Noah Feldman

An article by Noah Feldman: The Supreme Court issued two landmark decisions today on President Donald Trump’s financial records. The first, Trump v. Vance, related only to a New York state criminal subpoena; the second, Trump v. Mazars, related to congressional subpoenas of Trump's tax returns. In Vance, the court ruled that Trump's financial records may be subpoenaed by the New York district attorney’s office as part of a criminal investigation. It’s a devastating blow for the president. But Mazars was a tactical win for Trump, insofar as it likely means the courts cannot reach a final ruling on the issue in time for the November 2020 election. The Mazars decision is the more nuanced ruling, and we’ll get to that. But let’s start with the Vance case, which elicited a rather extraordinary opinion from Chief Justice John Roberts. Trump v. Vance: Roberts, joined by the court’s four liberals, wrote the majority opinion, which relied on precedent to conclude that the president has no special protection against turning over his papers to a state prosecutor. This is yet another decision this term that consolidates Roberts as the only really important power on the court — and as a justice who has decided to be sure that rule of law extends to Donald Trump. The ruling started with the founding father we love to hate, Aaron Burr. Yes, the same man who was the nemesis of Alexander Hamilton, killed him in a duel, and went on to organize a conspiracy to create a new country carved out of the western part of the United States.

An article by Noah Feldman: The Little Sisters of the Poor, an order of Catholic nuns, have been fighting the contraceptive mandate of the Affordable Care Act since 2013. Today the Supreme Court gave them a victory — but not the final victory they sought, namely that they’re automatically entitled to an exemption from the ACA under the Religious Freedom Restoration Act. Nonetheless, this ruling — along with other key decisions this term — demonstrates that the conservative majority of the court has definitively entered the era of religious exemptions. If the idea of the Little Sisters before the Supreme Court rings a bell, congratulations on the acuity of your memory. After President Barack Obama signed the ACA, his Department of Health and Human Services gave an exemption to the contraceptive mandate to certain religious organizations like the Little Sisters, while still ensuring contraceptive care would reach their employees. The way the exemptions worked was essentially that an organization seeking not to pay for its employees’ contraceptive care would submit a certificate to HHS explaining that it was a nonprofit religious organization with conscientious objection to contraception. The religious entity would then provide a copy of the certificate to its health insurer — which would then itself pay for the contraceptive care, not charging the religious employer. The Little Sisters objected that even this process violated their religious liberty under RFRA. The case went all the way to the Supreme Court, where the untimely death of Justice Antonin Scalia in February 2016 robbed them of what would almost certainly have been a win. Instead, in May of 2016, the justices (who presumably were deadlocked 4-4) tried ham-fistedly to order the Obama administration and the Little Sisters to work out a solution. Neither side was prepared to compromise in a way that would satisfy the other.

A podcast by Noah Feldman: Neville Sanjana, a geneticist at the New York Genome Center and New York University, discusses his research into a coronavirus mutation that may be helping the virus spread faster. Plus, Noah discusses the Supreme Court ruling on robocalls.

An article by Noah Feldman: There’s more than meets the eye in today’s Supreme Court decision striking down a 2015 law that allows some robocalls to your mobile phone — namely, calls seeking to collect government debts. On the surface, the court straightforwardly said that if Congress bans robocalls across the board (as it did in the 1990s) it violates the First Amendment to make an exception for calls with certain content (as it did in 2015). Sensibly, the court didn’t re-allow all robocalls; it just eliminated the more recent debt collection exception. But underneath, the justices were engaged in an important, ongoing debate about how the First Amendment applies to government regulation. The court’s conservatives deepened their commitment to a rigid, formalistic view of free speech that says the government may never treat speech differently on the basis of its content. That doctrine could be used to attack the many forms of government regulation that arguably do exactly that — for example, by saying what information must or must not appear on a drug warning label. The court’s liberals responded by pointing out the looming threat to progressive regulation that may come from the conservatives’ attachment to the ban on content-based laws. Justice Stephen Breyer, in his partial dissent, made it clear that he views the conservatives as gathering their forces to stage a free-speech assault on the administrative state. The general ban on robocalls to your mobile device goes back to 1991.

