Media Mentions

Months after vowing to process a backlog of 160,000 requests for loan forgiveness from students who say they were defrauded by their schools, the U.S. Education Department has rejected 94% of claims it has reviewed, according to a federal judge who is demanding justification for the “blistering pace” of denials. In a biting decision issued Monday in California, U.S. District Judge William Alsup said the department has been denying claims using template letters that are “alarmingly curt." Alsup threatened to suspend the agency from rejecting further requests, saying its approach “hangs borrowers out to dry.” He said that although Education Secretary Betsy DeVos blamed the backlog on the hard work that goes into processing claims, she has now “charged out of the gate, issuing perfunctory denial notices utterly devoid of meaningful explanation at a blistering pace.” The Education Department said it is studying the ruling...Rejections were delivered through standardized letters that included information on how to appeal the decision, but Alsup said the letters fail to explain the decision. It leaves borrowers in a “disturbingly Kafkaesque" situation, he wrote. Alsup said he is considering whether to forbid the department from issuing any further rejections until the case is decided. He has asked both sides to submit arguments around the question. Harvard Law School's Project on Predatory Student Lending, which represents borrowers in the suit, said it looks forward to deposing agency officials to get an explanation for their actions. “The class members in this case have suffered harm at every turn, but in this court order they are finally seeing a change in the tides after years of waiting for justice,” said Eileen Connor, the group's legal director.

A Harvard Law School environmental initiative has released a comprehensive road map to guide a potential Biden administration overhaul at the Interior Department, including calls for reversing a Trump-era reorganization and empowering career employees. Combining myriad policy recommendations with sharp if familiar critiques of the Trump administration's alleged shortcomings, the new Harvard Law School Environmental and Energy Law Program study illuminates dozens of green new routes Democrats might take. "If a Biden administration takes office, DOI will need to reverse some of the Trump administration's management decisions in order to back away from the energy dominance agenda and restore Interior's capacities," the study said. The recommendations range from the broad, like "reintegrating and valuing the work of career staff," to the administratively technical, like reforming the makeup of the Executive Resources Board, which assists in managing many of the department's senior employees. The study's four lead authors urge the hiring of more career staff to clear the Freedom of Information Act backlog and "reduce the influence" of political appointees in the FOIA process. The Fish and Wildlife Service should provide "adequate resources to scientists including time, materials, and professional development opportunities." The report focuses on departmentwide issues as well as on the Bureau of Land Management, FWS and the National Park Service. It does not address offshore activities managed by Interior. The report is based on document research; prior coverage by E&E News and other media outlets; and 25 interviews with former Interior Department career staff, former political appointees from the Clinton and Obama administrations, and natural resources and American Indian law experts.

An article by Jody Freeman: Amy Coney Barrett’s likely confirmation to the Supreme Court to replace the late Ruth Bader Ginsburg in a Monday Senate vote will add a conservative sixth vote to an already-conservative majority, with potentially far-reaching implications for American law. Barrett’s confirmation will scramble the current distribution of power on the Court, displacing the chief justice as its putative center and pulling it rightward. Most legal commentators expect that Barrett’s judicial philosophy of originalism and her advocacy of a more “flexible” approach to precedent will make her more likely to vote to overturn precedents like Roe v. Wade. Barrett also believes that judges should interpret statutes in accord with their “original public meaning,” a strict brand of textualism that tends to constrain agency regulatory power. What can we predict about Barrett’s likely attitude toward environmental regulation, and climate change in particular? Would she vote to overturn Massachusetts v. EPA, the Court’s 2007 landmark holding that the Environmental Protection Agency may regulate greenhouse gases under the Clean Air Act? Would she vote to uphold the Trump administration’s rescission of the Obama-era greenhouse gas standards for the power sector, and its ambitious greenhouse gas and fuel efficiency standards for cars, and uphold the administration’s far weaker rules? What of the administration’s legal theory that when setting power plant standards, EPA cannot consider grid-wide strategies like substituting natural gas for coal, even though Congress told the agency to use the “best system” of emission reduction? Or the administration’s theory that federal law preempts California from setting its own vehicle greenhouse gas standards, and, separately, that EPA can revoke California’s current waiver to set those standards? Would it be more difficult for a new Biden administration to adopt ambitious greenhouse gas rules with Barrett on the Court?

