Noah Feldman

An op-ed by Noah Feldman. The expansion of Islamic State’s franchise into parts of Libya is horrifying, as the beheading of 21 Egyptian Coptic laborers shows. It’s also frightening for a different reason. The essence of the Islamic State brand is the assertion of sovereign control over territory. Until now, Libya’s post-revolutionary problem has been fragmentation. The emergence of Islamic State there suggests that over time, Libya's problem could become the opposite: Islamic State might create a unifying umbrella that would subject large parts of the country to its dangerous brand of control.

An op-ed by Noah Feldman. If you were about to lose your kids to a legal guardian who wasn't you, what rights would you have? You’d think this would be a question of pressing national importance. But when the Massachusetts Supreme Judicial Court guaranteed parents the right to a lawyer in a guardianship proceeding this week, only a local paper noticed. I wouldn't have known about this fascinating case except that it was brought, argued and won by a particularly brilliant former student of mine at New York University School of Law who has devoted her career to representing the indigent. The case is crucially important because it deals with a fundamental problem in child welfare law: who gets to take guardianship of children in troubled situations, and why.

An op-ed by Noah Feldman. A federal district judge in Alabama has struck back against state Supreme Court Justice Roy Moore. The latest development in the conflict between state and federal authority over gay marriage is an order Thursday by federal Judge Callie Granade requiring one particular state probate judge not to refuse marriage licenses to same-sex couples, as he had been doing on the basis of an order from Moore. Yet the struggle may not be over. The federal judge's order seems definitive with respect to that one probate judge, Don Davis, in Mobile County. But if the logic of Moore's position were to be followed, that judge could appeal to the U.S. Court of Appeals. And other probate judges, who aren't named in the order, could claim that the order doesn't bind them.

An op-ed by Noah Feldman. Does President Barack Obama's proposed authorization for the war against Islamic State go too far or not far enough? This should be a simple question, but it isn't. Legally, the proposal has the effect of mildly extending presidential power to fight Islamic State, not limiting it. Politically, however, it imposes some real-world constraints that weren't there before. The proposal therefore has something for everyone -- but it also gives everyone something to criticize.

An op-ed by Noah Feldman. Should the U.S. arm Ukraine for its fight against Russian President Vladimir Putin? Before you say “Duh,” consider this: Arms shipments alone are almost never enough to enable a smaller, weaker actor to defeat a big-time power. If the U.S. commits itself to sending arms to Ukraine, it’s signing up for more than military aid. When Ukraine needs more help, America’s credibility will be on the line -- and pressure will be great to escalate even to the point of air support.

An op-ed by Noah Feldman. An outright confrontation between the state of Alabama and the U.S. Supreme Court on the question of gay marriage has come two steps closer in the past 24 hours. Last night, Roy Moore, the renegade Alabama chief justice, ordered the state probate judges who supervise all marriages to deny licenses to same-sex couples. This morning, the U.S. Supreme Court refused to grant a stay that would have delayed a direct conflict between Moore's order and that of the federal district court that has declared Alabama's prohibition of gay marriage unconstitutional. As of now, a federal court order effectively requires Alabama judges to issue marriage licenses -- while the chief justice of the state Supreme Court has ordered them not to do it.

An op-ed by Noah Feldman. Jordan’s King Abdullah II was in battle gear last week, quoting Clint Eastwood and bombing Islamic State targets in retaliation for the horrific burning-alive of a Jordanian pilot. Is this a sign that Jordan is entering the war against the insurgent group in earnest, or is it a temporary show for a stunned Jordanian public? The complicated reality is that Jordan and Islamic State are enmeshed in an extended, dynamic, repeat-play game in which the rules are just now being set.

An op-ed by Noah Feldman. Why has Greece chosen a far-left government at a time when discontented and frustrated voters elsewhere in Europe have turned to the far right? In northern Europe, the frustrated voters’ parties of choice are right wing and anti-immigrant. So how come frustrated Greeks made a sharp turn to the left, electing the near-communist Syriza party to lead the government? The choice of left over right is especially striking because Greece is a first port of call for so many new immigrants to Europe.

