Media Mentions

An article by Cass Sunstein: Can you predict the performance of Supreme Court appointees? When President Donald Trump chooses a successor to the late Justice Ruth Bader Ginsburg, as he has said he will do by the end of this week, can he be confident that he will be happy with his choice? Many people think that the answer is “no.” In their view, judges often stun people, including the president who appoints them. That’s wrong. Over the last half-century, there have been exactly no surprises. Let’s divide justices into the following categories: very conservative, moderately conservative, centrist, moderately liberal and very liberal. The categories are crude, but they suggest how justices are likely to vote on important issues, such as affirmative action, environmental protection, gun rights, privacy, campaign finance, immigration and religious liberty. If you had studied the pre-appointment records of the 17 Supreme Court justices confirmed since 1971, you would have been surprised by the performance of none. Consider a few examples. Justice Anthony Kennedy, selected by President Ronald Reagan in 1987 after the Senate refused to confirm the very conservative Robert Bork, had an extensive record as a lower court judge. He was unmistakably conservative, but he also showed a degree of moderation, including sympathy for a constitutional right to privacy. His vote in 1991 to preserve Roe v. Wade, the 1973 opinion that established a constitutional right to abortion, was hardly shocking. A close reader of his lower court opinions would not have been amazed to learn that he turned out to be a pivotal vote in favor of protecting gays and lesbians. Justice David Souter, appointed by President George H.W. Bush in 1990, was a centrist. He is often seen as Exhibit A for the proposition that the voting records of Supreme Court choices are surprising. But for those who had read his opinions on the New Hampshire Supreme Court, his centrism was self-evident. In New Hampshire, he was a judge’s judge: cautious, nonideological, closely attentive to precedent.

A podcast by Noah Feldman: Richard Primus, a professor at the University of Michigan Law School and a former clerk of Justice Ginsburg, discusses what it was like to work for the Justice, her legacy, and what comes next.

Witnesses appearing before a congressional subcommittee Tuesday warned of the conservative influence on the federal judiciary under the Trump administration, as Senate Republicans on the other side of the Capitol appeared to have enough votes to confirm President Donald Trump’s forthcoming nominee to the U.S. Supreme Court. The hearing, which included topics such as the influence of groups like the Federalist Society on judicial selections, has long been in the works, but the vacancy caused by Justice Ruth Bader Ginsburg’s death cast the proceeding in a new light...Sen. Sheldon Whitehouse, one of the Senate Democrats leading an investigation into conservative legal groups’ use of “dark money” in supporting judicial nominations, spoke at the start of the hearing. “The sooner we clean up this mess, the sooner courts can escape the grimy swamps of dark-money influence and return to their place in the broad and sunlit uplands of earned public trust,” he said in his remarks. Other witnesses invoked Ginsburg’s vacancy in their testimony, as they warned that even the perception of outside political influences on the courts could undermine the judiciary. “There are, or at least I fear the public perceives that there are, ‘Trump’ judges. The administration has explicitly said as much. These are, after all, ‘his judges,’” former U.S. District Judge Nancy Gertner testified. “The unique judicial selection process has produced them. And the public’s perception of Trump judges could undermine the rest of the bench.”

An article by Nick Couldry and Bruce Schneier: Six months into the pandemic with no end in sight, many of us have been feeling a sense of unease that goes beyond anxiety or distress. It's a nameless feeling that somehow makes it hard to go on with even the nice things we regularly do. What's blocking our everyday routines is not the anxiety of lockdown adjustments, or the worries about ourselves and our loved ones -- real though those worries are. It isn't even the sense that, if we're really honest with ourselves, much of what we do is pretty self-indulgent when held up against the urgency of a global pandemic. It is something more troubling and harder to name: an uncertainty about why we would go on doing much of what for years we'd taken for granted as inherently valuable. What we are confronting is something many writers in the pandemic have approached from varying angles: a restless distraction that stems not just from not knowing when it will all end, but also from not knowing what that end will look like. Perhaps the sharpest insight into this feeling has come from Jonathan Zecher, a historian of religion, who linked it to the forgotten Christian term: acedia. Acedia was a malady that apparently plagued many Medieval monks. It's a sense of no longer caring about caring, not because one had become apathetic, but because somehow the whole structure of care had become jammed up. What could this particular form of melancholy mean in an urgent global crisis? On the face of it, all of us care very much about the health risks to those we know and don't know. Yet lurking alongside such immediate cares is a sense of dislocation that somehow interferes with how we care.

