Laurence Tribe

On September 15, 2021, Madi* found herself in the bathroom of her sorority house, holding a positive pregnancy test. The first thought that went through her head when she saw the double lines was, This can’t be happening. She took four more tests to be safe, hoping it was a false positive. But they all confirmed that she was pregnant. The next day, Madi made an appointment with a nearby Planned Parenthood to have an abortion. The earliest slot was in eight days. ... And legal scholars, including Laurence H. Tribe, university professor emeritus of constitutional law at Harvard Law School, predict that the Supreme Court’s decision on Dobbs will further curtail access. Its ruling may eliminate the fetal viability line, and let states set limits on abortions at whatever week they deem fit, as Texas already has done through what’s been called the “vigilante loophole."

The Presidential Commission on the Supreme Court of the United States had an image problem from the moment President Biden established it last April, fulfilling a campaign promise that he would examine what might be done with a Court that was “getting out of whack.” The Democratic left, hungry for payback for the two seats they regard Donald Trump and Mitch McConnell as having “stolen,” dismissed it as an effort to shield the president from having to confront their demand to add two or even four additional seats to the Court. Others simply shrugged after noting that Biden asked the thirty-four-member commission—mostly law professors, arrayed from the center-left to the center-right—not for concrete recommendations but simply analysis, for the president’s consideration, of “the principal arguments in the contemporary public debate for and against Supreme Court reform.” ... “What did the Warren Court stand for?” the legal historian Morton J. Horwitz asked in The Warren Court and the Pursuit of Justice (1998), a paean to the period. Horwitz and Breyer were both born in 1938. Their contemporaries, titans of liberal constitutional scholarship like Owen Fiss of Yale and Laurence Tribe of Harvard, eventually came to staff and even dominate the nation’s law school faculties. Nearly any member of this cohort, many of them Warren Court clerks like Fiss and Tribe, might have given an answer similar to the one Horwitz offered: “Like no other court before or since, it stood for an expansive conception of the democratic way of life as the foundational ideal of constitutional interpretation.”

An op-ed co-written by Laurence Tribe: On 8 March, a jury took three hours to render a guilty verdict against Guy Reffitt, a January 6 insurrectionist. Donald Trump could not have been pleased. DC is where Trump would be tried for any crimes relating to his admitted campaign to overturn the election. Jurors there would have no trouble finding that the evidence satisfies all statutory elements required to convict Trump, including his criminal intent, the most challenging to prove. That is our focus here. A 3 March New York Times story asserted that “[b]uilding a criminal case against Mr Trump is very difficult for federal prosecutors ... given the high burden of proof ... [and] questions about Mr Trump’s mental state”.

The media have been quick to rubbish Attorney General Merrick Garland for his failure so far to indict former President Trump over the Jan. 6 attack on the U.S. Capitol. They have tarred him with epithets worthy of Trump himself, such as “Merrick the Mild” and “Merrick the Meek.” And a host of former prosecutors and law professors have criticized his inaction, saying that Garland needs to indict Trump to vindicate the rule of law. ... Frustrated at the inaction, the redoubtable Harvard Law professor Laurence Tribe has called on Garland to appoint a special counsel. Tribe argues that a special counsel is “the best way to reassure the country that no one is above the law, justice is nonpartisan and fears of political fallout will not determine the decision on whether to bring charges.” Tribe says that such an appointment is “imperative.”

An op-ed co-written by Laurence Tribe: Earlier this month, a federal district judge in North Carolina stopped the effort by North Carolina voters to hold Republican Representative Madison Cawthorn accountable for his role in organizing and promoting the violent Jan. 6, 2021, attack on the US Capitol by disqualifying him from running for reelection. As stunning as this decision was, the reasoning the court used to get there is more so. It held that the Amnesty Act of 1872, which granted amnesty to former Confederates, applies to Cawthorn and overrides an explicit constitutional prohibition in the 14th Amendment barring those who “have engaged in insurrection” from holding office. This decision is at odds with the text, history, and logic both of that statute and of the Constitution itself, and cannot be allowed to stand.

Joe Biden is trying to get a historic Supreme Court Justice nominee confirmed while managing the worst military crisis in Europe since World War II. Those around him say he’s more at ease than at other points during his presidency. His Senate tenure, they add, is the reason why. ... Those who’ve known Biden since his early Senate days say he’s not naive about the modern Republican party. “I don’t think he’s living in the past,” said Laurence Tribe, a constitutional law scholar and Biden confidante. “He would love to have as much bipartisan support as possible but he has no illusions.”

