Melissa Murray Discusses Racial and Reproductive Justice

On Nov. 30, the college hosted the third event of its Fall 2021 Point/Counterpoint Series, “Democracy and its Discontents: a Conversation with Melissa Murray.” At the event, Melissa Murray, the Frederick I. and Grace Stokes Professor of Law at the New York University (NYU) School of Law, spoke with Professor of Philosophy Nishiten Shah and James J. Grosfeld Professor of Law, Jurisprudence and Social Thought Lawrence Douglas about her emergence as a legal scholar, the racist origins of law, and questions surrounding Roe v. Wade. Murray also expressed her thoughts on the upcoming Dobbs v. Jackson's Women's Health Organization Supreme Court case scheduled for Dec. 1. The event was observed by in-person attendees in Pruyne Lecture Hall and via an online livestream.

Murray is regarded as one of the nation's preeminent constitutional scholars in matters of reproductive rights and in the legal regulation associations. In particular, her expertise is in constitutional family law, criminal law, and reproductive rights and justice. Aside from teaching these subjects at NYU, Murray also writes for a range of legal and lay publications like the Harvard Law Review, Yale Law Journal, New York Times, the Washington Post, and the Nation. Murray also serves as a legal analyst for MSNBC and is a co-host of the podcast Strict Scrutiny.

Douglas opened the event by introducing Murray. In his opening remarks, Douglas emphasized the timeliness of Murray’s visit. The following day, Douglas noted, the Supreme Court will be debating the constitutionality of a Mississippi statute that bans abortions after 15 weeks, except in cases of medical emergencies and fetal abnormalities.

After introductory remarks, Douglas asked Murray about her draw to matters of law and justice and her journey to becoming a prominent scholar of constitutional law. Murray recalled her first semesters at the University of Virginia as a history major: “I went to college intending to be a history major. In my very small town in Florida, people often asked me why would anyone want to study history, especially when the prospect of a job seemed so uncertain at the end of it. I went to college in the midst of a massive economic downturn.”

Murray continued, “ By the time I graduated in 1997, what I learned was how to exchange ideas, how to be a thoughtful listener to other people — even when they don't share your perspectives — and how to learn from each other in a way that is thoughtful, incisive, probing and respectful. and I think more than anything that is so necessary at the present moment.”

Next, Douglas turned the conversation to the racist origins of laws. Contemplating whether it is necessary to reckon with racial history for progress, Douglas questioned “why, if a law has its origins in a racist history, it is applied in a neutral fashion.”

To this, Murray drew on a variety of famous court cases including Ramos v. Louisiana and Apodaca v. Oregon to show that the laws of the United States are inextricably linked to slavery. She said, “There's just so much in our country that is intertwined with the residue of slavery and race. Unless we can figure out what it means to scrub that clean, we're going to have few laws that [don’t] carry residues of their problematic histories.”

When asked about Roe v. Wade by Shah, Murray emphasized the importance of the conservative legal movement. “The question of Roe v. Wade is the central question of the conservative legal movement. [Roe v. Wade] is the animating principle that has driven the movement forward for the past 40 years… Even if it is chipped away at, it hasn't been formally overruled… and that's the problem. That's the rub.”

Following the 50-minute conversation between Douglas, Shah, and Murray, the three took questions from audience members. The first question, posed by a student from the audience, cast light on the “catchy and attractive nature” of conservative legal actors and cast aspersions on whether or not liberal justices need to “contend with originalism and textualism.”

To this Murray tipped her hat to the conservative legal movers. “The legal movers have been very successful at marketing their movements. But, this limits the ideas of activist judges because they're bound or tethered to a text.”

Referencing her recent appearance on MSNBC, Murray said, “On air, I said something to the effect that the Constitution — when it was drafted — was understood that it could not be exhaustive. How could it be like they knew they weren't writing a legal code? The Founding Fathers were sort of painting with broad brushstrokes, for the purpose of principles that can later be extrapolated.”

Tying in pressing questions about reproductive rights, next Quinn Nelson ’25 asked “what your thoughts are about the role of the law in terms of equal opportunity versus equal outcome.” Nelson continued to say, “In terms of voting rights and reproductive rights, should the role of the lobby to ensure that everybody has equal opportunity to vote or that of the people who do vote, there's a proportionality in terms of race and gender and other factors that have previously inhibited people from voting in the past?”

To this Murray mentioned Mike Carvin, “the warrior for Arizona.” Citing his claim that there is no equal protection problem, Murray argued that the Voting Rights Act is about equal opportunities, not necessarily equal outcomes.

“Everyone has an equal opportunity to vote, but there may not necessarily be an equal opportunity to have people counted. And that's the difference between equal opportunity and sort of quality of outcome,” Murray said.

To end the night, a student from the back of the room questioned why a majority of Supreme Court justices come from Harvard or Yale Law School.

For Murray, many famous justices hail from these schools because of society’s obsession with credentials and qualifications. “We're enamored with credentials. I went to Yale because it was number one. Presidents make calculations when they're trying to determine how to get a nominee through a Senate that is very closely divided. Oftentimes, the key is to get someone with ‘unassailable credentials.’” Murray said.