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Nancy Gertner

  • Boston Public Radio full show: Aug. 24, 2022

    August 29, 2022

    Judge Nancy Gertner joined us for a session of “On the Docket,” in which she analyzed news about recent comments from Suffolk District Attorney candidate…

  • Boston Public Radio full show: Aug. 19, 2022

    August 29, 2022

    Judge Nancy Gertner weighed in on the ongoing investigations into former President Donald Trump, including fallout from the Jan. 6 committee hearings and the FBI…

  • Why the Mar-a-Lago affidavit could become one of the most scrutinized documents in American politics

    August 29, 2022

    The FBI search of Donald Trump’s Florida resort and the removal of classified information raise a compelling need for maximum public disclosure given the involvement…

  • Boston Public Radio full show: Aug. 12, 2022

    August 17, 2022

    Retired Judge Nancy Gertner shared her thoughts on Attorney General Merrick Garland’s address on the FBI raid at Mar-a-Lago, unpacking some of the legal statutes involved…

  • U.S. Supreme Court building, looking up towards the sky from the bottom of the stairs.

    Harvard Law faculty weigh in: The 2021-2022 Supreme Court Term

    June 25, 2022

    Harvard Law School experts weigh in on the Supreme Court’s final decisions.

  • Former U.S. District Court judge on what the SCOTUS leak means for abortion law

    May 4, 2022

    Abortion may soon become illegal in some states. Politico on Monday night leaked a draft opinion penned by Supreme Court Justice Samuel Alito suggesting the court will overturn Roe v. Wade, the 1973 case legalizing abortion nationwide, and Planned Parenthood v. Casey, which upheld abortion in 1992. The rare Supreme Court leak regards Dobbs v. Jackson Women’s Health Organization, a case surrounding a restrictive Mississippi abortion law. Judge Nancy Gertner, a retired judge for the U.S. District Court in Massachusetts, said the news caught her off guard. “I was surprised by the venom of the decision,” Gertner said on Boston Public Radio. If the official ruling holds true to the arguments in the leaked document, it could have far-reaching effects beyond abortion. Gertner said she is worried about the broader legal implications, including what it means for birth control, interracial marriage and same-sex marriage. “The implications of that are enormous,” Gertner said. “The reasoning really casts doubt on 50 years of constitutional law.”

  • ‘The Girl From Plainville’: 5 Things to Know About the True Story That Inspired the Hulu Series

    March 30, 2022

    Hulu’s The Girl From Plainville opens with the death of Conrad Roy III (Colton Ryan). The 18-year-old’s body is discovered in his pickup truck in a Kmart parking lot. He has died by suicide. But questions soon emerge about the role a young woman named Michelle Carter (Elle Fanning) might have played in Conrad’s decision to end his life. ... “Will the next case be a Facebook posting in which someone is encouraged to commit a crime?” Nancy Gertner, a former federal judge and Harvard Law professor, told the Times. “This puts all the things that you say in the mix of criminal responsibility.”

  • Supreme Court decision on Wisconsin maps part of a drive to undermine democracy

    March 25, 2022

    Over and over again during the Senate Judiciary Committee’s Supreme Court confirmation hearings for Biden nominee Ketanji Brown Jackson, Republicans denounced the idea of “packing the Court”  by expanding the number of justices from nine to 13. But Wednesday’s decision rejecting Wisconsin’s voting maps and throwing the 2022 election process — which is already underway — into chaos, demonstrates that Republicans have packed the Court already. ... Former federal judge and Harvard Law School professor Nancy Gertner argues that the Supreme Court’s legitimacy has been undermined by Republican efforts to “manipulate its membership” and to roll back voting rights. Our democratic institutions are in crisis at every level. As Gertner puts it, “This is a uniquely perilous moment that requires a unique response.” Gerner favors expanding the U.S. Supreme Court to push back against the gathering threats to democracy.

