Media Mentions

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

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

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

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

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

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

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

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

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

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

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

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

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

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.”