We talked about the strategy behind bringing hard cases, the recent Supreme Court decisions, the ACLU’s vital impact, and much more.

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July 27, 2025

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Recently, I sat down with ACLU Executive Director Anthony Romero for an interview. We talked about the strategy behind bringing hard cases, the recent Supreme Court decisions, the ACLU’s vital impact, and much more.

The conversation has been edited for length and clarity.

Marc Elias: Anthony Romero, welcome to Defending Democracy.

Anthony David Romero: Thank you, Marc Elias. It's great to be here with you.

Marc Elias: I admire the way you approach litigation, but in particular, the way you approach what I call hard cases. Both you and I, both of our teams have from time to time been criticized by people for basically bringing hard cases, saying, "Why are you bringing this case you could lose? Why are you bringing that case, the politics of it aren't perfect?"

Anthony David Romero: Yeah. The New York Times Magazine just wrote a story about that for me.

Marc Elias: Take a 40,000-foot view and tell me where your approach around hard cases comes from and what it is.

Anthony David Romero: If we only take the cases that we're going to win, we're not thinking ambitiously or aggressively enough. And if we only take cases that we know we're going to lose, we're not being good lawyers. So you've got to strike that balance, and I think we do that very well. We want to make sure we have the right theories, the right clients, the right jurisdictions. But then you're here to push the envelope. People come to us, and they come to you, when they encounter some real injustice in their life.

The recent criticism that we had about our litigation in Skrmetti, which is the transgender rights case that was just decided by the Supreme Court, 6-3. It was an awful opinion below. If we had not appealed, that decision would have remained the law of the land for a large part of the country and could have metastasized to other jurisdictions. It's also true that we gave it a really good shot. If the Court had not been so hyper-politicized as it is, the fact that we were trying to thread that needle, we did not succeed, but you can't blame us for trying to make a real difference in thinking through the legal theories in the cases. Sometimes you run the gauntlet and you win, and sometimes you come up short. And you always live to fight another day. And I think that's where we keep going, Marc.

Marc Elias: The fact is, you guys took a shot on a good legal theory, tough court, but you took a shot. Are the lives of people worse off? No, because, as you say, these laws were cropping up all over the place anyway.

We know not everyone has time to sit through a 45-minute interview, which is why we added this written version — so you can go back and read the parts you want and skip others. Upgrade to always receive this format delivered to your inbox. ([link removed] )

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Anthony David Romero: And the other piece I would add on the transgender rights case, which is true in the voting rights case, it's true in a number of these cases, is to make visible a community or an issue, an injustice that otherwise would just not get the attention it deserves. You're talking about the trans community, 1.5 million people, the quintessential political minority. They cannot turn to the electoral system to vindicate their rights. It's literally the best case example of a community that needs to be protected from the whims of the majority. There's no better community in terms of equal protection and arguments that way. So here we are, bringing to light the visibility of the transgender rights community, which I think is critically important in terms of messages it sends to other people and messages it sends to opinion leaders. So even when we lose, we win by fighting the right fight.

Some of these naysayers that you've encountered, that I've encountered, who say, "You lost that case. You shouldn't have brought it." Monday morning quarterbacking is really easy when they never suit up and never hit the field. I'm still sleeping well. I know that we do our very best work.

We are good litigators like you all with your colleagues. We really take seriously our obligation as members of this bar. But at the same time, if we were only going to file the cases we would be assured we win, we'd be making no difference in the world. Our job is not to reflect society. Our job is to push the outer boundaries of society so that it comports with our vision of what the country should be like, what society should be like.

Marc Elias: I want to talk about two cases that I think illustrate this point. The first is, you and the ACLU were absolutely essential in the fight for voting rights in Pennsylvania. The naked ballots, the undated ballots, the ballots that are dated but have the back date, they have the dates in the wrong order. All of that nonsense, right? All of these things are just efforts to disenfranchise voters. And we know, because we know the math, you can go from state to state: Georgia, Pennsylvania, to Florida, to Washington state and Colorado, so it's not a partisan issue.

And the people who are disenfranchised by these laws are inevitably Black, Brown, and young. The ACLU, along with a lot of other people, have been involved in litigation trying to solve this. And I've got to tell you, I got to a place where people were like, "Well, I wish the ACLU wouldn't push this issue." And I'm like, "They're just trying to get people's vote to count!"

Like literally, what do you think you are saving it for? You'd rather their vote not count? Why not just take every shot we can to get these votes counted? You not only had success in courts, but you also — and this is why I wanted to use this as an example — you changed public understanding. We saw rates of those error ballots drop because people became aware of the problem from the litigation you guys brought.