  • Ketanji Brown Jackson defended the poor — experience that can balance the Supreme Court

    March 22, 2022

    An op-ed co-written by Nancy Gertner: It’s not that US senators are against all lawyers who defend clients, however savory or unsavory the clients may be. They had no problem confirming current US Supreme Court justices who defended large corporations for some of their careers (Chief Justice John Roberts and Justices Elena Kagan, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett). Nor was this an impediment to the confirmation of appellate judges. About 6 in 10 appellate judges are former corporate lawyers from large firms. Given this profile, it is no surprise, then, that the parties that appeared before the Supreme Court that were backed by the US Chamber of Commerce won 83 percent of the time in the most recent term.

  • Judicial Opinion Barbs Reflect Political Divisions, Twitter Era

    February 1, 2022

    Ninth Circuit Judge Lawrence VanDyke’s writings are again getting attention as he crafted a majority opinion and an alternative attached as a concurrence he said liberal colleagues could adopt en banc in the Second Amendment case. “You’re welcome,” he added, in a sarcastic aside. .. “It really undermines the relationships on the court,” said Nancy Gertner, a retired federal judge in the District of Massachusetts and current professor at Harvard Law. “And you may not care about the relationships, but these are people who have to live together for some time.”

  • Bench Report: This Ex-Judge’s Pitch to Make Sentences More Just. Plus, Senate Confirms Its First Judge of 2022.

    January 14, 2022

    A former federal judge is calling for changes to how other judges think about sentencing, even as they face mandatory minimums and grapple with the sentencing guidelines. Nancy Gertner, who spent 17 years on the federal bench in Massachusetts, wrote in a new paper this week that the role of judges in sentencing has changed over the decades, particularly with the advent of mandatory sentencing guidelines. Those guidelines combined with laws requiring mandatory minimum sentences, she writes, have caused judges to feel more accustomed to handing down longer sentences—even when they have the discretion to do otherwise.

  • Can Judges Do More Than Punish?

    January 11, 2022

    Persuading judges to wean themselves from the “habit of mass incarceration” is a critical step in transforming the American justice system, says former federal judge Nancy Gertner. Much of the focus on justice reform has been on changing the behavior of prosecutors and police, with judges often assumed to be above the fray, according to Gertner, former senior judge at the U.S. District Court for the District of Massachusetts, and now a professor of practice at Harvard Law School. But in fact little headway is possible without the active engagement of judges willing to overcome deeply engrained resistance to changes in sentencing practices, Gertner wrote in a paper commissioned for the Executive Session on the Future of Justice Policy, part of the Columbia University Justice Lab’s Square One Project on reimagining justice. “The goal is to invite judges to reimagine what community safety really looks like, not with police, prosecutors, and exorbitant mandatory minimums—and the role that judges can play in facilitating it,” Gertner wrote in the paper released Tuesday.

  • Majority in ‘Sweeting-Baily’ ignored what SJC itself warned against year ago

    January 11, 2022

    An op-ed by Nancy GertnerOn June 30, 2020, the seven justices of the Supreme Judicial Court, including Chief Justice Ralph Gants, who tragically died months later, wrote an extraordinary letter to the legal community saying: “We must recognize and confront the inequality and injustice … of the disproportionate incarceration of African-Americans, and challenge the untruths and unfair stereotypes about African-Americans that have been used to justify or rationalize their repression.” Only a year later, on December 22, 2021, in Commonwealth v. Sweeting-Bailey, the court’s majority ignored that plea.

  • Trump could still face legal trouble one year later after Capitol insurrection

    January 6, 2022

    Attorney General Merrick Garland has promised more charges to come against people who were part of the 2021 attack on the Capitol, while many continue to call for former President Donald Trump to be charged in the insurrection. Nancy Gertner, retired federal judge and senior lecturer at Harvard Law School, and former U.S. Attorney Michael Sullivan joined Jim Braude on Greater Boston to discuss.

  • Crowd of protesters waving flags at the U.S. Capitol

    January 6, 2021: Harvard Law experts reflect a year later

    January 4, 2022

    Harvard Law Today asked experts from across Harvard Law School to share their perspectives on January 6, 2021, the events that have unfolded since, and the implications for American democracy going forward.

