Media Mentions

CNN's Nia-Malika Henderson reacts to some conservative commentators blasting President Biden's plan to pick a Black woman for the Supreme Court [including commentary from Professor Andrew Crespo].

The White House is about to launch a lightning attempt to replace Supreme Court justice Stephen Breyer, who is expected to leave a vacant seat on the bench just months before midterm elections that could tilt the balance of power in the Senate. President Joe Biden’s administration is facing pressure to move quickly to ensure they do not lose progressive seats on America’s highest court, which is split 6-3 between conservative and liberal justices. ... “It’s absolutely indispensable that someone be nominated as soon as the resignation makes possible,” said Laurence Tribe, professor emeritus at Harvard Law School.

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.

The Federal Emergency Management Agency has received White House approval to begin tracking the race and ethnicity of people who apply for disaster relief so the agency can analyze whether there is discrimination in the distribution of billions of dollars of federal aid. ... The act’s nondiscrimination mandate “is one of the most inclusive and comprehensive in federal law,” Harvard Law School legal fellow Hannah Perls wrote in a legal analysis in October. The act aims to prevent both intentional discrimination in disaster relief as well as policies that seem nondiscriminatory but “result in unequal access to federal assistance for protected groups,” Perls wrote with co-author Dane Underwood, a Harvard Law student.

Justice Stephen Breyer is known for letting his flamboyant intellect shine on the bench. And, according to those who clerked for him, Breyer’s personality outside of the courtroom was no different. ... Breyer was described as someone with an insatiable, extroverted mind, who thrived on conversation—sometimes to a fault. Andrew Crespo, a former clerk and current Harvard Law School professor, said going to lunch with the Justice required finding a restaurant with lots of space “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.”

This year marks the 49th anniversary of the Supreme Court's ruling on Roe v. Wade, the landmark case that made abortion a federally protected right in the United States. It could also be the year we see Roe v. Wade overturned, with a dramatically altered landscape of abortion access as a result, experts said. ... Mary Ziegler, a visiting professor of constitutional law at Harvard Law School and author of "Abortion and the Law in America: Roe v. Wade to the Present," describes 2022 as "the year that abortion rights in America are gone."

How do you measure progress? The incrementalist counsels patience: Something is better than nothing, half a loaf is better than none. Characteristically, Malcolm X wasn’t having any of that. In a televised round table in 1961, the civil rights lawyer Constance Baker Motley tried to coax Malcolm into acknowledging that the average Black American “is substantially better off than he was at the end of slavery.” He scorned the very premise. “Now you have 20 million Black people in America who are begging for some kind of recognition as human beings,” he said, referring to the Black Americans imprisoned at the time, “and the average white man today thinks we’re making progress.” It’s an evocative exchange, one that the Harvard legal historian Tomiko Brown-Nagin showcases to illuminating effect in “Civil Rights Queen,” the first major biography of Motley, a decade in the making. Brown-Nagin juxtaposes Motley’s attempts to find common ground by asking a series of lawyerly questions (“You recognize, don’t you …? “Don’t you think …?”) with Malcolm’s scathing rejoinders. By the mid-1960s, Motley had been caught “in a bind,” Brown-Nagin writes. Working at the NAACP Legal Defense and Educational Fund Inc., or Inc Fund, since 1946, she had been a crucial figure in using the courts to dismantle Jim Crow laws. Motley had helped litigate Brown v. Board of Education; she fought for Martin Luther King Jr.’s right to march in Birmingham. But to radicals disenchanted with the mainstream civil rights movement, she was “weak and accommodationist,” Brown-Nagin writes. Set against figures like Malcolm, “her politics and style looked tamer — and they were.”

The Rev. John Udo-Okon, a Pentecostal minister in the Bronx, has a lot of congregants who are sued by debt collectors and don’t know what to do. Like most of the millions of Americans sued over consumer debt each year, Pastor Udo-Okon’s congregants typically cannot retain a lawyer. When they fail to respond to the suit, they lose the case by default. ... Laurence Tribe, the liberal legal icon who headed an access-to-justice initiative in President Barack Obama’s Justice Department, said in an interview that demanding a law degree to help someone fill out a simple form serves largely to protect lawyers from competition. He said of Upsolve’s suit, “If you want a test case to bring sanity as well as constitutional values to a process in which the legal profession has edged out both, this is it.”

