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Mark Tushnet

  • Judging a Judge on Race and Crime, G.O.P. Plays to Base and Fringe

    March 23, 2022

    After all of the entreaties from top Republicans to show respect at Judge Ketanji Brown Jackson’s confirmation hearings, Senator Ted Cruz on Tuesday afternoon chose to grill the first Black woman nominated for the Supreme Court on her views on critical race theory and insinuate that she was soft on child sexual abuse. The message from the Texas Republican seemed clear: A Black woman vying for a lifetime appointment on the highest court in the land would, Mr. Cruz suggested, coddle criminals, go easy on pedophiles and subject white people to the view that they were, by nature, oppressors. ... But to Mark Victor Tushnet, a Harvard law professor who clerked for Justice Marshall, the attacks against Judge Jackson have been far less veiled than those against Justice Marshall. “Dog whistles are supposed to be things that you can’t hear but that you receive in the subconscious,” Mr. Tushnet said. “This is all quite open.”

  • Some on the right have first Black woman justice’s qualifications under a microscope. It’s not a new strategy.

    February 22, 2022

    When Thurgood Marshall arrived at the Capitol for his Supreme Court confirmation hearing on a July day in 1967, the 58-year-old lawyer was the most celebrated legal advocate in the civil rights movement. He had braved death threats and successfully argued more than two dozen cases before the Supreme Court, including decisions that ensured Black voters could cast primary ballots in Texas and ended government-mandated segregation in public schools. ... The esoteric probing was Thurmond’s way of hinting that “Marshall wasn’t intellectually up to the job,” said Harvard Law School professor Mark Victor Tushnet, who clerked for Marshall and has written two books on him.

  • An illustration of a large transparent globe with DNA strands floating inside as two scientist and two others observe.

    Faculty Books in Brief: Winter 2022

    January 31, 2022

    A wide range of books by faculty, from a collection of essays on the ethics of consumer genetic testing to a look at the fate of constitutional institutions in populist regimes to a delightful children's book by a legal philosopher

  • Two people walking in a hallway with other people walking along behind and next to them.

    Weighing President Biden’s first year

    January 18, 2022

    In this series, Harvard Law experts turn a critical eye to the Biden administration’s efforts on health care, the economy, criminal justice reform, and other areas important to Americans — and share their thoughts on its agenda for the future.

  • Interior of United States Supreme Court

    Weighing President Biden’s first year: The federal courts

    January 13, 2022

    Harvard Law School expert Mark Tushnet says the Biden administration has succeeded in appointing federal judges and also “opened space” for discussion of Supreme Court reform.

  • Coffee cup with whipped cream and open book on a window sill.

    On the bookshelf

    November 30, 2021

    Here are some of the latest from HLS authors to add to your reading list over the holiday break.

  • Holy Bible on a school desk, surrounded by other desks in a classroom.

    Supreme Court preview: Carson v. Makin

    November 29, 2021

    Professor Emeritus Mark Tushnet explains how the Supreme Court’s decision in Carson v. Makin could impact funding for religious schools.

  • Potential Biden Supreme Court pick joins fray over Trump Jan. 6 subpoena

    November 29, 2021

    Ketanji Brown Jackson, seen by Democrats as a top contender for a future Supreme Court vacancy, is one of three judges assigned the weighty task of reviewing former President Trump's bid to block a congressional subpoena for records related to the Jan. 6 attack. ... Still, if Jackson votes against Trump in the pending case, they said, it’s a near certainty that Republicans would use it against her if she is eventually tapped for the high court. “The chance is 100 percent that Republicans will use her vote against her,” said Mark Tushnet, a law professor at Harvard. “The only interesting question is how they would spin a vote for Trump against her — probably to say that it shows that she casts her votes with an eye to how it's going to benefit her.”

  • Concealed weapon in holster

    Supreme Court preview: New York Rifle & Pistol Association v. Bruen

    October 22, 2021

    Harvard Law Professor Emeritus Mark Tushnet explains SCOTUS’s upcoming gun control case, New York Rifle & Pistol Association v. Bruen.

  • Crowd of protesters people. Silhouettes of people with banners and megaphones. Concept of revolution or protest

    Power to the people

    October 12, 2021

    In “Power to the People: Constitutionalism in the Age of Populism,” co-authors Mark Tushnet and Bojan Bugarič argue that populism is neither inherently conservative nor necessarily inconsistent with constitutional democracy.

  • Is the Supreme Court going to overturn Roe v. Wade? Legal experts are divided

    September 2, 2021

    Legal experts offered a variety of predictions Thursday on whether the US Supreme Court is poised to overturn Roe v. Wade, the landmark 1973 decision establishing a woman’s constitutional right to get an abortion. At least five and maybe six of the justices on the nine-member court are “ready to overturn Roe and its legacy,” said Mark Tushnet, an emeritus Harvard Law School professor. “I think it was clear with the appointment of Justice [Amy Coney] Barrett that there was a firm majority to repudiate the court’s abortion-related jurisprudence.” But other experts were less sure of how the high court will rule or suggested it would move incrementally, rather than make a sweeping move.

