Your independent source for Harvard news since 1898 | SUBSCRIBE

Your independent source for Harvard news since 1898

Letters

Cambridge 02138

Reparations, humanities, and more

January-February 2023

Elena Kagan in Dissent

I got a good laugh out of the recent article on “Justice Elena Kagan, in Dissent” (November-December 2022, page 28). For many people, the Court lost its legitimacy 60 years ago when the Warren Court started making up rights out of thin air, based on “penumbras” and “emanations.” Cases such as Griswold, Gideon, Miranda, and, yes, Roe itself, had very little basis in “the law,” at least as the law was thought to exist before those decisions were issued. Indeed, one of the most notable things about the oral arguments in Dobbs was that almost no one tried to defend Roe based on a legal analysis, but rather that it had been law for 50 years and deserved to remain law. I wonder what the Warren Court would have thought about that argument as applied to Plessy? If I were disposed to be cynical, I would be tempted to think that the approval or disapproval of the exercise of raw power and brute force by the Court depended on whose ox was being gored.          

Mark Dennett, J.D. ’83
Palm Coast, Fla.

 

I was proud of being a member of the bar of the Supreme Court before it needlessly handed the 2000 election to bellicose George W. Bush, facilitated the de facto bribery of Congresspeople by its Citizens United decision, took several opportunities to disenfranchise black voters, and by overruling Roe v. Wade, made inevitable the deaths of many women. I am far from alone in my disappointment in the Court.

It sounds from “Justice Elena Kagan, in Dissent” as though she is doing her best to enable the restoration of the Court’s soundness and the public’s respect for it after the right-wing justices, who are injudiciously enacting their pet agendas, have had their day.

While little can apparently be done right now to halt this majority’s procession of wrongheaded decisions, Chief Justice Roberts could restore the Court a bit by not only agreeing to, but actually drafting, a code of ethics for the justices. If no person should be above the law, then no judge should be above enforceable ethical standards. Right now, the Supreme Court justices’ unique freedom from such restraints is an anomaly that promotes disrespect for the Court.

Though I shall be pleasantly surprised if the chief justice actually does this, I am happily confident that Justice Kagan will continue to do her essential work for the Court and the nation.

Malcolm Bell ’53, LL.B. ’58
Randolph Center, Vt.

Speak Up, Please

Harvard Magazine welcomes letters on its contents. Please write to “Letters,” Harvard Magazine, 7 Ware Street, Cambridge 02138, or send comments by email to [email protected]

 

Lincoln Caplan quotes Justice Kagan: “Respecting precedent…That is what prevents changes in the composition of the Court from producing changes in our law.” Did the Supreme Court follow its precedents in deciding Brown v. the Board of Education (1954) or Roe v. Wade (1973)? In Brown, the Court overruled its precedent of 58 years in holding de jure racial segregation in public schools unconstitutional and in Roe it declared a constitutional right to abortion whose existence had not been considered worth litigating until a couple of years earlier.

Critics of the Dobbs v. Jackson Women’s Health Organization decision overruling Roe do not believe the Supreme Court erred in Brown or Roe. Accordingly, their criticism of Dobbs for departing from precedent is unconvincing since their dispute is clearly with the substance of Dobbs. We want the Court to overrule its prior decisions as it did in Brown when it no longer believes them correctly decided, don’t we?

Deeply held differences among justices concerning the appropriate role of the federal judiciary in defining individual rights underlie Roe and Dobbs. These differences reflect divisions within American society though probably not among readers of Harvard Magazine.

Ultimately, the legitimacy of the Court among Americans may rest less upon a belief in the superior wisdom or good will of its justices than upon the realization that chaos will result if its decisions are not accepted as final. Al Gore accepted the finality of the decision of the Court handing the 2000 election to George W. Bush not because he respected the decision’s reasoning or the justices who rendered it but because he understood the necessity of accepting the decision as final.

Andrew Campbell ’74
Ann Arbor, Mich.

 

Lincoln Caplan’s recent cover article on Justice Kagan, institutional integrity, and the U.S. Supreme Court’s increasingly shaky legitimacy was a thoughtfully pointed counterweight to much of the shouting that’s filled the ether since Dobbs v. Jackson Women’s Health overturned Roe and the other “terrible two”—West Virginia v. EPA and Bruen v. NY —took much the same wrecking actions on clean air and gun control at the end of the Court’s last term.

 The Chief Justice and Justice Alito have complained that it “crosses red lines” to question the Court’s conservative majority “merely” because one disagrees with its outcomes. But the issue is not the outcomes. It’s the shamelessly specious reasoning the majority has used to reach them. As I recently noted in a National Law Journal article on West Virginia (quoting Justice Kagan’s dissent and Linda Greenwood of the New York Times), “In a flight of judicial activism historically decried by conservatives, the Supreme Court’s conservative majority reached out on the last day of its 2021 term to decide a rule that was not before it, sidestepped the reasoning of the court below, and stripped the EPA of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time.’…the majority chose to decide the case [this way] ‘because they could.’”(“The Supreme Court Strikes Down Common Sense,” October 5, 2022)

That’s no way for an unreviewable court which has claimed to be a “neutral umpire” to conduct business.

Michael H. Levin, J.D. ’69
Washington,D.C.

 

In his article on Justice Kagan, Lincoln Caplan responds to the Dobbs decision as if it had held that the Constitution forbids abortion. It does not, of course. It says that the law is to be decided by elected legislatures: the opposite of the power grab Caplan describes. Deference to the elected branches is characteristic of the present Court’s decisions in any sphere not explicitly addressed in the Constitution’s text. Someone needs to douse Caplan’s hair and put out the fire.

