Professor Susan Herman: A Conversation

 

On January 30, 2021, Susan Herman, Brooklyn Law School’s inaugural Ruth Bader Ginsburg Professor of Law, stepped down as president of the American Civil Liberties Union (ACLU) after serving 12 years in that role and 32 years on the Board of Directors. Herman led the organization through watershed moments, including the challenges of the Trump administration, the pandemic, and the proliferation of state laws limiting liberties, such as voting rights and reproductive freedom, and inflicting unequal treatment on racial minorities and LGBTQ people.

What accomplishments during your 12-year tenure as president are you most proud of?

Over the past four years particularly, the most important part of my role as president was to help keep the ship steady through the turbulence. During this time the ACLU brought over 430 legal actions against the Trump Administration, some of which were existential battles about the rule of law, and over 100 COVID-related lawsuits. The ACLU’s very talented staff, including some Brooklyn Law School alumni, did amazing work despite having to transition to remote work. One of the most significant accomplishments of my tenure, which entailed a great deal of work and process, was major internal governance reform. I think that the new structures we instituted will leave the ACLU stronger and better able to face whatever the future brings. Organizational growth, like personal growth, is essential.

What impact did the last four years have on the ACLU?

So many Americans looked anxiously to the ACLU to defend the fundamental rights and liberties that have been under attack. Because of our work against Trump’s Muslim ban, family separation policies, and so much more, we became better known by mainstream Americans and people all over the world.  One person said to me, “Thank God for the ACLU! Without you we’d have no government.” Our public profile grew; our membership base quadrupled; our staff grew. And I hope people will recognize that the need for the ACLU’s work will continue no matter who is in the White House. The Trump years were extreme but not altogether unique. In fact, the ACLU staff believes that we have sued every President since our founding 101 years ago.

Why did you make the decision to step down now?

I was elected in October 2008, so was president for two terms of Barack Obama and one of Donald Trump. The ACLU is now poised, along with the country, to enter a new chapter. I decided to turn over the gavel to someone new because the timing was good for us to have a carefully planned and orderly transition and have new leadership for the beginning of the ACLU’s second century.

What is the significance of the board’s selection of Deborah Archer as your successor?

Deborah is the first non-white ACLU President—and she played a major role in helping the ACLU grow into a more fully diverse and inclusive organization by having agreed when I asked her 12 years ago to serve as the ACLU’s National Affiliate Equity Officer. Our affiliates and staff are all far more diverse and inclusive now. And the ACLU National Board is now 60 percent people who identify as non-white. The first five presidents were white men; numbers six to eight all have been women. And the first two presidents were ministers while the last four have been constitutional law professors, which says something about how our conception of civil rights and civil liberties has evolved.

What are your hopes for the future direction of the ACLU?

The ACLU is launching some very important racial justice initiatives, building on our previous work against mass incarceration policies, and on the national outrage over the murder of George Floyd. An increasing number of people have been recognizing that the ACLU is, and has been, not just a white liberal organization defending free speech. I think the perception that the ACLU works to defend the rights and liberties of everybody will really blossom with Deborah at the helm. What I have always loved about the ACLU is its ability to connect the dots between liberty and equality for everyone, not just for one particular demographic.

Can you tell us a little about the ACLU's history of women leadership and championing of the rights of women?

The year the ACLU was founded, 1920, was also the year the 19th Amendment finally recognized women’s right to vote. Some of the members of the ACLU’s founding committee were ardent suffragists, including Jeannette Rankin, the first woman elected to Congress and also the ACLU’s first Vice President. In fact, the very idea of the ACLU was dreamed up by a remarkable woman: Crystal Eastman, suffragist, pacifist, and perhaps the first civil libertarian.

Rather than celebrating the adoption of the 19th Amendment as a victory, Eastman gave a famous speech, “Now We Can Begin,” in which she argued that the true goal should be not just votes but actual equality for women. But many women and women’s groups feared that a quest for full equality would result in their having to surrender hard-won protectionist legislation. That view influenced the early ACLU and it was not until the 1960s that board member Dorothy Kenyon, soon joined on the board by civil rights activist Pauli Murray, launched the ACLU into vigorously fighting for the Equal Pay Act, supporting the Equal Rights Amendment (which had been co-drafted by Eastman), and laying the groundwork for the founding of the ACLU Women’s Rights Project in 1972. We all know what happened next: the co-founder of that project, Ruth Bader Ginsburg, went on to convince an all-male Supreme Court that gender discrimination is a denial of equal protection of the laws. It’s no exaggeration to say that the cases of that era and the discussions they engendered jump started a revolution in gender equality.

In the early ACLU, women kept the organization afloat by working on committees and fundraising, but the staff and the lawyers were men. Today, women are fully represented throughout the organization, including in the role of President. Eastman would be gratified.

This past year has been a tumultuous one. Can you offer us some historical perspective on these times?