  • American flag on the wall in the background; President Joe Biden at a podium with Vice President Kamala Harris and House Speaker Nancy Pelosi sitting behind him.

    Evaluating President Biden’s first 100 days

    April 28, 2021

    As President Joe Biden approached his 100th day in office, Harvard Law Today asked faculty members and researchers from across Harvard Law School to weigh in on the new administration’s agenda, actions, accomplishments, and failures to date.

  • Supreme Court of the United States

    Evaluating President Biden’s first 100 days: The courts

    April 28, 2021

    Professor Emeritus Mark Tushnet weighs in on the new administration's agenda for the court system, including the Supreme Court, its accomplishments so far, and the challenges that lie ahead.

  • Trump notches court wins by running out clock on lawsuits

    February 1, 2021

    Former President Trump left office as numerous lawsuits against him and his administration still hung in the balance, a result that legal experts say was part of a calculated strategy to run out the clock and avoid accountability while in the White House. By dragging his feet in court, Trump evaded subpoenas for his tax returns and dodged a final ruling on whether his continued business dealings violated the Constitution’s ban on profiting off the presidency. His administration also upended the legal process, experts say, by treating emergency requests to the Supreme Court as a standard litigation move, often with success...Some legal actions focused on Trump, like efforts to obtain his tax returns, are expected to continue post-presidency. But experts say that while he was in office, Trump's drain-the-clock strategy allowed him to avoid accountability and carry out policies before their lawfulness was ultimately resolved, leaving key questions about executive power unanswered as President Biden took office Jan. 20...Mark Tushnet, a Harvard Law professor, said Trump’s approach worked in part due to some of the legal vulnerabilities in these cases. Embedded in the emoluments disputes, for instance, were thorny questions about who had a legal right to sue. “Sometimes the claims about Trump's actions had some weak spots,” Tushnet said. “Maybe not enough to lead to an inevitable defeat for Trump, but enough to take up time in litigating.”

  • In closing Mall, officials try to strike a balance between the First Amendment and securing Biden’s inauguration

    January 19, 2021

    There will be no tourists dotting the sprawling green grass of the Capitol lawn as Joe Biden is inaugurated the 46th president of the United States. There will be no cheering crowds, no vendors hawking merchandise. The monuments named in honor of former presidents — Washington, Lincoln, Jefferson — will be closed. But there will be protests — exactly two, with fewer than 100 demonstrators at each, tucked away near the National Archives and Union Station inside a secure perimeter, along largely vacant D.C. streets...First Amendment experts are closely watching the unfolding scene in the District. Though safety and free speech can coexist, legal experts said, they caution against overreach as an unprecedented portion of federal parks, major roads and access to government buildings are shut down. “The more restrictions there are, the more troubling it is for democracy,” said Mark Tushnet, a retired Harvard Law School professor and First Amendment scholar. “It may be completely understandable given security concerns or threats, but it is still a cost.” ... Virtually no one will be there to witness the demonstrations, which Tushnet said can feel to activists like being “put in a box” by officials. “The theory these days is that even though these demonstrators are, in some cases, being put quite far from the event or people they’re protesting, the method of getting your message out has changed some,” Tushnet said. “It’s no longer by shouting at people directly but rather through media, including social media, and for that it really doesn’t matter how close you are to the venue.”

  • Detroit Is Trying To Punish Sidney Powell For ‘Kraken’ Lawsuit—Legal Experts Say It Could Work

    December 17, 2020

    The city of Detroit is asking a federal judge to impose sanctions against attorney Sidney Powell and other lawyers involved in filing the infamous “Kraken” lawsuit, which the city argues was “frivolous” and was filed for the “improper” purpose of “undermining people’s faith in the democratic process.” Powell, who the Trump campaign cut ties with in late November, has been involved in filing dozens of the over 50 failed legal attempts to overturn the election’s results—most notably lawsuits she dubbed the “Kraken,” because she believed they were based on overwhelming evidence of fraud, that have been embraced by the QAnon conspiracy theory community...While it’s typically uncommon for lawyers to be sanctioned under what Bruce Green, who directs Fordham Law School’s Louis Stein Center for Law and Ethics, describes as a “vague standard,” multiple legal ethics experts told Forbes that Detroit could succeed in punishing the “Kraken” team, though it depends entirely on the judge’s determination...Harvard Law School Professor Mark Tushnet was less convinced, arguing that the notoriety of the defendants may prevent the court from wanting to get involved. “I think it extremely unlikely that this motion will lead the judge to consider seriously the issue of sanctions,” said Tushnet, echoing reservations expressed by Green. “Partly that's because I believe that the judge, like most of us, will just want to put this whole episode behind us, rather than prolonging it. And this motion in particular has the feel of just a follow-up act in the ‘political theater.’”

