Jeannie Suk Gersen

... Right here in America, right now, it is possible to meet people who have lost everything—jobs, money, friends, colleagues—after violating no laws, and sometimes no workplace rules either. Instead, they have broken (or are accused of having broken) social codes having to do with race, sex, personal behavior, or even acceptable humor, which may not have existed five years ago or maybe five months ago. ...Conversations between people who have different statuses—employer-employee, professor-student—can now focus only on professional matters, or strictly neutral topics. Anything sexual, even in an academic context—for example, a conversation about the laws of rape—is now risky. The Harvard Law School professor Jeannie Suk Gersen has written that her students “seem more anxious about classroom discussion, and about approaching the law of sexual violence in particular, than they have ever been in my eight years as a law professor.”

Helen Shaw, theater critic at New York Magazine, joins us to discuss the return of Broadway ticket sales in anticipation of September’s reopening. WNYC planning editor Kate Hinds joins us to discuss the stories that the newsroom is covering this week. Laurie Woolever joins us to discuss World Travel: An Irreverent Guide, the final book Anthony Bourdain worked on, completed almost entirely after his death in 2018. Woolever, who was Bourdain's assistant and friend, served as co-author for this entertaining and practical guide to travelling to, eating at, and staying in some of Bourdain’s favorite places. The Supreme Court recently heard oral arguments in a case that could determine public school's abilities to police student's speech off campus. The case began when a young woman named Brandi Levy sent out an curse-laden Snapchat expressing her frustration at not making the Varsity cheerleading squad, and was suspended from the JV team. Jeannie Suk Gersen, John H. Watson, Jr., Professor of Law at Harvard Law School and New Yorker contributing writer, joins us to discuss the case, known as Mahanoy Area School District v. B.L.

An essay by Jeannie Suk Gersen: The story of Mahanoy Area School District v. B.L. began when Brandi Levy, a high-school freshman in eastern Pennsylvania, was passed over for the varsity cheerleading team. Levy took to Snapchat to express frustration...According to a coach, some students who saw the posts were “visibly upset” and found them “inappropriate.” Levy was suspended from cheerleading for a year for violating the team’s rules, which require that students “have respect” for the school, coaches, and teammates, avoid “foul language and inappropriate gestures,” and refrain from sharing “negative information regarding cheerleading, cheerleaders, or coaches...on the internet.” The coaches as well as the school district also maintained that she violated a school rule that athletes must conduct themselves during the season “in such a way that the image of the Mahanoy School District would not be tarnished in any manner.” Levy, represented by the American Civil Liberties Union, filed a lawsuit, alleging that her suspension from the team violated the First Amendment. Last week, the Supreme Court heard oral arguments in the case, which the Justices understood not only to raise the question of whether public schools may discipline students for speech outside of the school-supervised setting but also to implicate public schools’ power to punish students for discrimination, harassment, and bullying.

An essay by Jeannie Suk Gersen: The jury trial as we know it evolved from a medieval English practice in which jurors were people in the neighborhood who were already familiar with the parties or the events at issue. They were chosen precisely because they represented the local community’s knowledge of the case. Today, a “jury of one’s peers” consists of fellow-citizens whom we instead ask, ideally, to serve as blank slates: they are chosen for their lack of connection to the events and the ability to put prior views and influences aside in examining the evidence that is presented, and sometimes even dramatized, at trial. On Tuesday, after ten hours of deliberation over the course of two days, a Minneapolis jury found the former police officer Derek Chauvin guilty of two counts of murder and one count of manslaughter, for killing George Floyd, last May. In many ways, it was a conventional trial, in which eyewitnesses testified and experts weighed in on the disputed facts. Yet it called to mind a bygone mode in which the jury’s role was grounded in the act of witnessing.

An essay by Jeannie Suk Gersen: When I teach criminal law, I always begin with a deceptively simple case. A police officer shot and seriously injured a man who resisted arrest for a misdemeanor of illegal fishing. Did the officer commit the crime of assault? I’ve long thought that the force that police may use in making an arrest reveals one of the most basic facts about our society: that the state has power to inflict violence on us in certain circumstances, in the name of enforcing law. We consider it justified for police officers, unlike ordinary citizens, to inflict violence on individuals—with fists, batons, pepper spray, tasers, guns—up to the point of death, so long as the officer embodies valid legal authority and the amount of force is proportionate to what is needed to get the individual to submit to that authority. So, when police actions result in a person’s death, it is not necessarily a criminal homicide; that depends on whether the police are found to have used an excess of force. The killing of George Floyd, in May, 2020, set off worldwide protests of the deadly and pervasive subordination of Black Americans by the police. The homicide trial of the officer accused of killing Floyd, Derek Chauvin, which began in Minneapolis on March 29th, is focussed on a more discrete question.

An essay by Jeannie Suk Gersen: When I was an undergraduate at Yale, in the early nineteen-nineties, I went to the university’s gymnasium one evening each week for a women’s self-defense class. We were instructed on how to fight off would-be rapists with physical force, using our knees, elbows, fingernails, and keys, being sure to mark an attacker’s face for police identification. Walking to my dorm in the dark, I was alert to not being a victim. It was part of the informal feminist curriculum that also included Take Back the Night marches and the slogan “No Means No,” one that dates me to an era when women were trying to defy vulnerability. As a rape counsellor in those days, I remember chuckling with feminist peers when we heard about a new Sexual Offense Prevention Policy at Antioch College. The rules said that consent had to be asked for and given at each new level of sexual activity, with silence conveying a lack of consent. Saturday Night Live mocked the policy: “May I elevate the level of sexual intimacy by feeling your buttocks?” “Yes, you have my permission.” This stilted picture of how sex should proceed seemed absurdly unrealistic and made a small college’s policy a national punch line, despite its serious and understandable aim to prevent rape. At the time, even the category of “date rape,” on which I was trained to educate others, mostly envisioned a forcible act or one imposed on an incapacitated person.

