Noah Feldman

An op-ed by Noah Feldman: Across the country, a series of laws are being proposed that would restrict transgender girls from participating in girls’ sports. The proposals are part of a concerted effort by a number of conservative organizations to turn transgender rights into a wedge political issue. The laws are cruel and alarming — and would almost certainly be found unconstitutional, even at a very conservative Supreme Court. That’s because less than a year ago, the U.S. Supreme Court ruled in Bostock v. Clayton County that Title VII anti-discrimination law protects transgender employees from workplace discrimination. Under the logic of that precedent, the proposed restrictions on girls’ sports may well violate an analogous federal law, Title IX, that prohibits discrimination on the basis of sex in schools. The Bostock decision, issued by the Supreme Court in June 2020, was authored by Justice Neil Gorsuch with the support of the court’s liberals and, crucially, Chief Justice John Roberts. Even now that Justice Ruth Bader Ginsburg has been replaced by Justice Amy Coney Barrett, Bostock won’t be overturned anytime soon.

An op-ed by Noah Feldman: The “For the People Act” currently being proposed by House Democrats would transform the way the U.S. runs federal elections. Known as H.R. 1, the bill would make it substantially easier to vote. It would also counteract restrictive legislation enacted by Republican state legislatures in recent years. One provision stands out from the rest: the one that would end state-level gerrymandering by requiring that all legislative districts be set by independent, nonpartisan commissions, rather than by the state legislatures. The good news is that this provision would do more to restore election fairness than all the rest of the act taken together. Its benefits would be worth the cost of breaking the filibuster. The bad news is that a conservative Supreme Court might hold that it is unconstitutional for Congress to prescribe a system for states to design districts. That would undercut the legislation and allow gerrymandering to continue. The framework for assessing what Congress can do about state electoral districting is Article I, section 4 of the Constitution, which says: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”

A podcast by Noah Feldman: Alec MacGillis, award-winning ProPublica journalist and author of the new book “Fulfilment: Winning and Losing in One Click America,” explains Amazon’s role in deepening America’s regional wealth disparities. He also discusses the recent efforts to unionize some Amazon fulfillment centers and the threat that unionization poses to the company.

An op-ed by Noah Feldman: House Democrats are poised to vote for Washington, D.C. statehood. As in the past, the proposal is being met with total Republican opposition. What’s different this time is that a growing number of Democrats aren’t ready to accept the Republican “no” as final. If Senate Democrats kill the filibuster, the party could admit D.C. as a state and thus seat two new, presumably Democratic senators. The filibuster lets Republicans block D.C. statehood even if, as Senator Joe Manchin has suggested, the rule is tweaked so that a senator actually has to keep talking — like Jimmy Stewart in “Mr. Smith Goes to Washington.” The prospect of D.C. statehood would certainly motivate Republicans to new levels of verbal stamina. That means that for D.C. to become a state, either Manchin would have to drop his opposition to eliminating the filibuster entirely, or Democrats would have to pick up more seats in 2022. Say one of those things happened, and D.C. became a state. What’s to stop Republicans from seeking to add Senate seats when they return to power — for example, by sub-dividing solidly red states? If it sounds crazy, it shouldn’t. The admission of new states has a turbulent history in the U.S.

An op-ed by Noah Feldman: Sidney Powell, one of Donald Trump’s former lawyers, is being sued by Dominion Voting Systems for defamation. Her lawyers have entered a truly astonishing defense: that her statements alleging the Democratic Party stole the election using the company’s vote counting software can’t be defamation because no reasonable person would have believed them. The defense is legally wrong. Her statements were clearly assertions of fact — and they were believed by many members of the public. Nevertheless, it is a fascinating argument — an acknowledgement that any claim associated with Trump could be considered mere bluster, even when framed in factual terms. In short, Powell’s defense is to throw Trump under the bus. The basic idea: He is such a known liar that any assertion made on his behalf in an election can’t be taken as remotely plausible. Under U.S. Supreme Court precedent, for statements to count as defamation, they must be susceptible of being proven true or false. Opinion statements are protected by the First Amendment from being made subject to libel law. Political opinion is especially protected.

A podcast by Noah Feldman: Britney Spears’ former lawyer Adam Streisand goes deep into the details of Britney’s conservatorship. He discusses his role in her case and his concerns about how her conservatorship. He also explains the potential conflicts inherent to the conservatorship system and ways it can be misused.