  • ‘Greater Boston’ looks back at 2021 and ahead at 2022

    January 3, 2022

    From systemic racism and inequity to Boston electing its first woman and person of color as mayor, 2021 brought us several stories that will continue to have an impact on our local communities in the coming year. Nancy Gertner, retired federal judge and senior lecturer at Harvard Law School, and Michael Curry, president and CEO of the Massachusetts League of Community Health Centers, joined Jim Braude on Greater Boston to discuss the biggest local and national stories of the past year. ... "I don't think we can underestimate the impact of the change at the top," Gertner said, referring to the Supreme Court. Since Justice Amy Coney Barrett joined the bench, Gertner said, the court has taken on cases and positions based on personal interests, not precedent. "They have enabled gerrymandering. They have decimated the Voting Rights Act," she continued. "And they show every indication of being like that going forward."

  • Legal and scientific experts sharply question proposed crackdown on drugged driving

    January 3, 2022

    Governor Charlie Baker is putting new pressure on the Massachusetts Legislature to finally pass his proposed crackdown on drugged driving, instead of letting the measure — initially filed in 2019 — again die in committee. ... “It’s junk science to the nth degree,” Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School, said in an interview. “The Legislature has no business mandating who or what can be admitted into court — especially testimony that doesn’t meet evidentiary standards. It’s preposterous, and challengeable on any number of grounds.”

  • Opinion: The Supreme Court isn’t well. The only hope for a cure is more justices.

    December 10, 2021

    An op-ed by Nancy Gertner and Laurence H. Tribe: We now believe that Congress must expand the size of the Supreme Court and do so as soon as possible. We did not come to this conclusion lightly. One of us is a constitutional law scholar and frequent advocate before the Supreme Court, the other a federal judge for 17 years. After serving on the Presidential Commission on the Supreme Court over eight months, hearing multiple witnesses, reading draft upon draft of the final report issued this week, our views have evolved. We started out leaning toward term limits for Supreme Court justices but against court expansion and ended up doubtful about term limits but in favor of expanding the size of the court. We listened carefully to the views of commissioners who disagreed. Indeed, the process was a model for how people with deeply diverging perspectives can listen to one another respectfully and revise their views through genuine dialogue. We voted to submit the final report to President Biden not because we agreed with all of it — we did not — but because it accurately reflects the complexity of the issue and that diversity of views. There has never been so comprehensive and careful a study of ways to reform the Supreme Court, the history and legality of various potential reforms, and the pluses and minuses of each. This report will be of value well beyond today’s debates. But make no mistake: In voting to submit the report to the president neither of us cast a vote of confidence in the Supreme Court itself.

  • Great, now there’s a snowplow shortage, too

    December 9, 2021

    This is the Radio Boston rundown for December 8. Tiziana Dearing is our host. ... Rachael Rollins will officially become the first Black woman to serve as US Attorney for Massachusetts. It comes after a fiery confirmation process and a roll call vote today — the first time that's happened since 1975. We discuss with Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR's legal analyst.

  • ‘Court Packing’ Issue Divides Commission Appointed by Biden

    December 8, 2021

    The bipartisan commission appointed by President Biden to study possible changes to the federal judiciary unanimously approved a final report on Tuesday that flagged “profound disagreement” among its members over the issue that led to the panel’s creation: calls to expand or “pack” the Supreme Court with additional justices. By a vote of 34 to 0, the commission approved a 288-page report that offered a critical appraisal of arguments for and against that and many other ideas for changes to the Supreme Court, including imposing 18-year term limits on justices and reducing their power to strike down acts of Congress. ... Another former federal judge, Nancy Gertner, who is now a Harvard Law School professor, also praised the report, even as she argued for expanding the number of justices. She said that the Supreme Court’s legitimacy had been undermined by Republican efforts to “manipulate its membership,” and that its majority was enabling rollbacks of voting rights that otherwise would lead the court’s composition to evolve in response to the results of free and fair elections. “This is a uniquely perilous moment that requires a unique response,” she said, adding, “Whatever the costs of expansion in the short term, I believe, will be more than counterbalanced by the real benefits to judicial independence and to our democracy.”