  • Can Trump’s lawyers get in trouble for frivolous lawsuits?

    December 14, 2020

    President Trump’s legal team is entering into what might be its most desperate election challenge yet — and given its overwhelmingly failed past efforts, that’s saying something. Its move to join in the attempts by Texas Attorney General Ken Paxton (R) to have the Supreme Court overturn the results in four key states has been ridiculed even by some top Republicans...Harvard University law professor Mark Tushnet argues that there are violations of Rule 11 in the Texas lawsuit and others filed on behalf of Trump, given that several of them have included false allegations, affidavits from witnesses whose claims judges said didn’t stand up and inaccurate descriptions of those affidavits. But he notes that the bar for a judge deeming a lawsuit frivolous or in violation of Rule 11 is generally high and that politics could factor into any decisions to sanction the lawyers involved. “Judges haven’t yet issued sanctions because, again in my view, they are sensitive to the fact that in the current context, doing so would immediately subject them to criticism for acting in a partisan manner,” Tushnet said. “A Trump-appointed judge might be more immune from that criticism than others, though not entirely immune.”

  • Trump Counted on the Courts to Deliver Him a Win. He Lost.

    December 14, 2020

    President Donald Trump was hedging his bets on a judicial branch that now carries a powerful Trump imprint, hoping judges and justices would do what voters and state secretaries of state did not: give him a second term. But in the end, the courts didn't come through for Trump, who Friday evening lost what was almost certainly his last, long-shot effort to hang onto power after failing in his reelection bid against President-elect Joe Biden by more than 7 million votes. A Supreme Court that is one-third Trump appointees rejected a lawsuit led by the state of Texas and joined by 17 other GOP-led states to challenge the results in several battleground states that voted for Biden...Presidents can appoint hundreds of jurists to the federal bench, but once in the job judges and justices don't work for the president and have zero obligation to do his bidding. "It's not inaccurate to say that the three (Supreme Court) Trump appointees are extremely conservative. That doesn't mean they are going to do whatever the incumbent president or the conservative majority in the Senate or congressional minority in the House want them to do. It just doesn't work like that," says Mark Tushnet, a Harvard Law School professor who clerked for the late Justice Thurgood Marshall. "They're conservative in an ideological sense, not in a partisan policy sense," Tushnet adds. The case launched by Texas Attorney General Ken Paxton was so weak, Tushnet says, that it was always going to be nearly impossible for the high court to rule in team Trump's favor. "Even if they were extremely driven by pure politics – which they aren't, but even if they were – you have to give them something to work with," Tushnet adds. And Paxton's claim – that Georgia, Michigan, Pennsylvania and Wisconsin conducted fraudulent elections, harming Trump-supporting Texas – was the thinnest of legal stretches, he says.

  • Does Trump have power to pardon himself? It’s complicated

    December 8, 2020

    President Donald Trump has declared that he has the “absolute right” to issue a pardon to himself. Yet the law is much murkier than his confidence suggests. No president has attempted to pardon himself while in office, so if Trump tries to do so in the next six weeks, he will be venturing into legally untested territory without clear guidance from the Constitution or from judges. Legal experts are divided on an inherently ambiguous question that was left vague by the Founding Fathers and has never had to be definitively resolved in court...The question of whether Trump will do it, though, is as unsettled as the question of whether he can. A self-pardon, which Trump has openly mused about, would on one hand be fitting as a final norm-shattering act in a presidency defined by them. But it might also be at odds with his oft-stated conviction that he has done nothing wrong for which he needs to be absolved...Mark Tushnet, a retired Harvard Law School professor, said he doubted any court would overturn a presidential self-pardon, though he said such an act would constitute an abuse of power that would have been abhorrent to the framers of the Constitution. “For them, I believe it would have been unthinkable that the American people would ever elect the kind of person who would pardon himself. Which is why they didn’t say anything about the possibility,” Tushnet said. Since presidential pardons don't cover state crimes, it would seem unlikely a self-pardon would extend in any event to the state investigations Trump is facing.

  • President Trump with Michael Flynn

    All the president’s pardons

    December 1, 2020

    Can President Donald J. Trump pardon himself before his term ends in January? This hotly debated legal question was given new urgency by the president’s recent decision to pardon Michael T. Flynn, his first national security adviser who twice pleaded guilty to lying to the F.B.I. about his contacts with Russia.

