Media Mentions

We can bring ethics back to Professor Friedman’s call to corporate purpose by returning to the more inclusive purposes that historically bound us together to form corporations. Corporations have the capacity to tap humanity’s greatest potential to accomplish projects spanning, in scope and time, beyond what any individual could provide to the world. Think of the earliest forms of group associations that combined our efforts, from the Roman origin of our word for corporation, corpora (founded “around a common tie such as a common profession or trade, a common worship, or the widespread common desire to receive a decent burial”), through the intergenerational building of cathedrals erected to the glory of powers beyond ourselves...In theory, the 2019 Business Roundtable Statement demoting shareholder primacy, and describing corporate purpose as “a fundamental commitment to all of our stakeholders,” is a good start to rethink the direction in which we are headed. Recent work by Professor Lucian Bebchuk and Mr. Roberto Tallarita asks why, however, if corporations were serious about these changes, they did not bring them more often to their governing boards. Professor Tyler Wry’s work further suggests that Covid-19 is testing the resolve of the companies that signed the Statement. Since the economic impacts of Covid-19 began, its signatories have paid out 20 percent more capital to shareholders than similar companies, and signatory companies have been almost 20 percent more likely to announce layoffs or worker furloughs. Given management incentive systems in place, the Statement’s aspirations do not seem to be penetrating into the behavior of signatory corporations. As another essay by Bebchuk, Tallarita, and Mr. Kobi Kastiel examining the efficacy of stakeholder constituency statutes in this ProMarket series concludes, there should be “substantial doubt [about]… relying on the discretion of corporate leaders, as stakeholderism advocates, to address concerns about the adverse effects of corporations on their stakeholders.”

As the 2020 presidential election approaches, social networks have promised to minimize false rumors about voter fraud or “rigged” mail-in ballots, a mostly imaginary threat that discourages voting and casts doubt on the democratic process. But new research has suggested that these rumors aren’t born in the dark corners of Facebook or Twitter — and that fighting them effectively might involve going after one of social media’s most powerful users. Last week, Harvard’s Berkman Klein Center put forward an illuminating analysis of voting misinformation. A working paper posits that social media isn’t driving most disinformation around mail-in voting. Instead, Twitter and Facebook amplify content from “political and media elites.” That includes traditional news outlets, particularly wire services like the Associated Press, but also Trump’s tweets — which the paper cites as a key disinformation source. The center published the methodology and explanation on its site, and co-author Yochai Benkler also wrote a clear, more succinct breakdown of it at Columbia Journalism Review. The authors measured the volume of tweets, Facebook posts, and “open web” stories mentioning mail-in voting or absentee ballots alongside terms like fraud and election rigging. Then, they looked at the top-performing posts and their sources. The authors overwhelmingly found that spikes in social media activity echoed politicians or news outlets discussing voter fraud. Some spikes involved actual (rare) cases of suspected or attempted fraud. But “the most common by far,” Benkler writes, “was a statement Donald Trump made in one of his three main channels: Twitter, press briefings, and television interviews.”

An article by Yochai Benkler: No group of people has a more important role to play in shaping how Americans think about mail-in voter fraud than editors and journalists who write for local and regional newspapers, local television news, the broadcast networks, and for those who produce the syndicated news these outlets use. My team and I at Harvard’s Berkman Klein Center for Internet and Society came to this remarkable conclusion in a report about the months-long disinformation campaign that Donald Trump and the Republican Party mounted to sow doubt about mail-in voting. We analyzed tens of thousands of online stories and Facebook posts, and millions of tweets, using network analysis, text analysis, and qualitative research. Contrary to widespread concern with Russia or Facebook as vectors of election disinformation, our findings told a different story. All peaks in attention and coverage of mail-in voter fraud were triggered by statements or actions of political elites, particularly Donald Trump through three channels: his Twitter account, press briefings, and television interviews on Fox. Trump was, in turn, reinforced by his staff, the RNC, and other Republican leaders. Social media played a secondary role, recirculating stories published by major media outlets about the actions or statements of the political actors pushing the false narrative. President Trump perfected the art of harnessing mass media to disseminate and reinforce his disinformation campaign.

