Noah Feldman

An op-ed by Noah Feldman. The “death of fathers,” Claudius tells Hamlet, is nature's “common theme.” That theme played out last week at the U.S. Supreme Court. In the shadow of memorial services for Justice Antonin Scalia, Justice Clarence Thomas, who is something like Scalia's jurisprudential son, stepped into the light and broke his decade-long silence during an oral argument. He did it in a classic Scalian manner, catching a government lawyer off-guard and badgering her in an intellectually interesting way about gun rights. Then Justice Elena Kagan published a Scalia-style dissent in a statutory interpretation case, the late justice’s area of special expertise.

An op-ed by Noah Feldman: Reading Justice Elena Kagan’s breezy, colloquial, witty dissent inLockhart v. U.S., the grammar case handed down Tuesday, wasn’t like reading an ordinary Supreme Court opinion -- because it was breezy, colloquial and witty. Spurred by the competition, Justice Sonia Sotomayor, writing for the majority (which is much harder), tried out a few colloquialisms herself. Something new is afoot at the court, and Kagan is at the forefront of it. In the era of fan-girl books about the court, like “The Notorious RBG,” humor is becoming a permissible mode of judicial expression.

An op-ed by Noah Feldman: What’s an undue burden? That question was at the heart of Wednesday’s oral argument at the U.S. Supreme Court in the Texas abortion case of Whole Woman’s Health v. Hellerstedt. In particular, the conversation focused on whether the court needs to do a cost-benefit comparison to determine an undue burden -- and if it does, what statistical evidence is needed to do it properly. As expected, the oral argument reinforced the sense that the outcome of the case depends on Justice Anthony Kennedy. The four liberal justices made it pretty clear that the Texas law, which requires abortion clinics to operate more like hospitals, should be struck down. The three conservatives, sorely missing the support of Justice Antonin Scalia, will surely vote to uphold it, although Justice Clarence Thomas kept silent on Wednesday. What matters, therefore, is how Kennedy is thinking about the undue-burden problem.

Bloomberg Law Brief with June Grasso. Noah Feldman, a Harvard Law School professor and Bloomberg View Contributor, and Steven Vladeck, a law professor at the American University Washington College of Law, discuss a Texas abortion case that was heard in the supreme court on Wednesday. The case could have wide-ranging effect on women’s healthcare across the country, but after the death of Justice Antonin Scalia, there is the chance that the case could end in a 4-4 tie. They spoke with Bloomberg Law Hosts Michael Best and June Grasso on Bloomberg Radio’s "Bloomberg Law".

An op-ed by Noah Feldman. The problem of presidential nominees who can’t get a vote from the U.S. Senate isn’t restricted to Supreme Court justices. It’s a recurring, structural issue that’s affecting executive officials of all kinds, including ambassadors. One partial solution to unfilled executive appointments, adopted by Barack Obama’s administration and by previous presidents, is to make someone the acting head of a department, then nominate that same person to fill the job permanently. Last year, the U.S. Court of Appeals for the D.C. Circuit issued a decision that makes this fix essentially impossible. Now the Obama administration has said it will ask the Supreme Court to reverse that decision.

An op-ed by Noah Feldman. Should laws be understood based on the way people speak? Or should they be interpreted according to technical rules of statutory construction, so that law becomes a specialized language game all its own? In a decision issued Monday, the U.S. Supreme Court voted, 6-2, for the second option. The case, Lockhart v. U.S., promises to be a classic. The court’s breakdown was about jurisprudence, not partisan ideology. And the issue was, remarkably enough, dangling modifiers.

An op-ed by Noah Feldman. Remember when Justice Antonin Scalia refused to recuse himself from a case involving then-Vice President Dick Cheney, even though they’d just been on a duck-hunting trip together? That episode yielded a priceless Scalia memorandum-opinion in which he declared, among other things, that he’d never been in the same blind with Cheney on the trip. But the main take-away from the episode was that Scalia -- and no one else -- got to decide whether he should be recused. On such matters, the justices’ own decisions are final.