Jury selection is now proceeding for the upcoming trial of Derek Chauvin, the former Minneapolis police officer charged with killing George Floyd, in a horrific incident that touched off nationwide protests against racism and police brutality. Many aspects of the process seem calculated to exclude not only potential jurors who have strong feelings about the specific case (and thus might be biased), but also those who have any kind of relevant background knowledge about criminal justice, scientific evidence, chokeholds, and other matters. In recently published articles, both Harvard Law School Professor Noah Feldman and The Week columnist Bonnie Kristian argue that this situation highlights the need to change selection policies that have the effect of dumbing down juries by excluding those with the greatest potential knowledge and insight...Feldman explains how this tendency undermines a key function of jurors in the Anglo-American legal tradition, which was in part to bring to bear the collective knowledge and insight of the community: “The logic [of current practices] is understandable. We don't want jurors to have made up their minds before hearing the evidence presented at trial. But the result is all too often the selection of jurors who are nominally neutral because they have their heads in the sand. Choosing jurors with no meaningful knowledge of public affairs has consequences. Among other things, it entails selecting jurors who might not be able to draw upon the moral intuitions of the community that we want jurors to embody.”

Αn op-ed by Noah Feldman: Jury selection in the criminal trial of Derek Chauvin for the murder of George Floyd is highlighting one of the legal system’s absurdities: its aspiration to choose jurors who are not only neutral but actively uninformed about major public events. The logic is understandable. We don’t want jurors to have made up their minds before hearing the evidence presented at trial. But the result is all too often the selection of jurors who are nominally neutral because they have their heads in the sand. Choosing jurors with no meaningful knowledge of public affairs has consequences. Among other things, it entails selecting jurors who might not be able to draw upon the moral intuitions of the community that we want jurors to embody. When you come across something in the legal system that genuinely appears to make no sense, the reason is usually history. The criminal jury in the Anglo-American tradition used to have a very different purpose, as I learned from the legal historian John Langbein. The medieval purpose of a jury of peers drawn from the vicinity was to make sure that the jury was full of local people who already knew the facts of the cases they would hear.

A podcast by Noah Feldman: Did January’s pro-Navalny protests have a lasting impact in Russia? Russian investigative reporter Diana Kachalova, editor-in-chief of the St. Petersburg bureau of Novaya Gazeta, an independent Russian newspaper, joins us to discuss covering the aftermath of Alexei Navalny’s case and the status of investigative journalism in Putin’s Russia.

An op-ed by Noah Feldman: Friends, Romans, countrymen, law professors: Please stop telling Justice Stephen Breyer to retire. Yes, Breyer is a (healthy) 81. Yes, the Democratic Senate majority is wafer-thin, and it would likely be impossible for President Joe Biden to replace Breyer with another liberal if the Democrats lose even one of their 50 votes in the Senate. But here’s the thing: Breyer knows these facts already. But here’s the thing: Breyer knows these facts already. He is the one of the great pragmatist justices ever to have sat on the Supreme Court, following in the footsteps of Justice Louis Brandeis. Breyer also knows Capitol Hill, having worked there three separate times: once on the Watergate investigation and twice for the Senate Judiciary Committee. He can be trusted to do the right thing – provided liberal law professors don’t box him in by declaring that he “must” resign.

An op-ed by Noah Feldman: Former Republican president Donald Trump is trying to block the Republican National Committee from using his image in their fundraising efforts. He has no legal case: Trump is a public figure and can’t stop anyone from using his image in the course of political speech. But if you think of it in terms of U.S. campaign finance customs rather than in terms of free speech, Trump has a point. And that is very rare indeed. First Amendment principles are clear: public figures really are different when it comes to image control. It’s one thing for an ordinary person to be able to control the use of her image. That makes both legal and economic sense, because as a private person you should be able to choose who gets to display and make a profit from what you look like. But when you have run for president and won and dominated the political conversation for the last five years, you should not be able to control the use of your image in a political context. Such censorship would detract too much from the valuable exchange of political ideas. Imagine if the Democratic National Committee, not the RNC, were using Trump’s image to convince voters to donate money to discourage Trump from returning to politics. We would all have the instinct that this should count as protected political speech. It would be bizarre if Trump could use his own image to promote his own candidacy but the other side couldn’t use his image to take the opposite position.

