Media Mentions

In his new book “Persuasion: Getting to the Other Side,” Joseph William Singer, Bussey Professor of Law at Harvard Law School, describes the methods lawyers use to persuade and engage in civil discourse that all Americans, including politicians, could learn from.

The United States Supreme Court rejection of a petition to hear a case on Indiana’s Right to Farm Act last week is the latest development in an ongoing legal battlebetween environmental and agriculture groups. Both sides are looking at the upcoming state legislative session to push for policies helping those they represent. The five-year legal battle focused on confined animal feeding operations, or CAFOs, and their effect on nearby residential property values and quality of life. The Harvard Animal Law and Policy Clinic joined as co-counsel with the Hoosier Environmental Council on the Supreme Court petition representing two Hendricks County couples who sued a neighboring hog farm in 2015 saying it is making it difficult for them to eat or sleep. “For farmers across the state, they get very great comfort in knowing that if they if they do things, right, that they should enjoy the protections, the Right to Farm Act and be able to defeat nuisance actions,“ said Chris Braun, a lawyer with Plews Shadley Racher + Braun who represented the Hendricks County CAFO owners. Kim Ferraro is a lawyer with the Hoosier Environmental Council and represented the residents living near the CAFO who filed the complaint. “Obviously we're saddened by the decision. The filing with the U.S. Supreme Court we knew was a long shot,” said Ferraro, referring to the thousands of petitions rejected by the U.S. Supreme Court. “The fact that the court didn't take the case, does not mean that the petition didn't have merit.” Ferraro said the challenge with proving negligence in this case is due to a lack of regulations on CAFOs.

Two hours before Donald Trump boosted the standing of white supremacists at the last Presidential debate, Facebook told Rashad Robinson, the president of the civil-rights organization Color of Change, that it would not remove a potentially incendiary and racially tinged Trump-campaign post. The message in question showed the President’s eldest son, Donald Trump, Jr., calling upon “an army” of Trump supporters to show up at polls across the country, to “protect” the election. The Black community, Robinson would later say, saw the post as a “threat to our ability to express our will for a better future.” But the company, which has become a de-facto arbiter of political speech, interpreted the takedown request as a matter of semantics; Robinson said that it quibbled over the meaning of “army.” Robinson recounted the experience at the launch, over Zoom, of the Real Facebook Oversight Board, an international, ad-hoc cadre of activists and academics convened by the British investigative journalist Carole Cadwalladr... “Our group has come together for one purpose,” Shoshana Zuboff, a Harvard Business School professor emerita and the author of “The Age of Surveillance Capitalism,” said on the Zoom call. “We demand comprehensive action to insure that Facebook cannot be weaponized to undermine the vote.” Jonathan Greenblatt, the director of the Anti-Defamation League, which has been tracking hate groups for decades, observed that Facebook “actively and knowingly has facilitated the flow of poison into the population, and enabled waves of anti-Semitism and racism, Holocaust denialism and Islamophobic conspiracies, disinformation and extremism.” The Harvard Law School professor Laurence Tribe called his participation in the Real Facebook Oversight Board “probably the most important effort in my fifty-year career in the law.” The Real Facebook Oversight Board is a self-appointed proxy for the official Facebook Oversight Board, which was designed to function as a kind of independent appeals court, adjudicating various challenges to the company’s decisions on whether to remove content.

A podcast by Noah Feldman: Introducing Brave New Planet, a seven-part series that delves deep into powerful technologies changing our world. They have amazing potential upsides, but we can’t ignore the serious risks. Hosted by Dr. Eric Lander, Brave New Planet is a partnership between the Broad Institute, Pushkin Industries, and the Boston Globe. In this episode, we're talking about how it's becoming more common to make convincing -- but false -- videos through artificial intelligence. These “deepfakes” can be useful in art, education, and therapy. But they can also be used to harm the reputation of an ex-partner or a stranger. Could they be weaponized to provoke international conflicts or swing elections? When seeing is not believing, who can we trust, and can democracy and truth survive?

