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3. Harvard Law Review investigated for alleged…

Law Schools

Harvard Law Review investigated for alleged ‘spoils system’ that uses race in article selection

By Debra Cassens Weiss

April 29, 2025, 12:13 pm CDT

The federal government has opened an investigation into the Harvard Law Review “based on reports of race-based discrimination permeating the operations of the journal,” according to an April 28 press release from the U.S. Department of Health and Human Services.

At issue is whether the law review’s policies for membership and article selection violate Title VI of the Civil Rights Act, which bans discrimination based on race, color and national origin in education programs receiving federal funding.

Allocating opportunities and recognition based on race, rather than merit, is unacceptable, the press release said.

Reuters, Bloomberg Law, ABC News and the Harvard Crimson have coverage.

The civil rights offices of the Department of Education and the Department of Health and Human Services are conducting investigation.

“Harvard Law Review’s article selection process appears to pick winners and losers on the basis of race, employing a spoils system in which the race of the legal scholar is as, if not more, important than the merit of the submission,” said Craig Trainor, the Education Department’s acting assistant secretary for civil rights, in the press release.

The investigation follows a report by the Washington Free Beacon concluding that race “plays a far larger role in the selection of both editors and articles” than previously acknowledged by the Harvard Law Review. The Washington Free Beacon article was based on leaked internal documents.

The press release cited alleged statements by editors at the Harvard Law Review in which they appeared to favor minority writers. In one instance, an editor allegedly voiced concern that four of the five people who wanted to reply to an article about police reform “are white men.” In another alleged incident, an editor suggested that an article should get expedited review because the author was a minority.

The Harvard Law Review is a student-run organization that is legally independent from the Harvard Law School, according to a statement by a Harvard Law School spokesperson cited by publications covering the investigation.

The school is “committed to ensuring that the programs and activities it oversees are in compliance with all applicable laws and to investigating any credibly alleged violations,” the statement said.

The investigation was launched amid the federal government’s decision to freeze more than $2 billion in grants and contracts with Harvard University, which has sued in response.

See also:

Lawsuits target law reviews at Harvard and NYU, saying they favor women and minorities

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3. House committee drops information request…

Education Law

House committee drops information request about law clinics amid ‘ongoing negotiations’ with Northwestern

By Debra Cassens Weiss

April 14, 2025, 10:59 am CDT

The U.S. House of Representatives’ Committee on Education and Workforce has withdrawn its request for information on law clinics at the Northwestern University Pritzker School of Law, citing “ongoing negotiations” with the university and an intent to pursue “other means of inquiry.”

The committee withdrew the request Thursday during an emergency hearing in federal court in Chicago, a day after two law professors filed a lawsuit challenging the request.

A letter filed with the court April 10 said the withdrawal was based on the committee’s “ongoing negotiations with Northwestern University” related to alleged antisemitism, Law360 reports.

“We expect to pursue other means of inquiry in coming weeks as part of Congress’ oversight authority under the U.S. Constitution,” the April 10 letter adds.

The committee had initially sought information in a March 27 letter that expressed concern about antisemitism and funding of “left-wing advocacy with its institutional resources,” raising “significant concerns about the university’s role as a steward of taxpayer dollars.”

The suit alleged that the information request violated two clinical law professors’ First Amendment right to freedom of speech and association and their right to petition for redress of grievances. The suit also alleged retaliation for expression of First Amendment rights and violation of their clients’ Fifth Amendment and Sixth Amendment rights.

“Here, defendants threaten federal funding to Northwestern based on the viewpoints and associations of plaintiffs and their clients,” the suit said. “Defendants are leveraging funding to regulate speech on the basis of viewpoint and content.”

The committee’s request for information from Northwestern University was one of five information requests sent to colleges March 27, according to a press release announcing the committee’s retreat.

