Media Mentions

An op-ed by Jack Goldsmith. Justice Anthony M. Kennedy’s retirement from the Supreme Court after more than 30 years of service is the most consequential event in American jurisprudence at least since Bush v. Gore in 2000 and probably since Roe v. Wade in 1973. For three decades, he has been a guiding force on the court’s most consequential decisions, conservative and liberal. His departure leaves the future of U.S. constitutional law entirely up for grabs.

The retirement of Justice Anthony Kennedy, announced Wednesday in a letter hand-delivered to President Trump, could bring about sweeping changes to U.S. environmental law, endangering the federal government’s authority to fight climate change and care for the natural world. With Kennedy gone, a more conservative Supreme Court could overhaul key aspects of the Clean Air Act, the Clean Water Act, and the Endangered Species Act, legal scholars say. And any new justice selected by President Trump would likely seek to weaken the Environmental Protection Agency, curtail its ability to fight global warming, and weaken its protections over wetlands...The reason has to do with simple math. As on many other issues, Kennedy has functioned as the court’s swing vote on the environment, occasionally joining with the court’s four more liberal justices to preserve some aspect of green law. “He’s been on the court just over 30 years, and he’s been in the majority in every single environmental case but one. You don’t win without Kennedy,” said Richard Lazarus, a law professor at Harvard who has argued 14 cases in front of the Supreme Court.

An interview with Nancy Gertner. Let's take a closer look at Wednesday's major ruling out of the U.S. Supreme Court. In a 5-4 decision, split along conservative and liberal lines, the court ruled that public sector unions cannot compel government workers to help pay for collective bargaining...In a scorching dissent, whose rage practically leaps off the page, Justice Elena Kagan accused the court of "weaponizing" the First Amendment, saying this was not the first time the court had sidestepped its role as legal body and used speech protections to choose winners and losers in long running political debates.

An op-ed by Benjamin Sachs and Sharon Block. With its 5-4 decision in Janus v. AFSCME, the Supreme Court has just imposed a right-to-work regime on public workers everywhere in the country — a profound blow to the union movement. As a result of the decision, public sector unions are now legally obligated to provide representation to workers and yet legally prohibited from requiring anyone to pay for that representation. Before Janus, public sector employees who didn’t want to be union members still had to pay their share of what it cost the union to represent them. This “fair share fee” was calculated to include the worker’s share of the union’s collective bargaining expenses and also the costs the union incurred providing individual representation to the worker in grievance and arbitration proceedings. The fee could not include any costs of the union’s political program.

Conservatives on the Supreme Court have been signaling for years that they would like to destroy public-sector unions. On Wednesday, they handed down a ruling that aims to do just that. But the justices and right-wing groups that pushed for this outcome could soon find that it will not be so easy to suppress teachers, social workers and other government employees who in recent months have taken to the streets to demand raises and better working conditions...Benjamin Sachs, a labor expert at Harvard Law School, also suggests that states change how unions are compensated for collective bargaining expenses. He argues that even though workers pay union fees, that money ultimately comes from governments because the fees are deducted from the paychecks of public employees. State and local governments could solve the problem created by the Supreme Court’s Janus decision by paying unions directly for their expenses and reducing worker pay by an equivalent amount.

An interview with Benjamin Sachs. The Supreme Court dealt a major blow to labor unions today in the case of Janus vs. American Federation of State, County, and Municipal Employees -- commonly known as AFSCME. In a 5-4 decision, the conservatives on the bench won out and ruled that states can not force government workers to pay union fees -- even though nonunion workers have the same pay and benefits as their union colleagues.

An op-ed by Jared Odessky `20 and Miriam Frank. The Supreme Court just dealt a staggering blow to the L.G.B.T. rights movement. And no, it had nothing to do with wedding cake. While the eyes of most L.G.B.T. advocates this term were concentrated on Masterpiece Cakeshop v. Colorado Civil Rights Commission, the legal ruling was decidedly narrow. The court’s 5-4 decision today in Janus v. American Federation of State, County, and Municipal Employees, however, will have immediate and lasting implications for the livelihoods of queer people.

An op-ed by Noah Feldman. In what may be the worst decision since the infamous Korematsu case, when the Supreme Court upheld the internment of Japanese-Americans during World War II, the court today by a 5-4 vote upheld President Donald Trump’s Muslim travel ban. Like the Korematsu decision, Trump v. Hawaii elevates legal formalities as a way to avoid addressing what everyone understood is really at issue here — namely, prejudice. Chief Justice John Roberts’s majority opinion downplays Trump’s anti-Muslim bias, focusing instead on the president’s legal power to block immigration in the name of national security.

