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Mark Tushnet

  • An illustrated battle scene where cursor arrows are being launched

    Faculty Books in Brief: Summer 2022

    July 2, 2022

    From the Hughes Court to stock market short-termism to the U.S.'s "defend forward" cyber strategy

  • The court has shifted on abortion over the past 50 years. I have, too.

    May 4, 2022

    The explosive leak of a Supreme Court draft opinion suggesting the imminent reversal of Roe v. Wade has proved quite the Rorschach test for a country long divided over this most fundamental of moral issues. The usual combatants have reacted predictably, even though the document is, hello, only a “draft” by Justice Samuel A. Alito Jr. and may or may not receive the predicted approval by five conservative justices. Pity Chief Justice John G. Roberts Jr., who had this unprecedented leak on his watch and has ordered an investigation. ... Alito does his best to argue that it is not only conservatives who found the original reasoning in Roe lacking. As cited in the brief, Archibald Cox, who served as solicitor general under Presidents John F. Kennedy and Lyndon B. Johnson, remarked that Roe “read[s] like a set of hospital rules and regulations” that “Neither historian, layman, nor lawyer will be persuaded … are part of … the Constitution.” Harvard constitutional scholar and author Mark Tushnet called Roe a “totally unreasoned judicial opinion.”

  • The Justices Have No Clothes

    April 11, 2022

    During periods of autocratic, populist upheaval, judges tend to find themselves in the political crosshairs. Faced with leaders who are bent on hollowing out the rule of law, the judiciary often must choose between bending the knee and defiantly asserting the supremacy of fundamental legal norms, come what may. ... Still, not everyone is quite so worried about the political nature of America’s judiciary, nor with the populist direction that many democracies are taking (or have taken). As Harvard Law’s Mark Tushnet and Bojan Bugarič of the University of Sheffield write in their new book, Power to the People, populism in and of itself is not the threat that many commentators and politicians have painted it to be. They prefer to view populism as a means of governing, which “must be considered together with its host ideology.”

  • 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.”