No sooner had Joe Biden won the Presidential election than Republican state legislatures began introducing measures to make voting more difficult in any number of ways, most of which will suppress Democratic turnout at the polls. Stacey Abrams, of Georgia, has called the measures “Jim Crow in a suit and tie.” Congress has introduced the For the People Act, known as H.R. 1. Jelani Cobb looks at how the bill goes beyond even the Voting Rights Act of 1965 in its breadth, and how it will likely fare in the Senate. And Jeannie Suk Gersen speaks with David Remnick about the Supreme Court’s views on voting rights. The Court is currently weighing an Arizona case that will help decide what really counts as discrimination in a voting restriction.

The performer Derek DelGaudio—he’s a little uneasy with the label “magician”—talks with Michael Schulman about the nature of deception, onstage and in life. Jelani Cobb and Jeannie Suk Gersen discuss the most important measure on voting rights since 1965, and its uncertain fate in the Senate and possibly the Supreme Court. Plus, a scholar considers how trans rights look different through an African lens.

Does Joe Biden’s victory in 2020 represent the last gasp of an exhausted moderate tradition or does a potentially powerful center lie dormant in our embattled political system? Morris Fiorina, a political scientist at Stanford, argues in a series of essays and a book, “Unstable Majorities,” that it is the structure of the two-party system that prevents the center — the moderate majority of American voters — from asserting their dominion over national politics...Fiorina has many allies and many critics in the academic community. Those in general agreement include Jeannie Suk Gersen, a law professor at Harvard and a contributing writer to The New Yorker, who wrote in an email: “The fact that Joe Biden was the Democratic nominee and won the presidency in 2020, when there were many great candidates left of him, is evidence that a political center is not only viable but desired by the public.” For a centrist candidate, Gersen argued, “the main principle is compromise rather than all or nothing.” In the case of abortion, for example, the principle of compromise recognizes that the majority of Americans favor keeping abortion legal, but also favor some limits on abortion. Retaining a core right of abortion that respects both autonomy of adult individuals to make reproductive decisions and the value of potential fetal life is the approach that will seem acceptable to the majority of Americans and consistent with the Constitution.”

An essay by Jeannie Suk Gersen: Two weeks ago, The New Yorker published my article “Seeking the True Story of the Comfort Women.” I reported on recent claims by J. Mark Ramseyer, a Harvard Law School professor and Japanese legal-studies scholar, who said that the story of Korean “comfort women” forced into sexual servitude for the Japanese Army during the Second World War was, in his words, “pure fiction.” In an article published online by the International Review of Law and Economics, a peer-reviewed journal, Ramseyer asserted that the women were prostitutes who had freely entered contracts for compensated sex work. But, by following investigations into the article by historians of Japan and Korea, and speaking to Ramseyer himself, I found that he had made a multitude of basic errors and that he had no evidence of such contracts. “I thought it would be cool if we could get the contracts” for Korean comfort women, Ramseyer told me. “But I haven’t been able to find it. Certainly you’re not going to find it.” The history of the comfort women has presented a persistent obstacle for decades in the relations between Korea and Japan, which have been characterized by cycles in which Japan alternately acknowledges and denies responsibility, and Korea demands apology and rejects resolutions as insufficient.

When I spoke to the Princeton University legal scholar and political philosopher Robert P. George in August, he offered a vivid zoological metaphor to describe what happens when outrage mobs attack academics. When hunted by lions, herds of zebras “fly off in a million directions, and the targeted member is easily taken down and destroyed and eaten.” A herd of elephants, by contrast, will “circle around the vulnerable elephant.” ... George was then recruiting the founding members of an organization designed to fix the collective-action problem that causes academics to scatter like zebras. What had begun as a group of 20 Princeton professors organized to defend academic freedom at one college was rapidly scaling up its ambitions and capacity: It would become a nationwide organization...Today, that organization, the Academic Freedom Alliance, formally issued a manifesto declaring that “an attack on academic freedom anywhere is an attack on academic freedom everywhere,” and committing its nearly 200 members to providing aid and support in defense of “freedom of thought and expression in their work as researchers and writers or in their lives as citizens,” “freedom to design courses and conduct classes using reasonable pedagogical judgment,” and “freedom from ideological tests, affirmations, and oaths.” ... Some of the founding members from outside of Princeton include Randall L. Kennedy, Orlando Patterson, Jeannie Suk Gersen, Janet Halley, and Cornel West at Harvard; Brian Leiter and Dorian S. Abbot at the University of Chicago; Sheri Berman at Barnard; and Kathryn L. Lynch at Wellesley.

An essay by Jeannie Suk Gersen: In January, I was outlining an article I hoped to write about a recent judgment by a South Korean court ordering Japan to pay compensation for atrocities committed during the Second World War against “comfort women,” women and girls who were transported to war-front “comfort stations” to provide sexual services to soldiers in the Imperial Japanese Army. The women were taken by force or entrapped by deception in many countries in and beyond Asia, but a large number came from Korea, which, at the time, was a colony of Japan. Estimates of the number of victims have ranged widely, from tens of thousands to hundreds of thousands. On January 23rd, Japan announced that the Korean court’s judgment, which ordered a compensation of ninety-one thousand and eight hundred dollars to be paid to each of the twelve Korean comfort women who were plaintiffs in the case (seven of whom had died since it was filed, in 2013), was “extremely regrettable and absolutely unacceptable.” Japan said that it was not subject to Korea’s jurisdiction and considered the matter to have been previously settled. I was ruminating on how legal decisions relating to Second World War crimes against humanity might help resolve or aggravate historical traumas that seem impossible to leave in the past—in part, because they have been mired in waves of conflict and denial about the truth of what happened.

