This is a transcript of the Jan. 7 edition of Working. These transcripts are lightly edited and may contain errors. For the definitive record, consult the podcast.
Jacob Brogan: This season on Working, we are talking with individuals whose jobs touch on aspects of LGBTQ life. For this final episode of the season, we spoke with Josh Block. Block is an ACLU attorney, specifically with the ACLU’s LGBT and HIV Project. He talks to us about how he came to work on that project, and leads us through the experience of actually working on one of these cases, the feelings that are associated with it, the kind of complex ways that he has to think about writing legal briefs, even what it’s like in some cases to actually argue a case.
What is your name, and what do you do?
Josh Block: I’m Josh Block, and I am a senior staff attorney at the ACLU’s LGBT and HIV Project.
Brogan: What is that project? What sort of legal action are you pursuing through the LGBT and HIV Project at the ACLU?
Block: The ACLU is an enormous organization dedicated to protecting the civil liberties and constitutional rights of people across a whole range of issues. I’m privileged to be working in a subgroup within that where we’re focused particularly on ensuring the dignity and equal treatment of people who are lesbian, gay, bisexual, transgender, or any other sexual orientation or gender identity, and in addition, people living with HIV.
Brogan: Cool. How did you end up working on that kind of area of legal activity in the first place?
Block: That’s a good question, because I definitely knew people in college or law school that had as their vision of themselves in the future being professional gays. I never really, if you asked me. ... Gosh, I was going to have to say how many years ago that was.
Brogan: You don’t have to say how many years ago.
Block: No, I’m a little bit ... that’s depressing now. But if you asked me back then whether I would be there, I would have said like, “I want to be a gay professional, not a professional gay,” where I—
Brogan: The distinction being working not just on gay issues, right?
Block: Yeah, but also feeling like you don’t want your ... having a firm distinction between your personal identity and your professional life, and not feeling like what you were bringing to the table professionally involved your sexual orientation as being a big factor. Of course, there are plenty of people who work in the movement protecting LGBT folks who don’t identify as LGBT themselves. You could be a professional gay without actually being a gay professional, it turns out.
Brogan: Professional ally, maybe?
Block: Yes. Yes. What actually happened was I always sort of hoped I’d end up at the ACLU or a similar organization, and you’re always told you never know when those spots are going to open up. It’s sort of like winning the lottery. I had been sort of monitoring the job openings at the ACLU really very closely.
Brogan: This is when you were still in law school or—
Block: Oh, no. This is after I graduated. I went to a law firm, paid off some debts. Although the law firm I chose was Jenner & Block, no relation to me, but when I was deciding where to go for my summer associate year, I was making that decision right after Lawrence v. Texas was decided. Jenner & Block was the law firm that did it. I remember interviewing with Paul Smith and Bill Hohengarten and other folks that were key parts of that team. That is a huge reason why I went to that law firm in the first place, but it’s a law firm and I wanted to do something that I found meaningful 100 percent of the time instead of just on pro bono cases.
Then it was the Bush years. There was a hiring freeze after the economy tanked. I was sort of waiting for the next job opening to come, and I was lucky enough that it was this one. I looked at the job opening, and I realized that I—simply by being a person who was interested in the world of legal LGBT issues, I actually ended up being more knowledgeable and qualified than I sort of would have thought I would be. It was like a match that just sort of fell into my lap, and I didn’t realize what a great fit it was for me until I had it. I could have ended up in the Reproductive Freedom Project just as easily, although I probably would have then ended up moving over to LGBT at some point.
Brogan: In some way, it was destiny for you—between your desires and your expertise.
Block: Destiny or dumb luck.
Brogan: Sure, sure, yeah. I assume you work today with a large team. The ACLU is a large organization. I don’t know how large the LGBT and HIV Project is, but how many folks do you work with over there?
Block: It’s a really unique organization, because we have ... there’s the national ACLU with national offices; then we also have ACLU affiliates in all 50 states. We’re really sort of privileged that when we take on a case in, for example, Virginia, it’s the national team and the team at the ACLU of Virginia working on the case with us. My colleagues at the national office in the LGBT Project—there are about, depending on how you count it, I think ... I should have come prepared with this answer. I’d say—
Brogan: It’s all right.
