Media Mentions

A podcast by Noah Feldman: For the next few weeks on Deep Background, in addition to our regular show, we’re bringing you a special five-part series about the Supreme Court's dramatic rightward turn. In this third installment of Deep Bench, how the Federalist Society network influenced a historic 2012 Supreme Court decision about the Affordable Care Act.

In a world with too many disengaged, dissatisfied, and disaffected employees, as well as bumbling governments unable to deal with destabilizing change, and too many people putting misplaced trust in populist leaders, it’s sad to note that even leadership experts concede that the multi-billion-dollar leadership industry has been of little help. The never-ending array of conferences, books, workshops, and training programs on the theme of leadership has not only failed to generate appropriate leadership behavior, or even agreement on the concept of leadership: they have often made things worse. A different, more pragmatic, and more agile concept of leadership is needed to cope with the complex, rapidly changing world of the 21st century...Meanwhile, the goal of maximizing shareholder value—which even Jack Welch called “the world’s dumbest idea”—eventually came under such heavy fire that, in August 2019, more than 200 chief executives of major corporations signed a statement of the Business Round Table (BRT) publicly renouncing it. The BRT declaration stated, “Each of our stakeholders is essential. We commit to deliver value to all of them, for the future success of our companies, our communities, and our country.” Yet since the declaration was issued, researchers have found no indication of significant change in corporate behavior. Harvard Law Professor Lucian Bebchuk and colleagues found that few of the signatories obtained the approval of their boards to sign the announcement. Nor has there been any apparent effort to change the many processes and practices that reinforce the goal of maximizing shareholder value. And in cases where the firm has had to make a clear choice between shareholders and other stakeholders, these firms have invariably chosen shareholders ahead of other stakeholders. Massive share buybacks that benefit shareholders, particularly executives, continue to flourish, even where there has been a collapse in profits. Bebchuk concludes that the BRT statement was signed “mostly for show.”

An op-ed by David Benger and Mike Shum: We write this Op-Ed as representatives of two professions (law and journalism) that venerate objectivity and value dispassionate observation and analysis. We write this because journalism was once considered a safe profession within America’s borders, but that is becoming increasingly untrue. We have worked all over the world, including China, the Democratic Republic of Congo and Cambodia, and we are concerned by the familiar attacks against truth and facts we see here in the U.S. One of us (Mike) was struck by rubber-bullet fire while covering the Black Lives Matter protest in the wake of George Floyd’s murder. The free press has been under siege in this country since the election of President Donald Trump. Since Trump’s inauguration, the U.S. has become increasingly hostile to journalists. Traditional news outlets are disparaged, derided as “fake news” and ignored in favor of sources that offer “alternate facts.” Even now, journalists are fighting multiple legal battles to maintain their freedom to report the facts on the ground. Take, for example, the lawsuit that Index Newspapers (Portland Mercury) has filed to protect its reporters in Portland. According to its complaint (and multiple secondary sources), the journalists “were not engaging in unlawful activity or protesting, were not standing near protesters, and yet were subject to violence by federal agents.” In July, U.S. District Court Judge Michael Simon agreed that this was unjust. He ruled that federal law enforcement officers cannot threaten violence or arrest anyone whom they “know or reasonably should know” is a journalist or legal observer, unless officers have probable cause to believe that individual is guilty of a crime. Moreover, Simon ruled that journalists would not be subject to law enforcement’s dispersal order, ensuring that reporters would have the freedom to stay and report on whether dispersal was carried out peacefully and correctly.

President Trump has more at stake in this election than whether he remains in the White House. Holding the highest office in the land grants him effective immunity from federal criminal prosecution and gives him wide powers to stymie lawsuits against him and his business. That all changes once he becomes an ordinary citizen again. “Whatever shelters he has had as an occupant of the White House would vanish,” says Laurence Tribe, a constitutional law professor at Harvard and frequent Trump critic. “His ability to throw his weight around in terms of the deference that judges exercise—all of that is gone.” A federal prosecution of Trump would be political dynamite, and a President Joe Biden may choose not to detonate it. But a new administration could decide to revive Special Counsel Robert Mueller’s investigation into obstruction of justice by Trump or launch a new probe into the questionable tax deductions the New York Times revealed in a recent investigative report. Trump is also facing an active investigation by the Manhattan district attorney that could result in state criminal charges...Here are the major legal threats facing Trump, and how a defeat in November would affect them...Trump has long been able to argue that he’s too busy as president to deal with lawsuits, and courts have generally given him broad deference as head of the federal government’s executive branch. He would not get that deference as a former president and could be forced to sit for a deposition. Like Vance, James would probably find it easier to get information or cooperation from others. “The hesitation on the part of third parties who are the holders of potentially very incriminating information will evaporate once he’s no longer president,” Tribe says.

