Josh Blackman is a constitutional law professor at the South Texas College of Law Houston and the President of the Harlan Institute. Follow him @JoshMBlackman.
Josh Blackman
Latest from Josh Blackman
Justice Kavanaugh's CASA Concurrence Moves Away From Abstractions About The Shadow Docket To Focus On The "Interim Before The Interim"
The Supreme Court may not have to intervene for "run-of-the mill cases" but will intervene for "major new federal statutes or executive actions."
Federal Courts May Be Able To Receive Filings 24/7, But There Is No Expectation To Review Unanticipated Filings Overnight
If the Supreme Court wants to rebuke lower courts for not acting promptly enough, the Justices should police their own conduct.
The Supreme Court Is Supreme, And The Inferior Courts Are Inferior
Mi CASA no es su CASA
CASA, Grupo Mexicano, and Ex Parte Young
Does Ex Parte Young find an "Analogue in the Relief Exercised in the English Court of Chancery"?
Bruen and CASA: Analogical Originalism
Yet, neither the majority nor the dissent cited Bruen
Free Speech Coalition Brings Text, History, and Tradition to the Free Speech Clause
Justice Thomas tries to Bruenify free speech doctrine, but I'm not sure it will work.
Donald Trump, The Transformational President
The New York Times admits that Trump is going further than Buckley, Reagan, Goldwater, and Taft "might have imagined possible"
Two Supreme Court Roundups In Two Cities In One Day
Or, from one swamp to another swamp.
Justice Thomas Avoids Substantive Due Process with Meyer and Pierce
Thomas may attempt to recast Pierce as a Free Exercise case, but it cannot be understood in that fashion.
The Status of Smith and Yoder After Mahmoud
The Court continues avoiding the Smith issue, but in an unexpected way.
Contrasting Coercion for the Free Exercise Clause in Mahmoud and Coercion for the Establishment Clause in Kennedy
The Court finds that the government cannot indirectly coerce children who are exercising their religious beliefs, but the government can indirectly coerce children who are not exercising their religious beliefs.
Another Boston Judge Enters Ex Parte TRO Hours After Filing, Without Any Time To Actually Read Filings
The judge also granted TRO of a statute without even addressing any of the usual factors.
The Texas Law Deans Provide A Weak Defense of the ABA's Accreditation Role
If this is the best the law deans can muster, SCOTX should seriously reconsider what value the ABA provides.
SCOTUS Bends The Law In Yet Another Obamacare Case
Kennedy v. Braidwood Management, Inc. follows in the ignoble tradition of NFIB, King, and California.
Braidwood Distinguishes Between "Officers of the United States" And "Employees"
"Officers of the United States" can exercise "significant authority," but employees cannot.
Have The Gundy and Fulton Moments Passed?
The intelligible principle test and Employment Division v. Smith are likely safe from Justices Kavanaugh and Barrett.
Justice Kavanaugh Lays Out His Roadmap In FCC v. Consumers' Research
Justice Kavanaugh parts ways with Justice Gorsuch on the non-delegation doctrine, but charts two paths for independent agencies.
Justice Kagan Rejects "Combination Theory" Claims For Separation of Powers Cases
"A meritless public non-delegation challenge plus a meritless private nondelegation challenge cannot equal a meritorious 'combination' claim."
SCOTUS Holds, In A Footnote, That The "Capable Of Repetition, Yet Evading Review" Doctrine Can Apply Even When Plaintiff Does Not Seek A Preliminary Injunction
Justice Kagan mows down many circuit precedents without much explanation.
What Is A "Liberty Interest" And Why Does The Due Process Clause Protect It?
Once again, Justice Thomas raises questions the other Justices simply do not wish to answer.
Medina v. Planned Parenthood: Abandoning the Abortion "Distortion" Field For Section 1983 and the Spending Clause
The Court faults lower courts for not anticipating the abandonment of Wilder and other Section 1983 precedents.
What Is "Speed Dial"?
Justice Sotomayor used a catchy line in her dissent that most law students today will not understand.
The Chutzpah of Justice Kennedy Lecturing Us About Democracy on June 26
"Those who founded our country would not recognize [Justice Kennedy's] conception of the judicial role."
Comment to the Texas Supreme Court On Whether To "Reduce Or End" Reliance on the American Bar Association
"What is good for Texas is not necessarily good for the University of Texas, and vice versa."