Block: —Maybe eight people? That includes some people that split their time between that project and a different one. Then there are people across the country that we do the cases with who are generalists, but they do these cases as part of the generalist work that they do.
Brogan: Yeah. What is your role on the team? This is where I show my ignorance, but what does an ACLU lawyer actually do on a day-to-day basis?
Block: What we do is we have an impact litigation model, which is different than many other organizations that have a direct services model. That has some pros and some really, really, really big drawbacks. The big drawbacks are that people’s lives in a lot of situations don’t fit into what your perfect legal impact court case—
Brogan: Can you say what you mean by “impact court case”?
Block: You know, Edie Windsor, for example, I was on the team at the Supreme Court that worked on her case. She was the plaintiff that took down the Defense of Marriage Act. You couldn’t imagine a more sort of capable and inspiring spokesperson than her, and you couldn’t imagine, in addition, of someone more suited to speak to even people who have no other familiarity with LGBT folks beforehand. I think a lot of the iconic court cases that you think of often try to tell this story that is going to be most compelling for the court and for the public at large in understanding this issue, understanding why it’s important, understanding the people who are affected by it.
That also means that you are picking cases and clients that present that issue the most cleanly. There aren’t other messy factual questions or things that get in the way of the clean legal story. Not everyone’s lives fit into that, and sometimes the people who need help the most are the people who we have the most difficulty framing into that sort of model. If you say, “I’m going to get you relief,” even if in the best-case scenario you say, “Oh, this is a great issue to take to the Supreme Court,” maybe in three or four years, you’ll have your rights vindicated. If someone is getting evicted from their apartment, that’s in a month. You’re not always in a good position to help them.
I think there is an element that we try to be very self-conscious of, which is that we’re just one small piece of protecting people’s dignity and equality and basic welfare, and that there’s a much broader network of people in legal services organizations, public defenders, people across the board, that are much more connected on a day-to-day basis with the community that they’re serving. That’s something that I unfortunately don’t get to experience as much of. I only get to come in if it looks like we get a request for help or we hear of a situation from someone who would potentially be a plaintiff that would establish a broad legal precedent or tell a broad story that reaches a whole range of people. It’s rare for someone to fall into that role.
Brogan: If I can paraphrase, impact is literally about thinking about the larger legal impact that a case might have down the road?
Brogan: Is that—
Block: Yeah. It’s the model, which again has its weaknesses, but the model is finding cases that establish big precedents that then change the law and have a far-reaching effect on people’s lives. Taking down DOMA; establishing a national freedom to marry; establishing that civil rights laws that protect against sex discrimination include protections for LGBT folks, including Gavin Grimm; striking down President Trump’s ban on trans people being allowed to serve in the military. I think that winning Windsor, winning Obergefell, establishing those rights actually do have an incredible ripple effect in the daily lives of people. At least that’s the plan or the hope.
Brogan: It does certainly seem to be true here. Hopefully we can talk more about those cases in a minute, but not every day is a day, I assume, where you feel that you’re shaping world historical, or at least national, experience and life, and changing the law. Surely, there must be a certain amount of your time that’s just spent doing regular office stuff that we all do, right? Or maybe not?
Block: Nope. No, no, no. I was encouraged to establish a Twitter presence a couple of years ago, and it’s been the worst thing that has ever, ever happened to me.
Brogan: You could probably say that about Twitter itself in some ways for all of this.
Block: Yeah. No, it’s really awful. I would say a huge chunk of time might be due to procrastination, trying to get inspired to write something, get inspired to return the 50 emails or phone calls that pile up, writing budget reports or things like that. There’s plenty of just ... it’s an office job, right? If you want to know what it’s like to be an attorney at a national legal organization, I would say a huge percentage of the job is just sitting at an office and typing on your computer or talking on the phone. We don’t really get to be out there that much, unless we are actually there on the ground meeting with clients or taking depositions or being in court.
Brogan: Yeah, I do wonder. What’s the office environment like at the ACLU, though? Is it buzzing with energy of people doing this important work?
