A book review by Samuel Moyn. During World War I, Roger Nash Baldwin was running a rag tag organization called the American Union against Militarism when he decided to create a civil liberties bureau, in part because he felt that defending conscientious objection to conscription would serve his wider pacifist goals. He knew that there was no mention of “civil liberties” in the United States Constitution—and that even the phrase itself would be unfamiliar, since it had not much figured in political rhetoric before…Over the course of those three decades, as the story is usually told, Americans were convinced to honor free speech in new ways thanks to heroic judges who had the good sense to agree with civil libertarians. The starring role in this tale is given to Justice Oliver Wendell Holmes…Laura Weinrib overturns this simple narrative in her utterly brilliant new book. “The Taming of Free Speech: America’s Civil Liberties Compromise” shows that civil libertarian politics originated out of a trade-unionist movement for economic justice, and that its conscious choice to frame itself as serving constitutional principles above the political fray ironically disarmed the progressive movement out of which it was born.
History, as a rule, unfolds slowly at the Supreme Court. The Justices serve for decades. The cases take years. The Court’s languorous work schedule includes three months of downtime every summer. But the death of Antonin Scalia, earlier this year, jolted the institution and affirmed, once again, a venerable truism, attributed to the late Justice Byron White: “When you change one Justice, you change the whole Court.”…“There has not been a definitively liberal majority on the Supreme Court since Nixon was President,” Noah Feldman, a professor at Harvard Law School, said. “Ever since then, liberals have sometimes managed to cobble together majorities to avoid losing—on issues like affirmative action and abortion—but the energy and the initiative have been on the conservative side. That stopped, at least for now, this year.”
The pitched battle over President Obama’s signature climate change policy, which is moving to the courts this week, carries considerable political, economic and historical stakes. Yet its legal fate, widely expected to be ultimately decided by the Supreme Court, could rest on a clerical error in an obscure provision of a 26-year-old law. That error, which left conflicting amendments on power plant regulation in the Clean Air Act, will be a major focus of oral arguments by opponents of Mr. Obama’s initiative when the case is heard on Tuesday in the United States Court of Appeals for the District of Columbia Circuit…The judges have allocated four hours to hear the arguments, rather than the usual one or two. The chief judge of the court, Merrick B. Garland, who is also Mr. Obama’s Supreme Court nominee, has recused himself. Adding to the drama will be the presence of Mr. Obama’s mentor at Harvard Law School, Laurence H. Tribe, who will argue against the climate plan on behalf of the nation’s largest coal company, Peabody Energy.
Conservative organizations are pouring money into the coffers of the Republican Attorneys General Association, which is far outpacing its Democratic rival in fundraising to elect candidates who will stand up to what they see as an activist Democratic agenda. The Republican Attorneys General Association (RAGA) had raised $15.7 million by early May, according to the Center for Responsive Politics, a campaign finance watchdog, well ahead of the $5.7 million collected by the Democratic Attorneys General Association…“The amount of money is staggering,” said James Tierney, a former Maine attorney general and an adjunct professor at Harvard Law School who blames the Citizens United ruling, which lifted limits on corporate political contributions. “But that’s because it’s legal, and it’s legal because the Supreme Court said it was legal.”
An op-ed by Noah Feldman. It’s delicious to watch the Saudi outrage at being excluded from a conference in Chechnya to define who counts as a Sunni Muslim. Wahhabism, the Sunni offshoot that dominates Saudi Arabia, has done more than any other movement in Islamic history to read other Muslims out of the faith, and turnabout is fair play. Unfortunately, the conference, organized by Chechen strongman Ramzan Kadyrov, is actually part of Russian President Vladimir Putin’s fiendishly clever plan to weaken Saudi Arabia, a U.S. ally. The entire episode shows how ideologically vulnerable the Saudis feel in the age of Islamic State — and how good Putin is at affecting Middle Eastern politics.
Hillary Clinton and Donald J. Trump are spoiling for an extraordinary clash over race and gender that could come as early as Monday’s debate, with both presidential candidates increasingly staking their fortunes on the cultural issues that are convulsing the nation….“The extremity of the divergence is unlike anything I have confronted in my adult life,” said Randall L. Kennedy, a professor of law at Harvard whose books include “The Persistence of the Color Line: Racial Politics and the Obama Presidency.” “The analogies that come to mind are Goldwater versus Johnson in 1964, and Lincoln versus Douglas in 1860.”
An op-ed by Kristen A. Carpenter and Angela R. Riley. What sparks and sustains a movement? For more than a month, members of the Standing Rock Sioux tribe and thousands of allies have gathered in camps along the Missouri River in Cannon Ball, North Dakota. They are protesting the $3.8 billion Dakota Access Pipeline which, if completed, would carry half a million gallons of crude oil per day ultimately to refineries along the Gulf of Mexico.* More urgently for the protesters, the pipeline is slated to be built within a half mile of the Standing Rock Sioux Reservation, traveling across treaty-guaranteed lands, under the tribe’s main source of drinking water, and through sacred sites. As lawyers for the tribe have argued, “An oil spill at this site would constitute an existential threat to the Tribe’s culture and way of life.”…The recent judicial decision gives the federal government time to consider more carefully the risks that the pipeline will pose for humans, the water, and the environment. But it’s not enough. The United States has affirmative obligations, both legal and moral, to protect Indian water, land, culture, and religion.
An op-ed by Noah Feldman. Prisoners can be counted in population totals for determining a voting district, even though they can’t cast ballots in the place where they’re being held. That’s what an appeals court relying on a U.S. Supreme Court decision from last term has said — even though that case involved noncitizens who are fully members of the community, not inmates who don’t contribute to the city or use local services. Wednesday’s decision casts some doubt on the theory of virtual representation that the justices used, and raises deep issues about the connection between voting and being represented.
Yahoo Inc. said Thursday that hackers backed by an unnamed foreign government had stolen personal information from more than 500 million of its users’ accounts, one of the largest security breaches of the Internet age…Bruce Schneier, a fellow at the Berkman Klein Center for Internet & Society at Harvard University, said the Yahoo breach was very serious because so many Internet users routinely store sensitive data on Internet-based systems — not on the hard drives in their desktop PCs, for example. “We no longer keep our stuff on our computers,” he said. “We keep our stuff on their computers.”
Corporate tax reform may be the issue with the highest degree of consensus among Republicans and Democrats. But when it comes to most issues regarding personal taxes, it’s been hard for those on both sides of the aisle to agree. That said, in a recent Harvard Business School (HBS) study on competitiveness, professor Mihir Desai explained there is one key area where both sides seem to agree: a minimum tax on the highest earners. While personal tax reform “cuts a little closer to home” than corporate tax reform, according to Desai, changing the tax brackets at the highest level is something that would have a real revenue impacts without too much resistance. Desai, who is both a business and law professor at Harvard, explained that there is a distinct opportunity for a new top tax bracket, especially given the changing composition of the current brackets.