The suit plaintiffs are Sheila A. Bedi and Lynn Cohn, who work with programs operating within Northwestern University’s Bluhm Legal Clinic. Bedi is the director of the Community Justice and Civil Rights Clinic, while Cohn is a clinical law professor at the Center on Negotiation, Mediation, and Restorative Justice.

Jon Yates, a Northwestern University spokesman, previously said Bedi’s civil rights clinic represents clients across the political and legal spectrum, and cases chosen by the clinic don’t necessarily reflect the views of the school.

Yates also said the school is collaborating with the Louis D. Brandeis Center for Human Rights Under Law “to fight antisemitism.”

The case is Bedi v. U.S. House Committee on Education and Workforce.

Publications covering the dropped request, in addition to Law360, include Reuters and the Daily Northwestern.

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3. Judge finds probable cause to hold US in…

Constitutional Law

Judge finds probable cause to hold US in contempt; is Trump administration ‘at the cusp of outright defiance’?

By Debra Cassens Weiss

April 16, 2025, 3:53 pm CDT

A federal judge who banned the Trump administration from removing Venezuelan immigrants from the United States ruled Wednesday that there is probable cause to find the government in criminal contempt for willfully disobeying his directive.

The federal government transferred the deportees to a prison in El Salvador in Central America hours after he issued an injunction, the judge said, and officials’ boasts implied that it was done “deliberately and gleefully.”

Chief U.S. District Judge James E. Boasberg of the District of Columbia said he would give the Trump administration a chance to purge itself of contempt, and if the government doesn’t act, he would identify the people responsible for noncompliance. The final step would be a contempt prosecution, possibly by an appointed prosecutor.

CNN, the Washington Post, Law360 and the New York Times are among the publications with coverage of Boasberg’s April 16 order.

Boasberg ruled a day after U.S. District Judge Paula Xinis of Maryland ordered the administration to provide answers about why it apparently failed to “facilitate” the release of an immigrant mistakenly sent to the El Salvadoran prison, as ordered by the U.S. Supreme Court on April 10.

The government’s clashes with Boasberg and Xinis have led to the government’s arrival “at the cusp of outright defiance,” the New York Times reports in a separate article. Other examples of the administration’s defiant stance include its freezing of funds that have been ordered released and its refusal to allow the Associated Press to participate in the press pool, despite a federal judge’s decision requiring access.

Elora Mukherjee, a professor at Columbia Law School, told Courthouse News Service that the executive branch “is intent on pushing the bounds of its authority as far as possible and now beyond the breaking point of our constitutional democracy.”

In the case before Xinis, the government has argued that facilitating the return of the immigrant, Kilmar Armando Abrego Garcia, means only that it must “remove any domestic obstacles that would otherwise impede the alien’s ability to return here.”

The government argument “does not pass the laugh test,” Michael Dorf, a professor at Cornell Law SchooL, told the New York Times.

The New York Times concludes that defiance may not be in the form of an outright refusal to follow a judge’s order.

“It may be an appearance by a hapless lawyer who has or claims to have no information. Or it may be a legal argument so outlandish as to amount to insolence,” the article says.

Boasberg initiated contempt proceedings, even though the Supreme Court ruled April 7 that the case had been filed in the wrong venue. The Supreme Court said the immigrants could only challenge their deportation under the Alien Enemies Act of 1798 through a habeas action, which must be brought in the district in which they are confined.

Boasberg said the Supreme Court decision, which lifted his temporary restraining order preventing the deportations, “does not excuse the government’s violation.”

Every judicial order must be obeyed until it is reversed, he said.

“If a party chooses to disobey the order—rather than wait for it to be reversed through the judicial process—such disobedience is punishable as contempt, notwithstanding any later-revealed deficiencies in the order,” Boasberg wrote.

Boasberg said the government could purge itself of contempt by giving the deportees sent to El Salvador a chance to challenge their removal in a habeas proceeding by asserting custody over them. The government would not have to release people or bring them back to assert custody.