People who rely on Medicaid and prisoners in some states are still being denied treatment for hepatitis C because they do not yet have advanced liver disease or because they use alcohol or drugs, according to recent reports. Over years or decades, chronic hepatitis C virus (HCV) infection can lead to serious liver complications including cirrhosis, liver cancer and the need for a liver transplant. Modern direct-acting antiviral (DAA) medications can cure hep C in more than 95% of people who receive treatment. Before the approval of these medications, the standard of care was interferon-based therapy, which usually had to be taken for six months to a year, caused difficult side effects and only cured about half of treated patients. Because of the challenges of the old therapy, treatment was often restricted to people who had already progressed to advanced liver disease and those who were being managed by a liver disease specialist, and were withheld from those who continued to use, or had recently stopped using, alcohol or recreational drugs. Today, treatment guidelines recommend that all people with acute or chronic HCV infection should receive treatment, except for those who have a short life expectancy for other reasons...Last month, a group of Medicaid recipients filed a class action lawsuit alleging that the Texas Health and Human Services Commission is restricting coverage of hepatitis C treatment to those who have already developed severe liver damage. The plaintiffs claim that the restriction violates the federal Medicaid Act and is not consistent with current standards of care. “At the end of the day, Medicaid coverage is supposed to be governed by medical reasons, not fiscal concerns, especially in the circumstances here where there is no other equally effective treatment available,” the group’s lawyer, Kevin Costello of the Center for Health Law and Policy Innovation (CHLPI) at Harvard Law School, said in a statement.

If President Trump is able to replace the late Justice Ruth Bader Ginsburg on the nation's highest bench, he may stymie climate action for generations to come. Legal experts say that the addition of a sixth conservative justice to the court could lock in opposition to expansive readings of the Clean Air Act that encompass greenhouse gas emissions or trigger a reexamination of the landmark 2007 climate case Massachusetts v. EPA. In either case, court watchers say, the outcome doesn't bode well for the future of climate regulation. "Climate change is a crisis, and we really need all the tools we can get, and some of them are probably not going to be there," said Dan Farber, a law professor at the University of California, Berkeley. "If Trump is able to fill this vacancy, there'll be at least five conservative votes for at least 20 years, and we don't know what ... new doctrines that are not now on the horizon that could really weaken the power of the government to deal with climate change," he said. The Trump administration has made environmental deregulation a cornerstone of its agenda for the last four years, rolling out major changes to rules including emissions standards for automobiles and power plants. Green groups have lambasted the changes as violations of federal environmental and administrative law, which require reasoned rulemaking. But a conservative Supreme Court majority that favors curbing agency powers could limit oversight of emissions without even touching Massachusetts v. EPA, which said the government can regulate carbon dioxide and other greenhouse gases as "air pollutants" under the Clean Air Act, said Hana Vizcarra, staff attorney at Harvard Law School's Environmental and Energy Law Program. "EPA has been reconsidering their own interpretations of the law in order to limit their own authority," she said. "That's something that this more conservative court may be more inclined to agree with them about, for example, the scope of the Clean Air Act as a much more limited scope that would not allow for the latitude to really take aggressive action against climate change."

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...In 2018, a federal judge in Montana ordered the Trump administration and TransCanada to stop work on the Keystone XL pipeline, saying Mr. Trump’s approval of the project violated laws by ignoring facts about climate change...He and other regulatory experts noted that 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 standards will take time. That would make lawsuits brought by Democratic attorneys general all the more important because they will have kept many rules from going into effect while their replacements wind their way through the regulatory process...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.

