Noah Feldman

Noah Feldman is a guest on this episode of Axios Today, discussing what we learned from the presidential election about our democratic process and what it can and cannot withstand.

An op-ed by Noah Feldman: Last week, Justice Neil Gorsuch not-so-subtly jabbed at secular liberals by name-checking several “essential” businesses allowed to remain open — liquor stores, bike shops and acupuncturists — even as houses of worship were required to close. “It may be unsafe to go to church,” he wrote. “But it is always fine to pick up another bottle of wine, shop for new bike, or spend the afternoon exploring your distal points and meridians.” His implication was that the law was catering to liberal elites, the kind who ride bikes (guilty as charged) and treat acupuncture as an “exploration.” In the decision that occasioned this pointed comment, the Supreme Court ruled that religious institutions can’t be subject to stricter Covid-19 restrictions than other organizations. It marks a meaningful doctrinal development in First Amendment jurisprudence. The court’s new majority is moving to give religion “most favored nation” status when compared to other public businesses and institutions. But more significant than the change in the law is the cultural and ideological divide it signifies. Gorsuch’s jab is a prime example. The divide can be summed up by the different ways that secular liberals and religiously oriented conservatives react to the core question: Is it wrong to close churches, mosques and synagogues when businesses are allowed to remain open, albeit with restrictions? The two sides respond to this touchstone question radically differently. Each side could benefit from understanding the other’s perspective better.

An op-ed by Noah Feldman: If President Donald Trump wants to avoid federal criminal investigation once he’s out of office, here’s my free advice: Don’t pardon Rudy Giuliani. The New York Times reports that the two men have discussed whether the president should pardon his personal lawyer. But Trump owes Giuliani money for representing him, and pardoning someone to whom you owe money could easily be construed as a criminal act. Under federal law, it would be bribery to offer an official government act, like a pardon, in exchange for a debt, like the money Trump owes to Giuliani. An investigation would have to ensue. And as President Bill Clinton learned after pardoning financier Marc Rich, an investigation into a questionable pardon can be serious business. In response to the report, Giuliani’s spokesperson said that as a lawyer, Giuliani could not comment on any discussions he had with his client, the president. Attorney-client privilege is a real thing, yet it would not shield either Giuliani or Trump from criminal investigation if there were reason to think a criminal exchange had occurred. When a lawyer and a client together conspire to commit a criminal act, the attorney-client privilege evaporates. Evidence of their communication for criminal purposes could be subpoenaed and introduced in court.

A podcast by Noah Feldman: Eric Lander, the head of the Broad Institute and the host of the Pushkin podcast “Brave New Planet,” explains how big data helped scientists in the search for COVID-19 vaccines.

An op-ed by Noah Feldman: A school district in Pelham, NY, is in the news for barring staff from wearing masks depicting thin blue line flags, deeming them a political statement. Is this a violation of the First Amendment? To begin, it’s important to note that a ban on teachers and employees is different from banning students from wearing political symbols. According to Supreme Court precedentgoing back to 1969, public school students have free speech rights, although that right has been limited to circumstances where their speech doesn’t disrupt school operations. As a result, a school district couldn’t constitutionally ban students from wearing political symbols. Employees are a different story. The leading case in this area holds that public employees — including school employees — have much more limited free speech rights while performing of their duties. If they are speaking as employees, not as citizens, their speech rights mostly evaporate. Schools can tell teachers what to say in class and what curriculum to teach without violating the teachers’ First Amendment rights, because while teaching, a teacher is speaking as an employee. To limit school employees’ speech as citizens, as with the Pelham employees wearing thin blue line flags, the government has to show that the employees’ speech substantially interfered with their official responsibilities. Based on this rule, a school district can bar the wearing or display of thin blue line flags, given that some students may associate them with hostility against people of color. The theory would be that a teacher who sends a message associated with racism, even obliquely, can’t educate students effectively.

An op-ed by Noah Feldman: This week’s Michigan election theft scare lasted just about three hours — unless you were checking your screen in real time, it may have passed you by. Yet, brief as the episode was, when historians look back on this strange interregnum in which President Donald Trump has not acknowledged President-elect Joe Biden’s victory, they could do worse than to dig deep into the sorry affair. It carries important lessons about how delicate our system of electoral transitions is, and also about the social forces that preserve the system despite its sometimes precarious-seeming character. The historians will have to start with the weird institution at the heart of the events: the Wayne County Board of Canvassers. On Tuesday, two Republican election officials announced they would not agree to certify the county’s results before reversing themselves after a national outcry. The board has four members, two Democrats and two Republicans. They are technically appointed by the County Board of Commissioners to serve four-year terms. But in effect, they are political patronage appointees chosen by the state political parties. The two-and-two structure is a matter of courtesy. Wayne County, which includes Detroit, is overwhelmingly Democratic. All 83 boards of canvassers in Michigan have the same two-and-two structure. The board’s most important job is to certify the county’s election results. Ordinarily, this is a simple matter; so simple, in fact, that it wouldn’t be unfair to refer to the members of the canvassing board as functionaries. They are part of the vast apparatus of overwhelmingly reliable and conscientious election officials all across the U.S. — the same officials who presided over a remarkably clean electoral process in 2020.

A podcast by Noah Feldman: Dr. Paul Offit, a professor of vaccinology at the University of Pennsylvania and member of the F.D.A.’s vaccine advisory panel, discusses how the Pfizer and Moderna vaccines work and how they could be distributed.

An op-ed by Noah Feldman: President Donald Trump’s refusal to concede defeat and allow an orderly transition doesn’t violate our Constitution, as his Republican allies have pointed out. But it does violate unwritten norms that have attained a quasi-constitutional status in American elections. His defiance is dangerous. Even without violating the letter of the law, Trump’s resistance has the capacity to undercut the democratic legitimacy of this election, and the election process as a whole. From the standpoint of the Constitution (the 12th Amendment, if you’re following along at home), the transition to a new president doesn’t officially begin until the states send their slates of electors to be opened in the presence of the vice president and both houses of Congress. Once those electoral college votes are counted, the candidate who gets a majority “shall be the president.” This election cycle, the electors are supposed to vote in their states on December 14, 2020. Congress is supposed to meet in joint session to count the votes on January 6, 2021. In fact, the modern practice of peacefully transferring power operates quite differently. Concession is usually triggered by a custom that appears nowhere in the Constitution, namely the decision desks of the TV networks and newspapers calling the election for the candidate who amasses an unbeatable lead. That custom has developed into a quasi-constitutional norm, one that has been repeatedly followed for many election cycles. There is even a federal statute that arguably relies upon this norm without expressly mentioning it. The law that governs transitions says that the transition begins when the director of the General Services Administration “ascertains” the “apparent” winner of the election and issues a letter saying so, triggering the statute’s transition provisions. The statute doesn’t give the director of the GSA any guidance on how to ascertain the apparent winner, perhaps because the drafters of the statute — and those who have applied it — think it’s obvious: The winner is apparent by the consensus of the networks and newspapers, and the subsequent concession of the loser.

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.