If the government does not purge itself of contempt, Boasberg will require declarations and possibly testimony, he said. The next step, if needed, would be to seek a contempt prosecution by the Department of Justice, and, if that is declined, to appoint another prosecutor.

The Trump administration planned to seek “immediate appellate relief” from Boasberg’s ruling, according to the New York Times.

The case is J.G.G. v. Trump.

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3. Conservative group sues ABA over Legal Opportunity…

Diversity

Conservative group sues ABA over Legal Opportunity Scholarship Fund program

By Debra Cassens Weiss

April 17, 2025, 12:36 pm CDT

A group led by a conservative activist has filed a lawsuit alleging that an ABA scholarship program engages in “blatant discrimination” in violation of federal law.

The April 12 suit filed by the American Alliance for Equal Rights, a nonprofit organization, says the scholarships are contractual in nature, and their restrictions on eligibility violate Section 1981 of the Civil Rights Act, which bans discrimination in contracting.

The ABA is represented by Jenner & Block, one of the law firms targeted in a punitive executive order by President Donald Trump, Bloomberg Law reports. Jenner & Block has filed a suit challenging the order against it.

The suit by conservative activist Edward Blum’s group targets the ABA’s Legal Opportunity Scholarship Fund, which awards $15,000 scholarships to select incoming law students. Applicants must be members of underrepresented racial or ethnic minorities, such as Black/African Americans, Native Americans, Hispanic Americans and Asian/Pacific Islanders, according to the suit, filed in the U.S. District Court for the Northern District of Illinois.

“Even if the scholarship did not flatly exclude whites on its face,” the suit says, “the scholarship discriminates against whites in application and by design.”

The suit seeks a declaration that the scholarships violate Section 1981, an injunction barring the ABA from considering race or ethnicity in the program, an order to reopen the application process using neutral criteria, and nominal damages.

Another organization that Blum created, Students for Fair Admissions, won a U.S. Supreme Court ruling in June 2023 that struck down race-conscious admissions programs in higher education.

The American Alliance for Equal Rights is represented by Lawfair and Consovoy McCarthy.

The goal of the new suit, Blum said in a statement, “is not to eliminate ABA’s scholarships but to ensure they are based on legitimate criteria, such as financial need or merit, rather than race.”

The ABA does not comment on active litigation, according to Jim Walsh, the chief communications officer and associate executive director of the ABA.

Publications covering the suit include Law.com, Law360, Reuters and Bloomberg Law.

See also:

Activist who succeeded in ending affirmative action targets law firms’ diversity efforts

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3. Can Trump serve third term? Yale Law prof…

Constitutional Law

Can Trump serve third term? Yale Law prof sees ‘possible loophole’ to 22nd Amendment ban

By Debra Cassens Weiss

April 3, 2025, 3:01 pm CDT

Can President Donald Trump serve a third term? The 22nd Amendment appears to prevent it. “No person shall be elected to the office of the president more than twice,” it reads. But could a president serve a third term if he isn’t “elected” to the office?

The use of the word “elected,” rather than “serve,” is “an unfortunate drafting error,” in the view of Michael C. Dorf, a professor at Cornell Law School, who spoke with the Washington Post.

The Wall Street Journal (gift link via How Appealing), the Washington Post and the New York Times have coverage of the constitutional questions.

The issue is getting attention since Trump told NBC News that “there are methods” by which he could serve a third term, and he wasn’t joking.

NBC News asked Trump about a scenario in which Vice President JD Vance would run for president and then hand the office of president to Trump.

“That’s one” method, Trump responded.

But Trump could not be Vance’s vice president, according to many experts who spoke with the Wall Street Journal and the New York Times. That’s because of the 12th Amendment, which says, “No person constitutionally ineligible to the office of president shall be eligible to that of vice president of the United States.”

Because Trump wouldn’t be eligible to be president, he wouldn’t be eligible to be vice president under the 12th Amendment, said Akhil Reed Amar, a constitutional law professor at Yale Law School.