  • Biden’s DOJ Must Determine Whether Trump Should Be Prosecuted

    November 9, 2020

    Joe Biden won the presidency promising to bring Americans together. But now his administration is sure to come under pressure from some Democrats to risk exacerbating divisions by investigating and prosecuting Donald Trump. It would be a turnabout of the “Lock him up!” chants regularly directed at Biden by Trump’s supporters at campaign rallies. Although Biden has said that prosecuting a former president would be a “very unusual thing and probably not very good for democracy,” he also vowed in an NPR interview in August that he wouldn’t “interfere with the Justice Department’s judgment of whether or not they think they should pursue the prosecution of anyone that they think has violated the law.” ... Mark Tushnet, a Harvard law professor, said some potential charges against Trump would probably be seen as far more political than others. The Biden administration should go after only the most “egregious” crimes, Tushnet said, rather than pursue charges based on Mueller’s findings, which the president’s supporters have dismissed as a hoax. “If there is classical bribery, that should be prosecuted,” he said...Some liberal academics and former government officials have proposed another alternative to a federal criminal investigation: a bipartisan fact-finding panel, often described as a “truth and reconciliation committee,” that would focus on documenting any abuses that may have taken place during the Trump administration rather than recommending charges. Tushnet, the Harvard law professor, said he sees such a panel as a middle path between prosecuting Trump and granting him impunity -- a way to hold the previous administration accountable without creating a partisan firestorm. “We need to get back to normal,” Tushnet said. “The question is, ‘What’s the best way?’”

  • Will Pa. be at the center of another Bush v. Gore? These 8 lawyers and scholars weigh in.

    October 29, 2020

    A too-close-to-call election night. A supreme court and a legislature at odds with each other. A pivotal swing state with a large number of electoral votes up for grabs. A challenge over which ballots should be counted. A barrage of lawsuits. Sound familiar? Two decades ago, all eyes were on Florida as Election Day came to a close and the fate of the presidency rested in the hands of the Sunshine State. What followed was weeks of litigation over a recount of 537 votes, and an election ultimately decided by the U.S. Supreme Court in Bush v. Gore. In 2020, Pennsylvania has been called the “tipping-point” state— the state that could give either Democratic presidential candidate Joe Biden or Republican candidate Donald Trump the edge to capture enough electoral votes to be declared the winner... This combination of factors — the litigation, the misinformation, and the likely delay in getting millions of mail ballots counted, thus delaying final results — could give Pennsylvania the spotlight on Election Day and beyond, much like Florida received in 2000...Mark Tushnet, a professor of constitutional law at Harvard Law School, said looking at the presidential election one week out, he’s not sure whether the race is going to be close anywhere. But if it were to come down to Pennsylvania, the days following the election would be similar to Florida in 2000, where the state Supreme Court would be the initial actor on a lot of litigation. “At the outset, everything is going to be up for grabs,” he said. “The challengers will use every available challenge to get the initial vote to change in a way favorable to them.”

  • What to expect at Supreme Court nominee Amy Coney Barrett’s confirmation hearings this week

    October 13, 2020

    Despite the recent concerns about coronavirus exposure at the Capitol — and the fast-approaching general election — the Senate confirmation hearing for Supreme Court nominee Amy Coney Barrett is still happening. The hearing will air Monday, October 12, through Thursday, October 15, beginning at 9 am each day...Day one of the hearings will start with opening statements from Barrett as well as from every member of the committee, which is helmed by Chair Lindsey Graham (R-SC) and ranking member Dianne Feinstein (D-CA). Meanwhile, questions for Barrett are slated to take place on Tuesday and Wednesday, and a panel of outside witnesses will testify about her nomination on Thursday. The hearings mark one of the key steps in Republicans’ efforts to rush through Barrett’s nomination just weeks ahead of the general election, and its set-up will be somewhat different from confirmations in the past...An area that Democrats are expected to avoid is a focus on Barrett’s faith, which was a centerpiece of her 7th Circuit hearings, because she’s previously written about it in the context of possible judicial decisions, CNN reports. As Millhiser notes, however, some of the questions during those hearings — including a memorable one from Feinstein — came off as attacks on Barrett’s Catholicism rather than its relationship to her work. “It is fair game to criticize a nominee for their political beliefs, including their opposition to abortion. And it is fair game to criticize someone for political beliefs that are inspired by their religious faith,” writes Millhiser. “But, in a disastrous exchange with the future Judge Barrett during her 2017 confirmation hearing, Sen. Dianne Feinstein (D-CA) appeared to go a step further — seeming to attack Barrett’s Catholicism itself.” Harvard Law Professor Mark Tushnet has noted, though, that it’s possible for lawmakers to ask Barrett about her previous writings about faith and capital punishment without “lapsing into anti-Catholicism.”

