"Skeptics of disqualification have... argued that, even if Section 3 does cover a former President, it is not 'self-executing'..."

"... meaning that states have no authority to make disqualification decisions under the Fourteenth Amendment unless Congress first passes legislation that authorizes them to do so.... Trump’s petition goes even further, asserting that only Congress, not states, may resolve questions about a Presidential candidate’s qualification.... Trump’s petition also includes an intriguing point that hinges on a sentence in the disqualification clause that has not previously been emphasized: 'But Congress may by a vote of two-thirds of each House, remove such disability.' That means a former government officer who did engage in insurrection or rebellion can hold office after all, with Congress’s permission. The petition argues that the clause, which is about 'holding office,' 'does not prevent anyone'—even an insurrectionist—'from running for office, or from being elected to office,' because it is always possible that Congress will vote to permit him to 'hold' office. That has in fact occurred in the past: multiple Confederate rebels won election to federal or state offices around 1868, and Congress removed their disqualifications. So, even assuming that Trump is disqualified from being President, he is not disqualified from running for President in expectation of Congress later allowing him to take office...."

Writes Jeannie Suk Gersen, in "Could a Trump Win Put His Running Mate in Office? Senate Republicans’ brief in the Supreme Court surprisingly argues just that" (The New Yorker).

If the Supreme Court chooses that interpretation, then electing Trump will become a way to make the VP candidate President, because we would expect Congress to deny Trump that super-majority vote he needs. Trump would still get all the glory of winning and a monumental new complaint against his antagonists. Imagine the effect on his supporters. Where does all that strange new political energy go?

"[S]eeking gender balance is particularly important because neither male nor female prospective applicants prefer a campus with a large majority of women..."

"... and, thus, it harms the school’s ability to recruit desirable students.... In equal-protection analyses under the Fourteenth Amendment, the Court has indeed allowed more leeway for using gender, but, in order to be constitutional, the use of gender must be substantially related to an important interest. The question, then, would be whether colleges’ interest in having a gender-balanced student body is so important that it justifies holding women to higher admissions standards than men...."

Writes Jeannie Suk Gersen, in "What Would Sandra Day O’Connor Have Thought About Affirmative Action for Men? For decades, college-admissions offices have quietly imposed higher standards on female applicants" (The New Yorker).

"Once the affirmative-action-bound language of the Court’s previous instructions is swept away, and schools are no longer legally incentivized to talk about race..."

"... in admissions in terms of 'diversity' or even any sort of 'holistic' evaluation, we could end up with a more frank and substantive discussion about equity, including not only descent from enslaved people but also severe disadvantage from state-sponsored subordination, first-generation-college-student status, and family income and wealth. Many untold possibilities might open up if we look hard for alternative ways to unlock education as a means to social mobility."

Writes Jeannie Suk Gersen in "After the fall of affirmative action, liberals and conservatives want to eliminate benefits for children of alumni. Could their logic lead to reparations?"  (The New Yorker). 

"What happens after the Supreme Court ends affirmative action, as is anticipated this week?"

Asks Jeannie Suk Gersen, in "After Affirmative Action Ends/The next big question for school admissions will likely be the legality of 'race-neutral' methods that are designed with the continuing goal of producing diverse student bodies" (The New Yorker).

Notice that the phrasing of the question assumes — there's no "if" — that the Supreme Court will "end affirmative action." The decision may come this morning, so it's a good time to think about what to look for in the new opinion. How much will be off-limits in this fast-approaching future?

What if schools move, as many surely will, to obey by adopting race-neutral measures—for example, deëmphasizing test scores, or boosting applicants from poorly funded high schools—that are designed to produce racial diversity, trying to create some semblance of what they achieved when using affirmative action? Would those moves be lawful?...

"[T]hree different sets of jurors have concluded that Jan. 6 was no spontaneous riot. It was planned, organized, incited..."

