Media Mentions

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.

An op-ed by Amy B. Frieder '22, who was a candidate for the Maryland House of Delegates during the 2018 election cycle and during a vacancy-filling appointment process in 2021: Maryland is one of several states without special elections for filling state legislative vacancies. It instead relies on political party insiders to nominate a candidate for the governor to appoint (i.e., rubber-stamp). In fact, Maryland is the only state with four-year State House terms other than North Dakota that relies on this political party insider appointment process. These political party insiders are organized in “central committees.” Over the past several years, they have quietly wielded so much power that more than 20 percent of Maryland state legislators were initially appointed rather than elected by the voters and have benefited from incumbency advantage ever since. Can you imagine the public pushback if 20 percent of our U.S. House of Representatives were appointed rather than elected?

Jerome “Jerry” Rappaport ’49 M.P.A. ’63, who as a 19-year-old Harvard Law student helped to launch the Harvard Law School Forum, a storied speaker series, and who more than seven decades later was the impetus behind the creation of another Harvard Law School initiative to promote rigorous discussion of government and social issues on campus, died on December 6. He was 94. “As a law student in 1946, Jerry Rappaport founded the Harvard Law School Forum, which has added energy and excitement to our community by inviting to our campus prominent people with big ideas and many perspectives from which to learn,” said John F. Manning ’85, Morgan and Helen Chu Dean and Professor of Law at Harvard Law School.  “More recently, he and Phyllis Rappaport supported the establishment of the Rappaport Forum, which promotes and models vigorous and respectful discourse on the hardest questions facing this nation and our world. Jerry personified and supported the values that are necessary for great academic institutions to be places of learning and growth. A wise adviser to multiple deans, he will be sorely missed. Our thoughts are with Phyllis and the entire Rappaport family.”

An op-ed by Peter Keisler, Stuart Gerson, and Alan Raul, HLS lecturer on law: After the country voted in 2020 to elect his opponent, President Donald Trump attempted to overturn America’s centuries-long commitment to the constitutional transfer of power. Assisting him was White House chief of staff Mark Meadows, who was acting not in service of the duties of the president, but merely as a political operative for a defeated candidate unlawfully grasping for power. Now the House Jan. 6 committee is charged with investigating the ensuing attack that imperiled both our constitutional government and the lives of our legislators and others who served at the Capitol. It is no wonder that the committee has ordered Meadows to testify and supply documents — or that President Biden has declined to block Congress’s access by asserting executive privilege, the doctrine that allows a president to protect the confidentiality of certain official deliberations. ather than comply, Meadows and his lawyer have launched a public campaign arguing that Biden abandoned a long-held principle of executive privilege by declining to accede to Trump’s attempt to assert it. Meadows, they say, is stuck in the middle of a “separation of powers” dispute, unsure whether to obey Trump or a congressional subpoena with which the sitting president has agreed to comply. But Meadows and his counsel get just about everything wrong regarding the law and history they invoke.

When Los Angeles District Attorney George Gascón took office a year ago, he directed the county’s nearly 1,000 prosecutors to decline charges involving 13 categories of low-level misdemeanors, including driving on a suspended license, drug and paraphernalia possession, and public intoxication. The sweeping new policy called for misdemeanor charges only when there are extenuating circumstances, like repeat offenses. An LAist review of millions of criminal cases found that the reform, dubbed Special Directive 20-07, has led to a dramatic decline in the rate at which the DA charges misdemeanors. ... Progressive academics and community groups say the changes are necessary to address a bloated and unequal criminal justice system, and that low-level criminal charges affect thousands of Angelenos as well as their families and communities. "The record of the misdemeanor arrest can haunt a person for life,” said Harvard law professor Alexandra Natapoff, the author of the book "Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal." People accused of misdemeanors in California are typically arrested or given a citation. If found guilty, a defendant can face a sentence of up to one year in jail and a fine of $1,000. “It can ruin their credit, it can disable their ability to get a job, or a loan, or housing,” Natapoff said. “There’s a whole world of consequences that far outstrip the seriousness of the underlying offense.”