Anthony David Romero: It was incredible because especially the people who are always worrying and not really trying to do as much, were saying, "You might do more harm. This might come back to haunt us. This might be the case that the Supreme Court takes up and it will not just be a problem in Pennsylvania, it'll become a problem that will be relevant for the other battleground states."

If I don't do anything, and Pennsylvania decides the outcome of the election, how are you going to feel then if we didn't take our shot? And at the end of the day, it's not about the outcome of the election. It really is about the voters, Marc, as you were saying.

It's about the folks who mailed in a ballot, postmarked it, it was received, did everything right in terms of signing the ballot, dating the ballot, closing the envelope. They forgot to date the back of the envelope, a ridiculous requirement that's meant to only exclude people from the political process. And we're going to say, "We're okay with that." We cannot. And so I think it's important to be smart and be strategic, find ways of making arguments that appeal to people, bring the right theories, bring them in the right jurisdictions.

That's where good lawyers do their work. But good lawyers just don't find the problems and find no solutions. You have to keep trying to run the ball down the field.

Marc Elias: The second case I want to discuss is more recent: the case that you brought involving the throwing of Venezuelans into a gulag in El Salvador. People were calling me saying, "Ugh, they're picking the wrong fight. Don't they realize this plays into Trump's hands? He wants you to fight. It’s going to go to the Supreme Court on all these terrible facts and they're going to lose.”

Here’s what happened: You found that the [Venezuelan immigrants] weren't the worst of the worst. These were largely people who were caught up in a Kafkaesque-type legal situation.

Anthony David Romero: Exactly. My gay hairdresser client, Andry Hernandez Romero, is one of them. Not a drug cartel member.

Marc Elias: As a result of their win, and the dominoes that put in place pretty directly, you wind up with Kilmar Abrego Garcia coming back to the United States. And then finally, the politics around this is now a winning issue. This is now an issue that the Republicans are playing defense on.

If you care about partisan politics, which I know didn't go into your thinking here, but all of those people who were like, "This is playing on Trump's territory." No, actually. Look what Anthony and his team did. They flipped the script here and now public opinion shows that actually people are quite skeptical and angry about this.

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Anthony David Romero: You give me a lot of credit but I have great litigators. I appreciate that you put me in that company. And then we also do it in concert with other groups, including Democracy Forward, which is a phenomenal organization. I know you're involved as the board chair.

The Alien Enemies Act case. This was one where again they said, "No, this is bad facts, the wrong clients, these are the bad guys who we’re sending off to El Salvador, this gulag at CECOT." And we knew enough to kind of question that from the outset, that we knew because we had heard from family members and because we've seen it before, they always dress them up as the worst of the worst, the terrorists.

We saw this during the war on terror, we saw this during Trump One. They're always exaggerating about the specifics around the client case. And then regardless, you can talk about the principles involved and the idea that you're going to invoke this 1798 law and say that we are at war with the trend that I want, right? Or a drug cartel and summarily deport people with almost no due process or the due process at such a level that it's absurd and then send them to a gulag in another country where they could be tortured or put to death was too much to countenance.

And I think what's interesting here, so we had lots of litigation with us in Democracy Forward, Judge Boasberg, then it went up to the Supreme Court. Then it went up to the Supreme Court. Then the Supreme Court said, "No, you have to file it in all the different jurisdictions where the individuals are housed." So then we turned right around, we have 13 different cases all across the different district courts. And even in places where we've been in front of Trump appointees, like this one judge in Pennsylvania, a Trump appointee, who ended up ruling against us on whether or not the Alien Enemies Act case could apply. She said it could. We respectfully disagree.

But even then, she said they're still entitled to due process. So even with a Trump appointee who's working real hard to give the Trump administration the tip of the hat and the benefit of the doubt, even she was pushed into the corner saying, "No, no, no, you can't just remove these people without giving them any due process at all."

I think it's one of those instances where running this game aggressively is critically important. And it's queued up, I think, pretty sure that it will be in front of the Supreme Court on the merits next term. I'm rather confident that we win that one. I think it will be an important one to win. It will be a real fatal blow to them and their whole immigration policy. When you think about them losing possibly the Alien Enemies Act case or birthright citizenship, which is also now queued up on the merits, I think likely to be on the merits in the Supreme Court next term, hasn't been granted cert yet. But clearly, I think if those two go our way the way I expect them to, we will have really knocked out some of the worst policies of the Trump administration on immigration.

Marc Elias: I think that sometimes when we talk about these cases, we forget the human beings involved. And the fact is that for a lot of our clients in the voting space and in the civil rights space more generally, the mere fact that there is someone willing to fight for them, the fact that you are willing to go to court and make their argument matters enormously.

There is a benefit in the fight, in showing people who are voiceless, you are willing to full-throatedly stand up for them and their rights. And I feel like that part of the human story gets overlooked sometimes when people focus on, "Well, did it set a precedent? Did it set the law forward or set back?" I think we miss something. And like to think I am a better litigator and I win more cases because I focus on what it tangibly means to these people who I represent.

