Noah Feldman

An op-ed by Noah Feldman. As law professors go, I’m pretty sympathetic to Clarence Thomas’s constitutional jurisprudence. It’s not that I agree with him, which I almost never do. But I think he genuinely tries to apply originalism using historical methods. And when it comes to the law of race, where again I disagree with Thomas, I respect his effort to give voice to a distinctive form of conservative black nationalism that insists on colorblindness because it’s better for blacks.

An op-ed by Noah Feldman. It's complicated to sue for discriminatory firing when you haven't actually been fired. But it's doable. The lesson from the Supreme Court on Monday is that timing matters. The justices weighed in on the important question of when the clock starts for plaintiffs who have been “constructively discharged” -- that is, effectively fired because of discriminatory treatment. Seven of the eight justices agreed that if someone quit a job and alleges discrimination was the reason, his claim starts when he quit, not when the discriminatory treatment against him is said to have occurred.

An op-ed by Noah Feldman. At the moment, Europe’s attention is focused on Austria’s presidential election, where a far-rightist was defeated by a razor-thin margin on Monday. But in Poland, where I spent the last several days, the consequences of a far-right government can already be felt. The European Union has given the ruling Law and Justice Party, known as PiS, until Monday to repeal its effort to hamstring Poland’s constitutional court. PiS has answered with a resounding “No.” A full-blown domestic constitutional crisis is brewing, which could have major implications for democracy in Europe.

An op-ed by Noah Feldman. On Friday, Oklahoma Governor Mary Fallin vetoed a bill that would have effectively banned abortion in the state. The bill, which would have made performing the procedure a felony, was certainly unconstitutional. But it was unlawful in a very interesting way, because it raised the question of whether the right to abortion belongs to a woman or to her doctor. As it turns out, that question has been an important one ever since Roe v. Wade, a decision that actually emphasizes the rights of the physician.

An op-ed by Noah Feldman. What would the Supreme Court look like if ideology didn’t matter? We’re finding out this term. Since Justice Antonin Scalia's death in February, it's impossible for the court to land on its common 5-4 split. Now the justices -- and we -- can pay close attention to cases where the vote breakdown is much harder to explain. A case in point is Thursday’s decision clarifying what kind of “aggravated felony” can get an immigrant deported.

An op-ed by Noah Feldman. The Supreme Court's decision on attorneys' fees is not really about attorneys' fees. Behind the bland topic lies a deep and interesting philosophical question about the nature of a lawsuit, especially one brought on civil rights grounds: What counts as a win? The Supreme Court answered this question Thursday in a case called CRST Van Expedited v. EEOC. The case involved a $4 million award of fees that the trial court ordered the government to pay the trucking company’s lawyers after the court dismissed more than 150 sex harassment claims brought by the Equal Employment Opportunity Commission against the company.

An op-ed by Noah Feldman. You never actually own a synagogue. You merely take care of it for the next generation. That’s the essence of a 106-page court decision that's transferred control of the historic Touro synagogue in Newport, Rhode Island, from a New York City congregation to a local one seeking to revive the institution’s religious life. Seen through the lens of Jewish-American history, the decision is both correct and symbolically important. It emphasizes the future over the past, refusing to treat Jewish spaces and objects as relics and instead making them into investments in the future.

An op-ed by Noah Feldman. Much criticism of the gradual expansion of the constitutional right to bear arms by U.S. courts has focused on assault weapons and mass shootings. But gun-rights advocates are conquering another frontier: the regulation of handguns in urban space. Yesterday, a federal district court struck down restrictions on carrying concealed handguns imposed by Washington, D.C. As of Wednesday, if you want to carry a concealed handgun in the nation’s capital, that’s your right. Maybe they should change the Wizards’ name back to the Bullets.

An op-ed by Noah Feldman. There’s a quiet revolution going on in the constitutional law of guns. Since the Supreme Court declared gun ownership a fundamental right less than a decade ago, the lower courts have been expanding upon that landmark ruling. Now they've added heightened constitutional protection for gun sellers, including potential exemption from zoning laws. It’s as though the Second Amendment is on its way to joining the First Amendment in a special, preferred position among the panoply of constitutional rights.

An op-ed by Noah Feldman. The Supreme Court's do-over on the question of religious exemptions from the Affordable Care Act’s contraceptive care mandate is bizarre, but it reflects the weirdness of an eight-justice court. Unable to resolve the question, but unwilling to leave a patchwork of different results in different circuits, the justices told various appeals courts to try again. Most likely, the lower courts will split again, and the issue will come back to the Supreme Court. By then, there might be nine justices to decide it.

An op-ed by Noah Feldman. On Monday the Supreme Court issued no fewer than six opinions. The one that will make headlines -- involving the contraceptive mandate of the Affordable Care Act -- wasn’t really a decision at all, but an attempt to make the lower courts do the case over. The other five were business as usual -- and in this strange eight-justice term, that means they were all decided on narrow, technical grounds. The theme was small-ball, if you will: the court is avoiding big issues that it can’t resolve or decide.