  • Biden’s Supreme Court commission endorses final report noting bipartisan public support for term limits

    December 8, 2021

    A bipartisan panel of legal scholars examining possible changes to the Supreme Court voted unanimously Tuesday to submit to President Biden its final report, which describes public support for imposing term limits but “profound disagreement” about adding justices. Biden assembled the commission in response to demands from Democrats to restore what they called ideological “balance” on the court, now with three liberals and six conservatives, including three justices picked by President Donald Trump. In advance of the 34 to 0 vote, commissioners from across the political spectrum aired their differences about specific proposals for overhauling the court even as they praised the collegial process of assembling the nearly 300-page document. “I’m more convinced than ever that change is necessary,” said retired federal judge Nancy Gertner, a nominee of President Bill Clinton. “The court has been effectively packed by one party and will remain packed for years to come with serious consequences to democracy. Constitutional law expert Laurence Tribe said he had come to embrace the idea of expanding the bench because “all is not well with the court,” which he asserted, “no longer deserves the nation’s confidence.” “Even if expanding it would momentarily shake its authority,” Tribe said, “that risk is worth taking.”

  • Supreme Court Panel Divided on Expansion Approves Report

    December 8, 2021

    A White House Commission studying changes to the U.S. Supreme Court voted unanimously to send its report to President Joe Biden after sidestepping the most controversial proposals to expand the court’s membership or limit the justices’ terms. Members, who voted 34-0 Tuesday, emphasized that their approval of the final report doesn’t signal support for all the proposals examined by the panel. ... Some may be disappointed that the report doesn’t make specific recommendations, said former U.S. District Court Judge Nancy Gertner, who said she supports changes to the court. “But that was not our charge,” Gertner said. Instead, “the tasks set before us was to capture that deep, live, and consequential debate, fully and fairly, without short changing either side,” said Harvard Law School Professor Andrew Manuel Crespo. ... The commission concluded that the least controversial changes, like term limits, were the hardest to enact, said Harvard Law School Professor Larry Tribe. And the most controversial—expanding the number of justices—the easiest to do, he added.

  • The stench at the Supreme Court

    December 3, 2021

    An op-ed by Nancy Gertner: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” That was the question Justice Sonia Sotomayor asked Wednesday as the US Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, after quoting the sponsors of the law, who said, “We’re doing it [passing this law] because we have new justices.” Dobbs challenges a Mississippi law that bans abortions after 15 weeks of pregnancy. Dobbs is not just about Mississippi; it has become synonymous with the question of whether Roe v. Wade, the watershed 1973 case that legalized abortion, will be overturned by the court. Fifteen justices since Roe v. Wade in 1972, 13 since the 1992 Planned Parenthood v. Casey case that reaffirmed Roe, have held that abortion may not be banned before fetal viability at 23 to 24 weeks. Justice Sandra Day O’Connor wrote in Casey: “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.” Indeed, she added, since Roe an entire generation of American women had formed relationships and started — or decided not to start — families under the assumption they had this right. And, presaging Sotomayor, she added, “to overturn something so momentous would call into question the court’s own legitimacy.”

  • Headshot of man viewed from the side

    Acquitted: Assessing the Rittenhouse trial

    November 19, 2021

    Retired federal judge Nancy Gertner, now a senior lecturer on law at Harvard Law School, talks about the verdicts in the Kyle Rittenhouse trial, how the trial was conducted, and comparisons to the ongoing trial of the men who killed Ahmaud Arbery.

  • Kyle Rittenhouse judge has gotten his share of criticism. Can a judge be removed from a case? Not likely.