An op-ed co-written by Laurence Tribe: The time has come for Attorney General Merrick Garland to appoint a special counsel to investigate Donald Trump. That step offers the best way to reassure the country that no one is above the law, justice is nonpartisan and fears of political fallout will not determine the decision on whether to bring charges. Several recent developments have brought us to this moment. On March 2, the House select committee investigating the Capitol siege alleged in a federal court filing that it had amassed evidence that Trump illegally schemed to stop the lawful transfer of power to Joe Biden.

A U.S. congressional committee says Donald Trump “engaged in a criminal conspiracy” with his efforts to overturn the 2020 election, turning up pressure on the Department of Justice to investigate whether the former president broke the law. In a court filing, the House of Representatives panel probing last year’s Capitol riot says the evidence suggests Mr. Trump and members of his campaign team committed fraud and obstruction of Congress. ... Laurence Tribe, a retired Harvard law professor who once taught Mr. Garland, said he wasn’t sure why the Attorney-General “is doing as little as he apparently is doing.” He said Mr. Garland might believe it would be hard to prove Mr. Trump had the requisite state of mind to commit a crime because he may really have believed he had won the election. But Mr. Tribe said he did not think such a concern was a good reason not to investigate.

Former U.S. Army prosecutor Glenn Kirschner urged again for Donald Trump to be indicted after the House select committee investigating the January 6, 2021 attack against the U.S. Capitol submitted a court filing on Wednesday—saying it had "a good-faith basis for concluding" that the former president engaged in a "criminal conspiracy." ... "The filing on behalf of the US House said: 'The select committee has a good-faith basis for concluding that the president and members of his campaign engaged in a criminal conspiracy to defraud the United States.' DOJ surely has the same, AG Garland," Laurence Tribe, a professor of constitutional law at Harvard, tweeted.

An article co-written by Laurence Tribe: Granting a petition by several states and coal companies, the supreme court on 28 February will address what appears to be a technical legal question: does the Environmental Protection Agency have authority to calculate CO2 emissions targets for power plants based on mitigation techniques involving steps “beyond the fence-line” of individual plants? In truth, the matter the court is considering implicates –and imperils – the federal government’s power to fashion flexible solutions not only to global warming but to all manner of complex problems.

According to the civil-law code of the state of New York, a writ of habeas corpus may be obtained by any “person” who has been illegally detained. In Bronx County, most such claims arrive on behalf of prisoners on Rikers Island. Habeas petitions are not often heard in court, which was only one reason that the case before New York Supreme Court Justice Alison Y. Tuitt—Nonhuman Rights Project v. James Breheny, et al.—was extraordinary. The subject of the petition was Happy, an Asian elephant in the Bronx Zoo. American law treats all animals as “things”—the same category as rocks or roller skates. However, if the Justice granted the habeas petition to move Happy from the zoo to a sanctuary, in the eyes of the law she would be a person. She would have rights. … Having lost the chimpanzee cases in New York, Wise and his team armed themselves with dozens of friend-of-the-court briefs in support of personhood for Happy. One of them came from Laurence Tribe, the Harvard legal scholar. “It cannot pass notice that African Americans who had been enslaved famously used the common law writ of habeas corpus in New York to challenge their bondage and to proclaim their humanity, even when the law otherwise treated them as mere things,” Tribe wrote.

As President Biden considered a handful of Black women for the Supreme Court, two things drew him to U.S. Circuit Court Judge Ketanji Brown Jackson, according to those familiar with his decision making process. Jackson was molded by her predecessor, the retiring Justice Stephen Breyer; and, like Biden, she came with a rounded resume bolstered by her work as a public defender. ... “It spoke to him in an important way,” retired Harvard University law professor Laurence Tribe said of Jackson’s public defender years. “He understood in a way that a president who had not himself been a public defender might not have been able to understand just what that meant and why it gave her a distinctive perspective.”

An article co-written by Laurence Tribe: Barbara McQuade, the former United States Attorney for the Eastern District of Michigan just raised the bar for ingenious ways for speaking truth to power . . . in this case, the power of the Attorney General of the United States. On February 22 in Just Security, McQuade published an exhaustively detailed model prosecution memo for indicting former President Donald Trump for his unrelenting criminal actions in pressuring Vice President Mike Pence to take lawless steps to delay the electoral count on Jan. 6.