An article by Eli Nachmany ‘22: From the military to the technology sector, various American institutions and industries play a role in maintaining U.S. economic and national security. While the finished products associated with defense and technology, like aircraft engines and LED TVs, capture the public eye, the supply chains for the materials needed to produce these goods often garner little attention. A set of minerals, known as critical minerals, constitute a key part of the supply chains for these important sectors. In recent years, however, U.S. competitors such as China have come to control supply chains for the critical minerals themselves—raising questions about the effects of critical mineral supply chain insecurity on U.S. national security. Critical minerals are key in the manufacture of all kinds of important items, like armored vehicles, precision-guided weapons, batteries and night-vision goggles for the U.S. military. An inability to develop these minerals domestically creates a reliance on foreign nations that can hamstring a country in a pinch. In the early 2010s, for example, China placed export quotas on a subset of critical minerals known as rare earth elements, which sharply increased prices and disrupted global supply chains for various minerals. The U.S. responded by bringing a World Trade Organization dispute resolution case against China about the issue, ultimately winning before the global arbitrator. In recent months, critical shortages during the coronavirus pandemic have prompted lawmakers to reconsider the strength of the U.S. medical supply chain—but the robustness of the supply chain for critical minerals has also come into question. In September, Senate Republicans included critical minerals-related provisions in their coronavirus relief bill proposal. These provisions were adopted from the bipartisan American Mineral Security Act, introduced in 2019 by Sens. Lisa Murkowski, Joe Manchin and others; the bill would have promoted mining of critical minerals in the U.S. Meanwhile, the Trump administration has worked to address the vulnerabilities in U.S. critical minerals supply chains.

An op-ed by Noah Feldman: Chief Justice John Roberts is bending over backwards to try and show that the Supreme Court is nonpartisan when it comes to the 2020 election. The latest evidence is his vote in a 4-4 decision that, because it was a tie, upheld a decision by the Pennsylvania Supreme Court extending the deadline for counting mail-in ballots for three days after Election Day. In my view, Roberts got the law right. And it is certainly true that the 4-4 tie shows how the court’s election decisions could potentially be affected by the confirmation of Judge Amy Coney Barrett. But there is another takeaway, one that liberals and conservatives would do well to keep in view: An alternative decision overturning the Pennsylvania ruling would not have been crazy. That’s because the Pennsylvania Supreme Court decision could itself be interpreted as partisan. It interpreted Pennsylvania law against its plain meaning. To be clear, I think Roberts was right not to revisit the Pennsylvania court’s judgment. It was a state court decision interpreting a state statute, and the Supreme Court is supposed to accept a state court’s interpretation of its own law. But the alternate view, namely that the Pennsylvania decision violated federal law by deviating from the requirement that votes be cast by Election Day, was plausible, even if it wasn’t the best interpretation of what was going on. I realize — all too well — that in the heat of the election season, no one wants to hear the message that Roberts was correct but that the alternative would also have been defensible. Democrats just want to fret over the possibility that the Supreme Court will give the election to Trump. Republicans just want to declaim on the outrageousness of Roberts’s apparent defection to the left, driven by his desire to maintain the Supreme Court’s legitimacy. The reasonable middle position has exactly zero friends in the pre-election frenzy.

A podcast by Noah Feldman: Anthony Salvanto, CBS News’ director of Elections and Surveys, discusses the latest polling data and how to make sense of it.

