Noah Feldman

An op-ed by Noah Feldman. By definitively re-electing Benjamin Netanyahu, Israelis refused to go left and refused to go right. This was what Netanyahu expected when he called for early elections -- and having just won his fourth, he certainly counts as the expert. The important question now is why Israelis are sticking with the status quo when external critics from the left and internal critics from the right were hoping for a meaningful course correction. Start with the biggest headline, namely the failure of the center-left coalition led by Isaac Herzog and Tzipi Livni to eclipse support for Netanyahu’s center-right party and its far-right partners.

An op-ed by Noah Feldman. Could the Barack Obama administration really ignore an adverse Supreme Court judgment in the King v. Burwell health-care litigation, as a University of Chicago law professor has proposed? Of course not. Obeying the court only with respect to the plaintiffs in this case would be a flagrant violation of the rule of law. It would put the administration in the position of flouting the court’s authority. It would be substantially more outrageous even than the Alabama Supreme Court’s order to its probate judges to ignore a federal ruling striking down the state’s anti-gay-marriage law. For these reasons, it’s also completely unrealistic.

It was the sort of publicity you cannot buy. The day before HBO broadcast the final episode of the six-part documentary series “The Jinx,” the subject of the film, Robert A. Durst, was arrested on a murder charge. The arrest gave the impression that something dramatic would happen in the finale, and the show did not disappoint. Mr. Durst delivered what sounded a lot like an unwitting admission of guilt: “What the hell did I do?” he whispered to himself in the bathroom, apparently unaware that his microphone was still on. “Killed them all, of course.”...The formulation of the apparent confession was problematic in its own right. It was suggestive, but by no means definitive. In a column on Bloomberg View, the Harvard Law professor Noah Feldman compared it to a Shakespearean soliloquy. “Even the question-and-answer form (‘What the hell did I do? Killed them all, of course’) is reminiscent of the untrustworthy soliloquies delivered by Hamlet,” Mr. Feldman wrote. “The soliloquist asks himself the big questions while alone on stage (‘To be or not to be?’), and tries on different answers.”

California has banned state court judges from belonging to the Boy Scouts. The move extends an earlier ban on judges belonging to groups that discriminate on the basis of sexual orientation, but had an exemption for youth groups. Judges have one year to sever their ties with the Boy Scouts...Harvard Law Professor Noah Feldman says the current state of the law allows judges to belong to religious groups that discriminate but not secular organizations that discriminate. "So if the particular judicial code bans belonging to organizations that discriminate on the basis of sexual orientation, then it would make sense that the Boy Scouts would be included," he says. But Feldman predicts the U.S. Supreme Court will one day take up the question of judges' free association rights. And if that happens, Feldman thinks the court will say judges can participate in the Boy Scouts, regardless of the group's anti-gay policies.

An op-ed by Noah Feldman. If you confess to murder alone, in the bathroom, while looking into the mirror -- and wearing a microphone -- is your confession admissible in court? On the surface, this is the question raised by Robert Durst’s statement, aired Sunday night in the final episode of HBO’s “The Jinx”: “What the hell did I do? Killed them all, of course.” Answering the question requires going deeply into the law -- but also into the circumstances of the statement. At the bottom lies a profound question about fantasy versus reality, the nature of a soliloquy, and the fascinating human strangeness unleashed by the era of reality television.

An op-ed by Noah Feldman. If the devolution from Marvin Gaye to Robin Thicke doesn’t stand for the decline of Western civilization, nothing does. The Los Angeles jury that found Thicke’s “Blurred Lines” unintentionally plagiarized Gaye’s “Got to Give It Up” apparently agreed. Choosing the dead genius over the living epigone was artistically correct -- but it set a terrible legal precedent. The case turned on a deep question about of copyright law: Is the point to protect the moral rights of the original author or to maximize socially valuable artistic production? The jury went with the author. It was wrong to do so. And Pharrell Williams, the true author of Thicke’s song, can help us see why.

The trick to interviewing a justice of the Supreme Court as it prepares to issue major decisions is to ask seemingly general questions that might nonetheless elicit a preview of what is to come. Noah Feldman, a law professor at Harvard, is a master of the technique, and on Thursday night, he made vigorous use of it to see what he could learn from Justice Stephen G. Breyer in a public conversation at the 92nd Street Y in New York. But the justice proved nimble in avoiding giving much away.

