Nancy Gertner

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.

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.

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.”

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.”

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.

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.”

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."

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.”

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.

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.”

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.