Jeannie Suk Gersen

An article by Jeannie Suk Gersen: “The first thing we do, let’s kill all the lawyers.” This exhortation by an anti-royalist revolutionary, in “Henry VI, Part II,” remains one of Shakespeare’s most dependable laugh lines. Lawyers are a pain. At some point or another, everyone wants to get rid of them, especially when legalities seem to stand in the way of sweeping social change. Therein lies the bite of the joke. As the Supreme Court Justice John Paul Stevens once wrote, in a footnote to a dissenting opinion, Shakespeare “realized that disposing of lawyers is a step in the direction of a totalitarian form of government.” It was decidedly unfunny, last month, to see the words “Down w Sullivan!” spray-painted on the doors of Winthrop House, the residence of Ronald S. Sullivan, Jr., the first African-American faculty dean of an undergraduate house at Harvard. (Sullivan is also a colleague of mine at Harvard Law School and a renowned defense attorney.)

Around the height of the #MeToo revelations, in the fall of 2017, I interviewed an archivist at a prominent research library for a piece about social-media preservation. It quickly became apparent that he knew less about the subject than I did; he saved Facebook posts by painstakingly copying and pasting them into Word, comment by comment, and manually pressing print. ... The notion that the memory of #MeToo needs preserving—both because it matters and because it could disappear—is also the premise of a much larger archival effort. In June, the Schlesinger Library at Harvard University’s Radcliffe Institute, arguably the paramount repository of works on American feminism, announced its intention to collect the millions of tweets and hundreds of thousands of Web pages—news articles, legislation, changing H.R. policies, public apologies—that composed #MeToo and remain as its evidence. (Harvard faculty members of the steering committee for the #MeToo project include Jill Lepore, a staff writer for this magazine, and Jeannie Suk Gersen, a contributing writer.)

The law professor Ronald S. Sullivan Jr. is among the most accomplished people at Harvard. He has helped to overturn scores of wrongful convictions and to free thousands from wrongful incarceration. ... Sullivan faces this “clamor of popular suspicions and prejudices” because he agreed to act as a criminal-defense attorney for an object of scorn and hatred: Harvey Weinstein. ... Catharine MacKinnon, Harvard’s James Barr Ames Visiting Professor of Law, emailed: The issue is not whether Ron can represent reviled clients accused of crimes and still be the faculty dean of a college. Of course he can. The issue is substantive. ...The Harvard law professor Lawrence Lessig echoes the argument that it’s possible to be a survivor of sexual assault and feel comfortable with Sullivan’s choice. ...“The skills, capacities, and dispositions that would help to make a person a valued defense counsel are also the skills, capacities, and dispositions that would help to make a person a valued Faculty Dean,” [Randall Kennedy] argued.  ... The Harvard professor Jeannie Suk Gersen emailed me her concerns with such “processes”: "Professor Sullivan has chosen to represent and defend persons whom many people would not defend. Strong disagreement with those choices is of course part of the exploration of differences of principle and opinion that we’d hope for in a university." ... “Little more than half a century ago, mainstream lawyers were frightened away from defending alleged Communists who faced congressional witch hunts, blacklisting, criminal trials, and even execution,” Harvard Law’s Alan Dershowitz wrote. ... The Harvard professor Janet Halley calls Harvard’s actions “deeply disturbing.” She explained in an email: The right to counsel even for the most despised defendants, the basic role of counsel in our legal order, the presumption of innocence, academic freedom, and the right of University employees to assist persons accused in the University’s Title IX proceedings—are all implicated here. ... The Harvard law professor Scott Westfahl, however, defended the idea of a climate review, also by email. ... “We are all better off as a result,” and he noted, “I completely support the right of Professor Sullivan, an extremely talented defense lawyer, to take on a very difficult case. Should Mr. Weinstein be convicted, there will be absolutely no doubt that he received a fair hearing with the best possible defense counsel.”

