Shilpi Agarwal is the Legal Director at the ACLU of Northern California. A seasoned civil-rights attorney, Agarwal began her career as a clerk in the Southern District of Texas and United States Court of Appeals, before working in complex civil litigation as a federal public defender, and as a senior staff attorney at the ACLU. Her essential strategic guidance and legal expertise shape every case brought by the organization.
Riyana Srihari: Looking at your illustrious career, community defense and a commitment to fight for justice has been a through line of your work. I’d love to hear about your journey from the public defender’s office to becoming a staff attorney and now legal director, and how you found yourself at the ACLU.
Shilpi Agarwal: College really opened my aperture, in allowing me to talk about the world and politics in a way that I hadn’t been exposed to in high school, and in revealing the socioeconomic differences around the country. College had a bit of an equalizing force, in that everyone is doing the same thing and living in the same place. But when you dig beneath that, you realize how different everyone’s journey has been up to that point, and how unequal the prospect of opportunity is in this country. That was what first inspired me to pursue social justice.
I went to law school thinking that I would do international human rights work, but when I got an ACLU fellowship, I realized that they were the coolest lawyers I had ever met. The work that they were doing was exactly what I wanted to do.
I went to a law firm initially, because I needed to pay off my loans and it felt important to have economic security before launching a career of social justice. I then took a job at the Federal Public Defender, which was the best, most fun job. When Trump was elected and an opportunity came up at the ACLU, I was very torn: I loved speaking truth to power in such a literal capacity as a public defender, but being at the ACLU has always been a goal of mine, so I knew I had to do it.
I love being at the ACLU. It’s a great institution and we do really amazing work. I had a lot of ideas about how the organization should be run, and the reward for speaking up is getting more responsibility. So I found myself in a position of leadership, and I’ve now been Legal Director for quite some time.
RS: Can you tell me more about what your role as Legal Director looks like on a daily basis?
SA: There are three big buckets I’m responsible for. The first involves institutional management—working with our senior management team, making decisions about how we allocate our resources, and dealing with our board and external stakeholders. The second involves overseeing the organization’s legal work, through reviewing litigation memos and meeting with case teams on thorny issues. Finally, I do still reserve time to litigate myself, and be more directly involved in cases. One of the things I love most about this job is that it does not feel monotonous at all; each day is a mix of all of these things.
RS: As legal director, you have the very important role of strategically guiding the organization’s litigation docket to take on consequential cases around due process and equal protection under the law. What standards do you use to determine whether or not to take on a case, and how have those standards have shifted in reaction to the second Trump administration?
SA: There are two big axes along which we evaluate cases.
The first axis is subject matter, at a top-down level. There are so many righteous civil liberties issues and you could make a case for why the ACLU should be involved in all of them. Every four years, we create a strategic framework with our board to identify particular issue areas to dedicate our resources to.
The second axis is more bottom-up. Our attorneys have a lot of autonomy to identify the big issues and specific cases we need to focus on. Ultimately, this process of translating big problems into cases is the hardest exercise.
Once attorneys have done a lot of legwork, I help evaluate whether or not claims make sense. Is this something that actually has legs to it? Is this worth our resources? Can we get a ruling with a positive impact? Once we’ve answered those questions, there’s an approval process we go through to get to a place where we’re ready to file.
RS: I would love to zero in on your specific legal strategies. While legal cases often rely heavily on past precedent, one of the most common words used to refer to the Trump Administration and the current Supreme Court is “unprecedented”. Have you seen a shift in the way that the court is dealing with questions of history, and has the ACLU’s legal strategy shifted in tandem with that?
SA: Yes, there are certainly parts of the court’s jurisprudence that have changed significantly.
The first shift relates to formal changes in legal doctrine. While the dominant form of legal thinking practiced by Scalia and the old conservative wing of the Supreme Court was textualism, this idea of history and tradition—so not looking at the text in a literal sense, but trying to discern what the founders meant when they used these words—has risen in popularity, and entered the formal way the Court is thinking about things like the 2nd Amendment, the 14th Amendment, and due process.
This history and tradition ethos completely denies that there has been any progress in this country. It advances this idea that the Constitution can only mean what it meant in 1776—when only white men could vote and we allowed human beings to own other human beings. Given that our communities, communication, systems of governance, and voting population has changed so dramatically, it simply makes no practical sense. You can’t create an orderly society in 2025 when you’re only thinking about the rules as they were interpreted in 1776. Yet this is the formal interpretive ethos that has entered Supreme Court parlance.