Last year, 2020, was the ACLU’s centennial. And even though we had to cancel our gala celebration due to the pandemic, it was nevertheless an occasion for reflection. Thinking about what had happened during the ACLU’s first century, I was consistently struck by how much the civil liberties issues around 1920 resembled our issues a century later: xenophobia, assaults on freedom of speech, demonization of people regarded as different, and even a pandemic the President tried to hide. As ACLU co-founder Roger Baldwin said, “No civil liberties battle ever remains won.” American history is full of pendulum swings, but it is helpful to remember that we did survive the World War I era, as well as the Civil War, and the country’s first transition of power in the 1800 presidential election, which rivaled the 2020 election in its hyper-partisanship and drama. The challenge is to learn from these wrenching experiences so that, despite inevitable reverses, we can continue to bend the arc of our history toward justice.

How do you think the ACLU has fared in bending the “arc of history” with regard to the broader issues it has championed over the years?

In the years leading up to 1920, the Supreme Court regularly upheld criminal convictions of people for dissident speech—including speaking out against World War I, the draft, or our form of government—and gave short shrift to due process and equal protection claims. In its early days, the ACLU could not expect to win many cases in court, and so focused on educating the public about threats to fundamental rights through pamphlets, reports, demonstrations, and organizing. By the end of the 20th century, the federal courts had undertaken protection of First Amendment freedoms, due process, and equality, in large part because of cases litigated by the ACLU. The ACLU was involved in dozens of high profile Supreme Court cases, sometimes as chief counsel and sometimes in amicus briefs. These included many watershed First Amendment cases as well as cases such as Korematsu v. U.S., Brown v. Board of Education, Roe v. Wade, Loving v. Virginia, and Miranda v. Arizona. Today, many people fear that the highly conservative new Supreme Court Justices will make it difficult to win major civil liberties battles in the courts—or even to preserve rights which we have become accustomed to having the courts protect. If that turns out to be true, it would be like a return to the ACLU’s early days, and we would once again have to look beyond the Supreme Court for protection of our rights: to the states, to elected officials, and to the American people.

You have been involved in some projects focused on constitutional reform. What is the one amendment you would propose, if you could?

I wish it were possible to amend the Constitution to make the United States more of a democracy—chiefly by abolishing the Electoral College. I was involved with the 28th Amendment Project of the Brooklyn Public Library, which resulted in a proposal for a multi-faceted amendment that would enhance democracy and also adopt the human rights provisions of the Universal Declaration of Human Rights. Eleanor Roosevelt, the moving force behind the UDHR, thought, as did her husband, that our next phase of constitutional development should be recognition of affirmative obligations on the part of government—what the government is obliged to do to actively promote freedom and equality—rather than just negative limitations focusing on what the government is not allowed to do.

This fall, you taught a new seminar “COVID and the Constitution.” Tell us about the experience of teaching this class while we were still in the middle of the pandemic.

The pandemic challenged our laws and our Constitution in so many ways. In the seminar, we talked about its impact on election procedures; the libertarian challenges to lockdowns and mandatory masking requirements; the clash between religious rights and health measures; the rights of people in prisons, jails, and ICE detention to be protected against the spread of disease; privacy concerns surrounding contact tracing; the racially disproportionate impact of COVID itself and biased enforcement of anti-COVID measures like social distancing and mask requirements. Our discussions covered structural issues like federalism (what is the extent of federal authority and local autonomy?) and separation of powers (when is executive rather than legislative action appropriate?) and even reached rarely invoked provisions like the 24th and 26th amendments.

I felt fortunate to be able to talk about these fascinating emerging issues with a terrific group of self-selected students, all of whom were highly engaged and very thoughtful, and who had quite a variety of perspectives. Conducting this seminar on Zoom worked well, but was limiting in some surprising ways. For example, when one student missed the last class because her child was born earlier than expected, the other students were startled because in Zoom format they had not been able to see that she was pregnant.

Last year, we lost Justice Ruth Bader Ginsburg. What does it mean to you to hold a chair in her name?

I first met RBG many years ago when she was a Court of Appeals judge. When I was elected ACLU President, she wrote me a lovely note on Supreme Court stationery, saying she was glad that my steady hand was at the helm. I have always been a great admirer of her brilliance, integrity, grit, and strategic vision, from her time at the ACLU’s Women’s Rights Project to her emergence as a great dissenter when she could not persuade her Supreme Court colleagues to vote with her. “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm.” Whenever I look at my email signature line, which now records the end date of my role at the ACLU, I feel inspired to have my name associated with hers, and I thank Dean Michael Cahill and the Law School Board for conferring this great honor on me.

You call yourself “another Brooklyn girl” like RBG. In addition to connecting you to the late Justice, tell us about your ties to the Brooklyn community and its importance to you.

I was born in Brooklyn; my father attended Brooklyn Law School; my husband, Paul Gangsei, has been deeply involved with Brooklyn cultural institutions and served as founding director of the Center for Urban Business Entrepreneurship (CUBE). And I have lived in Brooklyn and taught at Brooklyn Law School since 1980. Brooklyn Law School and the greater Brooklyn community have been central to my life, and I am glad that during my time on the faculty the law school has found more ways to be of Brooklyn—connected with people and groups in this great borough—rather than just sharing the name.