Chances are it is the most influential amendment to the US constitution that you aren’t familiar with. Given its impact, it is astonishing how little the 14th amendment is discussed in public life. Americans can’t rattle it off like the first and second amendments – but its words have fundamentally shaped the modern definition of US citizenship and the principles of equality and freedom entitled to those within the country’s borders...The amendment is a lodestar for all claiming the constitutional right to be treated fairly. Women, with the help of then attorney Ruth Bader Ginsburg, convinced the court in the 1970s that the 14th’s equal protection clause should apply to gender in the same way it is applied to race, both being immutable characteristics that don’t affect one’s ability. But women’s equality depends on control over their own bodies and the choice of when and whether to have children. In 1965, the right to privacy was established, founded on the 14th amendment’s due process clause, and this new concept was applied to Roe v Wade in 1973, which legalized abortion by determining that the decision to end a pregnancy belongs to the woman, not the state. “It’s an unfolding process,” said Jeannie Suk Gersen, a Harvard law professor, of the 14th amendment extending to the right to abortion. “It may not seem obvious as a path, but that is the process of constitutional law.”

As recently as 10 years ago, Jeannie Suk Gersen was still telling people that the area of law she specialized in—sexual assault and domestic violence—didn’t hold much interest for the general public. A quiet corner of the profession, she thought. Remembering that now, she laughs. “But, you know,” she adds, “every area of law does end up moving into focus. Because, in the end, law is really about every aspect of our lives.” Which is partly why Gersen, J.D. ’02, has always taken it so seriously. “Words don’t just describe things,” she explains. In the law, “words actually do things.” ... “Jeannie is intellectually fearless,” says Bemis professor of international law Jonathan Zittrain. That’s a common sentiment among her colleagues... “There are a lot of people who are afraid to say things in our business,” says Learned Hand professor of law Jack Goldsmith, “and she’s not afraid to say what she thinks.” ... “Her whole response to Title IX has been very, very striking—and I think completely correct,” says Beneficial professor of law Charles Fried, who was Gersen’s teacher before he was her colleague ... Says her former teacher, Loeb University Professor emeritus Laurence Tribe, “I was always impressed by how both meticulous and yet unconventional her insights were. She would often come at issues in a kind of perpendicular way. Rather than finding a point between A and B, she would say that maybe that axis is the wrong axis.” ... “She has one of those amazing brains,” says Williams professor of law I. Glenn Cohen, who worked on the Harvard Law Review with Gersen. “She was a year ahead of me in law school, and we all regarded her more like a faculty member, even back then. She just seemed to know everything.”

An essay by Jeannie Suk Gersen: Donald Trump is no longer the President of the United States. That is a tremendous relief. It is also the centerpiece of his defense in his upcoming impeachment trial, his second in thirteen months. Scarcely five weeks after the insurrection on the Capitol, the same Senate chamber that was desecrated by Trump’s followers (with one rioter even declaring at the dais that Trump won the election) will be the court of impeachment, to try Trump for “inciting violence against the Government of the United States.” Last week, Senate Republicans tried unsuccessfully to prevent the trial from going forward, by claiming that it is unconstitutional for the body to try a President who is no longer in office. Forty-five Republicans voted to quash the trial on that basis—including Mitch McConnell, who, as Majority Leader, made clear that a Senate trial could not begin before Trump left office. Their ability to rally around that uncertain constitutional argument—and to avert their eyes from the question of Trump’s guilt—appears likely to keep him from becoming the first impeached President to be convicted in the Senate. The Constitution’s Article I, which gives the Senate the “Power to try all Impeachments,” says that the remedy for a conviction “shall not extend further than to removal from Office, and disqualification to hold” federal office. A separate provision, in Article II, says, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

An essay by Jeannie Suk Gersen: For years, Carlton F. W. Larson, a treason scholar and law professor at the University of California, Davis, has swatted away loose treason accusations by both Donald Trumpand his critics. Though the term is popularly used to describe all kinds of political betrayals, the Constitution defines treason as one of two distinct, specific acts: “levying War” against the United States or “adhering to their Enemies, giving them Aid and Comfort.” Colluding with Russia, a foreign adversary but not an enemy, is not treason, nor is bribing Ukraine to investigate a political rival. Ordering the military to abandon Kurdish allies in Syria, effectively strengthening isis, is not treason, either—though that is getting warmer. During Trump’s Presidency, Larson told me, his colleagues teased him by asking, “Is it treason yet?” He always said no. But the insurrection of January 6th changed his answer, at least with regard to Trump’s followers who attacked the Capitol in an attempt to stop Congress’s certification of the election. “It’s very clear that would have been seen as ‘levying war,’ ” he said. Both of Trump’s impeachments, in 2019 and 2021, were for “high crimes and misdemeanors,” but the Constitution also names treason as an offense for which a President can be impeached. Individuals, including a former President, may also be criminally punished for treason, perhaps the highest offense in our legal system, carrying the possibility of the death penalty. Fearing abuse of treason charges, the Framers gave treason a narrow definition and made it extremely difficult to prove.