Anthony David Romero: I totally agree. And part of it is that in order for me to be effective as the head of the ACLU, I don't need 51% of the American voting public to agree with me. We just need to be right, and we need to have a basis in law and be able to have a theory of change to accomplish that. And I think part of what's lost when you kind of meld the political world or the pundit world or the folks who are kind of think tanks who are looking at public opinion polling as a way to determine what their priorities are, hell no. Our job is to kind of stand up for the little guy, literally, and to kind of find ways of making a difference. And I think in this case, people underestimated our ability to accomplish this. We will win on the Alien Enemies Act case. I'm almost certain of it, even with this Supreme Court.

It is too extreme a position for them to say they can invoke this statute and deny people due process rights. And the case of mistaken identity, when you talk about my gay hairdresser, Andry Hernandez Romero, farthest thing from a drug cartel member.. His family, clearly telling us there is no way this person should be caught up in this sweep. And to say, "Man, they really got it wrong in that particular case. Who else did they get it wrong with?"

And then you have the research institutions like ProPublica doing amazing work, doing kind of investigative reporting, saying as many as 70, 80% of the cases that they have been looking at, there is no criminal or no history of criminal conduct of the immigrants who have been deported. And you begin to kind of sow the seeds of discontent and bring people along. And even people within the ranks of the Republican Party or MAGA are beginning to ask questions like, "Wait a minute, this is going way too far." I think we harvest that as we go further.

Marc Elias: I want to zoom out for a second and talk about you and the ACLU. You have a very, very privileged and insightful perch from which to look at the legal community, look at civil society, look at the legal system, look at the government. So tell us something about what you think is lurking out there that may not be on our radar screen right now.

In your job at the ACLU, what are you prioritizing that is not just the fire that is burning five feet from you, but maybe burning 15 feet from you or a mile from you? What are you focused on?

Anthony David Romero: I appreciate that very much. We are in the middle of the effort to rob them [The Trump administration] of the momentum of their early efforts. To throw the sand in the machinery and to clog up their gears. And that I think everyone is doing that incredibly well. Over 67 full-on lawsuits, 134 legal actions all in, Democracy Forward, Public Citizen. As a group, as a community of activists, there are about 325 or so lawsuits, when I looked last week, that I think we can all take very good credit for.

And even though there have been some big losses recently with the Department of Education and the federal workers litigation, we still bought a lot of time, right? The status quo, stopping, hitting pause and holding the status quo is a good thing for lots of people who are going to be chewed up in this process. At the same time, we also made it harder for them to run even more aggressively as they had to fight to defend their policies.

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Marc Elias: I was talking to the more junior folks at Democracy Forward who were quite like eating themselves up over the reversal in that case. And what I said to them is I said, "Look, there are millions of families that got paychecks that they wouldn’t have gotten.”

Anthony David Romero: Yeah, six months of pay and health insurance.

Marc Elias: Rather than facing the immediate shock and devastation, they were able to make plans. Some of them may have left, some of them may now have the ability to transition. I'm not defending the court. I'm not saying that this isn't still a tragedy and that it isn't still wrong. But again, I want to come back to the human parts of this. We cannot overlook the positive impact that even cases like that have for real human beings.

Anthony David Romero: No, I agree. It gave people a chance to get their lives in order and to get new jobs, make decisions without the kind of everything falling off on them with the kind of the shock and awe rapidity of the Trump administration. Even if they ended up losing their jobs, we gave them an ability to kind of step away with much more than it would have had if they put them out in the street right after the inauguration. I think we're winning in that way. And they don't really have the wind in their backs in the way they had in the beginning, right? Everyone's talking about how the courts and even in front of conservative judges, like the Trump appointee I was describing in Pennsylvania, we are still very much in the game.

Now, I do think we need to anticipate a couple of things. The Republican Party and the Trump administration have control of the House and Senate, and they're going to run that ball down the field. We should not be fooled into, "We're done with the big, bad, beautiful bill," whatever you want to call it. They're not done there, right? They still have a good year where they have the trifecta. And we can anticipate a legislative blitz, the likes of which I think a lot of folks are not really prepared for. And a lot of it is going to be really challenging for lawyers, because if they try to fix things legislatively and reverse some of the things that are in statute that we are now relying upon in our litigation, especially in immigration.

We have to be really, really clear about fighting that off. And we have to make sure the Democrats on the Hill play for time and adjournment and all sorts of procedural motions. We basically focus on 13 congressional districts. 485 — There are 13 of them that are in places and jurisdictions where they have to worry about their long-term job prospects. And we need to put the heat on those individuals to peel them off. All it takes is a couple in the House and even fewer in the Senate. So that's the game we have to play.