"... and led by individuals and groups in a conspiracy against our democratically elected government... Evidence at the trial showed that three of the men convicted Thursday of seditious conspiracy — Ethan Nordean, Joe Biggs and Zachary Rehl — led a group of about 200 Proud Boys away from the Ellipse rally and toward the Capitol even before Trump had finished speaking, or ranting. The defendants themselves did not participate in the worst of the violence at the Capitol; Tarrio wasn’t even in Washington that day. But prosecutors argued — and jurors agreed — that Tarrio, Nordean, Biggs and Rehl were the leaders who sent other Proud Boys to commit some of the most violent acts of the day.... Trump... complains that the Justice Department is persecuting patriotic Americans who were doing nothing more than exercising their right to peacefully protest. That is an outrageous, disgusting lie.... Jurors are getting it right. Leaders of the insurrection should face the most serious charges and suffer the most severe punishments. Now we wait to see whether the man without whose incitement Jan. 6 never would have happened — Donald Trump — is made to face his day in court as well."

Writes Eugene Robinson in "The Proud Boys jury got it right on Jan. 6 seditious conspiracy" (WaPo).

I did not sit through the trial and don't know what evidence was presented, but Robinson asserts that the "[e]vidence at the trial showed" the defendants led a large group — known to be members of the Proud Boys — to the Capitol where and that group went beyond vocal protesting and committed acts of "violence." I still have the question: What evidence proved that this was "sedition"? I'm trying to understand how political protests come to be understood as "sedition." 

Here's a post of mine from January 2022, quoting Jeannie Suk Gersen in a New Yorker article asking whether a sincere belief that the election would undermine the charge of "sedition":

"A federal official wrote a parody of Harvard’s attitude toward Asian Americans and shared it with the dean of admissions. Why did a judge try to hide that from the public?"

Asks Jeannie Suk Gersen, in "The Secret Joke at the Heart of the Harvard Affirmative-Action Case" (The New Yorker). The case, pending before the Supreme Court, it Students for Fair Admissions v. Harvard.

"Justice Clarence Thomas let it be known from the bench—to ribbing from Justice Elena Kagan and laughter from the audience—that he was a Prince fan in the nineteen-eighties."

"Chief Justice John Roberts name-dropped the artists Piet Mondrian and Josef Albers. But the contrast between the case, in which Warhol is accused of changing too little of Goldsmith’s [photograph of Prince], and the Court itself, which is lately accused of changing far too much, created a tense sort of levity.... The Warhol Foundation wants the Court to stick closely to those words. It asserts that Goldsmith’s naturalistic black-and-white photo depicts Prince as 'fragile and vulnerable,' and seeks to 'humanize' him. By contrast, the Foundation argues, Warhol’s silkscreen process created 'a flat, impersonal, disembodied, mask-like appearance' that comments on the dehumanizing nature of celebrity. In other words, Goldsmith depicts Prince intimately but Warhol conveys an image of an icon.... The legal narrative... is an unwitting commentary on what happens when courts decide what things mean: a flattening of human reality and experience.... Alito mused that 'maybe it’s not so simple' to determine the meaning of a work—months after eliminating abortion rights.... The question hanging over this term is how the Court, which wants to appear as unoriginal as possible, will be affected by enacting so many transformations."

From "The Supreme Court’s Self-Conscious Take on Andy Warhol/In a copyright case, the Justices revealed their own anxieties about interpreting precedents" by Jeannie Suk Gersen (The New Yorker). 

Justice Thomas wasn't randomly showing off his pop culture savvy. He had a good question. 

From the transcript:

"The indictment [for seditious conspiracy] describes some Oath Keepers’ belief that 'the federal government has been coopted by a cabal of elites actively trying to strip American citizens of their rights.'"

"That [Stewart Rhodes, the leader and founder of the Oath Keepers], the leading defendant, graduated from one of the country’s most élite law schools, Yale, is more than just a fun fact. He developed his views on the Constitution as a law student eighteen years ago, and won a school prize for the best paper on the Bill of Rights. His paper argued that the Bush Administration’s treatment of 'enemy-combatants' in the war on terror was unconstitutional. Rhodes wrote that 'terrorism is a vague concept,' and that 'we need to follow our Constitution’s narrow definition of war and the enemy.' The argument would have found much support in liberal legal-élite and civil-liberties circles.... [I]n order to convict the defendants of seditious conspiracy, the government will have to prove that they planned their storming of the Capitol with the purpose of opposing the lawful transfer of Presidential power.... Rhodes’s seeming belief that his plan for January 6th was resistance to an unconstitutional process may seem wholly unreasonable.... But, if the case goes to trial... [s]ome jurors may find it difficult to convict Rhodes and others of seditious conspiracy if they find that sincere views about reality informed the defendants’ purpose.... Such an outcome might have the effect of adding legal legitimacy to the big lie.... Now that talk of potential 'civil war' occurs not only among extremist groups but in the mainstream press, a public trial of alleged seditionists will showcase the central fissure that could lead us there."