An article by Jeannie Suk Gersen: ... From the start, the Trump Administration seized on Title IX as an area in which to reverse the Obama Administration’s positions. Under Betsy DeVos, the Department of Education has rescinded more than twenty Obama-era policy guidelines on anti-discrimination laws, including ones that protected transgender students from discrimination and allowed them to use gender-segregated facilities of their choice. It has also cancelled policies that supported schools’ use of affirmative action, outlined disabled students’ rights, and attempted to curb racial disparities in elementary and secondary schools, based on research showing that minority students are punished for misconduct at higher rates than their behavior warrants. These revocations have rightly provoked concern that DeVos is turning her back on vulnerable students.

Harvard Law School Professors Jeannie Suk Gersen ’02 and Janet Halley, and Senior Lecturer on Law Nancy Gertner have issued a Comment on the Department of Education’s Proposed Rule on Title IX enforcement.

When you see publishers and authors chatting chummily at book parties, you’re likely to think that they’re on the same side — the side of great literature and the free flow of ideas. In reality, their interests are at odds. ... Jeannie Suk Gersen, a Harvard Law School professor who writes regularly for The New Yorker, a Condé Nast magazine, read the small print, too, and thought: “No way. I’m not signing that.” Ms. Gersen, an expert in the laws regulating sexuality, often takes stands that may offend the magazine’s liberal readers, as when she defended Education Secretary Betsy DeVos’s rollback of Obama-era rules on campus sexual-assault accusations. When I called Ms. Gersen in November, she said, “No person who is engaged in creative expressive activity should be signing one of these.”

...But somewhere along the way, Title IX became about much more than just ensuring access to higher education and sports for women. Indeed, more than four decades later, the 37 words that comprise the statute are now used to regulate everything from campus sexual assault and harassment to bathroom rights of transgender students...."Most laws have openness to them and words that are not clearly defined, and it is understood that agencies under the president or under a particular administration will interpret those congressional laws, and that policymaking is what happens when those laws are interpreted," says Jeannie Suk Gersen, professor of law at Harvard Law School. "But you don't want those agencies to go crazy and do something that's totally outside of what Congress could have intended," she says. "But you also want there to be some leeway for the agencies to make policy within the limits of what Congress has provided."

An essay by Jeannie Suk Gersen. Nearly a century ago, Harvard College moved away from admitting students based solely on measures of academic performance. In the nineteen-twenties, the concept of diversity in admissions arose in response to the fear of being overrun by Jewish students, who were considered strong on academic metrics but lacking in qualities of character and personality. As the proportion of Jews threatened to exceed a quarter of each class, Harvard’s president, Abbott Lawrence Lowell, proposed limiting Jews to fifteen per cent of the student body. Other Harvard officials balked at such overt discrimination, believing it to be inconsistent with Harvard’s liberal tradition, and, instead, formulated a new, inclusive “policy of equal opportunity” that would lead to the same outcome as Lowell’s proposal. It introduced the consideration of qualitative factors such as personality and background, including “geographical diversity,” as part of the admissions process. Representing the diversity of the country meant recruiting and admitting more Midwestern and Southern students, who counterbalanced the droves of Jewish applicants from the Northeast. By the class of 1930, as a result of the new plan, Jewish students made up only ten per cent of Harvard’s undergraduates.

...Some observers, like Harvard Law’s Jeannie Suk Gersen, argue that Burroughs’s determination on that matter doesn’t necessarily need to include a broader ruling on affirmative action. But because the case is likely to be appealed, the case could have a drastic effect on how elite schools use race in admissions.

An essay by Jeannie Suk Gersen...The lawsuit, which will go to trial next week in federal district court in Boston, has been called “the Harvard affirmative-action case,” and it has been spoken of as if it could end affirmative action at Harvard and elsewhere. Both the plaintiff, a national group called Students for Fair Admissions, and Harvard benefit from describing it that way, but, in fact, the stakes are somewhat different. Students for Fair Admissions was founded by Edward Blum, a conservative activist who has orchestrated several lawsuits challenging affirmative action, and the initial complaint included a demand that the court declare it illegal to use race as a factor in college admissions. But, in keeping with Supreme Court precedents, the judge in the case, Allison D. Burroughs, has granted judgment in favor of Harvard on that point. The question that remains for trial is whether Harvard has gone beyond what the Supreme Court has said are permissible ways to consider race in admissions—and, specifically, whether it has shown a special bias against Asian-American applicants.

