“Now Hypocritically Cry Foul”: The Boston Globe Issues Correction of Laurence Tribe Column on Texas Abortion Law

Professor Laurence Tribe has lashed out at conservatives for years, claiming that disinformation is a Republican tool that “prefigures the advent of fascist authoritarianism and the death of liberty.” While Tribe has been repeatedly criticized for false statements and conspiracy theories, newspapers continue to run dubious takes on the law and politics. However, there is a clear line between false and frivolous claims. The latter problem was brought to my attention by readers who noted that Tribe made a false claim about my prior writings. The Tribe column claimed hypocrisy for a column in which I took the very opposite (and consistent) position on the Texas abortion law. Tribe also used the alleged hypocrisy to embrace his own hypocritical position on the laws. It is enough to give you vertigo.

This week, the Boston Globe published a column by Lawrence Tribe, Jonathan Metzi, and David Hogg entitled “Democrats should apply Supreme Court’s abortion decision to firearms.”  (Jonathan M. Metzl directs the Department of Medicine, Health, and Society at Vanderbilt University. David Hogg is a student at Harvard College who became an advocate for gun control after the Parkland High School shootings).

The entire premise of the article is that California governor Gavin Newsom was brilliant to propose using the same type of law against gun rights — and people condemning such copycat legislation are hypocrites. The key line on the latter point is: “Commentators on the right who only weeks ago championed a similar approach for ending abortion now hypocritically cry foul when the topic turns to saving lives from gunfire.” The link of hypocrites “crying foul” is to one of my columns.

I have written and spoken on the Texas abortion law extensively and uniformly maintained that the law is facially unconstitutional. In the column cited by Tribe et al, I repeated that view while also condemning the California law.

The problem is multifold. First, the Texas law was quickly found to be unconstitutional by the district court, as would the California law. Indeed, many of us declared the law as facially unconstitutional under existing precedent on the day that it was enacted. That means that, while there are litigation costs, those costs would decrease quickly as other courts declare challenges to be unconstitutional.

I have also discussed the law on television and radio programs and criticized provisions like the bar on recovering attorney’s fees and the law’s jurisdictional rules.  While the law was clever in its use of private attorneys general, I predicted that it would be quickly declared unconstitutional, as a district court did.

What is most striking about the Boston Globe column is that all that is required for sourcing is for someone to hit the link and read the column. They would have seen that the column states the opposite in condemning both laws.

I have been a national columnist and a television analyst for decades and it is not uncommon to have my work criticized. Indeed, both Professor Tribe and I have discussed each other’s evolution in areas related to impeachment. Tribe, however, often attacks others in vulgar and personal terms. Tribe’s twitter account has been described by critics as a “vector of misinformation and conspiracy theories on Twitter” where he regularly engages in vulgar attacks on people holding opposing views.

 To its credit, the Boston Globe issued a correction to the Tribe article.

Correction: An earlier version of this column incorrectly included a link to a column by George Washington University Law School professor Jonathan Turley as an example of those who championed the Texas abortion law but oppose the California firearms initiative. Professor Turley has voiced misgivings about both. The column has been corrected and updated with a new link.

The irony is that Tribe was citing a column that did not treat the laws differently as an excuse to adopt a clearly hypocritical position in his own column. He and his co-authors added “[i]t’s ironic that the path the Supreme Court has opened for those urgently concerned to reduce gun deaths involves a new breed of civil lawsuit, but irony is no reason to refrain from the lawful options the court has now made available.” The problem is that the Supreme Court did not find that this was a “lawful option[] … now made available.” It only declined to issue an injunction on a law that was previously declared unconstitutional.

Now, as to the main point of the column, the authors proceed to encourage other states to replicate the California law.  Tribe et al insists that “[t]o urge progressive leaders to decline the Supreme Court’s invitation when the lives of their citizens are on the line is to urge unilateral political disarmament in the vital fight for firearms safety.”

Again, the column is strikingly misinformed or misleading. As noted in the very column originally cited by Tribe, this is not the same law.

