Laurence H. Tribe

  • February 25, 2016
    Guest Post

    by Laurence H. Tribe, Carl M. Loeb University Professor and Professor of Constitutional Law at Harvard Law School, and Joshua Matz, associate at Robbins Russell LLP and former law clerk to Justice Anthony Kennedy from 2014 to 2015. Together, Tribe and Matz wrote Uncertain Justice: The Roberts Court and the Constitution.

    In 1901, Mr. Dooley—a popular, opinionated comic strip character—explained that “th’ Supreme Coort follows th’ election returns.”  Dooley’s view was cynical, political, and slightly unnerving. It was also right, in important respects. Elections matter, especially in polarized times. Nowadays, Democrats and Republicans can’t even agree on which election matters, let alone on judicial philosophy or temperament. A Justice selected by Hillary Clinton or Bernie Sanders would, beyond doubt, strive toward a very different future from one selected by Donald Trump, Marco Rubio, or Ted Cruz.

    But as we explain in our book, Uncertain Justice: The Roberts Court and the Constitution, no Justice—not a single one—is invariably liberal or conservative. Furthermore, a Justice’s influence on the Court can take many forms, not all of them reducible to vote tallies. This was true of Justice Antonin Scalia and it will be true of his successor. Thus, to better understand what issues lurk on the horizon for any new Justice, it is helpful to see where Scalia stuck to familiar left-right scripts and where he tossed those scripts aside.

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    Selected by President Ronald Reagan to be a white knight for judicial conservatism, Scalia largely fulfilled Reagan’s expectations. Waging war on liberalism, Scalia championed the right’s view of gun rights, abortion, campaign finance, voting rights, gay rights, capital punishment, gender equality, racial equality, access to justice, separation of church and state, and federalism.  In law schools and op-eds, his name grew synonymous with rigorous, principled conservatism. Even as divergent strands emerged within conservative ranks, Scalia urged the Court to move further and faster rightward—at times, blasting his conservative colleagues for their hesitation. Warren Court rules had to be ripped asunder, not whittled and narrowed. As a rock star of the right, its patron saint and favored son, Scalia made full use of his powers to remake the Nation in a more conservative light.    

    Within years of arriving at the Court, Scalia had become the left’s black-robed bête noir. His unabashed conservative views—not to mention his slashing rhetoric—offended many liberals, who saw in Scalia’s judgecraft a threat to core constitutional values. Moreover, the frequent alignment of Scalia’s policy preferences with his judicial votes led some to doubt the supposed virtues of his originalist and textualist methods. Charges of hypocrisy and incivility piled up, even as conservatives rallied to the man who finally spoke their truths. 

    Scalia is often typecast as the conservative Justice—a Republican appointee straight from central casting. While true in many areas of law, this view doesn’t hold water in a few important contexts. In those fields, Scalia upset the standard dichotomy. Given that many of these issues do not evoke uniform liberal/conservative splits, their future is especially uncertain.

  • June 18, 2014
    Uncertain Justice: The Roberts Court and the Constitution
    Laurence Tribe and Joshua Matz

    by Laurence H. Tribe, Carl M. Loeb University Professor, Harvard Law School

    As the end of its 2013 Term fast approaches, the Roberts Court is unleashing major rulings seemingly every day. Addressing topics as varied as recess appointments, cell phone privacy, abortion clinic protest buffers, public sector unions, and securities class actions, these opinions (even those not yet announced) have already triggered heated debate. The clash of values this Term is fierce and unmistakable: religious liberty versus reproductive rights, digital privacy versus security, corruption versus free speech rights

    With critics lining up to praise or castigate the justices, a clear view of the Roberts Court is more important than ever. Only with a broad and even-handed understanding of the Court and its members can we fairly evaluate its decisions. And only by understanding where each justice is coming from, in an open-minded way that can be critical without trapping justices in scorn or stereotype, can we plan for the future.