Kevin S. Fogarty ’74
Cincinnati, Ohio

 

In his effort to deify Justice Kagan—while trashing her “majority Republican” colleagues—Lincoln Caplan commits the very sin he criticizes: namely, he “impos[es] personal proclivities.”

Caplan basically says that when Kagan was in the majority, she was fostering the Court’s legitimacy, but now that she is in the minority, she is valiantly exposing the Court’s increasing illegitimacy. How convenient. Caplan also suggests that when Kagan was in the majority, the rule of law was paramount, but now that she isn’t, perhaps the rule of law should yield to popular opinion, lest it lose its legitimacy. Again, how convenient.

But isn’t it fair to say that both “sides” on the court earnestly believe they are just following the “rule of law?” Caplan seems to suggest the Court’s legitimacy crisis started circa 2010. Whether one wants to cite Bush v. Gore (2000), Robert Bork’s nomination (1987), or Roosevelt’s court-packing (1936), the Court’s perceived legitimacy has long waxed and waned.

At bottom, what Caplan doesn’t like is that his “side” is now often in the minority, but that doesn’t make the Court suddenly less legitimate.

William Choslovsky, J.D., ’94
Chicago

 

Justice Kagan’s dissent in the ruling that the EPA under the Clean Air Act overstepped authority was cited in Caplan’s opening paragraphs. But the opinion of the majority, from which she so lucidly dissented, could have been in the form of a question: has the Congress over the years ceded too much of its Article 1 Section 8 powers to agencies and other departments, thereby failing in its duty?

In the particular case as it stands, if the regulations are needed and important to the “general welfare,” which indeed they would seem to be, then the Congress should exercise its duty and amend the Act or write a separate law. The ceding of constitutional powers has been going for some decades. While it facilitates the work of Congress in that criticizing executive branch department actions from afar is easier than grappling with issues which must be resolved, it perhaps at the same time contributes to the rancorous debate on social issues and partisan divisions. Perhaps the Court is asking the Congress to re-examine its role.

William Massey, M.B.A. ’66          
Savannah, Ga.

 

Your article portraying Justice Elena Kagan in dissent as a champion of integrity and wisdom against the unenlightened and mistaken majority on the Supreme Court is the most blatant celebration of a valiant woman striving against all odds since Joan of Arc rode against the horrible English invaders of France. It would be far more enlightening if you had an article with side-by-side statements about the important issues before the Court. Since that was not done, perhaps, in the interests of fairness and honesty, you will seek out a justice or qualified legal scholar to publish the views of the Court’s majority.

 Beyond the views of Justice Kagan, you portray the Court as losing the confidence of the American citizenry. The rule of law is what separates our government and nation from most others on this planet, and the Supreme Court is the ultimate guarantor of the rule of law. Without faith in our laws and legal system we have increasing discontent and even violence. While the latter concept may seem extreme, the recent attempted murder of Justice Kavanaugh may cause a more sober consideration of responsible journalism, such as we hope to find in Harvard Magazine.

Dale A. Jenkins ’60
New York City

 

I am full of praise for two articles in the November-December 2022 issue. Lincoln Caplan’s masterful portrayal of Supreme Court Justice Elena Kagan is some of the finest journalism I have ever seen. Jonathan Shaw’s take on the economy—always impossible to predict so far in advance—was on-target (“The Off-Kilter Economy,” page 40).

However, I would like to say a few words about Nancy Walecki’s article on low-cost future cooling (“Low-Energy, Low-Cost Cooling for the Future,’ page 9). As a deep-water sailor, I have long held a dim view of high-tech solutions. When you’re alone at sea, if something can’t be fixed with cloth, thread, epoxy, and the like, you don’t want it on the boat. The two methods Walecki unveils are potentially expensive to repair. The best system of air conditioning that I know involves running deep ground-water through a heat exchanger and putting it back underground. It is virtually breakdown-proof, uses little electricity to operate, and over many decades its higher up-front cost is easily justified versus having to replace expensive and electricity-gobbling compressor units in traditional air-conditioning units every decade or so.

John Fitzhugh Millar ’66
Williamsburg, Va.

 

Editor’s note: The complex physics of the systems described in the article does not mean that they are mechanically complex and subject to breakdown—one of the points in their favor should they prove commercially interesting.

 

“Justice Elena Kagan, in Dissent” is a disgrace. Lincoln Caplan’s rant, like other polemics in less elevated company, does much to advance the “toxically polarized politics and dangerously distorted democracy” that the author bemoans. There’s no scintilla of effort to understand or respect views the author dislikes. Instead, “right wing” hypocrites rely on totems, employ regressive views, and make decisions based on theological beliefs. His side is the hero of the weak, defender of “rights considered fundamental,” and keeper of stability. If stability and stare decisis were supreme values, we’d still have slavery. And the right to abortion is so “fundamental” that the Constitution embeds it in concepts and penumbras rather than mentioning it.

In our constitutional order, ultimate authority is not placed in judges, nor in “science.” The Supreme Court says in Dobbs that the Constitution authorizes representative legislatures (including those in states) to translate core principles into law and policy. To me that’s a defense of constitutional representative government, to which all else is accountable; to Caplan it’s rank partisanship. Kagan says returning authority to legislatures lacks judicial modesty and humility, precisely the opposite of what I see. At least we didn’t hear that “our democracy” is at stake if Caplan’s way of thinking doesn’t prevail.

What’s so hard to understand about where authority is placed by our Constitution? The “future evolution in the scope and meaning” of Constitutional rights is provided in an amendment process, not allocated to brilliant Justices.