House Democrats filed an article of impeachment against President Donald Trump for the second time Monday, with a promise to move forward with the process if Vice President Mike Pence does not invoke the 25th Amendment by Wednesday. Jeannie Suk Gersen of Harvard Law School and Ben Clements, former chief legal counsel to Gov. Deval Patrick and chair of Free Speech for People, joined Jim Braude to discuss.

An essay by Jeannie Suk Gersen: One day after a mob incited by Donald Trump stormed and ransacked the Capitol, disrupting Congress’s certification of election results, Chuck Schumer, the soon-to-be Senate Majority Leader, and Nancy Pelosi, the Speaker of the House, said the President should be removed from office. Both proposed the Twenty-fifth Amendment to the Constitution, with Schumer describing it as the most effective legal means of removal. Under Section 4 of the amendment, which has been a subject of discussion throughout Trump’s Presidency, if a majority of the Cabinet were to join with Vice-President Mike Pence to declare to Congress that Trump is “unable to discharge the powers and duties of his office,” Pence would “immediately assume the powers and duties of the office as Acting President.” As Schumer said, “it can be done today.” The Cabinet was said to be considering it, but Pence reportedly opposes it. On Friday, Pelosi announced that the House would begin impeachment proceedings if Trump does not immediately resign. On Monday, at least a hundred and seventy House Democrats plan to introduce an article of impeachment charging Trump with “willfully inciting violence against the government of the United States.” There is little doubt that Trump did incite a mob to attack the Capitol in order to interfere with Congress’s performance of its constitutional duty in our democracy. On Wednesday, he gathered a crowd of thousands of supporters, fomented anger at an election that he falsely said had been stolen, and urged them to “walk down to the Capitol” and “fight much harder.”

An essay by Jeannie Suk Gersen: Donald Trump has regularly teased incriminating “tapes” of people whom he wanted to discredit; those have never materialized, but we are by now accustomed to tapes of his own perfidy. “Grab ’em by the pussy.” “I would like you to do us a favor, though.” And, now, in a phone call with Georgia’s secretary of state, Brad Raffensperger, “I just want to find eleven thousand seven hundred and eighty votes.” A recording of the call, from Saturday, published on Sunday by the Washington Post, shows that Trump attempted to coerce Raffensperger to “find” enough votes to overturn the results and warned of criminal consequences if the Georgia Republican did not. “I just want to find eleven thousand seven hundred and eighty votes, which is one more than we have,” Trump said. (Biden won Georgia by a margin of eleven thousand seven hundred and seventy-nine ballots.) The President suggested that “there’s nothing wrong with saying, you know, um, that you’ve recalculated.” On January 20th, the Justice Department’s stance that a President cannot be federally indicted while in office will no longer apply to Trump, so the question of whether he committed a crime is not merely theoretical. Federal election law makes it a crime to “knowingly and willfully” attempt to “deprive or defraud the residents of a State of a fair and impartially conducted election process” by the “tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent.” Trump appears to have done just that, by asking Raffensperger to announce a fictitious finding of just enough ballots for Trump to win the state, and backing up this demand with a veiled threat of penalty if Raffensperger doesn’t comply.

An essay by Jeannie Suk Gersen: After the Electoral College cast its votes and affirmed his victory, on Monday, Joe Biden declared that “democracy prevailed” and “faith in our institutions held.” And Senate Majority Leader Mitch McConnell finally congratulated Biden as President-elect and Kamala Harris as Vice-President-elect. On January 6th, a joint session of Congress will officially count the votes. The result should be more than assured. But last week brought the shock of seeing seventeen Republican state attorneys general and more than half of House Republicans sign amicus briefs supporting Texas’s unsuccessful bid to have the Supreme Court prevent four states’ electoral votes from being cast. That astounding show of loyalty to Trump made it imaginable that Republican lawmakers, having failed to convince the Court to overturn the election result, would use Congress to attempt it. On December 13th, Representative Mo Brooks, Republican of Alabama, announced his intent to dispute Biden’s victory by challenging the votes of five swing states in the January congressional session. The group he will lead in the effort so far includes Representatives-elect Barry Moore, from Alabama, and Marjorie Taylor Greene, from Georgia. This year’s election and post-election period have felt unprecedented in so many ways, but there are long-standing rules for challenging electoral votes for President on the floor of Congress.

An essay by Jeannie Suk Gersen: In a Rose Garden ceremony last week, Donald Trump described his final Thanksgiving ritual at the White House as “the official Presidential pardon of a very, very fortunate turkey.” The annual theatrics of the President sparing a bird from the fate of its flock provide a humorous performance of a profound power: the ability to grant an exception to the rule of law. In the waning days of a Presidency known for exceptional self-dealing, it seemed seasonable that Trump followed up the symbolic ceremony by actually pardoning Michael Flynn, his former national-security adviser, who pleaded guilty, in 2017, to the crime of lying to federal investigators about his contacts with the Russian Ambassador during the 2016 Presidential transition. The remaining weeks will involve drama about other associates, officials, and family members whom Trump may or may not pardon on his way out, including those who haven’t been convicted or even indicted. The candidates include Trump himself, who has stated in a tweet, “I have the absolute right to PARDON myself.” Whether or not Trump will create, in the coming weeks, the spectacle of the first Presidential self-pardon, Democrats’ desires for accountability may clash with the Biden Administration’s need to move forward and restore normalcy.

