Noah Feldman

An op-ed by Noah Feldman. Senate Minority Leader Chuck Schumer says the Democrats will filibuster any U.S. Supreme Court nominee announced by President Donald Trump next week who’s “out of the mainstream.” The phrase harks back to the Democrats’ success in blocking Judge Robert Bork from the high court in 1987, an event that both gave the world Justice Anthony Kennedy and permanently politicized Supreme Court confirmations. The Republicans could eliminate the filibuster using the “nuclear option,” of course. But Schumer’s threat still poses two crucial questions: What’s the “mainstream” when it comes to judicial practice and philosophy? And would the Democrats be justified in trying to block Trump’s nominee for being out of it?

An op-ed by Noah Feldman. The U.K. Supreme Court’s judgment on Tuesday requiring Parliament to authorize Brexit was conservative in the deepest and best sense of the term. Allowing the government to withdraw from the European Union without a parliamentary vote would have enabled the prime minister and her cabinet to change U.K. law on their own, a violation of Parliament’s traditional sovereignty. In practice, if Parliament votes in favor of Brexit, the judgment may not slow down the process very much. But the court nonetheless imposed a respect for orderly constitutional forms -- and required Britain’s elected representatives to take full and individual responsibility for their epochal decision.

An op-ed by Noah Feldman. The headline issue in the first lawsuit against President Donald Trump is whether it is a violation of the emoluments clause of the Constitution for his hotels and properties to be paid by foreign governments. But if a court actually decides this tough question, that will already be an accomplishment for the watchdog organization that brought the suit and the distinguished lawyers and academics representing it. First, they have to get past two legal hurdles just to have their arguments considered. Although they have strong arguments to make on both, a skeptical court could easily throw out the case before reaching its heart.

An op-ed by Noah Feldman. The Texas Supreme Court has agreed to reconsider a case about whether married gay city employees must be given spousal benefits. That’s a terrible sign. The briefs openly urge the court to resist the U.S. Supreme Court’s landmark gay marriage decision by reading it narrowly to say that gay people have a fundamental right to marry but no right to equal benefits. It’s a legally deceptive argument, which the current justices in Washington would summarily reject. But it’s dangerous all the same, because it shows that Donald Trump’s election is spurring outright resistance to federal law and precedent. And the Texas justices, who are elected, have no excuse for agreeing to reconsider the case.

An op-ed by Noah Feldman. With all eyes on the U.S. as it inaugurates a new leader, Turkey is preparing to amend its constitution to make its president even more powerful than the American executive. There’s nothing inherently wrong with replacing parliamentary government with a presidential system. The problem is timing and context: Turkey’s proposed changes, which will go to a national referendum after being approved by parliament, follow the unsuccessful coup against increasingly autocratic President Recep Tayyip Erdogan.

An op-ed by Noah Feldman. The crucial passage in President Donald Trump’s inaugural address Friday tracked John F. Kennedy’s swearing-in speech, with one huge difference: Trump’s America First message was 180 degrees away from Kennedy’s Cold War embrace of global leadership. The combination of homage to Kennedy and subversion of his liberal internationalist vision tells you a lot about what Trump’s presidency is going to look like -- much more than the populist rhetoric about giving America back to the people.

An op-ed by Noah Feldman. Rick Perry’s chief qualification to be secretary of energy was that he called for the abolition of the department back in 2012. Thursday, at his confirmation hearing, Perry not only flipped but said that, after being briefed on the department’s “vital functions,” he regretted his recommendation. Behold a case study in why, rhetoric and nominations aside, President-elect Donald Trump can’t bring transformative change to the agencies and departments that make up almost all the executive branch: The gravitational pull of the bureaucracy is just too strong. Even before Trump’s appointees are confirmed, they understand that their relevance and power depend not on dismantling the bodies they run, but on enhancing their power.

An op-ed by Noah Feldman. Innocent men detained for months or years after the Sept. 11 attacks on suspicion of being Muslim got their day in the U.S. Supreme Court on Wednesday. The odds don’t look good. The court will probably dismiss their constitutional suit against the government officials who implemented the policies that arrested immigrants who had overstayed their visas and held them in abusive conditions until after they had been affirmatively proved innocent, and sometimes beyond. Yet this is one of those cases that deserves attention because it casts a harsh light on real-world facts that we’d rather forget. Call it the “It Can’t Happen Here” case. And remember: It can. And in 2001, it did.

An op-ed by Noah Feldman. What makes Chelsea Manning -- whose sentence for leaking classified military and diplomatic files was commuted Tuesday by President Barack Obama -- different from Edward Snowden, who will not be pardoned for his disclosures of classified National Security Agency information? Whatever the White House may have said, it isn’t just the degree of secrecy of the leaked documents, Manning’s guilty plea or her gender transition. The most important difference is simply this: Snowden’s freedom poses a foundational threat to the U.S. systems of national security and criminal justice. Snowden won’t be pardoned because he’s demonstrated serious gaps in both realms. If he were in prison today, however, by his choice or otherwise, there’s a good chance he would have had his sentence commuted.

An op-ed by Noah Feldman. Is it lawful to deport immigrants who commit “aggravated felonies”? Or is that language unconstitutionally vague? The U.S. Supreme Court considered the question Tuesday, in a case that’s proof of De Tocqueville’s dictum, “There is hardly a political question in the United States which does not sooner or later turn into a judicial one." Although the legal issues are subtle, the atmospherics of the case are all about Donald Trump’s warnings of “bad hombres” illegally entering the U.S.