Block: I’d say, it depends. There has been known to be energetic buzzing at times and especially ... but, again, with that, it’s often, “Oh, this happened in the news. We got to get this thing filed within the next 24 hours,” or, “Can you believe this decision that just came down,” and everyone reading it and trying to figure out what it means, and reading out the best parts of it to each other. There’s those types of moments, but if it’s a matter of working on writing the perfect legal brief for such-and-such Court of Appeals, that part is not that different from a law firm or a government office. Writing is a solitary exercise. There’s a lot of sitting at desks.
Brogan: Yeah. As someone whose entire knowledge of the legal profession comes from John Grisham movies, not even the books, probably, but as someone who, like me, is largely ignorant of the way that the law functions and the way that attorneys like you function, what does that process of writing a brief entail? It sounds like that would be an important part of what you do. What are you doing when you’re writing a brief?
Block: In many cases, we are working in areas where we are bringing similar cases in different courts, all on a particular issue. One of the big issues that we’re fighting now, even increasingly now that we don’t have to spend all our time fighting the fifth Marriage Ban that the state has enacted, is to make sure that things like Title VII, which is the statute that protects people from employment discrimination on the basis of sex, protects LGBT folks. We keep track of all the cases on that.
We’ve written briefs on that subject many times by now. We’re not really starting from scratch every time we have a new case on that topic, but a lot of the work is still not just updating the legal stuff, but you’ve got to give life to it with your clients. The goal is that a judge should want to rule for you, or the judge should think you’re right just by reading the statement of facts before even getting to what the law is. You should be able to tell a story about what happened and why it’s wrong and why it’s illegal before you even get to talking about the law, or else you’ve got to explain why it matters and explain why it’s important that these legal principles are applied a particular way. That’s different every time you do it, right?
Block: Your clients are different every time, and how you talk about stuff gets shaped by whom you’re representing and what they’re experiencing.
Brogan: Some of the job is storytelling, in that sense.
Block: Yeah. I was an English major. I think there are plenty of English majors that end up being lawyers. There’s actually a whole big field on narratology and law and shaping legal stories, but I think it is true that you are trying to tie together this legal principle and this person’s life. It’s a very exciting thing to do, and it’s one of the ... I think going back to what we talked about on the impact litigation, I think that’s the model, right? You have to fit the two together.
Brogan: Are you also thinking about your audience? Do you write things with particular judges, particular courts, in mind, thinking about how they, these specific individuals, have responded to things in the past, how they might respond in the future?
Block: Yeah, well, we try to strategically bring cases in front of particular … In jurisdictions to build the law a particular way. Obviously, you’re writing with knowing that the reader is going to be a judge and not yourself. At the same time—and I think this is really, really important—you also have an obligation to be true to the peoples whose stories you’re telling. I didn’t feel this sort of moral sense of responsibility as acutely when I was doing stuff like recognition of relationships of LGBT folks, because being gay myself, I didn’t feel as much of a gap between me and the stories we were telling that I felt as ... obviously there’s a gap between me and other people, but it’s sort of I felt like a little more closely within the same community.
When I’m doing cases on behalf of trans clients, which now a vast majority of my work right now is on that, I do constantly feel a sense of moral and ethical responsibility to be telling their story on their terms. It’s important that you don’t feel like, “Oh, well, I’m not going to ... I’m worried about how a judge would react to something, and so I’m not going to talk about it.” I think there used to be a long time where people were nervous in how much ... for example, I think a huge issue in so many cases increasingly is dispelling these myths about what biological sex is and what people’s bodies look like, and what happens in locker rooms when people get dressed and undressed. I think that there’s a time when people felt like, “Oh, we want to just avoid talking about that, because it will make the judges uncomfortable.”
I don’t think that’s a good strategy anymore, but I think even more important, I think that you’ve got to be really careful when you’re trying to make a decision about how someone else’s life is going to be represented, and how someone else’s story is told. It’s just so important that the person in the driver’s seat is the client and the client’s story, and that you are not trying to impose a different story on the client’s life. I feel like I’m talking in broad abstracts, but I think that on the issue of advocating for the rights of trans folks, there’s a huge need to have more trans attorneys in positions like mine being able to tell these stories on behalf of other trans people. I think I have to be aware that I am telling someone else’s story and not my own when I’m doing this.