In the days before Harvard Law School announced embattled Supreme Court nominee Brett M. Kavanaugh will not teach in Cambridge this January, undergraduates eager to block his return to campus struck on a new strategy: file Title IX complaints against the conservative judge...Jeannie Suk Gersen, a professor at the Law School and a Title IX expert who has written extensively about Kavanaugh’s confirmation, said that — while she supports the students’ freedom to protest the nominee’s former teaching role at Harvard — the notion of filing Title IX complaints is “misplaced.” “Such an abuse of process would undermine the legitimacy and credibility of complaints that the Title IX process is intended to deal with, as well as of the Title IX office to focus on its duties,” Suk Gersen wrote in an email. “It might be effective in drawing further attention to some students’ objection to Kavanaugh’s teaching appointment, but I don’t expect him to be found to have violated Harvard University’s Sexual & Gender-Based Harassment Policy based on the currently known public allegations against him.” Janet Halley, another Law School professor with a background in Title IX law, also called the students’ strategy of filing formal complaints unlikely to succeed. “I urge the students to divert their energy from this implausible claim that he’s going to create a sexually hostile environment by teaching at the Law School to the really grand issue of whether he’s fit to be in his current judgeship or promoted to the Supreme Court,” Halley said.

President Trump has remade what it means to be presidential, with his typo-filled tweets and angry rants. He’s molded the Republican Party in his form, pulling it close to the white men who’ve felt their cultural dominance erode. Now he’s turning to the Supreme Court, where he hopes to seat a justice with a long Republican resume — a nominee who, in an emotional bid to save his nomination, last week displayed the very same combative, grievance-fueled thinking of which Trump is so fond...“A lot of us who were not used to seeing that kind of thing from a judicial nominee were very jolted by it,” Jeannie Suk Gersen, a professor at Harvard Law School, said of Kavanaugh’s fierce denial of the accusations. “It’s just like President Trump broke the mold in what it means to have a presidential persona,” Gersen added. “It is possible that Judge Kavanaugh’s performance is going to break the mold — it did break the mold — for future judicial nominees and the realm of acceptable nominees has just changed.”...“People say that everything that Trump touches dies, and we can only hope that the independence of the judiciary can withstand the onslaught of what Kavanaugh would represent,” said Laurence Tribe, a Harvard law professor who, while a well-known liberal, said he kept an open mind to the Kavanaugh appointment initially out of respect for a colleague. Kavanaugh is a law lecturer at Harvard’s law school. “The display we saw during [Thursday’s hearing] convinced me that the court will really be in trouble if he’s confirmed,” Tribe said.

An essay by Jeannie Suk Gersen. Christine Blasey Ford has credibly testified that Brett Kavanaugh attempted to rape her in high school. But many who believe that she is telling the truth are still wondering whether senators should decide how to vote on Kavanaugh’s Supreme Court nomination based on her testimony, in the absence of any “corroborating evidence.” Let’s put aside for a moment the possibility that additional evidence could emerge that supports or undermines Ford’s testimony. In a court of law, a judge or jury who believes that a witness is telling the truth can convict someone of a crime even without corroborating evidence. This happens all the time.

An essay by Jeannie Suk Gersen. A Senate confirmation hearing for a Supreme Court nominee is a political affair, not a court proceeding. But when the topic is alleged criminal wrongdoing by the nominee, the distinction can start to blur. We, the public, may feel more like a jury considering evidence than a boss considering an applicant for an important job. Thursday’s hearing, with testimony by Brett Kavanaugh and Christine Blasey Ford, was supposedly intended to reveal whether there was truth to Ford’s allegation that Kavanaugh attempted to rape her, by providing testimony from each of them under oath. But the Senate Judiciary Committee’s focus on whether Kavanaugh did what he was accused of gave way to partisan recriminations about whether the process for considering that question was fair. The damage to the legitimacy of the Supreme Court and the Senate confirmation process is incalculable, whether or not Kavanaugh is confirmed.

