Noah Feldman

A podcast by Noah Feldman: Richard Lazarus, a law professor at Harvard and a leading Supreme Court advocate, discusses where public health stops and our individual liberties begin. Plus, what does it mean that the Supreme Court has postponed oral arguments?

An article by Noah Feldman: It’s good news that the Supreme Court has suspended oral arguments indefinitely. If nothing else, it helps keep Justice Ruth Bader Ginsburg safe. Spry but still a cancer survivor, she celebrated her 87th birthday yesterday. I would say it’s practically a national security imperative to keep the nation’s unofficial favorite Jewish grandmother away from anyone who might give her the coronavirus. Apart from the health of the other justices (such as Justice Stephen Breyer, 79), the court personnel and the lawyers, the suspension of Supreme Court arguments also carries an important lesson for the rest of the justice system: It must respond creatively to the pandemic by maintaining core operations while limiting those aspects of its usual functioning that might endanger public health. At the Supreme Court, it’s relatively easy to eliminate situations that might lead to infection. That’s because the justices in general have relatively little public interaction with the parties who appear before them.

A podcast by Noah Feldman: Siddhartha Mukherjee, physician, researcher, and author of the 2011 Pulitzer-Prize winning book The Emperor of All Maladies, discusses what we know about how coronavirus spreads and what we don’t know.

An article by Noah Feldman: If you’re voting on Super Tuesday, the Supreme Court calendar has a message for you. This week, the court will consider a raft of blockbuster cases on immigration, abortion, and the future of the Consumer Finance Protection Bureau. Today, the court also accepted a case on the fate of the Affordable Care Act. The message could not be clearer: unless Democrats elect a president whose coattails produce a Senate majority, the future of the Supreme Court is going to be intensely conservative, and it’s going to have a major effect on the future of our politics. Traditionally, Democrats have paid less attention to the composition of the Supreme Court as a campaign issue than have Republicans. That’s been a mistake. For decades, liberals won landmark Supreme Court victories on the occasionally liberal tendencies of two Ronald Reagan appointees, Justices Sandra Day O’Connor and Anthony Kennedy. Those days are behind us. President Donald Trump’s Supreme Court nominees, Justices Neil Gorsuch and Brett Kavanaugh, won’t be softening their hardline conservatism in the foreseeable future.

A podcast by Noah Feldman: Marc Lipsitch, an epidemiologist at Harvard University, predicts that between 40 to 70 percent of adults in the world will become infected with the coronavirus.

An article by Noah Feldman: The coronavirus called Covid-19 has spread beyond its origin in Wuhan, China, and has arrived on U.S. shores. I’m a law professor, not an epidemiologist, so my thoughts immediately turned to how the law would shape America’s collective response to a broader pandemic — and what the government’s power will mean for individual rights under the Constitution. It’s a question that could soon become an urgent one — I recently interviewed Marc Lipsitch, the brilliant epidemiologist who runs the Center for Communicable Disease Dynamics at Harvard’s T.H. Chan School of Public Health, for my podcast. Lipsitch told me, very calmly, that based on past pandemics and current information, 40-70% of adults in the world are likely to catch the virus in the absence of strong countermeasures. Between one and two percent of those could die. Those are frightening numbers. A pandemic of this scale, and the efforts taken to contain it, would likely result in fierce debates over civil liberties as well as legal action. There’s already been one lawsuit, and there will probably be more. (After all, it’s the American Way.)

An article by Noah Feldman: Here’s the good news about President Donald Trump’s call for Justices Sonia Sotomayor and Ruth Bader Ginsburg to recuse themselves from all future cases involving his administration: It won’t move the two stalwart liberal justices an inch. Better still, questions of any justices’ recusals are decided by — you guessed it — the justices themselves. Sotomayor and Ginsburg can do whatever they want, and that isn’t going to include being pushed around by Trump, or by anyone else for that matter. Nevertheless, it’s serious business that Trump has suggested that there were “obviously inappropriate” things in Sotomayor’s recent dissent criticizing his administration for repeatedly seeking emergency actions from the Supreme Court. Trump is wrong: There’s nothing improper in the dissent. It’s perfectly appropriate for justices to criticize an administration’s legal positions in strong terms. What’s really inappropriate is that the President of the United States is trying to undercut the legitimacy of individual liberal justices — and of the Supreme Court itself. That isn’t normal and it isn’t OK.