Caplan announces that the Supreme Court isn’t trusted, threatening its legitimacy. I direct my mistrust (and questions of legitimacy) instead to Caplan, the elitist and undemocratic attitude he articulates, and the Harvard classes and publications that propagate it. I live among a lot of people outside the corridor who think this way.

Mike Hassell, M.B.A. ’83
Nashville, Tenn.

 

I find it remarkable that Harvard Magazine warns us that the court is in crisis and questions its legitimacy now that there is a constitutional majority for the first time in decades. I am not sure where the magazine has been these past 30-40 years when liberal courts routinely legislated from the bench finding new rights where, in the constitution, none existed. The founders believed that anything not covered in the constitution or its following amendments was the purview of the states. Harvard inflicts wounds on itself when articles like this clearly demonstrate that, politically and culturally, Harvard lives in a bubble. Its scholarship is swamped by political correctness that contorts and twists logic to promote outcomes, and its arrogance is suffocating. The court is not broke because Harvard disagrees with its decisions. The court is protecting the constitution as written, not trying to reinvent a new one.

Thomas P. Oberst, M.B.A. ’81
Nashua, N.H.

 

In his fawning article about Justice Elena Kagan, Lincoln Caplan tips his hand early, stating in the opening paragraph that the Supreme Court’s recent decision regarding the Clean Air Act “created upheaval in American law and life.” This is hardly the case. In fact, the Court’s primary point was that unelected federal agencies cannot act on their own authority, but rather require “clear congressional authorization” before issuing binding regulations. This should not come as a surprise (or a disappointment) to any reasonable person; otherwise the floodgates would be opened for unbridled rule by executive order.

Caplan openly laments that with the emerging conservative majority the balance of power between the right and the left was “about to flip for the first time in almost half a century.” Many would opine that such a shift is long overdue; it certainly does not mean that the Court is automatically wrong on the issues or has any less judicial integrity than before. Unfortunately, the most vociferous attacks on the Court, which have become distressingly common in the mainstream media, often originate from those on the left, who suggest that when the Court does not rule their way, something must be fundamentally amiss. Some, including Massachusetts Senator Elizabeth Warren (like Kagan, a former faculty member at Harvard Law), have openly proposed court-packing as the only reasonable remedy. There is a two word phrase which accurately and succinctly describes this reaction: “sour grapes”.

Scott Simpson, M.Arch. ’75
Carlisle, Mass.

 

Lincoln Caplan’s celebration of Justice Elena Kagan is badly marred by a mistaken passage that could easily be read as an appeal to anti-Catholic bigotry. Observing that “[a]ll the justices in the majority [in Dobbs v. Jackson Women’s Health Organization] were raised Catholic,” Caplan contends that the Dobbs ruling was “based on the theological belief that life begins at conception.” But nothing in the Dobbs majority opinion invokes, or in any way depends on, such a “theological belief.” Nor does the opinion even invoke the scientific consensus that the life of a human being begins at conception. Rather, the “overwhelming consensus” that the opinion relies on is a historical legal consensus among the states that demonstrates that a right to abortion is “not deeply rooted in the Nation’s history and traditions.” The differences between the justices in the majority and those in the dissent—who include Justice Sonia Sotomayor, who was also “raised Catholic”—are legal, not theological.

Caplan also charges that laws against abortion “encroach[] on the religious freedom of the many whose faith leads them to believe … that life begins at birth.” But for anyone who holds that scientifically unsound, faith-based belief, it obviously does not follow that her religious faith generally requires that she have an abortion. In some faiths abortion might well be considered obligatory for women facing life-threatening circumstances. But there has never been an abortion law in this country that has not had a life-of-the-mother exception, and if such an exception were so narrowly drawn that it conflicted with a woman’s faith demands, the legal question would be whether religious-liberty principles entitle her to a broader exception, not whether the entire abortion law should be invalidated.

Edward Whelan ’81, J.D. ’85
Antonin Scalia Chair in Constitutional Studies
Ethics and Public Policy Center
Washington, D.C.

 

Clearly in a civilized republic under legitimate rule of law, the right to commit a murder of convenience on an unborn baby should emanate from a duly elected legislature as law and not as a bogus, misguided judicial “penumbra” from an un-elected court. Such is especially the case where the innocent is often cruelly, unusually dispatched by edged instruments or blows to the head and the brains are subsequently sucked into a sink—despite futile attempts by the helpless victim to evade the relentless attacker. And an EPA administrative regulation in the case of Roe would not cut the mustard either.

Dobbs can only strengthen the proper trust and legitimacy of the Court by referring the long recognized error of Roe to the legislatures where it has always belonged. Good job.

As to the leaking of the Dobbs draft, one can wonder about whether the source was from the offices of the majority or the offices of the dissent and with what probable effect on the legitimacy of the court and preserving the rule of law in the American constitutional republic.          

Paul B. Steiger, M.B.A. ’71
La Jolla, Calif.

 

The contrast in the November-December issue between your report of President Bacow’s comments at opening exercises (“We Will All Be Arguing”) and Lincoln Caplan’s article (“Justice Elana Kagan, in Dissent”) could not be more striking.

 In his speeches, Bacow emphasized, “If you and I are all doing our jobs…we will all be arguing.” According to Bacow, these arguments are never resolved, in the Jewish tradition, because “[W]e have no definitive authority for resolving differences of agreement over the interpretation of texts or doctrine ….” In other words, serious people will, and should, disagree about serious issues, but these arguments can never be resolved without some recognized arbiter.

