Laurence Tribe

When the U.S. Supreme Court allowed a restrictive new abortion law in Texas to take effect, pro-abortion advocates turned to the U.S. Department of Justice as a potential last hope of challenging a law they viewed as an existential threat to Roe v. Wade. On Thursday, the Justice Department decided to step in. Attorney General Merrick Garland announced the department filed a lawsuit against Texas, calling the abortion law a “statutory scheme” that is “clearly unconstitutional under longstanding Supreme Court precedent.” ... “It seems to me that although the FACE Act is useful for physical interference with access to clinics, it’s not a particularly helpful statute when it comes to a law like this,” said Laurence Tribe, the Carl M. Loeb university professor and professor of constitutional law at Harvard Law School. “It does no good to protect the entrance to a clinic that has been forced to shut down by the threat posed by this law.”

The Justice Department sued Texas on Thursday over its recently enacted law that prohibits nearly all abortions in the state, the first significant step by the Biden administration to fight the nation’s most restrictive ban on abortion and a move that could once again put the statute before the Supreme Court. ... It is not a foregone conclusion that the Supreme Court would again allow the Texas law to stand, said Laurence H. Tribe, a Harvard Law professor and leading liberal constitutional scholar. “The complaint reaches beyond Roe v. Wade to encompass a structural attack on the basic design of the extraordinary Texas law,” Mr. Tribe said. The law’s structure, he argued, is an end run around seminal cases like Marbury v. Madison in 1803, which established the Supreme Court’s power to determine whether legislation and executive acts are consistent with the Constitution.

Attorney General Merrick Garland’s vow to protect women’s right to choose abortion while officials explore challenging a Texas law that severely restricts the procedure offers more bark than bite, legal analysts say, with abortion rights proponents pressing for more aggressive steps. ... Laurence H. Tribe, an emeritus Harvard Law School professor and constitutional law expert, said Garland’s emphasis on the use of the Face Act seemed “quite irrelevant.” “I did not think that was a particularly helpful thing for him to announce. The threats to the women who seek abortions in Texas are not physical threats to them or the property of the clinics,” Tribe said. “They are threatened with bankruptcy. It’s ironic that the Face Act would be helpful if someone were to knock the door down, but not if they were to bring the whole house down.”

Laurence Tribe, professor of Constitutional Law, emeritus, at Harvard Law School, talks with Rachel Maddow about past Supreme Court decisions that Attorney General Merrick Garland could cite in a challenge to the new Texas abortion ban.

An op-ed by Laurence H. Tribe and David Rosenberg: The Supreme Court’s Whole Woman’s Health decision not to block the Texas post-six-week abortion ban has caused terrified abortion providers to shut down despite the ban’s flagrant violation of Roe v. Wade. A particularly chilling aspect of the Texas law empowers any civilian anywhere to sue Texans who aid in an abortion and to collect a bounty of at least $10,000 if they win in court. To respond to the ban’s violation, Attorney General Merrick Garland should treat bounty hunting under SB-8 as a criminal deprivation of civil rights, leading to possible federal prosecutions under two sections of the Ku Klux Klan Act of 1871. That law was passed to protect the civil rights of previously enslaved Americans who were targeted for extrajudicial violence by white supremacist vigilantes.

For nearly half a century, Americans have lived in a country in which safe, legal abortions were generally accessible to those needing them. The constitutional protection established in the Supreme Court's 1973 Roe v. Wade decision was firm and secure. That fact, paradoxically, worked to the political advantage of activists who reject abortion rights. ... But the new Texas abortion law should dispel any illusions about their real, and immoderate, purpose. What they want is to deprive all women of the liberty to decide whether to carry pregnancies to term. They favor a regime of compulsory motherhood from which there is no escape. ... You may assume the effects will be confined to the Lone Star State. Women with money may figure they can always drive to New Mexico or fly to Chicago to terminate a pregnancy. But as Harvard Law professor Laurence Tribe told me, the law has an unlimited reach.

An op-ed by Laurence H. Tribe: The Texas legislature and five Supreme Court justices have joined forces to eviscerate women’s abortion rights — the legislature by creating and the justices by leaving in place a system of private bounties designed to intimidate all who would help women exercise the right to choose. But the federal government has — and should use — its own powers, including criminal prosecution, to prevent the law from being enforced and to reduce its chilling effects. Of course, the best approach would be for Congress to codify the right to abortion in federal law, although Democrats likely lack the votes to make that happen — and there is a risk that this conservative Supreme Court would find that such a statute exceeded Congress’s authority under the Commerce Clause.

