An article by Daphna Renan: The Supreme Court ended this term with two blockbuster decisions on the presidency and the separation of powers. Trump v. Mazars and Trump v. Vance both concern similar subpoenas, issued by congressional committees and the New York district attorney’s office, respectively, for information about the finances of Donald J. Trump, the individual (as well as his children and affiliated businesses). Of course, although these subpoenas concern personal finances and private business dealings, they pertain to the person who today serves as the nation’s chief executive. The opinions reveal a Supreme Court grappling with the implications of the president’s “two bodies”—the inseparable duality of the individual president and the institutional presidency. The president is both a human being, with human failings, and an institution co-equal with Congress and the Supreme Court. In an article, published this week in the Columbia Law Review, I argue that this duality is the defining ambiguity of the constitutional office of the president. Seemingly disparate debates on topics ranging from presidential impeachment, to litigation settlements involving the executive branch, to the legal status of presidential tweets, to the remedies available for presidential misconduct reflect this long-standing, ongoing ambivalence about the nature of the presidential office. The two-bodies prism can elucidate the controversy at the crux of the subpoena cases: Mazars is rooted in the principle that the two bodies are inextricable, their boundaries difficult to define. Vance cautions, however, that public law must not entirely collapse them. In this sense, the duality provides a normative justification for both opinions.
A podcast by Noah Feldman: Jennifer Bradley, the Founding Director of the Center for Urban Innovation at the Aspen Institute, discusses how the coronavirus has changed cities, in some ways for the better. Plus, in his Playback column, Noah gives his take on the Supreme Court’s decision on Trump’s tax records.
An article by Noah Feldman: The U.S. Supreme Court term that ended last week was a blockbuster, with landmark decisions on abortion, LGBTQ rights, presidential power, immigration, religious liberty and American Indian law. No term in almost two decades comes close to having issued so many crucial decisions —with long-term consequences for millions of Americans. The drama of the term was enhanced by what you might think of as coming-out events for two justices: chosen transformations that change the way each presents to the world. Chief Justice John Roberts revealed himself to be (or to have become) a genuine, judicial restraint Burkean conservative who is prepared to uphold liberal precedents and to keep the Trump administration subordinate to the rule of law. He surprised liberals and horrified movement conservatives who had hoped he would lead or at least participate in sweeping away liberal precedents they hate. And Justice Neil Gorsuch revealed himself as so highly principled in his commitment to textualist statutory interpretation that he will carry its logic to conclusions that liberals love and conservatives hate. His bid to become the intellectual leader of the conservative wing of the court is going to have a different character than court watchers like me had anticipated. Together, these coming-out events should remind us that the justices aren’t robots, driven by partisan or ideological agendas. They are complex human beings, whose decisions are shaped by jurisprudence, values, beliefs, ideas, emotions and strategies. That’s why they have the capacity to surprise us. Roberts is now the most influential chief justice since the great John Marshall, who held the job from 1801 to 1835.
The Supreme Court under Chief Justice John Roberts in the term that ended Thursday demonstrated a willingness to buck conservative expectations and a preference for shifting the law by increments rather than sweeping pronouncements. The institutional independence of the Roberts-led court struck notes of stability and caution against a landscape of hyper-partisanship, and tempered conservative notions that President Trump’s nominations had created a fortress on the court…The conservative-majority court delivered wins and losses to both liberals and conservatives alike, though largely without issuing maximalist rulings in either direction. Court watchers attributed this to Roberts’s stewardship…What was perhaps more remarkable than Roberts’s vote in the cases was the decision by Trump’s two nominees, Justices Neil Gorsuch and Brett Kavanaugh, to join Roberts and the court’s liberal wing to form a 7-2 majority and validate a grand jury subpoena for Trump’s tax returns. Roberts was likely heartened that his fellow conservatives’ votes allowed the court to avoid issuing the landmark rulings along ideological lines, which would have given the impression of an unduly politicized outcome. But the votes by Gorsuch and Kavanaugh were also likely to deepen the president’s sense of defeat, as the justices’ hard-won confirmation battles raised expectations that a solid right-wing majority would control the court for the foreseeable future…While conservatives did notch clear victories in the realm of religion and the administrative state, many analysts believe Roberts’ restrained approach was the reason they did not claim more wins or achieve a more wide-reaching impact. “Obviously, there was some degree of tempering conservatism in outcomes,” said Mark Tushnet, a professor at Harvard Law School.
The Supreme Court closed a pivotal annual term last week bearing the unmistakable imprint of Chief Justice John Roberts, who embraced the role of institutionalist as he sought to keep the court above nation’s intense partisanship during a time of national upheaval. Over the course of 55 cases decided this year—involving such politically sensitive issues as access to President Trump’s financial documents, gay rights, workplace discrimination and religious exemptions from providing contraceptive coverage—the chief justice was in the majority in all but two decisions…Taken together, the court’s output reflected the overarching message Chief Justice Roberts has sought to deliver since taking the helm in 2005: The judiciary stands apart from the partisanship that consumes its coequal branches of government, Congress and the presidency. “He believes very strongly that people should not look at the court and see Republicans and Democrats, that they not see judges as mere partisans,” said Harvard law professor Richard Lazarus, a longtime friend of the chief justice. “It’s an uphill battle, both against the outside forces, and sometimes within the court itself.” Mr. Lazarus says that goal plays a part in the votes the chief justice casts. In 2016, for instance, he dissented from a 5-4 decision invalidating a Texas law imposing burdensome requirements on abortion providers. But last month, he cast the deciding vote to strike down a similar Louisiana measure, writing that he felt bound to follow the precedent despite his disagreement…When possible, Chief Justice Roberts “doesn’t want 5-to-4. He wants to see 6-to-3 or 7-to-2,” said Mr. Lazarus, whose own recent book on the court is titled “The Rule of Five.”
