Noah Feldman

An op-ed by Noah Feldman: The leaked draft of a majority Supreme Court decision by Justice Samuel Alito overturning Roe v. Wade means several things. First, it indicates that in the justices’ private conference, at least five members of the court voted to reverse the 1973 abortion precedent. They aren’t bound by that vote, which they can change up to the day the final opinion is released. Almost all first drafts undergo significant revision based on discussion and debate among the justices. So the second point to make is that Roe isn’t yet overturned, though it very likely will be.

An op-ed by Noah Feldman: I feel bad for anyone not steeped in establishment clause jurisprudence who happened to listen to the Supreme Court’s oral arguments in the football coach prayer case, Kennedy v. Bremerton School District. On the surface, the question is simple: Can the public high school coach kneel and pray silently on the 50-yard line after games? But the doctrine the court has created over the years is so complicated and confused that you would be hard-pressed to make any sense of the debates without a law school course on the First Amendment under your belt.

An op-ed by Noah Feldman: I feel bad for anyone not steeped in establishment clause jurisprudence who happened to listen to the Supreme Court’s oral arguments in the football coach prayer case, Kennedy v. Bremerton School District. On the surface, the question is simple: Can the public high school coach kneel and pray silently on the 50-yard line after games? But the doctrine the court has created over the years is so complicated and confused that you would be hard-pressed to make any sense of the debates without a law school course on the First Amendment under your belt.

An op-ed by Noah Feldman: Among the weird things in Elon Musk’s recent TED interview was how blatantly he appeared to violate the terms of a settlement agreement he reached with the Securities and Exchange Commission in 2018. At issue was his claim that he had the financing to take Tesla private. “Funding was actually secured,” he assured TED chief Chris Anderson.

An op-ed by Noah Feldman: Even before the Supreme Court reverses Roe v. Wade, as most court watchers expect it to do this June, the legal battle about the aftermath of the decision is getting underway. By far the most consequential aspect of the fight is likely to be about state attempts to regulate medical abortions using the drug mifepristone. For pro-choice advocates, mifepristone represents the only cost-effective workaround for women who want to end unwanted pregnancies but who live in the 25 or more states that will ban abortion after Roe is overturned. Some people have the means to travel out of state for surgical abortions. And, with enough financial support, some national organizations might be able to help pay the way for those who cannot afford the trip and the surgery.

An op-ed by Noah Feldman: We live in a world where the Supreme Court is poised to give conservatives huge wins on abortion, guns and affirmative action. The popular passions over those issues make it hard to interest the general public in the conservative majority’s far more subtle and gradual efforts to change the way the court does its business by essentially deciding cases that are still before the lower courts. Yet that change matters. It tells you a lot about how the conservative majority is thinking about the next few years and its strategy to change the direction of the law beyond the big-ticket cases that make headlines.

An op-ed by Noah Feldman: If colleges still thought there was little risk in taking up their students’ causes, they should reconsider in light of what has happened to Oberlin College. An Ohio appeals court has upheld $30 million-plus in damages in a lawsuit against the school brought by a local bakery that was accused of a history of racial profiling. The case has gotten lots of attention as a touchstone in the culture wars and because of the free expression issues surrounding it. Although the case could still be appealed to the Ohio Supreme Court — and even conceivably to the U.S. Supreme Court — it is now possible to derive some hardheaded lessons from the process thus far. For one thing, universities need to be extremely careful about how they interact with student protests if they want to avoid being held liable for their students’ words and actions.

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.