Media Mentions

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.

An op-ed by Noah Feldman. What determines whether the police have used excessive force on a detainee: the officers’ beliefs about their own actions or the assessment of a reasonable observer? It’s hard to imagine a more important question after the events of the past year in Ferguson, North Charleston and Staten Island -- and on Monday the U.S. Supreme Court held in favor of the objective observer, not the subjective mindset of the officers.

An op-ed by Noah Feldman. Chief Justice John Roberts just saved the Affordable Care Act -- again. If you’re feeling déjà vu, you’re not alone. As he did in 2012, Roberts defected from his conservative colleagues and joined the court’s liberals in refusing to send Obamacare into a death-spiral. In King v. Burwell, Roberts has now cemented his reputation as a true believer in judicial restraint -- perhaps as the only justice who still believes in it. And this time, he was given cover by Justice Anthony Kennedy, making the vote 6-3.

An op-ed by Cass Sunstein. In recent months, universities have turned their attention to an important problem that should be included in our national effort to examine and root out bigotry. They have identified, and attempted to reduce, "microaggressions" -- words or behavior that might stigmatize or humiliate women or members of minority groups, with particular emphasis on African-Americans, disabled people, and gays and lesbians. The effort has admirable goals, but there is a risk that schools will overshoot the mark.

An op-ed by Cass Sunstein. Thursday's Supreme Court decision to uphold a pivotal regulation under the Affordable Care Act is, of course, a tremendous victory for the Barack Obama administration. But it also establishes a principle that's likely to haunt future presidents...The underlying question is which branch of government has the power to interpret ambiguous legislation. Since the Supreme Court's 1984 decision in Chevron v. Natural Resources Defense Council, the executive branch has been allowed to adopt its own interpretations, as long as they're reasonable. And because so many laws are ambiguous, this "Chevron principle" has given great authority to executive agencies and the president.

Noah Feldman, the Felix Frankfurter Professor of Law at Harvard Law School, explains to WGBH Morning Edition host Bob Seay, the inner-workings of the U.S. Supreme Court on the day the court issued its decision on the Affordable Care Act.

Here’s a twist for the Obama administration as it awaits a U.S. Supreme Court decision on the biggest environmental rule of its first term: A loss shores up the legal basis of the biggest environmental rule of the second term. The high court is set to decide as soon as Thursday on the 2012 rule by the Environmental Protection Agency that ordered curbs in mercury and other toxic pollutants emitted from coal-fired power plants...To be sure, a loss at the Supreme Court could still set a bad precedent for any future case over the EPA carbon rule, and might not result in a clear repeal of the mercury rule. “The rule in the past has been: Ambiguity favors the agency,” said Jody Freeman, a Harvard law professor who has contended that Tribe’s argument is wrong. “If the court changes its mind, it would signal that it is not in an especially deferential mood, which is not a good sign.”

Retired federal Judge Nancy Gertner joined WBUR to discuss Dzhokhar Tsarnaev’s apology to bombing victims and Wednesday’s sentencing hearing.

More than two years after he and his brother planted two bombs on the Boston marathon finish line, and following a months-long trial that sentenced him to death, Dzhokhar Tsarnaev broke his silence for the first time—to apologize....But will his last minute apology save his life? Former federal judge Nancy Gertner says maybe. “He couldn’t make it worse. He could only make it better,” says Gertner, a professor at Harvard Law School. “The defense really has to humanize Tsarnaev at every turn.”

Two legal heavyweights are poised for battle over just how far the city of Berkeley, Calif. can go in compelling speech by mobile phone retailers...In the other corner, representing Berkeley, is Harvard Law School Professor Lawrence Lessig...‘‘I know both Ted Olson and Larry Lessig well and think extremely well of them both. Both of them are extremely smart, imaginative lawyers who are bound to do excellent work in this lawsuit,’’ Laurence Tribe, another constitutional law professor who works with Lessig at Harvard, told Bloomberg BNA.

Palestine will turn over its first batch of documents to the International Criminal Court's prosecutor on Thursday, part of an effort to steer a preliminary inquiry that could eventually see both Israelis and Palestinians brought under investigation for war crimes..."I think the UN report was not particularly surprising," Alex Whiting, a professor at Harvard Law School who previously worked at the ICC, told VICE News. "It was expected that it would reach those kinds of conclusions, but it certainly adds to the momentum of moving this forward."