Two United States Supreme Court decisions delivered on Thursday a legal path for the eventual release of President Donald Trump’s financial records. Whether the information, which could be damaging for the president, will come out before November’s presidential election is unclear, lawyers and politicians said. “These two opinions are very dark clouds for the president,” said Gene Rossi, a former federal prosecutor now in private practice in Washington, DC. “The opinions reject the argument that he has this global immunity from prosecution or service of process,” Rossi told Al Jazeera. In a pair of 7-2 decisions, the Supreme Court ruled that a New York state grand jury could get Trump’s financial records and sent back to a lower court enforcement of a subpoena by Congress. Manhattan District Attorney Cyrus Vance Jr, and a House of Representatives committee had subpoenaed Trump’s accounting firm Mazars USA LLP for 10 years of his financial records. Trump claimed his position as president gave him broad protection of “absolute immunity” from investigation by Congress and the New York prosecutors…Those legal arguments, however, are not strong, said lawyers who have been critical of the president’s legal claims. “The idea that he can simply assert that this is harassment, that it’s politically motivated in the absence of any proof whatsoever is not going to help him very much,” said Laurence Tribe, a constitutional scholar at Harvard Law School. “The president and his people are grasping at straws to find anything they can to indicate this was not as thorough a rout as it was,” Tribe told Al Jazeera. Trump’s claims will not gain him “leverage” in the lower courts, he said.
On Thursday, the Supreme Court released decisions in two of the most highly-anticipated cases of the term, both involving President Trump’s personal financial information. We break down the rulings, and discuss the legal and political fallout with WBUR Senior News Correspondent Kimberly Atkins, and Nancy Gertner, WBUR Legal Analyst, retired federal judge and senior lecturer at Harvard Law School.
In a pair of historic rulings, the U.S. Supreme Court has rejected President Trump’s claim of absolute immunity under the law. The vote was 7 to 2 in two decisions Thursday involving grand jury and congressional subpoenas for Trump’s pre-presidential financial records. Chief Justice John Roberts wrote the court’s two decisions, declaring, “In our system, the public has a right to every man’s evidence,” and “since the founding of the Republic, every man has included the President of the United States.” Roberts was joined in the two cases by the court’s four liberals, plus the two justices appointed by President Trump, Neil Gorsuch and Brett Kavanaugh. In the grand jury case, however, the two agreed only on the bottom line; they wrote separately to say they would have made it more difficult for the grand jury to subpoena the president’s financial records…Harvard Law Professor Noah Feldman had a somewhat different take, noting that the Court, for the first time had ruled in a case that pits presidential and congressional powers against each other. “In that sense, the court has made itself more powerful relative to Congress,” Feldman said. “On the other hand, before, when congress pressed, and the president absolutely refused to participate, there was nowhere to get a third party to adjudicate. Now there is.”
An article by Cass Sunstein: In the last 15 years, the U.S. Supreme Court has had three swing justices, those most likely to deliver the decisive vote when the other eight are deadlocked. They are Sandra Day O’Connor, Anthony Kennedy and (now) John Roberts. They’re very different from one another, and there’s never been one quite like Roberts. A swing justice has outsized influence. Whether the issue before the court involves voting rights, free speech, presidential power or abortion, the swing justice is the person to whom lawyers most direct their attention. O’Connor, Kennedy and Roberts are hardly the only swing justices in the nation’s history. In the second half of the 20th century, other examples include Potter Stewart, Byron White, Lewis Powell Jr. and John Paul Stevens. While it is reasonable to say that swing justices are “in the middle,” it’s too simple to describe them as “moderates.” Swing justices have embraced dramatically different approaches to constitutional law. O’Connor, who joined the court in 1981, was a judicial minimalist. She attended carefully to the facts of particular disputes. She distrusted abstract theories about freedom and equality, and she liked to avoid sweeping rulings. With respect to free speech, for example, she favored narrow, case-by-case judgments, which would not reorient constitutional law in major ways. Because of her attention to detail and her openness to competing points of view, she often cast the decisive vote in important cases. She spoke quietly, but carried a big stick.
An article by Noah Feldman: The Supreme Court issued two landmark decisions today on President Donald Trump’s financial records. The first, Trump v. Vance, related only to a New York state criminal subpoena; the second, Trump v. Mazars, related to congressional subpoenas of Trump’s tax returns. In Vance, the court ruled that Trump’s financial records may be subpoenaed by the New York district attorney’s office as part of a criminal investigation. It’s a devastating blow for the president. But Mazars was a tactical win for Trump, insofar as it likely means the courts cannot reach a final ruling on the issue in time for the November 2020 election. The Mazars decision is the more nuanced ruling, and we’ll get to that. But let’s start with the Vance case, which elicited a rather extraordinary opinion from Chief Justice John Roberts. Trump v. Vance: Roberts, joined by the court’s four liberals, wrote the majority opinion, which relied on precedent to conclude that the president has no special protection against turning over his papers to a state prosecutor. This is yet another decision this term that consolidates Roberts as the only really important power on the court — and as a justice who has decided to be sure that rule of law extends to Donald Trump. The ruling started with the founding father we love to hate, Aaron Burr. Yes, the same man who was the nemesis of Alexander Hamilton, killed him in a duel, and went on to organize a conspiracy to create a new country carved out of the western part of the United States.