An op-ed by Noah Feldman. University of Oklahoma President David Boren has expelled two members of the Sigma Alpha Epsilon fraternity on his campus for leading a horrifying racist chant. Does his decision violate their First Amendment rights? And if it does, what’s wrong with this picture, in which a public university wouldn’t be able to sanction students who not only bar blacks from their organization, but also refer to lynching in the process?

An op-ed by Noah Feldman. Does the ever-deepening public conflict between state and federal courts in Alabama serve or hinder the cause of gay marriage nationally? This difficult question faces federal District Judge Callie Granade, who must now choose the next move in her legal chess match with the Alabama Supreme Court. Her answer will affect more than the gay couples who want to marry in Alabama between now and when the U.S. Supreme Court decides the issue in late June. It may affect the nature of the Constitution itself.

An op-ed by Noah Feldman. The U.S. Court of Appeals for the D.C. Circuit is often called the second highest court in the land, because its judges decide most of the important cases involving the vast reach of the modern administrative state. Every so often, however, the U.S. Supreme Court likes to remind the D.C. Circuit who’s the boss by reversing one of its administrative law principles. That happened Monday, in a 9-0 decision in which the court repudiated a perfectly serviceable doctrine the D.C. Circuit invented and has used sensibly since 1997. The decision won’t make headlines -- but it’s wrong anyway, and it gives far too much power to administrative agencies.

Last week’s oral arguments in King v. Burwell suggest that the United States Supreme Court will uphold the Affordable Care Act, according to several Harvard Law School professors...“I would say for people who hoped that the Court would permit the subsidies to be paid, it was a very encouraging oral argument,” said Richard H. Fallon, a law school professor...In particular, professors said Kennedy’s line of questioning suggests that he could vote to uphold the ACA. Einer R. Elhauge, a professor at the Law School, said it seemed “very likely” that Kennedy would vote to uphold the law as it exists now, providing the required fifth vote...Noah R. Feldman ’92, another professor at the Law School, also identified Kennedy as a potential vote in favor of the Obama Administration. “The clear news was that Justice Kennedy is thinking seriously about a problem with the challengers’ interpretation,” he said...For his part, University Professor Laurence H. Tribe ’62 predicted a 6-3 decision in favor of upholding the ACA.

An op-ed by Noah Feldman: Beyond the technicalities of guns to the head and standing, a profound issue lies at the heart of the King v. Burwell case that the U.S. Supreme Court heard Wednesday -- and for a few shining moments, the justices debated it. That question can actually be put rather simply: What should happen when Congress writes a law with some internal incoherence? Should the courts assign a sensible meaning to the statute that makes everything come out right? Or should they follow the strict words of the law, and let the chips fall where they may? To be sure, the liberal justices don’t want that to be the issue. Neither does Solicitor General Don Verrilli, and neither do the liberal law professors who want Obamacare to survive. All of them are clinging to the fiction that the text of the statute produces the conclusion they want. That view was on display as Verrilli doggedly insisted that the words “established by the state” don’t literally mean what they say, but rather mean “established by the state -- or by the federal government on its behalf.”

An op-ed by Noah Feldman: Justice Ruth Bader Ginsburg opened the King v. Burwell argument Wednesday in the U.S. Supreme Court by asking whether the challengers are actually being injured by the Affordable Care Act and have standing to bring the case. Then something weird happened. Even though the lawyer for the challengers couldn’t definitively say his clients had standing, Solicitor General Don Verrilli seemed not to want the court to dismiss the challenge to Obamacare on that ground. Indeed, he bent over backward to say that silence from the challengers’ lawyer would suffice to infer that at least one of the four challengers was actually injured and that the case could proceed. What gives? Ordinarily, if you were representing the side with the most to lose in a case, and there was some meaningful chance of defeat, you’d jump at the opportunity to make the case go away. The lawyer seeks victory in the case before him. The grounds of the decision come second.

An op-ed by Noah Feldman: Three years ago, in the first Affordable Care Act case before the U.S. Supreme Court, Chief Justice John Roberts invented a legal doctrine that he memorably called the “gun to the head.” During oral arguments on Wednesday in the second ACA case, Justice Anthony Kennedy aimed the gun at Roberts. Roberts originally used the doctrine to gut the ACA’s extension of Medicare to unwilling states. Kennedy, by contrast, used it to try to pressure Roberts to save Obamacare by suggesting that Congress couldn’t lawfully deny tax subsidies to states that failed to create their own insurance exchanges.

