President Trump’s attacks on the Smithsonian Museum for being too “woke” in its exhibits are part of a broader effort to control America’s story. Bryan Stevenson, a lawyer and the founder of the Equal Justice Initiative, has created institutions that confront the nation’s painful past to preserve an honest vision of history. In this conversation with Jeffrey Toobin, he argues that while America has much to celebrate, whitewashing its history lets its mistakes — and their consequences — live on.
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The transcript has been lightly edited for length and clarity.
Jeffrey Toobin: I’m Jeffrey Toobin, a contributing writer for New York Times Opinion. I’m a former assistant United States attorney, and I write about the intersection of law and politics. Since January, like everyone, I’ve been trying to figure out what the Trump years mean for America, in particular about civil rights and the criminal justice system. And I thought, who better to talk to than Bryan Stevenson?
Bryan is the founder and leader of the Equal Justice Initiative in Montgomery, Ala. He’s also, especially in recent years, the creator of these extraordinary cultural institutions in Montgomery that he calls the Legacy Sites. There is a museum on the history of African American life in the United States; there’s a memorial to the victims of lynching and there’s a sculpture garden.
I visited them for the first time this summer, and I was struck by how the vision of American history that Bryan and his institutions present is precisely the vision of America that Donald Trump is trying to get away from, and I wanted to talk about that conflict with Bryan today.
So Bryan, how have you seen your world change since Jan. 20?
Bryan Stevenson: Well, we have engaged even more deeply in the narrative work that we started over a decade ago and made that an even bigger priority, because I think in this country we’re in the midst of a critically important narrative struggle about who we are, what our priorities are as a nation and how we get to a better future.
Of course, growing up, I invested my work entirely in the rule of law because I was a product of Brown v. Board of Education. I was a product of that era when the courts really fundamentally changed American society. I went to college; I went to law school because I wanted to replicate that use of the rule of law to fundamentally increase justice and opportunity and have done that most of my career. But about a decade ago, I did begin to fear that our courts and the larger society were retreating from that commitment to full equality and justice.
So that’s when we started appreciating that if we don’t create a different environment outside the courts, then our work inside the courts is going to be less effective. And that’s when we started doing this narrative work and began building this new landscape, which I saw as being more truthful and honest about our history. Since 2020 we have really deepened that effort. We’ve expanded our sites, we’ve opened new sites. We’re still doing our legal work, but in a very different legal environment than the environment that I walked into when I came out of law school.
Toobin: You said that one of the reasons you’ve turned to narrative, museums, memorials is because the courts are not the refuge that they once were. And it seems especially appropriate to talk about that now because history is becoming a real battlefield. In August, the White House announced this sweeping review of Smithsonian exhibitions and collections on subjects just like what’s featured in your museum in Montgomery.
What’s going on here? Why is history so important, and why have you turned your attention to it in such an extensive way?
Stevenson: Well, I think when we are honest about history, we learn things, we discover things and we prepare for things differently. I got involved in our work after I went to Johannesburg and saw the apartheid museum there. It blew me away because I’d never been in a museum that was so honest about the legacy of something so devastating. I went to Berlin, and being in Berlin, seeing a landscape where you can’t go 200 meters without seeing a monument or a memorial dedicated to the victims of the Holocaust, there’s this reckoning with history, and we now see Germany as a partner; they are not the villain that they were in the middle of the 20th century because of that reckoning.
There are no Adolf Hitler statues in Berlin. There are no monuments to the perpetrators of the Holocaust. And I think that has liberated them, empowered them to create a new democracy that is trusted, respected, vibrant and that’s growing. It doesn’t mean that all the problems have been eliminated, but it does mean that they have recovered something really important, discovered something important. We have not done that in this country. And I think our refusal to do that has left us vulnerable to precisely the kind of political manipulations that we’re seeing today.
So we’re trying to create that truth-telling here. I think some people misjudge it; they think, oh, you keep talking about slavery and lynching and segregation. You want to punish America for this history. I have no interest in punishment. I’m talking about slavery, liberation and segregation because I want to liberate us from the burden that that history creates — that burden that still hangs over us, the fog that that history has created that no one is trying to address.
We know that we can’t go through life and care about someone and love someone and get strong and healthy if we’re unwilling to acknowledge when we make mistakes, to repent for those, to apologize for those. And collectively, we have not done that in the United States.
Toobin: As I was walking through the museum, I kept thinking of Donald Trump’s attitude toward history, which is celebratory. He says he wants schools, universities, museums to celebrate America — not focus on the Middle Passage, not focus on slavery, segregation. What’s wrong with that? Why shouldn’t America celebrate its history?
