Media Mentions

Jeannie Suk Gersen is the John H. Watson, Jr. Professor of Law at Harvard Law School and a contributing writer at The New Yorker. She writes widely about the law and its impact on society. In this week’s conversation, Jeannie Suk Gersen and Yascha Mounk discuss the value of robust debate in law school classrooms, the perils of eroding due process in the name of progress, and the legitimacy of the Supreme Court.

A group consisting of seven US state treasurers has written to Unilever urging the company to override Ben & Jerry’s boycott of Judea and Samaria. The treasurers, from Arizona, Idaho, Nebraska, Oklahoma, West Virginia, Louisiana and Mississippi, said that as it was their responsibility to manage the assets of their states in accordance with the law, they were requesting “further clarification” on the company’s ability to override the boycott put in place by their subsidiary Ben & Jerry’s. ... “Key legal experts have recently attested to Unilever’s authority and discretion after reviewing Ben & Jerry’s acquisition agreement,” the treasurers went on to say. “In their joint Newsweek article, Jesse Fried and David Webber, law professors at Harvard and Boston University respectively, clarified Unilever and Ben & Jerry’s joint liabilities pursuant to that agreement. They noted that Unilever’s acquisition of Ben & Jerry’s ‘specifically requires the latter to ‘help Unilever sell the premium ice cream in Israel.”

Mark Meadows, President Donald Trump’s chief of staff during the Jan. 6 Capitol invasion, failed to appear before a Wednesday hearing of the House committee investigating the insurrection, leading the committee to move toward holding Mr. Meadows in contempt of Congress. The former chief of staff — who also previously served in the House — responded by suing Speaker Nancy Pelosi (D-Calif.) and the Jan. 6 committee members, claiming a categorical (and legally unfounded) “immunity of present and former senior White House aides from being compelled to appear before Congress.” Opinions to start the day, in your inbox. Sign up. In defying the legitimate demands of a congressional committee, he joins former Trump adviser Stephen K. Bannon and the other Trump acolytes who have resisted telling the panel what they know. This defiance cannot stand. Mr. Meadows and Mr. Bannon claim they need not testify, citing executive privilege. But, as Peter Keisler, Stuart Gerson and Alan Raul observed in a Post op-ed, it is the current president’s prerogative — not Mr. Trump’s — to protect the interests of the executive branch, which include preserving the president’s ability to consult advisers without congressional intrusion. President Biden declined to assert executive privilege to prevent their appearance before Congress.

An op-ed by Elena Chachko, the inaugural Rappaport Fellow and an SJD candidate at Harvard Law School: During the chaotic withdrawal from Afghanistan this summer, U.S. policymakers had to decide whether to formally recognize the Taliban as the new Afghan government. But the first policymakers to address this question publicly were not government officials. They were trust and safety and public policy executives within major tech platforms Facebook (now Meta), Google and Twitter. Their seemingly minor decision whether to allow the Taliban to use official Afghan government accounts would have major effects, similar to state recognition. If they decided to let the Taliban communicate with the Afghan people through official channels, they would imbue the Taliban with legitimacy. Ultimately, platforms decided to continue banning Taliban content. This is but one example of what I call platforms’ geopolitical turn. Since 2016, major platforms have become increasingly engaged in a plethora of security and geopolitical challenges that were traditionally the state’s domain.

An op-ed by David A. Lax and James K. Sebenius, respectively a distinguished fellow and director of the Harvard Negotiation Project at the Program on Negotiation: With battles looming over money, free agency, expanded playoffs, rule changes, and other issues, Major League Baseball owners “locked out” the players two minutes after the current Collective Bargaining Agreement (CBA) expired on Dec. 1. After 26 years of labor peace, there will be no contact between teams and players, no trades or free agent signings, and no season until a deal is reached. Odds are that the two sides will grind out a compromise before the regular season starts on March 31, 2022. But the raw emotions underlying these talks can escalate, damaging players, owners, fans, hot dog vendors, nearby restaurant and bar workers, as well as municipalities. And current negotiations have begun under the shadow of last year’s ugly owner-player talks during COVID, which only concluded when Commissioner Rob Manfred unilaterally imposed a 60-game season, dramatically cutting incomes.