Taking a contrary view are the authors of an article in the Minnesota Law Review written when former President Bill Clinton was president. The article argues that the 12th Amendment might not bar a two-term president from the vice presidency because “it is by no means clear that the term ‘eligibility’ as used in the 12th Amendment refers to or incorporates a person’s reeligibility under the 22nd Amendment” that followed.

The 12th Amendment eligibility provision was likely referring to constitutional requirements for the presidency based on citizenship, residency and age, according to the article co-authored by Bruce G. Peabody, a government and politics professor at Fairleigh Dickinson University. The ambiguities might allow a vice presidential run by a two-term president, he told the Wall Street Journal.

There is another possible scenario. What if Vance is elected president, he appoints Trump as the secretary of state, Vance and his vice president resign, and others in the line of succession before the secretary of state step aside?

That could work if Congress changes the federal presidential succession law to eliminate the ban on cabinet officials becoming president if they are ineligible for the job, according to Amar.

“There is a possible loophole. I wish it weren’t true, but there is,” Amar told the Wall Street Journal.

But some experts said there should be no debate on the issue.

The history of the 22nd Amendment’s drafting and ratification “make clear beyond doubt it was written that way to guard against the danger that anyone could use the office to assert long-term tyrannical control in the United States,” said Deborah Pearlstein, a professor at Princeton University, in an email to the Washington Post.

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3. Suits seeking continued US funding will likely…

U.S. Supreme Court

Suits seeking continued US funding will likely be routed to Court of Federal Claims after SCOTUS decision, law prof says

By Debra Cassens Weiss

April 7, 2025, 11:42 am CDT

A decision on Friday by the U.S. Supreme Court in a challenge to an education-grant freeze will likely redirect many other lawsuits regarding Trump administration spending decisions to the Court of Federal Claims, according to a law professor.

The Supreme Court’s 5-4 decision allowed the Trump administration to freeze $65 million in education-related grants while a suit filed by eight states is litigated.

The Supreme Court found that the government was likely to succeed in its argument that a district court lacked jurisdiction to order the payment of money under the Administrative Procedure Act. The law waives government immunity but not for court orders to enforce a contractual obligation to pay money along the lines of the order by U.S. District Judge Myong J. Joun of the District of Massachusetts, the Supreme Court said.

Instead, the Court of Federal Claims has jurisdiction to hear such suits, the high court said.

Writing at the Volokh Conspiracy, Josh Blackman, a professor at the South Texas College of Law in Houston, said the ruling “should quickly knock out many other ‘spending’ cases and redirect them to the Court of Federal Claims. This is a court most people have never heard of but will soon become very important.”

The Supreme Court’s decision stayed a March 10 temporary restraining order issued by Joun, report Politico, Reuters, Howe on the Court, the Washington Post and the New York Times.

Chief Justice John Roberts dissented from the decision but did not issue or join a dissent. The Supreme Court’s three liberal justices also dissented.

The Trump administration had canceled the grants because they included diversity, equity and inclusion initiatives. The states that sued are California, Massachusetts, New Jersey, Colorado, Illinois, Maryland, New York and Wisconsin.

Joun’s order had required the government to pay past-due grant obligations and to continue paying the obligations as they accrue. The judge based the decision on a finding that the challengers were likely to succeed on their claim that the freeze was arbitrary and capricious in violation of the Administrative Procedure Act.

The Supreme Court disagreed with that finding.

Generally, TROs cannot be appealed, but the order issued by Joun was more akin to a preliminary injunction, the majority said.

In a dissent, Justice Elena Kagan said the general rule is that Administrative Procedure Act suits go to federal district courts, even when a remedial order may result in the disbursement of funds.

“So the court’s reasoning is at the least underdeveloped, and very possibly wrong,” she said.

Kagan also criticized the majority for making a decision based on the government’s emergency application.