A people's veto to repeal ranked choice voting will not appear on the November ballot, after a decision by the Maine Supreme Court on Tuesday. In a 24-page decision, justices overturned a lower court ruling and upheld the Maine Secretary of State's determination that organizers did not have enough signatures to make the ballot. The arguments focused on nearly 1,000 signatures that were collected by two circulators who weren’t registered Maine voters at the time, in the city or town where they lived. Secretary of State Matt Dunlap argued that violated the law and invalidated those signatures. Peter Brann, an attorney in Lewiston and adjunct professor at Harvard Law School, says the court decision itself is about a technical election issue, but it has big implications. It means Maine will be the first state to use ranked choice voting in a presidential election. It will also be used once again in Congressional races. In a statement, the chair of Maine’s Republican Party said, "We are disappointed in the decision and exploring further options for review by the federal courts to protect Maine voters’ rights to be heard." "It has a little bit of a feel of Charlie Brown and the football, where every two years someone's taking another run at it," Brann said. Unless someone makes another attempt at gathering signatures, he believes the court decision marks the end of this particular fight. "Each time it's gone to the ballot, it's won pretty easily," Brann said.

Upon his death, John wants an American flag draped over his casket and then handed to his children. Of all the veterans’ benefits he has sought over the past five decades --tuition assistance, health care access, and disability benefits, it’s this gesture of an official military funeral he most desires. John is 72 years old, Black, and a Vietnam War veteran. He requested the USA Today Network only publicize his first name as he goes through a process familiar to many American veterans: a military discharge upgrade. Upon leaving the military, John was given a less-than-honorable discharge that restricted his access to veteran services, both monetary and symbolic. Living in North Carolina’s Piedmont region, John continues to fight to change his discharge status, one he feels was unfairly assigned during an era when racism, homophobia, and a lack of understanding around post-traumatic stress disorder (PTSD) clouded many discharge decisions...In recent years, more North Carolina lawyers and law students -- from Asheville to Chapel Hill -- have begun working with veterans to upgrade their statuses and help them gain benefits. A disproportionate number of veterans face mental health concerns and suicidal ideation. Now during COVID-19, advocates say their work has become more urgent as the pandemic has left veterans without health care benefits particularly vulnerable...For more than 40 years, a widespread misinterpretation of policy around discharges denied him and many others VA health care. Released in March, Harvard Law School Veterans Legal Clinic’s “Turned Away” report detailed how the VA incorrectly denied health care to eligible veterans with bad paper. Denials are rooted in language confusion: The VA and the military have different definitions for what is honorable and dishonorable, which are the linchpins for determining benefit eligibility. The report concluded the “VA routinely denies potentially eligible veterans their right to apply for and receive critical health care benefits to which they may be entitled.”

An article by Lawrence Lessig: There’s no doubt that the death of Justice Ginsburg has radically changed the dynamics of the 2020 election. But there is no reason to believe that Justice Ginsburg’s seat is lost to a Trump appointee. Mitch McConnell is playing a difficult game. At each stage between now and January 20, his actions are significantly constrained. It would make no sense for McConnell to bring a nominee to the floor before the election. That’s no gain for the Republicans, but only significant costs. It’s no gain, because by filling the seat, McConnell eliminates the turnout effect that this event is certainly going to have for Republicans. There are many who were on the fence about Trump who will now turn out for the Supreme Court seat alone. If that seat is filled, they stay home. And it’s a significant cost because key Republicans would face a backlash at the polls for reversing themselves on election-year appointments. Susan Collins most obviously. Maybe even McConnell himself (though who can begin to understand Kentucky voters?). Bottom line: I don’t expect we’ll see any nominee on the Senate floor before November 3. If Trump wins, game over, obviously. If he doesn’t win, then everything depends on whether the Senate has been flipped as well. If the Democrats have won all three contests — the House, Senate, and White House—then the path to stopping McConnell in the Senate is clear: The Democrats declare that they will add four seats to the Court if there’s a lame-duck appointment, and they promise they won’t if there isn’t. That deal is fair and right. What McConnell did with Garland was wrong. The hypocrisy in now reversing the “principle” (as he then put it) that blocked Garland adds insult to injury. Bad behavior must be punished — especially in politics. If they steal two, they should lose four.

