Noah Feldman

An op-ed by Noah Feldman: This one is for the ages. Justice Anthony Kennedy's opinion for the U.S. Supreme Court announcing a right to gay marriage in Obergefell v. Hodges will take its place alongside Brown v. Board of Education and Loving v. Virginia in the pantheon of great liberal opinions. The only tragic contrast with those landmarks in the history of equality is that both of those were decided unanimously. Friday's gay-rights opinion went 5-4, with each of the court's conservative justices writing a dissent of his own. Eventually, legal equality for gay people will seem just as automatic and natural as legal equality for blacks. But history will recall that when decided, Obergefell didn't reflect national consensus, much less the consensus of the court itself.

An op-ed by Noah Feldman. Justice Anthony Kennedy continues to surprise. The swing justice wrote an important liberal opinion, holding Thursday for a 5-4 court that the Fair Housing Act prohibits not only intentional discrimination, but also policy decisions that discriminate by having a disparate impact on minorities.

An op-ed by Noah Feldman. It’s good news that the Obama administration has announced it won’t prosecute families of hostages who seek to pay ransom to terrorist kidnappers, as families and commentators have urged. In the future, families will be able to undergo the agonizing process of trying to get their loved ones back without knowing that the U.S. government is actively interfering with their efforts. The adoption of the new, more humane policy, however, is also occasion to remind ourselves of the social costs of too much public handwringing over the fate of American hostages.

An op-ed by Noah Feldman. The Spider-Man franchise has been rebooted many times since Stan Lee and Steve Ditko invented the superhero in 1962. But the Spider-Man tradition reached a new peak Monday when the web-spinner became the centerpiece of a U.S. Supreme Court decision about, of all things, tradition, specifically the use of precedent in the court's opinions. Justice Elena Kagan, writing for a 6-3 majority, sprinkled in clever Spider-Man references, enhancing her reputation as the funniest justice in writing. But the subject of precedent is in fact as serious as a radioactive spider bite -- and just as basic to the Supreme Court’s foundation myth as Peter Parker’s bite is to Spider-Man’s.

An op-ed by Noah Feldman. “Lemme see your register.” Can’t you just hear the tough cop asking the hotel desk clerk that question in every noir film you’ve ever seen? As of Monday, the question is now unconstitutional, and the hotel doesn’t have to show its list of guests unless the police have a warrant. The case even came out of Los Angeles, home of the film noir tradition.

An op-ed by Noah Feldman. What determines whether the police have used excessive force on a detainee: the officers’ beliefs about their own actions or the assessment of a reasonable observer? It’s hard to imagine a more important question after the events of the past year in Ferguson, North Charleston and Staten Island -- and on Monday the U.S. Supreme Court held in favor of the objective observer, not the subjective mindset of the officers.

An op-ed by Noah Feldman. Chief Justice John Roberts just saved the Affordable Care Act -- again. If you’re feeling déjà vu, you’re not alone. As he did in 2012, Roberts defected from his conservative colleagues and joined the court’s liberals in refusing to send Obamacare into a death-spiral. In King v. Burwell, Roberts has now cemented his reputation as a true believer in judicial restraint -- perhaps as the only justice who still believes in it. And this time, he was given cover by Justice Anthony Kennedy, making the vote 6-3.

Noah Feldman, the Felix Frankfurter Professor of Law at Harvard Law School, explains to WGBH Morning Edition host Bob Seay, the inner-workings of the U.S. Supreme Court on the day the court issued its decision on the Affordable Care Act.

An op-ed by Noah Feldman. The Supreme Court reversed one death penalty sentence Thursday while upholding another. Both decisions were 5-4, and eight of the justices voted consistently in the two cases, either for capital punishment or against it. The swing voter, in the majority both times, was -- you guessed it -- Justice Anthony Kennedy. The result is a continuation of the court’s positively contradictory death jurisprudence -- which reflects, come to think of it, our collective national inconsistency on the topic.

An op-ed by Noah Feldman. One of the hardest distinctions for students of the First Amendment is the one between content-based speech regulation and viewpoint-based regulation. It’s not the students’ fault: The U.S. Supreme Court’s own doctrine has been maddeningly vague about when and why government regulation of speech triggers the “strict scrutiny” of the court that is usually fatal to such regulation. Is the problem that the government is choosing what to regulate based on its content? Or is the real problem that the government wants to favor one viewpoint over others?

An op-ed by Noah Feldman. When was the last time Justice Clarence Thomas provided the decisive fifth vote to the U.S. Supreme Court’s four liberals -- to decide against free speech? I can’t think of one, but that’s what happened Thursday in the court’s decision in Walker v. Sons of Confederate Veterans, better known as the Texas license plate case.