An article by Noah Feldman: The John Roberts show continued today at the Supreme Court. The chief justice cast the deciding vote to overturn a decision by the Montana Supreme Court that barred a state scholarship program from funding education at religious schools. In effect, the decision says that if a state has a program that provides scholarship funding for schools, it has to make those scholarships available to religious institutions — even when the state constitution has a provision barring aid to religion. The conservative ruling followed others in previous years by Roberts. Like those that came before, it took yet another brick out of the wall separating church and state. In the foreseeable future, there may be no wall left at all. The context for today’s decision, Espinoza v. Montana Department of Revenue, goes all the way back to the 19th century and the earliest days of the public school movement. From the start, public schools in the U.S. were labeled as “non-denominational” or “non-sectarian.” As Catholic immigrants began to arrive in large numbers, some of them pointed out that the public schools were effectively Protestant, often featuring Bible readings from the King James version of the Bible and recitation of the Protestant version of the Lord’s Prayer. Catholics sought state funding for their own schools, or, barring that, the elimination of what they saw as distinctively Protestant practices. The response of America’s Protestant majority was essentially to tell Catholics, “No way.” In the run-up to the 1876 election, the Republican Party introduced a federal constitutional amendment that would have gone so far as to bar states from providing any funding to “sectarian” institutions, which meant Catholic ones. There was lots of anti-Catholic rhetoric in the public discussions of the proposed amendment, including on the floor of the U.S. Senate.

An article by Noah Feldman: You might think this is a bad historical moment to give the president more power to boss around his subordinates. Chief Justice John Roberts disagrees. In a decision that counts as a modest win for the idea of a “unitary executive,” he has written an opinion for the Supreme Court holding that the president must have the power to fire the director of the Consumer Finance Protection Bureau for any reason. The court didn’t strike down the CFPB as a whole, thankfully. The bureau can stay in place. And the court didn’t strike down the organizational form of other independent agencies, like the FTC or FCC, which are run by multi-member, bipartisan commissioners. Roberts limited the decision to the CFPB. Roberts’s moderation here actually echoed his moderation in the Louisiana abortion case handed down today. The CFPB ruling was a moderate decision that conservatives will like, while the abortion decision is a moderate decision that liberals will like. But both reflected Roberts’s commitment to cautious conservatism in the vein of Edmund Burke. He does not favor rapid change — whatever the court’s other conservatives may want. In practice, so long as the CFPB is run by a single director, it can’t be independent in the sense of having its leadership insulated from the president. Either Congress will have to re-form the CFPB by creating a multi-member commission, or else the CFPB will cease to be independent. The stakes of the decision, Seila Law v. CFPB, are particularly high because the case is essentially about whether and how the Constitution allows independent agencies to be shielded from presidential control. That matters when you have a president who has set out to politicize nearly every aspect of decision making, including in areas, like criminal justice, where there is a robust tradition of independence.

Hosted by June Grasso. Guests: Tara Lachapelle, Bloomberg Opinion media columnist: "AMC’s Wrong. Requiring Masks Isn’t Political." Noah Feldman, Harvard Law Professor and Bloomberg Opinion columnist: "DACA Ruling Shows Roberts Is Done Trusting Trump." Toby Harshaw, a national security writer and editor for Bloomberg Opinion: "U.S. Allies Can't Face Four More Years of Trump." Sarah Green Carmichael, Bloomberg Opinion editor: "Beat Remote-Work Burnout as a Team." Brooke Sutherland, Bloomberg Opinion industrials columnist: "Is Your AC Keeping You Safe From Covid?"