During a recent Supreme Court hearing, Justice Brett Kavanaugh advanced this case for reversing precedent and canceling a woman’s right to make critical health decisions for herself: “The Constitution is neither pro-life nor pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process.” On the surface, that sounds fair. In a democracy, let “the people” decide what the law should be. But Kavanaugh’s argument is deeply disingenuous, and he profoundly misreads the nature of America’s political tradition. In our system, when a right is deemed fundamental, it cannot be abrogated by a popular vote. The founders created a network of checks and balances — especially the federal courts — to protect the rights of individuals, even when they are unpopular. As Harvard law professor Jeannie Suk Gersen wrote in The New Yorker: “The point of a fundamental constitutional right is that it shouldn’t be at the people’s mercy, particularly when the composition of the Court itself has been shifted through political means for this purpose.”

Abortion has been discussed intensely this past week due to oral arguments in a Supreme Court case that could significantly alter the constitutional right to the procedure in the United States. At issue is a Mississippi law that bans abortions after 15 weeks of pregnancy, contra current precedent. If upheld, the law will likely inspire new abortion restrictions in many red states. We begin with the law’s sponsor, Becky Currie, a Mississippi state legislator and registered nurse. “I pray my bill will save millions of babies,” she wrote in Newsweek, where she explained that she’s helped to deliver many, including a 14-week-old born too early to survive. ... The Harvard Law professor Jeannie Suk Gersen framed the law differently. In her telling, it is not an attempt to restore a right to life; it is an attempt to abrogate a constitutional right to privacy and bodily autonomy. “The conservative Justices seemed eager to ‘return’ the question of abortion to the people,” she wrote after listening to oral arguments in the case. “But the point of a fundamental constitutional right is that it shouldn’t be at the people’s mercy, particularly when the composition of the Court itself has been shifted through political means for this purpose.” What’s more, she argued that the Supreme Court would undermine its own authority by overturning a long-standing precedent in response to a state law that ran afoul of it. As she put the argument: “The spectacle of states brazenly flying in the face of the Court’s constitutional precedents, shortly followed by the Court’s discarding those precedents to make illegal actions legal after all, would effectively communicate that the Supreme Court is not, in fact, supreme.”

An op-ed by Nancy Gertner and Laurence H. Tribe: We now believe that Congress must expand the size of the Supreme Court and do so as soon as possible. We did not come to this conclusion lightly. One of us is a constitutional law scholar and frequent advocate before the Supreme Court, the other a federal judge for 17 years. After serving on the Presidential Commission on the Supreme Court over eight months, hearing multiple witnesses, reading draft upon draft of the final report issued this week, our views have evolved. We started out leaning toward term limits for Supreme Court justices but against court expansion and ended up doubtful about term limits but in favor of expanding the size of the court. We listened carefully to the views of commissioners who disagreed. Indeed, the process was a model for how people with deeply diverging perspectives can listen to one another respectfully and revise their views through genuine dialogue. We voted to submit the final report to President Biden not because we agreed with all of it — we did not — but because it accurately reflects the complexity of the issue and that diversity of views. There has never been so comprehensive and careful a study of ways to reform the Supreme Court, the history and legality of various potential reforms, and the pluses and minuses of each. This report will be of value well beyond today’s debates. But make no mistake: In voting to submit the report to the president neither of us cast a vote of confidence in the Supreme Court itself.

Chika Okafor, a doctoral candidate in economics and the Reginald F. Lewis Fellow at Harvard Law School, recently released “Prosecutor Politics: The Impact of Election Cycles on Criminal Sentencing in the Era of Rising Incarceration,” which looks at the political careers of district attorneys across the U.S. between 1986 and 2006.

People who do not conform to gender norms are at an increased risk of persecution and violence due to a steep rise in exclusionary rhetoric, according to Victor Madrigal-Borloz, the United Nations independent expert on protection against violence and discrimination based on sexual orientation and gender identity and a senior visiting researcher at the Harvard Law School Human Rights Program. This is due in part, he explained at a recent HLS event, to a growing conservative backlash against efforts to recognize gender and gender identity — especially the rights of transgender individuals — in various nations’ laws and policies. Opposition to this recognition, he said, is often framed as a resistance to the imposition of a so-called “gender ideology,” a concept, which he said has long been used to create moral panic and suggest there is “a global conspiracy aimed at destroying the political and social order.” ... Madrigal-Borloz shared his views at a virtual event last month hosted by the HLS Human Rights Program that focused on his year-long investigation into incorporation of gender and gender identity into international human rights law. He had presented his findings in two reports,  The Law of Inclusion and Practices of Exclusion, to the United Nations Human Rights Council and General Assembly this year.