An op-ed by Jeannie Suk Gersen: In the opening of her memoir, “The Truths We Hold,” from 2019, Vice-President-elect Kamala Harris writes that, as a law student, she found her “calling” while interning at the Alameda County District Attorney’s Office, in Oakland, California, in 1988. Harris then spent nearly three decades in law enforcement, referring to herself as “top cop,” rising from local prosecutor to district attorney of San Francisco and then attorney general of California—the first woman and the first Black person in these jobs—until she joined the U.S. Senate, in 2017. When I was in law school, twenty years ago, prosecution was a form of public service that was thought to carry little controversial baggage. Marked as neither liberal nor conservative, it was also an all-purpose route for young people who aspired to political or judicial positions. In recent decades, former prosecutors have been ubiquitous in public life. President Bill Clinton and multiple Presidential nominees and candidates—John Kerry and Chris Christie, for example—were once prosecutors. So were New York Governor Andrew Cuomo, Michigan Governor Gretchen Whitmer, and several dozen members of Congress, including Senators Amy Klobuchar, Kirsten Gillibrand, Richard Blumenthal, Doug Jones, and Josh Hawley. Countless federal judges have been prosecutors, among them Justices Sonia Sotomayor and Samuel Alito, and also President Barack Obama’s last Supreme Court nominee, Merrick Garland, whose prosecution of Timothy McVeigh, for the Oklahoma City bombing, in 1995, was soon followed by President Clinton’s nomination of Garland to the D.C. Circuit Court of Appeals.

Decades of Supreme Court Precedent says colleges can use affirmative action in admissions—but the court's new composition could change all that. In this episode, Harvard Law School professor Jeannie Suk Gersen breaks down everything you need to know about the lawsuit alleging that Harvard discriminates against Asian Americans in admissions. She explains why the stakes of this case may be different from what you think, and why the question of whether Harvard discriminates against Asian Americans can be treated separately from affirmative action. And she speaks so poignantly about her own experience as an Asian American in elite institutions: "At some point in my past," she says, "I might've been one of the students who might've been rated lower" by the "personal" score used in Harvard's admissions process. This is a moving, wide-ranging conversation that goes deeper than most analyses of the admissions lawsuit.

An article by Jeannie Suk Gersen: Among the “firsts” associated with the 2020 election, the most norm-shattering of all will be if the candidate who lost never concedes to the one who won. After the major news outlets called the election for Joe Biden on Saturday, Donald Trump switched from insisting, “I won this election, by a lot,” to claiming that his loss was due to election fraud. Trump’s conduct seemingly has not fazed President-elect Biden as he proceeds into the transition; at the least, it was not a surprise, since Trump spent months making ominous and ungrounded predictions of voter fraud. There is, however, a limit to what Biden’s team can do, particularly in national security, if the Trump Administration holds up a transfer of power, as the head of the General Services Administration has done thus far by not formally recognizing the transition.

No matter the vote count, legal challenges and resistance in Washington continue to make this election historically fraught. David Remnick speaks about the state of the race with some of The New Yorker’s political thinkers: Susan B. Glasser, Evan Osnos, Jeannie Suk Gersen, and Amy Davidson Sorkin. Plus, Jill Lepore on threats to democracy in the past and how they were addressed.

President Donald Trump and the Republicans have launched a number of lawsuits against battleground states where vote-counting continues, although judges in two states — Georgia and Michigan — had rejected their claims by Thursday afternoon. To discuss, Jim Braude was joined by Margery Eagan of GBH News and Jeannie Suk Gersen, a professor at Harvard Law School and a contributing writer at the New Yorker magazine.

An op-ed by Jeannie Suk Gersen: During Donald Trump’s Presidency, we have called political events “constitutional crises” far more often than in any period in memory. Before 2016, the term was used rarely, and the last time there was concern about a possible constitutional crisis was in the aftermath of the Presidential election of 2000, which culminated in the Supreme Court’s Bush v. Gore decision, more than a month after Election Day. As we approach the decision’s twentieth anniversary, with a President who has promised to take the election results to the Court, we may be facing a possible repeat of those events—and perhaps a genuine constitutional crisis around the Presidential election, which could prove much more chaotic and difficult to resolve. A constitutional crisis is not merely an instance of the Constitution being disobeyed or going unenforced. It is, rather, a much more confounding situation, in which two branches of government are in an active conflict with each other but our constitutional rules and norms do not tell us how to resolve it. There was a true constitutional crisis around the Presidential election of 1876, when neither Samuel J. Tilden, a Democrat, nor Rutherford B. Hayes, a Republican, won a majority of the Electoral College. (Tilden won the popular vote.) In Florida, South Carolina, and Louisiana, where vote counts were close and products of manipulation, rival Democratic and Republican electors attempted to get Congress to recognize their votes. To end a months-long political conflict, which was marked by intimidation, disenfranchisement, and threats of violence, Congress appointed a bipartisan electoral commission, consisting of members of each house and the Supreme Court. The commission reached an ugly compromise, to withdraw federal troops from the South, effectively ending Reconstruction, in exchange for awarding the disputed states’ electoral votes to Hayes, who became President.

Donald Trump has changed the ideological cast of our entire federal court system, appointing the most appellate-court judges in a single term since Jimmy Carter, along with three conservative Justices to the Supreme Court. Jeannie Suk Gersen, a contributing writer and a professor at Harvard Law School, unpacks the complicated question of court-packing. Joe Biden’s cautious engagement with the strategy, she thinks, is smart politics. The Supreme Court’s members “do not want to see Congress mess with the number of Justices on the Court or the terms,” she tells David Remnick. “So they now also understand . . . that they’re being watched with an idea that the institution can change without their being able to control it.”