An article by Noah Feldman: Chief Justice John Roberts has drawn his line in the sand.  In what may well come to be his most famous opinion ever, a solo concurrence in today’s Louisiana abortion case, Roberts voted to uphold Casey v. Planned Parenthood, the 1992 decision in which Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter declined to overturn Roe v. Wade. The basis was stare decisis — the doctrine of precedent which, he said, instructs us “to treat like cases alike” rather than changing the rules and reversing course. Roberts made it clear that he reads the Casey decision very narrowly, to allow restrictions on abortion that don’t impose an “undue burden” on reproductive freedom. He signaled that he is still open to upholding laws that chip away at the existing abortion rights framework, which has been his approach in the past. Roberts hasn’t had some transformative epiphany that made him into a staunch defender of abortion rights. But crucially, Roberts also made it as clear as he could that, so long as he is the swing vote on the court, he isn’t open to overturning Roe or Casey. He doesn’t want the Roberts Court to be remembered as a reactionary body that reversed nearly 50 years of settled law on abortion rights. This is a massive setback for legal conservatives. It means that to overturn Roe and Casey, they need President Donald Trump to be re-elected and to get at least one more conservative on the court to replace a liberal justice.

A podcast by Noah Feldman: Dr. Saad Omer, the director of the Yale Institute for Global Health, brings us up to speed on the latest coronavirus research. Plus, Noah analyzes the Supreme Court DACA ruling.

When Egyptians gathered in 2011 in Cairo’s Tahrir Square to demand an end to the regime of president-for-life Hosni Mubarak, they did more than topple an unpopular dictator. Through their bravery, they sent a message to their fellow Arabs and to the world at large that change, finally, was coming to the Middle East. Today the heady dreams of 2011 seem from another era. A military coup in Egypt returned that country to tyranny, a Saudi military intervention on behalf of the regime in Bahrain ended the hopes of demonstrators there, and civil wars in Libya, Syria and Yemen have made a bloody mockery of visions of a new era of democracy. The only democratic revolution still standing is in Tunisia, where the protests began and the first dictator fell. As Noah Feldman contends in his important new book, “The Arab Winter: A Tragedy,” “the Arab spring ultimately made many people’s lives worse than they were before.” A professor at Harvard Law School, Feldman served as an adviser to U.S. officials in the early days of the Iraq occupation and after 2011 engaged with Tunisians seeking help as they designed their first real democratic constitution. “The Arab Winter” reviews four major incidents of the Arab Spring — the Egyptian uprising and coup, the Syrian civil war, the Islamic State “caliphate,” and Tunisia’s fitful progress toward democracy — to make its main points. Feldman’s book is a reflection on the Arab Spring and, as its title suggests, its disastrous ending. “The Arab Winter” is not a history. Rather, it is an argument, in the best sense of that word, couched in political philosophy. To get the most out of the argument (for who doesn’t want to argue back?) the reader should be somewhat familiar with the Middle East. An engaged Washington Post reader would appreciate the book, but it’s not for the uninitiated.

An article by Noah Feldman: In a sweeping decision with worrying implications for all immigrants, the Supreme Court has held that asylum-seekers rejected by immigration officials under an expedited system do not have the right to go to court to challenge their exclusion from the U.S. The majority opinion, by stalwart conservative Justice Samuel Alito, relied on originalist historical analysis to whittle down the meaning of habeas corpus to its most minimal protections. Along the way, Alito minimized and arguably misrepresented the most famous antislavery judicial decision of all time: Somerset v. Stewart, a 1772 case in which the greatest English common law judge of the era held that an enslaved Jamaican could not be forced to return to the West Indies but must be allowed to live freely in England. The specific law at issue in today’s case, Department of Homeland Security v. Thuraissigiam, is a provision of the wordily named Illegal Immigration Reform and Immigrant Responsibility act, known as IIRIRA. The law says that when a person enters the U.S., is detained at or near the border and seeks asylum, an immigration officer can interview the person and make a decision about whether the asylum-seeker has a “credible fear” of persecution that would qualify for asylum. If the answer is yes, the asylum-seeker gets a full hearing. If the answer is no, then the seeker’s case is reviewed by a supervisor and, if the asylum-seeker asks for it, by an immigration judge. This process is known as expedited review — and under the federal law, there is no way for the asylum-seeker to go to a regular federal court and seek review of the decision.