 In Caplan’s article, decrying the Supreme Court’s decisions in West Virginia v. EPA and Dobbs v. Jackson Women’s Health Organization, Caplan (and, as reported, Justice Kagan) go so far as to question the political legitimacy of the Supreme Court for these decisions. Hence the various subtitles and cover title for the article: “What to do about the loss of trust in the Supreme Court”; “Ebbing trust in the Supreme Court, and what to do about it”; “The Court’s Crisis: Law & Legitimacy.”

 Under our Constitution, in contrast with the Jewish tradition, the U.S. Supreme Court is “the definitive authority for resolving differences of agreement over the interpretation of texts,” i.e., the Constitution. In that role, the Supreme Court is tasked with deciding who shall be “the definitive authority for resolving differences of agreement over doctrine,” i.e., public policy. In both the EPA case and the Dobbs case, the Supreme Court, as ultimate arbiter of our Constitution, recognized our legislatures (Congress and the state legislatures) as the proper bodies for deciding carbon dioxide emissions policy and abortion policy.

 With all due respect to Justice Kagan and Caplan, in our representative democracy, vesting policy decisions in our elected representatives is the most politically legitimate thing that the Court can ever do. While reasonable people can disagree about the wisdom of these two very important cases (and I do), the political legitimacy of these decisions is beyond reasonable doubt. Any attack on them, or the Court, as illegitimate gravely subverts both the Constitution and the rule of law.                   

C. Mark Pickrell ’88
Nashville, Tenn.

 

I was surprised and a little appalled to see Lincoln Caplan’s assertion that it is a “theological belief that life begins at conception.” This is not theology or any aspect of religious belief. This is science. This is birds and the bees stuff. When sperm meets egg, fertilization takes place and new life begins for whatever mammal is involved. Whether you call it an embryo, zygote, fetus or unborn baby, it is a human organism that will develop for approximately nine months until a baby is delivered, hopefully normal and intact. You can believe and even pray otherwise until the cows come home, but it won’t affect the scientific outcome of conception.

Theology and religious beliefs do come into play when considering how the law should treat pregnant women and their unborn “organisms.” This is not a matter of life but of respective rights and prerogatives. The Catholic Church asserts that “personhood” for the newly-conceived human occurs at conception so, presumably, abortion at any stage would expose pregnant women to prosecution for child abuse, negligent manslaughter, or first degree murder if their conduct during pregnancy harmed their unborn child. At the other extreme, a viable infant could be aborted within a few weeks or days of birth at the discretion of the mother. These are the bookends of the abortion debate. Strictly speaking, the theological debate is about ensoulment and will not be resolved here on earth. But the law is not concerned about souls. It is concerned about physical life. No matter your position on abortion, surely there is something deeply and morally amiss when millions of women are demanding the right to kill their own unborn children.

James L. Carney, J.D. ’66          
Madison, Wisc.

 

“Justice Elena Kagan, in Dissent” is researched poorly and appears to spew anti-Catholic invective. Caplan claims that the Court in Dobbs reached a decision no party requested, which is flat wrong. Mississippi did request the overturning of the federal constitutional right to an abortion at the final stage, i.e., Supreme Court review. Mississippi’s initial appeals filings pursued upholding of its 15-week ban, as Caplan notes, but at the end the state sought more ambitious relief. This practice of appellants requesting overturning of a precedent at the Supreme Court, without raising that legal issue at lower courts, appears again in Students for Fair Admissions v. Harvard.

When Caplan points out that the justices in the majority in Dobbs are “raised Catholic” and proceeds to speculate that the religious views of their upbringings somehow caused their votes, he wades into dangerous territory where a person’s religious background renders him or her a religious oppressor. The justices could not choose their upbringing. They never wrote that their decision is based on any theological beliefs. The article’s nonsense about Dobbs somehow infringing on women’s religious freedom is totally unrelated to the constitutional basis of Roe v. Wade, Planned Parenthood v. Casey, and related cases, which is founded on the implied right to privacy.

Is Caplan interested in a world where people write about his views or Justice Kagan’s reflecting their Jewish backgrounds and that such religious influence is somehow unfair to a mostly non-Jewish population?

Rekha Vemireddy, J.D. ’93
Winchester, Mass.

 

I was very surprised at the cover article on “The Court’s Crisis.” It actually appears to be a mashup of three or four articles.

The first one is a hagiography of Elena Kagan that sounds as if it were lifted from a teenage fan magazine describing the latest heartthrob. Kagan is presented as uniformly good, wise, brave, timeless, influential, and practically perfect in every way.

 The second one is a dualistic view of politics that would do a hardcore Manichaean proud. Liberals are always, without exception, good, kind, benevolent, and wise. “Right wing” politicians are always without exception, mean-spirited, inconsistent, stupid, and vengeful.

The third one is a panegyric to abortion as if it were a timeless right on a par with freedom of speech and freedom of religion. The author never mentions what abortion is, namely the premeditated, cold-blooded killing of a baby with a beating heart. Why people who are otherwise so good about championing the weak and helpless defend this practice is beyond me.

There are also curious asides in the article, such as the mention of the Catholic religion of the judges in the majority. Why this is relevant is never explained. President Biden is also Catholic. So what?

 There are also several howlers in the article, such as the mention of “the theological belief that life begins at conception.” As far as I know, this “theological (which is now a bad word?) belief” is taught by every high school biology text in every high-school biology class in the world.

Finally, there is the timing of the article. It appears in the same issue of with a “7 Ware Street “ column that talks about the probability that Harvard will lose a major civil rights case at the Supreme Court. I would like to think that a cover article undermining trust in the Supreme Court in the same issue does not mean that Harvard is a sore loser. But the timing of these two articles does appear disingenuous at best.