An op-ed by Noah Feldman. The federal Age Discrimination in Employment Act protects people 40 and older. But is it ageism to discriminate against people over 50 compared with those in the 40-to-50 bracket? A federal appeals court has said yes -- but because several other circuit courts have said no, the case is very likely to go to the U.S. Supreme Court in the near future. The issue raises questions about how discrimination should be measured when it might exist along a continuum.

An op-ed by Noah Feldman. Muslim girls can be required to participate in swimming classes alongside boys despite their parents’ religious objections, according to the European Court of Human Rights. The outcome would have been the opposite in most U.S. jurisdictions, which have emphasized students’ rights ever since Jehovah’s Witnesses were exempted from the Pledge of Allegiance during World War II. The decision made this week marks the very different situation in contemporary Europe, where children’s interests are contrasted with their parents’ rights, and the schools’ goal of “integration” is getting special weight amid a wave of Muslim immigration.

An op-ed by Noah Feldman. The world's most dangerous flashpoint got much more dangerous Thursday when China sent its lone aircraft carrier into the Taiwan Strait and Taiwan scrambled fighter jets in response. This is how accidental wars start: provocation and counterprovocation in an environment with too much uncertainty. The uncertainty arises from not knowing the Donald Trump administration’s answer to a pressing foreign policy question: Would the U.S. defend Taiwan from a Chinese attack?

An op-ed by Noah Feldman. The U.S. Supreme Court took up this challenging policy question Wednesday: How much is a school district obligated to educate a disabled child? The justices will have to choose from a smorgasbord of options offered by the lower courts, the Department of Justice, and the parents and schools in the case. The choices range from just a little more than nothing to the same level of education available to other kids. The outcome will have major consequences for tens of thousands of students -- and for the schools where they study.

An op-ed by Noah Feldman. In New York and nine other states, merchants are barred from charging credit-card purchasers a surcharge, but are allowed to offer discounts for paying in cash. The U.S. Supreme Court on Tuesday took up the fascinating question of whether this requirement violates the merchants’ freedom of speech. It’s a juicy constitutional question: Are prices subject to the First Amendment at all? And it sweetens the pot with an intellectual problem in law and economics: Given that we know customers react differently to surcharges and discounts, even when they’re economically equivalent, should the state be allowed to ban one and require the other?

An op-ed by Noah Feldman. U.S. law can reach American sex offenders abroad so long as they haven’t resettled in another country, according to a federal appeals court. The decision, issued last week, extends U.S. law beyond its borders through an expansive interpretation of Congress’s authority under the Constitution’s commerce clause. It bucks the U.S. Supreme Court’s recent trend of limiting laws’ reach abroad, at least in part because of the powerful desire to condemn sex with minors. But as a precedent, the decision will apply to other, more ordinary crimes committed by Americans abroad, with potentially troubling consequences.

An op-ed by Noah Feldman. A unanimous U.S. Supreme Court on Monday decided a police immunity case that sounds small but carries a larger significance. The narrow holding was that a police officer who arrived late at the scene of a confrontation and then shot and killed the suspect without having heard other officers issue a warning is protected from a lawsuit. What really mattered was the reasoning: The court said the officer couldn’t be sued because there was no case on the books finding an officer liable under the exact same circumstances. This decision makes it much harder to sue the police, because almost all confrontations have unique features that could be used to block lawsuits. In essence, the court is signaling that it wants fewer suits against officers in the lower courts, and is chiding the appellate courts for allowing such suits.

An op-ed by Noah Feldman. India’s constitutional democracy has always struggled to tame the country’s religious and caste divisions, especially during elections. The Supreme Court of India has now issued an important ruling that makes things worse, not better. On the surface, the court struck a blow for religious neutrality, holding that referring to religion or caste in a race for office will disqualify the results. In reality, the decision delivered a gift to the ruling Hindu nationalist Bharatiya Janata Party at the expense of India's minority faiths and castes. That’s especially worrisome in our present historical moment, when nationalist parties are challenging free democratic speech around the world.

An op-ed by Noah Feldman. Senate Republicans changed the rules of the U.S. Supreme Court confirmation game by blocking President Barack Obama’s nominee, Merrick Garland, after the death of Justice Antonin Scalia. Now it’s the Democrats’ turn to make the next move. Senate Minority Leader Chuck Schumer has signaled that the Democrats will filibuster almost any nominee proposed by Donald Trump. Although the Republicans could break the filibuster by invoking the so-called nuclear option, it isn’t certain that they will be able to do so. That would leave the court with eight members for the foreseeable future -- and potentially create circumstances where vacancies can only be filled when the president and 60 senators come from the same party.

An op-ed by Noah Feldman: In a major blow to civil liberties, an appeals court has upheld the Minnesota system that civilly commits sex offenders after they’ve served their prison terms, a confinement from which no one has ever been fully released. The decision, filed Tuesday, used the wrong legal standard, making it too easy for the state to lock people up indefinitely for future dangerousness. Worse, the U.S. Supreme Court might not review the decision, despite its being egregiously wrong, because there is no clear disagreement among the circuit courts.

An op-ed by Noah Feldman. The stealth Republican move Monday night to weaken the ethics oversight office in the House of Representatives is a good reminder that the U.S. Constitution provides only limited protections when a single party rules. But the swift rollback of the plan on Tuesday is also a good reminder that the Constitution does have an oversight mechanism built in: the press. When one party controls the legislature and presidency, the “Fourth Estate” isn’t just a metaphor. It’s a necessity for functioning free government.