The Good Fight
🎧 Jeannie Suk Gersen on the Importance of Due Process

🎧 Jeannie Suk Gersen on the Importance of Due Process

Jeannie Suk Gersen and Yascha Mounk discuss how due process protects the most vulnerable and why it is under threat

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.

This transcript has been condensed and lightly edited for clarity.

Yascha Mounk: There's a debate about the role of the Socratic method at the moment and you're a defender of the importance of it. What is the “Socratic method” in law schools—and why do you feel that it's an important thing to preserve?

Jeannie Suk Gersen: The Socratic method is a method of teaching that's very common in law school. Essentially, it came about in the 19th century, mainly at Harvard Law School, because it was seen as a way to engage students in actual thinking in real time, instead of the experience of sitting in an anesthetized kind of way in a lecture hall. The idea was that teaching should be about more than listening or just being lulled into a sense that you're learning; it should be active learning. You should be engaging with the ideas in real time. And so the Socratic method was a way to call on students individually, and then have them go through the analysis, through questioning, and then follow-up questioning by the teacher, instead of having the teacher just impart their wisdom upon the students.

When it was first introduced, the students were resistant to it, because they just thought, “I'm here to learn from the teacher, the one who has the information and the expertise. So why in the world should I be speaking in front of everybody and being questioned about something that I don't really know about?” But that, I think, is the point: the process of learning is not just hearing what others have to say, but also engaging by talking about it. When I came to law school in 1999 as a 1L [first year student] at Harvard, I still was extremely lucky, shy, and diffident. I had grown up in a household that really did not prize speaking out loud. I remember distinctly that I would be punished for speaking my mind in a way that disagreed with what the adults were saying. I'm sure not every person who grows up in an Asian household experienced this, but certainly for me, in a Korean household, it wasn't the kind of household where you would engage in a back-and-forth exchange of ideas.

If you are the teacher with the power to set the agenda and set the questions and you call on each individual, there is, of course, enormous potential for both good and bad. I do think that the process of learning is very much enhanced by having students contribute to class discussion. And not only on a volunteer basis—it would be wonderful if everyone would just volunteer. And then we would have a discussion where all voices were heard. But that doesn't happen.

Many students have told me just how important it was to them to have had that experience of being expected to speak—not just that it was a possibility, but a requirement—and that that broke the ice to a different way of being that would serve them much better. And so I am a big proponent of that. 

Mounk: Have you felt a change during your time teaching in law school, in terms of how ready students are to volunteer their opinions on sensitive issues?

Suk Gersen: Unquestionably, that is the case. I began teaching in 2007. In the 14 or 15 years that I've been at it, there's been an enormous change in the willingness of students [to speak on sensitive issues]—and I'm not talking about conservative students who have, I think, always felt slightly like they are in the minority. I'm talking about really liberal students, liberal Democrats, who fear that their classmates may essentially turn on them if they express viewpoints that might be liberal, but also maybe not quite conforming enough to a certain kind of sensibility or ideology. 

I hear this behind closed doors all the time, that students don't feel this is the kind of environment where that kind of discussion can happen. I do think that it's something that many teachers understand very well. But it's also now an environment where even to say, “Oh, yes, there's been a chilling effect”—even that is considered edgy or controversial, or the kind of thing you'd be scared to say. And so it's often said sotto voce and behind closed doors. I think it's unquestionable that the chill has occurred, it is continuing, and we have to see the ways we can deal with it. 

As educators, I think it's one of our very important goals to get ourselves out of this position where people aren't saying things that would lead to exploration and learning. And I'm not talking about the right to say things that are racially or sexually discriminatory. That is not what we're talking about. These students aren't saying, “Oh, I really want to say something that's discriminatory.” There is such a thing as discriminatory speech. There is such a thing as harassing speech. Those are things that fall outside of what is considered acceptable on a university campus. But I'm talking about the realm of academic freedom that doesn't go into discriminatory or harassing conduct—basically an area that should be full of free exploration.

I will say that, in the defense of the institution where I teach, I actually think Harvard Law School is one of the best places for academic freedom at the moment. I am engaged often in representation of academics and students who are being investigated or disciplined for misconduct of this kind. And what I see is that schools are very scared themselves; there's just a climate of fear. And when that fear sets in, the institutional response often can be to say, “oh, let's put this person on probation, or let's suspend them while we investigate.” That, in itself, while technically not being punishment, is of course a kind of measure that will have a chilling effect on speech and exploration. 