A podcast by Noah Feldman: Alice Hill, former Special Assistant to President Obama and Senior Director for Resilience Policy on the National Security Council, explains what Texas’ electrical grid collapse means for our country’s infrastructure at large. She also makes recommendations on how we can start preparing infrastructure now for extreme weather events.

In 1883, a Jerusalem antiquities dealer named Moses Wilhelm Shapira announced the discovery of a remarkable artifact: 15 manuscript fragments, supposedly discovered in a cave near the Dead Sea. Blackened with a pitchlike substance, their paleo-Hebrew script nearly illegible, they contained what Shapira claimed was the “original” Book of Deuteronomy, perhaps even Moses’ own copy...In a just-published scholarly article and companion book, Idan Dershowitz, a 38-year-old Israeli-American scholar at the University of Potsdam in Germany, marshalls a range of archival, linguistic and literary evidence to argue that the manuscript was an authentic ancient artifact. But Dershowitz makes an even more dramatic claim. The text, which he has reconstructed from 19th-century transcriptions and drawings, is not a reworking of Deuteronomy, he argues, but a precursor to it, dating to the period of the First Temple, before the Babylonian Exile...When Dershowitz outlined his theory to Noah Feldman, a professor at Harvard Law School and chairman of Harvard’s Society of Fellows, where he was about to begin a fellowship, the older scholar warned him off. “I said, ‘You’re crazy, I don’t want to hear it, you’re going to destroy your career, go away,’” Feldman recalled. “He would keep emailing me details, and I would reply TGTBT — too good to be true.” (Feldman was eventually persuaded enough to help fund Dershowitz’s research, through the law school’s Julis-Rabinowitz Program on Jewish and Israeli Law.)

An op-ed by Noah Feldman: Yesterday’s  Supreme Court arguments in a major voting rights case portend what appears to be the future of election law: The continuing withdrawal of the court from the role of policing elections for racial fairness. Call this the Roberts Doctrine. The chief justice has been pushing the agenda of judicial disengagement from voting rights issues since 2012, when he wrote a landmark decision in the case Shelby County v. Holder, striking down section 5 of the Voting Rights Act of 1965. The new case, out of Arizona, addresses Section 2 of the same act. The court may well be poised to weaken that part of the law to make it harder to challenge a state’s voting practices as racially discriminatory. If it does, this will continue the judicial pullback from a role the courts have played since 1964, when the Supreme Court established the principle of one person, one vote. The Roberts Doctrine reflects the chief justice’s particular jurisprudence, one profoundly influenced by the thinking of the late Justice Felix Frankfurter, who retired from the court in 1962 and died in 1965. Frankfurter was the father of the modern doctrine of judicial restraint. When Roberts follows Frankfurter in declining to strike down legislation, as he partly did in the Affordable Care Act case, liberals like it. When he follows Frankfurter in restraint around election law challenges, as he did in rejecting former president Donald Trump’s judicial challenges to the 2020 election results in Pennsylvania, liberals applaud that, too.

An op-ed by Noah Feldman: In a stunning, generation-defining decision, Israel’s Supreme Court has unanimously ruled that people who became Jews through Conservative and Reform conversions must be considered as Jews for purposes of the country’s Law of Return, allowing them a fast-track to citizenship. Israel’s legislature, the Knesset, has the authority to reverse the decision and restrict the Law of Return to Orthodox converts. That may well happen — but if it does, it would represent a serious blow to relations between American Jews, most of whom are not Orthodox, and the state of Israel. The Law of Return is foundational to Israel’s self-concept as a Jewish democratic state. It establishes the principle that Jews may become citizens of Israel simply by showing up in the country and declaring their intention to become citizens. As written, the law defines a Jew as “one who was born to a Jewish mother or converted, while not being a member of another religion.” The case before the Supreme Court involved the vexed question of the meaning of the word “converted”: Which conversions count as qualifying a person for citizenship under the law? The answer has massive implications for the nature of Israeli identity.

