Media Mentions

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.

Democrats are furious over the push by President Donald Trump and Senate Republicans to move quickly on a Supreme Court nominee to replace the late Justice Ruth Bader Ginsburg. They vowed to consider options for how they might respond if a confirmation vote is held before the presidential election Nov. 3. Among the potential measures some advocated is the possibility of Democrats expanding the Supreme Court – an idea often referred to as court packing – if they win the White House and majorities in both houses of Congress. Supporters of such a move argue additional justices appointed during a Joe Biden administration would offset the conservative majority, which they said was unfairly established...Harvard Law Professor Mark Tushnet told USA TODAY the size of the court was changed for political reasons several times before 1869. Tushnet who sits on the advisory board of Take Back the Court – a group that advocates for expanding the number of Supreme Court justices as "the only strategy that rebalances the court after its 2016 theft." Tushnet said Congress expanded the court during the Civil War "to make sure that there'd be a Republican majority on the court. And then, when Andrew Johnson became president, they reduced the size of the court so that he wouldn't be able to appoint unsympathetic justices." ... Harvard Law Professor Laurence Tribe told USA TODAY that if Democrats expand the court for political reasons, they risk "an unending escalation" in which each party changes the size of the court when it has the political power to do so. Tribe denounced Republicans' handling of Garland's nomination and Ginsburg's vacancy as "hypocrisy" and "unprincipled." He said changing the court in retaliation is an "understandable impulse," but in the long run, it could mean sacrificing "the idea of the Supreme Court as a stable institution, one of the few that can provide a kind of ballast for the ship of state." "And the long run matters," he said.  Tushnet acknowledged the risks but said Republicans forced Democrats to play "constitutional hardball."  "If Republicans play hardball, it seems to me perfectly appropriate for Democrats to play hardball in response," Tushnet said. "When one side plays hardball and the other doesn't, that can erode democracy, too. And mostly, that's what we've experienced in the United States already."

On August 19, Kuwait’s Parliament amended the country’s press and publication law marking an easing of decades of tight government control over publishing. Kuwait has banned nearly 5,000 books in the last seven years, inviting scrutiny from international and local literary organizations. Gulf Arab states have spent billions of dollars to become literary beacons and cultural hubs, hosting one of the region’s largest book fairs and numerous cultural events. Yet their self-promotion and global outreach are contradicted by strict press and publication laws that regulate the cultural scene. This censorship raises substantial questions about the level of intellectual and cultural freedom in the Gulf...Bahrain revised its 1979 press law in 2002 under the new constitution. However, “the law still regulates all matters of publication and remains one of the most restrictive laws in the region and includes criminal penalties for publication-related offenses,” noted Salma Waheedi, a Bahraini attorney based in the United States and the associate director of the Law and Society in the Muslim World program at Harvard University. “Prohibited content is defined quite broadly and includes any material that offends Islam, national unity, or any state institution, among a much longer list of restrictions drafted broadly and can encompass a wide range of writings,” she added. A new law was drafted in 2019 that eases some penalties of the current law, including prison sentences, fines, and firing journalists. “Moreover, the law includes easing pre- and post-publication censorship, but also incorporates regulations that address online and electronic media and restrictions remain in place, justified on the grounds of security, social cohesion, and morality,” said Waheedi. Many Bahrainis wait for the book fair to find books that would be censored in other places, due to the practical challenge of the government checking thousands of books coming to the fair. Nonetheless, some “flagged” publishers, who often have political publications, do get their books banned, Waheedi added.