I think that when students come into law school, they're already acculturated. It's not that the law schools are creating this kind of culture. In fact, they're probably, if anything, doing a lot to counteract it. And that's something I associate with my school. What we are trying to do is to instill in students that spirit of openness—being open to other perspectives and teaching how to disagree in a way that is civil—that really should be a component of how people act in a democracy, which is to respect other people's viewpoints while also understanding that discrimination and harassment are not acceptable.

Mounk: Tell us about the role that due process should play in institutions and in society at large, and the way in which that may be being undermined at the moment.

Suk Gersen: Well, I think a lot of people associate due process with the U.S. Constitution, and actions against individuals undertaken by states. You have the ability to say to the government, “I am entitled to due process before you take away something of value, such as my life, my liberty, or my property.” The constitutional doctrine came about with the Supreme Court during the Warren Court years. Due process was essentially a way to try to protect people of color, African Americans, from being exploited and oppressed by governments, by states, especially in the criminal context and when there was a criminal defendant. The Supreme Court kind of put a thumb on the scale against racial discrimination by saying, “You need to give due process and this is what due process consists of.” 

We have developed over the decades a more robust idea of what discrimination is and what the responsibilities of institutions are to protect people, whether it's students or employees, from discrimination and harassment. What do you do when you have an allegation? You have to allow that allegation to be made, and investigated, and adjudicated so that you could decide in a fair way whether the person who's accused ought to have something bad happen to them, like expulsion or suspension. 

The only thing that stands between arbitrary exercises of institutional power against such individuals is due process. That's what I have been fighting for in the last several years in my writing, and also in my representation of various plaintiffs both internal to the university and also in other kinds of institutions. It's really extremely important to understand that some people associate due process now with the defense of people who've done bad things, like, for example, sexual assault on campus. It's now become kind of this trope that you have people who are accusing people of sexual assault, and then the other side says “Due process—I need due process.” Due process among some communities has somehow come to be associated with this sort of impunity for sexual assault. That is, in my mind, very wrongheaded. Due process is something that protects everyone, including victims and people who are alleging wrongdoing.

For example, in a case that I'm litigating right now, I'm representing “Jane Roe,” who is alleging that the federal judiciary, as an institution, did not afford her due process after she was sexually harassed and tried to report it—that she was subjected to an unfair process. And so many of the same things that you would raise on behalf of a person who was, say, kicked out of an institution for wrongdoing, are here in this case. There’s a very basic one, which is that the person who you're accusing should not be making decisions in the investigation. That's one of the most basic principles of due process, and this obviously affects not just people who are accused, but also people who are raising claims of discrimination and harassment—that they ought to be treated in a way that is basically fair. I just can't stress enough how important it is to understand that.

Mounk: And if you think that often the people who are powerful are not the good guys, then that is more reason to grant people due process, in order to give people tools to defend themselves against abuses of power.

Suk Gersen: Yes, or even to call out abuses of power. You should get a fair hearing when you say something like that. So it really does run both ways. I think that the parallel to free speech is quite right. For example, right now, it is state and local governments who are trying to ban critical race theory and the study of race in a certain way with a certain perspective. And that is an exercise of power by the government to try to restrict people's speech. Now, regardless of whether you like critical race theory, the fact that academics and teachers are being told that they can't teach that particular approach, that's an example of free speech being restricted. Some of those laws also violate due process in the sense that they're very vague—you can't really know exactly how you're going to run afoul of them. Because what does “critical race theory” even stand for? Certainly, they don't mean critical race theory as envisioned by the people who actually pioneered the form of scholarship and theory using that title. It's now come to mean something else altogether. It really does run both ways. And sometimes the people who have power want to suppress a way of thinking that is left-wing, and sometimes they want to suppress right-wing ideologies or approaches. Either way, we should stand firm and say the government doesn't get to say what kind of viewpoint you're going to express.

Mounk: It's interesting to think about these illiberal laws banning critical race theory as a problem of due process. That seems very convincing to me—a lot of the problem is that it's actually unclear what you're allowed to do or not allowed to do in the classroom, and many teachers, who reasonably go about doing something that not only should be legal, but that they believe to be legal, may suddenly find themselves in the crosshairs of an investigation.

Suk Gersen: Yes. If it's illegal to teach about critical race theory, what are you going to do? You might be the kind of person who feels like taking it on and really carving out the thing that you think is critical race theory. But you might also be a person who just is not going to even bother to teach about race at all. And that is something that I'm very concerned about, especially with the environment that we're in—even in the absence of laws banning things, we have people self-censoring. We have teachers self-censoring, and teachers saying, “I used to teach this topic, which is about race or sex or about feminism or racism, and now I just don't feel like doing it anymore, because it opens me up to the risk of being accused, either institutionally or informally.” That's the chilling effect. 