Additionally, while the Supreme Court would never formally say that their view on precedent has changed, the Court has begun overturning and abrogating precedent that they previously relied on. The use of the shadow docket is also a way for them to render decisions without grappling with precedent at all.
RS: How has this changed the way that the ACLU thinks about cases?
SA: While it does not change the mission of our organization, because of these shifts in what the Supreme Court is receptive to, we’ve begun invoking historical analog arguments more than we would have a decade ago. We’re also thinking about our legal strategy at the lower courts, knowing that the Supreme Court is making more shadow docket decisions.
RS: I’d love to zoom in on specific cases. Over the past year, we’ve seen an extreme escalation in the militarization of our cities, the deployment of the National Guard against peaceful protests, and the federal deployment of ICE. Can you tell me about the current state of militarization in California, and what strategies the ACLU is employing to fight it?
SA: We’ve seen documents basically confirming that this militarization is a concerted effort. Trump’s playbook is sending in immigration enforcement authorities to conduct mass raids, waiting for protests against these mass raids, claiming these protests are violent and out of control, then sending in the National Guard to “back up” immigration enforcement officials.
I disagree staunchly with the violent enforcement of immigration policies, and we’re challenging a lot of illegal ICE activity. I also acknowledge there can be a good faith debate about how aggressively this administration should be allowed to pursue immigration enforcement, given that that is a political issue on which they ran and won. But the use of the military to effectuate a domestic agenda policy goal is extremely unprecedented, and should concern everyone. The National Guard is typically used for national disasters with the consent of the state governors, or in an occasional episodic way to guard federal property. The military is not trained to go out into the community and do the kind of work that local police are trained in. We don’t want to see tanks in our communities.
A case out of the 7th Circuit in Chicago is currently being briefed in front of the Supreme Court, and will answer a lot of questions about the legality of calling in the National Guard. We’ve filed an amicus brief at the Ninth Circuit and have been involved in evidence-gathering at the trial court level to help create a record of what the National Guard is doing.
RS: I want to hear about another important issue your team is doing incredible work on: Voting rights. In California, Proposition 50 just passed in a special election with around 64 percent approval. The amendment is a Democratic gerrymander, intended to offset the recent gerrymander by Texas Republicans. What do you make of the success of this proposition, and what consequences do you think it may have for voting rights in California?
SA: This is a great question. I want to start by emphasizing that the ACLU remained neutral on Prop 50. We wanted it to be decided on by the voters. The voters have spoken, and it passed in California resoundingly.
The catalyst for this event was Texas redrawing their maps in direct response to a request from the president. While our organization and many others have denounced partisan gerrymandering, when you see the distortion of the election process in this incredibly pointed way, it doesn’t work for some entities to care about partisan gerrymandering while others ignore it. The system only works if there is a general consensus that partisan gerrymandering is something we avoid because we want voters to choose their representatives, and not the other way around. I think the governor strived to emphasize he is not in favor of partisan gerrymandering, but he also can’t sit idly by while the national electorate is captured by Texas and Trump. Voters caught onto that nuance and it generated a lot of support for the proposition. Prop 50 is also temporary. Following the 2030 Census, we will go back to the maps drawn by the independent commission. I think that was a smart way of alleviating some of the concerns around engaging in a race to the bottom with Texas and other states.
I will emphasize all of this speculation is not an endorsement of Prop 50. We really did feel like this was a decision for the voters to make, not a decision organizations like ours should weigh in on or drive the result of.
RS: I really appreciate that insight, and the ACLU’s decision to leave this choice up to voters. My final policy-specific question is on queer rights. Particularly over the past few years, transgender people have been heavily scapegoated and targeted by discriminatory laws. This seems to be happening across the aisle, and trans youth are disproportionately targeted. The ACLU has done a lot of work to fight school laws that would require staff to “out” students to their parents or deprive them of access to the appropriate bathroom.
While many are celebrating the Supreme Court’s decision to decline to hear a case that sought to overturn Obergefell v Hodges, future cases like Little v. Hecox could place anti-queer policies under rational basis review and open the floodgates to broad discrimination against the queer community. What does the ACLU’s legal strategy for protecting queer Americans look like, and how has it shifted against this new political backdrop?