It is deeply illiberal to accuse those who criticize the president of treason. It’s un-American. It is, in fact, the kind of rhetoric that exists in tyrannies. Yet numerous liberals have accused those critical of Joe Biden’s impotent handling of the Ukrainian crisis of sedition. Harvard prof Laurence Tribe, a favorite of the “resistance” — back when dissent was still patriotic — recently argued that Fox News host Tucker Carlson and other Republicans he claims are praising Russian President Vladimir Putin have provided “aid and comfort” to an “enemy” and thus would meet the definition of “treason” under Article III, Section 3 of the US Constitution.

Lawyers and voters behind a push to label Rep. Madison Cawthorn (R-N.C.) an insurrectionist, and therefore ineligible to run for re-election under the 14th Amendment to the Constitution, can’t intervene in his federal lawsuit seeking to have the effort ruled unconstitutional, a judge ruled. ... “They certainly have the right to depose him,” Harvard Law Professor Laurence Tribe, who supports the action in North Carolina, said in an interview before the ruling. He called Cawthorn’s rhetoric, including his speech during a Jan. 6 rally, “the very definition of an insurrection.”

The supreme court has formally rejected Donald Trump’s request to block the House select committee investigating the Capitol attack from accessing White House records related to the events of 6 January 2021. The court announced on Tuesday in its latest list of orders that it would not take up Trump’s appeal to a lower-court ruling allowing the select committee access to the documents. ... Laurence Tribe, a Harvard law professor, said on Twitter: “Trump’s baseless and brazen attempt to keep the January 6 select committee from obtaining his White House records has now been turned down by the supreme court of the United States. No surprise there, but with this court one never knows until one knows …”

Legal experts say Donald Trump is running out of options after a judge ruled on Thursday that the former president and two of his adult children—Ivanka and Donald Jr.—must answer questions under oath as part of New York Attorney General Letitia James' investigation into his business practices. ... Laurence Tribe, a professor of constitutional law at Harvard, suggested that the Trumps would have difficulty getting out of testifying after the New York judge's ruling. "Watch the Three Trumpketeers try to wiggle out of this order!" Tribe tweeted. "Civil contempt would land them in jail, with cooperation being their only key to get out of those ugly orange prison suits—not the Trump idea of high fashion."

Walter Dellinger, a renowned scholar of constitutional law and one of the top legal figures in the Clinton administration, which he served as head of the Office of Legal Counsel and later as acting solicitor general, died on Wednesday at his home in Chapel Hill, N.C. He was 80. ... Laurence Tribe, a law professor at Harvard, advocated for that law and lobbied Mr. Dellinger to join him in supporting it. He failed, and Mr. Dellinger won the case. “No one could have been a worthier adversary,” Mr. Tribe said in a phone interview. “It was always a learning experience to grapple with Walter, and always exhilarating to have him on your side when you agreed.”

A group of voters in North Carolina is challenging Republican Rep. Madison Cawthorn's eligibility to run for reelection, arguing his actions on Jan. 6 and support for overturning the election disqualifies him under a constitutional clause barring any federal official who has "engaged in insurrection" from holding office. ... Laurence Tribe, a constitutional law professor emeritus at Harvard University, contends that, even if it's determined Cawthorn didn't "engage" in an insurrection, if the public focuses "on the words giving aid and comfort to an insurrection -- words in the 14th Amendment -- the evidence seems more than sufficient."

A book review by Laurence Tribe: From Plato’s Republic to Ibsen’s The Wild Duck, from Pascal’s Pensées to Dostoevsky’s The Brothers Karamazov, writers have pondered the Noble Lie—the morality of resorting to falsehood and delusion to conceal, usually from the masses but sometimes from oneself, truths whose revelation would wreak havoc, or at least do more harm than good. It is a question that Justice Stephen Breyer, the dean of the Supreme Court’s liberal wing and its fiercest proponent of the Enlightenment values of truth and reason, might have taken up in his latest book, The Authority of the Court and the Peril of Politics, published a few months before his recent announcement that he intends to retire from the Court.

An op-ed co-authored by Laurence Tribe: It’s as if we are back again in 1965 in Selma before “Bloody Sunday,” when Alabama state police violently attacked peaceful demonstrators at the Edmund Pettus Bridge, leading Congress to enact the 1965 Voting Rights Act. Only this time, it’s five Supreme Court justices effectively blocking the path of Black Alabamians seeking to protect their right to vote. On Feb. 8, in Merrill v. Milligan, in an emergency docket ruling, the reactionary 5-4 Supreme Court majority shredded a three-judge panel’s painstaking and convincing Jan. 24 decision enjoining Alabama from using its new, racially discriminatory congressional map in future elections.