 years later thing. That's my story, proud of my mom.

Brian Lehrer: Did she ever reflect to you on progress over the years?

Judith: She did and she really admired people like-- was it Sandra Day O'Connor?

Brian Lehrer: Yes, was the first woman Supreme Court Justice.

Judith: Yes, she really relished watching women succeed.

Brian Lehrer: Thank you, Judith, thank you very much for that personal as well as national history. Rachel in Manhattan, you're on WNYC. Hi, Rachel.

Rachel: Hi. Huge fan of the show. I am a public defender in Manhattan. Definitely constitutionally adjacent. I would call myself a constitutional lawyer. My job is in the Constitution. I love my job, but it definitely comes with challenges, especially being a young-ish woman in this profession. I feel as though we have to go the extra mile to be taken seriously by clients and judges alike, which is a tale as old as time. As for the Constitution itself, it's interesting I think of it as a shield through which I protect my clients. That's the whole point.

Also, it's so deeply flawed. One of your earlier callers said something that I was very much thinking that the constitution wasn't created with me or my clients in mind. My clients are largely Black and brown indigent individuals in Manhattan. The Constitution was not created with them in mind. I want to use it to help them and protect them against the behemoth of the government and the laws, many of which are quite draconian against my clients, but also I need it to change because it's not doing a good enough job protecting them.

Brian Lehrer: Rachel, thank you very much. Elizabeth. You want to comment on either of those callers and maybe even tell a little bit of your own story, why you became a woman in constitutional law?

Elizabeth Wydra: Yes, absolutely. I think the first caller's mention about Sandra Day O'Connor, the first woman Supreme Court Justice. I remember when I was in high school learning about Justice Ruth Bader Ginsburg, the second woman on the Supreme Court. Shout out to my American history teacher in high school, Mrs. Mulheron, who really did a great job, I think, of teaching us the ways in which women advocates, which Justice Ginsburg was a lawyer making these arguments to the Supreme Court about equality before she became a justice on the bench, writing the opinions enforcing equality.

That definitely was something that was inspiring to me. I've always been inspired by the promises of the Constitution and been challenged to try to make them more real for all of us in this country in my daily work. I feel extremely blessed to be a constitutional lawyer. I love my work, I love my colleagues and I love the progress that I've been able to witness just in my career as a Supreme Court lawyer who specializes in constitutional law.

When I used to meet people for the first time, there was a special section of the Supreme Court that is for members of the Supreme Court Bar. It was actually pretty easy, I would sort of joke, but it wasn't really a joke. I'm 'the lady', [laughs] because there wouldn't be that many of us. Then, I'd be 'blonde lady' because there were just-- Then, there were a few more.

Now, we have women who are represented on the bench right now. We have four women on the Supreme Court. We have had six women Supreme Court Justices in total. We have stellar Supreme Court advocates, including our nation's Solicitor General, Elizabeth Prelogar, who just gives tour to force arguments time after time in the Supreme Court. That definitely has been a change even just in my two decades being a Supreme Court lawyer.

That is really great to see. I hope that it really inspires the young women out there today. Seeing Justice Ketanji Brown Jackson brilliantly talk about the Constitution and legal statutes. To be inspired by that and to be inspired to see themselves in the constitutional story and know that it's a dynamic one that they themselves can shape.

Brian Lehrer: To the Equal Rights Amendment, which this is the 100th anniversary of, I believe it was introduced in every session of Congress from 1923 to 1972. Here's a clip from the 1970s, early '70s I believe, of Gloria Steinem on the Equal Rights Amendment from a newsreel of that era.

Gloria Steinem: After two centuries of a constitution written by, for and about white males, with people of color and women in various conditions of servitude and childlike status and inequality, the majority of women, and men and white men too, are finally rising up and saying, women of all races are citizens.

Brian Lehrer: Elizabeth, in our last 30 seconds, with all the anti-discrimination laws that are in place now, what additionally would the ERA provide?

Elizabeth Wydra: I think as we've seen with the overturning of Roe versus Wade and the Supreme Court, gender equality is very much at risk, whether it's reproductive justice issues, pay gap, violence against women, sexual harassment, there are a lot of issues where we still have so far to go. While I think the existing Constitution and great laws like the Civil Rights Act could be used to protect those rights, the fact is that they're not to a degree that is untenable.

The ERA, I think, would make a strong statement that women and people of all genders are equal. They have equal citizenship status, and they're deserving of equal dignity, rights, and liberty. That's important. That's important for our country. It's important for the individuals who are threatened every day by violence, by inequality.

Brian Lehrer: Elizabeth Wydra, president of the Constitutional Accountability Center, thanks so much for joining us.

Elizabeth Wydra: Thank you so much for having me, for having this great discussion.

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