An article by Adrian Vermeule: The end of a Supreme Court term almost always sees one or more conservative justices vote to hand the liberal justices a narrow but important victory. In case after case, conservative swing justices appear irresistibly drawn to join the liberals. So it went this year. Chief Justice John G. Roberts Jr. defected to strike down admitting-privileges regulations for abortion providers and keep in place protection for immigrants brought to this country as children. The chief justice and Justice Neil M. Gorsuch joined their liberal colleagues to create new anti-discrimination prohibitions for sexual orientation and gender identity. This is a familiar pattern. Last term, the chief justice dealt the administration a significant loss by frustrating its plans to add a citizenship question to the census. In the longer run, a string of 10 GOP appointments of new justices since 1973, compared to a mere four Democratic appointees, has produced little progress toward the central conservative goal of overturning Roe v. Wade, thanks in part to a series of dramatic defections from supposedly solid conservatives. Why do these defections occur? One theory is that there is nothing to explain; justices simply follow their best understanding of the Constitution, and let the chips fall where they may. No doubt that is that is what the justices themselves think: that they are earnestly seeking to get the law right. But this explanation fails to account for a basic asymmetry: While conservative justices often break ranks to give liberals a 5-to-4 majority, liberal justices rarely do the same in reverse. If the legal merits cut across political divides, there should be no such persistent imbalance. Some conservatives then claim that liberal justices are, despite their protestations, systematically less principled — a suspiciously partisan view that credits the reported experience of only some justices and discounts that of others.
An article by Noah Feldman: The Little Sisters of the Poor, an order of Catholic nuns, have been fighting the contraceptive mandate of the Affordable Care Act since 2013. Today the Supreme Court gave them a victory — but not the final victory they sought, namely that they’re automatically entitled to an exemption from the ACA under the Religious Freedom Restoration Act. Nonetheless, this ruling — along with other key decisions this term — demonstrates that the conservative majority of the court has definitively entered the era of religious exemptions. If the idea of the Little Sisters before the Supreme Court rings a bell, congratulations on the acuity of your memory. After President Barack Obama signed the ACA, his Department of Health and Human Services gave an exemption to the contraceptive mandate to certain religious organizations like the Little Sisters, while still ensuring contraceptive care would reach their employees. The way the exemptions worked was essentially that an organization seeking not to pay for its employees’ contraceptive care would submit a certificate to HHS explaining that it was a nonprofit religious organization with conscientious objection to contraception. The religious entity would then provide a copy of the certificate to its health insurer — which would then itself pay for the contraceptive care, not charging the religious employer. The Little Sisters objected that even this process violated their religious liberty under RFRA. The case went all the way to the Supreme Court, where the untimely death of Justice Antonin Scalia in February 2016 robbed them of what would almost certainly have been a win. Instead, in May of 2016, the justices (who presumably were deadlocked 4-4) tried ham-fistedly to order the Obama administration and the Little Sisters to work out a solution. Neither side was prepared to compromise in a way that would satisfy the other.
An article by Noah Feldman: There’s more than meets the eye in today’s Supreme Court decision striking down a 2015 law that allows some robocalls to your mobile phone — namely, calls seeking to collect government debts. On the surface, the court straightforwardly said that if Congress bans robocalls across the board (as it did in the 1990s) it violates the First Amendment to make an exception for calls with certain content (as it did in 2015). Sensibly, the court didn’t re-allow all robocalls; it just eliminated the more recent debt collection exception. But underneath, the justices were engaged in an important, ongoing debate about how the First Amendment applies to government regulation. The court’s conservatives deepened their commitment to a rigid, formalistic view of free speech that says the government may never treat speech differently on the basis of its content. That doctrine could be used to attack the many forms of government regulation that arguably do exactly that — for example, by saying what information must or must not appear on a drug warning label. The court’s liberals responded by pointing out the looming threat to progressive regulation that may come from the conservatives’ attachment to the ban on content-based laws. Justice Stephen Breyer, in his partial dissent, made it clear that he views the conservatives as gathering their forces to stage a free-speech assault on the administrative state. The general ban on robocalls to your mobile device goes back to 1991.
The Supreme Court ruled Monday that states can remove “faithless electors,” who vote contrary to the people’s wishes, four years after 10 members of the Electoral College broke ranks. The Court unanimously ruled that states can effectively prohibit Electoral College representatives from voting for someone whom they didn’t pledge to support. The ruling came from a case in Washington state in which three electors challenged a law that allowed them to be fined for choosing how to cast their ballot…Harvard Law professor Lawrence Lessig, who is representing Chaifalo, denied it was a “good possibility” but said it was possible. “We agree that, of course, the possibility exists that you could flip electors. But look historically at the number of times that could have mattered,” Lessig said. “In fact, in the history of electors, there has been one elector out of the 23,507 votes cast who have switched parties against the majority party in a way that could have mattered.” Had all the “faithless electors” cast their ballots for Clinton, Trump still would have won the election by more than 60 Electoral College votes. However, swinging 10 electors in five previous presidential races could have changed the results, Lessig said in court papers, according to CNBC. Therefore, it was imperative that the court resolve the issue before November. In a statement to Newsweek, Lessig said that obviously his view (and that of the plaintiffs) of the Constitution differs from the Court’s, but he noted he was happy that the question was answered before it created a “constitutional crisis.” “But now that the Court has essentially removed ‘electors’ from the Constitution, it is time we think about why the Electoral College makes any sense at all anymore,” Lessig said.