Stevenson: America should celebrate its history. There are lots of things about America that are worth celebrating, but it should also acknowledge the mistakes it’s made. I think the mistake with trying to whitewash history is that we just continue and sustain the problems that that history has created. The purpose of the museum is to create a world where the children of our children are no longer burdened by this history of racial bias, where there are no more presumptions of dangerousness and guilt that get assigned to people based on their color, where everyone is free to live kind of a life of value and opportunity without restraint because of their color. And we won’t get there if we don’t address some of these harms.
And this is the thing that makes this relevant for me: I’m the descendant of people who were enslaved. My great-grandfather was enslaved in Caroline County, Va., and recently I’ve been talking about this. When I went to Harvard the first day, the school took us into those small orientation groups and the orientation group leader asked, “Why are you in law school?” And I remember sitting there and the first four or five people in my group all talked about how they were the son or the daughter, or the grandson, or the granddaughter or the nephew, or the niece of a lawyer.
I started to panic because I knew I wasn’t related to a lawyer. I’d never even met a lawyer. By the time they got to me, I felt so diminished that I just told a joke; I tried to get out of there. And I remember calling my mom saying, “Mom, I don’t belong in this law school.” I had one of those beautiful mothers, and my mom said: “What are you talking about? You belong wherever you go, and you go back and tell those students why you’re in that law school. You’re the smartest person in the world. You can do anything you want to do.”
A couple of weeks later, I did. I found a few of the students, and what I remember telling them is that I’m in this law school because my great-grandfather was enslaved in Caroline County, Va. Despite enslavement, he had this hope of freedom and even though it was illegal for enslaved people to learn to read or write, my great-grandfather risked his life to learn to read because he had a hope of freedom. He had a hope in this country, despite being enslaved, that one day freedom would come.
So for me, the hopeful part of this story is the thing that we have to embrace. When someone who’s been held down stands up and triumphs, we all get excited. That’s the story of America. But it’s not the story of America that we will understand if we don’t talk about the hard parts.
Toobin: Let’s talk about some specifics: D.E.I., diversity, equity and inclusion. In the early ’20s, you had corporations, universities falling over each other to set up D.E.I. and to promote D.E.I. — hiring people to promote it. It’s now become something that is so toxic that companies and universities are running from it. What happened, and what does that mean?
Stevenson: Well, I don’t think we ever did a very good job of understanding why we need D.E.I. And this is the problem of trying to create a remedy without understanding the problem. For decades in this country, we had really qualified women and really qualified people of color being denied opportunities for leadership because they were women, because they were Black, because they were brown. That was unfair. It was wrong.
And it held companies back because the best people weren’t getting the jobs because they didn’t feel comfortable putting a woman in charge of that. Then we began to realize that not only was that not right and not fair to those women, it just wasn’t smart. And so D.E.I. was in an effort to remedy decades of excluding people based on gender and race.
We should have said: We have failed to put the best people in the best positions; we have participated in the exclusion of women and people of color wrongly, even though they were more competent and more skilled. We didn’t like doing that part. We just wanted to announce the new policy. And so when people got mad about the policy they didn’t understand — it was a remedy to a real problem — you had this kind of political reaction. And now that the politics have shifted; you see precisely that retreat.
I was on a plane and a woman got on as the pilot of the plane. A Black person got on as the co-pilot and I was literally sitting next to somebody who turned to me and said, “Oh, my God, did you see who’s flying this plane? It’s a woman and a Black person.” Said it to me! And he said, “We’re going to be in such trouble; you know that they’re not qualified.” I said, if you knew anything about the history of aviation, if you knew anything about the history of corporate leadership, you would know that you’re going to be piloted probably by the most skillful pilot you’ve ever been with on a plane before because to become a woman pilot at the end of the 20th century meant that you had to outperform the men. To become a pilot as a Black person, you had to outperform and demonstrate more skill, more knowledge than you would’ve had to demonstrate if you were part of that favorite group.
So when we understand that, we realize that D.E.I. wasn’t giving opportunities to people who were less qualified. It was remedying the problems of denying opportunities to the most qualified. So for me, that’s why truth-telling becomes so important.
Toobin: Let’s talk about the legal work and unpack several of those subjects. The Equal Justice Initiative is still an organization that goes to court all the time. What do you see in court that’s different today, both from January 2025 and also from the time when you got out of law school and started practicing?
Stevenson: I think in the 1990s and the first part of the 21st century, if we went to court and had the right evidence and the right legal claim — even if courts were resistant — they would be obligated to respond, to enforce the law. And we had success.
One of the issues I spent a lot of time on in the 1990s was the exclusion of Black people from capital trial juries. Throughout most of the 20th century, Black people didn’t serve on juries, and a lot of prosecutors became very comfortable presenting cases to all-white juries. In 1986, when the Supreme Court said it was illegal to exclude people on the basis of race through peremptory strikes — these discretionary strikes — prosecutors were very resistant and found new ways to justify the exclusions.
