Most people ask questions because they want to know the answer; lawyers are trained never to ask questions unless they already know the answer.
—Professor Lani Guinier
By David B. Wilkins
On January 7, 2022, one day after the one-year anniversary of the storming of the U.S. Capitol by insurrectionists intent on preventing the peaceful transition of power for the first time in this nation’s history, we lost one of the most articulate, passionate, and courageous advocates for democracy this country has ever known. It is therefore only fitting that we dedicate this issue of The Practice on election lawyers to Professor Lani Guinier, the Bennett Boskey Professor of Law, Emerita, at Harvard Law School and a towering giant in the field of election law whom I have been honored to call a colleague and a friend for more than a quarter century.
I will not attempt to catalog Professor Guinier’s many accomplishments as a lawyer, teacher, and scholar. In the weeks since her passing, Professor Guinier’s many achievements have been justly celebrated in leading media outlets such as the New York Times, the Boston Globe, and CNN, as well as in beautiful tributes by the Legal Defense Fund, FairVote, and many other civil rights organizations. Instead, it is Professor Guinier’s unparalleled commitment to ask the hardest questions, even when these questions challenged her own assumptions, and her unwavering willingness to listen without either prejudging or losing her ability to judge, that I hope to celebrate here.
Lani Guinier invented a wholly new style of teaching premised on asking questions for which there are no ready answers.
Lani Guinier’s entire professional life was an exquisite paradox. A brilliant lawyer, Professor Guinier won landmark victories for voting rights by mastering the lawyer’s art of cross-examination in which, as she succinctly summarized in the above quotation, you never ask a question to which you do not already know the answer. But at the height of her career as one of the country’s premier civil rights litigators, Professor Guinier left the world of adversarial combat to join the faculty of the University of Pennsylvania Law School where she invented a wholly new style of teaching premised on asking questions for which there are no ready answers. Instead, using a phrase remembered by her dear friend and collaborator Susan Sturm and countless others—“My problem is that if you stop there …”—she invited students and colleagues to engage in a collaborative process of truth-seeking that stretched far beyond the lawyer’s artifice, and even the limits of the law itself, to seek answers that would promote our deepest aspirations for justice. And yet, Professor Guinier understood that these two antinomies—the idea of law as a bounded contest requiring advocates with the skill to operate within its rules, and as a gateway to creating a fair and just society that can never be fully captured by a system of rules that defines winners and losers—were inextricably intertwined. As she put it in words quoted in the tribute by her beloved Legal Defense Fund:
It was through my eventual mastery of the Voting Rights Act that I learned to love the law. I found in it a concrete opportunity to bridge the dissonance I had discovered in fourth grade between American promises and actions. For me, the 1965 Voting Rights Act became a sacred document that took us as a society closer to the fundamental truths of democracy.
Professor Guinier brought that same commitment to balancing the creative tension between speaking and listening, teaching and learning, to her classroom. As she told Harvard Law Today shortly after she joined the faculty in 1998:
I’m committed to creating a learning community that may require different interventions depending on who’s in the community. Part of the challenge is not to be rigid, either rigidly collaborative or rigidly Socratic. I always have an ear cocked for a better way.
Most of all, Lani Guinier brought this fearless commitment to finding a “better way” to her scholarship. Having spent more than a decade fighting to ensure that Black people had the right to elect representatives of their choice, Professor Guinier proceeded to write a series of seminal articles questioning whether the single-minded focus on creating majority Black districts—no matter how valuable the goal of integrating the halls of Congress—was the right way to “bring society closer to the fundamental truths of democracy.” Indeed, she began to question whether our taken-for-granted system of single member districts elected by simple majorities would ever truly protect the interests of minorities. To break this “Tyranny of the Majority,” as she argued in her 1994 book of the same name, the country would have to embrace new ideas like proportional representation and cumulative voting that do a better job of ensuring that all citizens have a fair chance to participate in our representative democracy. It was precisely this courageous willingness to ask hard questions and offer creative answers that made voting rights advocates applaud President Clinton’s decision to nominate Professor Guinier to lead the Justice Department’s Civil Rights Division in 1993. And it was precisely these same qualities that galvanized those who most benefited from the very inequities and dysfunction of the current system Professor Guinier criticized that derail her historic nomination.
