Noah Feldman

An op-ed by Noah Feldman. On the surface it sounds like a sick joke. The German drug manufacturer Fresenius Kabi is suing to block an execution in Nebraska — not because it opposes capital punishment, but because it would be bad for the company’s public relations for its drugs to be used to kill. It’s not the first time. Other drug companies have also tried to block executions using their products for similar reasons. A federal district judge rejected Fresenius’s suit Friday, but the company has appealed. Regardless of whether the Nebraska execution, scheduled for Tuesday, is delayed or halted, the effort is worth examining.

An op-ed by Noah Feldman. When Pope Francis makes a point of saying that the death penalty is immoral under all circumstances, and adds the condemnation to the official Catholic catechism, who is he talking to? According to Amnesty International, the top five executing countries in the world last year were China, Iran, Saudi Arabia, Iraq and Pakistan. One of those is Communist and four are Muslim. So the odds are that Francis, in an announcement Thursday, was talking to No. 8 on the list, the only country in the world that has a significant, influential Catholic population yet still executes people: the United States of America.

An op-ed by Noah Feldman. Rudy Giuliani can’t seem to get the law right. The president’s lawyer suggested Monday on CNN and Fox News that Donald Trump didn’t commit a crime even if he colluded with Russians during the 2016 campaign by encouraging them to hack Hillary Clinton’s email server. “I don't even know if that’s a crime, colluding about Russians,” Giuliani put it. “You start analyzing the crime – the hacking is the crime. The president didn't hack. He didn’t pay them for hacking." That's just wrong.

...Directly above the nation's most important tribunal is another type of court, where victors emerge not with five votes and a majority opinion but with 21 points and a margin of at least two. Yes, on the fifth and top floor of the glorious, neoclassical edifice on First Street NE is a basketball court...For some, the haven of the Highest Court was never more welcome than when the justices adjudicated capital cases. On those evenings Noah Feldman, a clerk for Justice David Souter in 1998–99, would go upstairs, often alone, to shoot as he waited for documents, decompressing and considering the gravity of the moment. "It's impossible to overstate the seriousness of how that is taken by all the personnel of the Court, including the clerks. And rightly—a human being's life is in the balance," Feldman says. "Your cortisol is pounding, you want to do everything right and make sure justice is done. And when that was going on, you really needed a break."...On the fifth floor ideological differences dissipate; strict constructionists don't square off against living constitutionalists, nor do liberals take on conservatives for the right to Kennedy's (or, now that he's retiring, Roberts's) swing vote. "It was sort of a place where everyone took off their uniforms and you couldn't tell who was who," says Nikolas Bowie, who clerked for Justice Sonia Sotomayor in 2015–16. "You were just playing basketball."

An op-ed by Noah Feldman. How’s this for a thought experiment the day after President Donald Trump provoked bipartisan disgust over his performance with Russian President Vladimir Putin: Try to think charitably and ascribe rational, non-corrupt motives to political actors.

An op-ed by Noah Feldman. Some Democrats and advocacy groups are saying President Donald Trump picked Judge Brett Kavanaugh as his second nominee to the U.S. Supreme Court because of Kavanaugh’s view that a president shouldn’t be indicted while in office. It’s important that not become the narrative of the Democrats’ opposition, because it can easily be refuted. Properly understood, Kavanaugh’s expressed views actually support the opposite conclusion: that the president can be investigated and maybe even indicted unless Congress passes a law saying he can’t — which Congress has not done.

An op-ed by Noah Feldman. Some Democrats and advocacy groups are saying President Donald Trump picked Judge Brett Kavanaugh as his second nominee to the U.S. Supreme Court because of Kavanaugh’s view that a president shouldn’t be indicted while in office. It’s important that not become the narrative of the Democrats’ opposition, because it can easily be refuted.

An op-ed by Noah Feldman.I don’t claim to know who President Donald Trump will pick Monday night to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court. But I do claim to know what we’ll be saying about it. Here, in alphabetical order, is what will soon be the conventional wisdom. Plus, what you should really think, where it differs.

...As for why members of the Jewish faith have been elevated (and all by Democratic presidents), Harvard Law Professor Noah Feldman said it’s partially explained by the fact that there’s a strong pipeline of Jewish judges and professors. “The reason for that is also a little hard to pin down,” Feldman said, “except to say that academia was an area which, like many other areas of American life, was originally closed to Jews in the late 19th Century.”

An op-ed by Noah Feldman. In what may be the worst decision since the infamous Korematsu case, when the Supreme Court upheld the internment of Japanese-Americans during World War II, the court today by a 5-4 vote upheld President Donald Trump’s Muslim travel ban. Like the Korematsu decision, Trump v. Hawaii elevates legal formalities as a way to avoid addressing what everyone understood is really at issue here — namely, prejudice. Chief Justice John Roberts’s majority opinion downplays Trump’s anti-Muslim bias, focusing instead on the president’s legal power to block immigration in the name of national security.