An article by Jeannie Suk Gersen: The legal landscape of the past weeks and months has prompted questions of which people and entities are legitimate interpreters and enforcers of the law and what happens when you take the law into your own hands. Mississippi and other states took the recent changes in personnel on the Supreme Court as an invitation to defy the Court’s constitutional rulings on abortion, and those states now seem likely to prevail. During oral arguments in Dobbs v. Jackson Women’s Health Organization, last Wednesday, the three liberal Justices often seemed to be delivering dirges, as though they had accepted a loss and were speaking for posterity. Mississippi’s ban on abortions after fifteen weeks of pregnancy, which boldly flouts the Court’s precedents setting the line at around twenty-four weeks, is likely to be upheld by the conservative Justices. The arguments offered scant reason for hope that Roe v. Wade will be reaffirmed; the newest conservative Justices, Brett Kavanaugh and Amy Coney Barrett, signalled no qualms about overruling Roe as wrongly decided, which would make a majority of at least five. At a time when the Court’s legitimacy appears extremely fragile, it is telling that the majority’s response to having the supremacy of the Court’s decisions defied seems to be acquiescence and approval.

An op-ed by Eli Nachmany '22: Republican Gov.-elect Glenn Youngkin’s resounding victory in deep-blue Virginia sent shockwaves through the national Democratic Party apparatus. Youngkin took down former Virginia Gov. Terry McAuliffe, a Democrat, in an election that pitted two fundamentally different views of education against one another. Given the obvious popularity of the Youngkin position on education – one that puts power back into the hands of parents – lawmakers at the federal level should reconsider a Trump-era education bill that did not make it through Congress during President Trump’s time in the White House: the Education Freedom Scholarships and Opportunity Act, or "EFS."

An op-ed by Ashley Nunes: A bumpy ride awaits Canadian travellers. On Tuesday, Ottawa unveiled new pandemic travel measures that are creating confusion for flyers. The move – spurred by the rise of the highly infectious Omicron variant – will require all incoming passengers from non-U.S. foreign destinations get another COVID-19 test when they land in Canada. The new testing requirement is in addition to the pre-departure test travellers must undergo before leaving for Canada. The move is being touted as necessary to keep Canadians safe. ... Look, I’m all for a science-based approach. Science should inform public policy and we need more scientists working in public policy. I’m also for packing an extra dose of patience. Enduring hardship well is a trait in short supply in public (and political) discourse, and society is poorer because of it. Unfortunately, Ottawa’s new pandemic travel measures aren’t particularly scientific, which has a knock-on effect on my patience. As I write this, I’m in Europe, and heading on a plane back to Canada tomorrow. Despite my best efforts to educate myself, I’m still confused about what to expect when I land.

China ride-hailing giant Didi Global’s shares plunged more than 22% in the US on Friday, losing about $8.4 billion in market value, to end a week in which the decoupling of the equity markets of the world’s two biggest economies gathered pace. The plunge followed Didi’s announcement that it planned to delist from the New York Stock Exchange less than six months after its bumper $4.4 billion IPO there.  Didi’s decision followed China’s swinging crackdown on tech companies amid its concerns that reams of customer data risked falling into foreign hands, and a US decision to boot 248 Chinese companies off its exchanges for failing to comply with auditing requirements. ... Previous delistings provide the best window on what the future may hold for investors – and it doesn’t look good. In late 2017, China-based and US-listed Qihoo 360 announced a deal to be taken private by a group of investors led by its CEO, Zhou Hongyi, who held a 61% majority stake in the company. The deal valued Qihoo at about $9.3 billion. It was then relisted on the Shanghai stock exchange, where its market cap soared to $56 billion. In a 2019 article published in the Harvard Law School Forum on Corporate Governance, Harvard Law School professor Jesse Fried and Burford Capital’s Matthew Schoenfeld assert that Qihoo’s CEO alone made $12 billion in the relisting exercise. ”Beijing may be deliberately tanking these companies’ shares to pave the way for Chinese investors to acquire interests at lower prices,” they said.

WASHINGTON — Donald J. Trump, who appointed three Supreme Court justices while president, vowed that they would help overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion. In arguments on Wednesday, there were more than a few signs that Mr. Trump had succeeded. ... As those dueling perspectives reflect, there is no consensus about what legitimacy means. Richard H. Fallon Jr., a law professor at Harvard and the author of “Law and Legitimacy in the Supreme Court,” said there were two primary definitions. One is moral, expressing a judgment about whether the court deserves to be respected. The second is sociological, based on whether people trust the court to make fair and unbiased judgments. Only that second sense, he said, can be captured in public opinion polls.

