Key Civil Liberties Issues with David Cole

The ACLU has been the nation’s premier defender of civil liberties since its founding 100 years ago. David Cole, the ACLU’s national legal director who oversees its entire legal docket, will discuss key civil liberties issues facing the country today including two LGBTQ rights cases that he recently argued before the Supreme Court in a live taping of the Stanford Legal podcast.

This episode originally aired on SiriusXM on March 14, 2020.

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Key Civil Liberties Issues with David Cole

Key Civil Liberties Issues

2020 marks the 100th anniversary of the American Civil Liberties Union (ACLU), led by David Cole, who joins Pam Karlan and Joe Bankman on this episode of Stanford Legal. The three begin by reviewing recent Supreme Court litigation that both Cole and Karlan worked on. Karlan argued a case on sex discrimination for gay individuals, while Cole did the same but for a transgender client. The two discuss the parallels in their case, remarking that they attended each other’s practices to gain insight on potential questions they could face in the real Court.

“Congress wasn’t thinking of this issue in ’64 when they passed the act. They weren’t thinking about transgender individuals or about gay individuals in this way. Did each of you expect that to come up and be a prominent argument?” asks Bankman, remarking on the new arguments the two were making. Both Cole and Karlan mentioned this in their argument—that sex discrimination is sex discrimination.

The three transition into talking about the ACLU’s history and origins. The first legal director, Morris Ernst, helped found the organization because of a skepticism of the judicial system’s ability to achieve true justice, as “…the 20s, when ACLU was founded, the Supreme Court, the only constitutional rights the Supreme Court was recognizing were the rights of corporations to screw consumers and employers. It was the right not to have any kind of consumer protection or labor union or labor protections imposed on you by the states.” The ACLU continues this today, taking cases that may disproportionately affect minority groups around the nation, but even taking cases that are fundamental issues of rights, regardless of the viewpoint. Cole states “We are not infrequently representing people who, whose views are deeply opposed to ours but I think that’s a critical part of who we are. It’s a critical part of our legitimacy.”

The ACLU, particularly within this presidency, continues to take cases that affect the lives of millions of people around the country. Cole mentions that they are particularly concerned with reproductive freedom and the threats by President Trump to overturn Roe v. Wade. The ACLU has been involved in numerous state cases that seek to find their way to the Supreme Court, successfully preventing the progression in all the states thus far.

—Max Smith