Writes Jeannie Suk Gersen in "The Case Against the Oath Keepers/Members of the group face seditious-conspiracy charges for their roles in the January 6th insurrection. Can a sincere belief that the election was stolen protect them?" (The New Yorker).

Gersen highlights the risk the government is taking, forcing public attention onto the seditious conspiracy charge: Americans will put effort into understanding the defendants' arguments, some unknown segment of us will agree with them, and many more will think the government has overreached because it cannot prove that they were insincere.

"A large study by Jones, Bellet, and McNally found that trigger warnings reinforced the belief on the part of trauma survivors that trauma was central (rather than incidental or peripheral) to their identity."

"The reason that effect may be concerning is that trauma researchers have previously established that a belief that trauma is central to one’s identity predicts more severe P.T.S.D.; Bellet called this 'one of the most well documented relationships in traumatology.' The perverse consequence of trigger warnings, then, may be to harm the people they are intended to protect. In other respects, trigger warnings seem to have less impact than their critics have feared. Some opponents of trigger warnings seem to suppose that they are a way for students to demand that they not encounter ideas that challenge their beliefs.... Trigger-warning studies, however, have revealed that giving trigger warnings does not seem to result in recipients choosing to avoid the material. Instead, the warned individuals tended to forge ahead....  As the scientific consensus on trigger warnings develops further, it’s conceivable that universities might even begin to worry about liability arising from their myriad instructors acting in ways that are known not to help—and possibly to harm—students’ mental health. Perhaps what is called for is a more neutral and humble stance, in which instructors don’t approach pedagogy as if it were an adjunct of psychological care."

From "What If Trigger Warnings Don’t Work?/New psychological research suggests that trigger warnings do not reduce negative reactions to disturbing material—and may even increase them" by Jeannie Suk Gersen (The New Yorker).

"In many... cases, students have felt deeply violated even when their partner followed affirmative-consent rules—asking for and receiving a 'yes'—because aspects of the situation made them feel that what occurred was not what they wanted...."

"Sometimes the explicit request for permission might have induced them to do something they were conflicted about. Some schools have trained students, as part of orientation, to seek and settle for nothing less than 'enthusiastic' agreement to sex. Even under an affirmative-consent regime’s valorization of clarity, 'yes' doesn’t always mean 'yes.' The jury is still out on whether our experiment with affirmative consent will reduce rape, prove useful for distinguishing sex from sexual assault, or lead to less experience of sexual violation. But what may well emerge is a recognition that the clearest practices of 'yes' and 'no' do little to untangle a deep difficulty that makes consent seem promising yet wide of the mark: the altogether human experience of not knowing in the first place what is wanted or unwanted, desired or undesired. In a letter to Princess Marie Bonaparte, a French psychoanalyst who sought treatment for what she described as 'frigidity,' Sigmund Freud wrote, in the nineteen-twenties, 'The great question that has never been answered, and which I have not yet been able to answer, despite my thirty years of research into the feminine soul, is "What does a woman want?"'"

That's from "The Politics of Bad Sex/A new book argues that current standards of affirmative consent place too much emphasis on knowing what we want" by Jeannie Suk Gersen (in The New Yorker). 

I was surprised to see the return of Sigmund Freud, but Suk Gersen perceives Freud's question — she calls it "Freud's aporia" — in the new book she's reviewing, Katherine Angel’s “Tomorrow Sex Will Be Good Again: Women and Desire in the Age of Consent.” 

Suk Gersen writes:

"Prosecutors may still be stigmatized as administrators of racial inequality, but that reputation will perhaps be upstaged..."

