Media Mentions

Following the Supreme Court’s landmark decision Friday that same-sex couples have a constitutional right to marriage, several Harvard Law School professors said Justice Anthony M. Kennedy, who authored the majority opinion, played an extraordinary role in advancing the cause. “The majority opinion by Justice Kennedy was a triumph of reason and passion alike,” Law School professor and former Supreme Court clerk Laurence H. Tribe ’62 wrote in an email. ... Law School professor Michael J. Klarman wrote that Friday’s decision “confirms the extraordinary influence” of Kennedy, adding that he believes Kennedy is “the most powerful justice in history.” ... Law School professor Richard H. Fallon agreed that people opposed to same-sex marriage may be angry about the verdict, they are unlikely to act politically, given a shift in public support for same-sex marriage in recent years.  

This is a strange moment for sex in America. We’ve detached it from pregnancy, matrimony and, in some circles, romance. At least, we no longer assume that intercourse signals the start of a relationship. But the more casual sex becomes, the more we demand that our institutions and government police the line between what’s consensual and what isn’t. And we wonder how to define rape. Is it a violent assault or a violation of personal autonomy? Is a person guilty of sexual misconduct if he fails to get a clear “yes” through every step of seduction and consummation?...“If there’s no social consensus about what the lines are,” says Nancy Gertner, a senior lecturer at Harvard Law School and a retired judge, then affirmative consent “has no business being in the criminal law.”...“It’s an unworkable standard,” says the Harvard law professor Jeannie C. Suk. “It’s only workable if we assume it’s not going to be enforced, by and large.”

An op-ed by Rachel Sachs, Academic Fellow. The core of the Affordable Care Act (ACA) has now survived its second trip to the Supreme Court...Three years ago, it was clear from both the oral argument and opinions that the justices did not fully appreciate the health policy consequences of their ruling. But in the oral argument in King v Burwell, the justices displayed a much more sophisticated understanding of the law. And, happily, that understanding is reflected in Chief Justice Roberts’ majority opinion – in part thanks to law professors.

It was the moment when gay marriage nationally went from being a cause to a fact. “This is one for the ages,” wrote Noah Feldman, Harvard’s Felix Frankfurter Professor of Law...Michael Klarman, Harvard’s Kirkland & Ellis Professor of Law and author of “From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage” (2012), called the ruling “the Brown v. Board of the gays rights movement. It’s obviously a great day for gay rights and for those who favor a more equal, inclusive America.”

Some Brazilian politicians duck questions about the scope of their aspirations, insisting they have absolutely no plans, say, of running for mayor of São Paulo, seeking a cabinet post or wielding power from some other coveted perch in Brazil’s huge bureaucracy. Then there is Roberto Mangabeira Unger, the Harvard philosopher who once counted Barack Obama among his students. Not given much to small talk, Mr. Unger is known to quote Hegel and Thomas Jefferson in the same breath. He expounds on subjects like the human condition. When an interviewer once asked him if he hoped to become president of Brazil, Mr. Unger said with a laugh, “I was always much more ambitious than that.”

Marriage rights for same-sex couples took less than a generation to race from a concept that triggered emotional battles on Beacon Hill to the law of the land...“In a dozen years it’s become constitutionally required throughout the country. That’s remarkable,” said Charles Fried, a Harvard Law professor who was solicitor general under President Reagan and served on the state Supreme Judicial Court in the 1990s. Fried said acceptance of gay people has “waxed and waned over the millennia” but called their inclusion in marriage brand new. “The Supreme Court dissenters are right when they say this is an utter novelty. So it’s an amazing thing that it has happened so quickly after such a long and universal history of not happening,” he said.

...The Supreme Court’s three highest-profile decisions since Roberts became the top justice were all decided in favor of liberals: It rejected two challenges from the right to President Obama’s Affordable Care Act, including one on Thursday, ensuring 6 million people would keep their health care...“The court is about as deeply divided as the country on the hot-button issues of race, sex, and religion but is more lawyerly and nonideological than the talking heads tend to believe on just about everything else,” said Laurence H. Tribe, a professor of constitutional law at Harvard Law School. To the extent that Roberts has disappointed conservatives, Tribe said that it might be the Republican Party — not their 2005 appointee — that has changed. “The GOP has been moving rightward at a fairly rapid clip on most of the social issues while the Court has remained relatively centrist on everything except issues of LGBT rights, where it has moved leftward, but at a more measured pace than much of the country,” Tribe said.

