Noah Feldman

An op-ed by Noah Feldman: Three conservative Supreme Court justices declared this month that the Constitution should be read to give state legislatures unlimited control of electoral procedures, and a fourth said the issue is important enough for the whole court to consider. That’s scary because it could eventually block even state courts from stopping partisan cheating. What’s most important about the issue, however, isn’t the remote (for now) danger that a majority of the court might make a disastrous decision that undermines democracy. It’s the new kind of reasoning that the conservatives are using to reach their preferred result.

An op-ed by Noah Feldman: The annual World Happiness Report came out on Friday and, sure enough, the usual rich Nordic and northern European countries clustered at the top. Finland and Denmark ranked as the happiest and second-happiest corners of the planet, and the top eight were all in northern Europe. Afghanistan, Lebanon and Zimbabwe brought up the rear, as war-torn and impoverished countries always do. Data for the survey, issued by the Sustainable Development Solutions Network, a United Nations affiliate, was compiled before the Feb. 24 invasion of Ukraine (No. 98) by Russia (No. 60) presumably reduced human happiness pretty much everywhere.

An op-ed by Noah Feldman: Partisan gerrymandering in the computer age has undermined majoritarian democracy — that much is clear. Using algorithms to give one party a numeric advantage over another is more effective than old-fashioned gerrymandering done by hand, and reduces the number of competitive districts for the House of Representatives. It’s equally clear that no solution to the problem is in sight. As statistical modeling becomes more sophisticated, things could conceivably even get worse. The Supreme Court flirted with ruling that partisan gerrymanders were unconstitutional, but ultimately opted against intervening. It won’t take up the issue again under the court’s current composition.

If Ketanji Brown Jackson is confirmed, she will be the first Black woman on the bench in the Supreme Court’s history. Demography is important, because the court’s perceived legitimacy will always to some degree depend on the extent to which it seems to reflect the country as a whole. Ronald Reagan recognized as much when, in 1980, he made a campaign promise to nominate the first woman to the court — a pledge motivated in part by concern that the GOP needed to recruit female voters. Biden’s promise to nominate a Black woman was meant in part to shore up the Black vote in the 2020 South Carolina primary. In both cases, the hard demands of electoral politics and more abstract notions of democratic legitimacy converged. ... Why is educational pedigree so important on the court? Should it be? In Bloomberg, Noah Feldman wrote that Jackson’s “experiences as an African American woman and as someone who had an uncle imprisoned on a drug felony will matter — as will her elite educational background.” I spoke with Feldman, a professor of law at Harvard Law School, about legitimacy, meritocracy, the Federalist Society, the role of clerkships, and how Jackson’s education matters.

An op-ed by Noah Feldman: The European-American response to Russia’s invasion of Ukraine represents a watershed in the contemporary understanding of how nation-states behave and what motivates their leaders to act. It pits two leading theories of international affairs against each other. The difference between the two theories may even explain why there is a war going on at all.

An op-ed by Noah Feldman: On a day when the world's eyes are rightly focused on a brazen challenge to the post-Cold War international order, Americans can rightly celebrate a domestic change that should make us proud: the nomination of Judge Ketanji Brown Jackson as the first Black female justice of the Supreme Court.

An op-ed by Noah Feldman: Democrats have been frustrated in their hopes to pass a comprehensive voting rights bill. But with Senator Joe Manchin of West Virginia on board, things are looking up for the most important voting rights legislation that is actually possible right now: the Electoral Count Modernization Act.

An op-ed by Noah Feldman: The conservative majority on the U.S. Supreme Court is ushering in a new era of judicial activism. But if it overturns the 1973 abortion-rights precedent Roe v. Wade, as it seems poised to do, the same majority is walking into a conceptual trap. The case against Roe rests on nearly 50 years of conservative argument that the landmark decision was the culmination of a liberal generational failure to exercise judicial restraint, of creating constitutional rights unsupported by constitutional principles. Hence the contradiction: Today’s conservative majority appears ready to issue an epoch-making decision endorsing restraint as it enters a period of aggressive activism.

An op-ed by Noah Feldman: The news on Wednesday of Justice Stephen Breyer’s retirement from the Supreme Court at the end of this blockbuster term marks an historical transition point. One of the great pragmatists in the court’s history, Breyer is the last of President Bill Clinton’s appointees to still be serving. Only Justice Clarence Thomas, appointed by President George H.W. Bush in 1991, now remains from the centrist court that sat together for longer than any other configuration of justices in history.

An op-ed by Noah Feldman: A revolution in university admissions appears to be at hand. The Supreme Court has agreed to hear two cases on affirmative action in higher education, raising the likelihood that it will strike down the practice in the near future. The only thing surprising about this development is the timing, in the same Supreme Court term that already promises blockbuster conservative judgments on abortion and guns.

