Jeannie Suk Gersen

Jeannie Suk Gersen is the John H. Watson, Jr. Professor of Law at Harvard Law School and a contributing writer at The New Yorker. She writes widely about the law and its impact on society. In this week’s conversation, Jeannie Suk Gersen and Yascha Mounk discuss the value of robust debate in law school classrooms, the perils of eroding due process in the name of progress, and the legitimacy of the Supreme Court.

During a recent Supreme Court hearing, Justice Brett Kavanaugh advanced this case for reversing precedent and canceling a woman’s right to make critical health decisions for herself: “The Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process.” On the surface, that sounds fair. In a democracy, let “the people” decide what the law should be. But Kavanaugh’s argument is deeply disingenuous, and he profoundly misreads the nature of America’s political tradition. In our system, when a right is deemed fundamental, it cannot be abrogated by a popular vote. The founders created a network of checks and balances — especially the federal courts — to protect the rights of individuals, even when they are unpopular. As Harvard law professor Jeannie Suk Gersen wrote in The New Yorker: “The point of a fundamental constitutional right is that it shouldn’t be at the people’s mercy, particularly when the composition of the Court itself has been shifted through political means for this purpose.”

Abortion has been discussed intensely this past week due to oral arguments in a Supreme Court case that could significantly alter the constitutional right to the procedure in the United States. At issue is a Mississippi law that bans abortions after 15 weeks of pregnancy, contra current precedent. If upheld, the law will likely inspire new abortion restrictions in many red states. We begin with the law’s sponsor, Becky Currie, a Mississippi state legislator and registered nurse. “I pray my bill will save millions of babies,” she wrote in Newsweek, where she explained that she’s helped to deliver many, including a 14-week-old born too early to survive. ... The Harvard Law professor Jeannie Suk Gersen framed the law differently. In her telling, it is not an attempt to restore a right to life; it is an attempt to abrogate a constitutional right to privacy and bodily autonomy. “The conservative Justices seemed eager to ‘return’ the question of abortion to the people,” she wrote after listening to oral arguments in the case. “But the point of a fundamental constitutional right is that it shouldn’t be at the people’s mercy, particularly when the composition of the Court itself has been shifted through political means for this purpose.” What’s more, she argued that the Supreme Court would undermine its own authority by overturning a long-standing precedent in response to a state law that ran afoul of it. As she put the argument: “The spectacle of states brazenly flying in the face of the Court’s constitutional precedents, shortly followed by the Court’s discarding those precedents to make illegal actions legal after all, would effectively communicate that the Supreme Court is not, in fact, supreme.”

An article by Jeannie Suk Gersen: The legal landscape of the past weeks and months has prompted questions of which people and entities are legitimate interpreters and enforcers of the law and what happens when you take the law into your own hands. Mississippi and other states took the recent changes in personnel on the Supreme Court as an invitation to defy the Court’s constitutional rulings on abortion, and those states now seem likely to prevail. During oral arguments in Dobbs v. Jackson Women’s Health Organization, last Wednesday, the three liberal Justices often seemed to be delivering dirges, as though they had accepted a loss and were speaking for posterity. Mississippi’s ban on abortions after fifteen weeks of pregnancy, which boldly flouts the Court’s precedents setting the line at around twenty-four weeks, is likely to be upheld by the conservative Justices. The arguments offered scant reason for hope that Roe v. Wade will be reaffirmed; the newest conservative Justices, Brett Kavanaugh and Amy Coney Barrett, signalled no qualms about overruling Roe as wrongly decided, which would make a majority of at least five. At a time when the Court’s legitimacy appears extremely fragile, it is telling that the majority’s response to having the supremacy of the Court’s decisions defied seems to be acquiescence and approval.

Vice President Kamala Harris cast the tie-breaking vote in October to confirm Catherine Lhamon to lead the Department of Education's Office for Civil Rights (OCR). When Lhamon held the same position under the Obama administration, her office enforced Title IX—the federal statute prohibiting sex-based discrimination in education—in a manner that endangered fundamental free speech and due process rights. ... Last year, the Department of Education enacted new, balanced regulations that protect the rights of all students, consistent with many judicial rulings. ... Prominent feminist legal scholars, including Harvard Law professors Jeannie Suk Gersen and Janet Halley, as well as the University of San Francisco Law School's Lara Bazelon, heralded the regulations for their overall fairness and for rectifying injustices in OCR's prior policies.

Podcast featuring Jeannie Suk Gersen, John H. Watson, Jr. Professor of Law: Will the Supreme Court Overturn Roe v. Wade? Critical cases on abortion rights are being heard by a 6–3 majority of conservative Justices. The decisions will have repercussions for everyone of childbearing age.

Detroit could be the latest big city to decriminalize "magic mushrooms" and other psychedelics drugs as residents take to the polls Tuesday. Voters will be asked under proposal E: "Shall the voters of the City of Detroit adopt an ordinance to the 2019 Detroit City Code that would decriminalize to the fullest extent permitted under Michigan law the personal possession and therapeutic use of Entheogenic Plants by adults and make the personal possession and therapeutic use of Entheogenic Plants by adults the city's lowest law-enforcement priority?" ... Harvard Law School launched the Project on Psychedelics Law and Regulation this summer to examine the legal framework around psychedelic research. "Preliminary research suggests that psychedelics could hold major benefits for people experiencing trauma and post-traumatic stress disorder," Harvard Law professor Jeannie Suk Gersen said in a statement. "By analyzing social, legal, and political barriers to access in this context, we hope to advance the understanding of their potential impact as therapeutics."

