Media Mentions

Brett M. Kavanaugh’s nomination to the Supreme Court has stirred plenty of debate about the fate of Roe v. Wade . But there is another landmark case that is apt to trouble the court in coming years: Regents of the University of California v. Bakke...But it’s left us with what Harvard Law professor Jeannie Suk Gersen calls an “analytic confusion.” Affirmative action, she says, “has to do with groups that have been wronged and held back, and that we’re going to try to fight against it by doing affirmative action. You can have that conversation without any recourse to diversity.”

...Kennedy famously determined the direction of the nine-member court—joining its four liberals on some cases, its four conservatives on others—but he shaped few parts of American law as completely as he shaped the environment. Since joining the court in 1988, Kennedy voted in the majority in every environmental case in front of the court except one, according to Richard Lazarus, a Harvard Law professor who has argued more than a dozen cases in front of the justices...“We probably have more of a record for Kavanaugh for environmental law than we do for anyone else in recent memory,” Lazarus told me. “Roberts came from the D.C. Circuit, Scalia came from the D.C. Circuit, Ginsburg did, Thomas did—but none of them had the same number of EPA cases that Kavanaugh’s had.”

An op-ed by Terri Gerstein and Sharon Block. It’s the American dream: We’re supposed to improve ourselves, get a better job, move on and up. But in too many instances, secret agreements between employers are stifling workers’ ability to parlay their hard work and experience into better-paying jobs and a chance to climb the career ladder. On Thursday, the attorney general of Washington State, Bob Ferguson, announced that he had obtained agreements from seven fast-food chains, including Arby’s, Carl’s Jr. and McDonald’s, not to use or enforce “no poach” or “no hire” agreements. Under these arrangements, franchisees pledge not to hire job applicants who are current or recent employees of the company or any of its franchisees, without the approval of the applicants’ employers. This crackdown on a widespread practice is a welcome development. But as Mr. Ferguson made clear in his announcement, he is still “investigating other corporate chains that utilize no-poach agreements.”

...That may be why Harvard Law School professor Richard Lazarus, an environmental law specialist, said he has yet to see students recoil from law firms that do energy work the way many rejected firms handling tobacco clients several decades ago. “Energy work broadly defined, including representation of utilities and even major oil and natural gas companies, has not yet seemed to trigger that same reaction in students looking for private sector employment in the Big Law firms, which frequently have a very wide client base that include that industry among many others,” he said in an email.

With immigrant family reunifications underway across the country, advocates and pro-bono attorneys are working around the clock scrambling to help hundreds of detained parents with their court cases...“I think my long-term goal is to work on migration policy,” said Florida native Elizabeth Coffin-Karlin, a Harvard law and public policy student. The 29-year-old is spending her summer at the southern border helping asylum seekers. “I’ve been to the detention center a few dozen times at this point,” she said. The KENS 5 Border Team met Coffin-Karlin at the Port Isabel Detention Center, Immigration and Customs Enforcement’s largest facility. It’s located in Los Fresnos, Texas, where hundreds of immigrant adults are detained without their children while they fight for their asylum case.

...Laurence H. Tribe, Carl M. Loeb University Professor and a professor of constitutional law at Harvard Law School, told Newsweek: "If one defines 'war' to include cyberwar—e.g. by deliberately hacking into a nation’s computer-based election infrastructure—then what we witnessed in Helsinki was President Trump openly aiding and abetting the Russian military’s ongoing war against America rather than protecting against that Putin-led cyber-invasion. "That in turn could reasonably be defined as 'treason' within the meaning of 18 USC 2381 and Art. III of the US Constitution.

An op-ed by Carmel Shachar, executive director of The Petrie-Flom Center. Thanks to Brett Kavanaugh’s 12 years as a judge on the D.C. Court of Appeals, we have a well-developed record of the Supreme Court nominee’s positions on key issues, including his views on American health care policy. In two high profile cases in 2011 and 2015, Kavanaugh upheld key parts of the Affordable Care Act (ACA). But these cases, taken out of context, are misleading. They should not distract anyone evaluating his long record, nor overly inform how he might decide in future cases when it comes to health care.

An op-ed by Jack Goldsmith. “A judge must be independent and must interpret the law, not make the law,” said Judge Brett Kavanaugh during his speech accepting the nomination to replace his former boss Anthony Kennedy as an Associate Justice on the Supreme Court. This may sound like a rhetorical pose, but you should take it literally, not just seriously: Kavanaugh, whom I know primarily through his teaching at Harvard, is one of the most principled jurists I have ever studied.

