Media Mentions

During her first year as the sole woman on the US Supreme Court in 2006, Justice Ruth Bader Ginsburg wrote a foreword for a biography of the 19th-century lawyer Belva Ann Lockwood and presented the book to a new law clerk in her chambers. On Thursday, the clerk, Daphna Renan, now a professor at Harvard Law School, highlighted the foreword as an example of how Ginsburg broke barriers for women while simultaneously honoring her predecessors in the fight for equality. “Justice Ginsburg was a giant in the law, a luminary, and a leader, as you’ve heard, but she was always ... keenly aware of those who paved the way for her even as she trained her sights on how she could better pave it for others,” Renan said. She delivered the remarks during a virtual Harvard Law School event honoring Ginsburg, who died last Friday...Harvard Law’s current dean, John F. Manning, said the institution regrets the discrimination Ginsburg endured on campus. “It is hard to imagine a more consequential life, a life of greater meaning, and more lasting impact. And Justice Ginsburg did all of this while carrying the heavy weight imposed by discrimination,” he said. “To our eternal regret, she encountered it here at Harvard Law School.” The virtual event included tributes from Tomiko Brown-Nagin, dean of the Radcliffe Institute for Advanced Study, and Harvard Law professors Vicki Jackson, Martha Minow, and Michael Klarman...Brown-Nagin’s remarks explored what Ginsburg’s death means to the civil rights movement and comparisons between Ginsburg and the late Justice Thurgood Marshall, the first Black man to serve on the Supreme Court. Beyond fighting for women’s rights, Brown-Nagin said, Ginsburg had a deep understanding of racial discrimination and poured that insight into cases dealing with race. She cited Ginsburg’s dissent in a 1995 school desegregation case in Missouri in which the justice wrote it was too soon to curtail efforts to combat racial segregation given the state’s history of racial inequality. “The Court stresses that the present remedial programs have been in place for seven years,” Ginsburg wrote. “But compared to more than two centuries of firmly entrenched official discrimination, the experience with the desegregation remedies ordered by the [lower court] has been evanescent.” Ginsburg was, Brown-Nagin said, a “tremendous intellect, a courageous human being, and a giant of the law.”

President Trump has initiated the most aggressive environmental deregulation agenda in modern history, but as his first term drives to a close, many of his policies are being cut down by the courts — even by Republican-appointed jurists who the administration had hoped would be friendly. Those losses have actually heightened the stakes in the election and the fight over a replacement on the Supreme Court for Justice Ruth Bader Ginsburg: A second term, coupled with a 6-3 conservative majority on the high court, could save some of his biggest environmental rollbacks. Since January courts have dealt a series of blows to the Trump administration’s plans to ramp up fossil fuel development and undo decades of environmental protections. This month, a federal appeals court temporarily blocked implementation of a major rollback of methane emissions standards for the oil and gas industry while it considers permanent action... if Joseph R. Biden Jr. gets into the White House in January, he will have to provide a written explanation of the reasons he wants to roll back each Trump administration action. Eliminating Trump’s executive orders will be relatively easy, but going through the regulatory process all over again on issues like fuel efficiency...James E. Tierney, a former Maine attorney general who now teaches courses at Harvard Law School on the role of attorneys general, said that they are “institutionally designed to be independent watchdogs, independent brakes on power.” Their relative independence from executive power, whether in their own state or the federal government, goes back to the thirteen original colonies, and, before that, English common law. “If there’s a Democratic president, roll up your sleeves and wait for Texas to file lawsuits against President Biden,” he said.

