Jeannie Suk Gersen

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.

An article by Jeannie Suk Gersen: Most crises in American life have been local. Even the disasters of earthquakes, tornadoes, hurricanes, and floods are relatively confined in space and time. They do not spread to every state and threaten every corner of all of our lives. The coronavirus pandemic is that rare crisis that is truly national, where the response of a state may ultimately be only as effective as the response of other states. By now the vast majority of the country is under stay-at-home orders, issued state by state, but a handful of holdout states threaten to undercut the efficacy of others’ costly and painful social-distancing efforts. As a result, states with fewer infections and deaths may merely await their turn to become hot spots, particularly as some states with lockdowns could begin to lift them prematurely while others keep their lockdowns in place. The dangers of non-uniformity urge the question: If our fates are bound together in this emergency, why has there been no national stay-at-home order? Asked earlier this month whether there should be a federal order locking down the nation, Anthony Fauci, the director of the National Institute for Allergy and Infectious Diseases, said, “I just don’t understand why we’re not doing that—we really should be,” but he also acknowledged a tension with “states’ rights to do what they want.” Fauci is not alone in thinking that a national order would be preferable.

A TED Talk by Jeannie Suk Gersen: To understand what makes marriages work, we need to talk about why they sometimes end, says family law professor Jeannie Suk Gersen. Follow along as she lays out three ways that thinking about marital decisions through the lens of divorce can help you better navigate togetherness from the beginning.