By a 5-4 decision along the usual ideological lines, the Supreme Court upheld the third iteration of the Muslim travel ban. On one hand, the court directly rejected the administration’s claim was non-reviewable by the court. However, in an opinion by Chief Justice John G. Roberts Jr., the court accorded extreme deference to the president and held, despite replete evidence of religious animus, that the executive order should be upheld...The courts can do a great deal to restrain an out-of-control chief executive, but especially with a Supreme Court majority of passive conservative justices, they cannot do everything. Constitutional scholar Larry Tribe observed, “This was hardly the Supreme Court’s finest hour. Some major court rulings are predictable but disappointing. This is among those — and it’s destined for infamy if and when the court again assumes its essential function of constraining oppression, bigotry and blindness.”

An op-ed by Vivek Wadhwa and Alex Salkever. ...Each of us relates to technology in a unique, highly personal way. We lose or cede control, stability, and fulfillment in a million different ways. As Leo Tolstoy wrote in the novel Anna Karenina, “All happy families are alike; each unhappy family is unhappy in its own way.” In the same vein, the road back from unhappiness, the path to taking control over technology, and, by extension, the path to regaining freedom of choice takes a multitude of steps that are different for each of us. The steps nonetheless carry some common characteristics that we can all use as a basis for rediscovering and reentering real life.

In early August last year, a young lieutenant named Kyi Nyan Lynn flew to Rakhine State, with hundreds of other Myanmar soldiers. They were about to launch a campaign that would drive hundreds of thousands of Rohingya Muslims from their homes and leave the region in flames. First, however, Lieutenant Kyi Nyan Lynn of the 33rd Light Infantry Division did what any young man might do: He wrote a Facebook post...Photos published in August 2017 on Facebook show troops and trucks packed into a navy landing craft. The use of aircraft and boats to transport the soldiers showed that a joint operation by Myanmar's airforce, navy and army was underway, said three analysts who have studied the military's command structure, and two experts in international criminal law. A joint operation and the deployment of troops from outside the region "indicate central command at the highest levels," said one of the experts, Tyler Giannini, co-director of the International Human Rights Clinic at Harvard Law School.

Book recommendations from Laurence Tribe...Tyrant by Stephen Greenblatt: As an avid fan of Greenblatt's work, I read his new book the moment it became available. Following the lead of Shakespeare, who used history to shed light on his own time, Tyrant offers a brilliant meditation on the patterns of character and fate that drive tyrants to seek unbounded power and lead some societies to submit to their cruelties.

The creators of the D&I Dash, this year’s winning idea at the Diversity in Law Hackathon, hope that law firms can be convinced to publish data on recruitment, retention, promotion, and pay equity. The Diversity & Inclusion Dashboard — “D&I Dash” for short — is designed to be a central clearinghouse of diversity information, accessible to law firms, in-house legal departments, law students, and maybe even the public...Paras Shah [`19], a rising 3L at Harvard Law who is working at O’Melveny & Myers this summer, said he believes the D&I Dash will eventually give law students “a better sense of what firms are doing in real time, on the ground.”

An op-ed by Cass Sunstein. U.S. courts have long been reluctant to intervene in the admissions decisions of colleges and universities. In general, the law allows them to do whatever they want within this overarching framework: 1. Racial discrimination is forbidden. 2. An institution may not maintain a racial quota system, even if it is sincerely seeking to ensure the presence of adequate numbers of traditionally disadvantaged groups, including African-Americans. 3. An institution may consider race as a “plus,” at least if it is seeking to create a diverse educational environment.

An op-ed by Noah Feldman. In a major victory for American Express Co., the U.S. Supreme Court held Monday that the company may continue to bar merchants from steering customers to credit cards that charge lower merchant fees. The 5-4 decision broke down on strictly partisan lines. It shows that the court’s conservatives don’t much care for antitrust law, and are willing to make new law in order to limit its reach. The liberal justices would prefer to stick with traditional principles that are focused on protecting consumers. On the surface, the majority opinion by Justice Clarence Thomas and the dissent by Justice Stephen Breyer are grappling over a technical question of economics: What market or markets does American Express participate in?