Brogan: There’s a kind of foundational justice to that, to telling someone’s story rightly and fully as you’re trying to get justice for them, I assume?
Block: Yeah, yeah. Well, it’s funny. If you look at briefs that were filed even five years ago, you see some briefs where, talking about “Mrs. X, Mrs. So-and-So works somewhere, blah blah blah,” and right away having a footnote over the pronoun and saying something like, “We refer to Mrs. X with female pronouns because that is her gender identity. Here are some other cases where courts refer to someone by the right pronouns,” almost immediately explaining and apologizing for it. I was working on a case where that sort of template came up, and it just felt so jarring to see it there. We’re way past that, the idea that you would have to sort of explain and clear your throat and apologize for just describing someone as who they are. It’s amazing that we are objectively past that. I don’t think any judge blinks an eye at that, or if you have a judge that blinks an eye at that, you have bigger problems.
Brogan: Sure. Maybe we can actually get specific here. We talked about how you would represent a case, but we haven’t really talked about, exactly about, how a case lands on your desk in the first place. Can you tell us about something that you worked on that became really important to you—whether it’s something you’re on now or something you did recently—how it arrived in your professional world in the first place?
Block: Yeah, sure. I have two examples that come to mind. I guess the first one I’ll talk about, Gavin Grimm. I’m the lead attorney on that case. Gavin is, he’s now 18, but at the time I met him, he was 15 years old. He was living—well, still lives—in Gloucester, Virginia, which is a Virginia area that’s close to the shore. At the time, he was a 15-year-old boy who was trans. Before I met him, there was local news coverage of him up in the middle of a school board meeting, sort of defending his right to be able to use the restroom. We first heard about it through ... I think his family reached out to us, both at the Virginia affiliate and at the national office, for help.
Brogan: What were they looking for help with at that point?
Block: It was an interesting series of events. What happened was he had been using the restroom. Some adults in the community complained, and then there were two school board meetings where basically he was the topic of discussion. He showed up at the first school board meeting, made the most eloquent speech I’ve ever heard, and then a decision was postponed until the second school board meeting, about a month later. In between those two meetings is when he contacted us.
Brogan: Is it typical that families, or the potential clients, would reach out to the ACLU directly?
Block: Yeah. Oh, yeah. I would say a huge, huge, huge percentage of cases we get are just through intakes of people who need help. Maybe they’ve heard of us through other cases. Maybe they’ve heard of us through legal brochures or Know Your Rights materials. Maybe someone said, “Oh, you should talk to the ACLU about this.” I would say that’s a huge way that we hear about cases, is people coming to us for help. In Gavin’s case, this is an issue that I think we’d all been very focused on. We’d all been very focused on helping precedent continue to evolve. It was sort of like a bolt of lightning to have a situation where what happened to Gavin was so egregious in a way that was tailor-made for a legal case at the time.
For example, here are a couple of reasons: first, he had been using the restroom for seven weeks with nothing happening, and then they decided to kick him out. With those cases, you have to—a huge part of the hurdle was dispelling judges’ fear that the sky would fall if you let boys who were transgender use the same restrooms as other boys. Here you had living proof. It had happened. There wasn’t a problem. They passed a policy whose sole purpose was to kick him out of the bathroom. Can you imagine? You’re a kid, and not only is this an issue where your administrators are hostile to you, but your entire school board decides to pass a policy solely because of you and in reaction to you using the bathroom.
It was also a situation where the school board had stepped in and overruled its own principal and superintendent. Everyone on the ground didn’t think this was necessary, and then you had the school board stepping in. Those are amazing types of facts for starkly presenting an issue. Sometimes you’re hearing someone, if someone’s describing a potential intake to you, you think, “Oh, that’s great. I mean, that’s terrible, that’s really, really terrible, but that’s great for the case.”
Then from then on, we talked with Gavin about what his options were, talked about all the various steps we think we would go through, where we expected the school would then sort of back down. At each step of the way, I have to say I was really surprised at the intransigence of this particular school board, and I still am. We’re still litigating against them, but I’m smiling right now because I was thinking about what I was saying a couple of minutes ago about, “Oh, the narratology and storytelling.” I would say that 95 percent of my emotions was just sheer rage at the way that he was being treated and complete indignation, indignation at what the school was doing, indignation about the legal arguments that it was making.