Amy Coney Barrett has been a federal judge for just three years, but one thing is already certain: She’d mark a sharp turn from Ruth Bader Ginsburg on the Supreme Court. At just 48 years old, the former clerk to Justice Antonin Scalia would lock in a long-term conservative legacy for President Donald Trump, who is expected to nominate her officially this afternoon. Democrats are already anxious enough about the looming 6-3 conservative majority that they’re openly considering expanding court-packing to counter it. But what do we really know about her judicial philosophy, and how she’d rule on major issues? Politico Magazine asked top constitutional law experts and Supreme Court watchers to weigh in...Tomiko Brown-Nagin: “If confirmed, Judge Amy Coney Barrett will consolidate the conservative majority and shift the balance of power on the court decidedly to the right. She has called abortion “immoral” and written that judges are not always bound by precedent. And, consistent with the anti-abortion movement’s current strategy, she has expressed openness to hollowing out Roe v. Wade through state regulations. Justice Ruth Bader Ginsburg made a mark as a strong supporter of reproductive freedom; she consistently voted against state encroachments on Roe v. Wade. A critic of Chief Justice John Roberts’ role in the blockbuster case that upheld the Affordable Care Act in 2012, Judge Barrett is likely to give the law’s opponents a sympathetic hearing in the case pending before the court. By contrast, Justice Ginsburg, a strong voice and critical vote in support of the ACA, would almost certainly have again sustained the federal law. On the question of gun rights, Ginsburg sustained regulations, whereas Barrett has questioned the constitutionality of a categorical ban on gun ownership by felons. The contrast between the two jurists is evident on numerous other issues. Given the stark differences between Justice Ginsburg’s voting record and that of her presumed replacement, Judge Barrett’s nomination promises to transform the Supreme Court. That said, it would be a mistake to dismiss Judge Barrett as a mere partisan or a zealot; her writings bear the mark of a scholar who reasons carefully about legal cases and controversies.”

Much has been written about the historic Yalta Conference in February 1945, when Churchill, Stalin and Roosevelt met to decide the future of the postwar world. Little, however, is known about the role played behind the scenes by three young women. In “The Daughters of Yalta,” Catherine Grace Katz ‘22 tells the story through the eyes of Sarah Churchill, Anna Roosevelt and Kathleen Harriman, the daughter of W. Averell Harriman, the U.S. ambassador to the Soviet Union. Skillfully written and meticulously researched, it’s an extraordinary work that reveals the human side underlying the politics. “The continued success of the alliance of Roosevelt, Churchill, and Stalin,” Ms. Katz writes, “was precariously balanced on the strong personal relationship among the three men.” They came to Yalta with very different agendas. Stalin was planning a Soviet expansion into Eastern Europe but Roosevelt, less concerned about Europe, wanted to enlist his help against Japan. Churchill thought Roosevelt was naive about Stalin, especially when it came to the Soviet leader’s designs on Poland. To get to Yalta the delegates made a hazardous daylong drive from Saki airfield through barren country and razed villages. “Nearly all the buildings lay in scorched ruins,” Ms. Katz reports, “alongside charred remains of trains, tanks, and other instruments of war, as if General Sherman had risen from the dead for an encore march to the sea halfway across the world.” The destruction was not only the work of the Nazis but of Stalin, too, a vestige of the state-sponsored famine that killed millions long before the Germans arrived.

Laurence Tribe, Harvard Law professor emeritus, and Ken Starr, former Independent Counsel, join 'Fox News Sunday.'

California Gov. Gavin Newsom's executive order phasing out new gas-powered car sales further inflames a fight with the Trump administration over vehicle emissions policy and is a big bet on a potential Joe Biden presidency endorsing the Golden State's bold move, experts say. California and the federal government are slugging it out in the D.C. Circuit over the revocation of the state's Clean Air Act waiver that allowed it to set its own vehicle emissions standards and run a zero-emission vehicle, or ZEV, program. Newsom on Wednesday reiterated California's defense of its CAA authority with his order directing the California Air Resources Board to craft regulations that lead to zero-emission vehicles making up all new car and light truck sales in the state by 2035. California's first-in-the-nation policy would also require for ZEVs to make up all new in-state sales of medium- and heavy-duty vehicles, including trucks and buses, by 2045. Experts say it's a policy shift that hinges on Biden defeating President Donald Trump in the November election, since there's no chance the Trump administration would reinstate California's CAA waiver or grant a new waiver for the state to carry out an even more ambitious vehicle emissions program than the one covered by the revoked waiver. "California is acting in line with its legal interpretations and in defiance of the Trump administration's interpretations," said Caitlin McCoy, a staff attorney with Harvard Law School's Environmental and Energy Law Program. "The governor's order is a bet on either the courts agreeing with California or a potential Biden administration agreeing with California."