An article by Cass Sunstein: In an interview Tuesday morning with Speaker of the House Nancy Pelosi, CNBC host Jim Cramer addressed her as “Crazy Nancy.” Here’s the transcript: Jim Cramer: What deal can we have, Crazy Nancy?  I’m sorry, that was the President. I have such reverence for the office. I would never use that term, but it is – Speaker Pelosi: But you just did. [Laughter] But you just did. Cramer: Oh, come on, you know what I mean. You know what I mean. Pelosi: I know what you meant, I do. Cramer later apologized, saying, “I made a very stupid mistake.” President Donald Trump tweeted back: “Jim, you didn’t make a mistake. It’s true, and that’s why you said it. No pandering!” Taken by itself, the incident is merely revolting. But it reveals some larger truths. Let’s assume what is probably the case: Cramer had no conscious intention of addressing the speaker of the House as “Crazy Nancy.” But Trump’s ugly nickname stuck in his head, so that when he saw her face, that’s what came to mind. He used the term automatically and without reflection. There is a clue here about the immense power of ugly nicknames — and also of deception and lies. With respect to statements of fact, human beings show “truth bias”: people tend to think that what they hear is truthful, even when  explicitly told that it is false, or otherwise have excellent reason not to believe it. Indeed, research shows that a real-time disclosure that a statement is untrue may not be enough to stop us from remembering it as true, and potentially from repeating it later, with conviction. It’s hard to get some things out of our heads, even if they are accompanied with strong disclaimers. (Social media platforms, are you paying attention?)

The U.S. Supreme Court hasn’t always had nine justices—it started with six, went briefly down to five, back to six, then seven, then nine, and, during the Civil War, ten. If Trump confirms a replacement for Ruth Bader Ginsburg and Democrats later regain the presidency and Senate, Democrats are threatening to change the number again. The Constitution doesn’t specify that the Supreme Court needs to be a particular size. The founders “knew the country was going to grow,” says Mark Tushnet, a professor emeritus at Harvard Law School who serves on the advisory board of Take Back the Court, an organization that aims to reform the judiciary. “They didn’t want to saddle the Constitution with a particular formulation. They could design a court that would fit the country that they were living in. But they didn’t know what was going to happen in the future and wanted to leave it open.” The current size of the Supreme Court has been in place since 1869. During the Great Depression, after the court repeatedly struck down New Deal legislation, Franklin D. Roosevelt proposed “packing the court” with more justices. “There’s a subsurface argument that’s going to surface soon that, in fact, since the failure of the court-packing plan in 1937, a kind of constitutional convention has been created that you can’t change the size of the court merely for political reasons,” Tushnet says. Still, he says that the standard legal opinion now is that the president and Congress can choose to change the number of justices at any time they want. There’s no reason that nine is a magic number. “If you look around the world at constitutional courts, the number varies between 7 and 15,” he says. “And courts with sizes larger than 9 manage to work as well as our court does. So as an issue of simply managing the institution, going from 9 to 11 or 13 probably shouldn’t be a difficulty.”

John Durham has said almost nothing about his 15-month probe into the FBI’s investigation of the Trump 2016 campaign. Not so Durham’s boss, Attorney General William Barr, who has called “Crossfire Hurricane” one of the “greatest travesties in American history.” Now, as America heads into the final weeks of a contentious presidential campaign, experts say it is Barr who will control how, and possibly when, Durham’s findings are presented to the country. That has Democrats feeling deja vu. In 2016, former FBI Director James Comey infamously revealed that the bureau had reopened an investigation into Hillary Clinton’s private email server just days before the election. With Trump’s intense interest in Durham’s work, Barr’s controversial comments and a fast-approaching presidential election, the timing and manner of the end of this probe could affect voters as they go to the polls...In theory, some norms control whether and how Durham’s findings would become public. If Durham does not have any other criminal indictments resulting from his work, typically the Justice Department would refrain from making much information public. The Department tends not to release information about what it has found about someone if that person isn’t going to be criminally charged. (This was the norm Comey broke in his public statements about Clinton’s email investigation in 2016.) On the other hand, if people are charged as a result of Durham’s work, the Justice Department has an unwritten “60-day rule” that urges caution on taking major action in any politically significant cases within a window of time before an election if it could affect the results. But in practice, it’s up to Barr how much deference to give to these traditions. “Other than those soft norms, he basically can do what he wants,” says Jack Goldsmith, professor at Harvard Law School who served in the Justice Department’s Office of Legal Counsel (OLC) under President George W. Bush. Unlike Robert Mueller, whose investigation was governed by the special counsel regulations, Durham has no formal roadmap to follow for how he needs to present his findings. Barr “has enormous discretion,” says Goldsmith. “There are no express Justice Department rules governing this.”