...Rhode Island has taken an important step here,” said Kevin Costello, head of litigation at the Center for Health Law and Policy Innovation of Harvard Law School. “This change is not only the right thing to do from a public health and legal point of view, but it also been proven that this policy will be cost-effective for the state in the long run.”

An op-ed by Noah Feldman. Some Democrats and advocacy groups are saying President Donald Trump picked Judge Brett Kavanaugh as his second nominee to the U.S. Supreme Court because of Kavanaugh’s view that a president shouldn’t be indicted while in office. It’s important that not become the narrative of the Democrats’ opposition, because it can easily be refuted.

An op-ed by Noah Feldman.I don’t claim to know who President Donald Trump will pick Monday night to replace retiring Justice Anthony Kennedy on the U.S. Supreme Court. But I do claim to know what we’ll be saying about it. Here, in alphabetical order, is what will soon be the conventional wisdom. Plus, what you should really think, where it differs.

...American legal scholar Catharine MacKinnon argues that the difference “between prostituted people and those who buy and sell them are that one is served, the other serves; one is bought, the other buys and sells them; one is stigmatised, the other retains respectability; one is a criminal, the others either are not, or the law against them is virtually never enforced. And the one is mostly women, the others overwhelmingly men.”

An op-ed by Cass Sunstein. So it’s Judge Brett Kavanaugh. There will be time enough to explore the nominee’s views and record. Let’s step back a bit and get some perspective on the national debate that we are about to have.

...Richard Fallon Jr., a constitutional law professor at Harvard Law School and former staffer to Collins’ first boss, then-U.S. Rep. William Cohen, says justices must balance two competing legal principles in considering a case: respect for precedent and fidelity to the Constitution. Sometimes these can be in tension, as in a case such as Brown v. Board of Education, where justices overturned a century of cases defending racial segregation in public schools because they violated the Constitution.

...Ahead of the summit, Harvard Law School’s International Human Rights Clinic has prepared new publications showing that existing security agreements for NATO and other US allies do not prevent these states from joining the nuclear ban. The obstacles are not legal, they are only political—and as European populations are once again raising their voices to demand disarmament, it’s in NATO states’ best interest to join the treaty as soon as possible.

...“It’s just a new stand for the department to be taking, that the states aren’t its partner — that the states are its enemy,” said Eileen Connor, director of litigation at Harvard Law School’s Project on Predatory Student Lending.

...Of the judges who made Trump's shortlist, Kavanaugh was viewed as the most troublesome for environmentalists, said Jody Freeman, the founding director of Harvard's Environmental and Energy Law Program. That reputation might be overblown, she said. "You can't say that you always know the outcome with Brett Kavanaugh," Freeman said. "He's a very serious and very diligent judge, and he's shown himself to be persuadable."

...“It’s a neutral principle, although the effect isn’t always neutral,” Richard J. Lazarus, a law professor at Harvard, said. “Congress stopped making clean air laws after 1990, so the E.P.A. has to work with increasingly tenuous statutory language. In effect, his approach to environmental law would make it harder to address current problems so long as Congress remains out of the lawmaking business.”

...Although Kavanaugh clerked for retiring Justice Anthony Kennedy, famous for drawing extratextual distinctions and inventing special models of interpretation, the younger judge relies far more consistently on the simple text of the law. See for instance his recent review in the Harvard Law Review in which he urges judges to eschew interpretive canons purporting to deem laws either clear or ambiguous—an “ambiguous” law is often one the judge simply doesn’t like—and instead “seek the best reading of the statute by interpreting the words of the statute.”

Trump’s pick, Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit, is a graduate of Yale Law School, has taught at Harvard, Yale, and Georgetown, and served in President George W. Bush’s administration before being named to the Court of Appeals. Like Trump’s prior nominee, Neil Gorsuch, Kavanaugh has a gold-plated resume and Federalist Society credentials. And, also like Gorsuch, he’s a former law clerk to Justice Kennedy. (And he was hired to teach at Harvard Law School by then-Dean, now Justice, Elena Kagan).

Colleagues and a former student of Judge Brett M. Kavanaugh, the newly minted Supreme Court nominee who’s taught courses at Harvard Law School since 2008, are praising his legal acumen and dedication to his students.