On Tuesday morning, Merlene Sanborn was at work on an alteration at her small stitchery. Near her sewing machine, a radio was playing an endless stream of campaign ads from both Sen. Susan Collins and her Democratic challenger, Sara Gideon. Sanborn said she has supported Collins in the past, but this election cycle seems different. “There’s such an atmosphere of disrespect in the campaigning,” she told me, flicking off the station. “I feel like both candidates have forgotten about what matters to Maine.” Chief among those issues, she said, are financial opportunities for small-business owners and access to health care. She said she is worried the Supreme Court will rule in ways that jeopardize both, which is why the death of Justice Ruth Bader Ginsburg on Friday and the fight over how quickly to fill her vacancy has suddenly become an issue of consequence in a part of Maine that will play an important role in deciding the reelection of both Collins and President Donald Trump...Peter Brann is a practicing attorney in the state and a visiting lecturer at Harvard Law School. He represented Golden in the 2018 Poliquin suit. He said the prospect of Collins appealing to the Supreme Court is possible, but the court would probably agree to hear the case only if a lower court was divided in its ruling or if enough justices see ranked-choice voting as a potential infringement of voters’ equal protection. Collins’ office did not respond to questions about whether she would appeal November’s election results if she lost. Regardless, Brann said, he’s hopeful that decision will stand and there will be no further Republican attempts to challenge it at any level—and particularly not at the Supreme Court. “Constitutional arguments aren’t like wine,” he said. “They don’t improve with age.”

On March 11, 2020, the World Health Organization (WHO) characterized COVID-19 as a pandemic, pointing to over 3 million cases and 207,973 deaths in 213 countries and territories. As the spread of the virus is likely to continue disrupting economic activity and negatively impact manufacturing and service industries, especially in developed countries and it is expected that the financial markets will continue to be erratic. Early and stringent state and local restrictions led to higher rates of unemployment in the months following lockdowns. Reopening businesses and recovering jobs depend on more than federal and local policies. Researchers at the Harvard Business School studied factors in reopening, from features of the business such as whether it involves physical proximity to others or serves older customers to external factors such as local COVID-19 case rates and prevalent political preference...What role has the fiscal stimulus had on job loss and recovery? What impact has it had on states, businesses and individuals? ... "The stimulus kept spending going when it might have collapsed, but it was too short term and focused on the wrong problem," said Richard B. Freeman, Faculty Co-Director, Labor and Worklife Program, Harvard Law School; Co-Director, Harvard Center for Green Buildings and Cities; and Herbert Ascherman Professor of Economics, Harvard University. "If we could have had a fast recovery by conquering the disease, almost all furloughed workers would be back at work, and the stimulus would have tied people and small businesses over for two to three months. But without something else, I would expect a slow, seven to ten year regaining of jobs."

