Noah Feldman

An op-ed by Noah Feldman: Judge Amy Coney Barrett has expressed the highly unusual view that judges should recuse themselves when a case might require them to act against conscience and violate Catholic Church teaching. On its own, the view is defensible. But it carries an important implication, one that Barrett hasn’t addressed: that Barrett should recuse herself from any case involving abortion rights regardless of how she would rule. To understand this argument, you have to begin with how unusual Barrett’s view is. Most judges and judicial nominees take the view that their religious beliefs are irrelevant to the job of judging. The strongest formulation echoes that of Thomas Jefferson, who wrote in his Bill for Establishing Religious Freedom “that our civil rights have no dependence on our religious opinions, any more than on our opinions in physics or geometry.” But in a 1998 article that she wrote with John Garvey, then the dean of Boston College Law School, Barrett rejected this strong separation between religious faith and judging. Barrett and Garvey argued that Catholic teaching prohibits believers from “cooperating with evil.” From this premise they concluded that Catholic judges shouldn’t participate in cases where they might have to impose the death penalty, which is itself condemned by authoritative Catholic doctrine outside of a few extreme circumstances. On its own, this view has some merit. Recusal decisions are governed by a federal statute, which says, among other things, that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

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. This episode: the historic rise of the Federalist Society, how a small group of students 40 years ago started a club that changed the face of the federal judiciary. If Judge Amy Coney Barrett is confirmed, six of the nine Supreme Court Justices will be current or former members of the organization.

An op-ed by Noah Feldman: Last night, President Donald Trump took a tiny step back from his repeated refusals to say he’ll leave office if he loses the election. Yet he continued to portray a fair election as nearly impossible. The result is to continue to cast doubt on the election result and give himself room to challenge it if he loses the election “unfairly.” These claims are deeply harmful to our democracy — that much should be obvious. But it’s useful to divide the harm into two parts, to understand how worried we should be and figure out what we should do about it. Merely saying that he might not agree to leave office violates our unwritten democratic norms. Actually not leaving would violate our written laws. The first Trump can do alone, and he already has, on several occasions. That alone throws public confidence in our system into disarray. But the second would be far worse. Claiming election fraud and refusing to accept a clear loss would precipitate a constitutional crisis on a scale not seen since the Civil War. Fortunately, Trump can’t do it alone. He would need the collusion of hundreds, maybe thousands of other people in the government, from poll officials to state legislators to members of Congress. If that happens, our democracy will not just be under threat from an irresponsible leader. It will be on the edge of collapse. This possibility is vanishingly small.

A podcast by Noah Feldman: Introducing Brave New Planet, a seven-part series that delves deep into powerful technologies changing our world. They have amazing potential upsides, but we can’t ignore the serious risks. Hosted by Dr. Eric Lander, Brave New Planet is a partnership between the Broad Institute, Pushkin Industries, and the Boston Globe. In this episode, we're talking about how it's becoming more common to make convincing -- but false -- videos through artificial intelligence. These “deepfakes” can be useful in art, education, and therapy. But they can also be used to harm the reputation of an ex-partner or a stranger. Could they be weaponized to provoke international conflicts or swing elections? When seeing is not believing, who can we trust, and can democracy and truth survive?

An op-ed by Noah Feldman: I have always hated the kabuki theater of Supreme Court confirmation hearings. But I can still dream that some judge, someday, might actually answer some interesting questions — although that does not seem like it will be happening this week. Nonetheless, there are at least two hard questions Judge Amy Coney Barrett should be asked about precedent — and that, in a sensible world, she would answer directly. 1. What is the difference between precedent and “super-precedent”? Is the right to abortion a super-precedent? And if not, why not? The idea of super-precedent has never been used expressly in a Supreme Court opinion. Fifteen years ago, constitutional scholar Jeff Rosen traced the first judicial use to stalwart conservative Judge Michael Luttig, who wrote that Planned Parenthood v. Casey, which declined to overturn Roe v. Wade, had been meant by the Supreme Court “as a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy.” Luttig’s implication was that it should be even harder to overturn the abortion right than to overturn other well-established precedent. Senator Arlen Specter asked then-Judge John Roberts about the idea at Roberts’s confirmation hearings. Roberts was careful, embracing the idea of precedent without the word “super.” In Tuesday’s hearings, Barrett said that Brown v. Board of Education is a “super-precedent … that is so well-established that it would be unthinkable that it would ever be overruled.” She also pointed to several other super-precedents, like Marbury v. Madison. So it would be right to press Barrett on why the Roe v. Wade decision, now nearly fifty years old, should be any different.