President Donald Trump has made the possibility of widespread voter fraud -- an unsubstantiated assertion that even members of law enforcement in his administration have not supported -- a centerpiece of his reelection campaign. Out on the campaign trail, Trump has repeatedly described ballot irregularities to illustrate what he said is a grave risk of election fraud during the COVID pandemic, when record numbers are turning to mail-in ballots. He even suggested that if he does not win the election, the contest is "rigged." But records and interviews with parties involved in the episodes Trump has cited show he has taken small, often innocuous events and exaggerated or embellished them to fit his narrative. Trump made similar unsubstantiated claims about widespread fraud in 2016, claiming millions had voted illegally, but his election integrity commission shut down without finding evidence of that...Election officials in Democrat and Republican states alike have been clear that they have confidence in their election process, and experts agree that the risk of fraud is very low. Nicholas Stephanopoulos, an expert on election law and constitutional law and a professor at Harvard Law School, said “all available evidence indicates that mail-in voting in the United States is safe and secure. In states that use mail-in voting, there are infinitesimal rates of problems. More importantly, in these states, there are more people who vote; turnout is higher and so democracy is more robust.”

We live in an era of unprecedented political polarization, to the point where it seems unimaginable that liberals and conservatives could unite around any issue. Yet as a House Judiciary Committee hearing last Thursday illustrated, there are many conservatives who join liberals in arguing that we should strengthen antitrust laws against Big Tech companies like Google, Facebook, Twitter and Amazon — although they sometimes have very different reasons for wanting to do so. The House Judiciary Committee hearing was chaired by Rep. David Cicilline, D-R.I., who is in charge of the Subcommittee on Antitrust, Commercial and Administrative Law. The hearing, dubbed "Proposals to Strengthen the Antitrust Laws and Restore Competition Online," was a rare display of bipartisanship even though the two sides on some occasions still talked past each other. The hearing was also unusual because antitrust action is rare nowadays, a testament perhaps to how big business has essentially captured government. In general, the Democrats and Republicans seemed united in their desire to rein in big technology companies...As Salon has previously covered, President Donald Trump has used measures like Section 230 of the 1996 Communications Decency Act, which protects online platforms from being liable for the content posted by their users, to try to retaliate against social media platforms that he claims are hostile to him... "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," Harvard Law professor Laurence Tribe told Salon by email at the time. "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."

After the twin traumas of the Vietnam War and the Watergate scandal came a period of change in the nation’s capital. The system set about reinventing itself to realign the balance of power, establish new guardrails for those in high office and try to enforce greater accountability. Two weeks before an election that will determine whether President Trump wins another term or is repudiated by voters, some in both parties are already looking beyond him to map out a similar rewriting of the rules. After four years in which the old post-Watergate norms have been shattered, the would-be reformers anticipate a counterreaction to establish new ones. “It’s pretty obvious that Trump has, through his actions and words, exposed a number of weaknesses in the normative and legal restraints on the presidency,” said Jack L. Goldsmith, a Harvard Law School professor. “He has revealed that there are a lot of gaps in presidential accountability and that norms are not as solid as we thought. He has revealed that the presidency is due for an overhaul for accountability akin to the 1974 reforms.” Mr. Goldsmith, an assistant attorney general under President George W. Bush, has teamed up with Robert F. Bauer, a White House counsel under President Barack Obama, to produce what they hope could be a bipartisan blueprint for what such an overhaul would look like. Among their ideas are empowering future special counsels; restricting a president’s pardon power and private business interests; and protecting journalists from government intimidation. They are not the only ones looking ahead.