Many associates at top firms are ecstatic to see that they will receive thousands of dollars in the form of special fall bonuses. But given the precariousness of the COVID economy, and the damage it has wreaked, are there other ways firms can show appreciation for their associates when bonuses are out of the question? Big Law has constantly turned to money as the go-to lever for recognizing good performance. This trend is perhaps best evidenced by the annual year-end bonus wars, where Big Law firms attempt to one-up each other in who can dole out bigger bonuses to their associates—even when experts denounce the practice as short-sighted and fiscally irresponsible. So it should come as no surprise that this year, many Big Law firms announced special fall bonuses to associates as gestures of appreciation for their work during the pandemic...But given the uneven effect the pandemic has on firm finances, bonuses may not be possible at some firms without finding extra money through layoffs of staff and associates, leaving firms in a tricky situation. Can firms show appreciation through other means? “At the associate level, associates should understand that in the long run across their careers… minor variations in bonuses are a small rounding error and reading too much into them or getting upset about perceived inequity is not helpful,” said Scott Westfahl, director of Harvard Law School’s executive education program. Westfahl acknowledges that associates host an “automatic, primal” sense of frustration when they hear of bonuses at peer firms. Still, there are many ways to show appreciation for associates: enhanced professional development, coaching, mentoring and training; interesting work and “stretch” assignments; more flexibility; internal leadership opportunities; and recognition internally and externally, to name a few.

With the recent deaths of U.S. Supreme Court Justice Ruth Bader Ginsburg and Massachusetts Chief Justice Ralph D. Gants, legal experts say Bay State Gov. Charlie Baker faces added pressure to appoint progressive state justices to fill Justice Gants' seat and another vacancy to offset a rightward shift on the nation's highest court. Baker, a moderate Republican with high favorability ratings in deep-blue Massachusetts, was already in the process of filling one state Supreme Judicial Court position due to the impending retirement of Justice Barbara A. Lenk when Justice Gants died Sept. 14 at age 65 following a heart attack. Justice Gants' legacy includes a keen focus on individual liberties, criminal justice reform and access to justice. Bay State court watchers say replacing him with someone who shares similar values will be even more critical if President Donald Trump succeeds in appointing a conservative to the U.S. Supreme Court to replace Justice Ginsburg, who died Sept. 18. "It's crucial that Governor Baker reclaim the leadership role of the Commonwealth of Massachusetts in having a Supreme Judicial Court that leads rather than follows its sister states and the federal courts when it comes to protecting human rights and the dignity and equality of all residents of the Commonwealth," said Laurence Tribe, a professor of constitutional law at Harvard Law School, adding that Baker must find "a brilliant and progressive jurist" to replace Justice Gants. "Anything less would be an abdication of Baker's responsibility to be governor for the entire Commonwealth and not just a right-leaning fringe that might have provided at best a sliver of his support in the last general election," Tribe told Law360 in an email.

An article by Sean Quirk ‘21: China fired ballistic missiles into the South China Sea while the United States hosted a multinational naval exercise in August, as security tensions between the two countries persist. The U.S. Pacific Fleet hosted the biennial Rim of the Pacific (RIMPAC) naval exercise from Aug. 17 to Aug. 31 near the Hawaiian islands. Ten nations, 22 surface ships, one submarine and around 5,300 personnel participated in the exercise—the 27th RIMPAC since its inception in 1971. Prior to the coronavirus pandemic, the Pacific Fleet had planned to host 30 nations for the exercise. The scaled-down RIMPAC 2020 included South China Sea claimants Brunei and the Philippines, but the People’s Republic of China was not invited. The United States invited and then disinvited China from RIMPAC 2018, citing Beijing’s militarization of its occupied features in the South China Sea. Unlike previous RIMPACs, China and Russia reportedly did not crash the 2020 exercise by sending surveillance ships to collect intelligence from RIMPAC participating units. Instead, China held its own naval exercise in the Bohai Gulf and Yellow Sea, and the United States sent its own uninvited representative to observe. A U.S. U-2 reconnaissance plane purportedly entered a no-fly zone over Chinese live-fire military drills on Aug. 25. The U.S. Pacific Air Forces confirmed a U-2 flight but said it operated in accordance with internationally recognized rules and regulations. China Daily, the English-language newspaper operated by the Chinese Communist Party, quoted Chinese military experts as saying the U-2 was a “ghost of the Cold War” and that the U.S. military is “walking on thin ice.” Another Chinese analyst claimed Washington hoped to “artificially manufacture a China crisis” so that “people [can] rally around the American flag.”