An op-ed by Michael Klarman. By a narrow 5-to-4 majority, the Supreme Court in Obergefell v. Hodges has ruled that the US Constitution requires states to permit gay and lesbian couples to marry. The decision raises many interesting questions about the court and its role in American society: the extraordinary influence of one man (Justice Anthony Kennedy) on the court’s decision-making, the malleability of constitutional interpretation in the face of rapidly shifting social norms, and the justices’ willingness/reluctance to advance beyond public opinion in their constitutional interpretations. Yet the most interesting aspect of Obergefell may be the way the conservative justices chose to frame the issue in their four separate dissents: Each criticized the court’s refusal to defer to democratic decision making on the issue of gay marriage.

...Putting the face of a woman on a U.S. banknote is a symbolic step that will have a seismic impact, said Professor Christine Desan of the Law School. Desan, who has studied money going back to the Middle Ages, said that the face on a bill “reflects the kind of sovereignty that the community recognizes.” In monarchies the likenesses of kings and queens regularly appear on currency. In the United States, aside from Hamilton and the inventor and statesman Benjamin Franklin, the serious, green-tinted faces of select presidents stare back at you. For Desan, who will spend the next year at the Radcliffe Institute of Advanced Study working on her forthcoming book, “Designing Money in Early America: Experiments in Political Economy (1680–1775),” the change announced by Lew represents a “radical step.”

An op-ed by Cass Sunstein: In his powerful dissenting opinion from Friday's same-sex marriage decision, Chief Justice John Roberts asks an excellent question: “Just who do we think we are?” That question deserves an answer. If we look at the arc of the court’s history, we might be able to offer one. Contrary to appearances, the court usually pays attention to an actual or emerging moral consensus, certainly with respect to fundamental rights. It follows public opinion; it does not lead it. When Justice Anthony Kennedy wrote that the Constitution protects “the right of all persons to enjoy liberty as we learn its meaning,” he didn't mean the justices consult philosophical texts or make things up. He meant to refer instead to an emphatically social process, in which the justices learn from their fellow citizens.

An op-ed by Noah Feldman: Justice Anthony Kennedy continues to surprise. The swing justice wrote an important liberal opinion, holding Thursday for a 5-4 courtthat the Fair Housing Act prohibits not only intentional discrimination, but also policy decisions that discriminate by having a disparate impact on minorities. The Reagan appointee occasionally shows vestiges of his one-time conservatism, as in one half of his split votes in two recent death penalty cases. But as his vote in the Affordable Care Act case suggests, he’s increasingly becoming a confirmed liberal vote. When (and if) he declares a constitutional right to gay marriage in the next few days, he’ll enter the pantheon of great justices -- as a liberal.  

An op-ed by Noah Feldman: Justice Antonin Scalia thinks that finding a right to gay marriage in the due process clause of the Constitution amounts to a “judicial Putsch.” But on the very same day the gay-rights opinion was announced, Scalia showed what he thinks the due process clause is actually for. He wrote the opinion for the U.S. Supreme Court striking down the clause of the federal law that increases the punishment for felons found in possession of a gun if they have been convicted of three or more violent felonies. The law defines a violent felony as one that “involves conduct that presents a serious potential risk of physical injury to another.” This language, Scalia found, is unconstitutionally vague -- and therefore violates due process.

An op-ed by Noah Feldman: This one is for the ages. Justice Anthony Kennedy's opinion for the U.S. Supreme Court announcing a right to gay marriage in Obergefell v. Hodges will take its place alongside Brown v. Board of Education and Loving v. Virginia in the pantheon of great liberal opinions. The only tragic contrast with those landmarks in the history of equality is that both of those were decided unanimously. Friday's gay-rights opinion went 5-4, with each of the court's conservative justices writing a dissent of his own. Eventually, legal equality for gay people will seem just as automatic and natural as legal equality for blacks. But history will recall that when decided, Obergefell didn't reflect national consensus, much less the consensus of the court itself.