An article by Daniel Shapiro and Lucas Woodley: Are your relationships feeling strained these days? If so, you are not alone. In this unprecedented era, nearly all of us are feeling some degree of emotional imbalance. Restricted from carefree socializing with friends, family, colleagues, and strangers, it’s like we’re all in a global pressure cooker, and the temperature just keeps rising. This stir-crazy feeling has spread to politics.  If you’ve broached a conversation with someone who holds opposing views on racial issues, health economics, or the political election, you’ve likely felt the effects of polarization. Things quickly can spiral out of control—leaving each of you frustrated, more entrenched in your views, and more divided. If you think these problems are getting worse, you might be right. Some scholars argue that the current levels of polarization threaten to unravel the social and political fabric of our democratic system (Levitsky and Ziblatt, 2018). It’s not hard to see why: If having a political conversation across partisan lines enflames conflict, how can we expect diverse communities to work together toward the common good? One of the most potent obstacles to good relations is vertigo (Shapiro, 2017). Unlike the medical syndrome of the same name, this type of vertigo refers to the everyday emotional experience of getting fully consumed in conflict, unable to think of anything beyond that situation. It’s like you’re at the center of a tornado, stuck in the conflict, and cannot see the world beyond the swirling walls around you. Conflict vertigo is a useful concept to remember the next time you find yourself edging toward a fight with a loved one or colleague, but what does it actually look like in practice?

President Trump on Tuesday called on William P. Barr, the attorney general, to take action before Election Day against his Democratic opponent, former Vice President Joseph R. Biden Jr., over his son’s foreign work, an extraordinary attempt to pressure the government’s chief law enforcement to help him politically. The president made the remark during an interview with “Fox + Friends,” after days of caustic criticism of Mr. Biden, the moderators of the presidential debates, the news media and, increasingly, Mr. Barr. He recently said the attorney general would go down in history “as a very sad, sad situation” if he did not indict Democrats like Mr. Biden and former President Barack Obama...Critics have accused Mr. Barr on a number of occasions of intervening on issues to help Mr. Trump politically. But for the president to publicly call on him to take action against a political opponent was remarkable, especially two weeks before a presidential election. On Monday, Mr. Trump repeatedly called Mr. Biden “a criminal.” “He is sounding desperate,” said Charles Fried, a Harvard Law professor who was solicitor general in the Reagan administration. “He’s been urging the attorney general in several ways to investigate his political opponents and to somehow validate his preposterous charges of criminality.” “And even as loyal a henchman as Barr seems to have been able to draw the line somewhere — and it’s driving Trump crazy,” added Mr. Fried.

In a strongly worded order, a federal judge in California is signaling that he may put a stop to the Education Department’s nearly universal denials of requests by those who have been defrauded by for-profit colleges to have their student debts canceled. Attorneys representing more than 200,000 borrowers sued the U.S. Education Secretary Betsy DeVos last year, saying that the department stopped processing the claims between June 2018 and December 2019, leaving some in limbo for as long as four years. The sides seemed to reach an agreement in May, when the department agreed to process the remaining claims within a year and a half. But since then, attorneys representing the borrowers said, the department has denied 89 percent of the claims as of last August, sending borrowers a curt form letter with no explanation of why it was issuing a denial. In comparison, the department under the Obama administration had granted 99.2 percent of the requests, U.S. District Court Judge William Alsup noted. Saying the borrowers had likely not intended for the department to process the waiting claims by denying them, Alsup on Monday denied approval of the May settlement. Instead, he ordered attorneys representing the borrowers to depose department officials to learn to what extent it has been denying the claims of those defrauded by for-profits found by the department to have acted improperly and whether the form denials are different from how the Obama administration handled rejections...Eileen Connor, legal director at Harvard Law School’s Project on Predatory Student Lending, which is representing the borrowers, took heart in the order. “The class members in this case have suffered harm at every turn, but in this court order they are finally seeing a change in the tides after years of waiting for justice,” she said in a statement.