Former U.S. Solicitor General Charles Fried and writer Katie Roiphe discuss democracy in the United States and the Mississippi abortion case before the Supreme Court.

This is the Radio Boston rundown for December 8. Tiziana Dearing is our host. ... Rachael Rollins will officially become the first Black woman to serve as US Attorney for Massachusetts. It comes after a fiery confirmation process and a roll call vote today — the first time that's happened since 1975. We discuss with Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR's legal analyst.

Investors are still speculating about exactly what Didi Global, a ride-hailing giant, did to draw the ire of Chinese regulators. Some say it foolishly pushed forward with its $4.4bn initial public offering (ipo) in New York despite being told by officials to delay the listing. Others suggest it stole the thunder from leaders in Beijing by kicking off trading on June 30th, the eve of the 100th anniversary of China’s Communist Party. Whatever its sin, Didi now says it plans to delist from New York and relist in Hong Kong. ... Many have held out hope of an eventual agreement between American and Chinese regulators that would revive a once-booming cross-border listing business. However, the suggestion that Chinese regulators are behind Didi’s delisting—an unprecedented intervention by a foreign government in the American market—makes a deal much more difficult to strike, says Jesse Fried of Harvard Law School.

A bipartisan commission tasked by the White House with exploring possible Supreme Court reforms voted unanimously Tuesday to submit the group’s final report to President Biden. The 34-member group sounded a neutral tone across its report's nearly 300 pages, referencing “profound disagreement” over a controversial proposal to expand the number of justices, for instance, while declining to adopt a position. Instead, the study traces the history of the court reform debate and delineates arguments for and against various proposals, occasionally noting areas of bipartisan support, as in the case of imposing term limits on the justices.  ... Some of the commission’s more progressive members made clear Tuesday that their votes in favor of the group’s findings should not be misinterpreted as an endorsement of the high court’s status quo. “In voting to submit this report to the president, I am not casting a vote of confidence in the court’s basic legitimacy,” said Harvard law professor Laurence Tribe. “I no longer have that confidence.”

The bipartisan commission appointed by President Biden to study possible changes to the federal judiciary unanimously approved a final report on Tuesday that flagged “profound disagreement” among its members over the issue that led to the panel’s creation: calls to expand or “pack” the Supreme Court with additional justices. By a vote of 34 to 0, the commission approved a 288-page report that offered a critical appraisal of arguments for and against that and many other ideas for changes to the Supreme Court, including imposing 18-year term limits on justices and reducing their power to strike down acts of Congress. ... Another former federal judge, Nancy Gertner, who is now a Harvard Law School professor, also praised the report, even as she argued for expanding the number of justices. She said that the Supreme Court’s legitimacy had been undermined by Republican efforts to “manipulate its membership,” and that its majority was enabling rollbacks of voting rights that otherwise would lead the court’s composition to evolve in response to the results of free and fair elections. “This is a uniquely perilous moment that requires a unique response,” she said, adding, “Whatever the costs of expansion in the short term, I believe, will be more than counterbalanced by the real benefits to judicial independence and to our democracy.”

Nobel-winning behavioral economist and author of ‘Thinking, Fast and Slow’ shares advice on how to influence others.

A bipartisan commission appointed by President Biden unanimously adopted a report detailing controversies over the Supreme Court and assessing proposals to address them, but few expected the 294-page document to resolve political divisions concerning the judiciary that have intensified in recent years. At Tuesday’s meeting, members of the commission universally praised the report-writing process for its civil dialogue and regard for all views. However, the final report was neither designed to nor did it produce consensus or any recommendations. ... “The report is so measured in tone that it would make an excellent basis for classroom discussion, which is a mixed compliment,” said University of Texas law professor Sanford Levinson. “Its obvious concern with being relatively impartial means that it is unlikely to generate any genuine political movement.” ... “There has never been so comprehensive and careful a study of ways to reform the Supreme Court; the history and legality of various reforms; and the pluses and minuses of each,” said a liberal commissioner, Harvard law professor Laurence Tribe. “But in voting to submit this report to the president, I am not casting a vote of confidence in the court’s basic legitimacy. I no longer have that confidence,” he said, citing “the dubious way some justices got there” and “the anti-democratic, anti-egalitarian direction of its decisions about matters like voting rights, gerrymandering, and the corrupting effects of dark money,” all areas where conservative views prevailed. Mr. Tribe said the process had persuaded him to endorse expanding the court, a position he previously had viewed skeptically.