A more conservative Supreme Court gives the Trump administration a greater chance of making its rollbacks of environmental rules last long after the president leaves office. The death of Justice Ruth Bader Ginsburg could have a profound effect on a number of legal challenges brought against President Trump and his deputies now winding their way through lower courts, legal experts say. Court challenges from blue states and green groups involving many issues — everything from whether Utah canyon land can be drilled, to whether oil companies can be held responsible for killing birds in spills, to  if the federal government can take aggressive action to curb climate change — could be impacted. And even if Trump is defeated in November, the loss of the late liberal icon on the court may also give Joe Biden trouble in implementing a plan to combat climate change. “A further tilt of the Court in the direction it is already going ― skeptical of regulation, unsympathetic to the idea that agencies should have some room to interpret their statutes broadly to solve new problems, and uninterested in reading statutes with their broader purpose in mind, certainly won’t help the cause of environmental protection,” said Jody Freeman, director of Harvard Law School’s environmental and energy law program...A Biden administration, along with Democrats in Congress, will need to craft new environmental laws and regulations extra carefully so as not to run afoul of a more conservative Supreme Court, Freeman said. “All of this underscores the need to use executive power smartly and strategically in a legally defensible way in tandem with passing new legislation on climate and energy policy," she said.

A new Supreme Court appointment at the twilight of President Trump's first term could shift how justices respond to regulatory challenges and dull Chief Justice John Roberts' swing vote in cases with important energy and environmental consequences. And if Trump loses in November, it could complicate Biden administration efforts to address climate change and make it tougher to roll back Trump's deregulatory agenda. Court watchers expect Trump's nominee to replace Justice Ruth Bader Ginsburg, who died Friday at age 87, to fall ideologically to Roberts' right. That could alter how the court handles administrative law, which governs federal agency actions and can be a key component of regulatory cases...The White House Council on Environmental Quality's new implementing regulations for a foundational environmental law may also find their way to the Supreme Court. The rules are being challenged in part for allegedly diverging too far from the bedrock National Environmental Policy Act. Conservatives have long challenged how much courts should defer to agency interpretations of NEPA. While Roberts has shown an interest in limiting the scope of that deference — known as Chevron deference — a more conservative justice may want to do away with it entirely, said Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School. She noted that there has been a "certain instability" in recent major administrative law cases where a single vote could have tilted the outcome. "In many of these big cases, [Roberts] is like a surgeon, wielding the scalpel carefully to achieve his desired outcome, but also doing so carefully to limit collateral damage. He is not looking for upheaval," said Freeman in an email. "A new conservative justice may not be as cautious or as concerned about ripple effects." For example, the high court earlier this year also took aim at independent agencies when it struck down the structure of the Consumer Financial Protection Bureau. With an additional conservative vote, the court might have been persuaded to go further and find that all independent agencies are unconstitutional, said Freeman.

She entered Harvard Law School in 1956 as just one of a few women enrolled in a class of 500. A few years later, the woman who would one day sit on the US Supreme Court was famously rejected by dozens of New York City law firms because of her gender. But over the decades that followed, Ruth Bader Ginsburg built a remarkable career as a legal and cultural icon who used her intelligence and courage to fight fearlessly for social justice. And after her death was announced on Friday, entire generations of lawyers — women and men alike — grieved for a jurist whose legacy somehow transcended even the highest court in the nation. “Justice Ginsburg personified the best of what it meant to be a judge,” Harvard Law School Dean John F. Manning said in a statement. “She brought a deep intellectual and personal integrity to everything she did. Her powerful and unyielding commitment to the rule of law and to equal justice under law place her among the great Justices in the annals of the Court.” Martha Minow, a former dean of Harvard Law School, recalled Ginsburg’s impact on her own legal career. “I am one of countless people she directly encouraged and deeply inspired to use reason and argument in service of justice and humanity. Justice Ginsburg also showed that it is possible to build deep and meaningful friendships with people despite severe disagreements. At this time of deep social and political divisions, there is much to learn from her life and her commitments,” Minow said in a statement...Nancy Gertner, a retired US district court judge and a professor at Harvard Law School, said Ginsburg had inspired generations of women and wound up a reluctant pop culture icon while approaching the law as “a craftsperson who cared about the court’s precedents and was going to work within them.” “Ruth Ginsburg was more than just a brilliant scholar, and a liberal, which is what the press reduced her to,” Gertner said by phone. “She essentially created the law of gender and race discrimination. From the time she was a lawyer, a litigator, she was raising issues about the nuance of discrimination.”

