Noah Feldman

An op-ed by Noah Feldman: The Supreme Court signaled today during oral argument that it won’t be striking down the whole Affordable Care Act as the Trump administration has asked it to do. The swing justices did seem especially eager to make their views clear — and to dispel any public fear that the court’s ever-deepening conservative majority would do now what it failed to do back in 2012 and undo “Obamacare” altogether. That’s probably good news for Republicans, given that the 10-year old ACA is politically popular. And it’s especially good news for Republicans facing runoff elections in Georgia, which will determine control over the U.S. Senate. It will now be much harder for Democrats to argue that Georgians should give both seats to the Democrats to protect or, if necessary, reenact the ACA. In truth, the possibility that the court might listen to the legal arguments of the Trump Department of Justice was always far-fetched. So it isn’t totally fair to quote Mr. Dooley’s famous observation that the Supreme Court follows the election returns. The issue before the court is a little arcane, but it can be summed up with only a little bit of oversimplification. When Chief Justice John Roberts upheld the individual mandate provision of the ACA in 2012, he said the mandate was a tax that must be paid by anyone who didn’t buy healthcare insurance in the private market or on a public exchange. Subsequently, Congress eliminated the penalty entirely. In effect, there is now no longer any penalty for not buying health insurance.

An op-ed by Noah Feldman: If the Supreme Court takes on a case connected to the outcome of the presidential election, Justice Amy Coney Barrett will face the most important decision of her career: not how to vote, but whether to participate at all. The situation is unprecedented. Never before has a president explicitly stated that he is choosing a justice so that she will be able to adjudicate that president’s own immediate re-election. And while there are arguments both for and against recusal, the argument for recusal is stronger. The one Supreme Court case that is most directly relevant is 2009’s Caperton v. A.T. Massey Coal Co. It involved a West Virginia judge who was elected after receiving $3 million in campaign contributions from the chairman of a company appealing a $50 million penalty. The chairman knew whichever judge won the election would review his appeal. The Supreme Court held, in an opinion by Justice Anthony Kennedy, that the due process clause of the Constitution was violated when the judge chose not to recuse himself and participated in the appeal that reversed the $50 million verdict against the company. The vote was 5 to 4, with Kennedy joining the court’s (then) four liberals to form a majority. In a fascinating op-ed in the Washington Post last month, retired conservative judge J. Michael Luttig — who didn’t care for the outcome in the Caperton decision — nonetheless argued that the decision likely obligates Barrett to recuse herself from participating in a 2020 election decision involving President Donald Trump. He emphasized the crucial sentence from Kennedy’s opinion: “Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the other parties’ consent — a man chooses the judge in his own cause.”

An op-ed by Noah Feldman: Regardless of what happens in the vote counting, President Donald Trump has said he is going to the Supreme Court to ask for … something or other. When he does, he will have to overcome a hurdle of his own making: his claim to have “already” won the election, made during his rambling speech at 2:30 a.m. The justices — including the crucial conservatives like Justices Brett Kavanaugh and Amy Coney Barrett — will not like the speech, which puts them in the position of being asked to validate an obviously preposterous claim and an effort to steal the election before all the votes are tallied. Trump of course didn’t specify exactly what he would ask the Supreme Court to do, stating only that the “voting” must stop. But voting is already over. It’s vote-counting that’s continuing. So it seems reasonable to assume he meant his lawyers would ask for some sort of stop to the counting. There are three things Trump’s lawyers might do. They can go straight to the Supreme Court and ask for a general shutdown in counting. But that won’t work. There is no legal basis for not counting votes. What’s more, you normally can’t just go to the Supreme Court without first going to lower courts. Worst for Trump, he’s now behind in the count in states he needs to win — so it would make no sense to ask for a general stop to counting. Trump’s lawyers can also try to challenge individual ballots in states where they are trying to eke out victory. This is slow work — done retail, not wholesale. It makes sense when an election comes down to a few votes in a few key states. In addition — the most plausible reading of Trump’s comments — Trump can ask the justices to block the counting of Pennsylvania ballots that arrived after 8 p.m. on Election Day. This issue has already been before the court, which declined to intervene. But three conservatives invited Trump’s lawyers to come back and try again. If the election comes down to Pennsylvania, we would have the scenario for Bush v. Gore redux.