A podcast by Noah Feldman: Julia Marcus, an epidemiologist and assistant professor at Harvard Medical School, discusses how to assess risk when engaging in different social activities.

An op-ed by Noah Feldman: Chief Justice John Roberts has come to liberals’ rescue again, this time providing the decisive fifth Supreme Court vote to strike down the Trump administration’s rescission of DACA, the Deferred Action for Childhood Arrivals program. It’s morally uplifting that dreamers now won’t have to live under threat of deportation; and it’s unlikely that President Donald Trump will be able to rescind DACA, with new justifications, before he leaves office. But don’t think that Roberts was motivated by any liberal sympathy for dreamers. The best explanation for his ruling is that Roberts is fed up with Donald Trump’s disrespect for the rule of law. Now he’s standing up for the role of the judicial branch of government in checking careless, lawless action by the executive.

Hosted by June Grasso. Guests: Barry Ritholtz, founder of Ritholtz Wealth Management and Bloomberg Opinion columnist: "Too Much Uncertainty? It’s Always Been Like This." Noah Feldman, Harvard Law Professor and Bloomberg Opinion columnist: "Trump, Barr Violated Free Speech by Clearing Park." Cathy O’Neil, mathematician and Bloomberg Opinion columnist: "Maybe Sheryl Sandberg Should Be Leaning Out." Tara Lachapelle, Bloomberg Opinion columnist: "Kylie Jenner Has Something Else to Pout About." Jonathan Bernstein, Bloomberg Opinion columnist: "What Will Republicans Look Like After Trump."

An article by Noah Feldman: President Donald Trump’s administration is suing former national security adviser John Bolton in a last-ditch effort to block publication of his forthcoming memoir, which contains damaging allegations about Trump’s attempts to get China’s President Xi to help him win re-election. The Trump administration apparently understands that directly asking the court to bar publication would fail. So instead, government lawyers have invented a series of extraordinarily weak legal claims based on the nondisclosure agreement that all national security officials must sign. The case should be dismissed posthaste by the U.S. District Court. It is a frivolous lawsuit, in lawyer’s jargon. Worse, it attempts an end-run around clearly established First Amendment law. If I were Bolton’s lawyer, I would seek not merely dismissal but sanctions against the government and legal fees. To be clear, I have no great sympathy for Bolton personally. He should have testified before the House of Representatives during last year’s impeachment inquiry, when what he has to say would have mattered. As you may recall, Bolton engaged in an elaborate fan dance at that time. When the House seemed poised to call him, he said he would not testify. He changed his mind at just the moment when the impeachment trial shifted to the Senate, where Republicans were in control — and never going to call him. Somewhere along the way, Bolton announced that he intended to write a book. It wasn’t a good look. Nevertheless, law is law, and free speech is free speech. There are important principles at stake here. As is often the case, when the government comes after a citizen’s free speech, the citizen isn’t a model one.

A podcast by Noah Feldman: William Eskridge, a professor at Yale Law School and author of the forthcoming book "Marriage Equality: From Outlaws to In-Laws," discusses this week's historic Supreme Court ruling that protects gay and transgender rights in the workplace.