This article (or these articles) fall far short of the usual high standards of Harvard Magazine and of Harvard University.

Tom Neagle, M.B.A. ’72
Fort Mill, S.C.

 

I have to admire your brassiness questioning the Supreme Court’s “legitimacy” just as they are about to rule on a case very important to Harvard—whether or not Harvard is committing illegal racial profiling in its admissions’ policy. Regardless of where the chips fall, surely everyone can agree that Justice Roberts’s tenure as Chief Justice has been an abject failure.                   

 Steve Gidumal, M.B.A. ’89
Ottsville, Penn.

 

Editor’s note: For the record, there was and is no connection between the opinion column at the front of the magazine and the journalism in the feature well and elsewhere, like the article on the Supreme Court. In many respects, the 7 Ware Street column is a critique of the University’s communications about its diversity values and policies, rather than a defense, and suggests changes no matter what the Supreme Court rules in the affirmative-action litigation.

 

In “Justice Elena Kagan, in Dissent,” Lincoln Caplan points out that all the justices in the Dobbs majority were “raised Catholic.” He evidently views this fact as relevant because, as he claims, Dobbs makes possible laws “based on the theological belief that life begins at conception.” This, he argues, encroaches on the religious freedom of those who believe otherwise.          

 While the Catholic Church does recognize that human life begins at conception, this is essentially not a matter of theology, but of natural science. Like the Augustinian friar Gregor Mendel’s laws of genetics, its position is based on observable fact. It would be hard to prove that an embryo or fetus is not human, and that it is not alive. The law may not recognize it as a legal or natural “person” entitled to civil rights, but regarding it as human life entitled to at least some legal protection does not encroach on anyone’s religious freedom.

The Dobbs dissent noted that “Throughout our history, the sphere of protected liberty has expanded, bringing in individuals formerly excluded.” Perhaps some day our society will attain a level of humaneness that will prompt it to expand the sphere of protected life to include the unborn.

Caplan observes that the Roberts court “heavily favors the strong over the weak.” That may well be so. But in Dobbs, it did precisely the opposite.

Andrew Sorokowski, A.M. ’75
San Francisco

 

Lincoln Caplan’s article celebrating the dissent in Dobbs and lauding the writing skills of Harvard alumna Kagan, suggests that Caplan, a generally insightful observer, has not read the dissent. If the arguments in the dissent take hold in future court deliberations, the Supreme Court’s future opinions will become irreversible and the gender disputes, which have apparently existed below the Court’s surface, therein revealed by the dissenters will govern future decisions. The dissenters would create a class of decisions that may not be overturned.

One can only imagine the future arguments over what decisions are beyond correction. The dissenters would have us be governed by the civil rights cases and the Plessy decision. More alarmingly the dissent argues the Fourteenth Amendment must be construed as an anti-feminist statement because in 1868 when adopted, women did not have the right to vote, and therefore the prevalence of laws nationwide criminalizing abortion and the absence of an abortion right, may not be relied upon as argued by the majority in construing the amendment.

However, the ability of the Court to overrule its erroneous past decisions is a critical aspect of its authority. Otherwise the Court would shut down arguments and issues and ultimately govern the country, no dissent would be allowed. Plessy v. Ferguson would be the law. Most alarmingly, the dissent would project the Court as a party in the nation’s persistent political and social disputes in areas of race and gender. Americans would, one supposes, in the America viewed by the dissenters, be urged openly to discount Justice Thomas’s opinions because he is black and blacks did not vote on adoption of the Constitution or the Fourteenth Amendment, and to reject the Constitution’s authority and the majority opinion, because the amendment was enacted and for the most part amended before women possessed the right to vote. The fact remains that the majority opinion in Dobbs is a masterful statement of constitutional law and the limits on the rule of stare decisis. The dissent is a disgrace and should go in the dustbin with the Roe and Casey decisions.

Phillip Cole, Georgetown Law, ‘64

 

Reparations

Thank you for Jonathan Shaw’s excellent “Reparations for Slavery” (November-December 2022, page 10), which nicely summarizes the evolving attitudes concerning this controversy, as represented by researchers Linda Bilmes and William Brooks. For many, the concept of reparations represents a logical continuum of public opinion regarding social reforms, which began in the early nineteenth century in England, for instance, and spread to the U.S. somewhat later.

 The lingering question remains: what should be the government’s role be in the controversy? There is a more recent example of reparations for forced labor in Germany during World War II. Certain existing companies directly responsible for such activity were required to participate, while those which had reinvented themselves by legal means were not. Class action suits filed in the U.S. in the 1990s resulted in the German Foundation Act for the purpose of establishing compensation programs. Given that punitive measures for aberrant conduct had already been taken where possible, how otherwise should the harm caused by state-sponsored activity, and the necessity for compensation, have been addressed?

Early compensation has been routinely granted, by agency determination for seemingly trivial events, such as agricultural claims stemming from the unfortunate Space Shuttle Challenger event in 1986, which frightened Texas cattle.

Whether by enactment or agency, legal and fiscal considerations in the analysis of such claims against governmental actors will have unique characteristics in keeping with the “spirit of the times.” Taxation of commercial properties owned by tax-exempt entities may greatly enhance general revenue, worldwide. Legal reform can result in speedier decisions and elimination of frivolous claims. Thankfully, a number of government leaders throughout the world have recognized the importance of this issue, and have understood its resolution requires more than granting funds and congratulating oneself on a job well done.

Henry Oster, M.D. ’71
Ventura, Calif.

 

“Reparations for Slavery” reflects much that is wrong with higher education today. Instead of doing objective research, it starts with a favored conclusion—reparations for slavery are good—and then goes seeking examples to justify the favored policy.          