An op-ed by Noah Feldman. The U.S. Supreme Court gave Amazon.com and other direct marketing retailers a victory today with one hand -- then used the other hand to take it back. Formally, in Direct Marketing Association v. Brohl, the court unanimously reinstated a lawsuit brought by a direct retailer to block a Colorado law requiring them to notify the state about purchases that fall under Colorado’s sales or use tax. That much was a win for the direct shippers. But in a nonbinding message, the court strongly hinted that the appeals court should block the suit on different grounds than it used the first time -- which would give the victory back to Colorado.

An op-ed by Noah Feldman. To the Founding Fathers, democracy was a dirty word. What James Madison and his colleagues wanted was a republic -- defined in terms of representative government, not government directly by the public. “We the People” ordained the Constitution -- but we the people were never supposed to govern directly, or heavens knew what trouble we might get into. The U.S. Supreme Court on Monday will consider the question of whether to take the Framers’ anti-democratic instincts seriously. At issue is how Arizona shapes the districts for elections to Congress.

An op-ed by Noah Feldman. I caution my students against seeing the U.S. Supreme Court's conservative justices as antiquarians, eager to take our jurisprudence back to the 18th or 19th centuries. Whatever guise originalism wears, it’s an evolving and, in many ways, forward-looking way of seeing the world. But every so often there's an opinion that conforms to the stereotype. Justice Samuel Alito issued such an opinion Wednesday in an otherwise obscure case about -- not joking -- teeth-whitening in North Carolina.

An op-ed by Noah Feldman. The congressional battle over net neutrality may be over, and the Federal Communications Commission has voted to regulate the Internet as a public utility. But that just means the fight over net neutrality will likely move back to the courts. And this time, expect the First Amendment to be front and center. Thus far, legal battles surrounding net neutrality have focused on the FCC’s authority to regulate. Now that the political process has established a statutory responsibility, opponents of net neutrality -- primarily Internet service providers -- need a constitutional argument to ask the courts to reverse the result.

An op-ed by Noah Feldman. What does a red grouper have to do with the Affordable Care Act? Maybe a lot. The U.S. Supreme Court ruled Wednesday on a quirky case in which it had to decide whether the fish counted as a “tangible object” under the Sarbanes-Oxley Act. The decision broke down in a particularly strange way across the usual liberal-conservative lines. Reading the tea leaves -- or maybe the fish entrails -- it's possible to get some clues about how the court will interpret the ACA in the major case it will hear March 4...the dissent in the case was written not by Justice Antonin Scalia, the king of textualists, but by Justice Elena Kagan, the outlying liberal. In her punchy dissent that could almost be called Scalian, she cited the Dr. Seuss classic, “One Fish, Two Fish, Red Fish, Blue Fish” to show that a fish was indeed a tangible object. And she dismissed Alito’s use of an old canon involving a “game of Mad Libs.”

An op-ed by Noah Feldman. Could the U.S. Supreme Court allow the Affordable Care Act to survive its latest legal challenge because the plaintiffs in the case before it haven’t been injured by the law? It’s possible. The more probable result is still that the court will reach a decision on the merits of the case and eliminate the insurance subsidies necessary to make the law work in many states. But if Chief Justice John Roberts wants to avoid the criticism that the Roberts court is the most activist conservative court in history, he could plausibly use the standing argument to avoid a decision -- especially if he could get cover from the archconservative Justice Antonin Scalia, who more or less invented the constitutional doctrine of standing in a 1992 case argued successfully by -- you guessed it -- then-Deputy Solicitor General John Roberts.

An op-ed by Noah Feldman. Can New York City bar religious worship in its school buildings? This very basic question about the First Amendment has been hotly contested in the courts for years -- and the U.S. Supreme Court is expected to announce Monday whether it will take the case. If it does, as I expect it will, the case will probably be a landmark in constitutional law. It poses perfectly the tension between the free exercise of religion on the one hand and the nonestablishment of religion on the other. Getting it right won't be easy for the court, because there's no one right answer.