Please note that this transcript has been edited for clarity.
Zachary Shemtob: [00:00:00] So first of all, thank you so much to Amy. I’m really excited to have this conversation. There’s so much to talk about. Unfortunately, we have limited time, so I’m [going to] try and make it as substantive as possible – not that this isn’t substantive – but I [want to] begin with a little about your background.
So what were some of the biggest highlights of your career before your current role as National Legal Director of the ACLU?
Cecillia Wang: I’ll try to be quick. As Amy said, I clerked on the Supreme Court in OT97, and before that clerked for Judge William Norris on the Ninth Circuit. Those were really formative experiences.
I was a federal defender in the Southern District of New York, and there’s no one single case I can talk about, but having served as a public defender has also been incredibly formative in my practice today, even though that was trial work and I now focus on the Supreme Court docket. There are so many ways in which the practice day in, day out of standing in front of courts, in front of juries has been formative.
At the ACLU, I’ve now been here 23 years total. Some of my notable cases were challenging a pattern of racial profiling by Sheriff Joe Arpaio of Maricopa County, Arizona. We had two trials in that case. Working with the Latino community in that case, which is still ongoing in the compliance phase, has been one of the true honors of my life.
And of course, in my current job, the argument in Trump versus Barbara is a standout.
Zachary Shemtob: And we may discuss that a little. But before we get there, so National Legal Director, I kind of understand it, as I’m sure some people do here in the abstract, but what do you do? What is kind of the day-to-day? What do your duties consist of?
Cecillia Wang: So, first of all, I oversee our national legal department at the ACLU. We’re rolling about 240 deep right now, about 180 lawyers in all, and I also work with hundreds more legal staff in ACLU state affiliates. We have 54 state affiliates across the country and I am primarily responsible, my day-to-day is supervising our Supreme Court docket.
So every brief that the ACLU, any of our state affiliates is involved in, that is filed in the Supreme Court of the United States passes through my office, and my eyeballs are on it, and my amazing Supreme Court paralegal, Addison Ball, is here today, also a key part of our team.
Zachary Shemtob: This is totally unfair, but how many cases is that ... It obviously changes dramatically, but can you give folks a sense of how many cases that is per term, per year?
Cecillia Wang: So I would have to say I became National Legal Director of the ACLU around the time Trump was elected for a second term, and in OT24 I said, “This is our busiest term ever.”
And OT25 topped that. So this term we had five merits cases in the court, if you count B.P.J. and Hecox as one. We filed 10 amicus briefs in argued cases at the court. I can’t remember how many cert-stage briefs we filed and we had a number of emergency docket matters as well, though that slowed down relative to the previous term.
Zachary Shemtob: How does a case [] make it to the Supreme Court? Obviously, a great deal of them do not, but what is the general process on your side as it goes through the different phases? Feel free to use the obscure case of Trump v. Barbara as an example of that.
Cecillia Wang: Well, my answer is actually pretty short. This term we were respondent in all of the cases. So in short, we won the cases. And then our opponents sought cert in the Supreme Court.
Zachary Shemtob: Putting the birthright citizenship case aside, what were some of the other major cases that the ACLU litigated this year?
Cecillia Wang: Sure. Why don’t I just tick through all of our merits cases this term.
Zachary Shemtob: Perfect.
Cecillia Wang: We were counsel along with LDF and other co-counsel in Louisiana v. Callais. Obviously a terrible loss for civil rights and minority voters in this country, and for the crown jewel of the civil rights movement, the Voting Rights Act of 1965.
We were also counsel in United States v. Hemani, which is a Second Amendment case, somewhat controversial internally and among ACLU members that we were counsel challenging – in an as applied challenge – to the federal criminal law that makes it a felony to possess a firearm if you’re an unlawful user of a controlled substance. And our client, Ali Hemani, admitted to federal law enforcement that he uses marijuana about every other day, and that he had a gun locked up safely at home that he used for self-defense or had for self-defense purposes.
Zachary Shemtob: What other organizations did the ACLU work with in that case?