A podcast by Noah Feldman: Richard Pildes, a professor at New York University School of Law who specializes in legal issues affecting democracy, discusses the role that the courts could play in this election.

An op-ed by Noah Feldman: Legally speaking, President Donald Trump’s various election lawsuits amount to nothing. On Wednesday the Trump campaign announced an array of different legal efforts to fight Joe Biden’s apparently impending Electoral College victory. This included attempts to stop the vote counting in Michigan and Pennsylvania, and a motion to be heard by the Supreme Court in the case about ballots that arrived or will arrive in Pennsylvania after 8 p.m. on Election Day. The campaign also filed a lawsuit in Georgia claiming a poll worker improperly mixed up absentee ballots, and asked for late-arriving ballots to be segregated. Although Georgia is close, this isn’t the stuff of which election-changing lawsuits are made. (Trump’s lawyers also say they will seek a recount in Wisconsin; but that is extremely unlikely to erase Biden’s roughly 20,000 vote margin there.) Start with the attempts to stop the counting. These are legally vacuous and don’t pass the laugh test. Trump’s Michigan filing asks the state courts to stop tallying votes, alleging that the state’s absentee vote counters are proceeding without the presence of election inspectors and vote “challengers” from each party, as Michigan law requires. The problem with this argument is that, as far as is possible to determine, Michigan is indeed allowing Democratic and Republican inspectors and challengers. So the Trump campaign is further arguing that the state violated the law because it has not shown the Trump “challengers” the video of the drop-off boxes from which the absentee ballots are being taken. Strange as it sounds, the Trump campaign seems to be arguing that the counting of votes should be stopped because his representatives haven’t been able to see video of the drop-off boxes.

A podcast by Noah Feldman: Noah Feldman is a guest on this episode of Axios Today, giving listeners a taste of what to expect for election night.

Axios' Margaret Talev and Mike Allen walk us through what they're preparing for on election night. Plus, how the election could come down to Pennsylvania's mail-in ballots. And, why voting is a sacred right. Guests: Axios' Margaret Talev and Mike Allen; Noah Feldman, constitutional law professor at Harvard University; and Rev. Otis Moss, senior pastor of Trinity United Church of Christ.

An 0p-ed by Noah Feldman: After four years of President Donald Trump’s assault on the Constitution, it comes down to this. The courts have done what they could to limit the damage; the House impeached him; and the Senate let him get away with it. Now all that remains is the final check provided by the Constitution: a vote of the people. James Madison would have seen this coming. While the Constitution was being ratified, he argued that its checks and balances would preserve the liberty that the document was supposed to enshrine. “Ambition must be made to counteract ambition,” he wrote in the most famous of the Federalist Papers. Yet within a few years, Madison had come to believe that the system he did so much to design was vulnerable to subversion. The checks and balances written into the Constitution were not enough to withstand a powerful president like George Washington if he was backed by an organized political party with a monarchic ideology. The only possible check on partisan power, Madison came to believe, was the people, voting en masse to restore their liberties. With Thomas Jefferson, he formed the first Republican Party (sometimes called the Democratic-Republicans) to fight the Federalists of Washington and Alexander Hamilton. In 1800, when the Republicans won, Madison and Jefferson saw it as a moment of salvation. The people had restored the constitutional balance when the Constitution itself could not. The first lesson for 2020 is obvious: The only way Trump’s constant attacks on the Constitution can now be repudiated is by voting him out. The people can do what the courts and Congress could not or would not. They alone can send the message that Trump’s sustained and systematic attack on our institutions is dangerous, wrong and anathema to small-r republicanism. It’s not inevitable that the people will save the Republic. Madison understood that a republic could only survive if the people possess political virtue.

A podcast by Noah Feldman: Over the past few weeks on Deep Background, in addition to our regular show, we’re bringing you a special five-part series about the Supreme Court's dramatic rightward turn. In this fifth and final installment of Deep Bench, how this summer the Supreme Court's rulings revealed ideological rifts within the Federalist Society, rifts that could be large enough to eventually cause the organization to break apart.

