Noah Feldman

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.

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.