EPA chief Andrew Wheeler boasted Monday the Trump administration has done more than any other to clean up the environment, calling the agency’s record of progress “incontrovertible.” But his predecessors and former officials at the agency say any environmental gains have come in spite of Trump’s policy making -- not because of it. The sparring comes as both President Donald Trump and Democratic challenger Joe Biden seek to woo voters concerned about the environment. “We have done more in the first four years of the Trump administration to improve the environment than probably any administration except perhaps during the very first years of EPA,” Wheeler, administrator of the Environmental Protection Agency, said in a speech Monday. “It is incontrovertible that today the environment is in better shape under President Trump than we found it.” Wheeler highlighted a 15% decline in U.S. energy-related emissions of carbon dioxide since 2005, saying the foregone greenhouse gas emissions out pace those of Britain, France, Germany, Italy and Canada combined -- and come even as China’s emissions have surged 50%. Wheeler also cited agency moves to clean up toxic Superfund sites and clear a backlog of unapproved state plans for combating air pollution as well as congressional spending on U.S. drinking water infrastructure...Former EPA leaders have spent weeks warning the opposite is true, with six former chiefs -- including those serving under Republican presidents -- outlining a blueprint for a post-election “reset” of the agency last month. “EPA Administrator Wheeler has been unrelenting in his efforts to defy science and deny the agency’s obligation to protect public health and the environment from the myriad harms of air and water pollution,” said Joe Goffman, a former EPA associate assistant administrator who is now an executive director of Harvard University’s Environmental and Energy Law Program. Recent reductions in pollution “are occurring as a result of regulations and investments put in place by the Obama administration, and in spite of the Trump EPA’s continual pursuit of deregulation,” Goffman added.

An article by Michael Klarman: Ruth Bader Ginsburg was appointed to the US Court of Appeals for the District of Columbia Circuit by President Jimmy Carter in 1980, and to the Supreme Court by President Bill Clinton in 1993. I had the good fortune to clerk for her when she was on the DC Circuit. Like most of Ginsburg's law clerks, I relished the experience, admiring her legal brilliance, learning from her exemplary writing skills, and both respecting and liking her as a person. But as any of us would tell you, Ginsburg -- extraordinary as she was -- was not an ordinary, down-to-earth sort of person. Conversations with her could be awkward because she always thought carefully before speaking, did not waste words, and declined to engage in small talk. Thus, conversations with her often featured long pauses, while you tried to figure out if she was finished speaking and it was now your turn, or she was still formulating her thoughts. You certainly did not want to interrupt her in mid-thought. I have two favorite stories about Ginsburg from my clerkship that I like to share with my students. I'll recount the first of them up here. Both have to do with sports -- an obsession of mine that the Justice did not share. Soon after her appointment to the DC Circuit, the Washington football team won the Super Bowl, and there was a celebratory parade down Constitution Avenue, which runs right beside the courthouse. Ginsburg asked her secretary what the noise was about. "Why, judge, that's the Super Bowl parade," her secretary replied. To which Ginsburg responded, "What's the Super Bowl?" Ginsburg was the leading women's rights lawyer of the 1970s, the decade when the Supreme Court first recognized that the Fourteenth Amendment guaranteed sex equality. When President Clinton nominated her to the high court, he rightly compared her contributions to women's rights to those of the great NAACP lawyer Thurgood Marshall to civil rights. Ginsburg's life encapsulated what the professional world was like for women 60 years ago and how much it has changed since then. When she entered Harvard Law School in 1956, she was one of only nine women in a class of more than 500.