Voting fraud, according to study after study, is rare. Mail-in ballots are, with a few exceptions, a safe way to vote. But millions of Americans have come to believe something radically different: They think the Nov. 3 election could very well end up being stolen. That the outcome — especially if it relies on counting the votes that come in later than in a normal election year — might well be illegitimate. Where would they get such an idea? Conventional wisdom might say it comes from false stories and memes spread on social media, originating from foreign troublemakers trying to influence the election results...Not so, says a major new study: It’s the American mainstream press that’s doing most of the dirty work. Eager to look neutral — and worried about being accused of lefty partisanship — mainstream news organizations across the political spectrum have bent over backward to aid and abet Trump’s disinformation campaign about voting by mail by blasting his false claims out in headlines, tweets and news alerts, according to the Berkman Klein Center for Internet and Society at Harvard University... “If Biden wins clearly by mail-in voting and not in-person voting, you may well have tens of millions of people persuaded that the election was stolen,” Yochai Benkler, the center’s co-director and a Harvard Law School professor, told me. And their outrage could translate into violence. The disinformation campaign “is transmitted primarily through mass media, including outlets on the center-left and in the mainstream,” Benkler said. In particular, it may be those outlets that try hardest to seem unbiased that are doing a lot of the heavy lifting, he said — in part because of their broad reach and their influence on less-partisan voters.

A podcast by Noah Feldman: Adam Przeworski, a politics professor at New York University and one of the world’s foremost scholars on democratic transitions, explains his worries about a peaceful transfer of power.

An op-ed by Noah Feldman: Covid-19 is spreading through the White House and Washington, D.C. Meanwhile, major congressional votes are coming on the Supreme Court nomination of Judge Amy Coney Barrett in the Senate and maybe a national bailout package in the House of Representatives. So it’s time to revisit an issue that came up early in the pandemic but was never properly resolved: Could Congress vote remotely? And if so, would be a good idea? It’s never been tried. The Constitution gives Congress power over its own rules, which would seem to let the two houses adopt remote voting if they wanted. Traditionally, the courts defer to Congress’s judgment when Congress is exercising a power that is textually allocated to it by the Constitution. Yet the Constitution does specify that “a majority of each [house] shall constitute a quorum to do business.” This so-called quorum clause could be interpreted to require most senators and representatives to be present in Washington, D.C. — and maybe even in or near the Capitol — for Congress to operate. If that’s how the Supreme Court sees it, the quorum clause could block Congress from dispersing home and operating on a fully remote basis. Back in May, both the Senate and House saw proposals for some form of remote voting. Neither has been adopted — so far. Opposition from Senate Majority Leader Mitch McConnell could potentially be explained on the ground that McConnell, like Trump, wanted to minimize the significance of Covid-19. But House Speaker Nancy Pelosi was also ambivalent about it, first expressing concern and then saying it was an option.

Both of the two major parties' presidential candidates are septuagenarians; one of them, former Vice President Joe Biden, was recently in close proximity to a group of coronavirus-positive people, while the other, President Donald Trump, has contracted COVID-19 and is currently in the most crucial phase of infection. The two men's age, and their proximity to a disease that kills about 12% of those in their mid-70s and older, has prompted many outside observers and legal experts to be forced to confront the unthinkable: if President Donald Trump or former Vice President Joe Biden dies before Election Day — or after the election but before the Electoral College convenes — will America enter a constitutional crisis? ... Harvard Law professor Laurence Tribe, when asked what might happen if Donald Trump were to pass before Election Day, warned that things could get messy. "The likeliest outcome of the death you're imagining is that the Republican National Committee would convene in an emergency session," and, utilizing the best legal advice available to them, would "decide how best to accommodate their respective deadlines for qualifying candidates, or more precisely the electoral slates committed to particular candidates, for the presidential election to be held this November 3," Tribe said over email. This process would be complicated, of course, by the fact that millions of Americans have already voted by mail — and their ballots cannot be retroactively changed. To accommodate this, and since it would be "lunacy" to ask people to resubmit their ballots, "my hope would be that the state chapters of the RNC would all agree simply to revise the instructions given to the electors committed at that time to the Trump/Pence slate in each of those States so as to conform those instructions to whatever new ticket the RNC were to choose – say, [Vice President] Mike Pence and [former United Nations Ambassador] Nikki Haley." Yet according to Tribe, that might not be the end of the matter. He noted that some electors could declare that they are only legally bound to support a Trump-Pence ticket and, if they do not want Pence to be president, resign rather than be compelled to cast their ballot for him.

