Media Mentions

An op-ed by Noah Feldman. Other justices appointed by Republicans, most notably Harry Blackmun, turned to the left toward the end of their careers, as Justice Anthony Kennedy has gradually and selectively done. But Blackmun’s turn famously included a refusal to tinker with the “machinery of death,” and a consequent rejection of capital punishment. On the last day of the U.S. Supreme Court term, Kennedy showed he wasn’t even close to there. He provided the fifth and deciding vote Monday to reject death-row inmates’ claim that the drug midazolam, part of the drug cocktail designed to render you unconscious before killing you, is unconstitutionally ineffective.

China adopted a sweeping, new national security law that the government says is needed to counter emerging threats but that critics say may be used to quash dissent and exclude foreign investment. Approved by the legislature’s standing committee Wednesday, the law sets an expansive definition of national security that outlaws threats to China’s government, sovereignty, national unity, as well as its economy, society and cyber and space interests...“This law will legitimize the abuse of power by state and public security bureaus,” said Teng Biao, a prominent Chinese lawyer who was detained in the past over his rights activism, and is now a fellow at Harvard Law School. “For the Communist Party, the rule of law means using legislation as a tool of control.”

The Supreme Court will once again take up affirmative action in college admissions. The Court announced Monday it would review whether considering race and ethnicity while building a college class is constitutional..."It's always been a highly contentious issue," says Tomiko Brown-Nagin, who teaches law and history at Harvard. Brown-Nagin says the Court is taking up affirmative action at a time when the country is debating questions of access for students of color. "It's incredibly competitive to be admitted to selective institutions of higher education," she says. "On the one hand you have the continuing controversy over the use of race in admission. On the other hand you have a lot of anxiety in the public about whether students will be admitted to college."

The secretariat of strategic affairs in Brasília lies in a nondescript ministry building in the middle of the plano piloto — the aircraft-shaped street layout of Brazil’s modernist capital. The job of its new minister, philosopher and Harvard law professor Roberto Mangabeira Unger, is to chart a long-term development plan for President Dilma Rousseff, whose palace lies a kilometre away in the “cockpit” of the plano piloto. It is not an easy task. Latin America’s largest economy is suffering increased turbulence from the end of the commodities super cycle and a credit-driven consumption boom. Economists forecast the economy will shrink nearly 1.5 per cent this year. Unemployment is increasing fast. “The underlying frailty of the system that we built was its very low productivity,” said Mr Unger, one of Brazil’s best-known academics internationally who won tenure at Harvard Law School aged just 29 in 1976.

The Supreme Court will consider limiting the power of government employee unions to collect fees from non-members in a case that labor officials say could threaten membership and further weaken union clout..."When unions are required to provide representation, if people don't have to pay for that, a lot of them are going to opt for that free option and that's going to cause enormous problems for the viability of unions," said Benjamin Sachs, a professor at Harvard Law School specializing in labor law.

A new study has found that the majority of state-run Medicaid programs are creating formidable barriers to patients with the potentially deadly Hepatitis C virus from being treated with new wonder drugs that can cost as much as $1,000 a pill. The joint study by researchers from Harvard Law School, Brown University’s Department of Medicine, Rhode Island’s Miriam Hospital, and the Kirby Institute of Australia was published Tuesday in the Annals of Internal Medicine...Robert Greenwald, a professor at the Harvard Law School’s Center for Health Law and Policy and a co-author of the study, said that he began the research with the idea there were restrictions in place but that he didn’t anticipate the breadth of these restrictions. “I think there is evidence that they are rationing based on cost,” Greenwald said in an interview on Tuesday, adding that “the sad reality” is that states are withholding treatment to many despite receiving rebates or discounts from the drug manufacturers of 23 percent or more.

State-run insurance programs for the poor may be putting up illegal barriers that prevent people with hepatitis C from getting a new treatment, a new study suggests. "We had this idea that there were restrictions in place, but we didn't anticipate the breadth of these restrictions," said study author Robert Greenwald of the Center for Health Law and Policy at Harvard Law School in Jamaica Plain, Massachusetts.

The Supreme Court put public-sector unions in its crosshairs Tuesday by agreeing to hear a constitutional attack on the mandatory representation fees that nearly all California teachers pay...“This is a very significant case. It may well be life or death for the unions,” said Harvard Law School professor Benjamin Sachs. “Unions are required to represent everyone. And this could mean nobody has an obligation to pay.”

The Supreme Court issued two historical decisions last week—one upholding the Affordable Care Act, and the other legalizing same-sex marriage across all fifty states. Laurence Tribe, professor at Harvard Law School and most recently author of "Uncertain Justice: The Roberts Court and the Constitution," is perhaps uniquely qualified to discuss matters of the court: he had two of its members, Chief Justice John Roberts and Justice Elena Kagan, as students. (You may also be familiar with his former research assistant, now-President Barack Obama.) Tribe joined Jim Braude and Margery Eagan in Studio 3.

The Supreme Court dealt a blow to the Obama administration's environmental plans, deciding that efforts to sharply limit hazardous power plant emissions must also consider their costs. In a 5-4 decision Monday, the justices said the Environmental Protection Agency needs to weigh the economic impact of proposed regulations — estimated at $9.6 billion annually — on power companies and their customers...The decision "overturns one of EPA's most important pollution control rules," said Harvard law professor Richard Lazarus, an expert on environmental law. "The good news is that EPA can likely go back and reissue the same rule, this time taking costs into account. The bad news is that this may take a long time to accomplish. The Obama administration will be hard-pressed to get the job done before it goes out of office."

... CHUCK TODD: We'll cover it all, victories for liberals, President Obama's growing legacy, and how conservatives will respond. I'll be joined by two 2016 Republican candidates, Bobby Jindal, governor of Louisiana, and Lindsey Graham, senator from South Carolina. Finally, terror abroad and concerns at home. How serious is the threat to us? I'm Chuck Todd, and joining me for insight and analysis this Sunday morning are former Republican House Speaker Newt Gingrich, Michael Eric Dyson of Georgetown University, Kathleen Parker of The Washington Post, and Charles Ogletree of Harvard Law School. Welcome to Sunday, it's Meet the Press. ... As we bring in the panel, I wanted everyone to see how the Supreme Court's decision was covered in America's newspaper. For many people, these are the kinds of front pages they'll be saving, hanging on their wall, framing it. You'll see it there from all over the country. They will be souvenirs for many people. Others maybe not so much. Let me bring in the panel. Charles Ogletree, Michael Eric Dyson, Newt Gingrich. Charles Ogletree, let me start with you. You're the Harvard law professor here. What did you learn from the Supreme Court this week? Charles Ogletree: It was a great series of decisions. And I think that this is not about left and right. The Republicans have not turned conservative or library. This is about justice and equality. And I think those opinions show about justice equality. So I'm very happy with what was decided by the court today.

An op-ed by Heidi Gardner: True rainmakers don’t need to be convinced to collaborate: referring work to colleagues and developing a loyal team capable of extraordinary…

An op-ed by Bonnie Docherty:  Such fully autonomous weapons, or “killer robots,” are under development in several countries. But the robots’ use of force would undermine the fundamental legal and moral principle that people should be held responsible for their wrongdoing. Countries and nongovernmental groups around the world have been working for two years now to figure out how to deal with these weapons before they are in production. In April, representatives from 90 countries met at the United Nations in Geneva for their second round of talks on what to do about “lethal autonomous weapons systems.”

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.