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.
Two Supreme Court Roundups In Two Cities In One Day
Or, from one swamp to another swamp.
Josh Blackman
Latest from Josh Blackman
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."
SCOTUS Puts Skrmetti SDP Case Out Of Its Misery
The ACLU's cert petition is denied, and several other petitions are GVR'd.
Arkes: Is Skrmetti "The Best That Conservative Jurisprudence Can Really Serve Up Now, A Concurring Opinion in Buck v Bell?"
The conservatives "thought they were constrained from speaking by a jurisprudence that bars them from invoking truths beyond the text of the Constitution."
"What Skrmetti Should Have Said"
"Yet, Dobbs did not repudiate the basis of Roe and Casey, the notion that legislatures are not empowered to enact laws based on public notions of morality. And Skrmetti refused to acknowledge that foundational basis of our republic."
The New York Times Launches An Unfair Attack On Judge Badalamenti
The paper of record tars the reputation a former federal defender as part of a broader attack on originalism.
The Court Might Favor Standing For Business Interests, But Blue States Beat Red States
Justices Jackson and Kavanaugh both miss the obvious distinction.
Will The Court GVR The Skrmetti Parental Rights Petition In Light Of Mahmoud?
The substantive due process question remains.
Chief Justice Roberts and Justice Gorsuch Walk Back Bostock
Justice Sotomayor is right. The majority cannot just wish away Bostock.