A public university official in Massachusetts has been turning down all requests from Catholic students for a religious exemption from the school’s coronavirus vaccine requirement, based on his research into Catholic teachings. ...Laurence Tribe, a retired Harvard Law School professor who has frequently argued cases before the U.S. Supreme Court, said he believes UMass Boston “has clearly violated the Establishment Clause of the First Amendment.” Tribe said the government is within its rights to make no exceptions for religion when it comes to rules governing health and safety — but that once it allows for religious exemptions to a rule, the government can’t be the decider on what the religion teaches. “It’s one thing to say that our general rules allow no religious exceptions and quite another to say, ‘If the Catholic faith truly taught what you say it does, then you’d be fine,’” Tribe said. “That’s a government official interpreting a religion. That’s clearly unconstitutional and deeply offensive.”

Lawrence O'Donnell talks to Harvard Law professor Laurence Tribe about the Texas anti-abortion bill that the Supreme Court refused to block.. ..."Well, it is truly stunning. ... But as Justice Sotomayor said, it simply cannot be the case. Although, five justices say they think it is. It cannot be the case that the state can pass a flagrantly unconstitutional law, unconstitutional unless and until Roe v. Wade is formally overturned, and then avoid any judicial review by deputizing strangers, total strangers. And they don`t have to be Texans. They can be from California. They can be from France. The law clearly allows anyone on the Planet Earth to come into Texas court during, as you say, that four-year period after an abortion and get $10,000 from anyone, friend, a neighbor, the ex-lover, the Uber driver, the person who funded the abortion, anybody who was involved in the abortion, unless somehow the evidence is accumulated that there was no heartbeat. That is not only stunning, it is abominable. It`s breathtaking."

An op-ed by Laurence Tribe: For years, as the supreme court’s composition kept tilting right, reproductive rights have been squarely on the chopping block. Now they are on the auction block as well. Observers have speculated how today’s new ultra-right court would commence the slicing: by chipping away slowly at Roe v Wade? Or by taking the political heat and overruling it outright? Few imagined that the court would let a statute everybody concedes is flagrantly unconstitutional under the legal regime of Roe not only go into effect without being judicially reviewed but become the centerpiece of a totally unique state scheme that puts a bounty of at least $10,000 on the head of every woman who is or might be pregnant.

A Texas law that bans abortion as early as six weeks into pregnancy took effect at midnight on Wednesday after the Supreme Court failed to act on emergency requests from abortion providers. ... “The Constitution, including Roe v. Wade, only applies against the government, it doesn’t apply against private individuals,” says Laurence Tribe, a leading constitutional law expert at Harvard. “That’s what makes this really dangerous. It’s a kind of vigilante justice, circumventing all of the mechanisms we have for making sure that the law is enforced fairly, and that it’s not enforced in a way that violates people’s rights.”

During the first few months of 2021, President Biden seemed overly reluctant to go after GOP governors over their approach to the spread of covid-19 in their states. The thinking appeared in part to be that this would polarize masks and vaccines, making GOP voters more reluctant to utilize both, setting us back further. ... Harvard’s Laurence Tribe, who had previously advocated for moves like this, notes that what’s at issue is “the rights of America’s children to a safe classroom environment.” “That legal strategy holds great promise of circumventing gubernatorial obstruction of vital local initiatives,” Tribe told us. Tribe added that this is “essential in states whose governors are evidently more concerned with towing the ideological Trump line on vaccines and masks than they are with the health and survival of our kids.”

If American democracy were a hospital patient, the diagnosis would be "critical".  ... In response to the dagger being pointed at the heart of American democracy by Donald Trump, his followers and the Jim Crow Republican Party, President Biden and Attorney General Merrick Garland are not acting with the necessary urgency. In a new op-ed for the Boston Globe, Laurence Tribe, the Carl M. Loeb University Professor Emeritus of Constitutional Law at Harvard, offers this warning:  "We need to begin with the fundamental precept that not all crimes are created equal. Those crimes — regardless of who allegedly commits them — whose very aim is to overturn a fair election whereby our tradition of peaceful, lawful succession from one administration to the next takes place — a tradition begun by George Washington, continued by John Adams, and preserved by every president since except Donald Trump — are impossible to tolerate if we are to survive as a constitutional republic."

We did not get a full accounting of the violent insurrection of Jan. 6 during the second impeachment of the president who instigated it. We did not get a bipartisan commission to investigate the Capitol riot, because Republicans blocked it. We do not yet see signs of an exhaustive Justice Department criminal inquiry into the effort to deny the rightful winner of the 2020 presidential election. But now, we just might get the investigation we need by way of the House. ... “The sweeping demand for executive branch records is good news with respect to the scope of the hearing and the ambition of the select committee in getting to the bottom of who did or knew what — and when they did or knew it and with whom — in the long lead-up to the Jan. 6 insurrection and in the surrounding events,” constitutional scholar Laurence Tribe tells me. “My hope is that the Justice Department will take a cue from the breadth of what the select committee is doing.”

