Jeannie Suk Gersen is the John H. Watson, Jr. Professor of Law at Harvard Law School and a Contributing Writer for The New Yorker. This interview has been edited for length and clarity.
FM: When did you know you wanted to go into law?
JSG: I didn’t know any lawyers growing up. My parents didn’t have any friends who were lawyers, and I hadn’t really met lawyers throughout my childhood. I only knew about them from TV. And so courtroom dramas and shows like “Law & Order,” or movies where there’d be dramatic scenes of lawyers doing justice in court made me think that that’s something that I might want to do.
FM: You mentioned “Law and Order” specifically. Were there any other courtroom dramas that really intrigued you?
JSG: Shows and movies like “Perry Mason.” There were very few female lawyer figures on TV. But later on in life, there was “L.A. Law.” And then even later than that, Ally McBeal.
FM: Have you found the actual experience of practicing law to be just as entertaining?
JSG: Well, my first jobs out of law school were working in judicial chambers for judges, first on the DC circuit for Judge Edwards, who I clerked for for a year, and then Justice Souter, who I clerked for the year after that, at the Supreme Court. That’s just a really heady experience where you get to see extremely important issues that are on everybody’s mind. It was hard not to be transfixed and drawn in by the importance of the issues and the impact they might have on the country. So I did find my introduction into the legal profession extremely exciting. Right after that, I went and practiced law as a prosecutor in Manhattan. That was also really interesting, but for a variety of circumstances, I left that job pretty quickly and became an academic here at Harvard.
FM: Can you talk about any of those circumstances and reasons why you left?
JSG: It was a few things. I had a child. I had a difficult pregnancy while I was pregnant which happened during my first year on the job. Then shortly after that Elena Kagan, who had already become the Dean, was trying to hire a lot of people to revitalize the faculty and renew the faculty. And I think that she was influential in urging me to think about coming to academia earlier than I had planned to.
FM: Would you ever go back into practicing now that you’re in academia? Or are you content where you are?
JSG: Well, since I’ve been in academia, I have actually had a very consistent amount of legal practice in my life. I, of course, don’t do it full time, but I almost always have some cases that I am either litigating or representing clients on.
Sometimes I represent people who are going through discrimination in schools or workplaces, or accused of academic misconduct or scientific misconduct in proceedings in their universities. I have represented people in the entertainment industry, who are mainly artists, writers, creatives.
The last couple of years, I was involved in a lawsuit where the defendant was the federal judiciary and we were suing about their unfair procedures for investigating and adjudicating sex discrimination and sexual harassment in the workplace.
FM: What qualities do you believe it takes to be a good lawyer?
JSG: I think the main quality that it takes to be a good lawyer is listening really hard to people, and being truly open to what they’re saying. So that goes from having a client and truly understanding what the client’s concerns are to the ability to make good arguments. You can’t make good arguments if you haven’t listened to arguments on the other side and truly understood what the strengths of those arguments are as well as the weaknesses.
FM: You’ve worked as a rape counselor and handled cases involving sexual and domestic violence as a lawyer. How do you find the strength to make a career involving such intense and sensitive subjects?
JSG: I can’t imagine not doing something that is so important societally, and also intimately. That combination of the systemic effect of discrimination and oppression, along with the intimate difference that it makes in people’s lives, is really what draws me to some of the subjects that I study. So it is, overall, an issue of great public importance, and it’s an issue of intense private importance for many people. And that is kind of what makes law itself so compelling. Because laws are actually about people’s lives.
FM: You’ve talked before in an interview about trauma and how this concept was previously applied to rare cases has now expanded to include experiences that are relatively common. Do you believe this expansion is a good and useful thing? Or do you have any reservations about the expansion of the terminology?
JSG: Well, I think that the expansion of the terminology overall has been quite negative for many areas of life. One of them is free speech, because what do you say when somebody is saying they’re experiencing trauma? It makes it seem like whatever caused the trauma shouldn’t have happened, and should have been shut down. And if that thing is speech, that caused someone to experience trauma, then some people might conclude that that speech was the culprit and should have been prevented or banned.
I think that the more common it has become for people to believe that their discomfort or objection, or taking offense, or feeling uncomfortable amounts to a trauma, the more it becomes quite difficult to maintain an atmosphere in which people can feel free to engage in open discourse. So I really do hope that we can rein in the use of the concept of trauma in that expansive way. Overall, I do think that the notion of trauma — which is experiences that have a certain effect on how people process memories — that has definitely been watered down.
FM: I read your piece in the New Yorker concerning the decision by the Colorado Supreme Court to remove Trump from the ballot based on Section Three of the 14th Amendment. Do you have any predictions for how this case might go before the U.S. Supreme Court?
JSG: I think my main prediction is that the Supreme Court will decide in favor of Trump or in favor of not disqualifying him. And it’s really a matter of is it going to be 5-4, 6-3 or 9-0?