An article by Noah Feldman: Don’t let the appearance of a split verdict in the Harvey Weinstein case mislead you: the prosecutors’ decision to charge Weinstein with being a serial sexual predator was a success despite the jury’s decision to acquit on those charges — even as it convicted him of two felony sex crimes, including rape. The strategic advantage of charging Weinstein as a predator was always that it would enable the prosecution to introduce more evidence, including evidence of sexual assaults from women who were not the primary victims in this case. That extra testimony very likely contributed to the jury’s decision to convict Weinstein on two felony charges. It bolstered the primary victims’ testimony, notwithstanding the absence of physical evidence and other challenges associated with their cases. The important legal background here is that, in a criminal case — including in a case of sexual assault — testimony is ordinarily limited to evidence about the specific criminal conduct alleged. If the prosecution wants to introduce evidence of other bad acts by the defendant, it needs to have a valid legal reason to do so — such as a pattern of conduct. We want juries to convict on the actual criminal charge, not because they think the defendant is generally an immoral person or prone to crimes in the abstract.

An op-ed by Noah Feldman: Maybe you’ve heard: Boy Scouts of America is filing for bankruptcy to put an end to the sexual abuse lawsuits it is facing. On one level, it’s business as usual. From makers of IUDs in the 1980s to opioid manufacturers today, it’s become standard for corporations liable for harm on a large scale to take advantage of the protection of bankruptcy. The victims get some compensation while the organization gets legal clarity and finality. Yet on closer examination, there’s something strange, even troubling about using laws designed to resolve business meltdowns to address the social ills caused by nonprofit entities that are meant to do good, yet in fact impose egregious harm.  

An op-ed by Noah Feldman: The president of the United States isn’t a king, and he isn’t above the law — or so constitutional law professors like me keep reminding everybody. But the painful truth is that there is one exception to this truth: the pardon power, exercised this week by President Donald Trump to free or absolve several white-collar criminals. The presidential power to pardon is a holdover from British monarchy. And pardoning by definition goes above and outside the legal system. The pardon power therefore poses a structural threat to the republican character of the U.S. government.

A podcast by Noah Feldman: Stacey Abrams talks about how to create lasting social change, her thoughts on 2020, and her plans for the future.

An article by Noah Feldman: Since Virginia voted to ratify the Equal Rights Amendment in January, there’s been lots of speculative talk about the future of the long-stalled constitutional amendment. The House voted Thursday to remove the deadline for ratification (which came and went decades ago), and the technical questions about that deadline are intriguing — the deadline itself has elicited opinions from, among others, the Office of Legal Counsel and Justice Ruth Bader Ginsburg. But more important is an underlying question: Would it make any real-world legal difference if the ERA were enacted today? Or would the consequences be symbolic at most? The answer turns out to be more complicated than you might think. When the ERA was sent by Congress to the states for ratification in 1972, its passage would certainly have effected immediate change in constitutional doctrine. But in the years since, the Supreme Court has interpreted the Constitution to provide a set of protections against sex-based discrimination that come close to what ERA supporters hoped the amendment would achieve.

Noah Feldman, Harvard Law Professor and Bloomberg Opinion columnist, discusses his column: "Trump Has Hijacked Roger Stone’s Sentencing." Hosted by Lisa Abramowicz and Paul Sweeney.

An article by Noah Feldman: Following a presidential tweet, Donald Trump’s Department of Justice is poised to betray Robert Mueller’s independence — after the fact. Reportedly, Justice will retract the sentencing recommendation that was made yesterday to sentence Roger Stone for seven to nine years for lying to Congress and witness tampering. All four prosecutors quickly resigned from the case. The whole point of Mueller’s status as special prosecutor was to protect his investigation from improper White House influence. Now, Stone’s sentencing is being hijacked by direct presidential influence. None of this is normal. It’s not normal for the Justice Department to reverse a sentencing recommendation already submitted to court. It’s especially not normal when the decision follows the president tweeting that the sentence sought was too high. And it’s the trifecta of non-normalness when the person being sentenced was convicted of lying to protect the president in an investigation of whether the president colluded with a foreign power to get elected.