An op-ed by Noah Feldman: On October 5, Supreme Court Justice Clarence Thomas issued a statement, joined by Justice Samuel Alito, expressing ongoing disagreement with Obergefell v. Hodges, the landmark gay marriage decision, arguing that it stigmatized religious opposition to gay marriage. The statement understandably raised concerns that a growing conservative majority on the court could use religious liberty as a cover to roll back rights for LGBTQ people. It is certainly likely that the current conservative majority will recognize exemptions from anti-discrimination law for religious groups like evangelical Christians. However, even after Justice Ruth Bader Ginsburg’s death, and even if Judge Amy Coney Barrett is confirmed, there are still five votes to protect gay and trans rights under most circumstances, including at work and in marriage. That’s because of 2020’s hugely important Supreme Court decision, Bostock v. Clayton. This ruling extended workplace anti-discrimination law to gay and trans people and makes reversal of 2015’s Obergefell extremely unlikely. The 6-3 decision in Bostock was written by conservative Justice Neil Gorsuch, and joined not only by the court’s four liberals, but also by Chief Justice John Roberts. Technically, Bostock was about a question of statutory interpretation — the meaning of Title VII — while Obergefell was about whether the Constitution guarantees a right to gay marriage. A justice could in theory think that Bostock is correctly decided while Obergefell was not. But there are powerful jurisprudential, as well as political, reasons to think neither Gorsuch nor Roberts would vote to overturn Obergefell.

A podcast by Noah Feldman: Adam Przeworski, a politics professor at New York University and one of the world’s foremost scholars on democratic transitions, explains his worries about a peaceful transfer of power.

An op-ed by Noah Feldman: Covid-19 is spreading through the White House and Washington, D.C. Meanwhile, major congressional votes are coming on the Supreme Court nomination of Judge Amy Coney Barrett in the Senate and maybe a national bailout package in the House of Representatives. So it’s time to revisit an issue that came up early in the pandemic but was never properly resolved: Could Congress vote remotely? And if so, would be a good idea? It’s never been tried. The Constitution gives Congress power over its own rules, which would seem to let the two houses adopt remote voting if they wanted. Traditionally, the courts defer to Congress’s judgment when Congress is exercising a power that is textually allocated to it by the Constitution. Yet the Constitution does specify that “a majority of each [house] shall constitute a quorum to do business.” This so-called quorum clause could be interpreted to require most senators and representatives to be present in Washington, D.C. — and maybe even in or near the Capitol — for Congress to operate. If that’s how the Supreme Court sees it, the quorum clause could block Congress from dispersing home and operating on a fully remote basis. Back in May, both the Senate and House saw proposals for some form of remote voting. Neither has been adopted — so far. Opposition from Senate Majority Leader Mitch McConnell could potentially be explained on the ground that McConnell, like Trump, wanted to minimize the significance of Covid-19. But House Speaker Nancy Pelosi was also ambivalent about it, first expressing concern and then saying it was an option.