A year into his presidency and with his central greenhouse gas-cutting legislation stalled in Congress, President Joe Biden finds his climate agenda moving in fits and starts as the U.S. is on track to miss the carbon reduction goals his administration set. Biden said last week he may have to break off pieces of that bill, a roughly $2.2 trillion amalgam of climate and social programs, and pass them in “chunks,” a prospect that carries its own risks. ... In four years, the Trump administration rolled back about 80 environmental or energy regulations, according to a tally the Environmental & Energy Law Program at Harvard Law School maintains.

Historically, states, local governments, and tribal nations have been key leaders on climate ambition. For example, in the 1960s, California set the nation’s first tailpipe emissions standards and continued on the path of setting the most advanced clean vehicle regulations with its Advanced Clean Cars program adopted in 2012. Meanwhile, tribal nations have been some of the first communities to address the effects of a warming climate. For instance, in 2010, the Swinomish Tribe in Washington state enacted a landmark climate action plan that has since been followed by 50 other tribes enacting similar plans.2 ... New York: Harnessing the power of cross-agency collaboration Dale Bryk is director of state and regional policy at the Environmental and Energy Law Program at Harvard Law School. She served as New York State’s deputy secretary for energy and environment from 2019 to 2020 and held a variety of positions over the course of her 20-year career at the Natural Resources Defense Council.

As some of the experts chosen to usher Oregon into the age of psilocybin mushroom therapy sat down last week for a Zoom meeting, two of them had a bone to pick. At issue: whether the Oregon Psilocybin Advisory Board would get to hear from the “Godfather of Microdosing” this week. ... The exchange took place between two academic heavy hitters, both appointed by Gov. Kate Brown to the psilocybin board. Dr. Atheir Abbas is an assistant professor of behavioral neuroscience at the Oregon Health & Science University School of Medicine, while Dr. Mason Marks is an assistant professor at the University of New Hampshire School of Law and a senior fellow at Harvard Law School’s Project on Psychedelics Law and Regulation.

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 article by Jeannie Suk Gersen: On January 6, 2021, in the minutes before the storming of the Capitol, I was sending a welcome message to my new class of criminal-law students while keeping an eye on Congress’s certification of the Presidential election. During the next few hours, a violent mob invaded the building, overwhelmed law enforcement, and drove lawmakers to halt the certification process and hide or evacuate. At the end of that semester, I included a new question on the final exam for my criminal-law students, one about the previously little-known crime of “seditious conspiracy,” which includes conspiring “by force to prevent, hinder, or delay the execution of any law of the United States.”

Proponents of the legalization of psychedelics has won a victory. Seattle’s City Council approved a resolution Monday to decriminalize a wide range of activities around psychedelic drugs, including the cultivation and sharing of psilocybin mushrooms, ayahuasca, ibogaine and non-peyote-derived mescaline. The landmark measure extends what is already Seattle city policy not to arrest or prosecute people for personal drug possession to further protect the cultivation and sharing of psychedelic plants and fungi for “religious, spiritual, healing, or personal growth practices.” ... Enacted, the Psilocybin Wellness and Opportunity Act would allow individuals to consume products containing psilocybin and psilocin, the two main active ingredients in psychedelic mushrooms, under the support of a trained and state-licensed psilocybin service administrator. Mason Marks, a senior fellow and project lead on the Project at Psychedelics Law and Regulation at Harvard Law School who helped to draft some sections of the bill, told Marijuana Moment that it “builds on the momentum of previous psilocybin policy reform efforts in Seattle and across the country.” Voters in neighboring Oregon passed an initiative in 2020.

Former President Donald Trump’s three U.S. Supreme Court appointees likely will be key to the fate of affirmative action in college admissions as the issue of race-conscious policies returns to the high court. ... Shortly after that ruling, for which Gorsuch was widely praised, Harvard Law’s Cass Sunstein warned that Gorsuch’s adherence to the “original public meaning” of legal texts “gives a real boost to opponents of affirmative action.” The key passage, Sunstein wrote, is where Gorsuch writes that to discriminate is to treat an “individual worse than others who are similarly situated,” and text means that the judge’s “focus should be on individuals, not groups.”