  • The Reckless Race to Confirm Amy Coney Barrett Justifies Court Packing

    October 5, 2020

    Barely a week after the death of Ruth Bader Ginsburg, before the late justice had even been buried, President Donald Trump hosted a Rose Garden ceremony to formally announce his nomination of Amy Coney Barrett to fill the open seat on the Supreme Court. A week later, it appears that the inauspicious ceremony may have been at the center of the coronavirus outbreak now plaguing the White House and the Senate. Yet even with the president hospitalized and three Republican senators infected with the virus, the Republican Party is barreling ahead with its effort to install Barrett mere weeks before Election Day. The reckless rush to vote is an indication of the desperate and corrosive power grab at play, one that places the future of the Court at risk. If Republicans succeed, and Democrats win the Senate and the White House in November, Democrats must add seats for additional justices—not as a means of political one-upmanship, but, paradoxically, to save the Court...However, if Biden wins the election, then the Senate should decline to vote on Trump’s nominee and Biden should fill the seat. It is not too late to take this path, which is right for the country and the Court. This is not to say that a Republican-controlled Senate doesn’t have the constitutional power to confirm a nominee right now—it clearly does. But in exercising this power, Republicans would be committing themselves to an extreme form of “constitutional hardball”—a term coined by the legal scholar Mark V. Tushnet to describe the exercise of raw political might that, while legally permissible, violates the “assumptions that underpin working systems of constitutional government.” If Democrats gain the Senate and the White House in 2021, they will be faced with the choice of either engaging in reciprocal hardball—by wielding the raw political power to expand the Court, for example—or doing nothing and acquiescing to the breach.

  • No Other Western Democracy Allows This

    September 28, 2020

    When the framers of the Constitution debated the document’s careful system of checks and balances, they confronted a question that would only become more important over time: Should there be a mandatory retirement age for federal judges? Alexander Hamilton argued against one. Writing in The Federalist Papers, he dismissed “the imaginary danger of a superannuated bench.” Hamilton won out, and the Constitution placed no term limits on the service of federal judges, including the men and (much later) women who would make up the Supreme Court. More than two centuries later, the United States stands alone in its handling of lifetime appointments to its highest court, and the drawbacks of a “superannuated bench” have become ever more clear. Last Friday, Justice Ruth Bader Ginsburg became the third member of the Supreme Court to die in office in the past 15 years. Her death injects a partisan fight over the judiciary into the tempest of a presidential election, and it has brought about a nightmare scenario for Democrats, who have long feared the possibility that a conservative would replace her progressive vote on the Supreme Court and shift the nation’s jurisprudence dramatically to the right. But it also serves as a reminder that only in the U.S. does the balance of so much national power hang on the ability of an 87-year-old jurist to hold out for a few more months against the ravages of disease and the inevitability of life’s natural course... “Everybody who’s thought about designing a constitutional court since 1900 has thought that a retirement age was a good thing. There’s no reason to think that they were wrong,” Mark Tushnet, a Harvard law professor and legal historian, told me. “The existence of tenure until death or choice is extremely rare around the world.” There’s a fairly simple explanation for why the Framers decided against a mandatory retirement age, Tushnet and other legal historians told me: People didn’t live as long back then, and, as Hamilton wrote, few “outlived the season of intellectual rigor.”

  • A view into the courtroom from the interior hallway of U.S. Supreme Court.

    Should Democrats pack the Supreme Court?

    September 23, 2020

    Mark Tushnet discussed with Harvard Law Today the possibilities for, and potential pitfalls of, any effort by an incoming Democratic majority to pack the Supreme Court.

  • Packing the Supreme Court, explained

    September 22, 2020

    The U.S. Supreme Court hasn’t always had nine justices—it started with six, went briefly down to five, back to six, then seven, then nine, and, during the Civil War, ten. If Trump confirms a replacement for Ruth Bader Ginsburg and Democrats later regain the presidency and Senate, Democrats are threatening to change the number again. The Constitution doesn’t specify that the Supreme Court needs to be a particular size. The founders “knew the country was going to grow,” says Mark Tushnet, a professor emeritus at Harvard Law School who serves on the advisory board of Take Back the Court, an organization that aims to reform the judiciary. “They didn’t want to saddle the Constitution with a particular formulation. They could design a court that would fit the country that they were living in. But they didn’t know what was going to happen in the future and wanted to leave it open.” The current size of the Supreme Court has been in place since 1869. During the Great Depression, after the court repeatedly struck down New Deal legislation, Franklin D. Roosevelt proposed “packing the court” with more justices. “There’s a subsurface argument that’s going to surface soon that, in fact, since the failure of the court-packing plan in 1937, a kind of constitutional convention has been created that you can’t change the size of the court merely for political reasons,” Tushnet says. Still, he says that the standard legal opinion now is that the president and Congress can choose to change the number of justices at any time they want. There’s no reason that nine is a magic number. “If you look around the world at constitutional courts, the number varies between 7 and 15,” he says. “And courts with sizes larger than 9 manage to work as well as our court does. So as an issue of simply managing the institution, going from 9 to 11 or 13 probably shouldn’t be a difficulty.”

  • Some urge Democrats to expand the Supreme Court if they take power in 2021. Could they do that?