Since Professor Guinier wrote these prescient books, virtually all of the core propositions for which she argued have moved from the margins to the mainstream in debates about democracy and merit.
But this attempt to silence her only made her stronger. After five more productive years at Penn, Professor Guinier joined the Harvard Law School faculty in 1998 where she became the first woman of color to receive tenure in the school’s history. That same year, she authored her memoir, Lift Every Voice, whose subtitle triumphantly and prophetically proclaimed her intention to transform her “civil rights setback into a new vision of social justice”—one that, paraphrasing the subtitle of her 2002 book with Gerald Torres, The Miner’s Canary, enlists race to resist power and transform democracy. Blacks and other disadvantaged minorities, she and Professor Torres argue, are like the canaries that miners used to bring into the coal mine to alert them to the presence of dangerous levels of toxic gas. When the canaries stopped singing, it was time for everyone to leave the mine. The systemic bias and institutional failure that continue to impede Blacks and other minorities from claiming their fair share of the American Dream, Guinier and Torres warn, signal the presence of the toxic gas of persistent inequality that threatens the very foundation of our democracy. The events of January 6th stand as a stark reminder of just how dangerous it is to allow this gas to fester.
To root out the deadly toxins that threaten our democracy, Professor Guinier argued in her final book published in 2015, America must confront another tyranny that has become even more embedded in the fabric of our culture than the tyranny of the majority: The Tyranny of Meritocracy. This tyranny, she argued, subtly but systematically undermines democracy by cloaking access to education and jobs in a false narrative of desert about Who’s Qualified? (to quote the title of Professor Guinier’s 2001 book coauthored with Susan Sturm) in a way that legitimizes toxic inequality in the eyes of the powerful, and even more insidiously in the minds of the powerless. Far from exposing this legitimation, as Professor Guinier and her coauthors Michelle Fine and Jane Balin demonstrated in their pathbreaking 1997 book Becoming Gentlemen, traditional legal education reinforced this toxin by insisting on a narrow and highly gendered construction of “merit” that leaves out women and people of color who do not conform to this artificial standard.
The power of Professor Guinier’s ideas will continue to live on in the countless scholars, lawyers, advocates, and artists whom she inspired to lift up their voices to sing their own songs of democracy and freedom.
In the years since Professor Guinier wrote these prescient books, virtually all of the core propositions for which she argued have moved from the margins to the mainstream in debates about democracy and merit. Cumulative voting and other schemes for achieving proportional representation that Professor Guinier’s critics used to label her a “Quota Queen” are now used to elect officials in many jurisdictions, including New York City, while packing all minority voters in a single district is now widely acknowledged as an effective tool for reducing the overall influence of minorities in the electoral process and increasing political polarization. And, even the most traditional law school deans and law firm managing partners are embracing “experiential learning” and personal qualities such as “grit” and “emotional intelligence” as critical to the training and evaluation of all law students and lawyers. The pandemic and the protests of the last two years will only accelerate these trends.
Sadly, Professor Guinier’s illness prevented her from witnessing much of this progress. But as those who gathered at Harvard Law School to honor her life and legacy in the appropriately titled 2018 conference “Building Up and Building Out” made clear, the power of Professor Guinier’s ideas will continue to live on in the countless scholars, lawyers, advocates, and artists whom she inspired to lift up their voices to sing their own songs of democracy and freedom. In 2021, Professor Guinier’s son Nikolas Bowie, an assistant professor at Harvard Law School, demonstrated the enduring power of his mother’s search for a “better way” to explore the creative tension between speaking and listening, teaching and learning, when the graduating class voted him the recipient of the Sachs-Freund Award for Teaching Excellence—the same award that his mother received in 2002. It is to this paradoxical ability to acknowledge multiple truths without succumbing to dogmatism or relativism, and to the indominable spirit of Professor Lani Guinier, whose life and work perfectly exemplified the value of this creative tension, that we dedicate this issue of The Practice.
Photo Credit: Steven Rubin / Courtesy of Harvard Law School.