A column by Noah Feldman: As Republicans develop a strategy for the 2022 and 2024 elections, expect them to borrow at least one trick from the playbook that Glenn Youngkin used to win the 2021 Virginia governor’s race: tar Democrats with the brush of “critical race theory.” Almost no one can say exactly what CRT is, but that doesn’t seem to have mattered last month in the northern Virginia suburbs, where the Republican made inroads among Democrat-leaning voters. The attack on CRT is a proxy for a vulnerability that Republicans correctly see Democrats as having. The consciousness-raising of Black Lives Matter and a new focus on the legacy of slavery has left the party flailing. Democrats — and progressives and liberals more generally — find themselves without a coherent narrative about race in American history, or one that Americans of all races can embrace.

An op-ed by Nancy Gertner: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” That was the question Justice Sonia Sotomayor asked Wednesday as the US Supreme Court heard oral arguments in Dobbs v. Jackson Women’s Health Organization, after quoting the sponsors of the law, who said, “We’re doing it [passing this law] because we have new justices.” Dobbs challenges a Mississippi law that bans abortions after 15 weeks of pregnancy. Dobbs is not just about Mississippi; it has become synonymous with the question of whether Roe v. Wade, the watershed 1973 case that legalized abortion, will be overturned by the court. Fifteen justices since Roe v. Wade in 1972, 13 since the 1992 Planned Parenthood v. Casey case that reaffirmed Roe, have held that abortion may not be banned before fetal viability at 23 to 24 weeks. Justice Sandra Day O’Connor wrote in Casey: “The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.” Indeed, she added, since Roe an entire generation of American women had formed relationships and started — or decided not to start — families under the assumption they had this right. And, presaging Sotomayor, she added, “to overturn something so momentous would call into question the court’s own legitimacy.”

A high-stakes game of chicken between former Trump advisers and the House committee investigating the Jan. 6 insurrection could enter a new phase Saturday, when former Justice Department official Jeffrey Clark is expected to appear as ordered, but may invoke his Fifth Amendment right not to answer a broad swath of questions. ...Garland “clearly knew that many people he respects, including me, were growing impatient with what we saw as the glacial pace of the process leading to this indictment,” longtime Harvard law professor Lawrence Tribe, who taught the future judge and attorney general, wrote in an email. “But he no doubt also knew that a number of experienced former federal prosecutors kept insisting publicly that several weeks was to be expected in a case of this magnitude and sensitivity.”

The Biden administration on Thursday rejected demands for a binding international agreement banning or tightly regulating the use of so-called killer robots, autonomous weapons that campaigners fear will make war more deadly and entrench a global norm of “digital dehumanization.” ... Bonnie Docherty, senior arms researcher at Human Rights Watch, said Wednesday that “much opposition to killer robots reflects moral repulsion to the idea of machines making life-and-death decisions. “A new treaty would fill the gap in international treaty law and protect the principles of humanity and dictates of public conscience in the face of emerging weapons technology,” Docherty argued.

Few blockbuster public share sales have been as tortured as Didi Global’s. Within four days of raising $4.4bn in New York in June the Chinese ride-hailing group was hit with an investigation by the authorities in its home market and its mobile application was dropped from app stores in China, preventing new customers from using it. The firm’s share price remained above its initial public offering (ipo) price for just three trading days and has since fallen by more than 40%. Now the company, which was once valued at $70bn and backed by Japanese investment firm SoftBank, says it will delist from American exchanges altogether and relist in Hong Kong. ... Such action—an unprecedented intervention by a foreign government in the American market—would make an agreement between America and China far more difficult to strike, says Jesse Fried of Harvard Law School. “Didi’s exit will thus be a preview of what is to come,” he says.

Two women who were Georgia election workers in 2020 are suing the far-right conspiracy website Gateway Pundit for defamation, alleging that the site and its owners knowingly published false stories about them that instigated a relentless campaign of harassment and threats. ... During the 2016 campaign, Gateway Pundit was among the most frequently shared media sources on Twitter and Facebook among followers of Trump, far more than mainstream news outlets, according to a study led by Harvard law professor and internet scholar Yochai Benkler.

The immediate future of abortion rights in the United States might depend on whether Chief Justice John G. Roberts Jr.’s attempt at compromise Wednesday was dead on arrival or just an opening bid. ... Wednesday’s argument “created the remarkable impression of a court at risk of disintegration,” said Richard Lazarus, a Harvard Law School professor who studies the court. “The now outsize conservative majority knew they could safely cast a deaf ear to the concerns of other justices, including even the chief justice. And the resulting frustration of the three more liberal justices was palpable.”