“The risk of error increases when this court decides cases—as here—with barebones briefing, no argument and scarce time for reflection,” she wrote.

Justice Ketanji Brown Jackson wrote a separate dissent, joined by Justice Sonia Sotomayor.

“It is beyond puzzling that a majority of justices conceive of the government’s application as an emergency,” Jackson wrote. “It is likewise baffling that anyone is persuaded that the equities favor the government when the government does not even argue that the lower courts erred in concluding that it likely behaved unlawfully.”

The decision is Department of Education v. California.

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3. Which firms, legal groups, law profs signed…

Law Firms

Which firms, legal groups, law profs signed briefs supporting Perkins Coie in challenge to punitive Trump order?

By Debra Cassens Weiss

April 8, 2025, 8:52 am CDT

Amicus briefs supporting Perkins Coie are piling up in its challenge to a punitive order against the law firm signed by President Donald Trump.

The briefs have been filed by more than 500 firms, more than 360 law professors, nearly 350 former judges and a “cross-ideological group” that includes the American Civil Liberties Union and the Institute for Justice, a nonprofit public interest firm, report Law.com (here and here); Bloomberg Law; Reuters (here and here); Law360; and press releases by Law Forward, a nonprofit organization, and the ACLU.

The firm brief is mostly signed by smaller and midsize firms. According to Law.com, larger and well-known firms that signed are:

  • Arnold & Porter Kaye Scholer

  • Covington & Burling

  • Crowell & Moring

  • Davis Wright Tremaine

  • Fenwick & West

  • Foley Hoag

  • Freshfields US

  • Hanson Bridgett

  • Jenner & Block

  • Manatt, Phelps & Phillips

  • Munger, Tolles & Olson

  • Patterson Belknap Webb & Tyler

  • Stoel Rives

  • Susman Godfrey

  • Wilmer Cutler Pickering Hale and Dorr

Perkins Coie sued after Trump issued an executive order that suspended Perkins Coie’s security clearance, limited access to federal buildings by its lawyers, blocked government hiring of firm employees, and required federal agencies to take steps to terminate contracts with the firms and their clients—if the firm provided services in connection with the client contract.

WilmerHale and Jenner & Block also sued after they were targeted with executive orders. Covington & Burling was also targeted in a more limited executive order; it has not filed suit.

As of April 3, four other firms reached deals with Trump to avoid punitive measures. The deals included pledges of pro bono support on issues supported by Trump and the firms.

A Perkins Coie spokesperson told Reuters that the firm was grateful to the firms that signed the amicus brief “in our challenge to the unconstitutional executive order and the threat it poses to the rule of law.”

Above the Law is compiling firms’ reactions to actions by the Trump administration in its “BigLaw Spine Index.” Law.com has published a timeline of the executive orders and firms’ response to them.

The legal advocacy groups that signed the ACLU brief are:

  • The ACLU

  • The ACLU of the District of Columbia

  • The Cato Institute

  • The Electronic Frontier Foundation

  • The Foundation for Individual Rights and Expression

  • The Institute for Justice

  • The Knight First Amendment Institute at Columbia University

  • The National Coalition Against Censorship

  • The Reporters Committee for the Freedom of the Press

  • The Rutherford Institute

  • The Society for the Rule of Law Institute

Judges who signed an amicus brief include retired state supreme court and appellate justices and former federal judges. Among them are:

  • Retired Judge J. Michael Luttig of the 4th U.S. Circuit Court of Appeals at Richmond, Virginia

  • Retired Judge Diana Gribbon Motz of the 4th Circuit at Richmond, Virginia

  • Retired Judge Kathleen M. O’Malley of the U.S. Court of Appeals for the Federal Circuit

  • Retired Judge Thomas I. Vanaskie of the 3rd Circuit at Philadelphia

  • Retired U.S. District Judge Shira A. Scheindlin of the Southern District of New York

Law professors who signed the professor brief are from law schools that include Harvard Law School, Yale Law School, Stanford Law School, the University of California, the Georgetown University Law Center, the Northwestern University Pritzker School of Law, Cornell Law School, the New York University School of Law, the University of Chicago Law School, Columbia Law School and the University of Michigan Law School.