The chief justice who once mangled President Barack Obama's oath of office has once again helped rescue the president's signature achievement, his health care law. After an awkward first encounter, these two Harvard Law graduates who rose to high positions of power from opposite ends of the political spectrum are bound together in the legacy of a law that the president says has now been "woven into the fabric of America" and that Roberts may not even personally support. It was Roberts who wrote the majority opinion in Thursday's 6-3 ruling that preserved a critical element of the health care law. And it was Roberts who provided the critical vote to uphold the legal underpinnings of the Affordable Care Act in a 5-4 ruling in 2012. "This will be a part of them both," predicted Harvard's Laurence Tribe, the constitutional scholar who once had Roberts as a student and later hired Obama as a research assistant. Tribe, a supporter of the health care law, called it a kind of "kismet" that didn't have to happen that way.

An op-ed by Laurence Tribe: The Supreme Court has rebuffed yet another attempt to destroy the Affordable Care Act. In King v. Burwell, the challengers argued not that the Constitution prohibited the ACA, but that the law’s own text made one of its key reforms ineffective and indeed perverse. Applying a strong dose of common sense to reject this argument, Chief Justice John Roberts, writing for a six-justice majority, handed the people and the Congress that represents them a resounding victory.

A commentary by Jody Freeman: Today, the Supreme Court held that federal subsidies to help Americans buy health insurance under the Affordable Care Act are available in every State, whether the States themselves or the Federal government sets up the health care exchanges. This is a major victory for the Obama administration, which had adopted that view of the law in an Internal Revenue Service rule. Unless subsidies are available nationwide, the Act’s scheme does not really work, because insurance would become more, not less expensive, and premiums would soar, undermining the core purpose of the law, which is to insure every American. Yet in finding for the Obama administration, the Court nevertheless struck a blow against the executive branch. The Chief Justice’s majority opinion showed zero deference to the administration’s interpretation of the law. The Court construed the Act for itself.

Powerful public-sector unions are facing another high-profile legal challenge that they say could wipe away millions from their bank accounts and make it tougher for them to survive. A group of California schoolteachers, backed by a conservative group, has asked the Supreme Court to rule that unions representing government workers can’t collect fees from those who choose not to join...Alito had also criticized the Abood decision in a 2012 opinion in which the court ruled that union members had to opt in for special fees instead of opting out. “It’s a clear signal that Alito believes Abood ought to be overruled,” said Benjamin Sachs, a professor at Harvard Law School specializing in labor law. “There are some number of justices on the court that probably share that view.”

An op-ed by Noah Feldman. Justice Anthony Kennedy continues to surprise. The swing justice wrote an important liberal opinion, holding Thursday for a 5-4 court that the Fair Housing Act prohibits not only intentional discrimination, but also policy decisions that discriminate by having a disparate impact on minorities.

An op-ed by Noah Feldman. It’s good news that the Obama administration has announced it won’t prosecute families of hostages who seek to pay ransom to terrorist kidnappers, as families and commentators have urged. In the future, families will be able to undergo the agonizing process of trying to get their loved ones back without knowing that the U.S. government is actively interfering with their efforts. The adoption of the new, more humane policy, however, is also occasion to remind ourselves of the social costs of too much public handwringing over the fate of American hostages.

An op-ed by Noah Feldman. The Spider-Man franchise has been rebooted many times since Stan Lee and Steve Ditko invented the superhero in 1962. But the Spider-Man tradition reached a new peak Monday when the web-spinner became the centerpiece of a U.S. Supreme Court decision about, of all things, tradition, specifically the use of precedent in the court's opinions. Justice Elena Kagan, writing for a 6-3 majority, sprinkled in clever Spider-Man references, enhancing her reputation as the funniest justice in writing. But the subject of precedent is in fact as serious as a radioactive spider bite -- and just as basic to the Supreme Court’s foundation myth as Peter Parker’s bite is to Spider-Man’s.

An op-ed by Noah Feldman. “Lemme see your register.” Can’t you just hear the tough cop asking the hotel desk clerk that question in every noir film you’ve ever seen? As of Monday, the question is now unconstitutional, and the hotel doesn’t have to show its list of guests unless the police have a warrant. The case even came out of Los Angeles, home of the film noir tradition.