An article by Hagop Toghramadjian ‘22 and Kathleen Bailey: Coverage of the decades-long Armenia–Azerbaijan conflict often focuses on regional implications, repeating customary lines about potential tensions between Russia and Turkey and mentioning the proximity of Iran. But the scale of the fighting since September 27 is striking enough to justify attention on its own. As of October 12, at least 500 Armenian soldiers have been killed in nonstop firefights along a 100-mile front (Azerbaijan does not release casualty information). Azerbaijan has unleashed a campaign of indiscriminate cluster bombing against Armenian civilian centers; Stepanakert (population 55,000) is reduced to rubble.  In Armenia, where thousands of volunteers have streamed to the front, the battle is grimly referred to as the goyamart: a fight for survival. In just two weeks, the clashes have already developed into one of the largest conventional military engagements of the 21st century. In the name of hard-headed “realism,” important voices in the D.C. foreign-policy establishment are pressing a dangerously simplistic view of the conflict. To them, there is nothing much to discuss: Azerbaijan is “on our team” against Iran and Russia, so we should cheer for its success against the outnumbered Armenians. It’s irrefutable “geopolitical math.” The assumptions underlying this simplistic interpretation are faulty. As we discuss below, Azerbaijan is in fact deceptively close to Iran and Russia. Meanwhile, Armenia’s fundamental social and political orientations promise to make it a much more sincere and durable partner of the United States. U.S. support for Azerbaijan has high stakes and real consequences. For fiscal year 2020, in response to rising tensions with Iran, the Trump administration allocated over $100 million in military aid to Azerbaijan — significantly more than to any other country in the region. This massive windfall was entrusted to Azerbaijan’s notoriously corrupt Aliyev regime, which has maintained power for nearly three decades by hoarding oil riches, stoking anti-Armenian chauvinism, eliminating press freedom, and perfecting brutally repressive techniques.

An op-ed by Nancy Gertner: In his 2016 book “The Undoing Project,” Michel Lewis described the work of psychologists Daniel Kahneman and Amos Tversky as “undoing” assumptions about human decision-making. The title is also apt for what is unfolding before the Senate today: the Republican Party’s efforts to remake the Supreme Court into a conservative branch, first with the addition of Justices Neil Gorsuch and Brett Kavanaugh, and now with the nomination of Judge Amy Coney Barrett. This undoing project is not just about undoing the right to choose abortion, or the right to same-sex marriage — although that much is clear. Barrett, in an article entitled “Catholic Judges in Capital Cases,” distinguished between a judge’s obligations in death penalty cases and abortion cases. Abortion, she said, was “always immoral,” the church’s teachings constituting a “flat prohibition.” In contrast, the church treated the death penalty as permissible in cases of “absolute necessity.” Barrett’s mentor, the late Supreme Court Justice Antonin Scalia, whose originalist judicial philosophy she touts, stridently dissented when the court ruled that the state cannot criminalize homosexual conduct or prohibit same-sex marriage. On the Affordable Care Act, Barrett accused Chief Justice John Roberts of having “pushed” it “beyond its plausible meaning to save the statute.” But this undoing project is broader — it’s a return to an era decades ago, when a conservative pre-New Deal Supreme Court used a contested constitutional doctrine about freedom of contract — the right of workers and bosses to contract for the terms of employment — to invalidate statutes requiring improved working conditions, higher wages, and limited hours. Recently, the court’s conservative majority held that the requirement that public employees pay agency fees to support their union violated the free speech rights.

Facebook and Twitter took action on Wednesday to limit the distribution of New York Post reporting with unconfirmed claims about Democratic presidential nominee Joe Biden, leading President Trump's campaign and allies to charge the companies with censorship. Both social media companies said the moves were aimed at slowing the spread of potentially false information. But they gave few details about how they reached their decisions, sparking criticism about the lack of clarity and consistency with which they apply their rules. The New York Post published a series of stories on Wednesday citing emails, purportedly sent by Biden's son Hunter, that the news outlet says it got from Trump's private lawyer, Rudy Giuliani, and former Trump adviser Steve Bannon...Facebook has been warning about the possibility of "hack and leak" operations, where stolen documents or other sensitive materials are strategically leaked — as happened in 2016 with hacked emails from the Democratic National Committee and Hillary Clinton's campaign. But the companies' moves on Wednesday drew criticism from some experts, who said Facebook and Twitter needed to more clearly explain their policies and how often they apply them. "This story is a microcosm of something that I think we can expect to happen a lot over the next few weeks and, I think, demonstrates why platforms having clear policies that they are prepared to stick to is really important," said Evelyn Douek, a Harvard Law School lecturer who studies the regulation of online speech. "It's really unclear if they have stepped in exceptionally in this case and, if they have, why they've done so," she said. "That inevitably leads to exactly the kind of outcry that we've seen, which is that they're doing it for political reasons and because they're biased."