Even if you are not actually going to be arrested or brought up on charges or disciplined, things like this have an enormous chilling effect. I can't tell you the number of academics who've told me—because of what they perceive that Title IX administrators will consider to be discriminatory—that they are avoiding, wholesale, certain areas of teaching.

Mounk: What does that mean, for an international audience that may not know what Title IX is?

Suk Gersen: Title IX is a law that is completely sensible in the sense that it says that if you, as an educational institution, discriminate on the basis of sex, then you don't get to receive federal funding. There are all kinds of government regulations that are based on Title IX, where the executive branch passes certain rules that are interpreting those words. And there's a lot of debate, of course, about those regulations and whether they are warranted or whether they actually reflect what Title IX is meant to get at. That's a political debate that's been going on for decades and probably won't stop. There's a whole bureaucracy of administrators who are charged with enforcing Title IX regulations on campus, so that you'd have things like a Title IX coordinator, who then implements those regulations in the form of campus rules and norms. People can be disciplined. So for example, if you commit a sexual assault on campus against a student, then that would be a violation of campus rules, which are created in the service of Title IX regulations. It's multiple layers of regulations upon regulations. 

Let's say you excluded female students or male students from your class: that would be a clear violation of gender discrimination norms, and that would also be a Title IX matter. But in the past ten years, we've had a situation where the interpretation of what is discrimination on the basis of sex has become much more broad. People have been accused of violating Title IX for utterances that they might make in the classroom, and somebody would say, “Well, I feel like that utterance was unwelcome conduct of a sexual nature.” 

Obviously, if you say to a student in a class, “If you don't have sex with me, you won't get an A”—that's sexual harassment, right? But there are lots of things that can be said in the classroom about gender or about sex or sexuality that are not discriminatory. Then there could be debate about whether it was offensive. And so because of the norm of having Title IX being enforced on campus in a way that is much broader than what it was, you've got this uncertainty, and that uncertainty sometimes creates a chilling effect for teachers who want to avoid things altogether: “Why do I need the trouble of even parsing what I can do or not do? I can just completely lop off the whole area of risk.” That is something that's concerning to me.

Mounk: Does that mean avoiding teaching certain areas of law, or avoiding making certain arguments, or publishing certain articles? What does that mean concretely?

Suk Gersen: Just from my own anecdotal experience of hearing from teachers, it means going through the case book and saying, “I'm not going to teach this case about gender discrimination. I'm not going to teach this case about rape. I’m not going to teach this case about a racial incident.” 

A teacher told me that they used to teach a case about Abner Louima, a man in New York who was sexually abused using a police baton. The teacher just said, “There's no way I'm going to do that. I'm not going to teach that case anymore.” So it involves excising certain cases. It might even involve some teachers saying, “I'm not teaching the whole area of sexual assault, because of the risks that it carries—it could be that students are unhappy with the way that I teach it.” 

I really do think that it is a serious situation, when the whole feminist push with pedagogy was to try to get these topics included in the curriculum. Because previously, they were excluded—people thought they weren't important enough. And now we have a situation where we are at risk of having some of these topics go back out of the curriculum, because they pose too much risk of upsetting people.

Mounk: When I talk about this broader illiberal atmosphere, one of the questions I legitimately often get asked is: “Why does it matter so much? Why is it so important?” It seems that this is a really striking example: if important areas of law are taught less, if students who are very likely to go on to be influential judges and lawyers, for example, know less about the law of sexual assault, that, in a very obvious way, is going to have negative consequences for the most vulnerable in society. 

But the opposite argument would be: Perhaps we should tolerate a restriction of due process in order to right some of the injustice of the past. One very prominent commentator has made the case explicitly, saying, “Perhaps it's time for some innocent people to suffer; if that advances the broader cause of accountability, of gender equality, so be it. And it's not like we're sending them to jail, right?” What do you say in response to that line of argument?

Suk Gersen: There are two main things that have to be borne in mind: one is that due process is not an on-off switch; it's a continuum depending on the gravity of the loss that is being threatened. So obviously, if the loss is your life, for example in the death penalty context, you would be entitled to the most robust kinds of process, giving you every opportunity to make arguments against it. And then if it's jail, or prison, that's also another very serious loss of liberty and again, due process is very robust. “What process is due?” is the question. Some people might say, “Well, no process is due because it's not jail.” But that doesn't make sense to me. What is appropriate to that amount of loss is the process that is due. 