Newsom limited the law to gun manufacturers, distributors, and sellers” to the exclusion of a wider array of purchasers or “aiders and abetters.” The Texas law was so menacing because it exposed such a wide array of people to potential lawsuit. It would not be quite as popular to go after gun owners or gun rights groups. Yet, Newsom is targeting businesses which are going to be less intimidated by such litigation costs in a law that would be clearly unconstitutional.

States may want to be tad cautious in following such advice. Tribe has been repeatedly wrong on such cases and advanced disproven or unsupported claims of criminal conduct in the past years.

Most recently, Tribe was the reported expert who encouraged President Biden to push a clearly unconstitutional executive order that was promptly rejected by the Court. Five justices previously stated that the CDC moratorium on evictions was unconstitutional. However, many on the left wanted the CDC to renew the order. Biden was reportedly told by the White House counsel and various experts that such an order would be struck down.

Biden acknowledged the obvious — that any new order to extend the moratorium would be unconstitutional. Indeed, he admitted that legal experts overwhelmingly told him so: “The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster.” Yet he added that he was able to find “several key scholars who think that it may and it’s worth the effort.”

The question then arose as to who would offer Biden constitutional cover when virtually every other liberal professor declined to do so — and the “several key scholars” were guessed by some of us to be a single figure: Harvard law professor Laurence Tribe. After his own White House counsel agreed that the move would be unconstitutional, Biden reportedly told his chief of staff, Ron Klain, to call Tribe.

Biden followed Tribe and the courts followed the Constitution. The order was quickly struck down.

Tribe’s advice on this law shows the same reckless and superficial analysis. As noted earlier, the move is likely to push both liberal justices and the Biden White House into an awkward position.

In the recent decision, Chief Justice John Roberts noted that:

‘The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. … Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” United States v. Peters, 5 Cranch 115, 136 (1809). The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.’

With his bravado, Newsom has guaranteed that courts will strike down his law as an open “mockery” of gun rights precedent and he will actually box in liberal judges and jurists in voting against the California law on the same grounds.

Indeed, the California law would put the Biden Administration into a bind. It just intervened first as an amicus party and then an actual party in the Texas litigation. (As expected, the Court tossed out the Biden Administration’s lawsuit as “improvidently granted”). The Administration insisted that such a law is an abomination given that the rights of abortion are established and this is an effort to nullify those rights through exposure to lawsuits. Here Newsom himself said that that is precisely what they want to do.

I appreciate the Boston Globe issuing the correction on the Tribe column. However, as past claims by Tribe have demonstrated, the rule for sourcing on such subjects for Professor Tribe remains Caveat Emptor. 

21 thoughts on ““Now Hypocritically Cry Foul”: The Boston Globe Issues Correction of Laurence Tribe Column on Texas Abortion Law”

  1. The most disturbing thing about this article is that The President of the United States would call Lawrence Tribe for advice. He simply wanted to know how he could twist the law to his advantage. Knowing Mr. Biden’s history we should not be surprised.

  2. “. . . many of us declared the law as facially unconstitutional . . .” (Turley)

    “Turley has voiced misgivings about both . . .” (BG “correction”)

    “Facially unconstitutional” is merely a “misgiving”?!

  3. “I have been a national columnist and a television analyst for decades and it is not uncommon to have my work criticized. Indeed, both Professor Tribe and I have discussed each other’s evolution in areas related to impeachment. Tribe, however, often attacks others in vulgar and personal terms.”
    *****************************
    Go easy on the ol’ lib. Tribe’s got a brain tumor.Here’s hoping it gets removed and he becomes the next William F. Buckley.

  4. I have found one consistency with the legal arguments of Professor Laurence Tribe: He first sets forth how he wants the laws he supports should be interpreted, then bases his entire theory on his flawed interpretation. I have personally referred to him in many writings as “the most dangerous legal scholar in the United States” for that very reason. He has made a mockery of what the law is.

  5. There is NO constitutional right to or freedom of abortion; the Founders understood that rights and freedoms were natural and God-given, abortion being the least bit God-given or natural, as God created pregnancy and suicide is not natural.

