Media Mentions

Ninth Circuit Judge Lawrence VanDyke’s writings are again getting attention as he crafted a majority opinion and an alternative attached as a concurrence he said liberal colleagues could adopt en banc in the Second Amendment case. “You’re welcome,” he added, in a sarcastic aside. .. “It really undermines the relationships on the court,” said Nancy Gertner, a retired federal judge in the District of Massachusetts and current professor at Harvard Law. “And you may not care about the relationships, but these are people who have to live together for some time.”

Justice Stephen Breyer had not even formally announced his retirement before Republicans and conservative legal operatives began their racist crusade against his as-yet-to-be-named successor. During the 2020 presidential campaign, then-candidate Joe Biden promised to nominate a Black woman to the first seat that came open. Biden has many extraordinary candidates on his short list. But for reasons that should surprise nobody who’s been paying attention to recent history, these early commenters do not appear to see these candidates’ impeccable credentials and extraordinary accomplishments. Instead, they have opted to prejudge any Black woman, and indeed all Black women nominees, as inherently inferior and underqualified. ... Some background that is too often left out of these discussions: Women of color were locked out of the judiciary for most of American history. The first Black woman to serve on a federal court, Constance Baker Motley, was not appointed until 1966. Motley had a sterling track record of accomplishments: She argued before the Supreme Court on 10 occasions and won nine times, assisted Thurgood Marshall in litigating Brown v. Board of Education, and tried myriad cases in lower courts, including several in New York.* But as Harvard law professor and legal historian Tomiko Brown-Nagin has recently documented, the American Bar Association hesitated to approve Motley. Why? The white men who ran the ABA doubted whether she was sufficiently qualified. They ultimately gave her a lukewarm rating of “qualified” rather than “well qualified,” even though she was one of the most successful and experienced litigators of her era—an advocate so committed that she risked her life to defend her Black clients in the Jim Crow South.

As President Joe Biden reaffirms his commitment to nominate the first Black woman to the US Supreme Court, it makes sense to revisit the life and work of another Black woman who profoundly shaped the law: Constance Baker Motley. Motley was a “desegregation architect” who over the course of decades inspired numerous women lawyers and judges — including some on the short list of potential nominees. Yet she’s often missing from the pantheon of great Americans. Many are familiar with Thurgood Marshall, but few outside judiciary circles talk about Motley’s vital role in dismantling racial segregation and gender discrimination. ... In her magnificent new volume, “Civil Rights Queen: Constance Baker Motley and the Struggle for Equality,” Tomiko Brown-Nagin, the dean of the Radcliffe Institute for Advanced Study at Harvard University and the Daniel P.S. Paul Professor of Constitutional Law at Harvard Law School, offers a gripping chronicle of Motley’s life and career, and in the process gives the trailblazer’s leviathan achievements the attention they deserve.

An op-ed co-authored by Laurence Tribe: On Saturday, Trump is set to throw red meat to his base — and continue gearing up for a possible 2024 presidential run — at the Houston-area "Save America" rally. In this alternate reality, the ongoing investigation into his election scheming is all a witch hunt, those "alternate electors" were just trying to help America, and he and his fellow plotters are the real victims. Back in the real world, the Justice Department announced on Tuesday it was investigating the Trump campaign’s bogus elector slate scheme, which has quickly become a focus of the House select committee investigating Jan. 6. The scheme began in December 2020 and involved Republicans in seven states’ sending Congress forged and fraudulent alternate electoral slates naming Donald Trump the winner of the presidential election.

Supreme Court Justice Stephen Breyer is retiring, and President Joe Biden has promised to nominate a Black woman in his place. Laurence Tribe, Harvard professor emeritus, speaks with Jim Braude about Breyer’s legacy, and what his absence will mean on the Supreme Court.

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.

President Biden has vowed to nominate the first Black woman to the Supreme Court as Justice Stephen Breyer prepares to retire. Harvard Law professor Alan Jenkins joins CBS News to discuss who the potential nominees are and what the appointment will mean for the highest court in the country.

A judge’s decision this week to invalidate the largest offshore oil and gas lease sale in the nation’s history, on grounds that the government had failed to take climate change into consideration, shows that regulatory decisions that disregard global warming are increasingly vulnerable to legal challenges, analysts said Friday. ... “This would not have been true 10 years ago for climate analysis,” said Richard Lazarus, a professor of environmental law at Harvard University. He said it is “a big win” that courts are forcing government agencies to include “a very robust and holistic analysis of climate” as part of the decision-making when it comes to whether or not to drill on public lands and waters.