Its second flaw is that almost all the examples it cites—payments to everyone from farmers to fisherman and climate change “victims”—are not reparations. They are government insurance claim payments or economic stimulus programs. The recipients or “victims” are all living, and the underlying causal event is current or recent, not years or centuries ago.

For those in favor of “reparations,” stop trying so hard Instead, like those other programs, just say we’re doing it for economic or social stimulus. Drop the word “reparations.” Otherwise, given this new “definition,” the “reparations” line will be non-ending: women were denied the right to vote until 1919 and have suffered many other harms before and since; the handicapped were denied opportunities; long before the Holocaust, Jews were enslaved in Egypt, and more recently discriminated against here; and so it goes.

Jean DuBois ’70
West Palm Beach, Fla.

 

Bilmes and Brooks make a strong case for cash reparations for blacks because of slavery, and identify the objections of time, cost, and administration. A better plan is to provide blacks with better education, the key thing that they were and are cheated out of, and the thing that will make the most difference in their lives.

Young blacks need universal pre-kinderarten, better K-to-12 schools, and free community college, two years of college, or job training so they can develop their skills and get good jobs. This sounds like a lot but it just makes our students competitive with students in other advanced countries.          

Better education satisfies the three objections:

  • Time: It wasn’t just slavery that hurt blacks, it was Jim Crow, redlining that kept them from living in areas with good schools, the mishandling of the GI Bill, and preventing the parents and grandparents of today’s blacks from joining unions and getting good jobs so they could live in better neighborhoods with better schools. This is recent history and today’s non-blacks —like me—benefit from the harm done to blacks. We live in the better neighborhoods with the better schools.
  • Cost: The proposal will ultimately pay for itself with higher incomes and higher taxes. Our country will benefit from better-educated blacks who, when given the chance, excel in so many areas like music, fashion, sports, academics, politics, and the military.
  • Administration: the administration will be simple. There will be an income cutoff to qualify for these benefits.

The final selling point is that not just blacks, but many other Americans need these benefits. The program should be available to all students who are struggling with poor schools. The focus should be on correcting the injustices that blacks endured but the solution will benefit many other Americans who also need help.

Mike Clement, M.B.A. ’71
Bloomfield Hills, Mich.

 

In  “Reparations for Slavery,” the authors identified a variety of government programs which make Americans whole in response to economic injuries.  

 It is troubling that the author repeats the canard first published in Nikole Hannah-Jones’ “The 1619 Project,” that the Federal government “assisted the effort to provide reparations for victims of the Holocaust,” without elaborating on which entities actually compensated the surviving slaves of the Third Reich.  The post-war German government has committed to repaying the labor forcibly extracted in German munitions plants from Nazi slaves who are currently alive. Similarly, the French government paid Holocaust survivors herded on French trains destined for Nazi camps. In this hyperpolarized time, it must be emphasized that the reparations were paid to the currently living. The canard that creates the impression that the U.S. government paid reparations to survivors of the Shoah when it clearly did not had its genesis in the “The 1619 Project.” As “proof,” of reparations paid to Jews, Nikole Hannah-Jones cites an acknowledgment in the Congressional Record recognizing Holocaust Remembrance Day.[1]  This article inaccurately creates the impression that the U.S. government pays reparations for activities (such as the Holocaust) that it had no part in in order to promote the cause of reparations for African-Americans.

 Whether termed “restorative justice,” or reparations for slavery, the responsibility of the Federal government to compensate the descendants of enslaved Americans will consume more political debate in the remainder of President Biden’s tenure. Even after he lightly dismissed the notion during a presidential debate, HR 40, Commission to Study and Develop Reparation Proposals for African Americans Act,  has remained a live issue in Congress and is currently being studied.[2] Individuals states such as California have formed study commissions to present their findings to the legislature on the potential role reparations can provide to the descendants of enslaved Californians.[3] While reparations for African Americans remains an open issue, it is fundamental that evidence supporting (or detracting) from this cause be presented accurately.

[1] Congressional Record, Volume 16, Number 19 (January 30, 2019), available at https://www.congress.gov/116/crec/2019/01/30/CREC-2019-01-30.pdf
[2] Available at https://www.congress.gov/bill/117th-congress/house-bill/40 (last accessed December 1, 2022).
[3] Lee, Kurtis, New York Times, California Panel Sizes Up Reparations for Black Citizens, available at https://www.nytimes.com/2022/12/01/business/economy/california-black-rep... (last accessed December 1, 2022).

James Morgan, M.P.A. ’03
Washington, D.C.

The November-December 2022 issue of Harvard Magazine contained a thought- provoking article titled “Reparations for Slavery?” The article ended by quoting Kennedy School professor and former NAACP CEO Cornell Brooks urging that, “we can we can (sic) do this…” Regrettably, the article was long on “why” but, at least in the case of reparations for slavery, rather short on “how.”  The latter has long been the giant hurdle to reparations implementation.

To be ethically and legally responsible, such a program would require potential claimants to engage with some sort of invasive, potentially humiliating, genetic database and/or obtain confirmable genealogical records going back up to five generations. Management for such a program would require the Federal Government to create yet another large bureaucracy to adjudicate claims.

How many African Americans can provide verifiable documentation going back some 150 years proving they are direct descendents of slaves? Obviously “taking an individual’s word for it” would open the program to massive improprieties. One could even anticipate the incarnation of an entire, and very lucrative, cottage industry providing “acceptable documentation”—for a price. Pity the poor government bureaucrat who disallows an individual’s documentation.  Clearly, there would be extensive frustration, animosity and even charges of “racism” by claimants who provided documentation deemed inconclusive or spurious.