President Donald Trump's administration announced on Friday that it is going to restrict access to TikTok and WeChat, two Chinese-owned mobile apps, starting on Sunday — a move that, experts say, raises serious questions about the administration's acceptance of free speech rights. "The only real change as of Sunday night will be [TikTok users] won't have access to improved apps, updated apps, upgraded apps or maintenance," Commerce Secretary Wilbur Ross claimed when speaking to the Fox Business Network. The new policy will ban both of the apps from American app stores and makes it illegal for American companies to process transactions for WeChat or host its internet traffic. The government will impose similar restrictions on TikTok as of Nov. 12 unless the company convinces the administration that its software does not present a national security risk...Trump has previously waged war against social media platforms that were politically threatening to himself. After Twitter attached a fact-check label to two of his tweets in May, Trump retaliated against the company by signing an executive order that could open the company up to litigation based on content posted by its users. Trump made it clear in the days before signing the executive order that he was doing this to social media platforms that supposedly "totally silence conservatives' voices" and said that "we will strongly regulate, or close them down, before we can ever allow this to happen." At the time he made those comments, Harvard Law professor Laurence Tribe told Salon by email that "the threat by Donald Trump to shut down social media platforms that he finds objectionable is a dangerous overreaction by a thin-skinned president. Any such move would be blatantly unconstitutional under the First Amendment. That doesn't make the threat harmless, however, because the president has many ways in which he can hurt individual companies, and his threat to do so as a way of silencing dissent is likely to chill freedom of expression and will undermine constitutional democracy in the long run."

An article by Noah Feldman: Attorney General William Barr can’t seem to get out of the headlines. Maybe he doesn’t want to. Just this week, the Wall Street Journal reported that Barr suggested to federal prosecutors that they consider charging protesters with sedition — an archaic criminal charge that hasn’t been regularly used by federal authorities since the McCarthy era. Barr also reportedly mused about finding a way to prosecute Seattle Mayor Jenny Durkan for establishing a police-free protest zone in her city. Then, in a speech at Hillsdale College, Barr defended his penchant for overruling prosecutors, comparing them to children in a Montessori school. For any normal attorney general, this week’s controversies would have marked a crisis accompanied by demands that he resign and serious speculation that he would be forced to do so. Not so for Barr, who clearly enjoys President Donald Trump’s support. Barr, more than any attorney general in memory, is inserting himself into the business of criminal prosecution by proposing unorthodox strategies that serve the president’s political ends. Start with the sedition prosecution proposal. To my mind, it’s the most shocking of Barr’s statements. Sedition is, roughly speaking, the crime of either rebelling against the government or inciting other people to do so. It’s the sort of crime that weak governments enforce against their citizens when the government is facing an existential threat — or thinks it is. Sedition prosecutions in the U.S. have a particularly shameful history. The 1798 Sedition Act was used in a nakedly partisan manner by John Adams’s Federalist administration to prosecute Republican newspaper editors. Dozens were jailed and fined. Although the law was never formally struck down by the courts, it has come to be a model of the kind of law that violates free speech.

An article by Cass Sunstein: It was 1985, I think. The Federalist Society was hosting a conference in Washington on equality. I was a young professor, the token liberal on a panel, and its least distinguished member. The experience was brutal. Professor Paul Bator, a famous scholar who had been my teacher not long before, was on the panel, and at one point he whispered in my ear. “Just stop talking,” he said. “No one in the room wants to hear you.” Humiliated, I retreated to my hotel room. At about 9 p.m., the phone rang. The voice on the other line said: “Hi Cass, it’s Ruth Ginsburg. We haven’t met, but I wanted to say that you did a wonderful job. It was a tough panel and such a tough crowd — you were great!” We talked for a long time, about equality, the Constitution, rationality and respectful disagreement. I hadn’t done a wonderful job, not close, but she sensed my vulnerability and she wanted to help. That defined much of her life, as a person and as a justice. She was kind; she was also steely. She was serious; she also had a twinkle in her eye, and she was full of mischief. Two opinions help explain what she was all about. The first, decided in 1996, was United States v. Virginia, in which she wrote the Court’s historic opinion striking down the refusal of the Virginia Military Institute to admit women. She declared that the Constitution does not allow federal or state governments to deny women the “equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.” In defending its discriminatory practice, Virginia pointed to the differences between men and women. Ginsburg responded that those differences are “cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity.” They may not be invoked, she wrote, “to create or perpetuate the legal, social, and economic inferiority of women.”