So we would go to court, present evidence showing that all the Black people were excluded, and the courts would grant relief. That happened throughout the ’90s. We won 24 or 25 reversals in death penalty cases because of racial bias.
As we got into this century, there was a kind of fatigue that began to take over. You saw courts becoming increasingly resistant to the idea that they would once again have to overturn a capital murder conviction because of intentional racial bias. Rather than scold prosecutors and push institutions to comply with the law, they started raising the bar on what had to be established to win.
There was growing resistance. Courts tolerated more racial bias in these cases, more extreme misconduct by police and prosecutors, and they looked for procedural reasons not to address substantive constitutional violations. That proceduralism became a fence to keep the courts from having to talk about really hard issues.
What I see today is more of that tolerance, more of that reluctance to uphold the rule of law — even when the consequences of not upholding the rule of law are brutal, tragic, and create a lot of suffering.
Toobin: But it’s not just tolerance; it’s embracing these violations, isn’t it? One of the things so distinctive about Trump — especially in the Justice Department — is saying: We are not going to worry about prosecutorial or police misconduct. We are not going to engage in the defense of criminal defendants. So it’s not just tolerance. It’s a complete 180, isn’t it?
Stevenson: Well, in the last nine months or eight months, we have seen a complete rewrite of the legal order of what the moral order should be. And it is absolutely hostile to a lot of these basic rights. You see that playing out in ways that are really unprecedented. So this is the first time in my life that I’m living at a time where the rule of law is not operating in a way to protect people who have been historically vulnerable, historically victimized by power and abuse, and are, in fact, being utilized in a way that will add to that abuse, add to that exclusion.
Certainly that’s what you’re seeing when the Department of Justice dismisses all of these lawsuits, when they’re going to schools basically saying: We’re against what’s been going on. Not just for the last five years, not the last eight years; we’re against what’s been going on for decades. And when you start analyzing that, what they’re really talking about is since the civil rights movement. So now you have a political agenda and a Department of Justice that seems to want to overturn all that was gained during the civil rights era.
We’re talking about getting back to this pre-1965 period when there was no remedy for those who felt victimized by Jim Crow and segregation and racial exclusion. So yes, what we’re seeing today is radically different from even what I was seeing a decade ago.
Toobin: Now much of your work, especially the death penalty work, is in state courts, not federal courts. Does the attitude from Washington reverberate through the system? Do you see this hostility to the traditional civil rights agenda in the state courts as well?
Stevenson: Oh, absolutely. The Justice Department’s role was always about managing, controlling and restraining states from engaging in behaviors that excluded marginalized and disenfranchised people. Most of this happened in federal court, but it absolutely had implications for state courts.
Now judges in state courts who refuse to enforce federal law are no longer fearful that a federal court will overturn them. They’re not worried that the U.S. Supreme Court will intervene. So of course, they feel empowered to do things they haven’t been able to do since the 1960s. And because state court judges are often elected in partisan elections, they’re even less likely to risk enforcing the rule of law or the Constitution — to do things that are unpopular, to do things that make people uncomfortable. If anything, they’re pushing an agenda to maintain the South “in the saddle.”
They want to overturn the ban on executing children. They want to overturn the ban on executing people convicted of nonhomicide offenses. That’s what they’re signaling when they introduce these laws into state legislatures today. And they know the state courts will affirm those measures. Then the question will go back to the U.S. Supreme Court and other federal courts.
Toobin: Well, let’s talk about the Supreme Court. You know, the great cry of the ’60s was, We’re going to take this all the way to the Supreme Court. Brown was decided in 1954, and many of the Warren court decisions throughout the 1960s — and even the Burger court and some of the Rehnquist court — served as a check on racial discrimination in all aspects of American life.
How do you view the current United States Supreme Court — as a place where you might want to bring your cases, or not?
Stevenson: Well, I don’t think there’s any question that the composition of the court right now makes it an institution that if you’re trying to advance racial justice, if you’re trying to advance human rights, if you’re trying to advance protections for the rights of people who’ve been convicted of crimes or disfavored, it is not a very welcoming or hospitable place.
I refuse to give up on the court as an institution that can make a difference because I still believe that they’re going to have to make some really hard decisions about how much are we going to permit this erosion of basic rights.
Toobin: Tell me specifically about where those stress points are going to be. What issues do you think are going to be tough for even this conservative Supreme Court?
Stevenson: I think there are a whole set of issues that have been core to the American experience over the last half-century. In my mind, America has progressed over the last 70 years — has evolved over the last 70 years — in a positive direction because we dealt with the fundamental problems of disenfranchisement of Black people and disfavored minorities. We have addressed, or tried to address, some of the excess of the politics of fear and anger that play out in our criminal legal system. We have generally wanted to model a commitment to the rule of law even when that’s unpopular, even when there are forces that are saying: We would rather do this destructive thing than to protect people’s rights.