The confirmation of Amy Coney Barrett to the Supreme Court could make it harder for future administrations to adapt laws that have been on the books for decades to meet emerging challenges such as climate change. That’s because Barrett’s confirmation would strengthen a conservative bloc of justices who take a narrow view of federal agency power -- potentially spelling doom for efforts to write regulations to thwart greenhouse gas emissions and promote environmental justice. The prospect is driving a wave of opposition to Barrett from environmental groups, which have joined abortion rights advocates and gun control supporters in vigorously fighting the appeals court judge’s nomination to replace the late Justice Ruth Bader Ginsburg on the high court...Barrett’s three-year-tenure as a judge on the 7th Circuit Court of Appeals provides a limited view of her approach to federal regulation and environmental policy. And the previous opinions of Supreme Court nominees are not always a reliable indicator of how justices perform once installed on the high court. Still, legal experts say Barrett’s writings and rulings show her to be a textualist in the mold of the justice she once clerked for, the late Antonin Scalia -- someone who favors a strict reading of the text of federal statutes. A Supreme Court that’s more skeptical of agency authority could look kindly on Trump administration rewrites of federal rules limiting the federal government’s reach when it comes to clean water oversight and required environmental analysis. With Barrett’s confirmation, the court is more likely to “embrace those more self-limited interpretations,” said Joe Goffman, executive director of Harvard Law School’s Environmental and Energy Law Program.

On Monday, Trump declared victory in his battle with the coronavirus. By Tuesday, he had moved on, fighting the invisible enemy he apparently blames for keeping his (false) Covid-19 tweets from the public. “REPEAL SECTION 230!!!” he wrote, meaning Section 230 of the Communications Decency Act, which, in part, defines what kinds of user-generated content websites can host without facing legal liability...But focusing narrowly on 230 misses a significant point: While Trump may have been angered by his misinformation tweet being labeled as such, in truth, when a service like Twitter decides to crack down on content, it goes after those people who are far less powerful...A new bill introduced last week by Senators Joe Manchin and John Cornyn, the See Something, Say Something Online Act of 2020, joins a host of others introduced in the past year—bills with equally unwieldy titles like the PACT Act, EARN IT, and BAD ADS—all concerned with how these platforms are both empowered and protected by Section 230 of the CDA, which has been described as the law that made the internet as we know it possible or the law that made the internet a “free for all.” ... The bill introduced by Manchin and Cornyn this week is part of a pattern now, of anti-230 bills bringing together Republicans who want to go after platforms over bias against them (that doesn’t exist) and Democrats who believe (often correctly) that platforms aren’t doing enough to protect users. “Proposing a bill amending 230 has become the congressional equivalent of mayors painting Black Lives Matter on a street,” said Kendra Albert, clinical instructor at the Cyberlaw Clinic at Harvard Law School. Sometimes, the bills are just an “artificial, cynical” gesture, they told me. But these proposals can also do real damage: by forcing the removal of content that has nothing to do with what was deemed harmful or making it harder to find people who are doing the harm once they are pushed off those platforms. “Passing one of these bills would be worse,” Albert said. “It’s painting Black Lives Matter on the street and then increasing the police budget to hire officers to guard it.”

Biden’s climate plan lays out actions he would take on Day One like implementing “aggressive” methane pollution limits from the oil and gas sector and developing “rigorous” fuel economy standards. Environmental advocates say the former vice president should target rules that have the biggest effects on climate change and those that are most harmful to marginalized communities. Yet because of complexities in the rulemaking process — along with structural changes implemented by the Trump administration — undoing even just some of Trump’s environmental rollbacks could take years...If a Biden administration must rely on the rulemaking process to undo Trump’s actions, it could set up a long battle and possible court challenges. Joseph Goffman, an Obama administration Environmental Protection Agency lawyer, said the rulemaking process usually takes 18 to 36 months. Goffman, now the executive director of Harvard Law’s Environmental and Energy Law Program, said it may be slightly quicker to undo rules that are still facing court challenges when Biden takes office since the new administration can choose not to defend them. However, he said, Biden administration rules could get tied up or halted in court, meaning implementation could take even longer. The Trump administration has taken or is in the process of carrying out changes that could further hamstring a Biden administration. It is changing how the benefits of emissions reductions are calculated, and it has proposed a rule aimed at changing what scientific studies are considered in rulemaking. “Some of these changes would require the successor administration to have to do more homework,” Goffman said.  “A lot of these changes would not ultimately stop a Democratic, pro-environment administration from taking the actions it wanted to take,” he said, though he acknowledged it would make it “more challenging.”