The second thing I'm really concerned about is as a result of the appropriations. The $170 billion they've given for the Department of Homeland Security, and the interior enforcement efforts, it can be a police state on steroids. What we saw in LA in the deployment of the Marines and the National Guard could be multiplied many-fold in all their jurisdictions. And I think we have to really be concerned about what that means for the type of law enforcement efforts in big cities and counties and rural communities. And I don't think we're really prepared for that as a community just yet. I think the worst is really in that respect is in front of us.

And unlike the Alien Enemies Act or birthright citizenship, where one lawsuit with well-placed and well-argued can hit pause on the policies, when you're dealing with that level of decentralized law enforcement efforts, that's retail, right? You've got to go site by site, jurisdiction by jurisdiction, and you've got to get in and get the facts and kind of contest them in real time. And that's much more labor intensive and that requires organizations with scale, organizations that are nimble. You've got to be willing to kind of file things and some of it will stick and some of it won't. But you've got to kind of gum that up as much as you can because if they just roll through in that way with the increased resources, then we're really going to be in a very bad place.

Marc Elias: When Biden was in the White House, it became very fashionable for a lot of lawyers and law firms and legal organizations to stand up and say, "We are pro-democracy." I mean, it was costless. Joe Biden would give very eloquent speeches about being pro-democracy. I didn't necessarily think Merrick Garland did enough about it, but that's me, not you.

Anthony David Romero: The American Bar Association, all of these different groups and different initiatives, right?

Marc Elias: It was very in vogue. And I've noticed since Donald Trump took office, it is not just that we see big law firms bending and entrance settlements, not just we see the media do it. Corporations have gone quiet or worse. But some of the legal organizations have been less vocal. You obviously run the largest, most impactful, most successful legal doctrine there, but also frankly, you mentioned the need to do retail litigation. Nobody does retail litigation like you guys do.

If there is a hope for immigration and migrant rights in this country, it is going to rest on the ACLU. That's just like a fact. But you still, I assume, if we rewind the tape to two years ago, were relying on the courage or the cooperation and the involvement of a lot of other players. I've been disappointed at the rhetorical level. Have you seen an impact, a cut back in the willingness of others to be as out front as you guys are?

Anthony David Romero: I think there's a real reticence. There are people, there's a couple of folks who, God bless them, they tell me honestly what they're feeling, that they're concerned about the retribution coming out of this administration. They see the targeting of the law firms and they don't want to put a target on their back. And so I appreciate the honesty. I don't appreciate the cowardice, especially when you have big philanthropy or big law firms or big institutions.

The whole point of being big is to be independent. What's the point of having power if you don't exercise it? That line out of Succession, "What's the point of having FU money if you don't ever say FU?" It's really shameful that you find some of these institutions and benefactors and law firms who are not willing to stand up straight.

We romanticize the idea that the solutions have to come only from the grassroots. And this will get me politically in hot trouble because, you know, the communities in which we work, we have lots of advocates. There is no way to fight off fascism or authoritarianism with only focusing or supporting grassroots community-based groups who do terrific work. They should be supported. We need them. We need them on the ground. We need the organizers. We need the soup kitchens. We need the direct service providers. But if you want to meet the power of the federal government, you've got to meet it with scale and power.

And I am not apologetic about the fact that the ACLU needs to be even bigger and more aggressive in terms of scale than what it is. I tell folks, "Well, I don't give you money because I give it to groups who can really use it." I'm like, "Yeah. And who's really going to be able to run the ball down the field in light of this administration with the power of the federal government at their fingertips?" And that's what I find a little bit kind of the naivete, the belief that some solution is going to come from a kind of a feel-good moment. You've got to play this at scale. You've got to play this aggressively.

Finally, I think the law firms and the universities that have tried to duck have really done themselves a real disservice. Capitulation is not a strategy over the long term. They're over the barrel now. And I'll name the firms: Paul Weiss. It's going to be a challenge for them. This administration is going to keep coming back at them when they haven't done the work that they want them to do, when they're saying, "Okay, well, you haven't made good on that promise. Where are your lawsuits on veterans' rights? Where are your efforts fighting anti-Semitism? Where are your efforts on behalf of MAGA world?" And when they come up short, the devil doesn't just go away when he strikes the bargain.

The devil is omnipresent forever. I think they will find themselves in a situation where what was a short-term capitulation ends up being a real long-term mistake for them. And I think ultimately, what I've been so surprised at is the reticence of some of these institutions to really say what were their values before. They're not willing to reiterate what they've always stood for. Just staying in their lane on the issues that they have cared about. They've now ducked and they've tried to hide from it. And I think that will end up coming back to haunt them.

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