The almost certain confirmation of Amy Coney Barrett to the supreme court on Monday represents a “power grab” by Republicans facing possible wipeout at the ballot box, activists and analysts say. Republicans on the Senate judiciary committee shrugged off a Democratic boycott on Thursday to advance Barrett’s nomination to the full Senate, which will vote little more than a week before the presidential election. If confirmed, Barrett could be sworn in as a justice almost immediately. To critics, the rushed process represents one of the most naked power plays yet by a party which, confronting dismal opinion polls, is weaponizing unelected judges to compensate for setbacks in elections. Even as they contemplate the loss of political power, Republicans are poised to cement judicial power for generations...Laurence Tribe, a constitutional law professor at Harvard University, described Barrett’s probable confirmation as a “‘power grab’ in every relevant sense of the term, especially in light of President Trump’s open concession that he appointed judge Coney Barrett in part to ensure her ability to vote in his favour should his re-election as president end up turning on a case the supreme court would need to resolve in order to give him an electoral college victory in the face of a national popular defeat.” Trump has appointed more than 200 federal judges, likely to be his most lasting legacy whether he serves one term or two. Critics suggest the courts represent the last bulwark of Republican minority rule and the Barrett episode is starkly indicative of a party that has lost its ideological and ethical moorings and now treats power as an end in itself.

Weber County, a majority-Republican community of 260,000 on the eastern shores of Utah’s Great Salt Lake, held its first by-mail election in 2013. The process gained such widespread confidence that by June of this year, more than 99 percent of ballots cast in the primary were placed in the mail or deposited in a drop box. But something has changed in Weber County, which now requires three full-time phone operators to field calls from residents “suddenly worried about voting by mail,” said Ricky Hatch, the county clerk and auditor... In many cases, the worries can be traced to baseless or alarmist statements by President Trump and posts on his Twitter feed. Others have been fed by headlines stripped of context and misleading reporting in the mainstream media, according to election administrators, voting rights advocates and experts in online communication...A study released this month by Harvard University’s Berkman Klein Center for Internet and Society offered fresh evidence of the dangers posed by homegrown misinformation. For months, Trump has generated entire news cycles that serve to cast doubt about mail-in voting, which mainstream outlets have at times covered uncritically, the report found. The president’s influential allies have eagerly shared these and other stories with their vast online audiences, enhancing their reach and fomenting fresh doubt about the legitimacy of the 2020 vote. “With respect to mail-in voter fraud, the driver of the disinformation campaign has been Trump, as president, supported by his campaign and Republican elites,” said Yochai Benkler, who leads the center and co-wrote the report. In these and other cases, ­Benkler said, misconceptions and hoaxes that take root in the White House come to frame reporting in mainstream and partisan news sources alike. Any development related to the process of voting becomes fodder in a competition for narrative control. “The question is, who picks up that formal announcement and reframes it, or retells it, as a narrative of rampant fraud,” he said.

At least nine times since April, the Supreme Court has issued rulings in election disputes. Or perhaps “rulings” is too generous a word for those unsigned orders, which addressed matters as consequential as absentee voting during the pandemic in Alabama, South Carolina and Texas, and the potential disenfranchisement of hundreds of thousands of people with felony convictions in Florida. Most of the orders, issued on what scholars call the court’s “shadow docket,” did not bother to supply even a whisper of reasoning. “This idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about,” said Nicholas Stephanopoulos, a law professor at Harvard. “If courts don’t have to defend their decisions, then they’re just acts of will, of power. They’re not even pretending to be legal decisions.” The orders were responses to emergency applications, and they were issued quickly, without full briefing or oral arguments (hence the “shadow docket”)...More recently, emergency applications in voting cases have spiked. Lower courts have struggled to make sense of the court’s orders, which are something less than precedents but nonetheless cannot be ignored by responsible judges. Is it possible to trace some themes in the court’s election orders? Sure. One is that Republicans tend to win. Another, as Justice Brett M. Kavanaugh wrote in a concurring opinion this month, speaking only for himself, is that “federal courts ordinarily should not alter state election rules in the period close to an election.” He cited the 2006 ruling that has come to stand for that proposition, Purcell v. Gonzalez. Or perhaps “ruling” is too generous a word, as Purcell itself was an unsigned, cryptic, tentative and equivocal product of the court’s shadow docket. It has given rise to a “shadow doctrine,” Professor Stephanopoulos wrote last month in an essayon Take Care, a legal blog.