Cecillia Wang: So we were co-counsel with Mr. Hemani’s original counsel below, the CLEAR Clinic at CUNY Law School, as well as a solo practitioner who had represented Mr. Hemani in the Fifth Circuit. And shortly after the ACLU joined the case, we brought in Erin Murphy of Clement & Murphy, who is one of our nation’s premier Second Amendment lawyers to join the team and argue the case.
Zachary Shemtob: And probably not always aligned with the ACLU on every issue.
Cecillia Wang: Yeah, I mean, I joked with Erin, and then I joked with Bill Brewer, who was our co-counsel when we represented the NRA in a First Amendment case last term, or two terms ago I guess, that when you see Erin Murphy teaming up with the ACLU or the NRA teaming up with the ACLU, you will get a nine-zip victory. So we should join forces more often.
Zachary Shemtob: I was joking with someone that the winning ticket is guns and drugs.
Cecillia Wang: Love it.
Zachary Shemtob: You get it on both sides. Were you surprised by, honestly, the vote in Hemani, that it went so strongly your way?
Cecillia Wang: I was not surprised personally. We were just laughing about the fact that, you know, we’re teaming up in what might be seen as an unusual alliance. But, you know, there’s a reason why you saw that team coalesce. And the reason is that as apply – at least as applied to marijuana users like our client, Ali – this law and 18 U.S.C. § 922(g)(3) is profoundly contrary to fundamental civil liberties principles, and that was our interest in the case.
And that was Erin’s interest in the case as well. Our official board policy, to say on the record, is that [District of Columbia v.] Heller notwithstanding, [New York State Rifle & Pistol Ass’n v.] Bruen notwithstanding, the Second Amendment does not actually provide for an individual right to possess firearms.
[The] Supreme Court decided that issue contrary to ACLU policy, strangely enough. But once you have an individual right to bear arms, as the Supreme Court’s interpretation of the Second Amendment, it’s very important to me personally that that right not be taken away from people in a way that’s contrary to basic notions of fairness.
And 922(g)(3), as we saw in Ali Hemani’s case, is a statute that was ripe for abuse, for discriminatory, retaliatory prosecutions. And moreover, and more fundamentally, 922(g)(3), which again makes it a felony to possess a firearm, in any way, shape, or form, even if you have it locked up at home in a safe for self-defense purposes, that right can be taken away from you, and you can be sent to prison simply because you use any controlled substance.
And that, my friends, is a categorical and irrebuttable presumption of dangerousness. And such notions underlie lots of statutes that I think are anathema to notions of due process, fundamental fairness, and underlies mandatory immigration detention, for example. And so it was really important to me that we stand up for that principle of fairness and due process, as well as that Second Amendment right that shouldn’t be taken away from you arbitrarily, in the Hemani case.
Zachary Shemtob: Thank you. Yeah. It’s funny, [you] kind of made me think of Justice Gorsuch. Especially due process and taking it away, which I know may not be always a natural ally, but certainly speaking that sort of language.
Cecillia Wang: That’s right.
Zachary Shemtob: So let’s now move to what many consider to be the biggest case of the term, birthright citizenship.
You argued that case before the Supreme Court. This was your second argument there, right?
Cecillia Wang: Only my second argument at the court, yeah.
Zachary Shemtob: Yes. So, be totally honest with me: Scale of one to 10, one being, you know, you’re getting coffee from Starbucks, not nervous at all, 10 being abject horror. Before arguing before the court, how nervous were you going in there?
Cecillia Wang: 99.
You know, look, all the lawyers I think in the crowd will understand this. I was extremely ... it was the most high-stakes and stressful task of my professional life because, you know, any case in the Supreme Court, any argument in the Supreme Court has enormous stakes and will have broad ramifications.
But this case was one where millions of Americans had a cherished pillar of American life, birthright citizenship, being called into question by the president of the United States, who was promulgating a theory of the 14th Amendment that only 15 years earlier was a fringe white nationalist project that would bubble up in state legislatures here and there, and that basically didn’t go anywhere.