Next comes the problem of proportion. If one could prove that a great, great, great grandmother had been a slave but not a great, great, great grandfather, would that individual receive only 50% of the reparation?

And 50% of what? As Harvard alum, and likely descendent of slaves, Thomas Sowell has quipped, “…what is your ‘fair share’ of what someone else has worked for?” Can anyone legitimately put a dollar amount on the suffering endured by those brought forcibly to the United States? And if some commission or government bureaucracy did determine such an amount, what would preclude future generations from expressing outrage that the amount was insufficient.

Would frustration also extend to U.S. taxpayers who arrived in America long after the abolishment of slavery? Further, should there be reparations for the descendents of some 360,000 Union soldiers who gave their lives to end that evil? Perhaps a tax credit for the descendents of abolitionists who risked life and limb with the Underground Railroad? One could easily see this program growing like Topsy, to quote Harriet Beecher Stowe.

In sum, I fear any attempt to adjudicate “reparative justice” would in no way ameliorate the stigma of slavery but rather only increase frustration, bitterness and animosity.

Col. (Ret.) William F. Prince ‘18
Melbourne, Fla.  

                                               

 

George Reisner

I was appalled to read deep into Peter Der Manuelian’s “Vita: George Reisner” (November-December 2022, page 38), after his admission that Reisner could not “quite embrace the existence of a great African civilization in the Sudan [which would have been Black],” that “In these racist misinterpretations he was hardly alone, but his carefully compiled scientific record allows us to easily [emphasis added] set aside those theories that are no longer tenable today.”

This is how one white man forgives another for his racism even as Harvard struggles with its institutional legacy of racism and slavery. No, Reisner’s good work elsewhere does not easily set aside his racism and Harvard, for all its good works, will have to directly confront its racist past.

Philip Zwerling, M.Div. ’74
Mendocino, Calif.

 

The author responds: I was referring to how easily Reisner’s meticulous documentation can still be used, not to how “easily” we can or should forgive his racism. That is a problem contemporary Egyptologists, unlike their predecessors, are grappling with, and are working hard to acknowledge and rectify.

 

Astonautical Date

This article was a great reminder of a important and historic mission, and of the many ways the Harvard community contributed to this national accomplishment (“Apollo 17 Turns 50,” November-December 2022, page 19). One correction: Harrison Schmitt did not enter Harvard in 1956, but in 1957. In 1956 he was starting his senior year at Caltech, where I was also an undergraduate. By coincidence, we both graduated in 1964 from our respective Harvard schools.

Jim Sorensen, M.B.A. ’64
Allentown, Penn.

 

Studing Humanities

The struggle of the humanities in higher education is familiar fare, but the situation at Harvard is not as bleak as described in “Concentration Churn” (November-December 2022, page 24). Many students feel pressure to concentrate in a STEM field, but at Harvard many students also discover a passion for the arts and humanities. Including joint concentrators, the number of concentrators in the arts and humanities rose over 10 percent between 2015-16 and 2018-19. The pandemic threw noise into the numbers that will take a while to fade, but with any luck the upward trend will then resume. To be sure, concentrator numbers are not what they were 20 years ago, but the institution has devoted immense resources to its School of Engineering and Applied Sciences, while keeping the size of the College constant. Most Harvard students recognize that they live in a world in which holistic attentiveness, interpretive care, and trenchant communication are as vital as the next round of pharmaceuticals or algorithms.

 Robin Kelsey, PH.D. ’00
Dean of Arts & Humanities

Henry Lee Higginson

Face-scarred Civil War hero “Major” (he preferred this to his higher rank), Higginson was more than years ahead of stuffy Harvard Law (The College Pump, November-December 2022, page 64). Brother-in-Law of Alexander Agassiz—his A.B. 1855 classmate, his fellow Corporation Member and much, much more—Higginson was a major investor in Agassiz’s (and fellow Harvard in-law Quincy Shaw’s) Calumet & Hecla Copper Co., operating the “richest metal mine in the world,” one mile directly beneath my hometown of Calumet, Michigan.

In addition to his mentioned (Harvard) philanthropies, music-loving Higginson endowed the Boston Symphony Orchestra and its Symphony Hall, which prominently displays his saber-scarred portrait.

Alex Agassiz’s own copper wealth endowed the “Agassiz” Museum of Comparative Zoology including a half-dozen “Alexander Agassiz” professorships, and Radcliffe College co-founded and for many years headed by his stepmother Elizabeth Cabot Cary Agassiz (of 32 Quincy Street, now site of the Harvard Art Museums), whose portrait graced Harvard’s salon of presidents in University Hall. Wellesley College was endowed by other “Copper Country” wealth.

Not a bad run for “Major” Higginson and for his kin and friends.

Terry Murphy ’59
Bethesda, Maryland

On “Loving Critics”

I would suggest that people who take the time to write to President Bacow probably love Harvard even if they don’t universally love his tenure there. I expect that a man in his position would be prepared to continually receive criticism—to expect it and hopefully learn from it (The View from Mass Hall, November-December 2022, page 3)          

The resident of Harvard is not a figurehead. From where I sit it seems more and more leaders, either political or academic, expect to be accepted, followed, and even praised, without any pushback. This mindset is unproductive as well as dangerous.          

Gretchen Bachrach
Arlington, Mass.

 

Justice Frankfurter

Lincoln Caplan’s negative assessment of Justice Felix Frankfurter (“Is the Supreme Court's Role Undemocratic?,” September-October 2022, page 49 neglects at least two key elements of Frankfurter’s legacy that would seem to support Caplan’s concerns about judicial self-restraint and democracy.          