"... by the opportunity for public servants to make a name for themselves as fundamentally different kinds of prosecutors, championing measures that are more rehabilitative than punitive. Some have perceived [Kamala] Harris’s conversion to progressive prosecutor as opportunistic, but it is not entirely out of keeping with her record or with evolving public opinion, to which she and other politicians are responsive. And her leadership, as Vice-President, in enacting reform could confirm that prosecution is renewing itself as a noble path to the highest offices, with the ambition to govern by having criminal justice govern less. At the same time, in the wake of Democratic losses in congressional and state elections, some legislators have raised questions about the possibly negative effects of progressive ideas, particularly calls to defund the police. As Democrats evaluate the election results, concerns about achieving majorities might temper some enthusiasm for reform."

From "Kamala Harris and the Noble Path of the Prosecutor" by Jeannie Suk Gersen (in The New Yorker). 

I was surprised to read this statement of Gersen's: "When I was in law school, twenty years ago, prosecution was a form of public service that was thought to carry little controversial baggage." 

When I went to law school, 20 years before that, I heard the clear message, stated absolutely, that if you wanted to go into public interest law, you should never at any phase in your career take any job in prosecution. It would make you toxic to people of the left. 

But who can check the accuracy of messages people remember detecting in the distant past? In the present, I understand the motivation to put Kamala Harris in a flattering light. 

And yet, what puts her in the best light — progressive ideas or law and order? Which way would it be better to skew if what she wants is to win the presidential election in 2024?

"In my teaching, I’ve always used the Socratic method, which means calling on dozens of students during the class hour, and engaging them in dialogue with me and with each other."

"I’ve found that this is not harder to do on Zoom, and in some respects it’s easier, and better. Facial expressions are closer and more legible. The difference in volume between those who speak loudly and those who respond quietly is minimized. Students seem less self-conscious and less intimidated than they did in a room of a hundred people, perhaps because speaking on a screen doesn’t feel too different from FaceTime conversations they’re used to having with friends... [T]he give-and-take of the one-on-one exchange feels both urgent and viable. There’s something strangely more intimate about online teaching, which makes the attention to each student feel more live and personalized, not less. This new intimacy surely has something to do with the change of setting, which has afforded glimpses into home life and has meant some erosion of strict divisions between professional and personal, between public and private. As my class studied the Supreme Court’s doctrine on the privacy of the bedroom, they could see each other onscreen sitting in bedrooms.... In the past, like many female professors, I have probably expended extra energy holding up boundaries to keep signs of vulnerability at bay. During this period, though... it’s possible that the relaxing of appearances humanizes these institutions.... We might think of our online efforts as mere shadows of the real thing. But those performances are also heightening our senses for teaching and learning. The breaking through of imperfection, messiness, sadness, and struggle might bring us all to a different appreciation of our own humanity, showing through the screen."

From "Finding Real Life in Teaching Law Online" by Harvard lawprof Jeannie Suk Gersen (in The New Yorker).

This is the teacher's experience of becoming more vulnerable on camera. Not all teachers are going to be so sanguine about the exposure — the close-up photography of the face, the view into one's own home. And then what of the students, who have far less control over the discussion, and, usually, much more confined living space? Socratic discussion can be stressful for the students, and now every other student is looking right into their face, ready to detect twinges of fear and realization of knowledge gaps and able to make screen shots.

As for the similarity to FaceTime... not only is it FaceTime with a whole huge group, there shouldn't be an assumption that everyone is comfortable doing FaceTime conversations. Some people hate FaceTime.

Anyway, I'm glad Gersen is finding the good in what is a necessary substitute for the real thing, but she's leaning toward saying it is the real thing — the real thing plus, better than the cold, hierarchical classroom. We thought we were distancing, but really, we were becoming so much more intimate....

Speaking of stereotypes...

"When I won a scholarship that paid for part of my education, a selection panelist told me that I got it because I had moving qualities of heart and originality that Asian applicants generally lacked. Asian applicants were all so alike, and I stood out. In truth, I wasn’t much different from other Asians I knew. I was shy and reticent, played a musical instrument, spent summers drilling math, and had strict parents to whom I was dutiful. But I got the message: to be allowed through a narrow door, an Asian should cultivate not just a sense of individuality but also ways to project 'Not like other Asians!'"