We know that elections have consequences, but we are often reminded that ideas do, too. That link between abstract ideas and real-world results could prove especially fateful on the day after the presidential election. At stake is the idea of judicial originalism, which holds, in the words of the late Justice Antonin Scalia, that the U.S. Constitution “means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.” While this assertion has a seductive simplicity, it’s worth noting that this is simply one theory of how the courts should function...Many conservatives have argued that originalism is the only way to ensure that judges stay restrained and modest, not imposing their views on a society that did not elect them. (Chief Justice John G. Roberts Jr. refers to this as calling “balls and strikes.”) And perhaps the self-styled originalists would accomplish their goal if they actually practiced what they preach. But in fact, the new breed of judicial activists seems to be abandoning the restraint that Roberts prizes and is simply seeking conservative outcomes, using whatever means necessary...In a brilliant podcast, “Deep Background,” Harvard Law School professor Noah Feldman outlines this hypocrisy to Jeffrey Sutton, a federal appeals court judge who sees himself as a conservative originalist. Sutton’s response — to my ear — was that he believed Bush v. Gore had been wrongly decided...Feldman’s podcast series — which is well worth listening to — highlights a growing divide between conservatives who viewed originalism as part of a philosophy of modesty and restraint and new activists who are untroubled by the hypocrisy and simply seek conservative outcomes. It is these activists who have been able to weaken Obamacare (clearly violating the original intent of the legislature that passed it) and invent new rights for corporations that had never before been found in the Constitution (as they did in the notorious Citizens United case).

An op-ed by Noah Feldman: There has been much worried Democratic speculation about how the Supreme Court might intervene to hand the election to President Donald Trump. Many scenarios are possible, but one is much more probable than the others. After Monday’s Supreme Court ruling blocking late-arriving mail-in ballots from being counted in Wisconsin, we can now say very concretely what the Bush v. Gore redux scenario looks like. The scenario would arise in Pennsylvania. And the decisive vote would likely be cast by Justice Amy Coney Barrett. That’s because of Pennsylvania’s distinctive legal dispute about whether to count mail-in ballots received after 8 p.m. on Election Day. First, it’s important to understand that a Supreme Court decision about Pennsylvania will only truly determine the outcome of the election if the electoral vote is close enough to make Pennsylvania decisive. If either candidate can win without Pennsylvania, this scenario wouldn’t decide the presidency. But if the electoral tally is close, and late-arriving ballots in Pennsylvania could provide the margin of victory, we could be in for a legal nightmare. As I explained in an earlier column, Pennsylvania state law says that ballots can’t be counted if they are received after the polls close on Election Day. But the Pennsylvania Supreme Court, relying on the Pennsylvania Constitution, ruled that under current conditions created by the combination of Covid-19 and U.S. mail delays, the state must count ballots received for three days after the statutory deadline.

An op-ed by Noah Feldman: The confirmation of Justice Amy Coney Barrett means that Chief Justice John Roberts is no longer the Supreme Court’s swing voter. Roberts had a good run in the seat of power, deciding cases against on the census citizenship question, the rescission of DACA, and abortion rights. Now, however, he won’t be able to determine a case’s outcome by joining the court’s liberals. With only three liberals left on the court, Roberts would have to convince another conservative to join him to produce a liberal result. The justice who provides that fifth vote becomes the swing voter. Who will now occupy that powerful role? Justice Brett Kavanaugh. Kavanaugh is much less ideological than the court’s other conservatives. He’s a conservative pragmatist; he cares about power and how it is deployed. The only way for a conservative like Kavanaugh to exercise power as the swing voter is to cast some votes that make liberals happy. Otherwise, you are just another reliable member of the conservative majority — one without much power or influence. He won’t be centrist in partisan election cases, as his opinion in Monday’s Wisconsin case shows. That was also true of Justices Anthony Kennedy and Sandra Day O’Connor, who both joined the conservatives in Bush v. Gore. But on big-ticket ideological issues, Kavanaugh could be capable of moving toward the pragmatic. He has already dropped a few tantalizing hints that he might be willing to move toward the center. Consider this past summer’s important Louisiana abortion decision, June Medical Services v. Russo. The all-powerful swing voter in that case was Roberts.

A podcast by Noah Feldman: Marc Lipsitch, a professor of epidemiology at Harvard's T.H. Chan School of Public Health, comes back to Deep Background to discuss where we are now in the fight against COVID-19.

Barring any major surprises, the Senate is set to confirm Judge Amy Coney Barrett Monday night. She'll fill the Supreme Court seat that had been held by the late Justice Ruth Bader Ginsburg. Harvard Law Professor Noah Feldman is known as a liberal, but he's vouched for the conservative Barrett, with whom he once clerked on the Supreme Court back in the 1990s. Feldman spoke with GBH All Things Considered host Arun Rath ahead of Barrett's hearing before the Senate Judiciary Committee, and he checked in again with Arun ahead of Monday's vote. This transcript has been edited for clarity.