 An op-ed by Noah Feldman: In the shadow of Thursday’s Supreme Court ruling against a sweeping federal vaccine mandate, another crucial legal battle is playing out: a fight about whether and how much to dismantle the regulatory apparatus of the U.S. government. The latest skirmish unfolded in a concurrence to the mandate decision by Justice Neil Gorsuch, who has emerged as the point man of an attack on existing constitutional doctrine governing administrative agencies like the Occupational Safety and Health Administration. Joined by Justices Clarence Thomas and Samuel Alito, Gorsuch seized the opportunity to advance his cause through the legal challenge to OSHA’s authority to regulate vaccine requirements.

The great divergence is rapidly expanding—and President Joe Biden’s window to reverse it is narrowing. Since the 1960s, Congress and federal courts have acted mostly to strengthen the floor of basic civil rights available to citizens in all 50 states, a pattern visible on issues from the dismantling of Jim Crow racial segregation to the right to abortion to the authorization of same-sex marriage. But now, offensives by red-state governments and GOP-appointed federal judges are poised to retrench those common standards across an array of issues. The result through the 2020s could be a dramatic erosion of common national rights and a widening gulf—a “great divergence”—between the liberties of Americans in blue states and those in red states. ... The movement toward more uniform national rights has hardly proceeded in a straight line, particularly since appointments by Republican presidents have established a conservative Court majority since the 1970s. But the expansion of rights has been the general movement of federal policy since at least the height of the civil-rights era. That trajectory included the landmark civil-rights and voting-rights acts of the mid-1960s; the approval of Title IX barring sex discrimination in higher education; and the Court decisions invalidating state bans on contraception, inter-racial marriage, and abortion, as well as the Court’s rulings establishing the principle of “one person, one vote” in redistricting. “The civil-rights movement underscored the idea that there is a baseline of rights that should be available to everybody in every state,” Noah Feldman, a constitutional scholar at Harvard Law School, told me.

Watch: Harvard law professors Randall Kennedy and Noah Feldman join Fareed to examine the conversation around critical race theory in America today.

An op-ed by Noah Feldman: Are we living in 1858 or 1968? That is, are America’s divisions so profound and political institutions so crippled that we are poised for a breakdown akin to the Civil War? Or is the current polarization the product of conflicting social forces that can be gradually reconciled or redirected into more healthy electoral competition? In this more hopeful scenario, even if we undergo 1970s-style economic malaise and the odd trauma like Watergate, we re-emerge and enter a phase of comparative national health and even greatness.

A column by Noah Feldman: If you can’t beat ’em, join ’em. That’s the spirit of the law proposed by California Governor Gavin Newsom to empower private citizens to sue anyone who makes or sells assault rifles in the state. The law violates the Second Amendment as interpreted by a federal district court in California. The idea is to circumvent the constitutional ban for a time — just as the Texas legislature has circumvented Roe v. Wade by empowering private citizens to sue abortion providers. Now that the Supreme Court has limited the abortion providers’ ability to get the Texas law frozen in protection of their constitutional rights, Newsom wants to send the message that what is sauce for the conservative goose is also sauce for the liberal gander. Beyond the legal detail, which I’ll explain in a moment, is a serious, deep question: Should liberals stoop to the level of conservatives in circumventing federal courts’ authority? Is this one of those situations where when one side is playing hardball, it’s foolish to bring a whiffle bat? Or is the Constitution in this instance an arena of principle, in which meeting constitutional disrespect with more constitutional disrespect will only erode the rule of law?

A column by Noah Feldman: As Republicans develop a strategy for the 2022 and 2024 elections, expect them to borrow at least one trick from the playbook that Glenn Youngkin used to win the 2021 Virginia governor’s race: tar Democrats with the brush of “critical race theory.” Almost no one can say exactly what CRT is, but that doesn’t seem to have mattered last month in the northern Virginia suburbs, where the Republican made inroads among Democrat-leaning voters. The attack on CRT is a proxy for a vulnerability that Republicans correctly see Democrats as having. The consciousness-raising of Black Lives Matter and a new focus on the legacy of slavery has left the party flailing. Democrats — and progressives and liberals more generally — find themselves without a coherent narrative about race in American history, or one that Americans of all races can embrace.

The Supreme Court heard arguments Wednesday in a challenge to Mississippi’s law that bans abortion after the 15th week of pregnancy. It’s the most significant abortion case in years and a direct challenge to Roe v. Wade. Plus, Stacey Abrams announces a run for Georgia governor in 2022. And, putting high gas prices in perspective. Guests: Harvard University constitutional law professor Noah Feldman and Axios' Emma Hurt and Ben Geman.

A column by Noah Feldman: Chief Justice John Roberts is searching for a compromise to preserve some basic right to abortion while moving it earlier in pregnancy, perhaps as early as 15 weeks. But based on today’s oral argument, it seems unlikely that any of the other justices is interested. Justice Brett Kavanaugh, in particular, seemed to telegraph a willingness to overturn Roe v. Wade altogether.