Noah Feldman is the Felix Frankfurter Professor at Harvard Law School, a columnist for Bloomberg Opinion, and host of the podcast Deep Background. His most recent book is The Arab Winter: A Tragedy.
 (July 2020)


Why Precedent Won’t Protect ‘Roe’

Anti-abortion demonstrators on the first day of the Supreme Court’s new session, Washington, D.C., October 2019
At the Supreme Court, precedent is the topic of the day. The reason isn’t obscure. With the retirement of Justice Anthony Kennedy two years ago, the prospect of the Court overturning the 1973 Roe v. Wade decision is imminent in a way it has not been since 1992, when Kennedy …

Is Trump Above the Law?

If Trump’s abuse of office for personal gain is the epitome of the conduct feared by the framers, his outright refusal to cooperate in any way with the House impeachment inquiry would almost certainly have taken them by surprise. Nothing in the debates at the Constitutional Convention or the ratifying conventions that followed suggests that the framers even began to imagine an executive who would purport to deny the House its power to impeach him.

Trump and the Meaning of Impeachment: My Testimony Before Congress

The framers provided for impeachment of the president because they wanted the president, unlike the king, to be controlled by law, and because they feared that a president might abuse the power of his office to gain personal advantage, corrupt the electoral process, and keep himself in office. “High crimes and misdemeanors” are abuses of power and public trust connected to the office of the presidency. On the basis of the testimony presented to the House Intelligence Committee, President Trump has committed impeachable high crimes and misdemeanors by corruptly abusing the office of the presidency.

Justifying Diversity

Protesters at a demonstration against Harvard University’s admissions process, Copley Square, Boston, October 2018
No one working in or around a US university can think of assembling a class, a set of interviewees for a job, a special issue of a journal, or a scholarly panel without making sure it is suitably “diverse.” Not only admissions officers but students, faculty, and administrators share a commitment to diversity. Even some conservatives have appropriated the concept, calling for ideological diversity at universities to ensure that their own voices are heard. Yet in the courts, diversity is being subjected to a withering attack, one that most informed observers expect to be fatal now that Justice Anthony Kennedy has been replaced by Justice Brett Kavanaugh.

Tipping the Scales

If Donald Trump’s nominee to replace Justice Anthony Kennedy is confirmed by the Senate, the Supreme Court will have a stable majority of conservative justices for the first time since before the New Deal. It is not too soon to start asking what a conservative Court would mean for the country. A conservative jurisprudence, aggressively applied, would reshape American law and politics. It would reinterpret fundamental issues of individual and privacy rights, health care, employment, national security, and the environment. These changes would in turn affect electoral politics. The range of conservative legislation that could survive judicial review would expand, while the range of progressive legislation that could do so would narrow.

Crooked Trump?

Michael Cohen

The investigation of Michael Cohen, a lawyer and sometime fixer for Donald Trump, marks the start of a new phase in the unraveling of Trump’s presidency. Until now, the only Justice Department investigation of Trump has been conducted by special counsel Robert Mueller. Mueller’s appointment letter authorizes him to investigate Russian interference in the 2016 election and crimes arising from it. Any wrongdoing that is not connected to this interference arguably falls outside Mueller’s scope. In contrast, the Cohen investigation is taking place not under Mueller, but under the authority of the US attorney for the Southern District of New York. The Southern District is not restricted by any appointment letter, and its career attorneys have a mandate to uncover any criminal activity within their jurisdiction, whenever it may have occurred and for whatever purpose.