Jeannie Suk Gersen

Monetary remedies for judiciary workers in misconduct disputes and an anonymous nationwide survey for employees are among recommendations in a new report by a working group on judiciary misconduct. Sent to employees internally on Wednesday, the report includes nine new proposed steps that seek to build on changes the judiciary adopted following its own reckoning with the #MeToo movement. ... The report comes ahead of ahead of a House Judiciary Committee hearing scheduled for Thursday about the flaws in the current reporting system in the judiciary and need for statutory change. Caryn Devins Strickland, a former federal defender who brought sex discrimination claims against the federal courts and officials in a suit currently before the U.S. Court of Appeals for the Fourth Circuit, is among the scheduled witnesses, her lawyer Jeannie Suk Gersen confirmed. Strickland had been referred to in court documents only as Jane Roe but shed her pseudonym in a Wednesday court document ahead of the hearing.

An attorney suing the federal judiciary over its protocols for handling harassment complaints will speak at a House Judiciary subcommittee hearing about flaws in the judicial branch’s workplace protection policies. Caryn Devins Strickland, a former North Carolina public defender, filed a notice of intent on Wednesday to withdraw the “Jane Roe” pseudonym from her complaint, which alleges that the judiciary’s protocols for handling workplace misconduct are unconstitutional and failed to protect her from harassment by a supervisor at the Federal Defender Office for the Western District of North Carolina. Strickland is now seeking to revive the lawsuit after a district judge dismissed it last year. Strickland is among several people who will appear before the House members Thursday, according to her attorney, Jeannie Suk Gersen, and an advisory from the committee.

A former public defender, who has been pursuing a high-profile legal challenge to the federal judiciary's process for handling sexual harassment complaints under a pseudonym, is stepping forward to inform Congress about the judiciary's "unfair and biased" procedures. Caryn Devins Strickland, a former federal public defender in North Carolina, said she decided to shed the pseudonym in order to testify publicly before a subcommittee of the U.S. House of Representatives' Judiciary Committee examining sexual harassment in the judiciary. ... The case is Roe v. United States, 4th U.S. Circuit Court of Appeals, No. 21-1346. For Roe: Jeannie Suk Gersen of Harvard Law School and Cooper Strickland

Two of the three out-of-circuit judges assigned by U.S. Chief Justice John Roberts to hear an ex-North Carolina assistant federal public defender's Fourth Circuit appeal in her sexual harassment suit suggested Wednesday that the federal judiciary did not seem to have followed its procedures to redress workplace misconduct claims when the public defender aired her allegations. ... Harvard Law School professor Jeannie Suk Gersen, who is representing Roe, rejected what she called false claims by the government that her client failed to file a formal internal complaint with the judiciary. "They were the ones who allegedly forced her to resign and withdraw the claim," Gersen said.

An article by Jeannie Suk Gersen: In September, 2020, when the death of Justice Ruth Bader Ginsburg opened up a seat on the Supreme Court, President Donald Trump said that he expected to name a nominee soon, and specified, “It will be a woman—a very talented, very brilliant woman.” A number of female jurists were discussed as top contenders, and he chose Amy Coney Barrett as the nominee. Neither Democrats nor Republicans objected to the stated intention to nominate a woman. Indeed, many would have taken issue with the idea of Ginsburg being replaced by a man—which would have decreased the number of women on the Court from three to two.

A former federal public defender is asking an appellate panel to either vacate a lower court’s ruling against her, or disqualify itself from deciding her sexual harassment claims against the judiciary, citing a conflict of interest stemming from the selection of judges. ... Roe’s attorneys, Jeannie Suk Gersen and Cooper Strickland, said records and information the government released related to the assignment process show the Administrative Office of the U.S. Courts and Judicial Conference participated in selecting judges to hear the lawsuit, even though they’re named defendants. Roe’s lawyers are urging the panel to either vacate U.S. District Judge William Young’s dismissal of the lawsuit, or reassign the case to a new panel that would vacate the lower court’s order.

A U.S. appeals court will consider reviving a former federal judiciary employee’s sex discrimination claims in a case that could lower the bar for workers to win misconduct lawsuits against the nation’s judicial branch. ... Justice Department spokeswoman Danielle Blevins declined to comment. Roe’s attorney, Harvard Law School professor Jeannie Suk Gersen, didn’t reply to a request for comment.

An article by Jeannie Suk Gersen: On January 6, 2021, in the minutes before the storming of the Capitol, I was sending a welcome message to my new class of criminal-law students while keeping an eye on Congress’s certification of the Presidential election. During the next few hours, a violent mob invaded the building, overwhelmed law enforcement, and drove lawmakers to halt the certification process and hide or evacuate. At the end of that semester, I included a new question on the final exam for my criminal-law students, one about the previously little-known crime of “seditious conspiracy,” which includes conspiring “by force to prevent, hinder, or delay the execution of any law of the United States.”

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.”