Neil Gorsuch, John Roberts Could Give Harvard a Win Over Trump

Harvard University’s lawsuit against the Trump administration may persuade Supreme Court conservative justices, such as Neil Gorsuch and John Roberts, to rule against President Donald Trump if the case reaches the court, legal experts said.

The Trump administration is facing a lawsuit from Harvard over its freeze on more than $2.2 billion in research grants after the university declined to comply with administration demands, including limiting campus activism, changing admissions policies, and restructuring its governance.

Harvard says the freeze violates its First Amendment rights, while the Trump administration argues the freeze is necessary because Harvard allegedly failed to mitigate on-campus antisemitism.

The complaint filed Monday said the administration hasn’t identified “any rational connection between antisemitism concerns” and the research facing grant freezes. It also stated the funding freeze would damage research, which fosters “American success” and preserves “American security,” at the university.

Several legal analysts told Newsweek the case may make its way to the Supreme Court, which would be tasked with weighing in on whether the freeze violates its right to free speech. Precedent suggests even some of the court’s conservative justices may back Harvard.

Newsweek reached out to the White House and Harvard for comment via email.

Former federal prosecutor Neama Rahmani told Newsweek justices Gorsuch and Roberts are two conservative justices who could give Harvard a victory.

“Justices Thomas and Alito have rubber stamped everything Trump has done, so they will likely side with the President. Of the remaining conservative justices, Justice Gorsuch has been a proponent of free speech rights and Chief Justice Roberts has protected institutions and constitutional norms, so those are the more likely justices to give Harvard the five votes it needs,” he said.

He added that Harvard has a “strong First Amendment retaliation claim,” and in the past the court has “historically prohibited the government from punishing institutions based on their viewpoint or political beliefs.”

Gene Rossi, also a former federal prosecutor, told Newsweek conservative Justices Amy Coney Barrett and Brett Kavanaugh could also potentially rule against Trump, as they appear to be “slowly using their patience with the veracity of the Trump decisions.”

He said it may take “several months” for the case to move through the system, but that Harvard would likely prevail.

“The federal governmen should not be dictating what colleges and universities should be teaching their students,” Rossi said.

Michael McAuliffe, former federal prosecutor and former elected state attorney, told Newsweek Harvard presents a “compelling and specific set of allegations regarding how the administration is violating the First Amendment and numerous aspects of the Administrative Procedure Act.”

“Harvard is in the unusual role of the victim and underdog in the current constitutional and funding fight. Only Donald Trump could make Harvard a sympathetic plaintiff,” he said.

He predicted the case will move quickly, as Harvard is seeking injuctive relief rather than monetary damage. Once it reaches the court, it could “reveal new alliances and views of the various justices.”

“A well developed body of cases supports Harvard’s complaint so the Court would have to significantly tack away from its own precedents and its approach to the First Amendment in order for the administration to prevail,” he said.

Barbara McQuade, also a former federal prosecutor, said it’s hard to predict how the case may play out, but that Harvard has “strong legal claims against the Trump administration’s efforts to pause billions of dollars in research funds, and Harvard is well funded for the long game.”

Steve Wermiel, professor of practice of constitutional law at American University, told Newsweek the Supreme Court has “often been supportive” of free speech.”

“While conservatives may dislike what they consider the liberal bias of higher education institutions, and point to campuses that have banned some far right speakers, and now the failure to stem anti-semitism, the conservative Court has also viewed protecting free speech as a possible solution to these concerns,” he added.

White House spokesperson Harrison Fields previously told Newsweek that “the gravy train of federal assistance to institutions like Harvard, which enriches their grossly overpaid bureaucrats with tax dollars from struggling American families, is coming to an end.”

“Taxpayer funds are a privilege, and Harvard fails to meet the basic conditions required to access that privilege,” he said.

On Tuesday, the American Association of Colleges and Universities said “unprecedented government overreach and political interference now endangering American higher education.”

“Our colleges and universities share a commitment to serve as centers of open inquiry where, in their pursuit of truth, faculty, students, and staff are free to exchange ideas and opinions across a full range of viewpoints without fear of retribution, censorship, or deportation,” the letter reads. “Because of these freedoms, American institutions of higher learning are essential to American prosperity and serve as productive partners with government in promoting the common good.”