An op-ed by Noah Feldman. Maybe you remember Roy Moore? He’s the chief justice of Alabama who, in 2001, ordered the erection of a 5,200 pound granite copy of the Ten Commandments in the rotunda of the Alabama Supreme Court -- then refused to remove it in 2003 after a federal court ruled it unconstitutional. On Tuesday, while the Northeast was covered in snow, Moore was at it again. He sent the Alabama governor a letter asserting that Alabama judges aren’t bound by the federal district court decision requiring issuance of marriage licenses to same-sex couples in the state. Moore’s idiosyncratic view isn’t completely crazy -- but it is dangerously wrong. And it’s especially important to show why it’s wrong, because Southern states’ rights fundamentalism has a long and bad history of challenging federal constitutional decisions in the context of segregation.

An op-ed by Noah Feldman. Syrian and Iraqi Kurdish forces say that, with the help of three months of U.S. airstrikes, they’ve retaken the town of Kobani on the Syria-Turkey border from Islamic State. This success doesn’t change the basic strategic calculus of the war on the insurgent group: The fight for Kobani was always more about symbolism than military advantage. But the victory, if you can call it that, carries three lessons about how the conflict with Islamic State is going -- and how it can and cannot be affected by the use of force. The first and most important lesson is that airstrikes alone can’t retake territory from Islamic State.

An op-ed by Noah Feldman. The news that California will ban its judges from participation in the Boy Scouts has been on my mind since it was announced Friday. The decision is interesting on many levels, with implications from the mainstreaming of gay rights to the centrality of scouting to Mormonism and beyond. But the angle that’s been gnawing at me is constitutional: How, exactly, can the state code of judicial conduct prohibit judges from exercising what would otherwise be their constitutional right to free association? You and I can join any private organization we want. Why can’t judges?

An op-ed by Noah Feldman. Every so often when you’re watching a Supreme Court oral argument, you wish desperately that you could hit the pause button, take the lawyer aside and explain exactly what the lawyer should be saying in order to win the case -- and then hit play again. Reading the transcript of yesterday’s argument in Rodriguez v. U.S., a case about the permissibility of bringing a dog to sniff the car after a traffic stop, I had that feeling in spades. The lawyer for the petitioner, Dennys Rodriguez, was Shannon P. O’Connor, the first assistant federal public defender in Omaha, Nebraska. Sometimes the justices take it easy on a lawyer who isn’t part of the elite Supreme Court bar. This was not one of those times. Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Anthony Kennedy whipsawed O’Connor. Justice Sonia Sotomayor tried to help him out, at times literally giving him the answer he needed.

An op-ed by Noah Feldman. American commentators were quick to dismiss Paris Mayor Anne Hidalgo’s threat to sue Fox News over its false and mistaken claims that certain areas of the city were “no-go zones” for non-Muslims. It’s true that Fox News doesn’t broadcast in France, and also true that in the U.S. a municipality ordinarily can’t sue for defamation. But these objections are really beside the point of the threatened suit: How should the news media be policed to stop them from making stuff up? If you think the answer is always “more speech,” think again. The U.S. system has always recognized a role for the courts -- and common sense suggests that, sometimes, the threat of liability might actually be necessary to make the system work.

An op-ed by Noah Feldman. The U.S. Supreme Court struck a blow for whistle-blowers today -- but it had to resort to extreme formalism to do it. By a 7-2 vote, the court reinstated a disgruntled Transportation Security Administration employee who was fired for telling MSNBC about plans to get air marshals off overnight flights from Las Vegas. Instead of issuing a ringing defense of free speech, the court held in Department of Homeland Security v. MacLean that the disclosure wasn’t prohibited by law, only by an internal TSA regulation. Reaching that conclusion demanded the court to read the relevant laws literally. Justices Sonia Sotomayor and Anthony Kennedy both dissented -- a weird arrangement that raises interesting possibilities for the Obamacare case the court will decide later this year.