And I myself am a 14th Amendment citizen. My parents had not yet naturalized when I was born in Oregon. And I can’t tell you how many people said to me going into the argument in the months I was preparing for the argument, “You know, we’re all counting on you.” “You know, thank you. Thank you very much.”
Zachary Shemtob: Very helpful.
Cecillia Wang: But I’ll just say one more thing. When the time came, and this is a part I think lawyers will understand, once you’re there at the lectern, all of that falls away, and you are just talking to these nine people. And so I’ve had that experience in every appellate argument I’ve ever done and every trial I’ve ever had high-stakes cross-examinations.
You prepare and you prepare and you’re nervous and you’re stressed out, and there are so many stakes for your clients and for other people who are interested in the outcome, and then it’s showtime.
Zachary Shemtob: And I also have to ask, what was your reaction like when you heard for sure it seemed that the president was going to attend oral argument?
Cecillia Wang: Well, Addie here was the one who was assigned to call me the night before, after the president posted on Truth Social that he intended to be at the argument. Look, it didn’t matter to me and it was very clear to me that the president had a particular purpose in attending, being the first sitting president to attend a Supreme Court argument, and it had nothing to do with me.
It had everything to do with his agenda to put the justices on the spot, and to put perhaps the solicitor general on the spot. That morning, as those of you who have argued before know, the clerk of the court and the deputy clerk, Scott Harris and Denise McNerney, come into theattorney’s lounge and say hello and wish you luck and all that.
And they told me, “Oh, you know, the president isn’t here yet, but we anticipate he is still intending to be here.” And I said, “Okay. And it must be a hassle for you, because I think there’s an enormous security apparatus that had to deploy quickly.” But I didn’t know that he was there, as I said. Once you’re up there at the lectern, you’re just focused, laser focus on the the nine people in front of you and not whoever’s behind you.
Zachary Shemtob: Were you offended when he left so early?
Cecillia Wang: I didn’t know he left early.
Zachary Shemtob: Was there anything unexpected at the argument itself? Anything from, you know, this question I really wasn’t anticipating to why is this particular justice looking at me a certain way? Anything just that going in you didn’t quite expect and while you were there you’re like, “Oh.”
Cecillia Wang: Mm, no. If anything, if there were any unexpected questions it would’ve been a failure of the preparation process. I did seven moots for this case, by the way. It’s a lot of moots.
Zachary Shemtob: Where were some of those? I’m assuming beyond the ACLU at some of the institutes?
Cecillia Wang: Yeah, these are mostly external moots. So I did the usual, the Georgetown, with Debbie Shrager’s mooting program and Howard Law School has a program as well. And then just moots that we put together. And we made sure to have cross-ideological panels for these moots.
So no, no surprises. The one thing I would say that as I was arguing the case, that kind of struck me is you’re prepared for any kind of question in the weeds. We have this amazing team at the ACLU, LDF, Asian Law Caucus, Democracy Defenders, and I was prepared for every question.
I had memorized all this information and all these amicus briefs including Professor [Martha] Jones’ amazing brief, and I had tried to drink an ocean of information. And it turned out that the argument stayed very high level, which I guess was a surprise. And I think that was very apt.
It was appropriate because this was a case – afterwards I had so many friends and strangers who said, “My immigrant parents listened to the Supreme Cour- Court argument, and they’ve never listened to a Supreme Court argument in their life. They listened to every word.” And I think we were all, [U.S. Solicitor General] John Sauer and I, and the justices, all were speaking to the American public, and maybe the world really.
Zachary Shemtob: And by more general you mean not going into kind of the details about when the amendment itself was passed or the statutory background?
Cecillia Wang: Yeah. I mean, obviously some of those details did come up, but it stayed pretty high-level in terms of the principles, the history, and the English common law. There was a lot in the weeds that I was ready to respond to that didn’t come up, at least not in my portion of the argument.
Zachary Shemtob: And obviously if you don’t feel comfortable answering, then don’t answer this one. But after you left the argument, if you were to predict how it went in terms of what the breakdown would be – and you don’t have to say which justices – did you have a sense? Were you like, “Oh, this could be 7-2, 5-4, could go either way”?