From "The Uncomfortable Truth About Affirmative Action and Asian-Americans," by Harvard lawprof Jeannie Suk Gersen in The New Yorker.

"It is a near-religious teaching among many people today that if you are against sexual assault, then you must always believe individuals who say they have been assaulted."

"Questioning in a particular instance whether a sexual assault occurred violates that principle. Examining evidence and concluding that a particular accuser is not indeed a survivor, or a particular accused is not an assailant, is a sin that reveals that one is a rape denier, or biased in favor of perpetrators. This is the set of axioms on which one might build a suggestion that challenging the accuracy of 'The Hunting Ground' contributes to a hostile environment on campus. If I am a student at a school where professors seem to disbelieve one accuser’s account, then it is possible that they could disbelieve me if I am assaulted. That possibility makes me feel both that I am unsafe and that my school is a sexually hostile environment. Under this logic, individuals would not feel safe on campus unless they could know that professors are closed off to the possibility that a particular person accused of sexual misconduct may be innocent or wrongly accused. But, then, what would be the purpose of a process in which evidence on multiple sides is evaluated?"

From "Shutting Down Conversations About Rape at Harvard Law," by Jeannie Suk, in The New Yorker.

How do lawprofs know when they are caving to the feminist activists?

Harvard lawprof Jeannie Suk has an article in The New Yorker called "The Trouble with Teaching Rape." This struck me especially hard because the other day, when I was cleaning out my office, I encountered a folder of notes written 24 years ago, when I taught a law school seminar on rape. ("You're teaching a whole seminar on rape?" That's the first line of the notes.) I'd just read these notes last night — after not looking at them for more than 20 years — so it was interesting to see how different everything was back then and whether my attitude had changed.

I was teaching a seminar on rape because I was immersed in a writing project that had grown out of my experience teaching Evidence. All the evidence casebooks have a section on the "rape shield rule," which limits inquiry into the alleged victim's "other sexual behavior." (This project became "The Lying Woman, The Devious Prostitute, and Other Stories from the Evidence Casebook,” 88 Northwestern Law Review 914 (1994).") If you taught Evidence, you'd have to go out of your way to avoid rape, and the books — highlighting the threat to the criminal defendant's rights — presented the women as liars. 

Professor Suk teaches Criminal Law (not Evidence), so the subject is less about who's telling the truth and more about the act and the state of mind that constitute a crime.  She reports that the teaching "environment" has changed in "the past couple of years" and students "seem more anxious... about approaching the law of sexual violence."

When I teach rape law... I focus on cases that test the limits of the rules.... We ask questions like: How should consent or non-consent be communicated? Should it matter whether the accused realized that the complainant felt coerced? What information about the accused and the complainant is relevant to whether or not they should be believed? How does social inequality inform how we evaluate whether a particular incident was a crime? I often assign students roles in which they have to argue a side—defense or prosecution—with which they might disagree.

These pedagogical tactics are common to almost every law-school topic and classroom. But asking students to challenge each other in discussions of rape law has become so difficult that teachers are starting to give up on the subject. 

Suk doesn't say whether she's had difficulty. She shifts from describing what sounds like her own stellar teaching to references to generic teachers who somehow just can't hack it anymore. Exactly what is happening in those classes? I'd like to hear something specific. Maybe those professors who are giving up never did a very good job with the topic, the students are speaking up about the professors' fumbling, and those professors jumping at the chance to skip the topic altogether.

When I went to law school, more than 30 years ago, the substantive criminal law class didn't focus on any particular crimes. We spent the whole semester on actus reus, mens rea, and a few defenses (like impossibility). There was a section of the book on particular crimes, and we might have dipped into murder and theft, but that was the kind of material you could learn quickly in your bar review course. It wasn't the meat of criminal law. I think if you go back and figure out the history, rape got into the criminal law course because law professors caved to the political argument that not to teach it was to say that it's not important.

That was never true, and if the activists demand that rape be taken out and the professors cave, they are, ironically, paradoxically, uncaving.