On one hand, we’re separated from the community that we serve in that we’re in an office building writing legal briefs. On the other hand, we are representing real people, and you sort of get ... every single thing that happens to your client in the course of the case, you feel it. You feel a fraction of it, nothing like what the client does, but, yeah, there’s nothing abstract about that at all. It’s like, “I can’t believe the outrageous thing that they just wrote and I can’t wait to write a response showing how outrageous it is.” A lot of it’s adrenaline, and that part is fun.
Brogan: Does that feeling of righteousness, maybe a bit of anger, affect what it is like to do this job on a day-to-day basis, or is that just an occasional thing that comes and goes?
Block: I think it affects just being a lawyer, so I think that if you’re just a lawyer in civil discovery representing one business against another, you’re going to have close to that same level ... I think most of civil discovery is lawyers writing nasty letters to each other and having hostile phone calls. The whole system is adversarial. That’s the word for it. I think that I knew that no matter what I did, I would end up feeling personally invested in it. I didn’t want to feel personally invested in something that wasn’t worth feeling personally invested in. I think that’s a huge thing that drove me to doing this type of work, where it’s like who cares how Article 3.4 of this contract of asset purchasing is interpreted?
Brogan: Not me.
Block: Well …
Brogan: Maybe I should, but—
Block: If you were on the case, you’d be like, “It is outrageous that they are saying that ‘including’ is being interpreted that way, because there’s no comma there.” You would get in the weeds of it still, but it’s not worth giving your life and energy onto that.
Brogan: At least not to you.
Brogan: Yeah. One thing that it seems like is especially interesting, with regard to the Gavin Grimm case, is that it’s not like you’re just suddenly stepping in to defend something for the Supreme Court. You were seeing this young man through a variety of stages of the legal process that shaped his case, right?
Block: Yeah, I got to see him. I did get to see him grow up or turn from a teenage boy into a young man. I am every day just in complete awe of him. I was in complete awe of him as a 15-year-old, and every time I’m with him, I’m just amazed. I don’t know how I got so lucky. I don’t know how we all got so lucky that he is who he is. It’s been amazing to see him grow. It’s been an emotional roller coaster, right? We lost at the District Court. You win at the Court of Appeals. Then the Supreme Court comes in and issues an emergency stay over the summer... Again, to have the Supreme Court issue an emergency order to stop you from using the bathroom is just ... I really will never get over that, what happened.
Brogan: Crazy, yeah.
Block: Then the case is at the Supreme Court. Shortly after the Supreme Court took the case, the election in 2016 happened. To everyone I saw, I was like, “We might all be blown up within the next four years, but goddamn it, I want Gavin to be able to use the boys’ restroom before we’re all blown up.” It kills me, it kills me, that even once, we’re going to win it. We are going to win the case, and it just kills me that they were able to keep him out of the restroom up through his graduation. I still can’t get over that.
By the time Gavin was a senior, he had a birth certificate reflecting that he’s male. If you look at the ... I’m sure people remember the North Carolina HB 2 law that was so terrible and still lives on in a different form, but that was a law that required people to use restrooms that matched their birth certificates. They went even beyond that. There was no, no reason for it, except I don’t know, stubbornness and cruelty, and I can’t get over it. We’ll have vindication after the fact, but it’s still amazing to think back on.
Brogan: Let’s talk about an important part of that long process that you’ve been involved in there, which is the time that you spend in court, or possibly the time you spend preparing for court. How much of that, whether it’s the Gavin Grimm case or others that you’re working on, how much of your time is involved in actual court-related activities?
Block: A really small amount. When you talk about court-related activities, there are different types. There’s arguing motions, where you’re up in front of the judge saying what the law is. Some people really dislike that. I really like it, especially when it’s not a motion about whether some piece of evidence comes in, but just the motion on ... it’s called a “dispositive motion,” like, is this a valid legal claim or not? Does this person win or not? What’s the appeal? You’re just having a conversation with the judge about the case and the law. There’s a ton of adrenaline there. You lose sleep beforehand. You spend a week beforehand being like ... you used to stand out as someone on the street just muttering to yourself, that used to be conspicuous. Now they think that you’re just talking on a Bluetooth headset.
