Harvard Law faculty weigh in: The 2021-2022 Supreme Court Term

U.S. Supreme Court building, looking up towards the sky from the bottom of the stairs.

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As the Supreme Court’s term draws to a close, Harvard Law School experts weigh in on the latest decisions. Below is a sample of faculty commentary in major media outlets.


Supreme Court Is Eroding the Wall Between Church and State

June 27, 2022

An op-ed by Noah Feldman: In another bombshell opinion, the Supreme Court’s conservative majority has upended the way it understands and applies the clause of the Constitution that prohibits the establishment of religion. Completing the revolution begun in last week’s decisions expanding gun rights and overturning abortion law,  the court said in Kennedy v. Bremerton School District that it was abandoning long-established constitutional doctrine and replacing it with a historical analysis. This means that in establishment cases the court will no longer examine government action to see if it has a secular purpose and effect, or sends a message of government endorsement of religion. Instead, the court will consider whether government action violates the establishment clause only “by reference to historical practices and understandings.”

Continue Reading at Bloomberg Opinion »

Supreme Court Just Made New York’s Streets Meaner

June 24, 2022

An op-ed by Noah Feldman: In a stunningly broad and transformative decision, the Supreme Court has struck down the New York law that says you can only carry a concealed handgun outside your home if you can show you have “proper cause” to do so. For New Yorkers and residents of six other states including California and Massachusetts, this means concealed carry is now basically an automatic right. Anyone you meet on the street or in the car ahead of you may be lawfully packing. For gun rights more generally, the opinion is perhaps even more consequential. Decided 6-3 along pure ideological lines, the opinion by Justice Clarence Thomas astonishingly makes Second Amendment rights even more protected than all the other fundamental rights in the constitutional pantheon. It also applies historical analysis so narrowly and bizarrely that it calls into question the very practice.

Continue Reading at Bloomberg Opinion »

The Supreme Court’s gun ruling is bad, but not for the reasons you might think

June 24, 2022

The Supreme Court’s 6-t0-3 decision striking down New York’s licensing requirements for handguns is not nearly as broad as some are characterizing it. But the convoluted reasoning behind the ruling is perhaps more dishonest than even the court’s worst critics imagine. Justice Clarence Thomas’s majority opinion striking down the law, which permitted state authorities to exercise discretion in issuing a concealed-carry license, is an exercise in sophistry. He perfectly distills the intellectual dishonesty deployed by self-described “originalists” to reach an outcome they favor. … Harvard University’s Laurence Tribe, a constitutional scholar, tells me the three concurrences and the dissent provide “welcome boundaries on the otherwise outsized reach of the Thomas majority opinion.” But, he says, it would have been far better for the court to have “enumerated concretely the specific sorts of safety measures that are likely to win five votes.” Instead, lawmakers are left adrift and confused.

Continue Reading at The Washington Post »

The Supreme Court Has Just Eroded First Amendment Law

June 22, 2022

An op-ed by Noah Feldman: In an extremely important church-and-state decision, the Supreme Court has held that if the state of Maine decides to pay for a child’s private education in lieu of a public one, it must allow its tuition money to be used at religious schools. The 6-3 decision, Carson v. Makin, profoundly undermines existing First Amendment law. It represents the end of the centuries-old constitutional ban on direct state aid to the teaching of religion. And remarkably, it does all this in the name of religious liberty, giving the free-exercise clause of the First Amendment primacy over the establishment clause found in the exact same amendment. The framers’ conception of the two religion clauses of the First Amendment had two parts that fit together. The establishment clause meant the government couldn’t make you perform a religious act or spend taxpayer dollars on religion. The free exercise clause said the government couldn’t stop you from performing a religious act, understood as prayer or preaching or teaching or belief.

Continue Reading at Bloomberg Opinion »

Tensions simmer as US Supreme Court’s blockbuster summer drags on

June 21, 2022

Waiting on the US Supreme Court’s final decisions of the term has become a venerable summer pastime. But this year, the wait has been especially fraught. Eighteen decisions remain before the court officially ends its current term, traditionally by June or early July. They include some of the court’s most eagerly anticipated cases, including on the fate of Roe vs Wade and abortion rights, as well as guns, environmental regulation and school prayer. As the wait for pivotal cases continues, tensions have grown, with protesters demonstrating at justices’ homes, barriers being raised outside the court and authorities bolstering support for the court’s police. … Michael Klarman, professor of American legal history at Harvard Law School, said the court was confronting one of the “most extreme crises in [its] history with regard to legitimacy”. Key to that crisis, according to Klarman, was the effort by Mitch McConnell, the Senate’s top Republican, to block confirmation hearings for Barack Obama’s nominee Merrick Garland in the final year of Obama’s presidency — “essentially stealing a seat” that could have been filled by Democrats, Klarman said.

Continue Reading at Financial Times »

Without Roe protections, rights are at stake even in abortion-friendly states

June 21, 2022

If the Supreme Court ends up weakening or outright overturning Roe v. Wade, the decision could result in a patchwork of laws across the country and trigger legal challenges between states that ban abortion and those that allow them, according to legal analysts who have followed the polarizing debate. The resulting political divide between states and conflicting laws, analysts said, could create an uncertain legal landscape for those looking to cross state lines for abortion services, as well as those who help them — perhaps even the Uber driver who takes a woman to a clinic or the philanthropist who donates to a fund that helps patients afford the travel and expense, analysts warn. … “It’s a gray area, that’s the reality of it,” said Mary Ziegler, a visiting professor of constitutional law at Harvard Law School, who specializes in reproductive and health care law. “Neither of these bodies of law have been fully developed,” she said. “If you’re looking for guidance there, there’s not much.”