An article by Daniel Judd and Maxwell Ulin ‘22: With less than two weeks to Election Day and early voting already underway, Joe Biden’s campaign is finally resuming in-person canvassing in battleground states. It’s about time. The Biden team’s decision earlier this year to impose a moratorium on door-knocking—a party line that local candidates, too, felt pressure to follow—and opt instead for an “invisible campaign” of ads, calls, and texts was a costly blunder. In-person canvassing is one of the most effective tools a campaign has at its disposal: It motivates volunteers, persuades undecided voters and increases turnout up and down the ballot. Which may be why the Trump campaign—and state GOP organizations—never stopped knocking. So it’s welcome news that, after months of condemning canvassing as both dangerous and ineffective, top Democratic operatives have suddenly changed their tone. The challenge now, especially in the midst of a spike in Covid cases across Midwest battleground states, will be to canvass responsibly—to protect voters’ and canvassers’ health. That will take careful planning and a rigorous set of safety protocols, but it can be done. We know, because we’re doing it. For the past month, we have been knocking on doors for Democrats in Arizona with CASE Action, a political advocacy group affiliated with the hospitality workers’ union UNITE HERE Local 11. When the pandemic hit in March, more than 85 percent of UNITE HERE members lost their jobs. At the same time, CASE Action halted its in-person campaigning. But as the summer wore on, union members remained jobless—and phone-banking proved inadequate.

An op-ed by Alexandra Natapoff: The novel coronavirus pandemic is making many Americans poorer and hungrier. Parents and children across the country report going to bed hungry. In California, tens of thousands of people now depend on food banks from San Francisco to Los Angeles to San Diego, where the lines of waiting cars stretch for miles. In the face of this global crisis, the state should be protecting the vulnerable, not cracking down on the desperate. But by Nov. 3 in this election, California voters may ratchet up the punishment for stealing food and other necessities. Proposition 20would, among other things, elevate certain types of thefts from misdemeanors into potential felonies with longer sentences. It would create harsher shoplifting penalties for people with criminal records. It would also create harsher penalties for people who shoplift with someone else more than once — for example, if two parents were to steal diapers on two occasions. Prop. 20 is a broad tough-on-crime bill with numerous provisions, and its new theft rules do not explicitly mention food. But grocery retailers clearly expect it to affect people who steal food, diapers and other necessities. Supermarket chains such as Albertsons Safeway, Ralphs and Costco have contributed $100,000, $91,800 and $50,000 to the “Yes on 20” campaign, respectively. High-end gourmet grocery stores like Bristol Farms and Gelson’s contributed $12,600. Prop. 20 represents a kind of punitive backslide for California. For the past few years, the state has been a national leader in working to empty its prisons and reduce penalties for low-level crimes. Prop. 20 would undo some of that progress at a moment of extraordinary social vulnerability.

For more than two decades, Black residents of Rhode Island have argued that the official name of their state, “The State of Rhode Island and Providence Plantations,” connotes slavery and should be changed. It’s a “hurtful term” that “conjures extremely painful images for many Rhode Islanders,” said Democratic state Sen. Harold Metts, who traces his family lineage to a plantation in Virginia and is the only Black man in the Senate. Metts sponsored a bill to amend the state constitution to remove “Providence Plantations” from the official state name. Rhode Island voters will decide in November, but Democratic Gov. Gina Raimondo already has issued an executive order removing the phrase from official state documents, websites and paystubs. Citing the George Floyd killing in Minneapolis, Raimondo said Rhode Island must do more to fight racial injustice...Faneuil Hall, also called the Cradle of Liberty for the many historic events there, is owned by the city and has a visitors’ center operated by the National Park Service. Peter Faneuil, one of Boston’s wealthiest merchants in the 18th century, proposed a marketplace in 1740 and paid for the building. He was a slaveholder and slave trader. Renaming Faneuil Hall is “metaphor for addressing cultural racism in the city,” said Peterson, founder of the New Democracy Coalition, an advocacy group focusing on civic education and electoral justice. Boston Mayor Marty Walsh, a Democrat, said in June he opposes the name change...To David Harris, managing director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, “Keeping these names is a way of normalizing the horrors of our history.” Visitors to Faneuil Hall “don’t even know it’s named for a person. That’s how deeply buried our troubled past is,” Harris said in an interview. He co-wrote an essay calling for a public conversation about renaming Faneuil Hall but stopped short of endorsing a change. The headline erroneously said the authors were calling for a name change. “We said we need to have this conversation. By having a conversation, the public has a voice in the decision,” he said. “I don’t want to pretend it’s as important to change a name as to change a policy,” Harris said, adding, “but it doesn’t mean we shouldn’t do both.”

