Harvard Hires a Scalia Clerk to Challenge the Administrative State

Cambridge liberals seek rights they wanted to deny the NRA

An anti-Israel protest at Harvard Law School, October 2023. Photo: The Editors.

The magnitude of the ideological u-turn that Harvard is taking in its lawsuit against the Trump administration trying to preserve its billions in federal research grant money is clear from beginning to end of the complaint in the case.

From the beginning: the second case cited in the complaint is Nat’l Rifle Ass’n v. Vullo, which, as Harvard’s lawyers summarize it, says the government may not “rely[] on the ‘threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression’ of disfavored speech.” That was the 2024 case in which the NRA sued New York’s superintendent of financial services, Maria Vullo, and got a unanimous Supreme Court ruling that “government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.”

This is comical, because Harvard sided with Vullo against the NRA in that case. There was an amicus brief supporting Vullo from “First Amendment Scholars” who spoke of “the need for government to express its understanding of the popular will.” Among them was Rebecca Tushnet, the Frank Stanton Professor of the First Amendment at Harvard Law School. “A claim of First Amendment retaliation by government officials is not pleaded through conclusory and threadbare accusations—especially when the alleged threats amount to legitimate government speech made in the context of investigations and enforcement actions into concededly unlawful conduct, and when the government speech is plainly within the scope of a government official’s regulatory authority,” said Harvard First Amendment professor Tushnet’s brief in that case.

Tushnet argued that, “To allow petitioner’s complaint to go forward on the basis of bare-bone allegations would undermine legitimate law enforcement efforts, including the exercise of prosecutorial discretion.”

There was a second amicus brief supporting Vullo from “financial regulation and administrative law scholars” including John Y. Campbell, the Morton L. and Carole S. Olshan Professor of Economics at Harvard University, and Joseph William Singer, the Bussey Professor of Law at Harvard Law School. They wrote, “Although Petitioner has characterized it as a First Amendment matter, this case is fundamentally about financial regulation and the extent to which regulators may ensure that the banks and insurers they oversee are safe and sound.”

Wrote Harvard professors Campbell and Singer, “Accepting Petitioner’s argument – that Respondent violated Petitioner’s First Amendment rights when she issued industry guidance about financial risks – would mean that regulators across industry sectors may not be free to raise concerns about identified risks to the entities they supervise. This could have profoundly negative consequences for businesses and consumers alike.”

After the Supreme Court ruled unanimously in favor of the NRA, Harvard attacked the court. A scathing Harvard Gazette article emailed to the entire Harvard community reviewing the court’s 2023-2024 term quoted one Harvard law professor, Kenneth Mack, who said, “This is a very conservative Court that is committed to deciding matters on which Americans passionately disagree with one another, and to resolving them in a manner that reinforces the conclusion that the Court’s rulings themselves reflect the deep cleavages in American society and culture. The most recent term reinforces the perception among many in the American public that, more than in any other period of modern American history, law — whether it be the law of statutory interpretation, administrative law, or constitutional law — as reflected in the Court, is simply politics by other means.” Another Harvard law professor, Martha Minow, complained, “Accountability, impartiality, clarity, and durability, key attributes of the rule of law, have taken big hits. It remains to be seen how viable is the constitutional democracy that the justices are entrusted to uphold. Now, the task is up to other branches, other courts, the states, and the people, meaning: all of us.” The same article quoted the director of Harvard Law School’s “Center for a Just Economy,” Sharon Block, accusing the Supreme Court of being engaged in “a project to destabilize public agencies’ ability to carry out the mission given to them by Congress where that mission involves protecting the public from corporate harm.” Harvard trotted out a senior lecturer and retired federal judge, Nancy Gertner, to complain that “an unpopular, ethically challenged Supreme Court (with respect to Justices Thomas and Alito) issued a decision giving presidents sweeping immunity from criminal prosecution.”

The Harvard Law Review published an unsigned article critical of the court for even having accepted the case, calling it “worrisome.”

So now—having opposed the effort to rein in New York regulators in defense of the free speech of the National Rifle Association and in fact having dumped all over the “unpopular, ethically challenged” justices who issued the decision—Harvard all of a sudden wants to protect itself from the Trump administration under the same principles it wanted to deny the NRA?

And look what lawyer Harvard has suddenly hired. The university isn’t using WilmerHale, whose star talent, Felicia Ellsworth (See “Harvard’s Seven Fancy Lawyers Misspell Name of a Prominent Jewish Alumnus”), is busy defending the New York Times against Sarah Palin. Instead Harvard has 16—sixteen!—other lawyers. They are: William Burck of Quinn Emanuel; Robert Hur of King & Spalding; Josh Levy, Mark Barnes, John Bueker, Elena Davis, and Douglas Hallward-Driemeier of Ropes & Gray, a longtime Harvard outside counsel; and—get this—nine lawyers from a little-known litigation boutique firm founded in 2021 called Lehotsky Keller Cohn LLP. Signing the complaint at the end was Steven Lehotsky, a 2002 graduate of Harvard Law School and a WilmerHale alumnus who had been in-house from 2013 to 2021 at the U.S. Chambert of Commerce. Lehotsky clerked for Justice Antonin Scalia.

Harvard president Garber’s email this afternoon announcing the lawsuit referred to “the government’s overreach.” Somehow when it was the government overreaching against the NRA, Harvard was less bothered by it—actually was cheering it on. It all suggests that what Harvard is really worried about here isn’t government overreach, as a principle, but rather its own $3.2 billion in federal taxpayer funding that the Trump administration has frozen. Anyway, if the Trump administration’s lawyers are looking for constitutional arguments to defend the administration’s actions, perhaps Professor Tushnet, the Frank Stanton Professor of the First Amendment at Harvard Law School, is available to help. Her arguments did not hold sway with the justices in the NRA case, but if you believe the rest of the Harvard Law faculty about how “ethically challenged” the Supreme Court is and how they are just engaged in “simply politics by other means,” maybe the nine will have a different view of it now that the First Amendment rights at issue are Harvard’s rather than the NRA’s. Harvard, at least, for its part, sure seems to have had not much trouble switching sides.