The Presidency of Donald Trump has been unlike any other in America’s history. While many of his core promises remain unfulfilled, he managed to reshape our politics in just four years. On the cusp of the 2020 election, David Remnick assesses the Trump Administration’s impact on immigration policy, the climate, white identity politics, and the judiciary. He’s joined by Jeannie Suk Gersen, Jonathan Blitzer, Bill McKibben, Keeanga-Yamahtta Taylor, and Andrew Marantz.

An op-ed by Jeannie Suk Gersen: This week, Amy Coney Barrett begins her life-tenured appointment as the newest Supreme Court Justice. If she lives as long as did Ruth Bader Ginsburg, whom she replaces, she could serve on the Court for four decades. Barrett’s confirmation may be the last act of a Republican majority for years. In Barrett’s first days as a Justice, the election results will likely flip the party of the President and of the Senate that swiftly confirmed her. Indeed, as it became increasingly clear this fall that the Democrats would probably win the Presidency and both houses of Congress, it became all the more important for the Republicans to push through a Court confirmation while they could. As Mitch McConnell, the Senate Majority Leader, put it, on Sunday, “a lot of what we’ve done over the last four years will be undone sooner or later by the next election,” but Democrats “won’t be able to do much about this for a long time to come.” Democrats certainly can’t undo Barrett’s appointment to the Court, but with the expectation of being able to wield power soon, they have stepped up a discussion of “court-packing,” in order to undermine a 6–3 conservative majority that otherwise may be entrenched for a generation. Some have protested that court-packing would be an abuse of power, but political maneuvering over Court seats dates to the beginning of the country. When Congress established the Supreme Court, in 1789, it stipulated that the Court should have six Justices. Twelve years later, Thomas Jefferson won a bitterly fought campaign against President John Adams, and control of Congress flipped from Adams’s Federalist Party to Jefferson’s Democratic-Republicans. During the lame-duck Congress, the Federalists attempted to hold onto some power by legislating that the next Justice to retire would not be replaced, reducing the Court’s total number to five. But Jefferson and the new Congress changed the number back to six and eventually added another seat. During the following decades, the number of Justices rose to nine, and then to ten, and then came back down to nine.

An op-ed by Jeannie Suk Gersen:  Throughout the past four years, there has been chatter about Donald Trump’s mental health and stability, but little political will to make use of the Twenty-fifth Amendment to the Constitution, which allows Congress to deem a President “unable to discharge the powers and duties of his office” and remove him from power. The discussion resurfaced more seriously this month, however, in light of Trump’s hospitalization for covid-19 and the White House’s lack of transparency around his treatment. The news that he was medicated with the steroid dexamethasone, used for seriously ill covid-19 patients, also alarmed many because its known side effects include aggression, agitation, and “grandiose delusions”—behaviors that, judging from the President’s Twitter account, at least, he already seemed to exhibit. On October 9th, House Speaker Nancy Pelosi unveiled a new bill to establish a Commission on Presidential Capacity to Discharge the Powers and Duties of the Office, which would help carry out the Twenty-fifth Amendment process in the event that the President becomes incapable of doing his job. (Sponsored by the Democratic representative and former constitutional-law professor Jamie Raskin, of Maryland, the House bill is similar to one he introduced in 2017.) Announcing the bill only a week after disclosure of the President’s covid-19 diagnosis and three weeks before the election, Pelosi invoked the Amendment as a “path for preserving stability if a President suffers a crippling physical or mental problem.” She added, “This is not about President Trump. He will face the judgment of the voters, but he shows the need for us to create a process for future Presidents.” Section four of the Twenty-fifth Amendment provides two distinct avenues for removing a President against his will. In one, the Vice-President joins with a majority of the Cabinet to send Congress a written declaration that the President is unable to serve. In the other, the Vice-President does so along with a majority of “such other body as Congress may by law provide.”

An op-ed by Jeannie Suk Gersen: My one real conversation with Justice Ruth Bader Ginsburg took place in 2004, when I was a law clerk for Justice David Souter. Ginsburg invited my colleagues and me for tea in her chambers, where she served pastries baked by her husband. Ginsburg recalled the initial revelation of the term “sexual harassment,” which put a name to a phenomenon that, she said, “every woman” understood. Among her stories was one that is widely known today, about the sexism of the nineteen-fifties. When Ginsburg was a student at Harvard Law School, the handful of women in her class were invited to a gathering at which the dean asked each of them to justify taking a spot that could have gone to a man. Four decades later, when Justice Byron White, who had dissented in Roe v. Wade, retired from the Supreme Court, the spot that opened up did not go to a man but to Ginsburg, who by then was a judge on the D.C. Circuit and a longtime heroine of the women’s movement. And, in just a few weeks, her seat will likely be occupied by another woman, the Court’s fifth ever: Amy Coney Barrett, another circuit-court judge and a former professor at Notre Dame Law School, whom liberals and conservatives alike expect to enable the dismantling of Roe and perhaps the undoing of Ginsburg’s legacy. When President Trump announced Barrett’s nomination, on September 26th, she paid homage to Ginsburg, who “began her career at a time when women were not welcome in the legal profession,” and promised that, if confirmed, she will “be mindful of who came before me.” But Barrett, who clerked for Justice Antonin Scalia, is a conservative; she said that Scalia’s “judicial philosophy is mine, too.” During her confirmation hearings, she has been asked to justify replacing a great liberal feminist Justice, taking a spot that, after the election, could perhaps have gone to a Democrat.