An article by Laurence Tribe: There is a silver lining, or perhaps just bronze, in the way Chief Justice John G. Roberts Jr. joined the Supreme Court’s four liberal justices to strike down an absurdly burdensome and largely gratuitous abortion regulation. Although some advocates of abortion rights fear the chief justice’s approach will open the door to other restrictions on abortion, I believe that Roberts’s analysis, correctly applied, could end up being more protective of abortion rights, not less. At issue in June Medical Services v. Russo was a Louisiana law that required any doctor performing abortions to have admitting privileges at a hospital within 30 miles, a requirement that a lower court found would have resulted in only a single doctor at a single clinic being allowed to perform abortions in the state. Roberts did not approach the case, as his liberal colleagues did, by “balancing” the obstacle that regulation placed in women’s paths against the purported health benefits of the regulation. Such balancing was the approach taken by the court in Whole Woman’s Health v. Hellerstedt in 2016, which struck down a Texas law virtually identical to the Louisiana statute — a ruling from which Roberts dissented. In voting to strike down the Louisiana law, notwithstanding his dissent in the Texas case, Roberts emphasized the importance of precedent. And he said that the correct way to analyze abortion restrictions was the precedent established in 1992 by Planned Parenthood v. Casey, a bright-line test in which the court focused solely on whether the regulation at issue imposed an “undue burden” on a woman’s right to choose.
The Supreme Court issued two momentous opinions last week – but the press coverage only appreciated one of them. A phenomenal panel – Dahlia Lithwick, Ron Klain, and Larry Tribe – joins Harry to break down the Court’s abortion decision in June Medical and its executive power decision in Seila Law. They end with practical reflections on Chief Justice Roberts’s position as the most powerful Justice in a century. And a sidebar of 10 of Tribe’s most famous students toast the master’s retirement.
An article by Aditi Shah ’20: On June 25, the Supreme Court ruled 7-2 that Vijayakumar Thuraissigiam, an asylum-seeker, does not have a constitutional right to habeas corpus review in federal court of his claims that the government violated his constitutional, statutory and regulatory rights in issuing an order for his expedited removal. The decision carries important consequences for noncitizens seeking to ensure the government complies with statutory immigration law and regulations, for the meaning of the habeas writ at large and for the judiciary’s role in holding the executive accountable. In a sweeping opinion, Justice Samuel Alito, joined by four other justices, decided that the limitations on habeas review in 8 U.S.C. § 1252(e)(2) of the Immigration and Nationality Act do not violate the Suspension Clause in Article I of the Constitution or the Due Process Clause of the Fifth Amendment. Specifically, Alito concluded Thuraissigiam lacked a constitutional right to habeas review because he did not request release from detention—the act at the historical core of the habeas writ—and because as an immigrant seeking initial admission, Thuraissigiam’s due process rights are limited to the rights provided by statute, not by the Constitution. Justice Sonia Sotomayor, joined by Justice Elena Kagan, penned a dissenting opinion opposing Alito’s framing of Thuraissigiam’s claims. Sotomayor and Kagan instead interpreted the case law to support Thuraissigiam’s rights under the Suspension Clause and the Due Process Clause to habeas review. In a concurring opinion, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, agreed with the outcome but attempted to cabin the decision’s reach and justify it on narrower grounds.
The 538 people who cast the actual votes for president in December as part of the Electoral College are not free agents and must vote as the laws of their states direct, the U.S. Supreme Court ruled Monday. The unanimous decision in the “faithless elector” case was a defeat for advocates of changing the Electoral College, who hoped a win would force a shift in the method of electing presidents toward a nationwide popular vote. But it was a win for state election officials who feared that empowering rogue electors would cause chaos…Harvard Law Professor Larry Lessig, who advocates Electoral College reform, told the court that nothing in the Constitution gives states any authority to restrict how an elector can vote, because they act in a federal role when meeting as the Electoral College. Instead of voting for Hillary Clinton, who won the popular vote in Colorado, Micheal Baca cast his vote for John Kasich, the former Republican governor of Ohio. And in Washington state, where Clinton also won the popular vote, three of the state’s 12 electors voted for Colin Powell, the former secretary of state. The Supreme Court ruled in 1952 that states do not violate the Constitution when they require electors to pledge that they will abide by the results of the popular vote. But the justices had never before said whether it is constitutional to enforce those pledges. Lessig said he hoped the controversy would encourage more states to adopt a system in which they would assign all of their electors to the candidate who wins the nationwide popular vote for president.