Justice Ruth Bader Ginsburg’s death leaves an opening in the court’s four-strong liberal bloc, which could be filled by Donald Trump and the Republican Senate majority. Democrats and women’s rights advocates are once again sounding the alarm about the damage that could be wrought by a 6-3 conservative majority in the Supreme Court. Partisanship and heated political rhetoric have accompanied nearly every Supreme Court confirmation since the Senate’s 1987 vote to reject Judge — and Watergate villain — Robert Bork, concealing what legal experts and political insiders say is a pattern of Trump nominees declining to support one of the highest court’s bedrock civil rights rulings. The Supreme Court first affirmed a woman’s right to terminate a pregnancy in the 1973 case Roe v. Wade. Ever since then, Republicans and their religious fundamentalist allies have made packing the judiciary with like-minded jurists a high priority. They have redoubled their efforts in the 18 years since George H W Bush appointee David Souter joined Justices Anthony Kennedy and Sandra Day O’Connor in upholding Roe’s “essential holding” in Planned Parenthood v. Casey...Another veteran observer of the judicial confirmation process, Harvard Law School Emeritus Professor Laurence Tribe, said the trend of judicial nominees refusing to endorse Brown is both unprecedented and troubling because of what it could signal about those jurists’ views on other significant constitutional questions. “No federal court nominee, other than these Trump nominees, in the 66 years since 1954 of whom I’m aware — and certainly none who was confirmed — has declined to endorse that landmark ruling as correctly decided,” Tribe said. “That Trump nominees have routinely done so is simply jaw-dropping, and it’s a short step from that refusal to an insistence on being agnostic about whether the Bill of Rights binds the states by virtue of the 14th Amendment or whether the Equal Protection Clause applies to women.”

The long-awaited Facebook Oversight Board, empowered to overrule some of the platform’s content moderation decisions, plans to launch in October, just in time for the US election. The board will be ready to hear appeals from Facebook users as well as cases referred by the company itself “as soon as mid- or late-October at the very latest, unless there are some major technical issues that come up”, said Julie Owono, one of the 20 initial members of the committee who were named in May, in an interview on Wednesday...The limits of the oversight board’s mandate have been a key point of controversy since the independent institution was proposed by Facebook’s chief executive, Mark Zuckerberg, in 2018. The board’s initial bylaws only allowed it to consider appeals from users who believe that individual pieces of content were unfairly removed, prompting criticism from experts, including Evelyn Douek, a lecturer at Harvard Law School who studies online speech regulation. “We were told this was going to be the supreme court of Facebook, but then it came out more like a local district court, and now it’s more of a traffic court,” Douek told the Guardian. “It’s just been steadily narrowed over time.” Crucial areas where Facebook exercises editorial control include the algorithms that shape what content receives the most distribution; decisions to take down or leave up Facebook groups, pages and events; and decisions to leave certain pieces of content up. The board would be considering “leave up” decisions as soon as it launched, Owono said, but only if Facebook referred a case to it. She said technical and privacy challenges had delayed the launch of a system for Facebook users to appeal “leave up” decisions, but that one would be available “as soon as possible”.