If a court says that states can do whatever they want to do to maintain political power, to disenfranchise Black and brown people, then that will take us back decades. It will fundamentally negate all of that progress. I think this court will have to deal with our willingness to resist the politics of fear and anger. By that I mean, when people allow themselves to be governed by fear and anger, they begin to tolerate things they wouldn’t otherwise tolerate.
After Pearl Harbor, we rounded up all people of Japanese ancestry and put them in camps. I don’t think that’s something anyone would have accepted but for the fear and anger that followed the attack on Pearl Harbor. The court could have said, no, that is completely inconsistent with the rule of law in this country. But they didn’t. Instead, we did something quite shameful. The court today would likely recognize that as a bad decision. We’ve got people in Congress who are saying, we should not have done that. But that’s what happens when you give in to the politics of fear and anger. This court will have to decide whether we’re going to stay committed to the rule of law and basic constitutional rights or allow those forces of fear and anger to prevail.
There are people arguing that the court shouldn’t have the authority to undermine the objectives of the president or the White House. And that will be a fundamental question this court has to decide — one that will shape the future of this country.
Toobin: These are in many respects political issues. What do Democrats — who are obviously more sympathetic to the views that you express than Republicans are — what do they do? What do they say to shift the narrative and shift votes in ways that would actually work?
Stevenson: In my mind, it’s what do leaders say? Because for me, I don’t think the way forward is to get one political party to be more strategic, more savvy, more effective. I think it’s about what do leaders say? And this applies to Republican leaders as well as Democratic leaders. I want people across the aisle to take a position on whether it’s right to demonize a whole group of people.
Here’s one example: Haitians in Ohio are eating cats and dogs. It wasn’t true. Yes, Democrats are going to talk about that. But I think the real question is: What do leaders do when we are asked to tolerate that kind of bigotry, that kind of slander, that kind of hatred? Yes, there are things the Democratic Party has to be savvy about and responsive to. But fundamentally, we have to decide: Do we want to go back to pre-1965 America? Is that acceptable? When we say Make America Great Again, do we mean the 1950s? The 1920s, before women had the right to vote? The 1850s?
These are fundamental questions that every leader should be asked. And when they give their answers, we then have to decide whether that’s something we can embrace — or not.
Toobin: Final question, Bryan. True or false: The arc of the moral universe is long, but it bends toward justice?
Stevenson: I think it’s true. Of course, it depends on people’s willingness to prioritize justice and refuse to tolerate injustice. But when I look at human history, it’s hard for me to say that it isn’t true. The fact that you and I are having this conversation in a space occupied by The New York Times is, in itself, evidence of that. I think about this all the time. The people who came before me would put on their Sunday best, go out to protest for the right to vote, get bloodied and beaten, then go home, wipe the blood off, change their clothes and go back out again.
My generation has not had to do that in the same way. Future generations, hopefully, won’t have to either. That just means the struggle for justice will take on a new form. So yes, I am persuaded of the truth of that — despite the moment we’re in. I guess one good thing about getting older is that you gain a broader perspective.
For example, in 1995, if you had told me we’d reach a point where the execution rate would drop dramatically, where very few people would be sentenced to death, where 11 states would abolish the death penalty, and where more and more states would choose not to use it — I couldn’t see that. I had to believe it. Or another example: Fifteen years ago, if you had told me I’d be operating a museum, a memorial and a park dealing with slavery, lynching and segregation — and that hundreds of thousands of people would come, that I’d even have to open restaurants and a hotel to accommodate them — I would’ve said that was crazy. And yet, here I am.
So I think that quote is really about whether we believe that truth has the power to be resurrected, even in the face of lies, and triumph. And I believe that, in every aspect of my being: culturally, socially, politically, spiritually. That’s what I’ve experienced. And the fact that there are difficult days, dark days, doesn’t dissuade me of that.
Toobin: Bryan Stevenson, thank you so much for joining us.
Stevenson: Absolutely.
Thoughts? Email us at [email protected].
This episode of “The Opinions” was produced by Derek Arthur. It was edited by Alison Bruzek and Kaari Pitkin. Mixing by Carole Sabouraud. Original music by Sonia Herrero and Carole Sabouraud. Fact-checking by Mary Marge Locker. Audience strategy by Shannon Busta and Kristina Samulewski. The director of Opinion Audio is Annie-Rose Strasser.
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Jeffrey Toobin is a former assistant U.S. attorney who writes about the intersection of law and politics. He is the author of “The Nine: Inside the Secret World of the Supreme Court,” “The Pardon: The Politics of Presidential Mercy” and other books.
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