An op-ed by Jeannie Suk Gersen: My one real conversation with Justice Ruth Bader Ginsburg took place in 2004, when I was a law clerk for Justice David Souter. Ginsburg invited my colleagues and me for tea in her chambers, where she served pastries baked by her husband. Ginsburg recalled the initial revelation of the term “sexual harassment,” which put a name to a phenomenon that, she said, “every woman” understood. Among her stories was one that is widely known today, about the sexism of the nineteen-fifties. When Ginsburg was a student at Harvard Law School, the handful of women in her class were invited to a gathering at which the dean asked each of them to justify taking a spot that could have gone to a man. Four decades later, when Justice Byron White, who had dissented in Roe v. Wade, retired from the Supreme Court, the spot that opened up did not go to a man but to Ginsburg, who by then was a judge on the D.C. Circuit and a longtime heroine of the women’s movement. And, in just a few weeks, her seat will likely be occupied by another woman, the Court’s fifth ever: Amy Coney Barrett, another circuit-court judge and a former professor at Notre Dame Law School, whom liberals and conservatives alike expect to enable the dismantling of Roe and perhaps the undoing of Ginsburg’s legacy. When President Trump announced Barrett’s nomination, on September 26th, she paid homage to Ginsburg, who “began her career at a time when women were not welcome in the legal profession,” and promised that, if confirmed, she will “be mindful of who came before me.” But Barrett, who clerked for Justice Antonin Scalia, is a conservative; she said that Scalia’s “judicial philosophy is mine, too.” During her confirmation hearings, she has been asked to justify replacing a great liberal feminist Justice, taking a spot that, after the election, could perhaps have gone to a Democrat.

An op-ed by Noah Feldman: I have always hated the kabuki theater of Supreme Court confirmation hearings. But I can still dream that some judge, someday, might actually answer some interesting questions — although that does not seem like it will be happening this week. Nonetheless, there are at least two hard questions Judge Amy Coney Barrett should be asked about precedent — and that, in a sensible world, she would answer directly. 1. What is the difference between precedent and “super-precedent”? Is the right to abortion a super-precedent? And if not, why not? The idea of super-precedent has never been used expressly in a Supreme Court opinion. Fifteen years ago, constitutional scholar Jeff Rosen traced the first judicial use to stalwart conservative Judge Michael Luttig, who wrote that Planned Parenthood v. Casey, which declined to overturn Roe v. Wade, had been meant by the Supreme Court “as a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy.” Luttig’s implication was that it should be even harder to overturn the abortion right than to overturn other well-established precedent. Senator Arlen Specter asked then-Judge John Roberts about the idea at Roberts’s confirmation hearings. Roberts was careful, embracing the idea of precedent without the word “super.” In Tuesday’s hearings, Barrett said that Brown v. Board of Education is a “super-precedent … that is so well-established that it would be unthinkable that it would ever be overruled.” She also pointed to several other super-precedents, like Marbury v. Madison. So it would be right to press Barrett on why the Roe v. Wade decision, now nearly fifty years old, should be any different.

An op-ed by Cass Sunstein: We have heard a great deal about Judge Amy Coney Barrett’s approach to the law in the time leading up to her Supreme Court confirmation hearings this week. She believes in adhering to the text of the U.S. Constitution and of statutes enacted by Congress, and in following the “original meaning” of that text. In this respect, she follows her mentor, the late Justice Antonin Scalia. In her words: “… It was the content of Justice’s Scalia’s reasoning that shaped me. His judicial philosophy was straightforward: A judge must apply the law as written, not as the judge wishes it were.” She also explained: “Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold." Fair enough. But what would you think about a judge who voted to strike down the Affordable Care Act, to strike down greenhouse-gas regulations, to strike down gun-control laws, and to strike down affirmative-action programs? Would you be quite clear that such a judge had been “resolute in setting aside any policy views they might hold”? What would you think if that very same judge voted to invalidate congressional restrictions on corporate speech, voted to forbid Congress from allowing citizens to bring suit in federal court, voted to strike down campaign-finance regulations, voted in such a way as to hand the 2000 presidential election to President George W. Bush — and consistently voted against constitutional protections of gays and lesbians? Would you be so sure that such a judge was simply “applying the law as written”? And what would you think if that same judge voted to strike down environmental regulations as interfering with property rights, voted to overrule Roe v. Wade, and ruled against a constitutional right to same-sex marriage?