An article by Noah Feldman: The John Roberts show continued today at the Supreme Court. The chief justice cast the deciding vote to overturn a decision by the Montana Supreme Court that barred a state scholarship program from funding education at religious schools. In effect, the decision says that if a state has a program that provides scholarship funding for schools, it has to make those scholarships available to religious institutions — even when the state constitution has a provision barring aid to religion. The conservative ruling followed others in previous years by Roberts. Like those that came before, it took yet another brick out of the wall separating church and state. In the foreseeable future, there may be no wall left at all. The context for today’s decision, Espinoza v. Montana Department of Revenue, goes all the way back to the 19th century and the earliest days of the public school movement. From the start, public schools in the U.S. were labeled as “non-denominational” or “non-sectarian.” As Catholic immigrants began to arrive in large numbers, some of them pointed out that the public schools were effectively Protestant, often featuring Bible readings from the King James version of the Bible and recitation of the Protestant version of the Lord’s Prayer. Catholics sought state funding for their own schools, or, barring that, the elimination of what they saw as distinctively Protestant practices. The response of America’s Protestant majority was essentially to tell Catholics, “No way.” In the run-up to the 1876 election, the Republican Party introduced a federal constitutional amendment that would have gone so far as to bar states from providing any funding to “sectarian” institutions, which meant Catholic ones. There was lots of anti-Catholic rhetoric in the public discussions of the proposed amendment, including on the floor of the U.S. Senate.
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.
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.
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.
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.
Every Supreme Court decision seems to confirm Chief Justice John G. Roberts Jr.’s pivotal role at the center of the court, and Monday’s ruling on abortion showed that restrictions on a woman’s right to the procedure for now will go only as far as the chief justice allows. In a remarkable stretch of decisions over the past two weeks, Roberts has dismayed conservatives and the Trump administration by finding that federal anti-discrimination law protects gay, bisexual and transgender workers and stopping the president from ending the federal program that protects undocumented immigrants brought here as children…Roberts’s admirers speculate he was turned off by the attempt to have the court’s 2016 decision overturned because the court’s membership had changed with Trump’s two appointments. Too soon, said Richard Lazarus, a Harvard law professor who has known Roberts since law school days and who has taught summer courses with the chief justice. “The chief’s clear message is that is not how justices do their work,” Lazarus said in an email. “It is a shot across the bow at presidential candidates who campaign with lists of nominees based on the assumption that, if confirmed, they will of course necessarily vote based on the preferences of the majority who supported that candidate.”
The Supreme Court on Monday ruled on a major abortion case to start the week. The court struck down a Louisiana law that required doctors performing abortions have admitting privileges to nearby hospitals — the effects of which could have left the state with a single abortion clinic. We discuss with Nancy Gertner, retired federal judge, senior lecturer at Harvard Law School, and WBUR’s legal analyst.
Each year, the United States deports over 100,000 noncitizens through “expedited removal,” a fast-tracked deportation process. In creating the system, Congress intentionally limited procedural protections for certain immigrants, allowing judges reviewing these removal orders to consider only three narrow questions: whether the immigrant is a noncitizen, has been ordered removed, or is a lawful permanent resident, refugee or asylum seeker. Vijayakumar Thuraissigiam, a Sri Lankan national who sought asylum in the United States, challenged that limit, arguing that it was an unconstitutional barrier to habeas corpus, a right that allows a judge to review whether someone is legally detained. On Thursday, the Supreme Court disagreed, issuing a sweeping ruling in Department of Homeland Security v. Thuraissigiam…Boumediene found that the Constitution guarantees habeas corpus rights even to detainees the Bush administration held as “enemy combatants.” That was true even though the detainees weren’t citizens. In fact, as legal scholar Gerald Neuman put it, Boumediene “confirmed and held that the Suspension Clause constitutionally guarantees habeas corpus to noncitizens” (emphasis original). The Thuraissigiam majority opinion, however, characterizes Boumediene as “forming ‘no certain conclusions’ ” on whether habeas rights extend to “alien[s] who lack … any allegiance to the country.”
An article by Noah Feldman: Chief Justice John Roberts has drawn his line in the sand. In what may well come to be his most famous opinion ever, a solo concurrence in today’s Louisiana abortion case, Roberts voted to uphold Casey v. Planned Parenthood, the 1992 decision in which Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter declined to overturn Roe v. Wade. The basis was stare decisis — the doctrine of precedent which, he said, instructs us “to treat like cases alike” rather than changing the rules and reversing course. Roberts made it clear that he reads the Casey decision very narrowly, to allow restrictions on abortion that don’t impose an “undue burden” on reproductive freedom. He signaled that he is still open to upholding laws that chip away at the existing abortion rights framework, which has been his approach in the past. Roberts hasn’t had some transformative epiphany that made him into a staunch defender of abortion rights. But crucially, Roberts also made it as clear as he could that, so long as he is the swing vote on the court, he isn’t open to overturning Roe or Casey. He doesn’t want the Roberts Court to be remembered as a reactionary body that reversed nearly 50 years of settled law on abortion rights. This is a massive setback for legal conservatives. It means that to overturn Roe and Casey, they need President Donald Trump to be re-elected and to get at least one more conservative on the court to replace a liberal justice.
Could the Supreme Court’s Landmark L.G.B.T.-Rights Decision Help Lead to the Dismantling of Affirmative Action?