An article by Noah Feldman:  A federal judge in California has struck down President Donald Trump’s executive order barring many types of visa entrants into the U.S. As a reminder, Trump issued this order in June because of the supposed threat foreign workers pose to native-born employment during the Covid-19 pandemic. The decision flatly contradicts a different ruling last month by a different federal district court judge in Washington, D.C. Both cases will now go to the respective courts of appeals. If those courts also disagree, and if Trump is re-elected and doesn’t retract the executive order, the issue could eventually make its way to the Supreme Court. Which judge is right? The answer depends on how you read the 2018 Trump v. Hawaii case in which the Supreme Court upheld the 3.0 version of Trump’s Muslim travel ban. The California federal court read the travel ban case narrowly and struck down the Covid-era order as beyond the president’s power and as insufficiently reasoned. The D.C. federal court read the travel ban case broadly and upheld the Covid-era order on the theory that federal law basically lets the president do whatever he wants with regard to immigration. My best guess is that if the case eventually gets to the Supreme Court, the justices would adopt the narrower reading of Trump v. Hawaii. The Covid immigration ban would thus ultimately be blocked. The alternative would be to give the president nearly carte blanche over immigration matters. That result would not sit well either with the court’s liberals or with all of its conservatives.

Many liberals are worried about the conservative direction the Supreme Court could take if Judge Amy Coney Barrett is confirmed by the Senate. Harvard Law Professor and constitutional scholar Noah Feldman says he shares their concerns, but he's written an op-ed in Bloomberg vouching for Barrett, whom he once clerked with on the Supreme Court. Feldman spoke with GBH All Things Considered host Arun Rath.

A podcast by Noah Feldman: Dr. Vivek Murthy, the former Surgeon General of the United States and health care advisor to Democratic presidential nominee Joe Biden, discusses how to rebuild public trust in science, why rolling out a COVID-19 vaccine will be challenging, and why despite everything he still feels hopeful.

An article by Noah Feldman: Secretary of Commerce Wilbur Ross appears to be openly flouting the law in connection with the census — again. This is the same cabinet official who was slapped down by the Supreme Court for violating proper legal procedure in trying to introduce a citizenship question to the census. Now, Ross has announced his intent to end the census counting early, on October 5, even though a federal district judge ordered him last week to let the counting continue until the scheduled end date of October 31. If this sounds crazy, that’s because it is. It’s not normal for executive branch officials to violate court orders directed explicitly at them. Violating a federal judge’s order undermines the rule of law. It is ordinarily met with sanctions that can range from large fines to imprisonment. The judge will now have to decide what steps are appropriate, and fast. These recent events grow out of a lawsuit brought by a combination of counties, cities and nongovernmental organizations against Ross and the official in charge of the census, Steven Dillingham. The suit challenged a “replan” issued by the Census Bureau in August that said, among other things, that census counting would end on September 30, 2020, a month before the originally planned end of October 31. On September 24, Judge Lucy Koh, a highly respected judge, issued an injunction blocking the new proposed date. Her reasoning was that Ross and Billingham and their agencies had not offered an adequate, legitimate, reasoned explanation for the change. That failure violated the Administrative Procedure Act. This was essentially the same reasoning used by Chief Justice John Roberts and the Supreme Court in 2019 to block the citizenship question from the census.

An article by Noah Feldman: Like many other liberals, I’m devastated by Justice Ruth Bader Ginsburg’s death, which opened the way for President Donald Trump to nominate a third Supreme Court justice in his first term. And I’m revolted by the hypocrisy of Senate Majority Leader Mitch McConnell’s willingness to confirm Trump’s nominee after refusing to even allow a vote on Judge Merrick Garland. Yet these political judgments need to be distinguished from a separate question: what to think about Judge Amy Coney Barrett, whom Trump has told associates he plans to nominate. And here I want to be extremely clear. Regardless of what you or I may think of the circumstances of this nomination, Barrett is highly qualified to serve on the Supreme Court. I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions. Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them. I got to know Barrett more than 20 years ago when we clerked at the Supreme Court during the 1998-99 term. Of the thirty-some clerks that year, all of whom had graduated at the top of their law school classes and done prestigious appellate clerkships before coming to work at the court, Barrett stood out. Measured subjectively and unscientifically by pure legal acumen, she was one of the two strongest lawyers. The other was Jenny Martinez, now dean of the Stanford Law School.