An article by Noah Feldman: Everyone understands why Donald Trump and Mitch McConnell are in such a rush to replace Ruth Bader Ginsburg with a new Supreme Court justice: It’s the election, stupid. The date that matters isn’t January 20, Inauguration Day. It’s November 3, Election Day. The president and Senate majority leader want their justice in place in case we see a contested election in a replay of Bush v. Gore. If this prospect terrifies you, your fear is not unreasonable. Until Ginsburg died, those of us who spend our time worrying about scenarios in which the election goes to the courts had some partial solace for our concerns: Chief Justice John Roberts doesn’t want the court to be seen as partisan. Yes, he’s a conservative. Nominated by George W. Bush, he’s had an obvious willingness to issue rulings that have helped Republicans — most notably, his decision eviscerating the Voting Rights Act in the 2013 case of Shelby County v. Holder — but Roberts cares a lot about the reputation of the Supreme Court. It was therefore possible to think that, as the swing vote, Roberts would shy away from joining a conservative majority in a 5-4 decision handing the presidency to Trump. Such a vote would have undermined the chief justice’s whole project of protecting the court from appearing to be a subsidiary of the Republican Party. That’s one reason leading election law scholars like Professor Nathaniel Persily of Stanford Law School, who I interviewed on my podcast this month, expect that Roberts would not want to throw a contested election to Trump. The problem, of course, is that if Ginsburg is replaced by a hard-line conservative, Roberts will no longer be the swing vote. In a contested election, he could vote with the court’s three remaining liberals and still be in dissent.

This past summer, the fate of abortion rights in the country hung by a thread. The Supreme Court, which saw its socially moderate swing vote Anthony Kennedy retire in 2018, appeared poised to uphold a Louisiana law that sharply curtailed access to abortions — a decision that would likely set off a cascade of similar laws across the country. Instead, conservative Chief Justice John Roberts, who had voted in favor of allowing a similar measure in Texas just four years earlier, changed his mind. He joined the court’s four liberals to strike down the Louisiana law, citing the earlier precedent and giving abortion rights' activists a surprising victory — and temporary relief. That relief has turned to dread among liberals, now that President Trump, aided by a Senate Republican majority that has reversed its earlier position on election-year nominees, seems all but certain to replace one of those liberals, Ruth Bader Ginsburg, with a conservative stalwart he plans to announce on Saturday...A third Trump-appointed justice, both conservative and liberal legal scholars agree, puts Roe v. Wade fully on notice, capping decades of effort by antiabortion activists. “Nothing of significance would be left of Roe v. Wade, whether they expressly overturn it or crush it in two or three blows — it would be gone,” said Laurence Tribe, a liberal constitutional law scholar at Harvard Law School... “It would be the most right wing court in the history of the republic,” Tribe said. “Far more conservative even than the court that Roosevelt confronted when he came into power.” Democratic lawmakers have seized that argument, painting Trump’s appointment as a mortal threat to the Affordable Care Act, which faces a court challenge this fall that will be heard a week after the presidential election. Trump’s nominee could be confirmed and seated in time to hear the case...With Roberts no longer able to join four liberals and swing decisions, Democrats must now hope that Kavanaugh and Neil Gorsuch — Trump’s first court nominee — may become the new swing votes in high profile cases compared with justices Clarence Thomas and Samuel Alito, who have a longer track record of conservative rulings. It’s a sign of the entirely new context the court is entering. “We are confronting a world where Gorsuch and Kavanaugh will look like moderates,” Tribe said.

The U.S. Constitution’s separation of powers is a concession to man’s fallibility. Man tends to abuse power, so the Founders dispersed it. To preserve liberty and promote the public interest requires not just intentions but also institutions. Yet when we think of our institutions merely as safeguards, we sell them short...Justice Thomas and other judges and scholars have grown increasingly vocal in challenging the administrative state’s constitutional legitimacy. They question the statutes and judicial precedents that undergird the administrative state. In court-made doctrines of judicial “deference” to agencies’ legal interpretations, these jurists see abdication of the Constitution’s “judicial power.” In old statutes giving some agencies substantial independence from presidential control, they see violations of the Constitution’s grant of “executive power” to the president alone. And in old statutes empowering agencies to regulate with minimal limits, they see violations of the Constitution’s vesting of “legislative powers” in the Congress alone. All of these, they argue, undermine republican government and the rule of law. Cass R. Sunstein and Adrian Vermeule reject that position in “Law + Leviathan: Redeeming the Administrative State.” Mr. Sunstein was President Obama’s White House regulatory coordinator and is perhaps the leading regulatory thinker in Democratic policy-making circles. Mr. Vermeule is an intellectual leader for a rising generation of conservatives who demand a much more explicitly paternalistic and moralistic constitutionalism. While the two Harvard Law professors surely disagree on many things, they both believe that the administrative state doesn’t undermine the rule of law but exemplifies it. Drawing inspiration from “The Morality of Law” (1964), a major work of legal philosophy by Lon Fuller, they argue that “American administrative law has its own internal morality,” which “embraces many of the concerns and objections of those who are deeply skeptical of the administrative state” and which ultimately serves to “both empower and constrain the administrative state.”