We can have arguments about what process is due in a controversial area, like cross examination. Obviously, in a criminal context, you are entitled to cross examine the witnesses who are going to testify against you. In the campus sexual harassment context, are you entitled to cross examine the other party, whether you're the complainant or the respondent? Some people think that this is essential. In fact, the Trump administration wrote that into its Title IX rule. Many, many people disagree with that, and do not think cross examination in the courtroom style is necessary to constitute due process. I happen to agree with the people who don't think that kind of cross examination is necessary. But I believe that due process can be accomplished by some other means.

Secondly, the whole idea that, even if some innocent people have to be harmed, this is going to serve the broader interest of getting justice for a cause that previously has been neglected—I just don't accept that framing, partly because if you erode process and the fairness of process, it affects people on one side, sure, but it will affect people on the other side as well. The erosion of fair process means that if someone's not entitled to have a decision-maker who is impartial today, it may affect the respondent; but tomorrow, it may affect the complainant. The idea that somehow the victims or complainants are going to be uniformly helped by the erosion of due process is just wrongheaded. 

Mounk: By and large, do you think universities are getting due process right in terms of their Title IX proceedings? Both in terms of what the federal guidelines should be, and in terms of what actually is happening on campuses, how do you assess the current state of affairs?

Suk Gersen: It’s a complicated landscape. We have three administrations—Obama, Trump, and Biden—that have been really focused on this. And we're going to have some changes, probably under the Biden administration, but I don't actually believe that they're just simply going to undo everything the Trump administration did [...] because there were some things in there that were quite sensible. So I think rhetoric is one thing, but the reality of governing is another.

In the Trump Administration regulations, there were a lot of moves to say that both the respondent and the complainant should have equal access to the resources and to the processes. Respondents and complainants should be treated equally. I think that a lot of those moves are just not that objectionable. There are some things that are not going to be kept—I'm sure that cross-examination [of complainants] is the first thing that's going to be on the chopping block. But I would be surprised if there weren't some kind of statement from the administration about the permissibility of having some form of questioning from one side to the other side, even if it's not in the form of cross-examination. 

Some of the basic ideas about fairness will probably be kept on, but the details of how it's accomplished, and what the interpretation of fairness is, may be changed. But I generally think about the rhetoric around these rules, of people thinking, “Oh, this will bring us back to the bad old days when people could rape with impunity”—I just think that there's a gap between what the regulations say and what the rhetoric around it has been. And surely we're going to see the same thing when the Biden administration creates its rules. People are going to say, “Oh, we're now back to a moment where victims matter, or where people will be held accountable.” But again, if you look at the details of the rules, there will be a gap between that rhetoric and what the reality is. 

Mounk: I'm going to ask about one more area that you've written about recently, which is the law about abortion that was passed in Texas—not only with respect to the legality of abortion itself, but the way in which it effectively deputized citizens to be enforcers of that law. 

You had a very interesting article saying that this is a legal tactic that liberals or progressives could take up as well as conservatives, in principle, and that there's something very worrying about the prospect of deputizing citizens to make an end-run around the legal process. Explain what in this law seemed sort of novel or special, and explain the danger of deputizing citizens.

Suk Gersen: The Texas SB 8 law, as many people know already, is a very clear deviation from what the Supreme Court has said is supposed to happen. It bans abortion after the sixth week of pregnancy, leaving the person only six weeks to be able to learn that they're pregnant and then get an abortion. If you miss out on the six weeks, then abortion is not available. 

Of course, this is a very, very clear violation of Roe v. Wade, and Planned Parenthood v. Casey. But the idea of banning abortion after a certain amount of time, that's not novel. What was novel was that instead of putting enforcement in the hands of the state or a state official, the law specifically said no state officials shall enforce the law. And in fact, the only way to enforce it is for a private citizen, from Texas or elsewhere, to sue an abortion provider alleging that the provider provided an illegal abortion. And then that private citizen, if they prevail, would get $10,000 in damages. That would be their incentive to bring the suit: they knew that if they prevailed, they would get the $10,000 for each abortion that was done by the abortion provider. There's no limit on how many times the abortion provider could be sued, if they provided these abortions. 

The reason this is remarkable is because the intended effect was to make it impossible to sue the state in advance before enforcement of this law. Because you usually sue the state to say, “Hey, this law is unconstitutional,” and you're suing the state official who is charged with enforcing the law. And then that can lead to an injunction and prevent the law from going into effect. In this case, there was no state official that was charged with enforcing the law. So therefore, no state official can be sued. Of course, you can still challenge the law if, say, an abortion provider was sued by some private citizen. They could raise as a defense that the law is unconstitutional. But that would not be a pre-enforcement challenge. After they were sued they could do that, which would take months, maybe a year.