A bipartisan panel of legal scholars examining possible changes to the Supreme Court voted unanimously Tuesday to submit to President Biden its final report, which describes public support for imposing term limits but “profound disagreement” about adding justices. Biden assembled the commission in response to demands from Democrats to restore what they called ideological “balance” on the court, now with three liberals and six conservatives, including three justices picked by President Donald Trump. In advance of the 34 to 0 vote, commissioners from across the political spectrum aired their differences about specific proposals for overhauling the court even as they praised the collegial process of assembling the nearly 300-page document. “I’m more convinced than ever that change is necessary,” said retired federal judge Nancy Gertner, a nominee of President Bill Clinton. “The court has been effectively packed by one party and will remain packed for years to come with serious consequences to democracy. Constitutional law expert Laurence Tribe said he had come to embrace the idea of expanding the bench because “all is not well with the court,” which he asserted, “no longer deserves the nation’s confidence.” “Even if expanding it would momentarily shake its authority,” Tribe said, “that risk is worth taking.”

An op-ed by Ashley Nunes: Americans fretting over gas prices could soon be in for relief. OPEC+ — a cartel of countries that controls some 80 per cent of proven oil reserves — last week hiked global production by an extra 400,000 barrels a day. Over a year, that’s enough to fill a large football stadium 53 times over. The result of boosting production? A drop in oil price. And when prices drop, if gas prices follow, consumers are happy. There is an alternative to relying on Saudi Arabia’s generosity: Going electric. When compared with gas guzzlers, electric vehicles (EVs) need less energy to move, which means more miles travelled per dollar spent. Electricity is also cheaper than gas, which delivers further savings. Hence, the White House’s penchant for all things electric. In a recent interview, Transportation Secretary Pete Buttigieg stressed that families who buy EVs would, “never have to worry about gas prices again.” Perhaps. The ebb and flow of global oil production — and the ensuing impact on gas prices — admittedly matters little to EV users. Why should it? Foregoing gasoline affords the luxury of being unfazed by gasoline prices. In this regard, the Secretary isn’t wrong to tout EVs’ savings advantage. But his laser sharp focus on one type of saving should also be called out for what it truly is: a fiscal shell game that conveniently embraces one set of truths, while downplaying others.

IN 2018, law enforcement officers were investigating five armed robberies and a sixth attempt in Dorchester, Mattapan, and Canton, one of which led to a fatal shooting. The police believed the same perpetrator, with a getaway driver, committed all the robberies, but they didn’t have a suspect. So they obtained search warrants for cell phone data from the towers closest to the robberies, on a suspicion that the same cell phone would have been in the vicinity of each robbery.  Through these warrants, the police obtained information about 50,951 unique phone numbers. They used the data to identify Jerron Perry and Gregory Simmons as suspects. After obtaining additional warrants to search the men’s phones, homes, and cars, both were arrested. ... “This is not a technology that provides more accurate information, this is a technology that simply provides more information,” said Mason Kortz, an attorney at Harvard Law School’s cyberlaw clinic, who filed a brief for the Surveillance Technology Oversight Project arguing that tower dumps are unconstitutional. “At best, it’s going to suffer from the same problems as existing sorts of location surveillance and, at worst, it’s going to be less reliable because it’s not individualized.”

A White House Commission studying changes to the U.S. Supreme Court voted unanimously to send its report to President Joe Biden after sidestepping the most controversial proposals to expand the court’s membership or limit the justices’ terms. Members, who voted 34-0 Tuesday, emphasized that their approval of the final report doesn’t signal support for all the proposals examined by the panel. ... Some may be disappointed that the report doesn’t make specific recommendations, said former U.S. District Court Judge Nancy Gertner, who said she supports changes to the court. “But that was not our charge,” Gertner said. Instead, “the tasks set before us was to capture that deep, live, and consequential debate, fully and fairly, without short changing either side,” said Harvard Law School Professor Andrew Manuel Crespo. ... The commission concluded that the least controversial changes, like term limits, were the hardest to enact, said Harvard Law School Professor Larry Tribe. And the most controversial—expanding the number of justices—the easiest to do, he added.