Cecillia Wang: No, I don’t like to count my chickens before they’re hatched. I don’t like to predict. We were optimistic going into the argument. I remained optimistic during and after the argument.
Zachary Shemtob: Fair enough. So the final decision, of course, as we now know quite well, it struck down Trump’s attempt to end birthright citizenship, the order.
But it ended up being a little closer than, not necessarily yourself, but I think many court watchers thought … Chief Justice Roberts wrote the majority opinion. He was joined by Justices Sotomayor, Kagan, Barrett, and Jackson.
Justice Kavanaugh was not convinced on constitutional grounds, but voted on statutory grounds, so it’s kind of 6-3, 5-4, depending on what you’re counting. And then Thomas, Alito, and Gorsuch were in dissent. Did that surprise you, one? And two, what was your reaction upon the decision coming down?
Cecillia Wang: Obviously 5-4 is viewed one way as a close call. We were very relieved that we prevailed. And one small thing about Gorsuch, of course, is that he said, you know, “Look, there... You can’t sustain a facial challenge here,” but he thinks that it – the executive order – probably is unconstitutional as to the children of undocumented immigrants who are domiciled in the United States as opposed to the temporary visitors.
So it’s kind of an interesting view that … and we were prepared for all kinds of different splits and permutations. Was I surprised? I was not surprised to see the two main dissents by Justice Thomas and Justice Alito. And we were ready, we had prepared that or thought about what if the court goes with a statutory claim only? So I guess Justice Kavanaugh’s opinion was also not a surprise. At the end of the day, a win is a win. I think it’s unfortunate that the dissenters and the government in this case were raising arguments that the United States government had made in the late 19th century as part of an anti-Chinese policy agenda. Those were the same arguments that were made, and I think that was disheartening.
Zachary Shemtob: The president then responded shortly after, by saying Congress should pass legislation to end birthright citizenship. Did that make any sense to you, given that it was decided 5-4 on constitutional grounds?
Cecillia Wang: No.
Zachary Shemtob: Is the ACLU kind of preparing itself for such a scenario, such a response?
Cecillia Wang: Everybody knows, and I’m sure the president himself knows, that he cannot try to re-implement the executive order via legislation. As you said, this is a constitutional ruling by the Supreme Court.
John Yoo said something like, “This should decide this issue for the next 100 years,” right? And so, you know, if they [want to] try to run a constitutional amendment, good luck. Americans cherish birthright citizenship, right? They know the vast majority of Americans ... this was an issue on which the president went too far for the vast majority of Americans.
Zachary Shemtob: So I’m [going to] move on from birthright citizenship. I [want to] get a sense of – we talked a little about it – but the term as a whole, and we can dive a little deeper into it. We talked about Hemani. What were the other cases that the ACLU was involved in?
Cecillia Wang: So we were late entrants into the TPS cases, Mullin v. Doe and [Trump v.] Miot.
We had litigated other TPS cases challenging the termination or initially the so-called vacatur of the extension of TPS by Secretary Mayorkas, by Secretary Noem at the beginning of the second Trump term and had had that case go up twice on the emergency docket. So we joined the team in litigating that at the Supreme Court this term.
And of course, we had the B.P.J. and Hecox cases on transgender rights and these state bans on transgender women and girls participating in school sports.
Zachary Shemtob: So overall it was an, I’d say a mixed term in terms of the merits cases themselves because you had this great victory in birthright, but then in some of the other cases, not as successful.
Cecillia Wang: That’s right. I think one of the most disheartening things about the three cases that we lost at the court this term, Louisiana v. Callais, B.P.J. and Hecox, and the TPS cases, was seeing the court turn the equal protection clause, which is meant to be the shield for politically vulnerable minorities in our country against the tyranny of the majority, to turn that shield against politically vulnerable minority groups, and in ways where the dissenters in those three cases so vividly pointed out was contrary to precedent, inconsistent with the analysis in other cases, and deeply harmful to our Reconstruction values.