An essay by Jeannie Suk Gersen. For much of the past decade, at Harvard Law School, I have welcomed a crop of new law students to campus each fall with an orientation speech warning them that the time for youthful indiscretions is over; it is now the first day of their professional lives. I admonish them not to engage in any conduct that they might later be tempted to lie about to get a job, and note that F.B.I. background checks are routine for lawyers seeking positions of trust. Though I’ve wondered about instilling this level of anxiety in students, many of them will later face scrutiny as public officials. Perhaps Brett Kavanaugh internalized such a stern professional message, in law school and later, as a religious and conservative lawyer. The current scandal surrounding the Supreme Court nominee involves events that allegedly took place while he was in high school, at Georgetown Prep, and in college, at Yale.

An essay by Jeannie Suk Gersen. During hearings earlier this month on Brett Kavanaugh’s nomination to the Supreme Court, Senator Mazie Hirono, a Democrat from Hawaii, asked him, “Since you became a legal adult, have you ever made unwanted requests for sexual favors or committed any verbal or physical harassment or assaults of a sexual nature?” Kavanaugh answered no. Days later, Christine Blasey Ford, a psychology professor at Palo Alto University, told the Washington Post that Kavanaugh had drunkenly attempted to rape her more than thirty-five years ago, at a party in a Maryland home, when she was fifteen and he was seventeen. She recalls that he pinned her to a bed, groped and attacked her, tried to remove her clothes, and put his hand over her mouth as she tried to scream. Ford has passed a lie-detector test, and her therapist has records of her describing the event in 2012. The Senate Judiciary Committee has delayed this week’s planned confirmation vote for Kavanaugh and scheduled a hearing for next Monday to consider the allegations.

An essay by Jeannie Suk Gersen. When Brett Kavanaugh’s nomination to the Supreme Court was announced, on July 9th, his alma mater, Yale Law School, released a statement quoting several liberal faculty members’ praise of his intellect, accomplishments, and character. This move was excoriated in an open letter, signed by hundreds of the school’s students, alumni, and teachers, which asked, “Is there nothing more important to Yale Law School than its proximity to power and prestige?” The letter called Kavanaugh’s nomination “an emergency—for democratic life, for our safety and freedom, for the future of our country” and exhorted the school to have “moral courage” and withhold its support. “Perhaps Judge Kavanaugh will be less likely to hire your favorite students,” the letter said. “But people will die if he is confirmed.”...But the conflict over Kavanaugh is not just between liberals and conservatives but also between those emphasizing norms of professional excellence and nonpartisanship and those stressing policy outcomes.

An essay by Jeannie Suk Gersen. Last Tuesday, Michael Cohen, Donald Trump’s former lawyer, pleaded guilty to breaking campaign-finance laws by helping to pay two women, in the fall of 2016, not to disclose affairs that they’d had with President Trump. He claimed that he had made these payments at Trump’s behest, and that he had done so primarily to influence the Presidential election, which made his violation a criminal offense. Cohen’s plea has been hailed as the strongest reason yet to remove Trump from office, mostly because, unlike the other crimes of which several people in Trump’s circle have been convicted or accused, these particular acts were done in concert with the President. But the truth is that Cohen’s confession of a criminal motive does not necessarily establish Trump’s. In fact, a lifetime habit of behaving sleazily may very well help the President.

Brett M. Kavanaugh’s nomination to the Supreme Court has stirred plenty of debate about the fate of Roe v. Wade . But there is another landmark case that is apt to trouble the court in coming years: Regents of the University of California v. Bakke...But it’s left us with what Harvard Law professor Jeannie Suk Gersen calls an “analytic confusion.” Affirmative action, she says, “has to do with groups that have been wronged and held back, and that we’re going to try to fight against it by doing affirmative action. You can have that conversation without any recourse to diversity.”