An op-ed by Noah Feldman. In a major victory for American Express Co., the U.S. Supreme Court held Monday that the company may continue to bar merchants from steering customers to credit cards that charge lower merchant fees. The 5-4 decision broke down on strictly partisan lines. It shows that the court’s conservatives don’t much care for antitrust law, and are willing to make new law in order to limit its reach. The liberal justices would prefer to stick with traditional principles that are focused on protecting consumers. On the surface, the majority opinion by Justice Clarence Thomas and the dissent by Justice Stephen Breyer are grappling over a technical question of economics: What market or markets does American Express participate in?

Lawyers for the District argued Wednesday for the dismissal of a lawsuit that challenges city regulations requiring some child-care workers to obtain associate degrees or risk losing their jobs. Two day-care workers and a parent are suing the city over the controversial rules that supporters contend will make D.C. a national model for providing high-quality care for the youngest children...A Harvard Law School professor who studies constitutional law said the plaintiffs in the lawsuit against the city have just a slim chance of success. “You wouldn’t give it an F on the exam, you’d say, ‘Okay, creative argument — hard one to win, but creative argument,’ ” Noah Feldman said, referring to the suit.

An op-ed by Noah Feldman. The U.S. Supreme Court on Monday kept the much-watched partisan gerrymandering case alive – in a most unusual way. The justices sent the claim by Wisconsin Democrats that Republicans violated the Constitution in the drawing of state assembly voting districts back to the lower court. They want to see whether the plaintiffs can prove that they were individually harmed by having their votes diluted within their own districts. If they can do that, their case will almost certainly return to the Supreme Court.

An op-ed by Noah Feldman. In a 5-4 decision along party lines, the U.S. Supreme Court on Monday upheld an Ohio law that lets the state kick people off the voter rolls if they don’t show up to vote for six years and don’t return a postcard saying they haven’t moved. It would be nice if legal principle had played any role in the decision on either side, but it didn’t, not really. The five conservatives, including Justice Anthony Kennedy, found in Husted v. A. Philip Randolph Institute that the state law was consistent with federal law; the four liberals said it wasn’t.

An op-ed by Noah Feldman. As more and more of our speech takes place on social media, courts are beginning to experiment with expanding the First Amendment, proposing that its protection of political speech applies even in privately controlled virtual spaces. The most recent example is a federal court in New York that held last month that President Trump cannot block anyone from following his Twitter account because it functions as a public forum. This is the first time, to my knowledge, that the First Amendment has ever been applied to a private platform. On the surface, this apparent expansion of free speech may seem sensible, even exciting. After all, if social media is where we do our political talking, it would seem logical to bring the Constitution to bear there.

An op-ed by Noah Feldman. Win by animus; lose by animus. That’s the message of the highly anticipated Masterpiece Cakeshop decision, in which the U.S. Supreme Court held Monday that a baker could not be found liable for refusing to bake a wedding cake for a gay couple because the Colorado Civil Rights Commission had treated him with “hostility” based on his religious beliefs. The decision, however, is not as bad for gay rights as it could have been. Justice Anthony Kennedy, who wrote the opinion, has spent the past 25 years developing a theory of gay rights according to which the government could not treat gay people with animus, but must respect the equal dignity of all. In this opinion, he applied a version of the same theory to the Christian baker who was found to have violated Colorado’s anti-discrimination law – and found that the baker had been subject to hostility.

An interview with Noah Feldman. The Supreme Court ruled 7-2 in favor of a Colorado baker who refused to bake a cake for a same sex couple's wedding. The decision has been called narrow, and does not address some of the larger free speech or religious liberty issues that were heard during oral arguments.

An op-ed by Noah Feldman. The best way to understand why a federal district court was wrong Wednesday, when it held that Twitter users have a constitutional right not to be blocked by President Donald Trump’s personal account, is to consider the lawsuits that will come next. I can point to a variety of reasons the decision was wrong, some of which I’ve already explored in an earlier column. It should be overturned on appeal. But chief among the problems is that the government doesn’t ultimately control what the court called the “interactive space” of replies to the president’s tweets — Twitter Inc. does.

If you wanted to measure just how different the Supreme Court is with the addition of Neil Gorsuch instead of Merrick Garland — who should be sitting in Justice Gorsuch’s seat but for the outrageous machinations of Senate Republicans — read the court’s Monday ruling in Epic Systems v. Lewis...Justice Gorsuch appears to imagine workers and employers negotiating under Marquess of Queensberry rules, engaged in a fair and equal face-off over working conditions and terms of employment. It’s a neat little story, and, “If you lived on the moon, with no knowledge of the realities of labor relations or the politics of class actions, you’d think it was obviously correct,” as Harvard law professor Noah Feldman wrote.