In Arizona, citizens can vote early for nearly a month before Election Day. In New Hampshire, early voting doesn't exist. In Florida, any voter can request a mail ballot. In Texas, only some voters can vote absentee, such as those who are old, sick, in jail or out of town. Democrats say this patchwork of state rules makes no sense when citizens vote in federal elections, and have pushed legislation to create uniform rules. Republicans have blocked that effort, arguing that the powers belong in the hands of state lawmakers. Many Republican lawmakers have derided voting rights legislation as a "federal takeover" of elections. ... "No one is proposing that federal officials take over these responsibilities," said Harvard law professor Nicholas O. Stephanopoulos, who has advised some nonprofit groups involved in drafting the bill.

The Center for Health Law and Policy Innovation of Harvard Law School (CHLPI) and the National Viral Hepatitis Roundtable (NVHR) today recognize the Virginia and Alaska state Medicaid programs for removing prior authorization requirements for hepatitis C treatment, effective in each state as of January 2022. Virginia and Alaska become the tenth and eleventh states in the country to remove prior authorizations for hepatitis C treatment for most patients, joining a growing number of states to increase access for Medicaid recipients.

The niceties of corporate finance rarely attract the attention of activists. It is rarer still that those at either end of the political spectrum agree on the need for change. When it comes to the tax system’s preferential treatment for debt over equity, however, both the left-wing Tax Justice Network and the fiscally conservative Tax Foundation agree that the “debt bias” needs correcting. But the degree of consensus belies the difficulty of getting it done. ... What would wholesale reform look like? In a paper published in 2017, Mark Roe of Harvard Law School and Michael Tröge of ESCP Business School put forward some ideas. One is to treat debt less preferentially. They imagine a bank with $50bn in gross profits and $40bn in interest payments. With full deduction for interest and a corporate-tax rate of 20%, the bank would pay tax of $2bn, and have an incentive to rack up debt. But if the interest deduction were removed altogether, a tax rate of 20% would wipe out the bank’s entire net profit. One solution would be to withdraw deductibility, but to lower the tax on gross profits. A rate of 7% in that scenario would yield as much to the taxman, and pose the same burden to the bank, as a 35% tax on net profits.

To an unsettling degree, a large swath of 2022 GOP candidates are deriving energy for their campaigns from the myth that the underlying “cause” of the Jan. 6 rioters was in some sense just. But this mythmaking is on a collision course with another powerful force: the House select committee’s examination of those events, and the actual facts about them that the committee will likely reveal. ... Meanwhile, Justice Department prosecutions of rioters are now pursuing “seditious conspiracy" charges. As Laurence H. Tribe explains, this shows the department believes some of the plotters “specifically intended to overturn the election” and "prevent the lawful transition of power.”

When reports first trickled out that Justice Neil Gorsuch refused to wear a mask in the courtroom, and that as a result his fellow Supreme Court judge Sonia Sotomayor needed to work through Zoom as a result, the backlash was swift and unsurprising. No doubt with an eye toward protecting its reputation as an august body above petty partisan bickering, the court and its representatives quickly moved to squash the rumors. While it is still unclear what exactly has happened, the justices would like you to think everyone remains respectful to each other, while skeptics and leaks insist tensions are at a historic high. ... "There was no obvious division between Democrats and Republicans on the question of how deeply government regulation can affect the workplace or one's bodily integrity," Laurence Tribe, a professor at Harvard Law School, told Salon. "Those were things that cut across party lines. Now what we have is a lot of political ideology with partisan affiliation, and we have the court moving in the direction of that ideological and partisan leaning when it pushes back against OSHA's regulation."

An op-ed by Terri Gerstein: Earlier this month, in a decision that surprised no one who was paying attention, the U.S. Supreme Court’s conservative majority blocked an emergency workplace safety rule by the Occupational Safety and Health Administration requiring large employers to mandate either vaccines or indoor masks and weekly tests for employees.