Media Mentions

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.

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.”