"I want crystal clean water and air." That's what Donald Trump said in the first chaotic presidential debate with Joe Biden. But there is scant evidence of that desire in the actions of his administration, which has spent nearly four years systematically dismantling core environmental protections, some of which stretch back decades. Experts agree that the climate crisis's most destructive manifestations, on display in a particularly difficult year for the US, barely scratch the surface of the catastrophes to come. Yet the president appears unmoved by the enormous wildfires, devastating hurricanes, widespread water problems and persistent air pollution that disproportionately blights black and Latino communities. His administration has scrapped climate regulations, rolled back clean water rules and loosened pollution standards. Protections for public land and threatened species have been shrunk while new oil pipelines and coal mining have been encouraged. The legacy of these changes will stretch well beyond Trump’s presidency. Here is a list of some of the key rollbacks of the Trump era. This list was adapted from the Harvard Law School's Regulatory Rollback Tracker.

The Supreme Court agreed to review whether law enforcement can enter a home without a warrant in hot pursuit of someone suspected of committing a misdemeanor...The court has ruled that officers can conduct such pursuits without warrants when investigating felonies but not minor traffic violations. This case presents something in the middle: misdemeanor pursuits. The dispute will be argued later this term and likely decided by sometime in June...Misdemeanors are “by far the most common basis for arrest,” Arthur Lange said in his petition to the justices, filed by the Stanford Supreme Court Litigation Clinic, a successful repeat player at the court. Lange was convicted of DUI after an officer followed him into his Sonoma, Calif., driveway. The officer stuck his foot under the garage door to stop it from closing and entered Lange’s garage. Lange’s motion to suppress was denied. He wants the court to reject a categorical rule allowing such pursuits for misdemeanors, which he said in his petition “contradicts the Court’s exigent-circumstances precedent, ignores traditional common-law limits on warrantless entries, and allows officers investigating trivial offenses to invade the privacy of all occupants of a home even when no emergency prevents them from seeking a warrant.” The case is significant on a number of fronts, said Harvard Law School professor Alexandra Natapoff, whose book on misdemeanors and the criminal justice system was cited in Lange’s petition. “It’s important because the privacy interests at stake are enormous,” she said. “It’s also extremely important because it represents the court turning its attention to an underappreciated area of criminal law enforcement that is enormous.”

A new appeal of a court ruling over tax-advantaged land deals is the latest in what is expected to be a growing trend of lawsuits testing whether old tax regulations can survive modern legal scrutiny. A notice of appeal filed Friday signals that the U.S. Court of Appeals for the Sixth Circuit will be asked to overturn a U.S. Tax Court ruling in Oakbrook Land Holdings, LLC v. Comm’r, in which a divided court upheld 34-year-old regulations under the Administrative Procedure Act. The APA requires federal agencies to give notice and respond to significant comments for certain rules. The case is one of a growing set of lawsuits challenging the Treasury Department’s older regulations—issued at a time when the department wasn’t doing as much to protect its rules from administrative law scrutiny. Over roughly the last decade, the department has increasingly written extensive preambles alongside its regulations to explain the logic behind regulatory decisions, potentially warding off challenges...Although it can be difficult to pinpoint a single moment at which Treasury began to face a heightened threat of administrative law challenges, tax specialists often point to a 2011 U.S. Supreme Court decision in Mayo Found. for Med. Educ. and Research v. United States as a major development. The high court said it wasn’t inclined “to carve out an approach to administrative review good for tax law only” without justification...While Treasury has responded to the growing challenges by beefing up its preambles, it can’t do that with older regulations that have already been issued. “As a practical matter, if we don’t put a little bit of a finger on the scale for the older regs, I think we create huge problems for the system,” said Stephen Shay, a senior lecturer at Harvard Law School and former Treasury official.

A podcast by Noah Feldman: For the next few weeks on Deep Background, in addition to our regular show, we’re bringing you a special five-part series about the Supreme Court's dramatic rightward turn. In this second installment of Deep Bench, a rare interview with a sitting judge. Noah talks with Judge Jeffrey Sutton, who describes how members of the Federalist Society helped develop the central legal theories that conservative judges and justices use today.