This summer, a bipartisan group of about a hundred academics, journalists, pollsters, former government officials and former campaign staff members convened for an initiative called the Transition Integrity Project. By video conference, they met to game out hypothetical threats to the November election and a peaceful transfer of power if the Democratic candidate, former Vice President Joe Biden, were to win. Dividing into Team Trump and Team Biden, the group ran various scenarios about counting ballots and the litigation and protests and violence that could follow a contested election result. The idea was to test the machinery of American democracy...The conspiracy theories, the lies, the distortions, the overwhelming amount of information, the anger encoded in it — these all serve to create chaos and confusion and make people, even nonpartisans, exhausted, skeptical and cynical about politics. The spewing of falsehoods isn’t meant to win any battle of ideas. Its goal is to prevent the actual battle from being fought, by causing us to simply give up. And the problem isn’t just the internet. A working paper from the Berkman Klein Center for Internet and Society at Harvard released early this month found that effective disinformation campaigns are often an “elite-driven, mass-media led process” in which “social media played only a secondary and supportive role.” Trump’s election put him in the position to operate directly through Fox News and other conservative media outlets, like Rush Limbaugh’s talk-radio show, which have come to function “in effect as a party press,” the Harvard researchers found...In a 2018 book, “Network Propaganda,” Yochai Benkler, a director of the Berkman Klein Center at Harvard, and two researchers there, Robert Faris and Hal Roberts, mapped the spread of political disinformation in the United States from 2015 to 2018. Analyzing the hyperlinks of four million news articles, the three authors found that the conservative media did not counter lies and distortions, but rather recycled them from one outlet to the next, on TV and radio and through like-minded websites.

The 2020 presidential election could be so tight, and the result so hotly contested, that the losing party refuses to concede, triggering a chaotic free-for-all in which Congress, the courts, and, in the most extreme case, the military could determine the winner. It may sound far-fetched, but the Constitution has major gaps when it comes to deciding a contested presidential race...Now let’s take the alternative scenario from above, where the Florida legislature replaces the pro-Biden slate of electors with a pro-Trump slate. Congress oversees counting the Electoral College votes. Both slates of electors from Florida — those ready to vote for Biden, and those for Trump — would surely show up in Washington claiming to represent the true will of the people. Who chooses which set of votes to count? Some say it would be Vice President Mike Pence in his capacity as president of the Senate. But most experts agree that decision falls to Congress. What happens if a split Congress can’t agree on which votes to count? The Constitution has no answer. In a true nightmare scenario, Pelosi declares the electors invalid, refuses to count the votes, and claims, in the scenario laid out above, that the House has the power to declare Biden the winner. Then, Senate Republicans rally behind Trump while Pelosi and the Supreme Court face off over who has authority. “If it’s a contest between Nancy Pelosi and the Supreme Court, we have no idea,” said Lawrence Lessig, a professor of law and leadership at Harvard Law School. “At some point, it’s the military’s judgment — because if Trump refuses to leave, who’s going to show up at the White House on Inauguration Day and escort him out?” ...Lessig said he believes the courts would ultimately get involved to avoid the appearance of a stolen election. “These are people who think about history. That’s what their whole lives are about,” he said. Still, at a time when norms are being shattered and the president is openly talking about neutering the United States Postal Service’s ability to count millions of mail-in ballots, Lessig says unimaginable scenarios have become very imaginable. “The question is not what’s reasonable or fair,” he said. “The question is what’s possible.”