An op-ed by Lawrence Lessig...The child separation policy crosses the line for me. I don’t know if it would have affected me as much as it has before I had kids. Before I had kids, a kid’s cry was a noise. Now it is a line into a soul. Every parent can hear the difference between crying and aching. No parent can listen to these cries and not feel his or her heart rend. The lies from this administration are so regular that we don’t even notice. And so it is with this policy too — which on its face is a lie since the same administration gives three different accounts (Trump: it’s the Democrat’s policy; Nielsen: “it isn’t a policy”; Sessions: it’s my policy and I’m proud of it!). Suffice it that with no change in the actual law there was a radical change in the actual practice — and what accounts for that change is a decision by the Trump administration to adopt yet another brain-dead policy. Senator Warren puts its best: we have a president who is holding “kids hostage to try and get Congress to pay for his stupid wall.”

State and local governments are poised to undergo a major shift in the way they think about at-risk children, thanks to bipartisan federal legislation aimed at encouraging families to stay together and out of the foster care system. The Family First Prevention Services Act, a provision within the Bipartisan Budget Act that President Trump signed into law in February, would give states incentives to keep children with parents or relatives, rather than immediately transferring them to foster care or the state’s care...A second phase of the program will restrict federal funding for group care and provide additional funding for mental health and substance abuse programs. That phase has child welfare advocates concerned that the new measure disincentivizes foster care programs at the expense of the children themselves. “It’s really about prevention of foster care, not prevention of abuse and neglect,” said Elizabeth Bartholet, director of the Child Advocacy Program at Harvard Law School. “I think we do want children removed to foster care when they’re facing serious abuse and neglect at home.”

There’s a moving passage contained in a deposition taken in the major class-action lawsuit accusing Harvard University of racial bias against Asian-Americans...As the Harvard law professor Jeannie Suk Gersen pointed out in The New Yorker, the tortuous and evasive quality of the discussion of the treatment of Asian-Americans in elite colleges stems from the way our legal doctrine on affirmative action has evolved. The Supreme Court ruled that it was legal to use race as a criterion in admissions in order to pursue the educational benefits of “diversity” in the landmark 1978 case Regents of the University of California v. Bakke, but it forbade the imposition of racial quotas and, by extension, the maintenance of a policy that consciously aims at “racial balancing.” This imposes a legal condition on Harvard. Rather than make the honest claim that it actively pursues racial balance and that there are good reasons to do so, the school must engage in a charade that nearly everyone working in the proximity of a highly competitive college knows to be false.

Dominic Cinelli was one year out of prison and on parole when he shot and killed a police officer the day after Christmas in 2010. Since then, the number of people released on parole has remained consistently low, the state parole board has been stacked with members with law enforcement backgrounds, and the board has become less transparent, according to a coalition of attorneys, criminal justice reform groups, and prisoner rights advocates. The coalition wrote Governor Charlie Baker on Monday, saying the board is taking longer to decide the fate of inmates and failing to properly consider their mental health and drug use disorders. “It’s not working. It’s a terrible system,” said David Harris, managing director of the Charles Hamilton Houston Institute for Race & Justice at Harvard Law School, a research and civil rights advocacy center that signed the letter. “We are terribly backwards and emblematic of the punitive posture we have taken in this country for far too long.”

Attempts to eliminate the Affordable Care Act have taken a new turn. Nearly two dozen states or their governors have filed a lawsuit against the United States government, HHS, IRS and several others claiming that Congressional action that lowered the tax on those who did not comply with the individual mandate to buy insurance voids the Affordable Care Act. The new lawsuit, known as Texas v. the United States (2018), has some experts and medical societies concerned about its ramifications...Robert Greenwald: “The state plaintiffs and the administration have taken somewhat different positions in this case. The states are asserting that repeal of the individual mandate necessitates a repeal of the ACA in its entirety. The administration has agreed with the states, but only in so far as to assert that the guaranteed issue and community rating provisions must be overturned as a result of Congressional changes to the individual mandate. If either of these assertions prevails, then the scope of health care would change,” he said in an interview.

Don’t get me wrong — I’d give almost anything to have a boring president (of either party) who colors inside the constitutional lines. Given that we do not, however, we might think of the Trump presidency as a four-year course in constitutional and criminal law...First, when Trump says something such as I can pardon myself, or I haven’t decided if I will talk to the special counsel (ultimately a subpoena will settle the matter), do not consider it a pronouncement on the law or even a statement of intent. He says whatever he thinks in the moment serves his interests, shows he is top dog and/or pumps up his base. Rather than get irate, the rest of us have a job: show why his utterance is beyond the realm of reasonable argument. Take Trump’s self-pardon doctrine. Constitutional scholar Laurence Tribe tells me a self-pardon is an “a constitutional impossibility.” Former chief White House ethics lawyer Norman Eisen advises that a self-pardon “is inimical to the constitution and rule of law. It would be invalid, and would be set aside by the courts should a prosecutor or another party with standing challenge it.”