    September 22, 2020

    Democrats are furious over the push by President Donald Trump and Senate Republicans to move quickly on a Supreme Court nominee to replace the late Justice Ruth Bader Ginsburg. They vowed to consider options for how they might respond if a confirmation vote is held before the presidential election Nov. 3. Among the potential measures some advocated is the possibility of Democrats expanding the Supreme Court – an idea often referred to as court packing – if they win the White House and majorities in both houses of Congress. Supporters of such a move argue additional justices appointed during a Joe Biden administration would offset the conservative majority, which they said was unfairly established...Harvard Law Professor Mark Tushnet told USA TODAY the size of the court was changed for political reasons several times before 1869. Tushnet who sits on the advisory board of Take Back the Court – a group that advocates for expanding the number of Supreme Court justices as "the only strategy that rebalances the court after its 2016 theft." Tushnet said Congress expanded the court during the Civil War "to make sure that there'd be a Republican majority on the court. And then, when Andrew Johnson became president, they reduced the size of the court so that he wouldn't be able to appoint unsympathetic justices." ... Harvard Law Professor Laurence Tribe told USA TODAY that if Democrats expand the court for political reasons, they risk "an unending escalation" in which each party changes the size of the court when it has the political power to do so. Tribe denounced Republicans' handling of Garland's nomination and Ginsburg's vacancy as "hypocrisy" and "unprincipled." He said changing the court in retaliation is an "understandable impulse," but in the long run, it could mean sacrificing "the idea of the Supreme Court as a stable institution, one of the few that can provide a kind of ballast for the ship of state." "And the long run matters," he said.  Tushnet acknowledged the risks but said Republicans forced Democrats to play "constitutional hardball."  "If Republicans play hardball, it seems to me perfectly appropriate for Democrats to play hardball in response," Tushnet said. "When one side plays hardball and the other doesn't, that can erode democracy, too. And mostly, that's what we've experienced in the United States already."

  • Mark Tushnet

    How to Do Comparative Constitutional Law?

    August 21, 2020

    Mark Tushnet is the rare scholar who has been able to connect disparate fields and ways of thinking about law and constitutional government as few other scholars have been willing or able to do.

  • The 10 Scariest Election Scenarios, Ranked

    August 17, 2020

    As the election nears, anxieties are growing over the possibility that President Donald Trump will try to cling to power if he loses to former Vice President Joe Biden. Trump, for his part, is strongly hinting he will not accept any loss as a legitimate result. On Thursday, the president said that he’s deliberately blocking funding to the United States Postal Service in order to prevent people from voting by mail in the midst of the pandemic, which he claims, without evidence, will result in mass fraud...All this has led many Americans to wonder: What can proponents of democracy do to prevent a stolen election? ...Mark Tushnet, professor of Law at Harvard Law School, warns that results on election night may be misleading due to a close race and the slow counting of mail-in ballots. In 2018, late-counted mail-in ballots after Election Day caused a “blue shift” that understated the depth of the Democratic victory on election night. Trump could take advantage of this delay, aided by overeager—or friendly—media outlets. Tushnet writes: “ ‘Close’ and ‘slow’ are concepts that will be developed on the fly, and with an eye to electoral advantage, but my current version is that margins of around 10,000 votes or fewer will be [construed] to be close. And what counts as slow will depend in part upon whether states provide interim updates from election-night reported outcomes.” Countermeasures: “Immediate popular mobilizations in the form of street demonstrations near but not in the venues where mail-in ballots are being counted (so not the ‘Brooks Brothers’ Republican riot from 2000), with the theme ‘Count every vote.’” Likelihood: This scenario depends on the race tightening in the weeks ahead, the difficulty of counting mail-in ballots, and willingness of the GOP to weaponize an indecisive election night outcome against democracy. Which is to say, it is highly plausible.

  • Enduring Lessons

    July 23, 2020

    Retiring Professors Robert Clark, Mary Ann Glendon Laurence Tribe and Mark Tushnet are celebrated by former students.

  • Roberts court tempers conservative expectations

    July 13, 2020

    The Supreme Court under Chief Justice John Roberts in the term that ended Thursday demonstrated a willingness to buck conservative expectations and a preference for shifting the law by increments rather than sweeping pronouncements. The institutional independence of the Roberts-led court struck notes of stability and caution against a landscape of hyper-partisanship, and tempered conservative notions that President Trump’s nominations had created a fortress on the court...The conservative-majority court delivered wins and losses to both liberals and conservatives alike, though largely without issuing maximalist rulings in either direction. Court watchers attributed this to Roberts’s stewardship...What was perhaps more remarkable than Roberts’s vote in the cases was the decision by Trump’s two nominees, Justices Neil Gorsuch and Brett Kavanaugh, to join Roberts and the court’s liberal wing to form a 7-2 majority and validate a grand jury subpoena for Trump’s tax returns. Roberts was likely heartened that his fellow conservatives' votes allowed the court to avoid issuing the landmark rulings along ideological lines, which would have given the impression of an unduly politicized outcome. But the votes by Gorsuch and Kavanaugh were also likely to deepen the president’s sense of defeat, as the justices’ hard-won confirmation battles raised expectations that a solid right-wing majority would control the court for the foreseeable future...While conservatives did notch clear victories in the realm of religion and the administrative state, many analysts believe Roberts' restrained approach was the reason they did not claim more wins or achieve a more wide-reaching impact. “Obviously, there was some degree of tempering conservatism in outcomes,” said Mark Tushnet, a professor at Harvard Law School.