An article by Noah Feldman: As President Donald Trump and Senate Majority Leader Mitch McConnell move to nominate and confirm a conservative Supreme Court justice, progressive Democrats are increasingly talking about packing the Supreme Court in retaliation — increasing the size of the court and adding new, liberal justices to the bench. At a minimum, the idea rests on the heroic assumption that Democrats will win the presidency and both houses of Congress. But that’s not all. History demonstrates the grave difficulty of successfully mustering even majority-party support to add new Supreme Court seats. To pack the court, Democrats would need more than just the prospect of a conservative court. They would need a sustained argument that the court had become fundamentally illegitimate by its composition or its conduct. The archetypal example of attempted court-packing came in President Franklin Delano Roosevelt’s second term in office. Democratic frustration with the court was at a high point. The conservative, libertarian-leaning majority of the court had been striking down progressive wage and hour regulation for three decades during what came to be known as the Lochner era (named for the 1905 case of Lochner v. New York, which struck down a 60-hour work week for bakers). Then, in 1935, the court struck down the two cornerstones of Roosevelt’s New Deal, the National Industrial Recovery Act and the Agricultural Adjustment Act. Roosevelt got no Supreme Court appointments in his first term. In the 1936 election, he won more than 60% of the vote and carried the electoral college 523-8 — a landslide by any measure. The Democrats held a stunning 74 seats in the Senate to the Republicans’ 17, and ruled the House of Representatives by a margin of 334-88.

An article by Noah Feldman: Everyone understands why Donald Trump and Mitch McConnell are in such a rush to replace Ruth Bader Ginsburg with a new Supreme Court justice: It’s the election, stupid. The date that matters isn’t January 20, Inauguration Day. It’s November 3, Election Day. The president and Senate majority leader want their justice in place in case we see a contested election in a replay of Bush v. Gore. If this prospect terrifies you, your fear is not unreasonable. Until Ginsburg died, those of us who spend our time worrying about scenarios in which the election goes to the courts had some partial solace for our concerns: Chief Justice John Roberts doesn’t want the court to be seen as partisan. Yes, he’s a conservative. Nominated by George W. Bush, he’s had an obvious willingness to issue rulings that have helped Republicans — most notably, his decision eviscerating the Voting Rights Act in the 2013 case of Shelby County v. Holder — but Roberts cares a lot about the reputation of the Supreme Court. It was therefore possible to think that, as the swing vote, Roberts would shy away from joining a conservative majority in a 5-4 decision handing the presidency to Trump. Such a vote would have undermined the chief justice’s whole project of protecting the court from appearing to be a subsidiary of the Republican Party. That’s one reason leading election law scholars like Professor Nathaniel Persily of Stanford Law School, who I interviewed on my podcast this month, expect that Roberts would not want to throw a contested election to Trump. The problem, of course, is that if Ginsburg is replaced by a hard-line conservative, Roberts will no longer be the swing vote. In a contested election, he could vote with the court’s three remaining liberals and still be in dissent.

An article by Noah Feldman: President Donald Trump and Senate Majority Leader Mitch McConnell wasted no time after Justice Ruth Bader Ginsburg died, immediately announcing their intent to nominate and confirm a replacement. Tempting as it is for Republicans to install a third Supreme Court justice during Trump’s first term, it would nevertheless be a serious mistake — and potentially a historic one — for Senate Republicans to go along. The result would not only likely be the long-term erosion of the Supreme Court’s legitimacy as a third branch of government, but also a backlash so strong it would hurt the Republican Party itself. The reason for Republicans to hold off isn’t the extraordinary hypocrisy they’re showing by pushing a rapid confirmation now, despite holding Justice Antonin Scalia’s seat open in 2016. Unfortunately, we don’t live in a world where voters will punish a party for arrant hypocrisy. Republicans and Democrats alike all understood that McConnell was making a specious argument when he claimed the March nomination of Judge Merrick Garland was too close to the November election to deserve a vote. We all knew it was power politics then; and we all know it is power politics now. To be clear, Trump has the constitutional authority to nominate a new justice right now and the Senate has the authority to vote — or not vote — on that nominee. The arguments pro and con are moral and political, as I’ve noted before, not legal. In a rational version of Senate confirmation politics, the party in the majority thinks about how its actions will affect the other party when it takes control. Ideally, that norm leads to balance and some fairness: I don’t take advantage of you so that in turn, you won’t take advantage of me. In our current world of power politics, the norms have eroded to the point of near-disappearance. What that leaves is medium-term self-interest about what the other side will do immediately, as opposed to what both sides would do if norms of fairness applied.