SA: I don’t want to speak for what the legal strategy is, because that is really being handled by the LGBTQ Project at our national office. They emphasize they don’t have the luxury of waiting until the Supreme Court is more friendly to these kinds of cases. Kids in Tennessee who are being denied gender-affirming care are suffering now, and the LGBTQ Project has to fight to prevent our clients from losing access to essential healthcare.
Regardless of where you stand on this particular issue, the notion that this should be a conversation between kids, parents, and their doctors should not be controversial. The animating force behind many of the cases we’ve brought is that this is a deeply personal decision. The idea that we would have lawmakers telling us what we can and can’t explore with our doctors, educators, and therapists as kids go through that critical juncture in their lives? It should trouble everyone.
The level of scrutiny also absolutely matters, and determines how much legislative power we give the government. The First Amendment, for example, is evaluated under strict scrutiny, meaning the government has to show a very compelling interest for why they could curtail our First Amendment rights. If anti-queer discrimination is placed under rational basis review, legislators essentially just have to come up with something, and the Court will bless it. So it’s very important, symbolically and practically.
With that being said, there are so many judgment calls associated with these levels of review. Regardless of what level of scrutiny the Court ultimately assigns to a particular category, it is not going to stop us from advocating for people who need it. It’s never stopped us in the past.
RS: There’s been a lot of discussion around what it means to compromise with the Trump administration—in the context of the government shutdown, the administration’s attack on corporate legal firms, and even Brown’s decision to reach a settlement with the administration. I would love to hear your thoughts on these kinds of legal compromises.
SA: How any institution approaches engaging with those in power depends on its mission. We do not all play the same role vis-à-vis the Trump administration, so our approaches will differ.
At the ACLU, our work is primarily legal. We operate alongside advocacy organizations, political actors, and educational institutions, each accountable to different stakeholders. The Trump administration is absolutely trying to be a bully, but there are ways to navigate this current political terrain without compromising on core values and principles. It’s not necessarily constructive to automatically reject everything that the Trump Administration does. But every institution must look inside itself and say, “What are the things that are foundational to who we are, and that we are not willing to compromise on?”
Right now, too many institutions are failing to name those non-negotiables and hold that line. It is so disheartening to see so many legal institutions abandon principle in favor of profit. I have always believed that being a lawyer means something more than that.
We make compromises, too. We choose to operate under a Supreme Court that is often deeply problematic, because doing so allows us to fulfill our mission. We know where our lane is, and where compromise is acceptable. But too many institutions are violating their core principles in the name of cozying up to this administration.
RS: How do you and the ACLU navigate moments where what is right and what is legal are in conflict?
SA: It’s a great question, and it goes back to our institutional role.
We are an organization that attracts people who have deeply held beliefs about what is right and wrong, and that’s often what inspires them to come work for us. Each of us is entitled to our own moral judgements, and can (and should) participate as full-bodied, full-throated citizens in our electorate through voting, protesting, and voicing our opinions.
With this being said, our role as an institution is to operate in a legal capacity. That line is not always clear, and it sometimes leads to difficult internal conversations, but legal advocacy is where we have decided to funnel all of our resources.
RS: To close, I’d love to hear about what your favorite part of the job is, and if there are any rewarding moments that have stuck with you.
SA: I’m glad you asked this question. This work is heavy, and many of us felt trepidatious about going through another Trump administration. The first one was so hard on our organization, and our entire job is following current events and figuring out where we can get involved and make progress—so we don’t have the option of turning off the daily barrage of news.
With that being said, the moment that comes to mind was a few months ago, when it was widely reported Trump was going to send federal agents to the Bay Area. I had this moment of panic, wondering what more I could ask of my team. But within 24 hours, my attorneys, our staff, partner organizations, and our volunteers got a plan in place. I felt so inspired by the people at this organization. That is why I work here. When everything goes wrong, there are very few organizations that have the resources, the dedication, and the commitment to spring into action.
The surge was ultimately called off, but that day made me feel so energized and inspired. No matter what happens, this is a community that shows up. It doesn’t mean that we’re always going to win, or that our arguments are going to carry the day in court, but you cannot get the best of our team. They will always find a way to show up and meet the moment.
I know that I will never forget these moments. When my kids look back on this time, I’ll be able to tell them that this is where I spent my years, and that we did everything we could.
*This interview has been edited for length and clarity.