The panel of judges hearing a lawsuit from which all the judges on a circuit have recused themselves was revealed Monday, after the lawyers behind the case requested to know which judges would preside over the appeal. The full U.S. Court of Appeals for the Fourth Circuit is recused from the lawsuit filed by “Jane Roe,” a former federal public defender who is alleging harassment while in her job and mounting a challenge to the way the federal judiciary handles misconduct complaints. The complaint names the circuit, as well as its chief judge and judicial council. Federal public defenders fall under the scope of the federal judiciary. ... The Fourth Circuit typically does not reveal the panel of judges hearing a case until the morning of arguments. Cooper Strickland and Harvard Law professor Jeannie Suk Gersen, who are representing Roe in the case, on Oct. 29 filed a motion to publicly post the judges presiding in the case, noting that orders had been issued but it was unclear who was behind those orders.

The attorneys behind a former federal public defender’s lawsuit challenging the judiciary’s approach to handling misconduct claims want to find out which judges are considering the case’s appeal, after the entire circuit recused itself from the case. The Jane Roe lawsuit is currently before the U.S. Court of Appeals for the Fourth Circuit. The full circuit recused itself soon after the appeal was filed, presumably because the complaint names the circuit, its chief judge and judicial council. Lawyer Cooper Strickland and Jeannie Suk Gersen, a professor at Harvard Law School, on Friday filed a motion requesting that orders “resulting from this intercircuit-assignment process” be filed on the public docket for the case. “This public disclosure is required by statute, as well as constitutional principles of fairness and transparency in judicial proceedings,” the filing reads. The opposing parties in the case, represented by the Justice Department, have no position on the motion, according to the filing.

Marriage takes a lot of work. And part of preventing eventual heartache, says law professor Jeannie Suk Gersen, is seeing marriage and partnership through the lens of divorce. Jeannie Suk Gersen is the John H. Watson, Jr. Professor of Law at Harvard Law School, where she has taught courses on constitutional law, criminal law and procedure, family law, and sexual assault and harassment.

An article by Jeannie Suk Gersen: Earlier this year, Brandeis University’s Prevention, Advocacy, and Resource Center released a “Suggested Language List,” developed by “students who have been impacted by violence and students who have sought out advanced training for intervening in potentially violent situations.” The students’ purpose, they wrote, was “to remove language that may hurt those who have experienced violence from our everyday use.” They proposed avoiding the idioms “killing it,” “take a stab at,” and “beating a dead horse.” I was struck that one of the phrases they recommended avoiding was “trigger warning,” and that the proffered explanation was sensible: “ ‘warning’ can signify that something is imminent or guaranteed to happen, which may cause additional stress about the content to be covered. We can also never guarantee that someone will not be triggered during a conversation or training; people’s triggers vary widely.”

A novel lawsuit challenging the federal judiciary's handling of sexual harassment is "emblematic" of all that is wrong with the courts as a workplace, say advocates, who warn that a ruling favoring the judiciary could leave its employees with few options to combat misconduct. ... That lack of statutory protections is one of the reasons why Roe's suit claims the judiciary's failure to address her harassment complaints violated the due process and equal protection clauses of the Fifth Amendment, according to professor Jeannie Suk Gersen of Harvard Law School, who is serving as lead counsel on Roe's appeal. “Roe cannot bring a claim under Title VII, or any other federal employment statute, because it does not cover the 30,000 federal judiciary employees,” Gersen said. “That would be an unacceptable gap in legal protection against employment discrimination, if the Constitution did not protect those employees from discrimination.”

Leah is joined by Jeannie Suk Gersen and Deeva Shah to discuss an important case, Roe v. United States, about the procedures for addressing workplace misconduct in the federal courts.

A column by Jeannie Suk Gersen: In “The Origins of Totalitarianism,” Hannah Arendt observed the early tendency of a totalitarian regime to draft private citizens to conduct “voluntary espionage,” so that “a neighbor gradually becomes a more dangerous enemy than officially appointed police agents.” Echoes of this fear could be felt in the dissents from the Supreme Court’s decision on Wednesday not to block enforcement of a Texas law that prohibits abortion after roughly the sixth week of pregnancy. The statute, enacted in May, authorizes citizens to file a lawsuit against a party that performs or even unintentionally “aids or abets” such an abortion, and to exact damages of at least ten thousand dollars for each forbidden abortion from that defendant if they win the case. As Justice Sonia Sotomayor put it in her dissenting opinion, “The Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.” Chief Justice John Roberts and Justices Stephen Breyer and Elena Kagan also dissented; each penned dissenting opinions emphasizing the novel structure of the legislation, which delegates enforcement to members of the general populace.

... In support of a lawsuit filed by a former public defender in North Carolina, more than 20 current and former law clerks and employees of federally funded public defender’s offices and the Administrative Office of the U.S. Courts in Washington offered firsthand accounts of a system that they say still lacks protections and procedures to hold officials accountable. ... On appeal at the 4th Circuit, Roe is represented by Harvard Law School professor Jeannie Suk Gersen and has the backing of more than 40 public-interest and civil rights organizations, in addition to constitutional scholars. Gersen said in a court filing last week that the judiciary’s internal complaint system was rife with conflicts of interest and failed to provide meaningful review or to stop the harassment. The system “facilitated and aggravated the hostile work environment, which became so intolerable that Roe was forced to resign and lose her career as a federal public defender.”

... 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.