Roberts drifts away from conservative bloc, angering Republicans and exciting the left

July 1, 2020

Supreme Court Chief Justice John Roberts’ role as the court’s new swing vote has become abundantly apparent in recent weeks, as he has been the deciding justice in several high-profile 5-4 decisions in which he sided with the court’s liberal bloc — providing hope for Democrats and angering Republicans. The jurist kept court watchers on their toes yet again this week, siding with the conservatives in a tight decision that delivered a win for the school choice movement on Tuesday. But in Monday’s decision in June Medical Services v. Russo, Roberts sided with the liberal members to rule against a Louisiana law restricting who can perform abortions, upholding precedent from a similar case in 2016 in which he was on the other side. This followed his vote in rejecting the Trump administration’s attempt to rescind DACA and his vote in a 6-3 decision that prohibited employment discrimination based on sexual orientation and gender identity…Well-known liberal law professor Laurence Tribe, who taught Roberts at Harvard, expressed pride for his former student after Monday’s decision. “Adding the Louisiana abortion decision to the DACA decision and the LGBTQ decision makes me especially proud of my former constitutional law student, Chief Justice John Roberts,” Tribe tweeted. Roberts’ history of separating himself from the court’s conservative contingent in key cases goes back years. In 2012, by siding with the liberal wing and reinterpreting an individual mandate as a tax, he allowed ObamaCare to be found constitutional. Additionally last year he joined with liberals again in shutting down the Trump administration’s efforts to add a citizenship question to the census.

CFPB Ruling Shows John Roberts Doesn’t Rock the Boat

July 1, 2020

An article by Noah Feldman: You might think this is a bad historical moment to give the president more power to boss around his subordinates. Chief Justice John Roberts disagrees. In a decision that counts as a modest win for the idea of a “unitary executive,” he has written an opinion for the Supreme Court holding that the president must have the power to fire the director of the Consumer Finance Protection Bureau for any reason. The court didn’t strike down the CFPB as a whole, thankfully. The bureau can stay in place. And the court didn’t strike down the organizational form of other independent agencies, like the FTC or FCC, which are run by multi-member, bipartisan commissioners. Roberts limited the decision to the CFPB. Roberts’s moderation here actually echoed his moderation in the Louisiana abortion case handed down today. The CFPB ruling was a moderate decision that conservatives will like, while the abortion decision is a moderate decision that liberals will like. But both reflected Roberts’s commitment to cautious conservatism in the vein of Edmund Burke. He does not favor rapid change — whatever the court’s other conservatives may want. In practice, so long as the CFPB is run by a single director, it can’t be independent in the sense of having its leadership insulated from the president. Either Congress will have to re-form the CFPB by creating a multi-member commission, or else the CFPB will cease to be independent. The stakes of the decision, Seila Law v. CFPB, are particularly high because the case is essentially about whether and how the Constitution allows independent agencies to be shielded from presidential control. That matters when you have a president who has set out to politicize nearly every aspect of decision making, including in areas, like criminal justice, where there is a robust tradition of independence.

Supreme Court Puts Independent Agencies at Risk

July 1, 2020

An article by Cass Sunstein: On rare occasions, the Supreme Court answers the most fundamental questions, going to the very heart of our constitutional system. In striking down the independence of the Consumer Financial Protection Bureau, the court today did exactly that. Since the founding itself — and with mounting intensity over the 40 years — the United States has been divided over two visions of the Constitution. The first insists that we have a “strongly unitary executive,” which means that the president must be in charge of all those who implement federal law. For those who believe in a strongly unitary executive, all departments, all agencies and all administrators work under one person: the commander in chief. Congress lacks the power to create “independent” agencies, headed by people whom the president cannot fire, and who are not subject to his will. According to the second vision, we have a “weakly unitary executive,” which means that Congress has the authority to restrict the president’s power to control some officials who implement federal law. If Congress wants to create independent regulators, such as the Federal Trade Commission, the Federal Communications Commission and the Consumer Financial Protection Bureau, it’s perfectly entitled to do that. Sure, the president must be allowed to carry out his constitutional functions, meaning that he has to be allowed to control the secretary of State and the secretary of Defense (and perhaps the attorney general). But for those who believe in a weakly unitary executive, Congress is allowed to make some regulators independent of the president.