An op-ed by Charles Fried: Joe Biden got it exactly right in expressing an ambivalent openness to pushing for legislation — entirely constitutional — enlarging the number of Supreme Court justices, if Democrats win the presidency and the Senate in November. Such a move would make blazingly clear what some of us hope is not quite true: that the court is a partisan political institution, a conception that would invite further rounds of enlargement in a different political moment. But to paraphrase Churchill, such a maneuver is a bad idea, except for all the alternatives. Here the alternatives boil down to just one: a predictable, reactionary majority on the Supreme Court for perhaps as long as another generation. I write reactionary, not conservative, because true conservative judges like John Marshall Harlan II are incrementalists, not averse to change, respectful of precedent and unlikely to come into the grips of radical fantasies like eliminating or remaking the modern regulatory-administrative state. But with the seemingly inevitable rise of Amy Coney Barrett to the court, this impending six- person majority is poised to take a constitutional wrecking ball to generations of Supreme Court doctrine — and not just in matters of reproductive choice. Just look at the record. In the 2018 Janus labor law case, Justice Samuel Alito took the first long step to undoing years of legislation that allowed majority unions to compel not membership, but payment of dues — an arrangement first found constitutional by the Supreme Court in 1977. And his decision was based on constitutional grounds — protecting First Amendment freedoms — so a legislative remedy is no longer possible.

Democratic presidential nominee Joe Biden announced on Thursdaythat he would create a bipartisan commission to study the Supreme Court and federal judiciary because the system is “getting out of whack.” Biden expressed (as he has previously) his reservations about expanding the Supreme Court, but he did not rule it out...Constitutional scholar Laurence H. Tribe tells me, “I’ve strongly supported this bipartisan expert commission idea for quite some time. It accurately reflects the substantive difficulty of the issue — both for the Supreme Court’s institutional role and for the future of constitutional democracy writ large.” He continues, “It might well be true, as you implicitly suggest, that this announcement could empower the chief justice to hold his colleagues in check, but I don’t see that as one of its principal benefits or motivations.” Tribe concludes, “From my perspective, it’s a good way to avoid a premature decision that would suck up more oxygen than it should at a time when the management of the pandemic and the restoration of decency in government ought to be front and center.” Even if the commission does not come up with a solution that passes political muster, Biden is smart to at least try to reach consensus. If the Supreme Court goes on a tear and the commission comes up dry, Biden would then be in a better position to argue that expanding the Supreme Court is the only available option.

Hundreds of law students pledged to boycott employment at one of the nation's most prestigious law firms to protest lawyers who they say are exacerbating climate change by representing oil companies... "My home state, Maryland, is particularly vulnerable to climate change and sea-level rise due to its thousands of miles of shoreline," said Amy Frieder ‘22, a second-year student at Harvard Law School. "I will not work for a firm so clearly on the wrong side of history in representing Big Oil from the Maryland circuit court all the way to the United States Supreme Court," she said.

In his State of the Union address in February 2019, Donald Trump vowed to end the HIV epidemic by 2030. But if Trump has his way and the supreme court strikes down the Affordable Care Act (ACA), the resulting seismic disruption to the healthcare system would end that dream. Democrats have expressed grave concern that if Amy Coney Barrett is seated on the supreme court, the conservative jurist could cast a decisive vote to destroy the ACA in the California v Texas case scheduled for oral argument starting 10 November. The Senate judiciary committee committee voted to advance Barrett’s nomination on Thursday. A full Senate vote is expected on Monday. The brainchild of Dr Anthony Fauci and other top brass at the Department of Health and Human Services, the ambitious Ending the HIV Epidemic: A Plan for America has received for its debut year $267m in new federal spending, largely targeted at HIV transmission hotspots across the US. The central aim of the Trump-backed plan is to improve access to antiretrovirals, given that successfully treating HIV with such medications eliminates transmission risk...Given antiretrovirals’ enormous cost, the ACA and its broadening of insurance access serves as backbone to the HIV plan, which seeks a 90% reduction by 2030 to the otherwise slowly declining or stagnant national HIV transmission rate of about 37,000 new cases annually...When individuals stop taking such medications, HIV can spread more widely as viral load rises to a transmissible level in people with the virus and HIV-negative people lose PrEP’s protection. The pandemic has already disrupted such access. Preliminary analyses pointto rising rates of unsuppressed HIV and major declines in PrEP refills and testing for the virus in recent months. “In light of the extraordinary public health and economic challenges we are currently facing, the idea that the supreme court would reverse the great progress we have made in efforts to eliminate HIV in the United States is heartbreaking and morally reprehensible,” said Robert Greenwald, director of the Center for Health Law and Policy Innovation at Harvard Law School.