An article by Jeannie Suk Gersen: In 1946, William K. Wimsatt and Monroe C. Beardsley argued, in their classic essay, “The Intentional Fallacy,” that critics interpreting a literary work should cast aside pursuit of the author’s intent. “The poem belongs to the public,” they wrote, because “it is embodied in language, the peculiar possession of the public.” The New Criticism, a movement that dominated the academic study of literature in mid-century, asserted that only close analysis of the words and structure of the text—not external knowledge about the author, politics, morality, or a reader’s feelings—was the key to understanding its meaning. Salvatore Eugene Scalia, a professor of Italian literature at Brooklyn College, was an adherent of this theory. He also advocated for “literalness” in reading and translation, to avoid “yielding to the temptation” to follow one’s own language’s conventions in interpreting the words of the text. The New Criticism fell from prominence in the nineteen-eighties, but its impact became discernible in another field, through Professor Scalia’s only child, who was appointed to the Supreme Court in 1986, the same year that the elder Scalia died. Justice Antonin Scalia became the country’s most important expositor of textualism, the influential method of legal interpretation wherein “the text is the law, and it is the text that must be observed,” regardless of what lawmakers may have intended in passing the law. Since the nineteen-eighties, textualism has been favored by legal conservatives—but, in more recent decades, its focus on the words of a text has become influential with liberal judges, too. Last Monday, under the shadow of Antonin Scalia, who died in 2016, the current conservative Justices aired their strife over his textualist legacy in Bostock v. Clayton County, a landmark gay-and-transgender-rights case.

Education Secretary Betsy DeVos fired a shot last month in the nation’s culture wars, overhauling how colleges handle investigations of sexual assault and ending what she called Obama-era “kangaroo courts” on campus. The new Education Department rules give more protections to the accused, primarily young men who face discipline or expulsion as a result of allegations of sexual misconduct...But Ms. Devos’s actions won praise from a surprising audience: an influential group of feminist legal scholars who applauded the administration for repairing what they viewed as unconscionable breaches in the rights of the accused. “The new system is vastly better and fairer,” said Prof. Janet Halley, who specializes in gender and sexuality at Harvard Law School. “The fact that we’re getting good things from the Trump administration is confusing, but isn’t it better than an unbroken avalanche of bad things?” There are few more contested cultural battlegrounds than college campuses and the rules that govern sexual misconduct and due process, and thorny questions of how to define sexual consent... “I’m a feminist, but I’m also a defense attorney who recognizes the importance of due process,” said Prof. Nancy Gertner, a retired federal judge and lecturer in law at Harvard, who opposed the Obama-era rules. “These are fences I’ve straddled all my life.” ...Jeannie Suk Gersen and her husband, Jacob E. Gersen, also Harvard professors, have joined in the critique of Title IX. They wrote a law review article critiquing the creation of a federal “sex bureaucracy,” which they said leveraged “sexual violence and harassment policy to regulate ordinary sex.” Professor Suk Gersen’s assessment of the DeVos changes appeared in The New Yorker.

An article by Jeannie Suk Gersen: I first saw the “Hospital Arraignment” shift listed on my schedule as a rookie prosecutor in Manhattan, in 2004. I soon learned that criminal arraignments routinely took place around a hospital bed, because it was common for a person to be seriously injured during his or her arrest. A judge, prosecutor, defense lawyer, and court reporter would travel in a car to a local hospital, where the person lay handcuffed to the bed, and proceed to conduct the court hearing, stating the crime charged, asking for the defendant’s plea, and sometimes setting bail. My first time, the defendant, a middle-aged African-American man who was arrested for a misdemeanor, was bloodied from head wounds and was moaning in pain. The police claimed, incredibly, that the man had put his own head through the window of a police car. We all knew that police officers’ use of force was common, that they commonly tacked on an accusation of “resisting arrest” to misdemeanor charges in order to justify it, and that the legal system would believe an officer’s account over an arrestee’s claim of excessive force. My questioning of police accounts of arrests quickly led to my having an unfavorable reputation among cops I worked with. I left the job only six months after I started. George Floyd, of course, did not make it to a hospital arraignment in Minneapolis on May 25th. He was killed by a white officer, Derek Chauvin, in the course of an arrest on suspicion of using a counterfeit twenty-dollar bill to buy cigarettes. Chauvin kneeled on Floyd’s neck for nearly nine minutes while Floyd pleaded, “Please, I can’t breathe.” Floyd’s death, in the light of day, as three other officers looked on or helped restrain him, was captured on video by a teen-age bystander.

An article by Jeannie Suk Gersen: In the more than two hundred and thirty years since the Constitution was ratified, no lawsuit had attempted to enforce its anti-corruption provisions—until the Presidency of Donald Trump. Two previously obscure provisions of the Constitution, known as the emoluments clauses, aim to prevent public officials from being improperly beholden to foreign and domestic governments. One, the foreign-emoluments clause, requires a person holding a federal “office of profit or trust” to get Congress’s consent before accepting any “emolument”—an advantage, gain, or profit—from a “foreign state.” The other, the domestic-emoluments clause, prohibits the President in particular from receiving any “emolument” from the federal government or from a state, other than the preset standard salary for the job of President. Previous Presidents did not present the need for courts to interpret these clauses’ meaning. And, for the same reason that Trump is so different from other Presidents—his brazen disregard of legal norms—several lawsuits claiming that he is violating the emoluments clauses may end up forcing the unfortunate recognition that the Constitution’s anti-corruption measures are ineffectual when most needed.