President Trump’s Forward-Thinking Federal Workforce Policy

July 1, 2020

An article by Eli Nachmany ’22: As the COVID-19 pandemic has shifted many universities online for the upcoming fall semester and dramatically increased the number of individuals enrolled in online-learning platforms such as Coursera, one thing is clear: The way we approach higher education in the United States is changing. And President Trump’s recent executive order directing the federal government to consider skills as well as degrees in hiring employees is a big win for those who want our federal workforce to keep pace with that change. To keep the American workforce competitive in the 21st century, we need to be deliberate about how our nation finds and develops talent. In the post-pandemic economic recovery, leveraging all of the educational tools at our country’s disposal is not a luxury, but a necessity. And to that end, the Ivanka Trump–led American Workforce Policy Advisory Board has spearheaded the administration’s advocacy for apprenticeships, online learning, and vocational training as cornerstones of educational reform. We cannot, of course, discount the importance of liberal-arts education. To take one example, Goldman Sachs CEO David Solomon noted last year that the ability to write well is increasingly rare, even at his firm. He praised liberal-arts institutions for equipping students with the communication and interpersonal skills necessary to succeed in the professional world. Any national workforce policy must recognize the importance of these “soft skills.”

Increasing Transparency at the National Security Commission on Artificial Intelligence

July 1, 2020

An article by Adira Levine ’22: In 2018, Congress established the National Security Commission on Artificial Intelligence (NSCAI)—a temporary, independent body tasked with reviewing the national security implications of artificial intelligence (AI). But two years later, the commission’s activities remain little known to the public. Critics have charged that the commission has conducted activities of interest to the public outside of the public eye, only acknowledging that meetings occurred after the fact and offering few details on evolving commission decision-making. As one commentator remarked, “Companies or members of the public interested in learning how the Commission is studying AI are left only with the knowledge that appointed people met to discuss these very topics, did so, and are not yet releasing any information about their recommendations.” That perceived lack of transparency may soon change. In June, the U.S. District Court for the District of Columbia handed down its decision in Electronic Privacy Information Center v. National Security Commission on Artificial Intelligence, holding that Congress compelled the NSCAI to comply with the Federal Advisory Committee Act (FACA). Under FACA, the commission must hold open meetings and proactively provide records and other materials to the public. This decision follows a ruling from December 2019, holding that the NSCAI must also provide historical documents upon request under the Freedom of Information Act (FOIA). As a result of these decisions, the public is likely to gain increased access to and insight into the once-opaque operations of the commission.

John Roberts Was Already Chief Justice. But Now It’s His Court.

July 1, 2020

In a series of stunning decisions over the past two weeks, Chief Justice John G. Roberts Jr. has voted to expand L.G.B.T.Q. rights, protect the young immigrants known as Dreamers and strike down a Louisiana abortion law. In all three decisions, he voted with the court’s four-member liberal wing. On Tuesday, he joined his usual conservative allies in a 5-to-4 ruling that bolstered religious schools. The decisions may be hard to reconcile as a matter of brute politics. But they underscored the larger truth about Chief Justice Roberts: 15 years into his tenure, he now wields a level of influence that has sent experts hunting for historical comparisons…Richard J. Lazarus, a law professor at Harvard, said Monday’s abortion decision vindicated Chief Justice Roberts’s statements. “The chief is sending a broader message to both parties, and this time in this case it is the Republicans who take the hit,” Professor Lazarus said. “But the message would be the same if it were the Democrats and their favored position had lost.” The message was this, Professor Lazarus said: “You cannot expect us to behave like partisan legislators.” The abortion case concerned a Louisiana law that was essentially identical to one from Texas that the court had struck down just four years ago, before Mr. Trump appointed two new justices. In dissent in 2016, Chief Justice Roberts had voted to uphold the Texas law. Professor Lazarus said he suspected the chief justice was offended by the idea that a change in the composition of the court should warrant a different outcome in what was, at bottom, the identical case.