An op-ed by Laurence Tribe:  The Justice Department has begun arresting those who assaulted journalists during the Jan. 6 insurrection at the Capitol — a series of actions whose importance to our democracy is hard to overstate. Newspeople are front-line defenders of our republic, much as the Capitol Police and other law enforcement officials were on Jan. 6. While all who attacked the Capitol six months ago should be held accountable, prioritizing prosecution of individuals who assault the press or police is paramount. Without the work of both, our security and democracy are at existential risk.

Six months after their leader tried to overturn the election he had lost by more than 7 million votes, Republicans have settled on a message about the Jan. 6 riot at the U.S. Capitol: Insurrection? What insurrection?... Laurence Tribe, a Harvard law professor who believes the country barely dodged a constitutional crisis on Jan. 6, said many Americans simply would rather not think about that day. “It’s human nature to suppress terrible forebodings that don’t quite materialize,” he said, adding that the barrage of Trump-inspired crises during his term likely laid the groundwork. “The cascade of terrible events and near-misses over the past four years has desensitized people if not entirely anesthetized them.”

... At no point in its history, perhaps, has the mission of the Department of Justice been so difficult, so polarizing, and so critical to democratic stability. President Donald Trump had given his supporters the deluded hope that the department might use its powers to substantiate his fantasy that the 2020 election was stolen. ...The day before the Senate voted on Garland’s nomination, Laurence Tribe expressed the hope of many liberals, telling me that as disappointed as he had been to see his former student denied the Supreme Court seat, he was now happy to see him poised to play an even more “historically significant role.” More recently, Tribe, who continues to talk to Garland, said that the attorney general had come to a crossroads. “I think if he continues to disappoint in a way that many people think he has thus far and does not appear to see the bigger picture,” Tribe said, “that will be terribly significant but profoundly dismaying. But if he does what I think he is capable of doing, he will have moved the country in a dramatic way past the terrible cliff that would have spelled the end of the democratic experiment.”

Former U.S. President Donald Trump may have an unlikely ally to defend him against lawsuits alleging he incited the U.S. Capitol insurrection: President Joe Biden’s Justice Department. ... One prominent constitutional scholar characterized the department’s position in the Carroll case as a blunder that will be difficult to undo. “It would be very difficult for the Justice Department to change course now,” said Laurence Tribe, a Harvard University constitutional law professor and a frequent critic of Trump. “The Titanic is aimed at the iceberg.” Tribe and other critics of the department’s position say it fails to draw obvious distinctions between a president's official conduct and matters that clearly fall outside the duties of the office. When a president says or does something illegal, they say, it does not warrant a taxpayer-financed defense by government lawyers.

The pressure campaign started months ago. Outside the US Supreme Court in April, a billboard truck with a black-and-white image of 82-year-old Justice Stephen G. Breyer circled the grounds, neon green letters blaring, “Breyer, retire.” ...“His code words are common sense, decency, democracy,” said Charles Fried, a professor of law at Harvard who served as US solicitor general under Ronald Reagan and has known Breyer since he was a law student. “He is a very practical person. If you look at some of his writings, he is very interested in what the practical effect of what his decisions will be.” ... “He has never been the leader of what people would regard as the liberal flank,” said Laurence Tribe, a longtime Harvard law professor and close friend. Still, “he has been a consistent and rather predicable liberal on matters of racial equality.”

A federal judge whose ruling last week to strike down California's three-decade-old assault weapons ban garnered swift backlash is drawing more criticism over his claims about Covid-19 vaccines, firearm injuries and other subjects....Constitutional law scholar Laurence Tribe, a professor emeritus at Harvard Law School, said Benitez's assertions are "utterly without factual foundation.""They are irresponsible in the extreme, whether described as purported 'facts' or repackaged as opinions," Tribe said in an email. "His entire theory about which firearms are protected by the Second Amendment has no basis in the text, history, or judicial interpretation of the Amendment and swallows its own tail by making the circular assertion that the weapons in common use at any given time are those protected by the Amendment."

Months into President Joe Biden's first term, supporters of former President Donald Trump are still touting the "big lie" that Trump actually won the 2020 election. One of the prominent supporters of these theories is Trump's former lawyer Sidney Powell, who is facing a $1.3 billion defamation lawsuit for promoting the big lie. In defending herself against the lawsuit, Powell has argued that no reasonable people would have believed her assertions of fraud. But outside court, Powell has continued to play to Trump's base and bolster theories related to the big lie. During an event in Dallas on Sunday that was also attended by prominent peddlers of the QAnon conspiracy theory, Powell suggested Trump could be reinstated as president even now, saying that "it should be that he can simply be reinstated, that a new Inauguration Day is set." ... It's worth noting that Powell said "should," so it's possible she's not suggesting that the current law allows a president to "simply be reinstated" but that it should. Even so, Harvard University Law School Professor of Constitutional Law Laurence Tribe told CNN it's "still weird and wild," adding that it's likely "it would be unconstitutional if a law was passed to that effect." Tribe referred to Powell's comments as "part of a fantasy world that is truly dangerous to democracy."