This summer, a bipartisan group of about a hundred academics, journalists, pollsters, former government officials and former campaign staff members convened for an initiative called the Transition Integrity Project. By video conference, they met to game out hypothetical threats to the November election and a peaceful transfer of power if the Democratic candidate, former Vice President Joe Biden, were to win...The idea was to test the machinery of American democracy...Along with disinformation campaigns, there is the separate problem of “troll armies” — a flood of commenters, often propelled by bots — that “aim to discredit or to destroy the reputation of disfavored speakers and to discourage them from speaking again,” Jack Goldsmith, a conservative law professor at Harvard, writes in an essay in “The Perilous Public Square,” a book edited by David E. Pozen that was published this year. This tactic, too, may be directed by those in power...Concerns about the harm of unfettered speech have flared on the left in the United States since the 1970s. In that decade, some feminists, led by the legal scholar Catharine A. MacKinnon and the activist Andrea Dworkin, fought to limit access to pornography, which they viewed as a form of subordination and a violation of women’s civil rights. In the 1980s and ’90s, scholars developing critical race theory, which examines the role of law in maintaining race-based divisions of power, called for a reading of the First Amendment that recognized racist hate speech as an injury that courts could redress...The Supreme Court has also taken the First Amendment in another direction that had nothing to do with individual rights, moving from preserving a person’s freedom to dissent to entrenching the power of wealthy interests. In the 1970s, the court started protecting corporate campaign spending alongside individual donations. Legally speaking, corporate spending on speech that was related to elections was akin to the shouting of protesters. This was a “radical break with the history and traditions of U.S. law,” the Harvard law professor John Coates wrote in a 2015 article published by the University of Minnesota Law School. Over time, the shift helped to fundamentally alter the world of politics.

Even as California aspires to a more sustainable, climate-friendly economy, the environmental degradation Bahram Fazeli witnesses daily is an unwelcome reminder of how much the state is held back by a federal government pushing in the other direction. The oil wells, refineries, metal-finishing businesses and hazardous waste facilities in Wilmington and Huntington Park, where the environmental activist works, leave residents of those primarily Latino communities acutely exposed to health risks. Fazeli has lost patience with the pace of change...That urgency gives the state a particularly large stake in the outcome of an election that poses a drastic contrast on climate issues — a White House steeped in climate denial and closely allied with fossil fuel companies versus a Democratic candidate who has embraced a $2-trillion climate plan that would rely heavily on California innovation and ambition as a template for fighting global warming across the country. The Trump administration has spent billions of dollars in an almost entirely unsuccessful effort to prop up the nation’s coal industry and has given priority to coal and oil production over renewable sources. The administration’s policies have put the economic interests of regions heavily dependent on coal and oil production ahead of states like California. Biden would largely reverse that. California’s senior elected officials — all Democrats — believe Biden’s election would unleash a flurry of initiatives in the state designed to reshape the energy and transportation sectors and shift money to low-income communities suffering the most from pollution caused by fossil fuels. “It would be going from pushing a rock up a mountain to running downhill with the wind at your back,” said Jody Freeman, who was President Obama’s advisor on climate change and now directs the environmental law program at Harvard.

An article by Anoush Baghdassarian ‘22: A war broke out on Sept. 27 in the mountainous region of Nagorno-Karabakh, also known as the Republic of Artsakh or the Nagorno-Karabakh Republic (NKR). The region—no bigger than the state of Delaware—hosts a population of around 150,000 people, almost all of whom are ethnically Armenian. It is internationally recognized as lying within Azerbaijan’s borders but sees itself as a de facto independent republic, with its own parliament, president and army. Yet the conflict extends beyond an internal fight between Azerbaijan and a breakaway republic. Armenia does not claim ownership of Nagorno-Karabakh but considers itself the guarantor of the security of the ethnic Armenians living in the region and is NKR’s lifeline to the outside world. Turkey is also a player in the conflict: It has pledged support for Azerbaijan, closing its border with Armenia and reaffirming Azerbaijan’s claims to territorial integrity. Amid the current crisis, Turkish President Recep Tayyip Erdogan pledged to “support our Azerbaijani brothers with all our means as always,” including military assistance. Lastly, Russia considers the Caucasus its “near abroad,” brokering cease-fires each time the conflict escalates but also selling arms to both sides. Though sporadic sniper fire across the border has been common since the Karabakh War “paused” in a cease-fire in 1994, there have been two major conflagrations where troops have attempted to cross the Line of Contact, which lies in the Murovdag mountain range between Azerbaijan and NKR and separates the Azerbaijan armed forces and NKR Defense Army. The first was a four-day war in April 2016, and the second is the current conflict. The present violence has escalated to the worst the region has seen in decades.

