Media Mentions

President Trump will announce his nominee for the Supreme Court tomorrow. Democrats fear his pick, should they be confirmed, will push the court to the right on social issues like affirmative action and abortion. Republicans are excited about the possibility of locking in a conservative majority on the court. Not so fast, says Jack Goldsmith. The Harvard law professor and former assistant attorney general under George W. Bush writes in The Weekly Standard that both those hopes and fears should be tempered.

...Right now, women who are sexually assaulted or harassed have civil legal recourse in two areas: employment and education. “If we’re sexually assaulted, if it isn’t within the scope of Title VII as it understands an employment relation, or Title IX in education, we don’t have any equality rights,” said Catharine A. MacKinnon, a law professor at the University of Michigan and a pioneer in the field of sexual harassment and sex discrimination law.

Andrew Wheeler, until now the low-profile deputy administrator at the Environmental Protection Agency, became a likely successor to the scandal-plagued Scott Pruitt Thursday and an appealing alternative for those hoping to continue to roll back key EPA policies...“There is every reason to expect that he will pursue just as vigorously all the regulatory policies and initiatives in progress that were initiated by Pruitt,” said Joseph Goffman, executive director of Harvard Law School’s environmental law program.

...Sharon Block, the executive director of the Labor and Worklife Program at Harvard Law School, told The Intercept that she has no doubt that conservative groups will aim to push the limits of the Supreme Court’s holding in Janus for cases like Yohn. “I’m afraid that Janus has opened up additional fronts in the war these groups are waging on public-sector unions and the labor movement more generally,” she said. “We will see litigation for years.”

An op-ed by Cass Sunstein. With respect to free speech, people seem increasingly drawn to a simple narrative. Those on the left used to like freedom of speech — but now, not so much. Those on the right used not to like free speech — but now they’re all in. The narrative is mostly wrong. Actually, it’s a mess. To see why, we need to look at the arc of history.

An op-ed by Samuel Garcia `19. As soon as Jorge saw the flash of police sirens behind him his stomach sank. Jorge* is a proud family man, father of two loving daughters, loyal friend to many and one of the first victims of Texas Senate Bill 4. Jorge is an undocumented immigrant, and as soon as the Texas Legislature passed Senate Bill 4 he had to live a life that involved a lot of looking over his shoulder and wondering when he would finally be asked for his "papers." Why? Well, the recent passing of Senate Bill 4 means that officers in Texas can ask anyone in their detainment about their immigration status if they believe it to be important to their investigation. This means that even a simple traffic stop could escalate into a deportation proceeding if you were asked about your immigration status.

An op-ed by Richard Lazarus. Justice Anthony Kennedy's announced retirement earlier today sent shock waves across the nation's capital and the nation itself. Justice Kennedy's impact on the Supreme Court during the past 30 years has been enormous. He has been at the center of the Court, often supplying the controlling vote in closely divided, high-profile cases. But he has not been a judicial minimalist. Whichever way he swings, Justice Kennedy swings for the fences.

Last week the United States Supreme Court ruled that public sector unions can no longer collect agency fees from nonmembers, a major blow to labor organizers. Hear Jane McAlevey discuss how this will impact workers, how recent public sector strikes have shifted the labor landscape, and how unions can return to the democratic strategies that won them their past success. What does the future of labor organizing look like?...Jane F. McAlevey, environmental and labor organizer, postdoctoral fellow in the Labor and Worklife Program at Harvard Law School, and author of No Shortcuts: Organizing for Power in the New Gilded Age

An op-ed by Jack Goldsmith. Anthony Kennedy’s retirement has sparked a free-fall panic among progressives, Democrats, and others who for five decades have enjoyed the fruits of rule-by-judiciary on the nation’s most contested social issues. Left-of-center commentators have proclaimed that Roe is dead, that Kennedy’s famous gay rights opinions and saving fifth vote for affirmative action are on life support, and that we are on the verge of a radical conservative constitutional revolution. Many conservatives agree with these assessments but are measured in their glee so as not to lend credence to attacks on whomever President Trump nominates to replace Kennedy. Both sides are too confident. There is little doubt that Kennedy’s replacement will be conservative and little doubt, too, that the Court will have a conservative bent for the next few years. Beyond that, it is too early to tell.

An op-ed by Cass Sunstein. At the outset of the most contentious Supreme Court confirmation battle in modern American history, Senator Ted Kennedy said the following: "Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy." That was hyperbolic, to say the least, but it was also effective; it signaled the magnitude of the stakes. Bork’s nomination in 1987 was defeated, and Anthony Kennedy — a far more moderate judge — was confirmed instead. Now Kennedy is retiring and the confirmation battle for his successor may well turn out to be the most contentious since Bork’s.

...Two days later, WBZ-TV reported that the alleged groper was Andrew “A.J.” Baker — a son of Massachusetts Governor Charlie Baker. Ever since, a big question has been whether A.J. Baker, who still hasn’t been charged, is being treated impartially by the criminal-justice system...in the airplane audio, there’s no indication the crew knows the alleged groper is the governor’s son — which suggests State Police might not have known, either. Eventually, says Harvard Law School Professor Ronald Sullivan, they probably figured it out. So if and when that happened, how did the State Police respond? "At what point did they realize they were talking to the governor’s son, and once they did realize they were speaking with the governor’s son, did any supervisor make a decision with respect to a conflict-of interest analysis?" Sullivan said. It's also possible the State Police proceeded as if A.J. Baker were any other interviewee. If so, Sullivan says, that was a mistake.

...“It was important that someone with John [Brennan]’s counterterrorism credentials threw his weight behind Obama,” says Samantha Power, who later served as Obama’s ambassador to the United Nations. “Obama was seen by some as a community organizer who had been on the Hill for all of five minutes. John was a validator with real street cred in the national-security community.”