An article by Randall Kennedy and Ilya Somin: This presidential election season joins the last several in being attended by accusations that certain candidates are ineligible because of the requirement in Article II of the Constitution that the president be not only a citizen, but a “natural born” citizen. This time around, some have claimed that Sen. Kamala Harris is ineligible for the presidency because, though born in the United States, her parents were immigrants who had not become citizens by the time of her birth. We believe this claim is untenable. But the need to address the matter at all highlights why eligibility distinctions that turn on place of birth or status of parent ought to be abolished. That eligibility for our highest political office is conditioned by an invidious discrimination buried in the Constitution itself should be highly disturbing. In 2016, the targets were Republican candidates Ted Cruz (born in Canada to U.S.-citizen parents who had immigrated from Cuba) and Marco Rubio (also the son of Cuban immigrants). In 2008 and 2012, Barack Obama, was assailed by “birthers”who falsely claimed he was born outside the United States. Obama's 2008 GOP opponent, John McCain, came under attack because he was born in what was then the Panama Canal Zone. Such episodes are all too likely to recur. In an increasingly diverse society, it will often be possible to claim tendentiously that some candidate or other is ineligible.

A growing collection of flowers, posters, hand-written notes and low-burning candles have accumulated on the steps of the Harvard Law School library, a makeshift memorial assembled by Harvard students and admirers of the late alumnus and Supreme Court Justice Ruth Bader Ginsburg, who died Friday at the age of 87. Leaning in to read the notes, second-year Harvard Law student Jin Lee ‘22 took stock of the vigil Sunday, after two days of reflecting on Ginsburg’s legacy. “I'm just really grateful for what she has done for women in this country and for women at this school,” Lee said. “She has definitely influenced my decision to become a lawyer. She has shown me that as long as you keep pushing on the limits, they will expand. And that's what I hope to do.” Ginsburg enrolled at the law school in 1956, entering into a class of 552 men and only eight other women. The dean at the time famously asked the nine women, at a dinner party, why they deserved to take a place at the university that could be taken by a man. A plaque in Harvard’s Austin Hall now commemorates another discrimination those women faced: the building contained the only women’s restroom on campus, which meant female students had to run across campus to do their business and run back to make it in time for class... Notes at the memorial nodded to Ginsburg’s trailblazing legacy and the difficulties she faced leading up to her appointment as the second woman on the bench of the nation’s highest court. “Thank you for inspiring generations of women,” one note reads, scrawled on a post-it. “Lawyers and all else. We lost a hero today.”

... Ginsburg's life and work have continued to inspire generations behind her, including many students who walk in her footsteps at Harvard Law School. Maura Smyles, "My year was I believe the second year in HLS history to have more women than men in our class, so in that sense she's a trailblazer." ... Current students created this memorial outside of Harvard Law School Library. Catherine Walker-Jacks said, "I just wanted to create a place for people to mourn her and to share the impact that she's had on our lives."

The time Justice Ruth Bader Ginsburg spent at Harvard Law School during the 1950s presented challenges in and out of the classroom. ...On Saturday, mourners gathered at the site where the young Ginsburg endured those pivotal trials and grieved the jurist, who persevered her way to the US Supreme Court, opening doors of opportunity for women and others at stops along the way. “She’s the reason we’re here,” said Carolina Rabinowicz, 24, a first-year Harvard Law School student from New York, who visited a makeshift memorial outside Langdell Hall, a tear staining her blue face mask. Catherine Walker-Jacks, 25, another first-year student, said her class was reading a 2011 dissent authored by Ginsburg only hours before her death was announced Friday. ... Annie Whitney, 24, a first-year Harvard law student from North Carolina, said Ginsburg’s contributions are deeply felt. “RBG’s legacy," she said, "is one that so many carry forward.”