It was 8:03 a.m., and the screen of Carlos Cano’s laptop was black. This meant he was three minutes late for his eighth-grade science class. In the next room, beneath a painting of Jesus, Cano’s mother kneeled on the hardwood floor. She was not praying to God. Instead, she faced a white internet router as big as a kitchen blender. She unplugged the power cord, then plugged it in. “Is it working, Carlos?” asked Adriana Medina, Cano’s mother. “Nope,” Cano said. “Oh, come on!” Medina said. “This is supposed to be Verizon’s biggest, fastest router. And every day, it doesn’t work! Why am I paying for this?” As the COVID-19 pandemic forces millions of American families to try online learning for the first time, many are discovering their internet service is not up to the task. Nor is it cheap. Medina has Verizon’s “Fios Gigabit Connection,” supposedly enough broadband to support 100 computers. Along with two cellphones, router rental and other fees, Medina pays $400 every month to connect her family to the world. Yet she can’t even connect to teachers at her son’s middle school, a half-mile away. “I don’t blame the school. I blame the internet service companies,” Medina said. “These people are making billions of dollars during this pandemic, but my kids can’t even go to school.” America, the nation that invented the internet, has terrible internet. Experts who study internet performance find that service in the United States is often too slow for the modern world of constant connection and two-way video chats. “Our telecommunications network, when it first launched, was the envy of the world,” said Susan Crawford, a professor at Harvard Law School who studies internet access worldwide. “Now it’s more like a Third-World nation.” For millions of families, internet service isn’t available at all.

U.S. Supreme Court Justice Ruth Bader Ginsburg will be best remembered for her fierce support of gender equality and civil rights, but she made her mark on environmental law as well, authoring opinions that established citizens' right to sue polluters under the Clean Water Act and the government's right to regulate cross-state air pollution. Justice Ginsburg wasn't necessarily a leader on the high court in regard to environmental law, but green groups knew that she would be a sympathetic ear and a fairly reliable vote, according to Jody Freeman, a professor at Harvard Law School and director of its Environmental and Energy Law Program. "She appreciated the challenges agencies like EPA face when trying to execute their duties," Freeman said, referring to the U.S. Environmental Protection Agency. "She read statutes with an eye to their purpose, and she respected agency expertise." Timothy Bishop, a partner at Mayer Brown LLP, said that although Justice Ginsburg didn't take the lead on many environmental cases, she reliably recognized the government's right to regulate on environmental issues. He cited Massachusetts v. U.S. Environmental Protection Agency , which established carbon dioxide as a pollutant eligible for federal regulation, and Rapanos v. EPA , in which the court's four liberal justices took a broad view of the government's regulatory authority under the Clean Water Act. "Her environmental record is fairly slim for so long a tenure in the court, and you do not get the impression that she had the passion for environmental issues that, say, Justice [John Paul] Stevens had, compared to her record on civil rights issues, on which her liberal icon status is based," Bishop said Here are three of the most important environmental law opinions Justice Ginsburg authored.

An article by Richard Lazarus: The center of gravity of Justice Ruth Bader Ginsburg’s fame is justifiably focused on her pioneering work both as a young attorney and later as a justice for gender equality. Ginsburg’s own career embodied the women’s liberation movement and she clearly inspired generations of women as well as men to follow her example. What is less appreciated is the significant role that Justice Ginsburg played in environmental law on the high court, and how that record, in turn, reveals what made her such a great justice. Ginsburg came to the court in 1993 with no particular reputation on environmental issues. She had never practiced environmental law as an attorney and while serving as a judge on the U.S. Court of Appeals for the D.C. Circuit, she displayed no particular affinity toward environmental protection. If anything, then-Judge Ginsburg enjoyed a straight-shooter, pro-business reputation. Business community support of her Supreme Court nomination partly explains why Ginsburg was so easily confirmed by the Senate, 96-3, notwithstanding her obvious liberal views on otherwise potentially controversial social issues such as abortion rights. Once on the court, however, Ginsburg quickly became an important vote in environmental cases. What is most telling about her environmental law record, however, is its underscoring of both her integrity and her extraordinary skills as a jurist. Most simply put, although Justice Ginsburg’s fame is understandably rooted in her championing gender equality, the justice’s greatest contributions were rooted not in her ideology but in her skills as one of the most talented lawyers ever to serve on the court. Environmental advocates appearing before Ginsburg knew the justice was never a vote they could assume. Her vote always had to be earned. And the only way to earn that vote would be the force and persuasiveness of their legal arguments. The justice’s vote would not be decided by whatever sympathy she might privately harbor for the environmental protection policies they were promoting. Ginsburg was a progressive liberal, to be sure, but she was first and foremost an outstanding lawyer who applied her extraordinarily analytic skills with rigor and precision to the legal issues before the court.