    That’s why I wrote, with Joshua Matz, a book called Uncertain Justice: The Roberts Court and the Constitution. Reflecting my decades of experience arguing before the Court and studying the Constitution—and Joshua’s learning as a former Harvard Law Review editor and SCOTUSbloggerUncertain Justice offers an overview of nearly every major opinion since John G. Roberts, Jr. was confirmed as Chief Justice in 2005. It also provides rich pictures of each justice and a panoramic view of the most important modern trends in American constitutional law. 

  • February 13, 2013

    by Jeremy Leaming

    For far too long the gun lobby has loudly proclaimed that the Constitution bars almost any kind of law aimed at curbing gun violence. But since a string of mass shootings last year culminating in the Newtown mass shooting that took the lives of 20 children, there’s been a growing chorus of voices pushing back against the gun lobby’s platitudes and simplistic, often misleading, interpretation of the Second Amendment.

    More than 50 constitutional law scholars signed a letter explaining why the Second Amendment is not absolute or unlimited. Very few of rights and liberties enshrined in the Constitution are absolute. One of the scholars who signed that letter is among the nation’s greatest constitutional law scholars -- Laurence H. Tribe, a distinguished Harvard Law School professor.

    Hours before President Obama, a former student of Tribe’s, gave his State of the Union Address, Tribe testified before a Senate Judiciary committee examining ways to curb gun violence without trampling the Second Amendment right to bear arms.

    In his oral and written testimony Tribe made it clear that efforts to reduce – not eliminate – gun violence through government action are not beyond reach because of the Second Amendment. In current Supreme Court rulings, such as D.C. v. Heller, Tribe explained the justices took certain policy choices off the table for consideration and “thereby cleared the path to reasonable regulations to be enacted without fear that those policy choices would ever open the door to unlimited government control or be imperiled by exaggerated interpretations of the Second Amendment.” (Click picture of Tribe for video of his opening remarks, or see here.)

    Tribe noted that Justice Antonin Scalia author of the majority opinion in Heller noted that the court’s interpretation of the “Constitution leaves open a variety of regulatory tools to combating the problem of gun violence in this country.”

    In his written testimony, Tribe put it this way: “Proposals to disarm the American people, to leave firearms solely in the hands of the military and the police, have been decisively taken off the table – if they were ever truly on the table – by the Supreme Court’s Second Amendment decisions in 2008 and 2010 [Heller and McDonald v. Chicago respectively].”


  • July 15, 2010
    The nation's system for upholding the Sixth Amendment right to counsel for indigent criminal defendants is woefully lacking and needs a strong response by federal officials, writes Professor Cara H. Drinan in a recently released ACS Issue Brief.

    Drinan writes in "A Legislative Approach to Indigent Defense Reform," that indigent defense legal services are hobbled because of "drastic underfunding of indigent defense delivery systems; crushing attorney workloads that force committed defenders to compromise their ethical obligations on a daily basis; a lack of investigative and expert assistance; a chronic inability to develop meaningful attorney-client relationships; and, of course, unnecessary and sometimes unlawful imprisonment."

    Drinan, an assistant law professor at Catholic University of America's Columbus School of Law, says a federal response is needed to shore up the nation's system and cites statements from Attorney General Eric Holder as hope that a robust federal response is forthcoming. Holder, Drinan writes, has said that reforming indigent defense is a top priority of the Department of Justice. She also cites the fact that the administration has created an initiative to reform indigent defense, which is spearheaded by Harvard law professor and constitutional law expert Laurence H. Tribe.

    But Congress must also get involved in the matter. She notes that since the Supreme Court's landmark 1963 opinion, Gideon v. Wainwright, in which the Supreme Court ruled that states have an obligation under the Sixth Amendment to provide legal representation to poor criminal defendants that many states have abdicated those constitutional responsibilities. Indeed, she explains that in 16 states "more than half of the indigent defense costs are paid for by the county; and in two states, Pennsylvania and Utah, there is no state funding at all."