Via Time

Following the Vatican’s rejection of the death penalty, faculty sponsor of the Capital Punishment Clinic Carol Steiker and co-author Jordan Stieker discuss how the U.S. could catalyze progress towards global abolition of capital punishment if the Supreme Court constitutionally abolished the practice.

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Via The Harvard Gazette 

By Alvin Powell, August 10, 2018

Nearly 100 leaders and faculty members at Harvard and its affiliated hospitals have signed a letter calling on the Environmental Protection Agency (EPA) to withdraw its proposed rule on scientific “transparency,” saying that the change would drastically limit the scientific and medical knowledge that underlies a host of EPA regulations that protect human health.

The letter’s 96 signatories include Harvard President Larry Bacow, the deans of Harvard Medical School (HMS) and the Harvard T.H. Chan School of Public Health, and the presidents of Massachusetts General Hospital (MGH), Brigham and Women’s Hospital, Beth Israel Deaconess Medical Center, and Massachusetts Eye and Ear. It says that the EPA’s push to require studies to reveal the material that supports their conclusions would bar the best available science from being considered in the regulatory process.

“It does not get at what they’re trying to do,” said Francine Laden, professor of environmental epidemiology at the Harvard Chan School and one of the signatories. “Having data available for anybody to look at does not guarantee you have validity.”

The letter was drafted by Wendy Jacobs, Emmett Clinical Professor of Environmental Law and director of Harvard Law School’s Emmett Environmental Law and Policy Clinic, together with clinic staff and with input from faculty members about the rule’s potential scientific and health ramifications. It was submitted to the EPA on Tuesday during the public comment period on the proposed rule, which is called “Strengthening Transparency in Regulatory Science.”

The letter, which concludes by urging the EPA to withdraw the draft rule, is one of two that Jacobs said the clinic will submit. The second will focus in more detail on what she described as the rule’s numerous legal deficiencies.

The rule would require that the raw data supporting scientific conclusions on which EPA regulations are based be publicly available. Supporters of the move — including former EPA Administrator Scott Pruitt, who submitted the proposal in April — argue that the rule would allow the underlying science to be independently validated. In announcing the proposal, Pruitt hailed the end of “the era of secret science at the EPA” and said the reproducibility that it would enable is “vital for the integrity of the rulemaking process.”

The proposal quickly drew criticism from analysts and scientists concerned about its impact on EPA regulations. In May, members of the EPA’s own Science Advisory Board criticized the proposal, saying it was drafted without input from scientists. A month later, then-Harvard President Drew Faust wrote to Pruitt that his criticism of “secret science” misrepresented a process that has an obligation both to use private health information for the greater good and to protect subjects’ privacy.

Continue reading.

Via the American Constitutional Society Blog

By Peter J. Brann, August 6, 2018

Source: Wikimedia Commons

We’ve seen this movie before. President Trump nominates someone to the Supreme Court. The nominee declines to answer questions about Roe v. Wade, or any other hot button issue on the grounds that the issue may come before the Court. Indeed, other than imprecisely praising Brown v. Board of Education, the nominee declines to express a view about any decision that the Supreme Court has issued since its founding in 1789. Instead, the nominee offers fulsome, if vague, support for respecting precedent. As we watch this pas de deux between the nominee and Congress over how much the nominee respects precedent, and wonder whether Roe v. Wade and numerous other precedents will be swept aside, we should compare the statements of Supreme Court nominee Judge Gorsuch to the actions of Supreme Court Justice Gorsuch.

In his confirmation hearing, Judge Gorsuch repeatedly expressed his strong support for precedent. “Precedent is the anchor of the law.” “For a judge, precedent is a very important thing. We don’t go reinvent the wheel every day.” Judges must “start with a heavy, heavy presumption in favor of precedent,” but in “a very few cases,” precedent may be overruled. In deciding whether to overrule a precedent, judges should consider “the age, reliance interests, and the workability of the precedent, among other things.”

Apparently the “other things” that judges should consider are whether the judge simply disagrees with the precedent. In his first term on the Supreme Court, Justice Gorsuch joined virtually every call to overrule a prior precedent, and he suggested that precedents be overruled in nearly 10% of all the cases decided by the Court.

This year, in Janus v. AFSCME, Justice Gorsuch joined a 5-4 majority to overrule Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), on union agency fees. In South Dakota v. Wayfair, Inc., Justice Gorsuch joined a 5-4 majority to overrule National Bellas Hess, Inc. v. Department of Revenue of Ill., 386 U. S. 753 (1967), and Quill Corp. v. North Dakota, 504 U. S. 298 (1992), in a Commerce Clause case concerning taxation of remote sellers. In SAS Institute, Inc. v. Iancu, Justice Gorsuch, writing for a 5-4 majority in a patent case, stated that whether the administrative deference rule in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), “should remain is a question we may leave for another day.” Abood, Quill, and Chevron have been settled law for decades, and each has formed the basis of a significant part of our economy and society.

In concurring and dissenting opinions this year, Justice Gorsuch was willing to go further than his colleagues in dismantling other long-standing precedent. In Carpenter v. United States, Justice Gorsuch dissented alone in the cellphone warrant case to urge the Court to overrule the Fourth Amendment approach taken by the Court in Smith v. Maryland, 442 U. S. 735 (1979), and United States v. Miller, 425 U. S. 435 (1976). In Byrd v. United States, Justice Gorsuch joined a concurring opinion of Justice Thomas expressing “serious doubts about the ‘reasonable expectation of privacy’ test” from Katz v. United States, 389 U. S. 347, 360–361 (1967) (Harlan, J., concurring), which has been the touchstone of Fourth Amendment search-and-seizure cases for generations.

In Sveen v. Melin, Justice Gorsuch dissented alone in a Contracts Clause case in which he questioned whether modern Contracts Clause cases, such as Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U. S. 400 (1983), were properly decided. In Jesner v. Arab Bank PLC, Justice Gorsuch wrote separately in an Alien Tort Statute case to state that he harbored “serious doubts” about the “suggestion” in Sosa v. Alvarez-Machain, 542 U. S. 692 (2004), that courts could create new causes of action under the statute, which is as old as the Supreme Court itself.

While Judge Gorsuch told Congress during his confirmation that “precedent is the anchor of the law,” Justice Gorsuch had no problem immediately unmooring precedents dating back over 50 years in a wide swath of law, including the Fourth Amendment, Commerce Clause, Contracts Clause, labor law, administrative law, and international law. And this was just his first year on the Court.

In evaluating Judge Kavanaugh, Congress shouldn’t be satisfied with empty platitudes about respect for precedent. Instead, it should take its cues from The Who, who warned us over 45 years ago: “We Won’t Get Fooled Again.”

(Additional disclosure: our firm represented Wayfair and the other respondents in South Dakota v. Wayfair, Inc., although I did not personally work on that case.)