An article by Jeannie Suk Gersen: In 1946, William K. Wimsatt and Monroe C. Beardsley argued, in their classic essay, “The Intentional Fallacy,” that critics interpreting a literary work should cast aside pursuit of the author’s intent. “The poem belongs to the public,” they wrote, because “it is embodied in language, the peculiar possession of the public.” The New Criticism, a movement that dominated the academic study of literature in mid-century, asserted that only close analysis of the words and structure of the text—not external knowledge about the author, politics, morality, or a reader’s feelings—was the key to understanding its meaning. Salvatore Eugene Scalia, a professor of Italian literature at Brooklyn College, was an adherent of this theory. He also advocated for “literalness” in reading and translation, to avoid “yielding to the temptation” to follow one’s own language’s conventions in interpreting the words of the text. The New Criticism fell from prominence in the nineteen-eighties, but its impact became discernible in another field, through Professor Scalia’s only child, who was appointed to the Supreme Court in 1986, the same year that the elder Scalia died. Justice Antonin Scalia became the country’s most important expositor of textualism, the influential method of legal interpretation wherein “the text is the law, and it is the text that must be observed,” regardless of what lawmakers may have intended in passing the law. Since the nineteen-eighties, textualism has been favored by legal conservatives—but, in more recent decades, its focus on the words of a text has become influential with liberal judges, too. Last Monday, under the shadow of Antonin Scalia, who died in 2016, the current conservative Justices aired their strife over his textualist legacy in Bostock v. Clayton County, a landmark gay-and-transgender-rights case.
An article by Noah Feldman: In a sweeping decision with worrying implications for all immigrants, the Supreme Court has held that asylum-seekers rejected by immigration officials under an expedited system do not have the right to go to court to challenge their exclusion from the U.S. The majority opinion, by stalwart conservative Justice Samuel Alito, relied on originalist historical analysis to whittle down the meaning of habeas corpus to its most minimal protections. Along the way, Alito minimized and arguably misrepresented the most famous antislavery judicial decision of all time: Somerset v. Stewart, a 1772 case in which the greatest English common law judge of the era held that an enslaved Jamaican could not be forced to return to the West Indies but must be allowed to live freely in England. The specific law at issue in today’s case, Department of Homeland Security v. Thuraissigiam, is a provision of the wordily named Illegal Immigration Reform and Immigrant Responsibility act, known as IIRIRA. The law says that when a person enters the U.S., is detained at or near the border and seeks asylum, an immigration officer can interview the person and make a decision about whether the asylum-seeker has a “credible fear” of persecution that would qualify for asylum. If the answer is yes, the asylum-seeker gets a full hearing. If the answer is no, then the seeker’s case is reviewed by a supervisor and, if the asylum-seeker asks for it, by an immigration judge. This process is known as expedited review — and under the federal law, there is no way for the asylum-seeker to go to a regular federal court and seek review of the decision.
The Supreme Court has extended a life-support line to some 650,000 so-called “Dreamers” on Thursday, allowing them to remain safe from deportation. … TOTENBERG: At the end of the day, of course, the man of the hour is Chief Justice Roberts. Amid a politicized and polarized society, he repeatedly tries to portray the court as apolitical. He sees the growth of organizations on the hard right, like the Judicial Crisis Network, and on the hard left, like Demand Justice, each trying to stack the court with like-minded justices or to pack the court by expanding the number of justices. Harvard law professor Richard Lazarus has known the chief justice for decades. RICHARD LAZARUS: What these decisions this week underscore is we have a chief justice who is, plainly, working hard to try to demonstrate to the American people that the court, unlike the other two branches, is doing its job. He wants the American people to believe there’s a thing called law, and a justice’s job is to apply it.
An op-ed by Cass Sunstein: The Supreme Court’s decision to strike down the Trump administration’s attempted rescission of the program known as Deferred Action for Childhood Arrivals is, above all, a tribute to the rule of law. It vindicates a defining idea in administrative law and a central check on the administrative state: Agencies must not behave arbitrarily. … The most important words in Chief Justice John Roberts’s opinion for the 5-4 majority are that “particularly when so much is at stake,” the U.S. “Government should turn square corners in dealing with the people.” The court’s conclusion was that the Trump administration failed to engage in reasoned decision-making. It did not turn square corners.
An op-ed by Noah Feldman: Chief Justice John Roberts has come to liberals’ rescue again, this time providing the decisive fifth Supreme Court vote to strike down the Trump administration’s rescission of DACA, the Deferred Action for Childhood Arrivals program. It’s morally uplifting that dreamers now won’t have to live under threat of deportation; and it’s unlikely that President Donald Trump will be able to rescind DACA, with new justifications, before he leaves office. But don’t think that Roberts was motivated by any liberal sympathy for dreamers. The best explanation for his ruling is that Roberts is fed up with Donald Trump’s disrespect for the rule of law. Now he’s standing up for the role of the judicial branch of government in checking careless, lawless action by the executive.
In a major setback for President Trump, the US Supreme Court blocked the administration’s attempt to end a federal program that protects 700,000 immigrants nationwide and more than 5,600 in Massachusetts from being deported. …“Given the tough questions asked at oral argument, it wasn’t at all clear which way the court would come out,” said Sabrineh Ardalan, director of the Harvard Immigration and Refugee Clinical program, which provides legal help to immigrants. “This is such a critically important victory and recognition that the Trump administration’s efforts to end DACA were unlawful.”