An op-ed by Noah Feldman. Is it domestic violence if you didn’t mean to hurt your partner but recklessly did so anyway? Ordinarily, the U.S. Supreme Court wouldn’t weigh in on such a question, because the misdemeanor crime of domestic violence is determined state-by-state, not by federal law. But Monday the justices heard arguments on exactly that question, in a case involving a federal law that prohibits people convicted of domestic violence from having guns.

An op-ed by Noah Feldman. With a new Supreme Court balance somewhere on the horizon, the end is coming for Justice Anthony Kennedy’s dominance of the court. The abortion case Whole Women’s Health v. Hellerstedt may be his swan song, and his last chance to leave a long-term impact on abortion rights. That’s hugely significant for the case that’ll be argued Wednesday. The fate of Texas’s restrictive abortion laws turns on the interpretation of the 1992 decision in Planned Parenthood v. Casey. And Casey was the case in which Kennedy first formulated the vision of autonomy and dignity that led him to become a pioneer of constitutional rights for gay people. Casey is the heart of Kennedy’s legacy -- and he’ll want to preserve it.

An op-ed by Noah Feldman. Tired of campaign lies and the lying liars who tell them? You’ll be sorry to hear that an Ohio law that prohibited false statements about a candidate for office was struck down this week by the U.S. Court of Appeals for the 6th Circuit, some 25 years after it was upheld by the same court. The decision is probably correct in light of the U.S. Supreme Court’s expansive new free-speech precedent. But it’s worth pausing to note just how far the courts have gone in protecting falsehood.

An op-ed by Noah Feldman. President Barack Obama insisted that his post to Scotusblog on Wednesday about his criteria for a U.S. Supreme Court nominee was “spoiler free.” But he may have been protesting a bit too much. Obama wrote that he sought a justice with “life experience outside the courtroom or the classroom,” which possible nominees like Judge Sri Srinivasan of the Court of Appeals for the D.C. Circuit arguably lack. Then, later in the day, someone in the administration leaked a highly untraditional candidate, Republican Governor Brian Sandoval of Nevada, who has political life experience and was also a federal district judge for four years.

An op-ed by Noah Feldman. It isn’t often that a sitting prime minister offers a lesson in comparative constitutional law. But Israel's Benjamin Netanyahu did so Monday while defending a bill that would allow three-quarters of the Knesset to expel a member who “supports terrorism by word or deed, or denies the Jewish, democratic character of the state of Israel.” Netanyahu compared the provision to the American rule that Congress may expel a member by two-thirds vote and to parliamentary rules in the U.K. and Canada that allow the expulsion of a member of Parliament for misconduct by a simple majority.

An op-ed by Noah Feldman. Who’s in charge of patent law? The answer lies in an ongoing conflict between two courts: the U.S. Court of Appeals for the Federal Circuit, which was created by Congress in 1982 and given control over the entire patent law docket, and the U.S. Supreme Court, which gets to choose which Federal Circuit cases to review and which to leave untouched.

An op-ed by Noah Feldman. Buried in the middle of President Barack Obama’s speech Tuesday on closing the military prison at Guantanamo Bay, Cuba, was a remarkable statement very close to a repudiation of the military commissions trying Khalid Sheikh Mohammed and nine other terrorists.

An op-ed by Noah Feldman. The fight over whether Apple should write new software to unlock the iPhone used by the San Bernardino, California, killer may be poised to go to Congress -- and that’s the first good news I’ve heard about the confrontation. The case raises profound matters of public policy with constitutional, domestic and international ramifications. A magistrate judge working for the federal district court isn’t the right person to decide these issues, nor would higher courts be in a good position to make wise judgments on appeal. What we need here is a law -- one that reflects, to the extent possible, the legitimate competing values in play.