An op-ed by Jason Harrow and Lawrence Lessig: What would happen if a presidential candidate were to die close to an election? All of us should hope President Trump recovers quickly from covid-19, and that this difficult situation never arises. But the president’s illness underscores the reality that this outcome is within the realm of possibility — and that our existing election architecture needs fine-tuning to deal with it. This scenario arose when we argued Supreme Court cases last spring about the role of presidential electors. Based both on history and current state and federal law — including the Supreme Court’s decision in the so-called faithless-elector case, Chiafalo v. Washington— it’s not clear what would happen if a presidential candidate dies either shortly before Election Day or before the electoral college has gathered to ratify the election results. That dangerous ambiguity can be closed if states act quickly to make sensible modifications to their laws, and if the political parties and state officials in the remaining states commit to letting the electoral college carry out the will of the people, as the Supreme Court envisioned in Chiafalo. Many states have laws that, if read literally, would force presidential electors to cast votes for candidates who have won the state’s popular vote — even if the candidate were deceased. Take Colorado, whose law was before the Supreme Court. Colorado law says “each presidential elector shall vote for the presidential candidate . . . who received the highest number of votes” in the general election.

In the midst of America’s racial reckoning, this program provides inspiration from Bryan Stevenson, one of the country’s leading advocates for racial reconciliation, on what motivates him to continue the work toward justice. Featuring Harvard Law professor Elizabeth Bartholet.

Watching the footage now, you can almost see the virus particles swirling in the air, an ominous cloud sprinkling the Supreme Court nomination ceremony in the White House Rose Garden, as Judge Amy Coney Barrett stands behind the podium and in her Jennifer Coolidge-on-helium voice tells Donald Trump that she’s “deeply honored by the confidence you have placed in me.” There they were, a mostly white crowd of Republicans packed together, shank to flank,  hugging, kissing, handshaking, close talking, backslapping, thumbing their exposed noses at the CDC’s social distancing guidelines. The overwhelming majority of attendees declined to wear face masks, including the guest of honor, her husband, and their seven young children...But how about her judgment? It’s “quite bad,” says Laurence Tribe, a constitutional law scholar at Harvard. Over the course of the past week, Judge Barrett has demonstrated “the judgment of someone whose eagerness to please her benefactor trumps (no pun intended) her concern for the health and even survival of others.” ... “Those hearings should be canceled,” said Tribe. “The idea of rushing this confirmation through at breakneck speed to fill the lifetime vacancy created by Justice Ginsburg’s recent death now that the election of the next president is not just imminent but already underway is little short of insane, especially in the face of the pandemic and in light of how the [Merrick] Garlandnomination was handled.”

It was bound to happen. People across the world are trying to trademark QAnon, the American far-right conspiracy theory baselessly claiming that Donald Trump is saving the world from a group of elite satanist paedophiles. According to data from the World Intellectual Property Organisation, a UN agency dealing with patents, copyrights, and trademark, seven applications to register “QAnon” or “Q Anon” as a trademark have been filed since the conspiracy theory debuted on 4Chan in October 2017. Of these, two have been successful – one in Australia and one in Germany – one has been dismissed, and the remaining four are pending. Most applications declare the intention to use the word – the pseudonym of the conspiracy theory’s initiator and now a byword for the whole delusion – as a brand for clothes, hats, coffee mugs, gadgets; some also aimed at registering the trademark to provide entertainment products and consultancy services...But the United States, where QAnon was born and most of its followers are based, is also the country where trademarking it might prove toughest. “Every time there's a cultural phenomenon, someone will try and register the associated phrase as a trademark,” says Rebecca Tushnet, a professor of law at Harvard Law School. “In the US, it usually fails.” That is because trademarks are supposed to work as indications of source: a swoosh on a pair of sneakers will tell you that those shoes were made by Nike rather than Reebok; an apple on a laptop will remind you that your computer was designed in Cupertino. In contrast, a QAnon logo on a T-shirt would not bring to mind any particular stylist. “The US Patent and Trademark Office [USPTO], which is the US entity that scrutinises these things, is likely to say: ‘This is just a name of a dispersed movement’,” Tushnet explains. “It doesn't tell anything about the source of the product.”