In this episode—the second in our ongoing “Big Decisions” spin-off series—guest host and chair of the RFF Board of Directors Sue Tierney talks with Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School, and Jeffrey Holmstead, a former assistant administrator at the US Environmental Protection Agency. Both guests this week reflect on their experiences working on environmental policy during the hectic early years of a new presidential administration and discuss upcoming challenges for either a Biden presidency or another Trump term as the pandemic persists, global economic woes continue, and climate change intensifies. While Freeman has concerns that confirming Amy Coney Barrett to the Supreme Court could reduce the authority of environmental regulators, Holmstead contends that the court’s conservative turn could be an opportunity for Congress to take the lead in pursuing ambitious energy legislation again.

In the lead up to Monday's confirmation hearings to install Judge Amy Coney Barrett on the US Supreme Court, Democratic presidential candidate and former Vice President Joe Biden raised concerns that the efforts to put Barrett on the court are unconstitutional and exemplify court packing. "The only court packing going on right now, is going on with Republicans packing the court now," Biden told reporters on Saturday. "It is not constitutional what they are doing." Facts First: This is false. Legal experts say there is nothing strictly unconstitutional about Barrett's confirmation process...Asked about Biden's comments, the campaign referred CNN to Laurence Tribe, Professor of Constitutional Law at Harvard Law School. Reached by CNN, Tribe said McConnell's decision to hold a hearing for Barrett despite refusing to do so for Garland goes against the Constitution's founding principles, but acknowledged the Republican-led nomination effort does not violate any specific article of the Constitution. In defense of Biden's claim, campaign spokesman Andrew Bates also added that "The structure and principles of our Constitution stand against this divisive and extreme power grab that Donald Trump and Mitch McConnell are carrying out in order to undo life-saving protections for Americans suffering from preexisting conditions. Ramming through this nomination after millions of Americans have already voted is contemptuous of the essential democratic structure that is the bedrock of the Constitution." "Most of what the Constitution forbids is not written down," Tribe noted. According to Tribe, Barrett's nomination process taking place before the election avoids consent by the governed, misuses the Senate's power of advice and consent, and violates the commitment to honor and decency he believes the framers intended those chosen to serve the American people must uphold. "The sheer power to appoint a Supreme Court justice when you've got the votes is not in question," Tribe said. "The question is what principles apply."

An op-ed by Beth Feldstein ‘21, Niki Rubin ‘22, Ross Svenson ‘21, and Katie Cion ‘21: Democracy dies in the elitist networks created and maintained by lawyers. As students at Harvard Law School (“HLS”), we know that many perceive Harvard as epitomizing the legal elite—HLS is historically the most represented school on the Supreme Court and has a similarly outsized presence in the broader federal judiciary. The HLS website contends that “no law school has done more to shape law.” But HLS applauds power, regardless of how it is deployed. Rather than counting its trophies, HLS must reckon with the toxic culture of elitism it perpetuates—and the disastrous effects this culture has on the most vulnerable in our country...Our organizations (the Harvard Chapters of the People’s Parity Project and American Constitution Society) work to recognize the privilege our education gives us and use our platforms for parityrather than power. It’s past time for everyone in the legal community—students, practitioners, and professors—to do the same. That means rethinking the reliance on elite credentials at the expense of their deleterious effects on our country. Judge Barrett's participation in a White House event to celebrate her nomination, without wearing a mask or attempting to socially distance, calls her fitness for the bench into question. Such reckless disregard for the health of attendees and the employees and reporters working at this event—over two dozen of whom have now tested positive for coronavirus—evinces poor judgment. But even before September’s superspreader disaster, Judge Barrett’s record displayed a callous indifference to human life. Between 2011 and 2017, Judge Barrett gave five paid speeches sponsored by the far-right Alliance Defending Freedom. The organization, designated as a hate group by the Southern Poverty Law Center, supports re-criminalizing homosexuality and sterilizing trans people. A Justice should rebuke hate groups, not accept money from them.