A podcast by Noah Feldman: Dr. Carl Hart, neuroscientist and author of the provocative new book “Drug Use for Grown Ups: Chasing Liberty in the Land of Fear” questions the way we understand, regulate, and police drugs in America. Dr. Hart argues that most drugs are safer than we realize, and the negative effects of drugs are overstated and misunderstood. His research raises larger questions about policing, race, poverty, and mental health.

An essay by Noah Feldman: There wasn't much President Joe Biden could have done about this month's Texas energy disaster. Ditto the slow-moving vaccine rollout. The reason is the same: federalism, a system dating to the 1780s and only seriously overhauled once. Although federalism still has some benefits, its obsolescence is increasingly obvious when the U.S. faces crises that, like climate change and COVID-19, don't respect state boundaries. Energy and health care are only two of the crucial infrastructure systems that remain state-regulated or state-run. And many of those systems are in need of updating everywhere − not piecemeal, as federalism tends to support. Federalism was, in important ways, an American invention, the brainchild of James Madison. It was a product of political necessity for 13 states that had been separately administered as British colonies and that had already tried and failed to function as a loose confederation between 1776 and 1787.

A podcast by Noah Feldman: Six of the nine Supreme Court Justices are members of a club called the Federalist Society. Noah Feldman speaks to Eugene B. Meyer, the president of the Federalist Society, about the organization’s goals, how it is funded, and how it operates. They also discuss Noah’s new audiobook about the organization called “Takeover: How a Conservative Student Club Captured the Supreme Court.”

An op-ed by Noah Feldman: There wasn’t much President Joe Biden could have done about this month’s Texas energy disaster. Ditto the slow-moving vaccine rollout. The reason is the same: federalism, a system dating back to the 1780s and only seriously overhauled once. Although federalism still has some benefits, its obsolescence is increasingly obvious when the U.S. faces crises that, like climate change and Covid-19, don’t respect state boundaries. Energy and health care are only two of the crucial infrastructure systems that remain state-regulated or state-run. And many of those systems are in need of updating everywhere — not piecemeal, as federalism tends to support. Federalism was, in important ways, an American invention — the brainchild of James Madison. It was a product of political necessity for 13 states that had been separately administered as British colonies and that had already tried and failed to function as a loose confederation between 1776 and 1787. Unifying into a single nation would have been practical for the early United States. At the Philadelphia constitutional convention, big-state representatives, including Madison, favored a heavily national model of government to replace the failing decentralized system created by the Articles of Confederation.

An op-ed by Noah Feldman: Former president Donald Trump’s lawyers defended him during his second impeachment trial in part by arguing that his January 6 speech was protected by the First Amendment. That defense was legally irrelevant to the high crimes and misdemeanors charge, and wasn’t settled by his acquittal. But Trump’s free-speech defense may now get its day in court. Representative Bennie Thompson, a  Democrat from Mississippi, has filed a civil lawsuit against Trump, Rudy Giuliani, the Oath Keepers and the Proud Boys for unlawfully conspiring to interfere with Congress in the Capitol attack in violation of the Ku Klux Klan Act of 1871. And while the First Amendment doesn’t apply to impeachable offenses, it does apply in cases of civil liability. Trump’s best argument to get the case dismissed would be that he can’t held liable for conspiring with those who attacked the Capitol if all he did was express his First Amendment-protected political views. To decide that, a federal court would have to determine whether Trump’s speech was protected under the standard set by Brandenburg v. Ohio, the controlling precedent in incitement cases. The statute that forms the basis of Thompson’s lawsuit establishes liability when two or more persons conspire “by force, intimidation, or threat” to prevent any officer of the U.S. from the “lawful discharge of the duties of his office.” On its face, the law covers the January 6 attacks. There is no doubt that the rioters forcefully interfered with Congress’s discharge of its duties, and that Thompson was one of the people who was affected.

A podcast by Noah Feldman: Why are presidential impeachments happening more often? Are impeachments futile if they don't end in a conviction? What did Hamilton and Madison overlook about the impeachment and the transition of power? To discuss these questions, political journalist and CEO of Pushkin Industries Jacob Weisberg joins the conversation. Jacob and Noah were two of the early voices on impeachment, starting in 2017 when they co-authored an article laying out Trump’s early possible impeachable offenses for The New York Review of Books. Noah would later testify at President Trump’s first impeachment trial. Today, Jacob and Noah bookend the conversation on impeachment.