An article by Francesca Procaccini: Justice Ruth Bader Ginsburg’s time on the Court was often characterized as a pitched battle between the principles of equality and individual liberty. Conservative majorities have tended to elevate individual autonomy rights over equal treatment and equal opportunity in our politics, our workplaces, and our schools. The liberal bloc, by contrast, has tended to oppose this subversion of equality to liberty, and pushed to recuperate equality as the primary value guiding constitutional law. Justice Ginsburg was in a camp of her own. She long grasped that these two great principles of American democracy are not at odds, but rather integral to each other. She recognized that equal opportunity is vital to self-determination, and that personal liberty is secure only insofar as society respects each of us as equals. In short, she did not fall victim to the false dichotomy of equality and liberty, but worked to advance equal liberty under law. A little-known but momentous case, Christian Legal Society Chapter v. Martinez, exemplifies Ginsburg’s vision of equal liberty. Decided on the second-to-last day of the blockbuster 2009–10 term—one that included major decisions about campaign finance, gun rights, and criminal justice—this case has not generally been recognized as one of Ginsburg’s seminal opinions. But it contains all the hallmarks of the justice’s brilliance. It is a steady and cautious advancement of the law, faithful to precedent and situated within a pion to civil procedure, that ultimately reconciles with deft agility the seemingly competing values of religious liberty and equal educational opportunity.

A Harvard University study published earlier this month found there are “persistent racial disparities” in the Massachusetts criminal justice system and that people of color are “drastically overrepresented” in state prisons. The 103-page study, released by the Criminal Justice Policy Program at Harvard Law School on Sept. 9, is the culmination of work undertaken by researchers at the request of the late Massachusetts Supreme Judicial Court Chief Justice Ralph Gants. Gants died at age 65 only days after the study was published following surgery from a heart attack. The late SJC chief was a criminal justice advocate, who worked with the Massachusetts State Legislature to pass the criminal justice reform bill of 2018 and eliminate mandatory minimum sentences. In his October 2016 state of the judiciary address, Gants cited data gathered by the Massachusetts Sentencing Commission showing alarming racial disparities in the rates of imprisonment. The judge expressed the need to take “a hard look" at how to better "provide equal justice for every litigant” and announced a collaborative study with Harvard Law School to examine such inequities. Using data collected from the Massachusetts Trial Court, the Department of Criminal Justice Information Services, the Department of Correction, the Probation Service and other state agencies, the researchers looked at more than 500,000 criminal cases and analyzed every stage of the criminal process... “Numerous federal, state and local level studies have examined disparities in various points in the criminal system in an attempt to explain disparities in incarceration rates. These studies have largely found that Black and Latinx people tend to be over-represented throughout the process,” Harvard’s study said. “This report should be read in the context of the ongoing exploration of the institutionalized racism that pervades every aspect of the criminal system.” In a statement from Sept. 9, Massachusetts Committee for Public Counsel Services (CPCS) Chief Counsel Anthony Benedetti thanked both Harvard for putting together the study and Gants for launching the initiative.

The Department of Justice on Monday designated New York City, Seattle and Portland, Ore., as jurisdictions that permit “anarchy, violence and destruction,” a distinction that the Trump administration hopes to use to strip those cities of federal funding. But legal experts say the policy may amount to little more than an empty political threat. The list of cities is a response to a Sept. 2 memorandum from the White House outlining a policy under which the Trump administration can decide to restrict federal grant funding. The memo states that violence and destruction have continued “unabated” in Portland, Seattle and New York due to failed leadership and disempowered police forces...The proposal to deny those three cities federal funding is vaguely similar to Trump’s attempt to withhold funds from so-called sanctuary cities, jurisdictions that limit cooperation with federal agencies in the enforcement of immigration law. Courts have issued mixed decisions on whether such an action is legal. But experts told Yahoo News this latest case is cut-and-dried, and say that Trump and Barr are applying arbitrary criteria to decide which cities the administration will deny funding. “It’s clear that only the Congress has the power of the purse,” Harvard University law professor and leading constitutional scholar Laurence Tribe told Yahoo News. “Congress sets the conditions on which grants to states and grants to municipalities can be given and must be given. And the president has to follow those rules.” Tribe said he would expect lower courts to come to this conclusion if Trump actually attempted to revoke federal funding. It’s unclear how exactly the administration plans to follow through. “I think it’s just bluster. It’s just talk,” Tribe said.