  • Kansas State pressured to expel student for George Floyd tweets. But is that legal?

    June 30, 2020

    Pressure is mounting for Kansas State University to expel a student whose insensitive tweets about George Floyd last week sparked a national uproar. But a critical question looms: Can the university legally kick out a student for exercising his First Amendment rights? “A student at a public university making an extremely offensive statement on social media is almost quintessentially the kind of thing that should be protected against sanctioning by public authorities,” said Mark Tushnet, a Harvard Law School professor. “And sanctioning would include expulsion from a public university. On the face of it, it seems to me that taking action directly against the student would be a violation of the First Amendment.” Jaden McNeil, a junior in political science and head of K-State’s America First Students chapter — a controversial group he formed earlier this year — posted the tweets Thursday afternoon...Tushnet of Harvard Law said if K-State does expel McNeil and he files a lawsuit, his chances of success would depend on the kind of remedy he was seeking. “If he wanted to be readmitted, then he’d have a pretty good chance of winning,” he said. “If he wanted damages for injury to his career or something like that, it would be a closer question.” Tushnet acknowledged that the incident puts university officials in a difficult position. “That’s why you hire good administrators,” he said. “I can imagine a very good administrator, president, deans, figuring out a way to work with the athletic teams in a way that would leave them satisfied without expelling the student. But that depends on the president’s ability and local circumstances, all of which I don’t know.”

  • Presidential harassment! Why Trump believes playing the victim will help him win

    June 23, 2020

    Donald Trump will not go gentle into that good night: he will rage, rage, rage-tweet against the dying of his might. Indeed, he is already doing so. After a humiliating turnout at Saturday’s rally in Tulsa, Oklahoma – which capped one of the worst weeks of his presidency – Trump’s re-election chances look shakier by the day. Rattled and belligerent, he seems to be gearing up to contest a defeat in November...But Trump does not plan to lose. One reason he may be so obsessed with election-rigging is that he is doing his best to rig the election himself. Earlier this year, the Trump campaign launched a multimillion-dollar legal battle to stop the Democrats making it easier to vote during the pandemic by, for example, expanding mail-in voting. Trump may be deluded about a lot of things, but he seems to realise that the greater the number of people able to vote, the worse his chance of re-election. He told the politics site Politico last week that losing the lawsuits could cost him a second term. If my wildest dreams come true and Trump loses in November, it is, as his recent tweets make clear, almost inevitable that he will contest the results. Whether he is able to do this in court rather than just by screaming into the void depends on how close the results are in important states. “Close” is subjective – “I’d guess that Trump would claim ‘close’ if the margin is less than 10,000 – no matter the size of the state,” says Mark Tushnet, a constitutional law expert at Harvard. But even if he is able to demand a recount, Trump cannot barricade himself in the White House for ever.

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    Popular Opinion

    May 20, 2020

    Tushnet advocates for a new constitutional order that would move away from “judicial supremacy" and instead focus on empowering ordinary people to shape Americans’ understanding of the meaning of the Constitution.

  • ‘What’d You Miss?’

    May 11, 2020

    Scarlet Fu and Romaine Bostick bring you the latest news and analysis leading up to the final minutes and seconds before the closing bell on Wall Street. Today's show tackles the impact of the coronavirus on real estate, movie theaters and the markets Guests Today: Frances Donald of Manulife Asset Management, Mark Tushnet of Harvard Law School, Benno Dorer of Clorox, Diane Ramirez of Halstead Real Estate, Tim League of Alamo Drafthouse Cinema.

  • Stay-at-Home Lawsuits Are Failing, But Judges May Get Impatient

    May 7, 2020

    U.S courts won’t block governors’ stay-at-home-orders. At least not yet. With some lockdowns about to begin their third full month, a growing number of business owners, church-goers, beach enthusiasts and politicians have filed lawsuits claiming the restrictions violate their rights. But so far, judges are deferring to the government, saying it’s for elected officials to decide what’s needed to fight the spread of Covid-19...The case that’s most influential for judges is Jacobson v. Massachusetts, a 1905 U.S. Supreme Court decision involving mandatory smallpox vaccinations in Massachusetts... “Unless there’s a question of discriminating against a constitutional right, as in the religion cases, Jacobson should be the beginning and almost the end,” said Mark Tushnet, a professor at Harvard Law School. “A higher standard comes into play only if the activity is somehow bound up with a constitutional right -- yes for religious services, no for beauty parlors, etc.” The Jacobson precedent isn’t just being used to rebuff claims of lost personal freedoms. The federal court of appeals in New Orleans last month cited it in a decision to reinstate Texas’s temporary ban on abortions during the pandemic.