An op-ed by Lecturer on Law Alex Chen ’15: Since the start of the modern LGBT movement in the 1960s, some members of the community have questioned the degree of common interest between lesbian, gay, and bisexual people on the one hand and transgender people on the other. Notwithstanding similar experiences of discrimination and a shared history of activism, members of both communities have sometimes viewed one another with mutual suspicion. LGB people, protective of hard-won legal, political, and societal victories, have worried that association with an even more unfamiliar and stigmatized minority group would imperil those advances. Trans people, weary of advocates prioritizing gay rights over trans rights, have worried that LGB people might achieve greater equality and then abandon the field without extending a hand to transgender people. But the Supreme Court’s landmark decision on Monday in Bostock v. Clayton County provides the strongest possible counterargument that when LGBT people band together to press for rights for the entire community, they can achieve momentous victories that would not have been possible working on their own.
In yet another blow to the right’s extreme and mean-spirited agenda, the Supreme Court on Thursday held that President Trump had not lawfully pulled the plug on President Barack Obama’s executive order instituting the Deferred Action for Childhood Arrivals program. …Constitutional scholar Laurence Tribe told me, “This was an important victory not just for the Dreamers, who now become a campaign issue in light of the limbo in which their status was left by the Court’s 5-4 decision, but for the rule of law.” He explained, “The majority’s refusal to accept the administration’s post-hoc rationalization for DACA’s rescission — a rationalization that, as the Chief Justice’s opinion made clear, failed to explain, let alone justify, invalidating the forbearance part of the DACA policy and addressed only the benefits part — was an important vindication for the principle that agency decisions that are arbitrary and capricious when issued cannot be rescued by some after-the-fact suggestions of alternative grounds on which the decisions might have been reached.”
A landmark Supreme Court decision this week that affirmed protections for lesbian, gay, bisexual and transgender employees in the workplace could provide powerful ammunition for climate litigators. In a 6-3 opinion Monday, Justice Neil Gorsuch wrote that Title VII of the Civil Rights Act protects “all persons” from discrimination based on sex, including sexual orientation and gender identity. Employees, the court found, can therefore not be fired from their jobs simply for being gay or transgender. The case, Bostock v. Clayton County, Ga., could serve as key precedent for lawyers pushing for more stringent regulation of greenhouse gases under the Clean Air Act…Gorsuch’s decision in Bostock follows a similar logic path to the opinion in the watershed climate case Massachusetts v. EPA, said Joe Goffman, executive director of Harvard University’s environmental law program. In the 2004 case, the Supreme Court acknowledged that Congress crafted the Clean Air Act with “unknown unknowns” in mind and said that the plain text of the statute left room for EPA to make decisions, such as whether to regulate greenhouse gas emissions as air pollutants, based on new scientific understanding. Something similar happened in Gorsuch’s reading of the Civil Rights Act, said Goffman, a former EPA official. “The language of the statute was crafted in a way so that it could accommodate situations that were not necessarily anticipated by Congress at the time the language was crafted, but which the statue could still cover as, in this case, society’s understanding of the issue evolved,” Goffman said.
Victor Madrigal-Borloz, UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, called the ruling a “very significant step towards breaking the cycle of discrimination that often condemns lesbian, gay, bisexual, trans and gender-diverse persons to social exclusion, and ultimately, to poverty.” The ruling clarifies that Title VII of the United States Civil Rights Act of 1964 – which bans discrimination based on sex – is applicable to sexual orientation and gender identity…In most UN Member States, national laws do not provide adequate protection from employment-related discrimination on grounds of sexual orientation and gender identity, Mr. Madrigal-Borloz said. In the absence of such laws, employers may fire or refuse to hire or promote people, simply because they are – or thought to be – gay, lesbian, bisexual, trans or gender-diverse… “The judgement will have an extremely positive impact in addressing stigma, promoting sociocultural and economic inclusion, and furthering legal recognition of gender identity – all of which have been identified by my mandate as fundamental to address the root causes of violence and discrimination,” Madrigal-Borloz said. The case also illustrates the vital role that victims can play in furthering justice. “It is sad to note that two of the victims in these cases did not live to see the outcome of their struggle, but uplifting to know that their resolve, their resilience and their determination will now benefit millions of LGBT persons,” he added. Victor Madrigal-Borloz (Costa Rica) assumed the role of UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity on 1 January 2018, for a three-year term. He is a senior visiting researcher at the Harvard Law School Human Rights Programme.
An article by Cass Sunstein: Does the Supreme Court’s decision in Bostock v. Clayton County, Georgia, forbidding employment discrimination on the basis of sexual orientation, also spell the end to affirmative action? That may sound like a crazy question. But Justice Neil Gorsuch’s opinion, emphasizing the need to follow the “original public meaning” of legal texts, gives a real boost to opponents of affirmative action. In fact, a passage in that opinion seems as if it was explicitly meant to provide that boost. Here’s the background. The key provision of Title VII of the Civil Rights Act of 1964 makes it: “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” That provision was the governing text in Bostock. It is also the foundation for legal challenges to racial preferences in employment, even if they take the form of voluntary affirmative-action programs. According to those who challenge racial preferences, discrimination is discrimination — period.