I think in many ways you can see so much of the Trump administration’s second term policies as an attack on Reconstruction. To go back to birthright citizenship for one sentence, you know, everyone ... President Trump was trying to spin birthright citizenship in his executive order as a matter of immigration policy, but it was far more profound than that. It was an attack on the basic principles of Reconstruction, and we see that in Callais. It’s an attack on Reconstruction and on the second Reconstruction, meaning the Civil Rights movement, and the legislative victories that came out of the Civil Rights movement in the ‘60s. And in … the B.P.J. and Hecox cases, where the court in a majority decision that paid lip service to the humanity of our clients and transgender Americans at the same time says they don’t have the same protections against sex discrimination that the rest of us do.
And in the TPS cases, as in Trump v. Hawaii during the first Trump administration, we really saw the court willfully close its eyes to the most blatant evidence of intentional race discrimination, purporting to apply the Arlington Heights standard where having intent to discriminate on the basis of race being a motivating factor, totally misapplies that test and says, “You know, there were these other reasons that were race-neutral,” for the termination of TPS, as Justice Kagan really brilliantly called out in her dissent.
So yeah, there were profound losses this term, especially when it comes to equality.
Zachary Shemtob: So, just to go to those two cases for a little, the TPS cases, are there still a lot of battles to be fought there? Because I know that, of course, it was sweeping[] [when] they said the president doesn’t have to renew [TPS], but I know a lot of those individuals probably maybe their visa status changed or they still have certain due process rights.
So is the ACLU going to still be involved kind of on the ground in that regard?
Cecillia Wang: Absolutely. I mean, the TPS decision, I’ll say just to bring the camera back a little bit, immigrant communities in this country were profoundly disturbed by the TPS decision and many of these immigrants probably voted for Trump.
This was a case where Trump came into office saying, “I’m going after the worst of the worst. I’m going after so-called criminal aliens.” And yet, here he is going after people who are lawfully here in the United States under the auspices of a congressional program for the temporary protection of people who cannot be returned to their home countries safely.
And what that meant for not just immigrants in this country, but so many Americans, is that none of us are safe from this president. And so we come out of this loss in the TPS case with really renewed energy to pursue legislative reforms and to not just, to shore up Temporary Protected Status and other forms of lawful immigration status, but really to put our foot down and say, “Your immigration policies are abusive. They don’t comport with American values.”
And so the moral of the story here with the TPS case is, with all of our losses really, is that the Supreme Court is not [going to] have the final word on these issues. We just keep fighting, and despite the losses at the Supreme Court, we keep prevailing in lower courts. We can go to Congress, we can go to state legislatures and our local government, elected officials, to really build the country that we want to be.
Zachary Shemtob: And when you argue these cases before the court – when you have or other folks – do you find yourself slipping into originalist or textualist mode in a way that you might not have in previous courts?
And if yes – for all I know, you may be a textualist and originalist, so I don’t [want to] stereotype about the ACLU’s views – but, assuming that may not be your “go-to,” what is that like to kind of talk that language?
Cecillia Wang: Well, it is our go-to now, because you have a majority of this court that is very interested in this particular mode of interpretation. And so of course, in Hemani and Barbara our arguments were based on original public meaning. We start with the plain text always.
I think we’re good lawyers. I hope we’re good lawyers. And so of course, any lawyer worth their salt is [going to] use the modes of analysis and interpretation that are calculated to win cases. During one of my seven moots for birthright, one of my mooters, who is conservative, said “Wait a minute, this is really weird. The ACLU is arguing original public meaning, and the Trump administration’s arguing policy. Uh, something’s wrong here.” And indeed there was.
Zachary Shemtob: Whatever works. So there are a bunch of pending cases that the ACLU is involved in. [We] obviously can’t discuss them all, but first I’d like to start with one and then we can go through some others.
I saw that you were on the brief getting ready to seek review before the court in a case challenging Texas’s requirement that the Ten Commandments be displayed in every elementary and secondary public school classroom. I think this is Nathan v. Alamo Heights. Can you tell me a little about that case?
Cecillia Wang: Sure. So Texas, along with Louisiana and Arkansas, passed similar but slightly different laws recently that require the posting not only of the Ten Commandments, but the King James Version of the Ten Commandments in every public school classroom from kindergarten through public colleges and universities.
