Jeannie Suk Gersen

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.