Ruth Bader Ginsburg was remembered Friday night by Harvard Law School's dean as an "inspiring and courageous human being" who was among the great Supreme Court justices. The justice, who died Friday at the age of 87, attended Harvard Law, where she was famously one of only nine women in her class of hundreds. She was also among the first women to serve on its esteemed journal, the Harvard Law Review. ...On Friday night, current Harvard Law School Dean John Manning released his statement honoring Ginsburg's memory. "Her powerful and unyielding commitment to the rule of law and to equal justice under law place her among the great Justices in the annals of the Court. She was also one of the most impactful lawyers of the twentieth-century," he said.

Supreme Court Justice Ruth Bader Ginsburg is known as a trailblazer for gender equality and equal rights, and her death has reverberated around the nation. Former Boston federal judge and WBUR legal analyst Nancy Gertner knew Justice Ginsburg personally, and spoke with WBUR's Sharon Brody to share her thoughts and memories of a woman she calls "the model of what we wanted to be."

An op-ed by Nancy Gertner: I was in my late 20s, attending a conference for women lawyers in the 1970s. I sat in the front row of a large auditorium for the keynote address. The speaker was Ruth Bader Ginsburg, the founder of the American Civil Liberties Union Women’s Rights Project. I was mesmerized. She was all that I wanted to be. To devote one’s life to the fight for civil rights, to use legal skills to effect justice, better yet to make a difference — I could think of nothing greater. And I was not alone; generations of civil rights lawyers looked to emulate her. Ginsburg’s vision of gender equality was decades ahead of her time. It went beyond just empowering women to compete for “men’s” roles. While stereotypes distorted women’s view of what was possible, they also impeded men, no less trapped in gender-based assumptions. Equality meant that both sexes should be free to assume all of society’s roles without preconceptions. My son can be a caregiver; my daughter can be an executive. When the school administrators wanted Ginsburg to come to school to discuss her son’s misconduct, she famously said, “This child has two parents.”

An op-ed 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. ... 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?"

She entered Harvard Law School in 1956 as just one of a few women enrolled in a class of 500. A few years later, the woman who would one day sit on the US Supreme Court was famously rejected by dozens of New York City law firms because of her gender. ...“Justice Ginsburg personified the best of what it meant to be a judge,” Harvard Law School Dean John F. Manning said in a statement. “She brought a deep intellectual and personal integrity to everything she did. Her powerful and unyielding commitment to the rule of law and to equal justice under law place her among the great Justices in the annals of the Court.” ... Martha Minow, a former dean of Harvard Law School, recalled Ginsburg’s impact on her own legal career.“I am one of countless people she directly encouraged and deeply inspired to use reason and argument in service of justice and humanity. .. At this time of deep social and political divisions, there is much to learn from her life and her commitments.” ... Nancy Gertner, a retired US district court judge and a professor at Harvard Law School, said Ginsburg had inspired generations of women and wound up a reluctant pop culture icon while approaching the law as “a craftsperson who cared about the court’s precedents and was going to work within them.”

U.S. Supreme Court Justice Ruth Bader Ginsburg ’56-58, whose lifelong fight for equal rights helped pave the way for women to take on high-profile roles in business, government, the military, and the Supreme Court, died on Sept. 18. She was 87. “Justice Ginsburg personified the best of what it meant to be a judge. She brought a deep intellectual and personal integrity to everything she did,” said John F. Manning ’85, Morgan and Helen Chu Dean and Professor of Law at Harvard Law School. “... We have lost a giant.” ... “Very few individuals in history come close to the extraordinary and significant role played by Justice Ginsburg in the pursuit of justice before she joined the bench,” said former Harvard Law School Dean Martha Minow, the 300th Anniversary University Professor at Harvard. ... “The Constitution’s heart aches at Ruth Bader Ginsburg’s passing,” Laurence Tribe ’66, the Carl M. Loeb University Professor, Emeritus, at Harvard Law School. ... Harvard Law School Professor Daphna Renan, who served as a law clerk for Justice Ginsburg during the 2006-2007 term, said: “RBG was tenacious, unflappable, and deeply wise.