And of course, we immediately sued to enjoin that. We eventually lost in the Fifth Circuit, en banc Fifth Circuit, and so we are planning to seek cert, and we’re actually [going to] be seeking cert in two cases challenging the Texas law – in addition to Nathan, there was a follow-up case. Nathan was brought pre-enforcement, and then we brought a second case after some school districts actually implemented the law, and so we’ll be seeking cert in both of those.
Zachary Shemtob: Another unfair question. Are you hopeful?
Cecillia Wang: Yes, I think that notwithstanding the Kennedy [v. Bremerton] decision and the demise of the Lemon test, the idea that a state can mandate posting an explicitly rel– not just religious, but sectarian, religious text, I think is a bridge too far for this court.
And notwithstanding Lemon no longer being the test, I think if we look at history and tradition and if we look at a line of cases that’s specific to public schools and the particular vulnerability of children to indoctrination, that I think I am hopeful.
Zachary Shemtob: What are some other cases before the court already or major pending cases?
Cecillia Wang: So we have one case already on the merits docket for OT26. It is a case called Genalo v. Black. This is a case where, again, [we’re] bottom side respondents here, the government’s successful petition to review a Second Circuit decision that held that due process imposes limits on the government’s ability to detain people without an individualized hearing pending their deportation proceedings.
For those of you who’ve been following immigration detention at the court, this is the constitutional issue that the court did not reach in a case called Jennings v. Rodriguez, which was an ACLU case argued by my colleague– former colleague, Ahilan Arulanantham, who argued the TPS case this term.
The court in Jennings v. Rodriguez ordered supplemental briefing. The case was reargued for a second term, and they ordered supplemental briefing on the constitutional question but did not reach it. This case will reach that question. And the government, under the Trump administration, is taking the extraordinary position that there is no liberty interest in not being locked up by ICE pending your removal proceeding.
Not that, you know, there’s ... the government meets [or] can show that it’s necessary, but that there’s no liberty interest. My mind is blown. So that case is on … the merits docket for next term and will be argued in the fall. And then we have another series of immigration detention cases about a different mandatory immigration detention provision, where the Trump administration, for the first time since the advent of this statute, since Congress enacted the statute in 1996, has taken the position that undocumented immigrants who are arrested in the United States, many of whom have lived here in U.S. communities for decades, are now subject to mandatory detention under a statute that previously has only applied to people who are at the border or at a port of entry seeking admission to the United States.
So we have litigated that case in every numbered federal circuit court. Uh, there is now a 4-2 split on the statutory issue of whether the statute applies in this circumstance. And the government has petitioned out of the Sixth Circuit, and we have petitioned out of the Fifth Circuit. So we’ll see whathappens.
Zachary Shemtob: I just saw the two minutes, so I’m [going to] wrap up. This has been wonderful. What advice would you give for young lawyers, or old lawyers, who are interested in this type of litigation? I know it’s often called, the lingo is impact litigation, but in general, this kind of litigation.
Cecillia Wang: You know, there’s no better time to do this work. So the advice is do the work. I speak a lot to law students around the country and I am so inspired and energized by their enthusiasm for this work. For those of us who’ve been at this for a while, when Trump was reelected, people just … I think we, over the four years of the Biden administration, hadn’t quite recovered from the onslaught that we faced during the first Trump term, and now here he is again. And as Stephen Miller or Steve Bannon said, they came out at muzzle velocity with dozens of executive orders contrary to basic American values on day one, and we responded in kind.
The ACLU has filed 202 lawsuits challenging second-term Trump policies, so far this term, and this should be heartening – we have an 83% success rate for getting preliminary relief in those cases. And so, the advice is join us and all the other nonprofit organizations and private firm lawyers who are fighting for civil rights and civil liberties.
Zachary Shemtob: Wonderful. Well, I have plenty more questions, but we’re [going to] have to wrap it up. Thanks again.
Cecillia Wang: Thank you, Zach. This was wonderful. This was really wonderful.