    November 16, 2021

    The judge in Kyle Rittenhouse's murder trial has been under fire for everything from yelling to making supposedly insensitive jokes. But getting him removed or recused is nearly impossible, legal experts say. ... Recusing or disqualifying a judge - which leads to replacement - typically happens when a judge is biased in favor of one side or another. Motions to recuse judges can come if one party feels the judge has a conflict of interest. ... To a casual viewer, it’s easy to wonder why Schroeder hasn’t been replaced. But Nancy Gertner, a retired judge who teaches at Harvard Law School, said it’s actually pretty simple: There’s virtually no way to do it. “The prosecutor would have to move to disqualify the judge, the judge would have to deny the motion, then the prosecutor would have to seek an emergency appeal to the Wisconsin Supreme Court and that would delay the trial,” Gertner explained. “The whole thing is a very complicated strategic issue because if you challenge the judge and that challenge fails, you’re often in a worse situation than before." As a result, she said, lawyers basically never move to disqualify judges, many of whom they're likely to see at later trials. When alleged bias from a judge comes up "while [a trial] is going on, it's virtually impossible to remove him."

  • How the defense for Rittenhouse and Arbery’s killers opened a dangerous door for vigilantism

    November 15, 2021

    Kyle Rittenhouse took the stand in his own murder trial on Thursday, forced to answer why he shot and killed two people during a Black Lives Matter protest last year in Wisconsin. His trial coincides with that of the three men charged with the 2020 murder of Ahmaud Arbery. Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law, and Dean Strang, a Loyola University-Chicago law professor and the attorney known from the "Making A Murderer" series, joined Jim Braude on Greater Boston to discuss these cases of white vigilantism. ... The guests argued that defense in the Rittenhouse trial benefited from a pre-trial ruling that barred prosecutors from referring to any of the people shot as victims, while allowing for the defense to refer to them as looters or arsonists. Gertner said those decisions gave more power to the Rittenhouse defense's argument that he acted because he believed there was a crime being committed. "What that does is to imply it's OK to shoot people who are committing crimes when you're a civilian," she said.

  • How the defense for Rittenhouse and Arbery’s killers opened a dangerous door for vigilantism

    November 12, 2021

    Kyle Rittenhouse took the stand in his own murder trial on Thursday, forced to answer why he shot and killed two people during a Black Lives Matter protest last year in Wisconsin. His trial coincides with that of the three men charged with the 2020 murder of Ahmaud Arbery. Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law, and Dean Strang, a Loyola University-Chicago law professor and the attorney known from the "Making A Murderer" series, joined Jim Braude on Greater Boston to discuss these cases of white vigilantism. The guests argued that defense in the Rittenhouse trial benefited from a pre-trial ruling that barred prosecutors from referring to any of the people shot as victims, while allowing for the defense to refer to them as looters or arsonists. Gertner said those decisions gave more power to the Rittenhouse defense's argument that he acted because he believed there was a crime being committed.

  • Experts weigh in: Will Kyle Rittenhouse’s breakdown help or hurt his case?

    November 12, 2021

    Kyle Rittenhouse breaking down on the stand Wednesday is so far the most gripping part of his trial for killing two people and wounding a third during the violent protests last year in Kenosha. ... "It's usually enormously risky to put a defendant on the stand," said Judge Nancy Gertner of Harvard Law School. Now a retired federal judge Gertner at Harvard Law School told WISN 12 News the testimony was effective. "We're talking about visceral responses here, and since the legal standard is did he believe his life was in danger, in imminent danger of bodily harm and was it reasonable? His affect is important to that inquiry," Gertner said.

  • After emotional testimony, Kyle Rittenhouse’s defense plans to call more witnesses

    November 12, 2021

    Defense attorneys for Kyle Rittenhouse are planning to call several more witnesses on Thursday. Rittenhouse testified on Wednesday that he acted in self-defense when he killed two people and wounded another last year in Kenosha, Wisconsin. Here & Now's Jane Clayson talks with Harvard Law School professor and retired judge Nancy Gertner about the case.