An op-ed by Noah Feldman. Judicial elections are idiotic -- but 38 states have them in some form. The U.S. Supreme Court grappled yesterday with the contradiction inherent in using the electoral process to select public officials whose primary obligation is to be impartial. The precise question was whether a Florida rule that prohibits candidates for judicial office from personally soliciting campaign money violates the First Amendment. But the justices were really confronting was what to do about the strange phenomenon of judicial elections, a problem that goes to the essence of how the justices understand their own role. Unfortunately, their sense of judicial self runs headlong into their conception of the First Amendment.

An op-ed by Noah Feldman. On the surface, there was not much noteworthy about the U.S. Supreme Court's decision today in Holt v. Hobbs except maybe that a Muslim won a religious liberty case in the infidel West. The Arkansas prison regulation that prohibited prisoners from growing beards was silly. The court applied the federal Religious Land Use and Institutionalized Persons Act to hold that Arkansas didn't have a compelling interest in the rule and failed to adopt the least restrictive means necessary to avoid a religious burden. Deep in the weeds of the decision, however, lurk signs of a much bigger project being pursued by Justice Samuel Alito and other members of the court. Step by step, the justices are expanding the logic of religious exemptions from otherwise neutral laws. Over time, this is leading to a de facto reversal of the Supreme Court's doctrine that ordinarily denies religious exemptions under the Constitution.

An op-ed by Noah Feldman. It’s the eve of the U.S. invasion of Havana -- and it’s legal to bring back cigars now. But souvenirs aside, is anything changing in Cuba after the U.S.'s diplomatic opening and Cuba's release of 53 political prisoners? I spent the last four days in Havana, fortuitously arriving the day the new U.S. regulations kicked in. On the basis of thoroughly unsystematic conversations with Cuban-Americans who do business there, government officials and artists, the answer is: not yet.

An op-ed by Noah Feldman. The Affordable Care Act challenge that the U.S. Supreme Court will consider later this year, and presumably decide in June, could be the biggest case of the year. It will definitely be the most important statutory interpretation case in a long time. It's tempting, therefore, to depict it as a battle royale between the two leading theories of statutory interpretation that have been fighting it out at the court for the last two decades, known to cognoscenti as textualism and purposivism. I've certainly tended to see it that way, and in a column this week I suggested that two textualist statutory interpretation decisions written by Justice Antonin Scalia might provide a preview of what's coming.

An op-ed by Noah Feldman. The Washington Redskins finished the season well out of the National Football League playoffs -- but the court case involving the trademark on the team's name and logo won't go away. The Department of Justice has announced that it will intervene in the latest iteration of the suit, in which the Redskins are challenging a decision by the U.S. Patent and Trademark Office denying them trademark registration. The Justice Department's intervention is significant. The government is defending the constitutionality of the provision of the Lanham Act that denies registration for disparaging marks. That suggests the Justice Department thinks the arguments for the unconstitutionality of the law are serious enough to warrant a response. In turn, this raises a question about the meaning of the First Amendment and its application to racial hate speech -- a topic of global significance after the Charlie Hebdo attack last week in Paris.

An op-ed by Noah Feldman. Moones Mellouli is getting his day before the U.S. Supreme Court -- and the issue, believe it or not, is a sock. Specifically, the sock in which Mellouli was holding four tabs of Adderall after he was arrested and accused of driving under the influence. Mellouli, a Tunisia native who had become a permanent U.S. resident, pleaded guilty to misdemeanor possession of drug paraphernalia: not a bong or a works but a sock. Then the Department of Homeland Security went to court to get him deported.

An op-ed by Noah Feldman. Justice Antonin Scalia was missing from the bench this morning when the U.S. Supreme Court handed down two statutory interpretation cases -- apparently he was stuck in traffic. But even in his physical absence, Scalia’s presence was looming. It’s not only that he wrote both of the opinions, each decided by a unanimous court. It's that both opinions reflect his approach of “textualism” -- a form of literal legal interpretation that has become his most distinctive contribution to U.S. law. And that in turn provides a strong indication that the Supreme Court will use the same technique later this year to reach a ruling that effectively puts an end to the Affordable Care Act.