FM: You’ve also written about, recently, the future of free speech at universities, in light of Harvard President Claudine Gay being called to testify before Congress. And especially in light of her recent resignation, do you have any predictions for the future of speech regulation by universities?
JSG: I think we’re at a pivotal moment where we could use this opportunity to strengthen protections for speech. Or we could go completely the other way and believe that what we need to do is to crack down on offensive speech. And I sincerely hope that we will take the first path, not the second one.
FM: What other types of free speech could inadvertently be restricted if rules were to tighten up?
JSG: Well, for example, the University has rules against discrimination, harassment, and bullying. But if we were to think that every instance of speech that would be considered by someone to be discriminatory were disallowed on campus, that would be a very severe restriction on academic freedom and free speech. That’s why the Harvard policy on discrimination, for example, is drawn very narrowly, so that even if someone complains about someone’s speech that they believe was discriminatory, that’s not the end of the matter. The discrimination policy has many hoops that one would have to jump through in order to lead to a decision that someone’s going to actually be disciplined.
I think a lot of the question here, right now, because people are so concerned about harassing people, or threatening them, or intimidating them — that implicates this tension between our commitment to free speech and our commitment to anti-discrimination principles, and that tension just can’t be denied. It has to be confronted head on. We have to understand that this is about a balance of values.
FM: Given the amount of writing you do and speaking you do, are you ever nervous putting your opinions out there knowing there’s potential you could change your mind on some things in the future?
JSG: Maybe earlier on, before I had gotten over myself enough, I would have been scared that if I put something down on paper then and I changed my mind later, then that would be really bad.
I’ve changed my mind on many things in my career. And sometimes I have said so in later writing. That’s part of the process of intellectual growth. I would never hold anyone else to views they had if later they had changed their minds. And so I would hope that others would afford me the same grace. But we are all very different people at different parts of our careers, as well as even at one moment in time.
To the extent that people do change their minds, it really shouldn’t be embarrassing to say so.
FM: Besides constitutional law and family law, I’ve also read that you have a background in the law of art, fashion, and the performing arts. How did you first get involved in this area of the law?
JSG: I think that it comes from the background that I had as a child and a teenager. I was a pianist and a dancer, having attended Juilliard and the School of American Ballet, so I had that very strong background in the arts. And then, during my legal career, when I was at the District Attorney’s Office in Manhattan, as a prosecutor, I actually prosecuted some cases about trademark counterfeiting in luxury goods like, for example, handbags by Gucci or Prada. And so I got really interested in the intersection of legal regulation and the production of art and fashion, as well as the regulation of things like choreography.
If you make a work of choreography, what does that mean, in terms of its legal status? Can people copy it? And is that a legal violation? All of those questions, I was fortunate in my position here at Harvard to be able to explore through research and teaching, in addition to the work that I’ve done in criminal law and family law and constitutional law.
FM: You’ve taught a wide array of subjects. Do you have a favorite subject to teach?
JSG: It’s really a toss up between family law and constitutional law, which I’m teaching this spring — both of them.
FM: How would you describe your teaching style?
JSG: Well, how would I describe it versus how would my students describe it is interesting to think about, because maybe there’s a gap. I would describe my teaching style as rigorous and open-minded, wide ranging in the topics that I invite into the classroom, and intensely focused on training students to be good listeners as well as to understand and make arguments that they may disagree with.
It’s really all about not only honing your own views and arguments, but just as importantly or even more importantly, truly understanding perspectives that you do not agree with and grappling with them.
I think some of my students would say I am strict, that I go, sometimes, beyond where they expect, and that sometimes I’m willing to be uncomfortable and make the class go beyond people’s comfort zone.
FM: How do you manage to devote attention to such a wide array of subjects, from your writing in the New Yorker to teaching a bunch of different subjects within law?
JSG: I myself cannot imagine being any other way. I feel so lucky to be able to go down really different paths when I get really interested. And there are of course, some scholars and academics who drill down on one subject matter and then they, really deeply and for a very long time, study many aspects of that subject matter. That is a way to be an academic that I deeply respect. But for me, I can’t imagine in my career not having that sense of spontaneity and unpredictability about what it is I’m going to get super interested in next. I think that’s one of the real privileges of being a lawyer. We are, at the end of the day, educated to be generalists, and to understand that the law affects every aspect of human life.
FM: What’s the best piece of advice you’ve ever been given?
JSG: Hands down, the best piece of advice is get over yourself. And I’m lucky to have been given that advice a long time ago. And it’s never too early to hear it. Because I think for a lot of students who are very high achieving, and who really have a great vision of their future and sometimes a sense of grandiosity about what they can do, the challenge is to be ambitious — without becoming a megalomaniac. And I think that it’s always important to remember: Just get over yourself.
— Associate Magazine Editor Jem K. Williams can be reached at firstname.lastname@example.org. Follow her on Twitter @jemkwilliams.