Brogan: You’re rehearsing to yourself. You’re practicing what you’re going to argue and how you’re going to argue it.
Block: Yes, right. At least for me, talking to yourself in the shower all the time, thinking, “Oh, I would phrase it this way. I’ll do this.” That is a lot of mental buildup. Then you’re there and you have the argument. It either went terribly or it went great. Then there’s a big adrenaline drop after that. That’s a really small fraction of what you get to do.
There’s also depositions, which is where you’re not in court, but you are in an office conference room across the table from a witness. You are asking questions, and the witness is answering. There’s someone at the edge of the table typing everything that you’re saying. That’s very interesting too, and it’s often actually a time where you are across the table from the person you’re suing. You’re across the table from the person that fired your client or said that they couldn’t cancel their wedding reception after they found out that your clients were gay. You’re there. You’re asking questions to the witness on the other side, and they’re answering it.
That also is very interesting, especially because your job ... people always say that your job as a witness at a deposition isn’t to volunteer information. If someone asks you, “Do you know what time it is,” you say, “Yes.” You don’t go one step more and say, “It’s 2:25.” It’s an interesting process. You’re finding out information for the first time, so that’s all very interesting and tiring. I’d say all that is maybe about, on a typical year, I would say that is maybe 15 to 20 percent of what you’re doing. There could be a year where you’re just on a case that has a ton of depositions, and that’s just where you spend a couple months. I would say that’s more rare, and in part because we are trying to pick cases where there aren’t really a lot of factual disputes, because if it’s a factual dispute, then the case can just sort of go away on, “Was this person really fired? Did this person really fire someone because he was gay, or did they fire this person because of all these other things in their employment record?” That’s the question.
Brogan: You’re looking for a boss who says, “Hell, yeah, I fired him because he was gay,” so that you can test whether that itself is OK, for example.
Brogan: I mean, in this hypothetical.
Block: Yeah, yeah. We have the fortune or misfortune of still living in a time where people say that, right?
Brogan: Sure. I would say misfortune, but I’m glad you’re working to change it.
Block: No, no, but again, that’s so terrible. Again, that’s great, that’s terrible.
Brogan: Right, right, right.
Block: No, but it is actually like a difference in terms of, well, I don’t know. I have a spiel. I have a little speech about this where, as a formal matter, equality for LGBT folks is so far behind that all the allegedly great rulings are really just trying to catch LGBT folks up to getting the same formal equality as other people. Then we’ll end up being in the same trenches as everyone else in fighting entrenched, institutionalized patterns of discrimination that are less visible. I feel like, since the summer of 2016, the idea that there are all sorts of discrimination that I once thought you had to do more work to unearth, in that people were at least self-conscious enough to not be as explicit about it, I thought we were at a place where openly racist and anti-Semitic and misogynistic things were not said, not just by the president, but also by all of their private and public actors. I think we’re not quite as far along in that as I would have hoped.
Brogan: Yeah, it’s a scary moment in that way, but an exciting one for people doing work of the kind that you are in that it’s a moment when it’s clear what a difference we have to make.
Block: Yeah. No, I’m depressed about it, but we still tend to get more cases where someone’s like, “You’re fired because you’re gay,” or “I’m not going to give you a cake. I’m not going to bake the same cake for you that I bake for everyone else, because you’re gay,” or “I am not going to give your spouse health insurance, because that would force me to recognize the legitimacy of your marriage,” or “I have a religious objection to the simple fact that you exist as a transgender person, and me having to interact with you without telling you that you are contrary to what I think God’s vision should be is a burden on my religious beliefs that you shouldn’t exist.” Those are fact patterns that we get. We’re still a long way until people have to cloak that more subtly.
Brogan: You talked about drawing on that outrage, anger, that frustration, but you also say that it’s a depressing moment. That makes sense. It must be tough sometimes in your job to just deal with the specificity, the boldness, of bigotry so often.