Harvard faculty members in law and gender issues declared Monday’s Supreme Court ruling protecting gay and transgender workers a landmark for LGBT rights… “It’s based in textual reasoning and rather persuasive in those terms,” said Gerald Neuman, co-director of the Human Rights Program at HLS. “It is written in a way that may be more persuasive to members of the public. The people who are in favor of this kind of discrimination, who are vehemently opposed to this interpretation — I don’t think it will be persuasive to them. But people who might say, ‘I’m not in favor of this kind of discrimination, but I don’t think that the law itself addresses it’ … could be persuaded.” … In a series of tweets, HLS Professor Laurence Tribe also praised Gorsuch’s work. “Today’s 6-3 triumph for the rights of homosexual and transgender people is a victory for justice and for reading laws as they were written rather than as some assumed or intended them to operate,” he wrote. “Justice Gorsuch conducted a master class in interpreting legal texts when he patiently explained why the unexpressed intentions of a law’s authors or the conversational conventions of its users cannot be permitted to trump its unambiguous meaning…Of course progressives don’t always welcome textual analyses and might worry that this Gorsuch majority will complicate their lives in other contexts. To be sure, this remains a very conservative Court. But I say: Be glad for just outcomes when they come your way.”
A podcast by Noah Feldman: William Eskridge, a professor at Yale Law School and author of the forthcoming book “Marriage Equality: From Outlaws to In-Laws,” discusses this week’s historic Supreme Court ruling that protects gay and transgender rights in the workplace.
In a landmark ruling Monday, the Supreme Court said the worker language of the Civil Rights Act of 1964 also protects LGBTQ Americans from discrimination. We dig into this ruling and what it means for workers and employers with WBUR senior news correspondent Kimberly Atkins and retired federal judge Nancy Gertner. We also touch on other news from SCOTUS today, as well as cases still pending.
The margin of the ruling and the author of the opinion were as stunning as the result. On Monday, Justice Neil M. Gorsuch wrote in a 6-3 ruling (joined by Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen G. Breyer) that the ban on sex-based discrimination in Title VII of the 1964 Civil Rights Act protects employees from discrimination based on sexual orientation or gender identity…The decision quite closely adheres to an amicus brief filed by constitutional scholars Laurence Tribe and Joshua Matz submitted on behalf of several former solicitors general, including Ted Olson and Seth Waxman, and former acting solicitors general Walter Dellinger and Neal Katyal. Tribe tells me that “the decision is a rare shining moment in the midst of all too much darkness,” pointing out the concrete impact on millions of Americans and marking “the first victory ever for transgender rights at the Supreme Court — as well as the first clear recognition that discriminating against individuals because of their sexual orientation constitutes sex discrimination pure and simple even if those who wrote the relevant statutes might not have anticipated that reading.” There are several main takeaways. First, Gorsuch’s opinion should remind Republicans that a true textualist who gives an honest reading of a statute or the provision of the Constitution at hand is not simply a vessel for evangelical Christians and other right-wingers to impose their views on a pluralistic society. As Tribe puts it, the decision shows that “applying legal texts in accord with their meaning can sometimes triumph over efforts to read the minds of the authors and that at least some Justices, including Justice Gorsuch, are consistent in their textualism even if others, including it seems Justices [Brett M.] Kavanaugh and [Samuel A.] Alito [Jr.] and [Clarence] Thomas, are not.”
An article by Noah Feldman: In one of its most important decisions in years, the Supreme Court has interpreted federal anti-discrimination law to prohibit discrimination on the basis of sexual orientation or transgender status. In a surprise to most observers, the decision was 6 to 3, and written by Justice Neil Gorsuch, one of Donald Trump’s appointees. The decision marks Gorsuch’s most significant move thus far to take on the mantle of the late Justice Antonin Scalia as the intellectual leader of the conservative wing of the court. That may sound strange and counter-intuitive: After all, Scalia harshly opposed landmark decisions expanding gay rights, and it’s difficult to imagine him having joined the Gorsuch opinion. And indeed, Justice Samuel Alito explicitly made Scalia the linchpin of his dissent, insisting (not implausibly) that Scalia could not possibly have been on board with a decision like this one. “The court’s opinion is like a pirate ship,” Alito memorably wrote. “It sails under [Scalia’s] flag, but what it actually represents is a theory of statutory interpretation that Scalia excoriated.” Gorsuch’s ploy might well work. Conservatives may be briefly frustrated by the outcome of this case. But it is liberals — mostly liberal law professors — who make or break judicial reputations. And liberal legal scholars, who have not liked Gorsuch much thus far, are now going to have to hold him up as a model of judicial honesty. He has applied his method to produce a result against his presumed political preferences. That makes him a hero of legal principle, at least for the moment.
Atlantic Richfield Co. might be off the hook for added cleanup liability at a Montana site after the Supreme Court on Monday partially resolved a high-stakes Superfund case in the oil company’s favor—but the door is still open for similar claims in other cases. All eyes are now on the Environmental Protection Agency and Montana courts, as they decide what happens next. At issue in the case is an effort by Montana landowners who wanted Atlantic Richfield to pay for additional cleanup work in their backyards. The justices’ 7-2 opinion says the landowners can’t pursue those claims without the EPA’s blessing…But the decision also sidesteps the company’s broader argument that federal Superfund law preempts the types of claims the landowners brought…It’s a mixed result, Harvard Law School professor Richard J. Lazarus said, because the decision “keeps alive the potential for suits under state law in state courts related to Superfund cleanups in future cases,” but with the “major catch” that challengers must first get the EPA’s approval.