An article by Noah Feldman: In one of its most important decisions in years, the Supreme Court has interpreted federal anti-discrimination law to prohibit discrimination on the basis of sexual orientation or transgender status. In a surprise to most observers, the decision was 6 to 3, and written by Justice Neil Gorsuch, one of Donald Trump's appointees. The decision marks Gorsuch’s most significant move thus far to take on the mantle of the late Justice Antonin Scalia as the intellectual leader of the conservative wing of the court. That may sound strange and counter-intuitive: After all, Scalia harshly opposed landmark decisions expanding gay rights, and it's difficult to imagine him having joined the Gorsuch opinion. And indeed, Justice Samuel Alito explicitly made Scalia the linchpin of his dissent, insisting (not implausibly) that Scalia could not possibly have been on board with a decision like this one. “The court's opinion is like a pirate ship,” Alito memorably wrote. “It sails under [Scalia’s] flag, but what it actually represents is a theory of statutory interpretation that Scalia excoriated.” Gorsuch’s ploy might well work. Conservatives may be briefly frustrated by the outcome of this case. But it is liberals — mostly liberal law professors — who make or break judicial reputations. And liberal legal scholars, who have not liked Gorsuch much thus far, are now going to have to hold him up as a model of judicial honesty. He has applied his method to produce a result against his presumed political preferences. That makes him a hero of legal principle, at least for the moment.

A podcast by Noah Feldman: Dr. Manisha Juthani, an infectious disease specialist and associate professor of medicine at Yale School of Medicine, provides tips for protesting safely and explains why she chose to participate.

An article by Noah Feldman: The Justice in Policing Act of 2020 introduced by House Democrats this week contains a provision that is likely to become the subject of lively debate: The provision effectively eliminates the legal defense known as “qualified immunity” for state and local police who get sued for violating citizens’ civil rights. The proposal is extremely important from a symbolic perspective. The Supreme Court has used the doctrine in recent years to send a message to lower courts that it wants less litigation against police. Now is the time for Congress to send the opposite message. Lawmakers should make it clear that police should not be “immune” from responsibility when they break the Constitution. The doctrine of qualified immunity muddies the principle of equal justice under law. Nor is qualified immunity contained in the text of any federal statute. It was invented by the Supreme Court in a series of cases, most importantly the 1982 decision of Harlow v. Fitzgerald. The basic idea of the doctrine is to create an exception to the important civil rights statute known as Section 1983. That law, whose origins date back to 1871, says that a state or local government official who violates a citizen’s constitutional rights “under color of law” can be sued in federal court and held liable for monetary damages. Essentially, qualified immunity says that you can only win a suit under Section 1983 if you can prove that the official’s conduct violated clearly established federal law.

A podcast by Noah Feldman: Paul Butler, a law professor at Georgetown, a former federal prosecutor and the author of the book "Chokehold: Policing Black Men," on policing, George Floyd, and the Black Lives Matter movement.

An article by Noah Feldman: Did President Donald Trump’s administration violate the First Amendment on June 1 when various police and other security forces tear gassed peaceful demonstrators in Lafayette Square park so the president could walk to St. John’s Church for a photo op? That is the central question in a lawsuit brought over the weekend by the Washington, D.C. chapter of Black Lives Matter and a number of individual protesters. The answer is almost certainly yes. And the lawsuit is extremely important, not because the plaintiffs will necessarily prevail, but because it is the best and maybe only way to prevent such a blatant constitutional violation from happening again just steps from the White House. Like most people, I followed the events of the evening of June 1 on television. The Trump administration may eventually offer a different version than the one we saw. For now, however, it’s reasonable to assume a set of facts pretty close to those alleged in the lawsuit. Essentially, Lafayette Square, directly across from the White House, was full of peaceful protesters. They were exercising their First Amendment rights in a public park, which the courts consider to be the very model of a “traditional public forum” where free speech rights are at their peak. Just after 6 p.m., a large number of armed law enforcement and military gathered around the park. The lawsuit alleges that they included “at least” U.S. Park police, Arlington County police, U.S. Secret Service, D.C. National Guard, and military police from the 82nd Airborne Division of the U.S. Army. Trump had apparently tasked Attorney General William Barr with commanding this wide range of police. There have been divergent accounts of whether Barr gave a direct order to clear the park.