  • The federal government needs to take a role in ‘advising governors about how they can serve the national interest’

    April 16, 2020

    President Trump claims he has ‘total’ authority to reopen the economy, but state governors say otherwise. Professor at Harvard Law School Mark Tushnet joins Yahoo Finance’s On The Move to break down who has the power to reopen the economy.

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    Harvard Law expert says Supreme Court case poses major threat to school voucher programs

    January 21, 2020

    On January 22, the Supreme Court heard arguments in Espinoza v. Montana Department of Revenue, a case that may dramatically impact the ability of states to provide public funding to private, religiously-affiliated schools. In advance of the arguments, Harvard Law Today sat down with Professor Mark Tushnet to preview the case.

  • Will Democrats break democracy in a bid to fix it?

    January 3, 2020

    It was early last year and Pete Buttigieg, still a bit player in the Democratic presidential race, was taking questions from the audience after a book event in Philadelphia...a man stood up in the back and made a rather audacious ask: "Would you support a packing of the courts — to expand the Supreme Court by four members?”...Buttigieg offered a surprising reply. “I don’t think we should be laughing at it," he said. "Because in some ways, it’s no more a shattering of norms than what’s already been done to get the judiciary to where it is today"...The comment turned into a bit of a moment for the then little-known mayor of South Bend, Ind. Lefty Twitter declared itself impressed. The reaction spoke to a growing desire, in some corners of the party, for Democrats to play more of what scholars call “constitutional hardball,” using tactics that are technically legal, but break with decades- and even centuries-old traditions of fair play...Mark Tushnet, A Harvard law professor, coined the phrase “constitutional hardball” in an obscure academic journal in 2004. He says the increasingly aggressive use of the filibuster to block judicial nominations struck him as a noteworthy break from what had come before.

  • Dems eye taking fight over McGahn testimony to impeachment trial

    November 27, 2019

    Legal experts say the fight over whether White House counsel Don McGahn must testify under subpoena before Congress could be settled at the Senate impeachment trial before it finishes its path through the courts. A federal judge on Monday ruled against the Trump administration, deciding that McGahn must comply with a House Judiciary Committee subpoena seeking his testimony... “Technically, the Senate sets its own rules, including evidentiary ones, and has the power to reject the presiding officer's rulings by majority vote,” said Mark Tushnet, a professor at Harvard Law School. He added that there’s no guarantee Roberts would be willing to go along with Democrats’ requests for witnesses, even in light of Monday’s ruling against the Trump administration. “The McGahn ruling won't matter one way or the other, except to the extent that Roberts finds its reasoning persuasive,” Tushnet said. “And it may be worth noting that Judge Brown Jackson has a pretty good reputation as a careful — though of course liberal — judge.”

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    McCulloch v. Maryland: Two centuries later

    September 23, 2019

    On the 200th anniversary of McCulloch v. Maryland, HLS Professor Mark Tushnet reflects on the 1819 case that paved the way for the modern administrative state and established the supremacy of federal over state law.

  • The Obamas Want ‘Higher Ground.’ Someone Got There First.

    September 11, 2019

    Hanisya Massey, the owner of Higher Ground Enterprises in Covina, Calif., first heard from a lawyer for Higher Ground Productions early this summer. Barack and Michelle Obama wanted to trademark their company’s name, but the United States Patent and Trademark Office had deemed it too similar to the mark Ms. Massey registered in 2017 for her computer training company. Higher Ground Productions was looking to strike a deal. ... A few weeks ago Higher Ground Productions filed a petition to cancel Ms. Massey’s trademark. Rebecca Tushnet, a Harvard Law School professor and an expert in intellectual property law, said in an interview that the goal of this move would be to determine whether Ms. Massey is actively and regularly using the trademark to conduct business. The Obamas’ filing starts a fact-intensive inquiry that could take years to sort out. “If there’s not sufficient use of the mark, then the registrant has no rights and the Obamas can go ahead,” Ms. Tushnet said. If there is sufficient use, she added, Ms. Massey could have a potential trademark infringement claim.

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    Presidential Power Surges

    July 17, 2019

    Particular moments in history and strategic breaks with unwritten rules have helped many U.S. presidents expand their powers incrementally, leading some to wonder how wide-ranging presidential powers can be.

  • Presidential Power Surges

    July 9, 2019

    Particular moments in history and strategic breaks with unwritten rules have helped many presidents expand their powers incrementally, leading some to wonder how wide-ranging presidential powers can be. [With comments from Noah Feldman, Mark TushnetMichael KlarmanJack GoldsmithDaphna Renan, and Neil Eggleston].

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    Collaboration zone

    April 26, 2019

    Library event provides unique opportunity for faculty-student interaction.

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    Video: Unexampled Courage

    April 5, 2019

    Harvard Law School recently hosted Judge Richard Gergel, U.S. District Judge of the U. S. District Court for the District of South Carolina, for a talk on his book, "Unexampled Courage,” and a discussion with HLS professors Randall Kennedy, Kenneth Mack and Mark Tushnet.