Friday, February 19, 2016

Why You Should be Reading Noah Feldman

Sometimes silly arguments arise over the foremost public intellectual of our time. While meaningless, these debates can be fun. Paul Krugman's name certainly has popped up many a time for good reason; his prescient economic and political analysis has been bolstered by his Nobel Prize in Economics and his powerful perch on the New York Times' opinion page. Ta-Nehisi Coates nominated Melissa Harris-Perry and then a lot of people nominated him instead. There are strong arguments for many a candidate: Thomas Friedman, Malcolm Gladwell, Nicholas Kristof, Larry Summers, and Steven Pinker all come to mind.

I would select Noah Feldman as someone of increasing importance. In the run up to the 2016 election, several issues seem to be rising to the forefront of the country's mind. The Supreme Court, with Justice Scalia's empty seat now up for grabs, is going to remain a campaign issue until November. The coming confirmation battle and the release of a number of incredibly important decisions over the next few months will also vault the Court to the top of the headlines. Abortion rights, deferred action for immigrants, affirmative action, public-sector unions, redistricting, and the death penalty are all up in the air.

Fears of terrorism and the rise of ISIS are also increasingly on many Americans' minds. Such concerns have dramatic effect on our policies: immigration, privacy, and religious freedom could all be affected. Most importantly, terror concerns will affect our foreign policy. If, when, where, and how we intervene in the Middle East has been a defining question of the 21st century, and it will continue to be so in the coming years.

Few if any people can claim genuine expertise on both issues- except Noah Feldman. He earned D.Phil while studying the Middle East at Oxford a Rhodes Scholar, and is an acclaimed Con Law scholar . He has clerked for Justice Souter and helped draft the Iraqi Constitution. He has written books on both Islamic politics and the Supreme Court. He is an incredibly prolific columnist at Bloomberg View.

His book Scorpions, which in my mind may be the best book yet written about the Supreme Court, is a warning to both President Obama and the Senate that sometimes you don't know what you are going to get with a nominee. Justice Hugo Black was a member of the KKK before he joined the Senate. In time, he became one of the most passionate advocates for civil rights on the Supreme Court. Justice Felix Frankfurter was a leading liberal intellectual when appointed; he retired with a legacy as a moderately conservative justice. Justice Jackson advocated for expansive presidential powers as Attorney General; on the court, he wrote the most famous opinion of all time limiting executive power. Some of these changes may have been predictable, others certainly were not.

If you want to get deep analysis on the most pressing issues of the day, read Noah Feldman.

Thursday, February 18, 2016

The Legacy of Justice Scalia

A lot of ink has been spilled about Justice Scalia over the last five days. Harvard Law Professor Noah Feldman has written two interesting columns, Cass Sunstein (another Harvard bloomberger) also wrote a thoughtful and nostalgic take on the late justice, and his former law clerk and current Michigan Supreme Court Justice Joan Larsen contributed a moving op-ed in the New York Times. Irin Carmon wrote about Scalia's famed friendship with the great liberal Justice Ginsburg while Stephen Carter has lamented the lack of civility of Justice Scalia's detractors in the wake of his death. A number of other smart pieces have been written. There is only so much I can add when so many insightful obituaries have been written, but let me just pitch in a few thoughts.

1. Clarence Thomas began trending on Twitter following Scalia's death. A lot of tweets were published along the lines of "How is Thomas going to know which side to take now?"; "Who will Clarence Thomas get his homework from?"; "Who's going to adopt Clarence Thomas?" and so on. I think these tweets, quite frankly, have some disturbing racial undertones. I don't hear anyone on either side of the aisle claiming Justice Kagan is a pawn of Justice Ginsburg, even though they have parted ways fewer times over the last few years than Justice Thomas and Justice Scalia. But then she's a female Jew siding with another female Jew. Justice Thomas, not so much.

Followers of the Court know that Thomas is more conservative and more originalist than Justice Scalia ever was. This may not be a good thing- indeed I think its bad- but the notion that Clarence Thomas can't think for himself is ridiculous. Just last term, he parted with Scalia and joined the liberals on two big cases. In Walker v. Texas, he upheld a state's ability to forbid the issuing of license plates with confederate flags on them. And in Zivotofsky v. Kerry, an important but under discussed case, he determined that the executive branch has significant power over when and how to recognize other foreign nations. Justice Thomas is his own man; he may have lost a colleague and a friend but he won't be lost in the wilderness without Justice Scalia.

2. Others have pointed this out, but I think there is a big difference between the first fifteen years of Justice Scalia on the Court and the last fifteen. Justice Scalia used to be a renegade; he was a social conservative and an originalist, but he would allow his decisions to follow his constitutional interpretation. He determined that flag burning was permissible political speech and often sided with criminal defendants in 4th Amendment cases. Over the last ten years though, Scalia, more than any member of the Court, was a politician in robes.

3. I think law professors have been a little too easy on Justice Scalia. Whereas the public and the political world are completely results driven, law professors tend to care about contributions to constitutional theory and decision consistency. This is a good instinct and law professors see important things that even knowledgeable members of the public can't spot. But I would highly contest the notion that Justice Scalia was a great justice because he pushed an innovative constitutional theory and turned it mainstream. Was he incredibly influential? Certainly. A brilliant writer? Without a doubt. But a great justice? Hardly. On the biggest decisions of his career- Bush v. Gore, NFIB v. Sebelius, D.C. v. Heller, Obergefell v. Hodges- he has consistently come out on the wrong side. A great justice he was not.

4. First and foremost, everyone should remember Justice Scalia was a human being. Indeed, by all accounts he was a charming, funny, and brilliant person. He may have been wrong, but he was not evil. May he rest in peace.