A Myanmar election app backed by foreign funding, including an organization supported by the Canadian government, is “clearly discriminatory” toward the country’s persecuted Rohingya population, the former head of a United Nations fact-finding mission says. The mVoter2020, released last week, delivers information on nearly 7,000 candidates onto smartphones ahead of the country’s Nov. 8 election, in what was billed as an important contribution to democracy in a country where large numbers of people remain under orders to stay inside because of the pandemic. But the app and its underlying technology, backed by the Asia Foundation and the International Institute for Democracy and Electoral Assistance (International IDEA), include information on the ethnicity and religion of candidates. It is data that can be useful in a country that designates electoral seats for some specific groups but which critics say underpins divisive identity politics in the country. The app also described at least two Rohingya candidates using the term “Bengali,” an epithet employed by Myanmar leaders and Buddhist nationalists in a country whose armed forces have been accused of genocidal attacks on the largely Muslim minority group...To be associated with the term “Bengali” is to be associated with some of the worst actions against the Rohingya, said Yee Mon Htun, a Myanmar-born Canadian lawyer who is now an instructor and lecturer at Harvard Law School’s International Human Rights Clinic. More than 730,000 Rohingya have been driven out of Myanmar after 2017 “clearance operations” against the group in which women were raped and children burned to death as homes were torched. The idea that Rohingya are “foreign interlopers threatening the integrity of this country is why any violence or crimes against them is justified – because they’re not from this country,” said Ms. Htun, who recently completed a year working with organizations inside Myanmar to study hate speech. The term “Bengali” fits with a broader current of dehumanizing rhetoric against the Rohingya, she said, and “what’s happened in Myanmar shows that what seems like benign hate speech can translate into gross atrocities on the ground.”

An op-ed by Noah Feldman: On October 5, Supreme Court Justice Clarence Thomas issued a statement, joined by Justice Samuel Alito, expressing ongoing disagreement with Obergefell v. Hodges, the landmark gay marriage decision, arguing that it stigmatized religious opposition to gay marriage. The statement understandably raised concerns that a growing conservative majority on the court could use religious liberty as a cover to roll back rights for LGBTQ people. It is certainly likely that the current conservative majority will recognize exemptions from anti-discrimination law for religious groups like evangelical Christians. However, even after Justice Ruth Bader Ginsburg’s death, and even if Judge Amy Coney Barrett is confirmed, there are still five votes to protect gay and trans rights under most circumstances, including at work and in marriage. That’s because of 2020’s hugely important Supreme Court decision, Bostock v. Clayton. This ruling extended workplace anti-discrimination law to gay and trans people and makes reversal of 2015’s Obergefell extremely unlikely. The 6-3 decision in Bostock was written by conservative Justice Neil Gorsuch, and joined not only by the court’s four liberals, but also by Chief Justice John Roberts. Technically, Bostock was about a question of statutory interpretation — the meaning of Title VII — while Obergefell was about whether the Constitution guarantees a right to gay marriage. A justice could in theory think that Bostock is correctly decided while Obergefell was not. But there are powerful jurisprudential, as well as political, reasons to think neither Gorsuch nor Roberts would vote to overturn Obergefell.

An op-ed by Cass Sunstein: Have a look, if you would, at this image: Is it a duck, or is it a rabbit? Many people see it as a duck; many others see it as a rabbit. You might see it as one and then as the other, maybe with some effort. You might try simultaneously to see the image as both a duck and a rabbit, but that is not possible. At any moment, it is one or the other; it is not both. If you can easily see it as one and then the other, congratulations. You might be especially creative. The philosopher Ludwig Wittgenstein used the duck-rabbit figure to explain that there is a difference between “seeing that” and “seeing as.” When you see a table, you are seeing “that” it is a table. It just is a table. But when you see clouds in the sky forming an image of a face, you are seeing the cloud formation “as” a face. In the latter case, your own perspective is crucial. If you see a duck, you might think that you are seeing “that.” But you are really seeing “as.” People often confuse the two. Why do some people see a duck, and why do others see a rabbit? A likely answer points to the importance of our preconceptions. For example, researchers have found that people of all ages, and particularly those between the ages of 2 and 10, were significantly more likely to see the image as a rabbit on Easter Sunday...The duck-rabbit image is both puzzling and fun. It also helps us understand current social divisions, including those in both law and politics. Supreme Court nominee Amy Coney Barrett is a “textualist,” committed to following the ordinary meaning of congressional enactments. But what is that meaning? Textualists insist that they see a duck. But it might also be a rabbit.