Block: It is. You don’t get to sort of tune ... this is the side effect of working on issues you care about, that there isn’t a separation between work and the rest of life, so you can’t just tune out the news and whatever terrible thing Jeff Sessions has done. If it doesn’t directly impact your work, it directly impacts the work of your friend right down the hall. You sort of can’t escape all the bad things that the administration is doing on a variety of fronts, whether it’s holding undocumented teenage girls prisoner so they can’t have an abortion, or whether it’s rounding up people who have been living in this country for decades. That’s hard, and I think that we have ...
Legal rights for LGBT folks had several low points, but the broad arc over the past 20 years has been optimism with Justice Kennedy providing a fifth vote for a Supreme Court majority and a feeling that the future will be better, not worse, in terms of where the law is going. That hasn’t been the case for colleagues working on other issues. I think that sort of living with what colleagues in the Reproductive Freedom Project have been living with for decades and decades, of feeling that every day is just trying to fight a rearguard action, but for the first time, we’re sort of looking at another 5 or 10 years where the outlook of where the Supreme Court will be at least is likely to get worse with time, not better with time. That’s just a reality that we’re all adjusting to.
Brogan: Can we talk a little about the Supreme Court? You’ve argued cases before the Supreme Court, yeah?
Block: No, so I haven’t. I feel like I did with Gavin’s. I’ve been on the team writing the legal briefs on many cases and helping prepare moots, which is a really exciting experience, but I haven’t been the person up there. It’s funny. I feel like going through the process of trying to get ready in Gavin’s case, I almost feel like part of me feels like, “Ah, no big deal. I’ve already done it,” even though I haven’t, actually. That’s the case where we were up at the Supreme Court, but the lower court had ruled for us, saying that we were right. Gavin’s rights were violated because of a guidance document that the Obama administration had issued that the court was deferring to as a reasonable interpretation of the law. A few weeks before our argument was supposed to happen, the government rescinded that guidance document. There are news reports saying that it was a guidance department from the Department of Education, which is run by Betsy DeVos, but that Jeff Sessions, his first act was to force her to rescind the document. She didn’t want to, which is amazing, but it went all the way up—
Brogan: Surprising too, perhaps.
Block: Yeah, yeah. You are in a bad place when Betsy DeVos is the person in the conversation that is ostensibly protecting your civil rights. That’s not a good terrain to be fighting on. Apparently, according to the news reports, it went up to Trump, and Trump said, “Do what Jeff Sessions wants you to do or resign.” By pulling that document, it kicked the case out of the Supreme Court. The Supreme Court then sent the case back down to the lower courts saying, “OK, now that that document isn’t there, decide who’s right without relying on that document.” It’s not a loss. It just sort of kicks the legs out from under the procedural posture that got us up there. Now we’re back in the lower courts.
Brogan: Yeah. That’s an ongoing case, but in others that you’ve been involved with, even if you didn’t argue before the Supreme Court, you’ve been responsible for or connected with some cases that led to huge historical decisions in the United States. I’m thinking especially of Obergefell. What does that feel like to be part of the team that is making that kind of difference?
Block: It feels good. Well, it feels good and it feels terrible, because you feel like there is a connection between what you are doing and what the ultimate outcome might be, right? Oh, if we use this word instead of that word, that might be what makes the paragraph just persuasive enough to have five Supreme Court justices rule in your favor. There’s a feeling of efficacy in that you are useful, but at the same time, there’s a feeling of, it can be relaxing to feel like, “Oh, I am not personally involved in what’s going to happen. My choice about whether there’s a comma here or a comma there won’t have any effect on whether there’ll be marriage equality for the entire country or not.”
I’m thinking the most recent Supreme Court case our project has had has been Masterpiece Cakeshop, which is the baker that wouldn’t bake the same cake he would bake for anyone else, just because it was a same-sex couple that was getting married. That’s an issue. I’ve worked on similar-type cases, and it’s an issue I care about to a huge degree, but I wasn’t on the legal team at the Supreme Court on this case. I have to say, it was much more enjoyable than actually being on the team, just because it feels like everything is heightened. Your sense of responsibility is heightened. Your sense of anxiety is heightened. Everything’s turned up to 11, the good and the bad.
Brogan: Thank you so much for joining us today. This was fascinating. I learned so much.
Block: Thanks. I had a great time.
*Correction, March 2, 2018: Due to a production error, the photo originally misidentified Josh Block. It has since been replaced.