A podcast by Noah Feldman: For the next few weeks on Deep Background, in addition to our regular show, we’re bringing you a special five-part series about the Supreme Court's dramatic rightward turn. In this fourth installment of Deep Bench, how Donald Trump and the Federalist Society forged an alliance that played a role in helping him win the presidency and changed the makeup of our courts.

A podcast by Noah Feldman: For the next few weeks on Deep Background, in addition to our regular show, we’re bringing you a special five-part series about the Supreme Court's dramatic rightward turn. In this third installment of Deep Bench, how the Federalist Society network influenced a historic 2012 Supreme Court decision about the Affordable Care Act.

An op-ed by Noah Feldman: With Judge Amy Coney Barrett’s confirmation to the Supreme Court all but certain, Democrats are toying with ways to reform the court. Former Vice President Joe Biden plans to suggest a bipartisan commission to study the options. Unfortunately, the proposals all have serious flaws. Either their constitutionality is doubtful or they would undercut the tremendously valuable role that the court plays in protecting liberty and equality. The most dire of these proposals is court-packing. I’ve written before that any attempt to expand the court is likely to fail, and for good reason. But what about more commonsensical ideas, like term limits for justices? Logically, this would be a huge improvement over the current system. Instead of the calendar of replacement being driven by the randomness of justices’ aging processes, illnesses and retirement decisions, we would have a relatively regular and rational schedule. What we would lose in the occasionally brilliant long-serving justice we would gain in commonsense planning. And it would no longer be necessary to appoint justices at younger and younger ages. A healthy 60-year-old would be just fine. The problem is that the Constitution says that the justices serve “during good behavior.” It’s pretty clear that this didn’t and doesn’t mean that they should serve based on term limits, but indefinitely. That’s why the tradition in the U.S. has long considered such term limits unconstitutional. There are some creative arguments to try and get around this; but in the end, the Supreme Court would have to rule on whether it would be constitutional to create new judgeships with term limits attached. I seriously doubt the court would uphold term limits for new justices.

An op-ed by Noah Feldman: Chief Justice John Roberts is bending over backwards to try and show that the Supreme Court is nonpartisan when it comes to the 2020 election. The latest evidence is his vote in a 4-4 decision that, because it was a tie, upheld a decision by the Pennsylvania Supreme Court extending the deadline for counting mail-in ballots for three days after Election Day. In my view, Roberts got the law right. And it is certainly true that the 4-4 tie shows how the court’s election decisions could potentially be affected by the confirmation of Judge Amy Coney Barrett. But there is another takeaway, one that liberals and conservatives would do well to keep in view: An alternative decision overturning the Pennsylvania ruling would not have been crazy. That’s because the Pennsylvania Supreme Court decision could itself be interpreted as partisan. It interpreted Pennsylvania law against its plain meaning. To be clear, I think Roberts was right not to revisit the Pennsylvania court’s judgment. It was a state court decision interpreting a state statute, and the Supreme Court is supposed to accept a state court’s interpretation of its own law. But the alternate view, namely that the Pennsylvania decision violated federal law by deviating from the requirement that votes be cast by Election Day, was plausible, even if it wasn’t the best interpretation of what was going on. I realize — all too well — that in the heat of the election season, no one wants to hear the message that Roberts was correct but that the alternative would also have been defensible. Democrats just want to fret over the possibility that the Supreme Court will give the election to Trump. Republicans just want to declaim on the outrageousness of Roberts’s apparent defection to the left, driven by his desire to maintain the Supreme Court’s legitimacy. The reasonable middle position has exactly zero friends in the pre-election frenzy.

A podcast by Noah Feldman: Anthony Salvanto, CBS News’ director of Elections and Surveys, discusses the latest polling data and how to make sense of it.

A podcast by Noah Feldman: For the next few weeks on Deep Background, in addition to our regular show, we’re bringing you a special five-part series about the Supreme Court's dramatic rightward turn. In this second installment of Deep Bench, a rare interview with a sitting judge. Noah talks with Judge Jeffrey Sutton, who describes how members of the Federalist Society helped develop the central legal theories that conservative judges and justices use today.