An op-ed by Noah Feldman; Today, the Senate is expected to vote against removing Donald Trump from office. But what will be the verdict of history?In the glass half-empty scenario, Trump’s claims to have been completely exonerated will be embraced by future Americans and their presidents. High crimes and misdemeanors will be defined down to a bare minimum, and maybe out of existence altogether. The impeachment provisions of the Constitution will become more or less a dead letter — except, perhaps, in the extremely unusual circumstance where a president’s party holds less than a third of the seats in the Senate. Future presidents will embrace dirty tricks to win re-election, safe in the knowledge that the Trump precedent makes their removal vanishingly unlikely. The Democratic House’s party-line impeachment will be seen as a partisan act, not a genuine manifestation of constitutional outrage.  

An article by Noah Feldman: “Hypocrisy is the tribute that vice pays to virtue.” The public Senate deliberations in President Donald Trump’s impeachment trial reminded me of this famous maxim, coined in the 17th century by the French aristocrat and aphorist François de la Rochefoucauld. From a constitutional standpoint, it would be better if Republican senators who plan to vote against removing Trump say they find the evidence unconvincing — even if they are being hypocritical — than for them to say that Trump’s alleged conduct is fine. That’s because the precedent set by Trump’s trial depends heavily on the senators’ public explanations for their votes. If future observers see that the senators redefined impeachment so that it did not include the President abusing his power to cheat in an election and obstruct Congress, that will profoundly weaken the U.S. constitutional system. It will weaken the political virtue of the republic.

Noah Feldman, Harvard Law Professor who testified at the House Impeachment trial, and Bloomberg Opinion columnist, discusses how the GOP Senate impeachment trial will impact the rule of law. Hosted by Lisa Abramowicz and Paul Sweeney.

An article by Noah Feldman: As Republicans scramble to argue that they don’t need to call witnesses in President Donald Trump’s Senate impeachment trial, one argument seems to be gaining traction: that witnesses are irrelevant, because even if Trump did everything he’s accused of doing, abuse of power is not an impeachable offense. This argument isn’t merely wrong. It is the single most dangerous argument that any of Trump’s defenders have made during the entire impeachment process. If abuse of power isn’t impeachable, what is?

Facebook is a step away from creating its global Oversight Board for content moderation. The bylaws for the board, released on Jan. 28, lay out the blueprint for an unprecedented experiment in corporate self-governance for the tech sector. While there’s good reason to be skeptical of whether Facebook itself can fix problems like hate speech and disinformation on the platform, we should pay closer attention to how the board proposes to make decisions. ... When I spoke with Noah Feldman from Harvard Law School, who came up with the Supreme Court for Facebook concept and advises Zuckerberg, he imagined that other tech companies might one day bring their predicaments to the Oversight Board if they agreed the decision would be binding.

An article by Noah Feldman: This weekend marks a pivot point in President Donald Trump’s Senate impeachment trial. Until now, the impeachment narrative has been driven overwhelmingly by the president’s critics. It started with the impeachment inquiry in the House of Representatives, culminated in the dramatic and almost purely party-line impeachment vote; and it continued with the skillful presentation of the prosecution’s case by the House managers over three long days in the Senate. But all that focus on Trump’s wrongdoing is now over. Trump’s lawyers will have the floor for three days of their own. And after that, if no witnesses are called, the trial will barrel towards a final vote — one the president is expected to win easily. The consequences of the pivot to Trump’s defense team will be deeply significant — both for the politics of the next nine months leading to the 2020 presidential election, and for the construction of American history in the future.

An op-ed by Noah Feldman: If ordinary rules of precedent were being followed, there would be no argument over whether witnesses should be allowed at the Senate impeachment trial of President Donald Trump. Every single Senate impeachment trial, ever, has had witnesses. The precedent is unanimous. But the painful truth is that precedent carries much, much less weight in impeachment than it does in other constitutional contexts, whether in Congress or the courts or even within the executive branch itself. That’s unfortunate, because precedent helps make procedures — like how a trial works — fair and legitimate.