An article by Sharon Block and Benjamin Sachs: The premise of this feature is that both conservatives and progressives should support workers having a “seat at the table.” We agree with that premise. But it is crucial that we ask, what is the point of ensuring workers a seat at the table? It can’t merely be the symbolism of being included. It must be that the “seat” comes with actual power to influence outcomes. We see this commitment to actual power reflected in American Compass’s recent statement, “Conservatives Should Ensure Workers a Seat at the Table,” in which the authors describe their goal as ensuring that “participants meet as equals able to advance their interests through mutually beneficial relationships.” Enabling workers to meet management as “equals” requires that workers have the capacity to build and exercise more power than they possess as individuals. That is the point of organizing. That is the point of labor law.  Eli Lehrer recommends that we “unleash[]” unions and workers from the strictures of sections 8(a)(2) and 302 as a means to “offer labor organizations a new business model while giving workers new choices.” Free of the legal strictures of 8(a)(2) and 302, workers could join works councils, workplace safety committees, quality circles, and even company unions. Unions could become benefits consultants and generate revenue by serving in that capacity. According to Eli, “People on the right should like this proposal because it allows greater entrepreneurial creativity and offers hope for new civil society forms; those on the left should support it because it offers hope for organized labor through a new business model, as well as a path toward more democratic workplaces.”

An article by Sharon Block and Benjamin Sachs: In January of this year, we published a comprehensive set of recommendations for reforming U.S. labor law. Although the recommendations were extensive, the theory that lay behind them was straightforward: our country is facing dual crises of political and economic inequality, and we can help address those crises by giving working people greater collective power in the economy and in politics. Although progressives and conservatives disagree on many things, we all ought to agree that the stark inequalities that now pervade American life constitute grave threats. Politically, the viability of our democracy is threatened by a government that responds to the views of the wealthy but not to those of the poor and middle class. Economically, the viability of our community life is threatened by the fact that that we live in a country where it would take an Amazon worker 3.8 million years, working full time, to earn what Jeff Bezos alone now possesses. Saving American democracy and American communities will take a wide variety of interventions, but labor law reform must be one of them. In fact, much of the explanation for our current crisis of economic inequality is the decline of the labor movement. Unions redistribute wealth—from capital to workers, from the rich to the poor and middle class— and without unions, we have not had an adequate check on economic concentration. The decline of the labor movement also accounts for much of the current crisis of political inequality. When unions were active and strong, they helped ensure that the government was responsive to the needs and desires of the poor and middle class. Without unions, these poor and middle-class Americans have lost their most effective voice in our democracy. We have seen the consequences of this decline in unionization play out dramatically during the pandemic and recession, which have had devastating consequences for workers trying to navigate their physical and economic survival with so little collective power.