Professors who signed the brief include Michael C. Dorf of Cornell Law School, Mark A. Lemley of Stanford Law School, Owen Fiss of Yale Law School, Harold Hongju Koh of Yale Law School, Leah Litman of the University of Michigan Law School, Eugene Volokh of the University of California at Los Angeles School of Law and Pamela S. Karlan of Stanford Law School.

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3. After Texas chief justice criticizes ABA,…

Law Schools

After Texas chief justice criticizes ABA, state supreme court reconsiders ABA accreditation for law schools

By Debra Cassens Weiss

April 8, 2025, 3:54 pm CDT

The Texas Supreme Court is inviting comments on a requirement that law grads seeking bar admission in the state must have graduated from a law school accredited by the ABA Section of Legal Education and Admissions to the Bar.

In an April 4 order, the Texas Supreme Court requested feedback on whether to “reduce or end” reliance on the ABA as an accrediting agency and “alternatives the court should consider.”

The state supreme court is inviting comments from the Texas Board of Law Examiners, Texas law school deans, the bar and the public, the order said.

Law360 covered the story.

The Texas Supreme Court did not comment on the reason for its order. But Chief Justice James D. Blacklock criticized the ABA in his February State of the Judiciary address for “aggressively taking sides in the fight going on in Washington about the scope of the president’s executive power.”

ABA President Bill Bay has criticized the Trump administration’s “wholesale dismantling of departments and entities created by Congress,” as well as “efforts to dismiss employees with little regard for the law and protections they merit.”

The Texas Supreme Court’s order follows a similar move last month by Florida’s top court. It has created a subgroup to reconsider the requirement that law grads taking the Florida bar exam must have graduated from an ABA-accredited law school.

The Florida Supreme Court took action because of “reasonable questions” about an accreditation standard on diversity and “the ABA’s active political engagement,” according to a press release. The Section of Legal Education and Admissions to the Bar has suspended enforcement of its diversity standard as it works on revisions.

The Association of American Law Schools is making the case for national accreditation of law schools in an April 8 open letter that has also been submitted to working groups considering the accreditation issue in Texas and Florida.

Thirty-three law schools, most of them in California, don’t have ABA accreditation. Most have “extremely low bar exam pass rates, poor job outcomes and high attrition rates,” the letter said.

The letter said national accreditation is critical for ensuring “a minimum baseline of quality in legal education and practice.” Most states don’t have the resources to sufficiently evaluate law schools, and “piecemeal, fragmented or overlapping regulation would increase costs on law schools, their students and the profession,” the letter said.

Creating different barriers to a law license that vary by state would also hamper lawyer mobility and add to lawyer deserts, the letter said.

The letter also clarified that the ABA does not accredit law schools. Instead, that job is handled by the Section of Legal Education and Admissions to the Bar, “a national accrediting entity that is separate and independent from the bar association.”

Jennifer L. Rosato Perea, the managing director accreditation and legal education for the ABA, issued a statement to the ABA Journal.

The council of the Section of Legal Education and Admissions to the Bar “understands the [Texas] Supreme Court’s need to thoughtfully consider the council’s continued role in accreditation and hear from a variety of perspectives to ensure that this accreditation continues to serve its admission requirements,” the statement said.

“The council’s primary purpose in accreditation has been and continues to be contributing meaningfully to the production of effective and ethical lawyers, as well as serving the interests of the public in Texas and all other states throughout the United States.”