  • America should not tolerate vigilante behavior

    November 8, 2021

    An op-ed by Nancy Gertner and Dean Strang: A young man in Wisconsin, Kyle Rittenhouse, is on trial for shooting three men, killing two and injuring one, during protests in Kenosha following the police shooting of a Black man, Jacob Blake. Shortly before the trial began, the trial judge entered a conditional ruling that should concern everyone. It flouts common sense, is legally tenuous, and worse, conveys a troubling message: the defense may be allowed to refer to the three men who were shot as “rioters,” “arsonists” or “looters,” but the prosecution may not refer to the men as “victims” because that is a “loaded word.” True, juries decide who is, or is not, a victim in a legal sense. But American judges routinely allow prosecutors to describe people injured or killed as “victims” in jury arguments. Imagine a domestic violence trial in which the judge would allow the husband’s defense to refer to the wife as a “brawler” but not allow the prosecutor to describe her as a “victim.” We can’t.

  • What Do The SCOTUS Hearings Mean For Roe V. Wade?

    November 2, 2021

    Watch: The Supreme Court heard two challenges to Texas’ restrictive abortion law Monday. This was just the start to a contentious week for the justices, with arguments over New York’s gun rights law slated for Wednesday. Nancy Gertner, senior lecturer at Harvard Law and a member of President Biden's Supreme Court Commission and Renée Landers, Suffolk University constitutional law expert, joined Jim Braude on Greater Boston to discuss. ... Gertner looked ahead to the upcoming Mississippi case, a direct challenge to Roe v. Wade, which she called “dire” for abortion rights. “It’s unimaginable that their purpose was anything other than to carve up Roe v. Wade or to reverse it,” she said.

  • Could Alec Baldwin Face Jail Time for Fatal Shooting? Legal Experts Weigh In

    October 25, 2021

    The fatal shooting incident involving Alec Baldwin has shocked Hollywood and sparked a series of questions about where the actor stands legally. ... The tragic accident has led to questions over whether Baldwin stands to face any criminal charges. Legal experts believe this is unlikely—though not impossible. "In order for there to be criminal charges, one would really have to show that he intentionally killed this woman, which seems unlikely on the facts as we know them," the Honorable Nancy Gertner, Senior Lecturer at Harvard Law School, told Newsweek.

  • Boston Marathon Bomber Supreme Court Case Puts Biden Administration’s Death Penalty Stance Under Spotlight

    October 15, 2021

    The fate of convicted Boston Marathon bomber Dzokhar Tsarnaev is now in the hands of the Supreme Court, which must decide whether his death sentence will be reinstated. Jim Braude was joined on Greater Boston by Nancy Gertner, retired federal judge and senior lecturer at Harvard Law School, to discuss. Gertner commented on the tricky spot that the Biden administration and the Department of Justice are in, given that Biden is personally opposed to the death penalty. “You see this a lot in the Merrick Garland administration of the Attorney General’s office — they see themselves as not the final word. They’ve only put a moratorium on the death penalty,” she said.

  • Capitol rioter represents himself, accidentally admits to more crimes

    October 14, 2021

    The January 6 Select Committee subpoenaed Trump Justice Department official Jeffrey Clark. A January 6th defendant who insisted he will defend himself on the court wound up admitting to two more felonies that he started out with. Today, President Biden gave a speech addressing the supply chain issue but also touting the fact that part of his Build Back Better agenda is an investment in ports, investment in infrastructure, investment in domestic manufacturing. Cheerleaders demand NFL release the full workplace inquiry. ...Nancy Gertner: ... The problem with judges chastising the Department of Justice is the Department of Justice is in a little bit of a pickle. There are what, so many hundreds of people that have been arrested. They really have to determine -- they have to allocate their resources.

  • Texas Man Is Sentenced to 15 Months for Online Covid-19 Hoax

    October 7, 2021

    On April 5, 2020, Christopher Charles Perez posted a message on Facebook about an H-E-B grocery store in San Antonio, federal prosecutors said. “My homeboys cousin has covid19 and has licked everything for past two days cause we paid him too,” Mr. Perez wrote. “YOU’VE BEEN WARNED.” The claim was not true, and the post came down after 16 minutes, according to court documents. ... This past June, Mr. Perez, 40, of San Antonio, was found guilty of disseminating false information and hoaxes related to biological weapons. On Monday, a federal judge sentenced him to 15 months in federal prison. ... Nancy Gertner, a retired federal judge in Boston, said that since federal sentencing guidelines went into effect in 1987, judges have sentenced defendants to prison time on charges that once led to probation. “I’m sure the judge was intending to send a message to people who would be involved in like hoaxes, which is important,” said Ms. Gertner, now a lecturer at Harvard Law School. “The question is whether he needed to impose a sentence of this length to send that message.”