An op-ed by Noah Feldman. The Affordable Care Act is being subjected to judicial torment. The latest agony is last week’s ruling by a federal judge that the law failed to appropriate funds needed to help cover low- to middle-income people. The case, brought by Republican members of Congress, shouldn’t have been allowed to go forward in the first place, because a dispute between Congress and the president about the scope of appropriations isn’t a matter for the courts. It’s also wrong on the merits, since it assumes that legislation should be interpreted to thwart itself. The Court of Appeals or the Supreme Court will probably overturn it. But what really matters about the ruling is that it shows how the judiciary can continue to fight an indefinite rearguard action against legislation unpopular with one party.

Op-ed by Noah Feldman: Foreign governments can't be sued in U.S. courts. Foreign companies can. What happens when China's state-owned companies claim to be part of the government? Nobody knows because the law is confusing, but some U.S. courts are taking the Chinese claim seriously.

An op-ed by Noah Feldman. North Carolina bans registered sex offenders from Facebook. Unsurprisingly, a sex offender wants the Supreme Court to strike down the law. Perhaps more surprisingly, he has support from 16 notable professors of constitutional law -- from left, right and center. I’m loath to disagree with an all-star cast of colleagues that includes some of my teachers and good friends. But I think their argument goes too far.

An op-ed by Noah Feldman. Secrecy and justice don't mix. Just look at the latest contortions in the case of Khalid Sheikh Mohammed, the accused mastermind of the September 11 attacks. Mohammed's lawyer has filed a motion alleging that, at the prosecutor’s request, the judge allowed the government to destroy evidence that Mohammed could have used in his own defense. The proceedings of the special military tribunal at Guantanamo Bay are so secret that no one is allowed to say what the evidence was or to read the motion.

An op-ed by Noah Feldman. A company whose violation of human rights abroad strongly affects the U.S. can be sued in any federal court in the country -- except New York and Connecticut’s Second Circuit. A decision there Tuesday means it will remain stubbornly outside the pack. The U.S. Court of Appeals for the Second Circuit refused to reconsider an earlier decision that might have put it into conformity with the other circuits. The majority in the court's opinion said it wasn't worth bothering after the Supreme Court sharply reduced liability under international law in 2013. The dissenters thought the appeals court should fix what it saw as a mistake made in 2011 when it first held that corporations can’t be held responsible for human rights violations in other countries.

An op-ed by Noah Feldman. North Carolina and the federal government are suing each other over whether the state’s new transgender bathroom regulation violates federal civil rights laws. The cultural stakes are clear: the two governments have sharply different ideas about the acceptance of transgender people. But what about the legal stakes? The legal problem in the case is whether the North Carolina law, which bars transgender people from restrooms, locker rooms and changing rooms, violates the provision of the Civil Rights Act of 1964 that prohibits discrimination on the basis of sex. That question may sound simple, but it’s actually profound. It will require a court to decide whether gender is the same thing as sex, and if so, for what purposes.

An op-ed by Noah Feldman. Laws that ban street begging often are challenged as a violation of First Amendment free speech rights. Appellate courts are divided on the question, and the Supreme Court has never answered it definitively. But in the last year, courts across the country have begun striking down laws against panhandling on the ground that they prohibit certain speech on the basis of its content. The reason is a major Supreme Court decision from last year that barred an Arizona town from using content to distinguish between different types of temporary signs erected on public property.

An op-ed by Noah Feldman. When Alabama Chief Justice Roy Moore ordered his state’s probate judges in January to ignore a Supreme Court ruling legalizing gay marriage, he put himself in jeopardy of losing his job – for the second time. Now Alabama’s Judicial Inquiry Commission has filed formal charges against him for his defiance. Moore should lose his job. But as he’s shown before, that’s a setback he can overcome. Last time he was removed from office, he ran for governor before settling for reelection as chief justice. Who knows? This time he might even win the governorship.

Who owns the most U.S. Treasury bonds? China? Japan? Saudi Arabia? The answer: None of the above. It’s us. We Americans own almost $5 trillion in Treasury bonds, all told. That’s more than twice as much as China, Japan and all the oil exporting countries put together...A President Trump just winging it in public is going to cause chaos in the Treasury and currency markets. Legal experts aren’t sure what a default crisis would entail. The U.S. Constitution says government debt can’t be questioned. But it’s never been tested. “No one knows what happens if it is,” Harvard Law School’s Noah Feldman tells me.

An op-ed by Noah Feldman. Should female African-American cadets at West Point be punished for posing for a photograph with their fists raised? Most discussion so far has focused on the contemporary meaning of the gesture and whether it’s a political statement of solidarity with the Black Lives Matter movement. But there’s a further free-speech question that must also be answered: How much leeway should members of the uniformed, active-duty military have to express themselves -- photographically, politically, or otherwise? The best answer, grounded in military regulations and the First Amendment, indicates that the cadets have not violated the letter or spirit of the law and should not be subject to sanction.