An op-ed by Carol Steiker and Jordan Steiker. As in many other areas of the law, Justice Anthony Kennedy often provided the key fifth vote in death penalty cases during his three decades on the Supreme Court. Swinging to the right, Kennedy was a frequent supporter of restrictions on the availability of federal habeas review of capital cases, a skeptic of claims challenging the constitutionality of lethal injection and a relatively reliable vote against granting stays of execution in end-stage capital litigation. Kennedy will likely be remembered more, however, for his swings to the left, because he was the author of numerous opinions that broke new ground in the court’s Eighth Amendment jurisprudence. Most importantly, he was the primary architect of the court’s proportionality doctrine that led to exemptions from the death penalty for offenders with intellectual disability, juvenile offenders and nonhomicide offenders.

...President Trump is prepared to incarcerate entire families for indeterminate periods of time for what has been traditionally treated as a misdemeanor...This is a not-very-subtle form of extortion, constitutional scholar Laurence Tribe tells me. “These plans assume legal authority the administration does not have and put desperate parents to a ‘Sophie’s choice’ between submitting to extended imprisonment together with their children if they want to pursue their asylum claims — and abandoning their children along with their claims to asylum in order to limit how long their children must suffer imprisonment.”

...“If survivors of sexual violation were believed and valued, across culture, society, and law, that in itself would be a major transformation,” said Catharine A. MacKinnon, the legal scholar who, in 1979, first laid the groundwork for sexual harassment law and went on to argue it before the Supreme Court. In a recent column in The Times, Ms. MacKinnon noted that #MeToo had done for society what the law could not — eroding one of the biggest barriers to prosecuting sexual harassment, which was “the disbelief and trivializing dehumanization of its victims.”

...The two decisions were the latest in a stunning run of victories for a conservative agenda that has increasingly been built on the foundation of free speech. Conservative groups, borrowing and building on arguments developed by liberals, have used the First Amendment to justify unlimited campaign spending, discrimination against gay couples and attacks on the regulation of tobacco, pharmaceuticals and guns...free speech reinforces and amplifies injustice, Catharine A. MacKinnon, a law professor at the University of Michigan, wrote in “The Free Speech Century,” a collection of essays to be published this year. “Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” she wrote. “Legally, what was, toward the beginning of the 20th century, a shield for radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed, has become a sword for authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.”

Harvard University is under fire for allegedly holding Asian applicants to higher standards than students of other races, according to a discrimination lawsuit filed by the Students for Fair Admissions...Harvard Law alumna and professor Jeannie Suk Gersen says it doesn’t have to be a question of either or. Gersen breaks down the case and explains why she hopes the lawsuit will begin a conversation about the consequences of affirmative action.

...Ever since Rapanos, conservatives and liberals have debated whether Scalia or Kennedy had the controlling opinion. That's an important question when WOTUS-related challenges are heard in circuit and district courts, which have to follow the Supreme Court's precedent. While no lower court has found Scalia's opinion to be the only controlling opinion in the case (some have said only Kennedy is, and some have said a combination of both is OK), none of that matters before the Supreme Court. "They are not going to feel bound one way or another by what was said in Rapanos because there was no majority opinion," said Richard Lazarus, a professor at Harvard Law School who has argued Supreme Court cases in front of Kennedy.

Amazon.com is asking small-business owners to help deliver its goods, seeking to reduce its reliance on the U.S. Postal Service and other major delivery services as the number of packages it ships continues to climb. The online retailer, which last year shipped more than 5 billion packages through its Prime program, on Thursday said it is looking for hundreds of entrepreneurs “with little to no logistics experience” to set up their own delivery businesses — complete with Amazon-branded vehicles and uniforms...By using independent contractors instead of Amazon employees to deliver goods, the company can avoid paying benefits such as overtime, workers’ compensation and unemployment insurance, according to Benjamin I. Sachs, a professor of labor and industry at Harvard Law School. “This is a risk shift we’ve seen across the gig economy as companies convert people who should be employees into independent contractors,” he said. “There could be a whole host of issues here.”

Though he sided with conservatives on most issues, Supreme Court Justice Anthony Kennedy sometimes broke ranks when it came to the environment. Kennedy, who announced Wednesday he will step down in July, was the key swing vote on one of the most important climate policies the United States has enacted: the regulation of greenhouse gases. The 2007 Massachusetts v. Environmental Protection Agency decision forced the EPA to treat carbon dioxide as a pollutant. After a review of the science, the EPA issued an endangerment finding for greenhouse gases in 2009, which says carbon emissions are a threat to public health...But would a Supreme Court with another conservative justice on bench take a whack at Massachusetts v. EPA? It’s unlikely, according to Richard Lazarus, an environmental law professor at Harvard Law School who has argued cases before the Supreme Court. “I think on that question, the odds are very, very small,” he told me.

Public employee unions were dealt an entirely expected but nonetheless massive blow Wednesday when the Supreme Court ruled 5-4 in Janus v. AFSCME that they may no longer collect mandatory “fair share” or “agency” fees from non-members to cover their portion of the cost of collective bargaining...Back in 2012, the conservative justice questioned the legality of fair-share fees, writing in Knox v. Service Employees that "acceptance of the free-rider argument as a justification for compelling non-members to pay a portion of union dues represents something of an anomaly" and that enrolling workers automatically in unions unless they opted out “represents a remarkable boon to unions.” Alito quoted repeatedly from Knox in yesterday’s case. “Janus isn’t the first time that Alito has opined on the viability of Abood," said Sharon Block, a former Obama DOL official now working at Harvard University.