  • Two Mass. cases and a new Supreme Court term in Washington

    October 6, 2021

    The Supreme Court is back on the bench this week for a new term. And it could be a momentous one — as the court is set to take up cases related to abortion, gun rights, and affirmative action. We speak with our legal analyst, retired federal judge and senior lecturer at Harvard Law School Nancy Gertner.

  • Do Supreme Court justices have competing judicial philosophies or are they just partisan hacks?

    October 5, 2021

    An op-ed by Nancy Gertner: Supreme Court justices have sounded a similar theme in recent speeches around the country — but one that bears little resemblance to the court they sit on. At the University of Notre Dame, Justice Clarence Thomas insisted judges were not supposed to base decisions on personal feelings or religious beliefs. At the University of Louisville, Justice Amy Coney Barrett wanted to convince students “that this court is not comprised of a bunch of partisan hacks”; “competing judicial philosophies,” not politics, control their decisions. Justice Stephen Breyer agreed: You “gradually pick up the mores of the institution . . . you’re a judge, and you better be there for everybody.” True, this is a court with diverging “judicial philosophies.” But these philosophies map closely onto partisan differences — about civil rights, economic regulation, religious rights, voting rights. According to Erwin Chemerinsky, the dean of Berkeley Law School, “Time and again, the court’s Republican majority has handed down decisions strongly favoring Republicans in the political process.”

  • Judge Nancy Gertner On Vaccine Mandates, Challenges To Abortion Rights

    September 14, 2021

    Small businesses in Massachusetts employ more than 1.5 million people here. Some of those employers will now have to require their employees to be vaccinated, or test negative for COVID once a week, under new rules issued last week by President Joe Biden. Governor Baker has also mandated that more than 40,000 public sector employees in the commonwealth be vaccinated, with no testing option. In the face of more mandates, some are turning to religious exemptions: citing faith as a way to skip the shots...We turn to Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR's Legal Analyst.

  • Elizabeth Holmes’ trial set to begin with opening statements

    September 8, 2021

    Elizabeth Holmes and the US government are set to face off in a San Jose federal courtroom in the long-awaited criminal trial of the founder and former CEO of Theranos. ... The defense has more of a tightrope to walk with jurors with its opening statement, according to legal experts. Holmes' camp will seek to "balance their desire to surprise the government ... and their desire to let the jury know that there is another side to the government's story," according to Nancy Gertner, a former US federal judge and senior lecturer at Harvard Law School.

  • Retired Judge Nancy Gertner Reflects On Mandatory Minimums — And The People She Had To Sentence

    September 3, 2021

    You've come to know retired federal judge Nancy Gertner here on the show over the years. We turn to her to help us comb out all things legal, and to be our guide through the morass that can sometimes be the criminal justice system. Well it turns out, she's been struggling with some legal demons herself, and she wound up turning to people she'd sentenced to help her sort them out. She tells that story in her upcoming book, Incomplete Sentences.

  • Elizabeth Holmes Faces Trial For Fraud

    September 2, 2021

    It’s the stuff Hollywood movies are made of: In 2003, Elizabeth Holmes created a startup with audacious claims that through a simple blood test, she could revolutionize medicine. The only problem? The technology did not work, and Holmes now faces trial for fraud. Here & Now‘s Tonya Mosley talks with retired Judge and current Harvard Law School professor Nancy Gertner about Holmes’ legal defense.

  • Elizabeth Holmes’ trial is set to begin: Here’s what you need to know

    August 30, 2021

    Elizabeth Holmes, the disgraced founder and former CEO of Theranos, is set to go to trial this week, more than three years after being indicted on multiple federal fraud and conspiracy charges over allegations she knowingly misrepresented the capabilities of her company's proprietary blood testing technology. ... Legal experts say central to the trial will be questions about what Holmes knew, when she knew it, and whether she intended to deceive. "Either she had a device that could never work, or that couldn't work yet. The latter is a more murky situation," said Nancy Gertner, a former US federal judge and senior lecturer at Harvard Law School.