An article by Cass Sunstein: Some legal scholars, and some judges, are “originalists”; they believe that judges should be governed by the “original public meaning” of the Constitution’s text. The late Justice Antonin Scalia was an originalist. So is Justice Clarence Thomas. And so is the latest Supreme Court nominee, Judge Amy Coney Barrett. Debates about originalism have become complicated. But one point is simple: A committed originalist is going to have to allow the national government to discriminate on the basis of sex and race. Let’s spell that out. Judges who are committed to the “original public meaning” of the Constitution would almost certainly have to allow the federal government to say, “No women need apply.” They would probably have to conclude that if Congress wants federal agencies to pay men twice as much as women, the Constitution does not stand in the way. Originalist judges would find it exceedingly difficult not to rule that under the Constitution, Congress can segregate the schools in the District of Columbia. Originalist judges would probably have to conclude that if Congress wants to restrict African-Americans to lower-level positions within the federal government, the Constitution is not an obstacle. On originalist premises, a “whites only” policy would be constitutionally fine, insofar as we are speaking of the decisions of the U.S. government. Here’s why.

Top law firms, led by the two major firms that represent Exxon and Chevron, are worsening the climate crisis, according to new research into the role the legal industry plays in climate change. The report, 2020 Law Firm Climate Change Scorecard, was released Thursday by Law Students for Climate Accountability (LS4CA), an organization of law school students from across the country who are committed to holding the legal industry accountable for its role in climate change. LS4CA researchers examined the work of the top 100 firms as ranked by Vault.com, which compiles an annual ranking of the most prestigious firms in the United States. Researchers analyzed litigation, transactional work, and lobbying work done by each firm between 2015 and 2019... LS4CA researchers found the nation’s top firms worked on 286 cases that exacerbate climate change, compared with 27 that address or curb climate change. Two firms were highlighted for their work on behalf of fossil fuel companies: Paul, Weiss, Rifkind, Wharton + Garrison LLP, whose attorneys are defending Exxon in litigation filed by dozens of municipalities seeking restitution for climate damages, and Gibson, Dunn + Crutcher LLP, which works on behalf of Chevron in those same suits, among others... Paul, Weiss’ reputation was questioned earlier this year when students at some of the nation’s top law schools—including Yale, New York University, Harvard and Michigan —staged protests at the firm’s on-campus recruiting events and signed a pledge refusing to work for the firm until it dropped Exxon as a client. Students compared the firm’s representation of Exxon to its work on behalf of cigarette giant Phillip Morris during litigation to hold tobacco companies accountable for the harmful effects of smoking. “My classmates and I came to law school to learn skills to work towards a future that is safer and more just,” Lily Cohen ‘22, a student at Harvard Law School and an organizer of the #DropExxon protests said. “I hope that this scorecard emboldens firms to make decisions about people, not just profits.”

In the run up to the US presidential election on November 3, digital platforms are releasing a number of new or updated policies related to disinformation, election advertising and content moderation. We asked five experts if big tech should be setting the terms of political speech. And if it does, how might this ad hoc and disjointed approach to platform governance impact democracy? ... Evelyn Douek, the Berkman Klein Center: “We are now firmly in a world of second or third or fourth bests. No one’s ideal plan is the current patchwork of hurriedly drafted policies written and enforced by unaccountable private actors with very little transparency or oversight. Nevertheless, here we are. So platforms should be as clear and open as possible about what they will do in the coming weeks and tie themselves to a mast. Comprehensive and detailed policies should not only be the basis for platform action but a shield for it, when inevitable charges of bias arise. Platforms have been talking tough on the need to remove misinformation about election integrity, and rightly so — it’s an area where relying on democratic accountability for false claims is especially inadequate, because the misinformation itself interferes with those accountability mechanisms. You can’t vote someone out if you’re scared or misled out of voting at all.” ... Dipayan Ghosh, the Berkman Klein Center: “The political discourse is increasingly moving online, and particularly to dominant digital platforms like Facebook and YouTube — we know that. Internet companies have variously enforced new policies — such as Facebook’s new restrictions against certain hateful ads, and Google’s limitations on the micro-targeting of political ads. These are half-measures: they are not enough. Dominant digital platforms should be liable for facilitating the dissemination of political advertising at segmented voting audiences. In the absence of such a policy, we will never diminish the disinformation problem — let alone the slate of related negative externalities that have been generated by the business models at the core of the consumer internet.”

An article by Cass Sunstein:  Now that President Donald Trump has tested positive for Covid-19, the Department of Justice is almost certainly focusing on the 25th Amendment, which provides for the transfer of presidential authority to the vice president. No one who works for a sitting president wants to think about that amendment. But in any administration, worst-case scenarios get attention, and if the president is sick, the lawyers and the vice president have to be clear on what the 25th Amendment says and requires. The good news is that for most imaginable health outcomes associated with the virus, it is entirely clear. The less good news is that for some imaginable health outcomes, especially those associated with Covid-19, the 25th Amendment is ambiguous. It offers two different routes by which the transfer of power can occur. Section 3 says this: ‘Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.’ Section 4 says this: ‘Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.’ Under section 3, the president voluntarily transfers power to the vice president. Under section 4, the decision is made by the president’s own team – by majority vote.