    In the absence of constitutionality, abortion must be legislated by States.

    Men may have cars, while it is accidental death when accidental collisions occur, and car manufacturers cannot be held responsible for the actions of drivers.

    Men may have guns, while it is criminal homicide to shoot another man, and gun manufacturers cannot be held responsible for the actions of shooters.

    Women may become pregnant, while it is criminal homicide to abort a nascent man, and women may be held responsible for committing homicide, if States legislate abortion as homicide.

  6. “Tribe, however, often attacks others in vulgar and personal terms.”

    Tribe is a leftist so what should anyone expect?

  7. Face it folks….the rabid Left care not about the rule of law….as they care not for the Constitution…and they will use any and every. means to advance their evil agenda…..whatever it takes.

    Lying to the Left is just one of Saul’s Rules implemented.

    Thus there is no way one can negotiate or compromise with a Leftist…..there is but one way to deal with them.

  8. TRIBE is way out on the Extreme Left, his positions and opinions are based on Science Fiction Law, not real Law and yet the DEM’s/Biden/Pelosi and others listen to him and his crazy far out legal opinions. He can’t take criticism, he is vengeful, and etc. He is a disgrace to Constitutional Law. It would be nice to see Tribe pleading a case in the Supreme Court, He would demonstrate his radical ideas, in person, and the Justices less one or two, would tear him up

  9. Invading Poland, France, and Russia meant the end of Hitler’s regime. Invading Ukraine should mean the end of Putin’s regime.

  10. Tribe is intentionally dishonest. He doesn’t care about truth because he knows his supporters don’t want to hear that and won’t look for it. They only want to hear what confirms what they already think.

  11. You wonder how Tribe was able to become a law professor. If this is the top law school in the country, we better get scared.

  12. Tribe’s continual presence on the faculty of The Law School is a disgrace. Tribe has been involved in a major plagiarism scandal (when Elena Kagan was Dean). He is also the author of an article on what constitutional scholars can learn from quantum physics, the most ludicrous example of scientism I have ever encountered. Barrack Obama helped research that one.

    So David Hogg (on the basis of not getting shot) is now a 2nd Amendment expert. Don’t get between him and a TV news crew.

  13. What the Boston Globe published – and called a “correction” is hardly that! So much for a “news”paper/site.

  14. The Tribe-backed replay of the eviction moratorium led to a Supreme Court slap down of the Biden administration based mainly on the idea that for the executive branch to act lawfully on a major issue affecting the economy or society, or in a manner that changes the traditional balance of federal-state powers, it must do so pursuant to a specific and clear delegation of power to it by Congress. This precedent and rationale were cited by the lower courts each time they imposed stays on Biden’s three vaccine mandates. It would be poetic justice if Tribe’s promotion of the eviction moratorium were to lead to a stay by the Supreme Court of Biden’s vaccine mandates.

    1. Thanks for providing a constitutional explanation for the moratorium legal issue that JT has never provided the reader over the course of many blogs. I tend to view the legal issue more as a statutory interpretation and application one — whether the cited statutory authority permits the moratorium or not.

      1. Thanks CC.

        What I meant was in effect a form of statutory interpretation. For this kind of “major issue”, the Court has said that for the executive to act, the statute must be clear and specific. In the moratorium case, the Court, and in the vaccination cases, the lower courts, concluded that Congress did not clearly and specifically authorise the actions taken.

        I agree that this is different from saying there was an unconstitutional delegation of legislative authority from Congress to the executive. That is applicable when Congress intends to confer broad authority on the executive but the Court concludes that it is too broad, because it delegates the power to set principles or standards rather than saying what the principles or standards are and leaving it to the executive to fill in the detail in specific contexts.

        It is also different from saying that the power simply does not reside in the federal government at all, either in Congress or the executive.

  15. Looking at Biden extending the viction moratprium, we have fallen a LONG way from Thomas Jefferson agonizing over whether the Constitution gave him the impicit authority to purchase the Louisiana Territory from France.

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