Scientists and international governing bodies have been very clear: In order to have a shot at limiting the worst impacts of global warming, investment in new fossil fuel projects must stop. Yet the federal body that regulates America’s pipelines has created a perverse incentive for companies to keep building methane-leaking fossil fuel infrastructure that doesn’t serve anybody except shareholders. ... The ruling was notable, and may signal a shifting view of the federal courts on FERC, explained Ari Peskoe, Director of the Electricity Law Initiative at the Harvard Law School. “The court found that FERC had failed to justify that the pipeline was needed, which is the core determination that FERC has to make — that the pipeline is needed for the ‘public convenience and necessity,’” said Peskoe. “It’s the sort of squishy legal standard that courts are typically very deferential to regulators on. So for the court to say that FERC didn’t properly implement its own policy — that has resulted in FERC approving nearly 500 projects and disapproving of only two since 1999 — was unusual and noteworthy.”

In a column for MSNBC, Harvard law professor Laurence Tribe and former federal prosecutor Dennis Aftergut claim Donald Trump's rally in Texas on Saturday will be all about putting on a brave face as the House committee investigating the Jan 6th insurrection closes in on the former president and his plot to steal the 2020 presidential election. ... Writing, "On Saturday, Trump is set to throw red meat to his base — and continue gearing up for a possible 2024 presidential run — at the Houston-area 'Save America' rally. In this alternate reality, the ongoing investigation into his election scheming is all a witch hunt, those 'alternate electors' were just trying to help America, and he and his fellow plotters are the real victims," the two added Trump has good reason to be nervous about what is happening outside his circle of adoring fans.

Justice Stephen Breyer's decision to retire from the Supreme Court has led to the usual frenzy over who his replacement might be. But it's also worth noting how he shaped important areas of the law - one of them, administrative law. Now, that might sound like a boring, dry topic, but it actually really matters. Administrative agencies like the Environmental Protection Agency or the Centers for Disease Control play an important role in determining policy in key areas of life, like how much of a certain chemical is safe enough to have in drinking water or implementing vaccine requirements. ... For that, we've called Adrian Vermeule. He is a constitutional law professor at Harvard University School of Law, and he is one of the co-authors of the book "Administrative Law And Regulatory Policy," along with Justice Breyer, and he is with us now. Professor Vermeule, welcome. Thank you so much for joining us.

Alisia Adamson Profit, a Black woman who has practiced law for more than a dozen years in Central Florida, walked into a courtroom one morning last June for a pretrial hearing, just as she had done countless times. But this time was different. A court deputy asked Ms. Profit — and none of the other lawyers in the courtroom, all of whom were white — for her identification. It wasn’t the first time she felt singled out as part of a tiny universe of Black women judges and lawyers. ... Black women account for an overwhelming majority of all Black law students and are entering the field in greater numbers than ever before, according to the Center on the Legal Profession at Harvard Law School, which surveyed Black alumni and tracked the careers of Black women lawyers.

Fox News host Sean Hannity misleadingly claimed that President Joe Biden was venturing into unprecedented territory with his pledge to nominate a Black woman as a replacement for U.S. Supreme Court Justice Stephen Breyer, who is retiring after 28 years. ... Nikolas Bowie, assistant professor of law at Harvard Law School, said Hannity’s claim “ignores the reality that from 1789 through 1967, every president made race and gender a defining factor in their selection process by refusing to nominate anyone other than a white man.” ... Tomiko Brown-Nagin, another professor of constitutional law and history at Harvard University, said the late Justice Antonin Scalia’s Italian background was a “defining, positive factor in Ronald Reagan’s selection of him,” citing a report in Slate, a progressive online magazine.

John W. Dean, who served as White House counsel under former President Richard Nixon, blasted former President Donald Trump's suggestion at a Saturday rally that he will pardon those who attacked the U.S. Capitol on January 6, 2021, saying such an action is "the stuff of dictators." ... Other legal experts quickly raised alarms about Trump's remarks as well. "I have no doubt Trump is serious about this. He is saying he'll dismantle the legal system retroactively," Laurence Tribe, a professor of constitutional law at Harvard Law School, tweeted.

Latino advocacy groups, lawmakers and scholars had nothing but praise for Justice Stephen Breyer, the great-grandson of immigrants from Romania, after he announced his retirement from the Supreme Court on Thursday. “I think he was a moderate liberal who could be counted on to come out on the right way on a lot of cases that affected Latinos,” said Kevin R. Johnson, the dean of the University of California Davis School of Law, who is of Mexican American heritage. ... Andrew Crespo, professor at Harvard Law School, clerked for Breyer during the 2009-10 term. He recalled going to lunch with the justice, which required finding a spacious restaurant, “so that, when we’re sitting down and he’s telling us all these stories about the court, that we weren’t accidentally sitting next to a reporter.” “He bounced back from defeats faster than, I think, his clerks did,” Crespo told Bloomberg Law’s Cases and Controversies podcast. “He always thought maybe, maybe the best will come.”