Republicans on the Senate Judiciary Committee have unilaterally advanced the nomination of Judge Amy Coney Barrett to the Supreme Court, in spite of a boycott by Democrats. Harvard Law Professor Alan Jenkins joined CBSN to break down what Barrett's impact could be on the court.

An op-ed by Noah Feldman: With Judge Amy Coney Barrett’s confirmation to the Supreme Court all but certain, Democrats are toying with ways to reform the court. Former Vice President Joe Biden plans to suggest a bipartisan commission to study the options. Unfortunately, the proposals all have serious flaws. Either their constitutionality is doubtful or they would undercut the tremendously valuable role that the court plays in protecting liberty and equality. The most dire of these proposals is court-packing. I’ve written before that any attempt to expand the court is likely to fail, and for good reason. But what about more commonsensical ideas, like term limits for justices? Logically, this would be a huge improvement over the current system. Instead of the calendar of replacement being driven by the randomness of justices’ aging processes, illnesses and retirement decisions, we would have a relatively regular and rational schedule. What we would lose in the occasionally brilliant long-serving justice we would gain in commonsense planning. And it would no longer be necessary to appoint justices at younger and younger ages. A healthy 60-year-old would be just fine. The problem is that the Constitution says that the justices serve “during good behavior.” It’s pretty clear that this didn’t and doesn’t mean that they should serve based on term limits, but indefinitely. That’s why the tradition in the U.S. has long considered such term limits unconstitutional. There are some creative arguments to try and get around this; but in the end, the Supreme Court would have to rule on whether it would be constitutional to create new judgeships with term limits attached. I seriously doubt the court would uphold term limits for new justices.

On Sunday, October 18, Luis Arce won the presidency of Bolivia, in a pronounced repudiation of last year’s military coup, which had put the current government in power. Arce is the former economy minister for Evo Morales, who was the first indigenous president of the country with the largest percentage of indigenous people in the Americas. Morales’s democratically elected government was overthrown in November of last year. The November coup was backed by the Trump administration, and the Organization of American States (OAS) leadership played a central role in laying the foundations for it. Sunday’s election thus has enormous potential implications not only for Bolivia, where it was a necessary step toward the restoration of democracy, but also for the region, in terms of democracy, national independence, economic and social progress, and the struggle against racism...Bolivians also suffered from more deliberate crimes under the current government. These included two massacres by security forces, in which they killed at least 22 people—all of them indigenous. The overt racism of not only the security forces but also the leaders of the coup itself and the de facto government, as well as that government’s repression and political persecution, was documented in a July report by Harvard Law School’s International Human Rights Clinic and the University Network for Human Rights. This report found that the month of the coup was “the second-deadliest month in terms of civilian deaths committed by state forces since Bolivia became a democracy nearly 40 years ago.”

Within hours of the publication of a New York Post article on October 14th, Twitter users began receiving strange messages. If they tried to share the story—a dubious “exposé” of emails supposedly from the laptop of Hunter Biden, son of the Democratic presidential nominee—they were told that their tweet could not be sent, as the link had been identified as harmful. Many Facebook users were not seeing the story at all: the social network had demoted it in the news feed of its 2.7bn users while its fact-checkers reviewed it. If the companies had hoped that by burying or blocking the story they would stop people from reading it, the bet did not pay off. The article ended up being the most-discussed story of the week on both platforms—and the second-most talked-about story was the fact that the social networks had tried to block it...For now, the social networks have to get through perhaps the hardest fortnight in their short history. They face the possibility of having to deploy content-moderation tools developed for fragile, emerging democracies in their home country. Facebook removed 120,000 pieces of content aimed at voter suppression in America in the past quarter. The New York Post affair does not bode well for how the companies might handle the fallout from a contested election. “When they appeared to depart from their policies they opened themselves up to the very charges of bias that followed,” says Evelyn Douek of Harvard Law School. As the election approaches, they need to “tie themselves to a mast” of clear rules, she says. A storm is coming.