An op-ed by Noah Feldman. The U.S. Supreme Court just made it much easier to prosecute child abusers. In principle, that’s a good thing. But it came at the expense of weakening the constitutional right to confront your accuser in court -- and that’s unfortunate. In a fascinating twist, the court’s aggressive opinion, by Justice Samuel Alito, brought out the ire of Justice Antonin Scalia, revealing the growing split between the old-line conservative and his younger counterpart, the man who was once humorously nicknamed “Scalito.”

An op-ed by Noah Feldman. Is an Uber driver an employee, as the California Labor Commission has ruled, or an independent contractor, as Uber maintains? You don’t have to be a lawyer to have an opinion, and now that school’s out, I asked two associates who happened to be with me as I was reading the labor commissioner’s decision. The 8-year-old said that Uber isn’t supervising the driver, so Uber isn’t the employer. The 9-year-old said Uber can fire the driver if the driver’s rating gets too low, which sounded more like Uber was the boss.

An op-ed by Noah Feldman. House Democrats who’ve been interfering with President Barack Obama’s ability to negotiate the Trans-Pacific Partnership are missing something very important: The trade deal isn’t primarily significant because of the economy. It matters because it’s part of the broader American geostrategic goal of containing China -- which pointedly hasn’t been invited to join the TPP. In the new cool war, China’s rising economic influence is giving it greater geopolitical power in Asia. The TPP is, above all, an effort to push back on China’s powerful trade relationships to reduce its political clout. By weakening Obama’s ability to pursue it, congressional Democrats are unintentionally weakening the U.S. side in the cool war.

An op-ed by Noah Feldman. Deposed Egyptian President Mohamed Mursi has been sentenced to death on trumped up charges. Will he be executed? The most likely answer is that, under guidance from President Abdel-Fattah El-Sisi, an appeals court will commute the sentence to life in prison.

It is relatively unsplashy, as these things go — not very long, not very elegantly written, just 3,500 or so words of Medieval Latin crammed illegibly onto a single page of parchment. But Magna Carta, presented by 40 indignant English barons to their treacherous king in the 13th century, has endured ever since as perhaps the world’s first and best declaration of the rule of law, a thrilling instance of a people’s limiting a ruler’s power by demanding rights for themselves...“It’s a mistake to think that a document’s importance can be measured solely by the immediate context in which it’s produced,” said Noah Feldman, a professor at Harvard Law School. Magna Carta’s resonance, he continued, “doesn’t rest on what King John and those particular barons were doing at that particular time, but on the length of the legacy in using and interpreting and holding up this document as a banner for the rule of law.” Scholars who say that the claims for Magna Carta are exaggerated, he added, are merely following academic fashion. “Among historians it’s the cool thing to say,” he said. “It’s precisely from the capacity it’s had over this 800-year period of functioning as a rallying cry, a symbol, an ideal of the rule of the law that it’s important,” Dr. Feldman said. “No other document in world history has been able to function in so many times and places as the epitome of that ideal.”

An op-ed by Noah Feldman. North Carolina just passed a law that allows magistrates to refuse to perform gay marriages -- or any others -- if the marriages violate their religious beliefs. It’s a terrible idea, of course, allowing public employees to skip out on their official obligations based on their private beliefs. But is it unconstitutional? And if so, why?

An op-ed by Noah Feldman. The U.K. government made headlines last week by withdrawing a terrorism prosecution against a Filipino-Swede who had fought for an al-Qaeda affiliate in Syria. It’s unclear what’ll happen to him now. It’s politically unlikely but, in principle, he could actually be sent to the U.S. for trial. He wouldn't be the first European jihadi to land in the Southern District of New York; two Somali-Swedes and a Somali who had been a British subject recently pleaded guilty to terrorism charges. That they’d never been to the U.S until the FBI brought them here couldn't stop the prosecution. It turns out U.S. law is distinctly well-suited to prosecuting jihadis -- and that’s making us into a clearinghouse for minor fighters whose European countries of citizenship can’t or won’t put them behind bars.

An op-ed by Noah Feldman. In the wake of the decision by the U.S. Court of Appeals for the Fifth Circuit upholding a Texas law that would close many of the state’s abortion clinics because they don’t comply with new regulations, you might be thinking that the conservative court’s decision can’t possibly survive Supreme Court review. Think again.

An op-ed by Noah Feldman. The Ohio law being used by community leaders in Cleveland to seek prosecution of police officers involved in the fatal shooting of 12-year-old Tamir Rice is highly unusual: It allows any citizen to petition a magistrate or judge to initiate prosecution, instead of relying on the usual process where the decision is up to a professional, in this case the Cuyahoga County prosecutor. Although very few states have such laws, they may be useful in situations where the prosecutors are compromised -- for example, by an ongoing relationship with the police force. But the Ohio law is also, in a way, a throwback to a time before prosecutors -- and before police.