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3. Federal judge’s Columbia clerk boycott didn’t…

Judiciary

Federal judge’s Columbia clerk boycott didn’t harm public confidence in judiciary, judicial council rules

By Debra Cassens Weiss

April 10, 2025, 11:36 am CDT

A judge on the U.S. Court of International Trade did not violate ethics rules by refusing to hire law clerks who attended Columbia University, according to the judicial council of the 7th U.S. Circuit Court of Appeals at Chicago.

In an April 8 decision, the council dismissed the complaint against Judge Stephen A. Vaden, one of 13 federal judges who participated in the boycott and explained why in a letter to the school.

Law360, Reuters and the Volokh Conspiracy have coverage.

President Donald Trump has nominated Vaden to be the deputy secretary of the Department of Agriculture, Reuters reports. A U.S. Senate panel had a hearing on his nomination Tuesday.

The judges had refused to hire law clerks who attended Columbia University or Columbia Law School because of the university’s handling of disruptions caused by pro-Palestinian protesters. Columbia has become “an incubator of bigotry,” the judges said in their letter to Columbia, and the judges have lost confidence in the institution.

Vaden’s boycott and his signature on the letter do not harm the integrity of the judicial office, do not harm public confidence in the judiciary, and do not cast doubt on his impartiality, the judicial council said.

“A judge may refuse to hire law clerks from a law school or university that has, in the judge’s view, failed to foster important aspects of higher education, like civility in discourse, respect for freedom of speech and viewpoint nondiscrimination,” the opinion said.

The chief judge of the U.S. Court of International Trade had transferred the ethics complaint against Vaden to the 7th Circuit’s judicial council for review. The person who filed the ethics complaint is in prison for his role in firebombing and vandalizing Jewish synagogues.

Vaden was represented by the First Liberty Institute, a nonprofit conservative legal organization, and Lisa Blatt of Williams & Connolly.

Judicial councils have also tossed ethics complaints against 11 of the other 12 boycotting judges, including, apparently, two federal appeals judges: Judge James C. Ho of the 5th Circuit at New Orleans and, according to Reuters, Judge Elizabeth L. Branch of the 11th Circuit at Atlanta.

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3. This Harvard Law prof thinks constitutional…

The Modern Law Library

This Harvard Law prof thinks constitutional theory is a terrible way to pick a judge

By Lee Rawles

March 5, 2025, 9:04 am CST

What if we are asking the wrong questions when selecting American judges? Mark Tushnet thinks our current criteria might be off.

“We should look for judges who are likely to display good judgment in their rulings, … and we shouldn’t care whether they have a good theory about how to interpret the Constitution as a whole—and maybe we should worry a bit if they think they have such a theory,” the Harvard Law School professor writes in his new book, Who Am I to Judge? Judicial Craft Versus Constitutional Theory.

In looking at what qualities were shared by great U.S. Supreme Court justices, Tushnet identified five that he thinks were of especial importance:

1. Longevity and age

2. Location in political time

3. Prior experience in public life

4. NOT A JUDGE (“I put this in capital letters because it’s common today to think that justices have to have been judges,” Tushnet writes. He doesn’t see having a past judicial career as disqualifying but points out that many great justices were not sitting judges when appointed.)

5. Intellectual curiosity

In this episode of The Modern Law Library podcast, Tushnet and the ABA Journal’s Lee Rawles discuss how he thinks that people should be evaluated for judicial positions, his experience as a clerk for the late Supreme Court Justice Thurgood Marshall, what makes a well-crafted opinion, and why he thinks that any overarching theory about the Constitution will fall short.

In This Podcast:

Mark Tushnet

Mark Tushnet is a William Nelson Cromwell law professor emeritus at Harvard Law School. Tushnet, who graduated from Harvard College and Yale Law School and was a law clerk to the late U.S. Supreme Court Justice Thurgood Marshall, specializes in constitutional law and theory, including comparative constitutional law. His research includes studies of constitutional review in the United States and around the world. He is the author of more than a dozen books, has edited eight others, and has written numerous articles on constitutional law and legal history.