An article by Noah Feldman:  A federal judge in California has struck down President Donald Trump’s executive order barring many types of visa entrants into the U.S. As a reminder, Trump issued this order in June because of the supposed threat foreign workers pose to native-born employment during the Covid-19 pandemic. The decision flatly contradicts a different ruling last month by a different federal district court judge in Washington, D.C. Both cases will now go to the respective courts of appeals. If those courts also disagree, and if Trump is re-elected and doesn’t retract the executive order, the issue could eventually make its way to the Supreme Court. Which judge is right? The answer depends on how you read the 2018 Trump v. Hawaii case in which the Supreme Court upheld the 3.0 version of Trump’s Muslim travel ban. The California federal court read the travel ban case narrowly and struck down the Covid-era order as beyond the president’s power and as insufficiently reasoned. The D.C. federal court read the travel ban case broadly and upheld the Covid-era order on the theory that federal law basically lets the president do whatever he wants with regard to immigration. My best guess is that if the case eventually gets to the Supreme Court, the justices would adopt the narrower reading of Trump v. Hawaii. The Covid immigration ban would thus ultimately be blocked. The alternative would be to give the president nearly carte blanche over immigration matters. That result would not sit well either with the court’s liberals or with all of its conservatives.

Barely a week after the death of Ruth Bader Ginsburg, before the late justice had even been buried, President Donald Trump hosted a Rose Garden ceremony to formally announce his nomination of Amy Coney Barrett to fill the open seat on the Supreme Court. A week later, it appears that the inauspicious ceremony may have been at the center of the coronavirus outbreak now plaguing the White House and the Senate. Yet even with the president hospitalized and three Republican senators infected with the virus, the Republican Party is barreling ahead with its effort to install Barrett mere weeks before Election Day. The reckless rush to vote is an indication of the desperate and corrosive power grab at play, one that places the future of the Court at risk. If Republicans succeed, and Democrats win the Senate and the White House in November, Democrats must add seats for additional justices—not as a means of political one-upmanship, but, paradoxically, to save the Court...However, if Biden wins the election, then the Senate should decline to vote on Trump’s nominee and Biden should fill the seat. It is not too late to take this path, which is right for the country and the Court. This is not to say that a Republican-controlled Senate doesn’t have the constitutional power to confirm a nominee right now—it clearly does. But in exercising this power, Republicans would be committing themselves to an extreme form of “constitutional hardball”—a term coined by the legal scholar Mark V. Tushnet to describe the exercise of raw political might that, while legally permissible, violates the “assumptions that underpin working systems of constitutional government.” If Democrats gain the Senate and the White House in 2021, they will be faced with the choice of either engaging in reciprocal hardball—by wielding the raw political power to expand the Court, for example—or doing nothing and acquiescing to the breach.

President Trump might not win the November election, but he could still strip his opponent, Joe Biden, of a dominant tool to limit greenhouse gases. The Supreme Court and its reshaping by Trump, who is verging on his third appointment of an anti-regulatory justice, would be a warning to Biden to rely less on the Clean Air Act to reduce emissions of carbon dioxide and other gases. Expansive readings of the landmark environmental law — like the one EPA used to regulate the power sector under President Obama — are unlikely to pass muster with the court's likely 6-3 conservative majority. That would be a problem for former Vice President Biden, who has offered the most ambitious climate change platform in the history of U.S. presidential elections...Joseph Goffman, executive director of Harvard University Law School's Environmental and Energy Law Program and a former EPA official under Obama, said Biden's environment agency would be forced to write legally conservative rules that nonetheless aim for aggressive emissions reductions. "If eventually it is challenged in court, the challenge won't be about whether the agency had too expansive an interpretation of the law," he said. "But would focus on technology issues where I think even a conservative judiciary would be likely to defer to the agency." Goffman, who helped oversee the development of the Clean Power Plan, said it was too early to guess what ambitious inside-the-fence-line regulations would look like. "But it's a little easier to speculate that the agency would look there first rather than to something that would be perceived by the court as an overly creative reading of the statutory language," he said.