Continue Reading at The Boston Globe »

Supreme Court Makes Immigration Lockup Harder to Escape

June 16, 2022

An op-ed by Noah Feldman: In a pair of immigration law opinions today, the Supreme Court made things harder for noncitizens indefinitely detained by immigration authorities. In one, decided almost unanimously and written by Justice Sonia Sotomayor, the court ended the existing requirement that such people get hearings after six months of detention to see if they could be released on bond into the US. In the other, decided 6-3 over a sharp partial dissent from Sotomayor, the justices held that detainees lack the legal authority to challenge the circumstances of their confinement through a class-action suit. Together, the opinions signal that the Supreme Court is less sympathetic to detention conditions than the lower courts.

Continue Reading at Bloomberg Opinion »

Bracing for the End of Roe v. Wade, the White House Weighs Executive Actions

June 16, 2022

President Biden’s top aides are weighing whether he can or should take a series of executive actions to help women in Republican-controlled states obtain abortions if the Supreme Court eliminates a woman’s right to end her pregnancy, according to senior administration officials. Some of the ideas under consideration include declaring a national public health emergency, readying the Justice Department to fight any attempt by states to criminalize travel for the purpose of obtaining an abortion, and asserting that Food and Drug Administration regulations granting approval to abortion medications pre-empt any state bans, the officials said. … Laurence Tribe, a Harvard Law School professor who has consulted with Ms. Remus’s team, said in an interview that while he did not want “to pour cold water on people’s peaceful reactions to impending disaster,” some of the proposals the White House was being lobbied to consider were unwise and implausible extensions of executive power. “It would take attention from the things that are really relevant — that the Supreme Court is out of control and we ought to be very critical of it — and shift the criticism to the president for responding in kind and doing things that are every bit as ungrounded in the Constitution as the court’s overruling of Roe will be,” Mr. Tribe warned.

Continue Reading at The New York Times »

The Supreme Court’s Legitimacy Crisis: From Recusal Issues to Blatant Partisanship

June 16, 2022

In a one-paragraph decision issued in January, the Supreme Court ruled that former president Donald Trump was required to turn over documents to the House committee investigating the January 6 insurrection. It was an unsurprising decision, described by commentators as “entirely consistent with existing law.” In a Supreme Court where a third of the members were appointed by Trump, only Clarence Thomas noted his dissent. Thomas would have permitted the Trump White House to shield its records from congressional scrutiny. Initially, Thomas’s dissent was notable but not shocking. Thomas is a staunch conservative, frequently willing to go further to advance the right-wing agenda than many or all of his colleagues on the bench. But over the last several months, new reporting has suggested that Thomas’s dissent may not have stemmed strictly from a different interpretation of the relevant law. … Beyond the immediate term, we need to prioritize putting power back in the hands of democratically accountable individuals. As Harvard law school professor Niko Bowie shared with the Presidential Commission on the Supreme Court of the United States, the “Supreme Court is an anti-democratic institution.… The Court has wielded an anti-democratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth, and status.”

Continue Reading at Teen Vogue »

Double Jeopardy: Barrett Defeats Gorsuch on Tribal Law

June 14, 2022

An article by Noah Feldman: In a noteworthy 6-3 decision written by Justice Amy Coney Barrett, the Supreme Court has allowed the federal government to retry and reconvict a member of an Indian tribe who was previously tried and convicted in a special federal administrative court for Native Americans. Justice Neil Gorsuch wrote a stinging dissent calling this a clear violation of double jeopardy. The dissent solidifies Gorsuch’s role as the court’s staunchest defender of tribal sovereignty, one willing to call out historical injustices against American Indians. At the same time, the 6-3 result hints that an important 2020 decision on tribal sovereignty written by Gorsuch, McGirt v. Oklahoma, might be one of the only times Gorsuch gets a majority for his views on the issue.

Continue Reading at Bloomberg Opinion »

The Supreme Court Has a Nasty Surprise in Store for Business

June 9, 2022

An op-ed by Noah Feldman: Everyone can agree that overturning Roe v. Wade will have major consequences for individual women in the US. Less obvious is the impact on American corporations that will emerge from the Supreme Court’s expected simultaneous reversal of Planned Parenthood v. Casey — the 1992 decision that emphasized the value of upholding precedent and avoiding social upheaval to justify keeping Roe in place. By overturning Casey, the court will send a clear message to state legislators that it is open season for them to pass blatantly unconstitutional laws in the hopes that the justices might reverse more precedents. Legislatures can be expected to pass laws barring companies from paying for out-of-state abortions, for example, and reversing well-established rights like gay marriage and even access to some forms of contraception.

Continue Reading at Bloomberg Opinion »

The Supreme Court Is Not Supposed to Have This Much Power

June 8, 2022

An article co-written by Nikolas Bowie and Daphna Renan: It’s June again—that time of year when Americans wake up each morning and wait for the Supreme Court to resolve our deepest political disagreements. To decide what the Constitution says about our bodily autonomy, our power to avert climate change, and our ability to protect children from guns, the nation turns not to members of Congress—elected by us—but to five oracles in robes. This annual observance of judicial supremacy—the idea that the Supreme Court has the final say about what our Constitution allows—is an odd affliction for a nation that will close the month ready to celebrate our independence from an unelected monarch. From one perspective, our acceptance of this supremacy reflects a sense that our political system is simply too broken to address the most urgent questions that we confront. But it would be a mistake to see judicial supremacy as a mere symptom of our politics and not a cause.

Continue Reading at The Atlantic »