A podcast by Noah Feldman: Richard Primus, a professor at the University of Michigan Law School and a former clerk of Justice Ginsburg, discusses what it was like to work for the Justice, her legacy, and what comes next.

An article by Noah Feldman: Attorney General William Barr can’t seem to get out of the headlines. Maybe he doesn’t want to. Just this week, the Wall Street Journal reported that Barr suggested to federal prosecutors that they consider charging protesters with sedition — an archaic criminal charge that hasn’t been regularly used by federal authorities since the McCarthy era. Barr also reportedly mused about finding a way to prosecute Seattle Mayor Jenny Durkan for establishing a police-free protest zone in her city. Then, in a speech at Hillsdale College, Barr defended his penchant for overruling prosecutors, comparing them to children in a Montessori school. For any normal attorney general, this week’s controversies would have marked a crisis accompanied by demands that he resign and serious speculation that he would be forced to do so. Not so for Barr, who clearly enjoys President Donald Trump’s support. Barr, more than any attorney general in memory, is inserting himself into the business of criminal prosecution by proposing unorthodox strategies that serve the president’s political ends. Start with the sedition prosecution proposal. To my mind, it’s the most shocking of Barr’s statements. Sedition is, roughly speaking, the crime of either rebelling against the government or inciting other people to do so. It’s the sort of crime that weak governments enforce against their citizens when the government is facing an existential threat — or thinks it is. Sedition prosecutions in the U.S. have a particularly shameful history. The 1798 Sedition Act was used in a nakedly partisan manner by John Adams’s Federalist administration to prosecute Republican newspaper editors. Dozens were jailed and fined. Although the law was never formally struck down by the courts, it has come to be a model of the kind of law that violates free speech.

An article by Noah Feldman: Even before Attorney General William Barr’s reportedsuggestion that protesters be prosecuted for sedition, and that the mayor of Seattle could be targeted with a criminal investigation, the AG was up to his usual stunts. His repeated comments on ballots and voting demonstrate his distinctive way of distorting the truth. Call it lying by legalism. Unlike President Donald Trump, Barr rarely makes a statement that blatantly contradicts reality. Instead, he says deeply misleading things that rely on some contorted, technical explanation. The upshot is that he must be able to tell his conscience that he isn’t lying all — while achieving the Trumpian goal of communicating a state of affairs that is contrary to the truth. There’s something distinctively lawyerly about this method. And it’s a big part of why people hate lawyers. Case in point: At a press conference in Arizona, Barr said“there’s no secret vote” when you mail in your ballot as part of absentee or mail-in voting. “The government and the people involved can find out and know how you voted,” he insisted, “and it opens the door up to coercion.” Fact-checkers hastened to point out that Barr was ignoring laws and procedures that are created specifically to ensure that no one can associate your vote on your mail-in ballot with your particular name and identifying information. Some states have you put your ballot inside a sealed envelope that is itself inside another envelope that has your information on it. In other states, laws prohibit revealing the vote on the ballot while the identity of the voter is being verified. Put simply, Barr distorted the truth. Yet Barr could nevertheless defend himself by saying that, strictly speaking, election officials who choose to break the law and ignore their own procedures could conceivably connect a mail-in ballot with the identity of the voter. In this extremely narrow sense, Barr can claim that he wasn’t “lying”: The possibility that he describes does logically exist.

A podcast by Noah Feldman: Nathaniel Persily, a Stanford Law professor who specializes in election law, discusses his biggest concerns about the upcoming election.