In 2011, the Obama administration transformed Title IX law by issuing its “Dear Colleague" letter, a set of recommendations encouraging colleges to amplify their protections of victims of campus sexual assault and harassment. But the Dear Colleague letter's guidelines have proved difficult for colleges to adhere to — and have attracted many critics, primarily for their failure to provide due-process protections for accused students. Harvard Law School’s Jeannie Suk Gersen is one of those critics. In her regular columns at The New Yorker and in a California Law Review article entitled “The Sex Bureaucracy” (a version of which appeared in The Chronicle Review), Gersen has argued that the Obama-era Title IX regime was “detrimental to the fight against sexual violence.” Under Betsy DeVos, U.S. secretary of education in the Trump administration, that regime is about to undergo major changes. The Chronicle Review spoke with Gersen about the new rules, how the Title IX debate became so polarized, legal challenges to DeVos by the ACLU, and the role of the law professor as public intellectual.

An article by Jeannie Suk Gersen: This spring, the coronavirus pandemic has upended college and university life, as campus classes, dormitories, and social activities have been abruptly displaced by online instruction. As exams and graduation ceremonies proceed virtually this month, some schools are announcing plans to cancel or delay the fall semester or to run it partly or entirely online. On May 6th, amid this chaos and uncertainty, Betsy DeVos’s Department of Education issued its regulations on Title IX, which impose new legal requirements on how schools must conduct their discipline processes for sexual harassment and assault. Immediately, prominent civil-rights attorneys expressed outrage. Catherine Lhamon, the chair of the U.S. Commission on Civil Rights and the assistant secretary for civil rights in Obama’s Education Department, tweeted that DeVos is “taking us back to the bad old days . . . when it was permissible to rape and sexually harass students with impunity.” Fatima Goss Graves, the president and C.E.O. of the National Women’s Law Center, wrote, “We refuse to go back to the days when rape and harassment in schools were ignored and swept under the rug.” In a statement, Nancy Pelosi called the new regulations “callous, cruel and dangerous, threatening to silence survivors and endanger vulnerable students in the middle of a public health crisis.” It was unclear, however, precisely what aspects of the regulations were so extreme and alarming.

An article by Jeannie Suk Gersen: A truth that burst into public view with #MeToo in 2017 was that sexual exploitation in its many forms has been ubiquitous and experienced largely by women. So anyone following the story of #MeToo could hardly find it shocking that, after a promising primary season with a record number of excellent female candidates, the first Presidential election since the movement’s rise has come down to a race between two men who have both been accused of sexual assault. Tara Reade has accused Joe Biden of sexually assaulting her twenty-seven years ago, and several women have accused him of unwanted touching. More than a dozen women have accused Donald Trump of sexual assault and misconduct, and he has bragged on tape about grabbing women’s genitals. It is unlikely that the Democratic Party will abandon their only candidate who remains in the race, and who leads Trump in polls. So many liberals, who are justifiably desperate to turn the page on the horrors of Trump’s Presidency, are grasping at the world of difference between Trump and Biden—and viewing Reade’s sexual-assault allegation more skeptically than #MeToo has allowed in recent times. This moment may prove to be a pivotal chapter of #MeToo, which marks its more mature reckoning with its deeper goals. And, in fact, there is a no more fitting person to embody that development than Biden, whose long career has repeatedly positioned him at the levers of power in the government’s responses to sexual violence.

An article by Jeannie Suk Gersen: During his confirmation hearing, in 2018, Brett Kavanaugh insisted that “one of the greatest moments in American judicial history” was the case of United States v. Nixon, in 1974. In a unanimous decision, written by Chief Justice Warren Burger, one of President Richard Nixon’s appointees, the Supreme Court rejected Nixon’s claim of absolute executive privilege, ordering him to comply with a judicial subpoena to turn over the White House tapes that would lead to his resignation. In an article from 2016, Kavanaugh wrote, admiringly, that the Justices “stood up to the other branches, were not cowed, and enforced the law.” In the coming months, several cases will test the Court’s strength in this regard. In each of these cases, President Donald Trump is attempting to block the examination of his conduct, by claiming that the chief executive is immune from various forms of investigation. At stake in these cases is the public’s ability to know about, and seek accountability for, misconduct. But, more important, they represent a gut check for our system of separation of powers. As the Supreme Court hears these cases, beginning this month and extending through the next term, it will enter what may prove to be among its greatest moments or its worst.

An article by Jeannie Suk Gersen: During my first year teaching at Harvard Law School, I fell flat on my face. In addition to prepping for class like a maniac, I spent an inordinate amount of time cultivating a professional aura. I always dressed up for class, did my hair, and put on makeup. One day, I found myself late getting to class. In my pencil skirt and heels, I entered the amphitheatre-style classroom from the back. My fifty students were already seated and ready. Rushing down the gauntlet of steps toward the podium, carrying my casebook, teaching notes, seating chart, and a hot tea, I felt my ankle buckle. Everything flew out of my hands and I face-planted. The univocal gasp of my students still haunts my nightmares. I thought, in that moment, that my teaching career was over, but I got up, walked to the podium, and began teaching the class, because I didn’t know what else to do. I was immediately more relaxed and comfortable than I’d ever been in the classroom—and so, it seemed, were my students, who loosened up immensely...Teaching over Zoom has revealed the role that spatial distance plays in education in the first place. The geography of a large classroom, with the professor at the front, automatically communicates the hierarchy that separates teacher and students. That distance is visually erased in a Zoom class, where there’s no podium, or front or back of the room. The face of the professor appears onscreen in the same way as the faces of students when they speak. The closeup view brings everyone in close.