An article by Vivek Wadhwa: No country will contribute more to the rise in global carbon emissions than India. Energy consumption among its 1.4 billion people is rising fast, with 65 percent of the country’s electrical power currently generated from coal. The world’s filthiest fossil fuel—of which India consumes more than the United States and Japan combined—will “remain ingrained under the fingernails of the nation” because of “politics, economics, and the complications of generating electricity.” So said the Economist in a 2018 briefing. The British magazine’s briefing perfectly encapsulates the widespread view of India as climate policy’s problem child. But the conventional wisdom couldn’t be more wrong. Little noticed in the West, India is undergoing a green-energy revolution—exceeding targets, breaking records, and quickly making the age of cheap clean energy a reality. Because of the dominance of India’s coal industry, few experts ever expected India to be on track to significantly exceed two key commitments to the Paris Agreement. One is India’s pledge to increase the share of power-generation capacity that doesn’t use fossil fuels to 40 percent by 2030; today, generation capacity from renewable, hydroelectric, and nuclear sources already reaches 38 percent, putting India on track to comfortably exceed its target. The other commitment is to reduce carbon emissions by 33 to 35 percent (from 2005 levels) by 2030. Today, India looks likely to reduce emissions by as much as 45 percent by 2030, far surpassing its Paris target.

President Donald Trump won the White House — and is trying to do it again — in large part by railing against “sanctuary cities,” refugees and other immigrants. His “great, great wall,” funded by taxpayers, not Mexico, is progressing slowly though recently sullied by a scandal involving his former campaign chief, Steve Bannon. He has sharply increased fees for asylum seekers and green-card applicants and torn apart families at the border...For 17 years, former Bolivian President Gonzalo “Goni” Sánchez de Lozada and his defense minister, José Carlos Sánchez Berzain, have faced accusations that they authorized the military to use deadly force against civilians, a majority of them indigenous Aymara. Sixty-seven people were killed and hundreds injured in October 2003, according to news reports, although Sánchez Berzain has disputed the number and whether he directed the military’s actions. The pro-American Sánchez de Lozada resigned and left for the United States around the same time as Sánchez Berzain, aided by the U.S. State Department, documents show. They have lived in Maryland and South Florida, respectively, since 2003. Sánchez Berzain filed for asylum in 2006, stating he would be tortured by henchmen of then-President Evo Morales. His request was approved in May 2007...Sánchez Berzain and Sánchez de Lozada have prospered in their new country. Together with his brother-in-law, Sánchez Berzain is associated with several LLCs through which various properties have been purchased. He has also carved a niche as an anti-Communist crusader among exiled Cubans and Venezuelans, opening a political center called the Interamerican Institute for Democracy and has regularly written op-eds that inveigh against 21st Century socialism, which he calls “Castrochavism.” He has faced legal headwinds since Harvard Law’s International Human Rights Clinic filed a civil complaint under the 1992 Torture Victims Protection Act that permits civil suits in the United States against individuals who, acting in an official capacity for any foreign nation, committed torture and/or extrajudicial killings.

Barring a minor miracle, Republican senators will narrowly vote to confirm Amy Coney Barrett to the Supreme Court next week, just eight days before an election that likely will sweep many of their members and President Trump out of office. Leaving aside the prospect that Republican-appointed justices would try to “steal” the election for Trump, Congress will retain the power to protect Democratic policy preferences on several hot-button issues. And it can do so without adding seats to the Supreme Court or curtailing its jurisdiction. Take, for example, the Affordable Care Act. The ACA is before the Supreme Court only because Congress reduced the law’s individual mandate penalty to zero in 2017...Then there is gay marriage, which the Supreme Court by a 5-4 majority ruled is protected by the 14th Amendment in Obergefell v. Hodges. It is not clear whether the Supreme Court, after hundreds of thousands of Americans took advantage of the decision to get married, would sweep it away or invalidate current marriages. However, if it took that step, constitutional scholar Laurence Tribe opines, “In my view, Congress would have power to pass a Defense of All Marriage Act mandating recognition of other states’ marriages” under Article IV of the Constitution. Senate Republicans might seek to block such a measure, but Democrats could break through their opposition by getting rid of the filibuster. Finally, abortion is where we will see just how determined Barrett and her conservative cohorts are to pursue their social agenda. Roe v. Wade was decided in 1973; Planned Parenthood v. Casey, which established the undue burden test, was decided in 1992. If Barrett is as much of an activist, pro-life judge as she seems, she could well invalidate these decades-old precedents.