On Nov. 12, the Rockefeller Center for Public Policy, Dartmouth Dialogues and the 2024 Election Speaker Series hosted Harvard Law School professor Jeannie Suk Gersen and Yale Law School professor Keith Whittington for an event titled “The Supreme Court and the Future of American Democracy.” Approximately 150 people attended the event in Filene Auditorium, while 70 more watched online, according to Rockefeller Center assistant director for public programs and special events Dvora Greenberg Koelling.
The conversation, moderated by government professors Sonu Bedi and Herschel Nachlis, spanned a range of topics including judicial power, partisanship and the impact of Supreme Court decisions on college campuses.
To open the discussion, Nachlis asked how the Court’s overturning of the Chevron Doctrine — which gave federal agencies the right to interpret ambiguous legislation — in Loper Bright Enterprises v. Raimondo could impact the incoming administration of President-elect Donald Trump.
Gersen, who clerked for former Supreme Court Justice David Souter in 2003, responded that judges will have “more power” to “strike down” an administration’s actions. Gersen added that people who want other parties to “look really carefully” into the Trump administration’s agencies will feel “really good” about the Loper Bright decision.
“These are double-edged decisions,” Gersen said. “When we see [these cases] with the assumption that the party in the executive branch is ‘our party,’ it looks utterly different than when you think of them as cases that constrain executive branch power.”
Whittington, who has written several books about constitutional law, agreed with Gersen, adding that the “long-term challenge” of this decision is that Congress is “incapable of legislating.”
“We need public policy solutions that support the executive,” Whittington said.
Bedi noted that both responses discussed the Court “non-ideologically,” from both Republican and Democratic perspectives, before turning the conversation to the ideological composition of the Court. He asked the panel whether justices should retire when a president of the party that appointed them occupies the White House.
Gersen said asking a justice to step down for a certain party to nominate their replacement is a “tough sell,” since justices see themselves as non-partisan.
Whittington then described how the “type” of people who serve on the Supreme Court has shifted. Today, being a Supreme Court Justice is a “realization of [a] lifelong ambition,” while previous generations of justices had varied career interests, he said. That shift makes it “harder” for current members of the Court to retire, he explained.
“It’s easy to be old and decrepit and still do the job,” he said.
Gersen agreed that the type of people who are interested in being named to the Court has shifted over time, with justices becoming more “buttoned-up.” This has led to fewer “big personalities” serving on the Court, she explained.
Because the Court is a nine-member group, “the individual personalities of the justices matter a lot,” Whittington added. Gersen said the court was previously a “war of personalities” not just of “judicial philosophy.”
“Think about justice Douglass or Frankfurter or Jackson, these are big personalities with lot’s of foibles, you know, personal hatreds that were out in the public often,” Gersen said “They were constantly calling reporters and telling bad things about their colleagues to reporters.”
Turning the conversation to “substantive” issues that impact colleges, Nachlis asked about diversity in colleges after the Supreme Court overturned race-based affirmative action in 2023 in Students for Fair Admissions v. Harvard University and Students for Fair Admissions v. University of North Carolina.
Gersen said colleges have changed “other parts of the system” in order to “promote” diversity on campuses without considering race.
“Schools aren’t cheating and considering race anyway, but they’ve changed other aspects of the system [to achieve diverse classes],” Gersen said.
Whittington agreed, adding that he would be “surprised” if investigations found “a paper trail” of colleges considering race in individual applications, which was found to be unconstitutional.
During the audience Q&A, Natalie Keim ’25 asked about free speech on college campuses, particularly in regard to pro-Palestinian protests.
Whittington, who published a book this year about free speech in university classrooms, said he expects there to be a “rough few years” for free speech on campuses. In Whittington’s estimation, the incoming Trump administration will promote “conservative speech” while also trying to suppress speech that it finds “dissatisfying.”
Keim said in an interview after the event that the panelists’ answers “exceeded [her] expectations.”
Gersen, who co-founded the Council of Academic Freedom at Harvard — a faculty group that promotes academic freedom, civil discourse and viewpoint diversity on campus — said she was “disappointed” to see many former supporters of academic freedom try to limit the speech of pro-Palestinian protesters. She referenced Harvard University’s set of new rules that “essentially banned every” method used by pro-Palestinian protesters.
While Gersen said she does not support harassment, she added that the definition of the word has “evolved” and “expanded” in recent years to encompass a wider range of activities including those which make “someone uncomfortable.” Gersen said this development means more political speech “could be experienced as harassing,” especially regarding “controversial” issues like the Israel-Hamas war.
“We need to recalibrate what we consider harassing because of this chilling effect on the exchange of dialogue,” Gersen said.
Whittington agreed with Gersen, adding that universities have lacked “even-handed” enforcement of policies “over the last several years.”
Event attendee Reece Sharp ’28 said she appreciated hearing from legal scholars to broaden his perspective.
“We’ve heard from economists [and] international relations specialists and [this event] was a chance for the judiciary to shine,” Sharp said.
Keim also said the panelists’ viewpoints and expertise in law was “new and interesting,” adding that Dartmouth “lacks [these perspectives] as a liberal arts college.”
“I think as students we hear a lot from the [College] and our friends and the internet about the best way to approach these issues, but [Gersen and Whittington] were experts,” Keim said. “Their focus on definitional, easy-to-apply approaches was really pragmatic.”