Angel Kai’s heart sank when she found out she was pregnant again. The 20-year-old had delivered her second child only three months prior...It turned out, though, that Angel couldn’t even afford the abortion she knew she wanted. Her health plan was offered under state-funded Medicaid, which, in Texas, only covers abortion in cases of life endangerment, rape, and incest...Before finding Fund Texas Choice, Angel had tried to get an ultrasound at a “crisis pregnancy center,” which is actually a coded name for an anti-abortion clinic. “They told me abortion is murder, and that I would go to hell if I had one,” Angel remembers now, a year later. “But I knew the abortion was the best thing for me to do.” Angel’s story could have looked very different. If she hadn’t learned about the fund, she may have not been able to get the abortion pill. Alternatively, if she lived in a different state, she may have been able to use her health insurance to pay for the abortion, at a clinic much closer to her house...The Supreme Court may get its chance to reconsider Roe v. Wade within the next year, according to multiple experts Refinery29 spoke to...And even if Roe is not overturned in one fell swoop, states could continue passing legislation that chips away at access bit by bit, and the Supreme Court could uphold those state laws, explains Laurence H. Tribe, university professor of constitutional law emeritus at Harvard. If Roe is dismantled, Sussman says that 25 million women of reproductive age live in a state where abortion would be banned. This is perhaps the most likely scenario: That a more conservative Supreme Court will first “hollow out” Roe until there’s almost nothing left. That could look like banning common procedures for abortion, such as Dilation and Evacuation, or even forbidding abortions after brain waves are detected, Tribe says. Right now, with the 17 abortion-related cases held up in federal appeals courts, the Supreme Court has what Tribe describes as a “menu” of cases, and they’ll get to pick and choose which to take. “They’re going to be looking for cases that will give them the maximum opportunity to do the most damage to Roe v. Wade,” Tribe says. “You've heard of death by a thousand cuts? That’s what may happen to Roe, after about a dozen decisions over the next three to four years.”

An op-ed by Noah Feldman: Judge Amy Coney Barrett has expressed the highly unusual view that judges should recuse themselves when a case might require them to act against conscience and violate Catholic Church teaching. On its own, the view is defensible. But it carries an important implication, one that Barrett hasn’t addressed: that Barrett should recuse herself from any case involving abortion rights regardless of how she would rule. To understand this argument, you have to begin with how unusual Barrett’s view is. Most judges and judicial nominees take the view that their religious beliefs are irrelevant to the job of judging. The strongest formulation echoes that of Thomas Jefferson, who wrote in his Bill for Establishing Religious Freedom “that our civil rights have no dependence on our religious opinions, any more than on our opinions in physics or geometry.” But in a 1998 article that she wrote with John Garvey, then the dean of Boston College Law School, Barrett rejected this strong separation between religious faith and judging. Barrett and Garvey argued that Catholic teaching prohibits believers from “cooperating with evil.” From this premise they concluded that Catholic judges shouldn’t participate in cases where they might have to impose the death penalty, which is itself condemned by authoritative Catholic doctrine outside of a few extreme circumstances. On its own, this view has some merit. Recusal decisions are governed by a federal statute, which says, among other things, that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”