Transmission planning needs major reforms, including loosening the grip incumbent transmission owners have on the process, a panel of experts said Thursday during a roundtable hosted by the R Street Institute, a think tank. ... In the short term, transmission operators determine who produces power and how much they produce, and in the long term they guide decisions about where to build new transmission, which opens opportunities for new sources of power, according to Ari Peskoe, director of Harvard Law School’s Electricity Law Initiative. "So really, control over transmission is in a lot of ways control over the industry," Peskoe said.

Jillian Melton was paid just $2.13 per hour — the lowest legal cash wage in the U.S. — during her six years at Seasons 52 Wine Bar and Grill in Memphis, Tennessee. The rest of her income came from tips, which could vary widely depending on the day of the week or the whim of the customer. Melton also says she witnessed discrimination on the job — not only from customers but also from the store’s management. As a young, lighter-skinned Black woman of mixed heritage, Melton says she was often assigned by her managers to the busiest, most front-facing sections of the restaurant along with her white and young coworkers. But her older and darker-skinned Black coworkers were given emptier sections where tips would only slowly trickle in — a pattern of discrimination based on colorism, racism, and ageism that resulted in her bringing home vastly more tips. ... Catharine A. MacKinnon, a professor at Michigan Law School and Harvard Law School and an author on the 2021 report, adds that this problem is an “underlying dynamic” in the restaurant industry. In an e-mail to Civil Eats, she described the tipping system as putting workers “at the sexual whim and mercy of whoever provides the tips, or provides the conditions that enhance or make tips possible.”

Documents obtained by The Nation reveal a close collaboration between Chevron, its law firm, and the “private prosecutor” who sent environmentalist lawyer Steven Donziger to federal prison in October. The oil giant has pursued Donziger since he won a legal case against it for contaminating a vast stretch of rain forest in Ecuador. So far, although e-mails and billing statements between Chevron, the law firm Gibson, Dunn & Crutcher, and the lawyer Rita Glavin do not show evidence of legal wrongdoing, they do raise questions of fairness. And Donziger’s team is exploring legal action to remedy what they regard as this latest injustice. ... The documents show that Glavin and her assistants met in person with Gibson Dunn’s lawyers at least 32 times. E-mails show numerous additional telephone conferences between the two. In one December 3, 2019, e-mail, Glavin is scheduling a phone call with a lawyer from Gibson Dunn at 10 PM. Charles Nesson, a professor at Harvard Law School who has followed the case for years, and already cites it in his courses, told me, “The biggest evidence of Chevron’s involvement is the size of the legal docket. The docket sets records in legal docketry. Who paid for all of that legal stuff?”

Nathan Rosenberg [visiting scholar at the Harvard Law School Food Law and Policy Clinic] and Peter Lehner are the authors of a book called Farming for Our Future: The Science, Law, and Policy of Climate-Neutral Agriculture, released in December of 2021 from the Environmental Law Institute Press. I had the opportunity to interview Rosenberg about the book, which is a forward-looking guide to a lot of the big questions our society needs to ask about its food production system. Enjoy our conversation about carbon-negative agriculture, the conflation of rural residents with farmers, and the twin fates of farmworkers and the natural environment, below.

After Antonin Scalia’s unexpected death in 2016 left a seat vacant on the US Supreme Court, the 11-year-old daughter of federal judge Ketanji Brown Jackson drafted a letter to then-president Barack Obama recommending her mother as a replacement. That effort proved unsuccessful, but six years later, Jackson is among the frontrunners to become the newest justice on America’s highest court, after the retirement of Stephen Breyer later this year. ... Laurence Tribe, professor emeritus at Harvard Law School, Jackson’s alma mater, said: “It will be challenging, to say the least, for the Republican senators who voted for her . . . to explain why suddenly they are not in favour of her elevation to the Supreme Court.”

As Justice Stephen Breyer prepares to step down from the Supreme Court later this year, legal experts are highlighting a lesser-known piece of his legacy — an impact on clean energy and electricity markets. Yesterday, President Biden formally announced Breyer’s plans to retire at the end of this court term during an event at the White House. The 83-year-old justice has served for 28 years on the high court, and four decades as a federal judge (Greenwire, Jan. 27). ... “Breyer opened the door to a practical view of FERC’s jurisdiction that is adaptable to new technologies and is not fixed by the industry structure that existed when Congress passed the [Federal Power Act] in 1935,” said Ari Peskoe, director of the Electricity Law Initiative at Harvard Law School, in an email.