First, it is crucial to remember that Frankfurter, as professor and justice, taught generations of lawyers, judges, and professors that self-conscious, accountable consideration of the judicial role is an essential component in judges’ decisions and law-making. As Caplan says, Frankfurter’s particular conception of that role was unduly restrictive in some key cases. But his teaching itself is not so conservative: Careful consideration of the sources of judicially usable values in the common law and in the text, structure, and assumptions of the Constitution can justify courts’ recognition of new legally protected fundamental interests. Thus, understanding the creative imperatives of the judicial role is what enabled the Supreme Court to recognize an interest in equal legislative representation in Baker v. Carr, the decision Caplan extols. Similarly, it justified Roe v. Wade and the Court’s recognition of other fundamental privacy interests. This is not to give Frankfurter credit where it isn’t due; but it is to say that his career-long emphasis on the judicial role could, in different hands, lead to liberal outcomes. Great teaching is dynamic and outlives the teacher.

The second neglected element in Frankfurter’s legacy concerns the courts’ degree of deference to social and economic regulation that does not impact fundamental interests in personhood. Here Frankfurter’s emphasis on the judicial role, in particular his consideration of the relative institutional competence of courts versus Congress and agencies to deal with complex, contested questions of policy, leads to judicial deference to those branches of government. I would think Caplan would approve. In any event, at a time when the majority of the Supreme Court seems determined not to defer but rather to roll back Congress’s and federal agencies’ ability to deal with the nation’s problems, it would be helpful to acknowledge this crucial, democratic consequence of Frankfurter’s jurisprudence.

Robert H. Cole ’52, LL.B ‘55
Professor of Law Emeritus
University of California, School of Law, Berkeley
Berkeley, Calif.

The Economy

Kudos to Jonathan Shaw for his excellent overview of the grave inflation harms the nation grapples with (“The Off-Kilter Economy,” November-December 2022, page 40). However, on the central question of whether policymakers should prioritize fighting serious inflation with monetary policy or instead slow down interest rate hikes that could throw a wrench into the job markets and lead to recession, I urge that the inquiry needs to be more analytical and empirical about how we choose between fighting inflation or avoiding recession, or at least call for a more empirical, fact-based approach to which objective is most in the public interest. Regarding this thorny dilemma, Shaw highlights but does not fully enough delve into or question paraphrased statements from Professor Kenneth Rogoff about inflation hurting a larger number of people than recession, and Shaw observes that facing recession seems to be a better option that getting slammed by inflation (“But faced with a choice between inflation or recession, the latter [recession] is usually the better option”).

Navigating the choice between recession and inflation is too important a dilemma to reckon with without more in-depth discussion of the pros and cons of each approach. For sure, all of us are hurt by inflation in the form of reduced purchasing power, but that in no way negates that many of us would rather take a hit in what we can buy at the pump and the supermarket than see millions of Americans thrown into the more agonizing pain of unemployment from recession. This is a fundamental fork in the policy road and we owe it to the nation to delve more deeply into quantifying and critically thinking about the relative costs and benefits of avoiding recession or inflation and finding the right balance, and not relying on what may ultimately be personal predilections or even biases that lean to fighting inflation more so than avoiding recession. Likewise, further quantification and fact-finding is needed as the anti-inflation measures (interest rate hikes) dramatically reduce our purchasing power by raising mortgage rates, credit card and loan costs, all in the name of checking inflation, yet without quantification of whether the price increases from interest rate hikes are greater or less than the price savings from reduced inflation.

William August, J.D. ’80
Cambridge, Mass.

 

I read with interest Jonathan Shaw’s “The Off-Kilter Economy—but was intrigued more by what it did not say, than what it did. In talking about inflation, not a single economist interviewed mentioned the record profits and stock buy-backs corporations are reporting as a possible source of current inflationary pressures. Why not?

 An analysis by the Economic Policy Group in April argued quite convincingly that corporate profits contributed to slightly more than half of the increases in unit prices between the second quarter of 2020 and the last quarter of 2021. More recently, the same analyst noted that “rising profit margins have accounted for roughly 40% of the rise in prices.”

 Why should economists consider (and journalists demand that they do so) this possible source of the problem? Well, if profits rather than costs are driving pricing decisions, then the remedies proposed by the economists won’t likely have much impact. How exactly does raising interest rates encourage product managers to cut prices? (Answer: it doesn’t.)

 Although I may not have a degree from Harvard’s Business School (my M.B.A. comes from Columbia) and I left the corporate world over a decade ago, I do remember what I learned about product pricing—cover your costs (although there are some exceptions for promotional or strategic reasons), consider the supply and demand curves and elasticity, and then price to your intended market. A luxury good can command a higher mark-up than a commodity—but most of Americans and the experts interviewed by Shaw aren’t complaining about the rising prices of luxury goods. They’re complaining about the rising price of gas and the rising price of food. Exactly the industries recording record profits and buying back stock.

 Mary M. Bathory Vidaver, M.T.S. ’15
Washington, D.C.

Erratum

Low-Enegy, Low-Cost Cooling for the Future” (November-December 2022, page 9) reported that the coldSNAP system “cooled the third-floor room by 10 degrees Fahrenheit.” That should have been 10 degrees Celsius.

You Might Also Like:

Illustration by Jessie Lin

Home, Harvard, and (Im)permanence

President Lawrence S. Bacow

President Lawrence S. Bacow

The View from Mass Hall

You Might Also Like:

Illustration by Jessie Lin

Home, Harvard, and (Im)permanence

President Lawrence S. Bacow

President Lawrence S. Bacow

The View from Mass Hall