Despite the recent concerns about coronavirus exposure at the Capitol — and the fast-approaching general election — the Senate confirmation hearing for Supreme Court nominee Amy Coney Barrett is still happening. The hearing will air Monday, October 12, through Thursday, October 15, beginning at 9 am each day...Day one of the hearings will start with opening statements from Barrett as well as from every member of the committee, which is helmed by Chair Lindsey Graham (R-SC) and ranking member Dianne Feinstein (D-CA). Meanwhile, questions for Barrett are slated to take place on Tuesday and Wednesday, and a panel of outside witnesses will testify about her nomination on Thursday. The hearings mark one of the key steps in Republicans’ efforts to rush through Barrett’s nomination just weeks ahead of the general election, and its set-up will be somewhat different from confirmations in the past...An area that Democrats are expected to avoid is a focus on Barrett’s faith, which was a centerpiece of her 7th Circuit hearings, because she’s previously written about it in the context of possible judicial decisions, CNN reports. As Millhiser notes, however, some of the questions during those hearings — including a memorable one from Feinstein — came off as attacks on Barrett’s Catholicism rather than its relationship to her work. “It is fair game to criticize a nominee for their political beliefs, including their opposition to abortion. And it is fair game to criticize someone for political beliefs that are inspired by their religious faith,” writes Millhiser. “But, in a disastrous exchange with the future Judge Barrett during her 2017 confirmation hearing, Sen. Dianne Feinstein (D-CA) appeared to go a step further — seeming to attack Barrett’s Catholicism itself.” Harvard Law Professor Mark Tushnet has noted, though, that it’s possible for lawmakers to ask Barrett about her previous writings about faith and capital punishment without “lapsing into anti-Catholicism.”

President Trump publicly pressured the Justice Department on Friday to move against his political adversaries and complained that Attorney General William P. Barr is not doing enough to deliver results of a probe into how the Obama administration investigated possible collusion between Russia and the 2016 Trump campaign. The delayed report is “a disgrace,” and Trump’s 2016 Democratic opponent, Hillary Clinton, should be jailed, Trump said in a rambling radio interview, one day after he argued on Twitter that his current Democratic opponent, Joe Biden, is a criminal who should be barred from running. Three weeks before the election and as he trails Biden in polls nationally as well as in key states, Trump is issuing a new torrent of threats and demands for federal action against Democrats, including former president Barack Obama, that go beyond his familiar and often erroneous claims of wrongdoing by his perceived political enemies...The president’s calls for the Justice Department to target his political opposition in the heat of a presidential campaign is a jarring moment without precedent in modern American history. But it is in keeping with Trump’s actions when he has faced adversity, which now includes testing positive for the coronavirus last week after for months minimizing the threat posed by a deadly virus that has killed more than 213,000 Americans. “The behavior would be shocking in a normal presidency, but Trump has literally been doing this for years,” Harvard Law School professor Jack Goldsmith, a Justice Department official in the George W. Bush administration, said of Trump’s calls to go after Democrats. “So it is reprehensible, but not shocking.”

Supreme Court Justice and liberal icon Ruth Bader Ginsburg, who recently passed away at the age of 87, was best known for championing women’s rights. But she also leaves behind a remarkable environmental legacy. Harvard Law Professor Richard Lazarus, author of “The Rule of Five: Making Climate History at the Supreme Court,” believes the “classic example” of Ginsburg’s contribution to environmental jurisprudence was the 2007 case Massachusetts v. EPA, which is widely considered the most important environmental case ever decided by the US Supreme Court. This was the case in which the court established that EPA had authority to regulate greenhouse gases under the Clean Air Act, an idea that EPA itself had rejected. No less importantly, according to Lazarus, the case established that a plaintiff who alleged climate injury had the right to bring a case in federal court — “a hugely significant decision in its own right,” according to Lazarus. In several other cases, Ginsburg not only cast the decisive note, she wrote the opinion for the court, which Lazarus says was even more notable. Of the cases for which Ginsburg wrote the opinion for the majority, he adds, the most significant was Friends of the Earth v. Laidlaw. In this case, a group of citizens brought a lawsuit under the Clean Water Act alleging hundreds of violations of mercury emissions rules by the Laidlaw industrial facility in the area around South Carolina's North Tyger River. The Court of Appeals had held that the environmentalists lacked the requisite injury to bring the lawsuit, but the Supreme Court reversed the previous ruling. “Justice Ginsburg wrote a tour de force in that opinion,” Lazarus says. Her opinion not only established that these particular environmental plaintiffs had standing to bring their particular Clean Water Act suit.