An article by Laurence Tribe: In the coming weeks, certain Republican senators running for reelection will find it convenient to tell opponents of President Trump’s Supreme Court nomination that they bear no responsibility for the damage this rushed appointment will do to the Affordable Care Act, Roe v. Wade, and other court rulings their moderate supporters care about. They will say that even if they did join Senators Lisa Murkowski of Alaska and Susan Collins of Maine in voting against confirming a precedent-shattering nominee this close to the election, the vote would be 50-50 and Vice President Mike Pence would break the tie to put that nominee on the court. They are wrong. While the vice president has the power to cast a tiebreaking vote to pass a bill, the Constitution does not give him the power to break ties when it comes to the Senate’s “Advice and Consent” role in approving presidential appointments to the Supreme Court. You don’t have to take my word for it. Alexander Hamilton said the same thing way back in 1788, in Federalist No. 69: “In the national government, if the Senate should be divided, no appointment could be made.” Hamilton contrasted that rule with how appointments worked back then in his home state of New York, where the governor actually did have the power to break ties to confirm nominations to New York state offices. Consistent with Hamilton’s understanding, as two thoughtful recent scholarly analyses have pointed out, no vice president in our history has ever cast a tiebreaking vote to confirm an appointment to the Supreme Court. If Pence tried to cast the deciding vote to confirm Trump’s nomination to replace Justice Ruth Bader Ginsburg, who died last week at age 87, it would be the first time that has ever happened. That should matter to everyone — it certainly matters (or used to matter) to “originalists,” who emphasize the importance of history when interpreting our Constitution.

It’s a bedrock court case on climate change. Now it has a bull's eye on its back. The death of Ruth Bader Ginsburg may eventually result in a reassessment — or at least, a narrower reading — of the Supreme Court’s first and most important ruling on rising global temperatures. The landmark 2007 decision, called Massachusetts vs. Environmental Protection Agency, gave the federal government the power to regulate greenhouse gas emissions. Now with President Trump poised to add a sixth conservative justice, some conservatives are itching for the high court to take some of that power away. The question is whether the Supreme Court will take up future cases tackling climate change — and how far a more conservative bench will go to chip away at its past decision...Toward the beginning of the George W. Bush administration, Massachusetts led 11 other states in petitioning the EPA to do more to stop global warming. When the agency refused, the states sued to compel it to regulate carbon dioxide and other greenhouse gas emissions under the Clean Air Act. In a 5-to-4 decision, the high court sided with the states and said greenhouse gases ought to be considered air pollutants if agency scientists determine they are a threat to human health. President Barack Obama’s EPA went on to make that so-called “endangerment finding” in 2009...The court could take other steps, such as reining in the EPA’s jurisdiction or requiring additional cost-benefit analysis from the agency to justify its climate rules, according to Jody Freeman, a scholar of administrative law and environmental law at Harvard. The court, she said, has already “signaled it is open to doing” that.

An article by Noah Feldman: President Donald Trump and Senate Majority Leader Mitch McConnell wasted no time after Justice Ruth Bader Ginsburg died, immediately announcing their intent to nominate and confirm a replacement. Tempting as it is for Republicans to install a third Supreme Court justice during Trump’s first term, it would nevertheless be a serious mistake — and potentially a historic one — for Senate Republicans to go along. The result would not only likely be the long-term erosion of the Supreme Court’s legitimacy as a third branch of government, but also a backlash so strong it would hurt the Republican Party itself. The reason for Republicans to hold off isn’t the extraordinary hypocrisy they’re showing by pushing a rapid confirmation now, despite holding Justice Antonin Scalia’s seat open in 2016. Unfortunately, we don’t live in a world where voters will punish a party for arrant hypocrisy. Republicans and Democrats alike all understood that McConnell was making a specious argument when he claimed the March nomination of Judge Merrick Garland was too close to the November election to deserve a vote. We all knew it was power politics then; and we all know it is power politics now. To be clear, Trump has the constitutional authority to nominate a new justice right now and the Senate has the authority to vote — or not vote — on that nominee. The arguments pro and con are moral and political, as I’ve noted before, not legal. In a rational version of Senate confirmation politics, the party in the majority thinks about how its actions will affect the other party when it takes control. Ideally, that norm leads to balance and some fairness: I don’t take advantage of you so that in turn, you won’t take advantage of me. In our current world of power politics, the norms have eroded to the point of near-disappearance. What that leaves is medium-term self-interest about what the other side will do immediately, as opposed to what both sides would do if norms of fairness applied.