Advertisers retreating from Facebook amid backlash over hate speech on social media

July 1, 2020

Australian advertisers say they are considering pulling their advertising from Facebook amid a growing global backlash over hate speech on social media. Starbucks, Coca-Cola and consumer goods giant Unilever are among the big names who’ve joined the boycott, prompting Facebook’s share price to tumble by more than 8 per cent. The company’s founder and chief executive Mark Zuckerberg has since announced updates to the company’s advertising standards. Guest: Evelyn Doeuk, lecturer on law and a Doctoral Candidate with Harvard Law School and an expert in the regulation of online speech.

Bloomberg Opinion Radio: Weekend Edition for 6-26-20

July 1, 2020

Hosted by June Grasso. Guests: Tara Lachapelle, Bloomberg Opinion media columnist: “AMC’s Wrong. Requiring Masks Isn’t Political.” Noah Feldman, Harvard Law Professor and Bloomberg Opinion columnist: “DACA Ruling Shows Roberts Is Done Trusting Trump.” Toby Harshaw, a national security writer and editor for Bloomberg Opinion: “U.S. Allies Can’t Face Four More Years of Trump.” Sarah Green Carmichael, Bloomberg Opinion editor: “Beat Remote-Work Burnout as a Team.” Brooke Sutherland, Bloomberg Opinion industrials columnist: “Is Your AC Keeping You Safe From Covid?”

Kansas State pressured to expel student for George Floyd tweets. But is that legal?

June 30, 2020

Pressure is mounting for Kansas State University to expel a student whose insensitive tweets about George Floyd last week sparked a national uproar. But a critical question looms: Can the university legally kick out a student for exercising his First Amendment rights? “A student at a public university making an extremely offensive statement on social media is almost quintessentially the kind of thing that should be protected against sanctioning by public authorities,” said Mark Tushnet, a Harvard Law School professor. “And sanctioning would include expulsion from a public university. On the face of it, it seems to me that taking action directly against the student would be a violation of the First Amendment.” Jaden McNeil, a junior in political science and head of K-State’s America First Students chapter — a controversial group he formed earlier this year — posted the tweets Thursday afternoon…Tushnet of Harvard Law said if K-State does expel McNeil and he files a lawsuit, his chances of success would depend on the kind of remedy he was seeking. “If he wanted to be readmitted, then he’d have a pretty good chance of winning,” he said. “If he wanted damages for injury to his career or something like that, it would be a closer question.” Tushnet acknowledged that the incident puts university officials in a difficult position. “That’s why you hire good administrators,” he said. “I can imagine a very good administrator, president, deans, figuring out a way to work with the athletic teams in a way that would leave them satisfied without expelling the student. But that depends on the president’s ability and local circumstances, all of which I don’t know.”

States test new climate strategies in Big Oil showdowns

June 30, 2020

The top attorneys for the District of Columbia and Minnesota last week launched major lawsuits against the oil and gas industry, adding to a growing swell of climate battles focused on consumer protection. Legal experts say climate litigators facing off against the fossil fuel industry’s major players are getting more creative in their use of state statutes and common law, which could help them avoid prolonged procedural battles over whether the cases belong in state or federal court — a problem that has plagued local challengers seeking industry compensation for climate impacts. By strengthening their arguments for state venues, state challengers could move more quickly to the meat of their cases…These cases — and a similar lawsuit filed last year by Massachusetts Attorney General Maura Healey (D) — are distinct from climate nuisance lawsuits brought by cities, counties and one state that seek to hold oil and gas companies financially accountable for rising sea levels and other effects of climate change…Experts like Hana Vizcarra, staff attorney at Harvard Law School, said the states’ consumer protection cases also move away from claims rooted in securities law. The New York attorney general’s office last year lost its bid to hold Exxon accountable under the state’s Martin Act, an anti-fraud law. “It’s noticeable that there’s been this common shift to consumer protection, but it’s also not super surprising because nobody else has the Martin Act,” Vizcarra said. “It’s harder to bring securities fraud claims, and they’re just really dependent on the state laws.” Prohibitions against deceptive corporate practices are more widespread, she said. “You see those kinds of authorities in laws across the country in every state,” Vizcarra said.