  • Boston police commissioner says he spoke repeatedly with Walsh about past troubles, claims former mayor knew of restraining order

    June 2, 2021

    Police Commissioner Dennis White, fighting for his job on the eve of a termination hearing, released a sworn statement Tuesday in which he recounted telling former mayor Martin J. Walsh that he had been the subject of a restraining order when he was accused in the late 1990s of threatening to shoot his former wife...The sworn statement was released in the form of an hourlong video of White being interviewed by his attorney, the latest part of an effort to dissuade Acting Mayor Kim Janey from ousting White at an administrative hearing scheduled for Wednesday...Employment experts described White’s series of video affidavits as a public relations campaign designed to pressure City Hall. But ultimately, experts said, Janey must decide if she wants White as her police commissioner, not whether he was guilty of domestic violence in the 1990s. “How could he possibly assume the position, so tainted by the controversy?” said Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School, in an e-mail. “For sure, he had every right to want to clear his name, and a legal right to do so, but ... having done all of this, how confident would Janey or any other mayor be in his taking a position of such responsibility?”

  • The Battle Between Mayor Janey And Commissioner White Continues

    May 27, 2021

    On Tuesday, a Superior Court judge refused to block the city of Boston from firing its police commissioner, Dennis White, over decades-old domestic violence allegations. The next day, the same judge also ordered a stay on her own ruling, and on the city's termination process, while White appeals the decision. WBUR's Ally Jarmanning brings us the latest on this still developing story. We also break down the legal arguments with Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR Legal Analyst.

  • Judge denies Boston Police Commissioner’s motion for injunction that would block his firing

    May 26, 2021

    A Suffolk Superior Court judge on Tuesday rejected Boston Police Commissioner Dennis White’s attempt to block his firing, a decision that clears the way for Acting Mayor Kim Janey to resume her effort to dismiss White following decades-old domestic violence allegations. Judge Heidi Brieger denied White’s motion for a preliminary injunction, in a ruling that had been anxiously awaited by City Hall and by White since a hearing on Thursday...Beyond his lawsuit, White has limited legal options, said Nancy Gertner, a retired federal judge and senior lecturer at Harvard Law School. “The ruling today is essentially a prediction by Judge Brieger that he’s not likely to succeed,” she said, noting that the law is also ambiguous about the kind of hearing White could expect before he is removed. Janey “offered a hearing, but he’s saying that’s not enough,” she said. “What he’s really saying is, I want a forum where I can defend myself.” White could also use his suit as leverage for a settlement with the city, Gertner acknowledged. In the interim, Janey could also move forward with another commissioner, though her legal standing to do so might be in question, she added.

  • Guns, Abortion, Mayoral Powers And Free Speech

    May 20, 2021

    Legal battles from the city of Boston to the Supreme Court could affect our future here in the Commonwealth. We'll get caught up on what's happening with retired federal judge and WBUR legal analyst Nancy Gertner.

  • Judge Reduces Life Sentence for Boston Man Convicted In 1991 Bombing

    May 10, 2021

    A man convicted for the 1991 bombing death of a Boston police officer will return to Massachusetts after a federal judge reduced his life sentence. A federal judge granted Alfred Trenkler's request for compassionate release — with some conditions — and allowed him to move from a federal prison in Arizona to the federal prison in Devens...The judge reduced Trenkler's sentence to 41 years with five years of supervision, in part because he found that the sentencing judge did not have the authority to impose a life sentence. His ruling also cites the federal First Step Act, passed in 2018, which gives judges the power to reduce sentences... "I do regard this as a victory," said Trenkler's lead attorney, retired federal judge Nancy Gertner. "Any time a life sentence is set aside, even for a number of years, that means the man has hope." ... Gertner said Trenkler will be eligible for parole in eight years.