The Texas law was designed to make it impossible for the law to be challenged in advance, and therefore the law would just go into effect, and all these abortion providers would just go, “I can't afford to get sued for $10,000 repeatedly, and so I'm not going to perform these abortions.” And that is the effect that it essentially has had, for the most part, in Texas, where abortion providers are chilled from engaging in activity that is now deemed illegal in Texas. This is a method that hasn't been–to my knowledge and most lawyers' knowledge–used before, but it very easily could be used if it is considered to be okay. It could be used, let's say, in a blue state that wants to crack down on gun possession. What stands in the way of certain gun laws is the Second Amendment and the Supreme Court's interpretation of the Second Amendment. So basically, if you pass a law that will ban certain gun possession rights, you could say that the only way to enforce this is a private individual suing for $10,000. And then you would have a situation where it could not be challenged in court in a pre-enforcement challenge.

This all sounds really internecine and complicated, but at the end of the day, what we're talking about is the circumvention of the Supreme Court's interpretation of the Constitution by states, and then shutting out a way of getting it reviewed in the federal courts, in order to be able to just freely engage in this conduct.

Mounk: Legislatures could theoretically just pass an endless series of lightly reformulated laws that have the same effect, and thereby keep this chill for months or years at a time. What do you think is the likely future of this kind of legal strategy?

Suk Gersen: The sort of scenario that you just sketched out is exactly what the Supreme Court must be considering right now. They don't want that to happen. Judging by the oral argument that took place in early November on the SB 8 situation, the question was, “Can the way that SB 8 is structured prevent the abortion providers from suing in court to say that this is an unconstitutional law?” And I suspect that the Supreme Court will say, “Yes, the abortion providers can sue, even though the law is written the way it is.” That will signal to everyone and all the states that if they want to try this again, it's not actually going to work. If the Supreme Court makes that clear, then we won't have the kind of nightmarish scenario that you outline. 

[Editor’s Note: On December 10th, a week after this podcast was recorded, the Supreme Court determined that abortion providers could sue certain state officials in Texas.]

Mounk: It seems to me in my social and political circles there's a lot of deep skepticism about the legal system and the judiciary today. Part of that is there will likely continue to be a clear conservative majority in the Supreme Court for a number of years. But part of it is also deep skepticism about the views of the average American, such that people often end up being highly critical of juries, even in advance of the verdict. People have a sense that, if somebody is being judged by a jury of their peers, given that the average American supposedly is deeply bigoted, that is not likely to result in a fair trial.

I would like to get your view on whether we should continue to have faith that the judicial system—whether it's questions like the Supreme Court ruling on the constitutionality of SB 8, or whether it is juries around the country considering the guilt or innocence of the accused—is going to do, by and large, a decent job?

Suk Gersen: I think that question really captures the zeitgeist of SB 8. That law is written to say, almost, “the Supreme Court may have its view about what the Constitution means. But Texas has its own view about what it means. And we're going to pass a law that implements our view.” It’s essentially challenging the centrality of the Supreme Court and its ability to give an authoritative interpretation of the Constitution. 

And I think it reflects this zeitgeist that you're talking about, which is a skepticism about the ability of these institutions—whether they're elite institutions, like the federal courts, or even institutions that were considered anti-elite, like juries. The spirit right now that's moving through the country is about being skeptical about all of these decision-making bodies’ ability to make correct decisions. This goes to the heart of the ongoing Supreme Court abortion case [Dobbs v. Jackson’s Womens Health Organization]: is it really the Supreme Court that gets to decide? Or should it be the democratic majorities in all the states that get to decide whether abortion should be legal and in what way? 

I think that until we get a handle on the divisions in this country, over these kinds of issues, this debate will just continue. In some ways, it'll continue regardless of what happens in this country, because that's the tension that's built into our system. We have, on the one hand, institutions that are supposed to reflect what the people want. But on the other hand, we have a constitution that's supposed to also be a counterbalance of what it is people would vote for, to the extent that what they would be voting for would be against the basic foundational ideas reflected in the Constitution. I don't know that I have a great answer to your question. But I do think that it just reflects the ongoing debates and the tensions that we've had since the beginning of the country about decision making. It's essentially a question of power. Who gets to wield power, and the pushback to that power. I don't see it necessarily as a bad thing that we're having a moment of revision, where we look at our institutions with skepticism.

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Podcast production by John T. Williams and Brendan Ruberry. Podcast cover design by Joe O’Shea.

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