An op-ed by Noah Feldman. The death of Justice Antonin Scalia and the interbranch dispute about the nomination of his successor draw attention to the U.S. Supreme Court at its most grand and important. But Monday morning, the eight justices sit down for business as usual. One case, about Veterans Affairs Department set-aside contracts, will be decided on the interpretation of a statute. It’s the kind of case that excited Scalia and that most of the other justices consider routine. The other case, Utah v. Strieff, is a little different. It’s about the legal consequences of an illegal police stop. In the era of Ferguson, no topic connected to illegal arrests can be considered unimportant.

An op-ed by Noah Feldman. I found the movie "The Hurt Locker" so evocative of Iraq that I saw it six times. Apparently the verisimilitude wasn't an accident. According to a lawsuit brought by U.S. Army Sergeant Jeffrey Sarver, the film’s bomb-defusing lead character was based on him. The film’s screenwriter, Mark Boal, was embedded with Sarver’s company in Iraq and published an article on Sarver’s life and experiences in Playboy magazine in 2005. Sarver sued Boal and the film's producers under a California rule that prohibits appropriating a public figure's likeness for commercial purposes without consent. On Wednesday, the U.S. Court of Appeals for the 9th Circuit upheld the dismissal of the bomb-disposal technician’s case on the grounds that the film's First Amendment protections trumped any claim Sarver might have to ownership of his likeness. The holding is dubious under controlling U.S. Supreme Court precedent. But it reflects a trend in appeals courts in which the freedom of speech is being used to defeat a person's claims to their image or story. The law here is changing in favor of Hollywood and against individuals.

An op-ed Noah Feldman: A Houston man, Paul Aker, was arrested last week by U.S. marshals and hauled into federal court on charges that stemmed from his failure to pay a $1,500 student loan. How could this happen in a free country? We’re used to thinking that what makes a civil case different from a criminal one is that you can’t go to jail. But that isn’t exactly true. If you fail to show up in court after you’ve been ordered to do so, the judge can issue a warrant for your arrest on contempt of court -- which is a crime. In the light of Aker’s case and the viral attention it received, it’s worth asking both why an arrest doesn’t happen more often and whether the system ought to be changed so that it can’t.

An op-ed by Noah Feldman: To the public, Justice Antonin Scalia was best known for his hard-line conservatism and his originalist constitutional thought. But to judges and lawyers, not to mention law professors, Scalia was better known for his distinctive philosophy for interpreting statutes, known as textualism. Scalia didn’t invent originalism. But he did invent textualism, at least as practiced by many judges today, and it stands as his most important contribution to legal thought. Scalia’s death at 79 is a good occasion to ask whether textualism is here to stay. My answer is a qualified yes. Although I think Scalia’s originalism is likely to fade, the basic textualist method of interpreting statutes according to the words while eschewing legislative history and purpose has a future -- because it has a past.

An op-ed by Noah Feldman: What does the U.S. Constitution really have to say about whether the Senate must put a president’s Supreme Court nominee to a vote? President Barack Obama says the Constitution “is pretty clear on what happens next”: He nominates, and the Senate says yes or no in a timely fashion. Republicans think the Constitution gives the Senate the right, not just the power, to give the president’s nominee a hearing or to refuse to do so. ... They’re both wrong. Here’s what the Constitution says about filling Supreme Court vacancies: nothing.

An op-ed by Noah Feldman:  Justice Antonin Scalia didn’t invent originalism. The credit for that on the modern Supreme Court goes to Justice Hugo Black, who developed the approach to constitutional interpretation as a liberal tool to make the states comply with the Bill of Rights. But Scalia did more to bring originalism into the conservative mainstream than any other Supreme Court justice. In fact, his role as the godfather of the conservative constitutional rebirth of the 1980s and ’90s derived from his originalist advocacy. But will Scalia’s originalist legacy last? Can the philosophy outlive the man? There is reason to doubt it -- because Scalia is literally irreplaceable, and because the younger conservative justices aren’t originalists of the same stripe.