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
The 3-3-3 Court GVRs George-Floyd-like Case After Chauvin Sentencing
Justices Alito, Thomas, and Gorsuch dissent charge that the majority is "unwilling . . . [to] bear[] the criticism that would inevitably elicit" from denying cert.
Noteworthy cert denials on today's orders list
SCOTUS turns away more original jurisdiction cases, declines case to overrule Smith, and rejects latest Grimm appeal.
Today is the last Monday in June. Where are the opinions?
For the first time in at least a decade, there were no opinions on the last Monday in June.
Rudy's First Amendment Right to Lie to the Press
The Bar does not have authority to regulate all aspects of an attorney's speech.
Time-Traveling Students
Justices Gorsuch and Barrett disagree about the nature of extensions for students.
To Serve Ceviche
Justices Sotomayor and Gorsuch spar over the Peruvian delicacy.
The Remedies in Arthrex and Collins
In both cases, the Court made up a remedy that none of the parties requested. And Justices Gorsuch and Thomas are engaged in a deep and profound jurisprudential debate.
What's the point of Appointments Clauses challenges?
In every case, the Court refuses to grant any relief that would actually redress the Plaintiffs' injuries.
Collins, California, and Standing-through-Inseverability
Part III-A-1 of Justice Alito's Collins opinion quietly endorses standing-through-inseverability, and is inconsistent with Justice Breyer's majority opinion in California.
Justice Kavanaugh's Circuit Judge Name-Dropping
There are citations to Circuit Judges Barrett, Sutton, Katsas, and others, plus scholarly writings from Scalia and Roberts
When all the male Justices are in the majority and all the female justices are in dissent.
In at least four cases, Justices Ginsburg, Sotomayor, and Kagan were in dissent alone.
The Incomprehensibility of Mahanoy Area School District v. B.L.
Why would Chief Justice Roberts let Justice Breyer write such an incoherent opinion?
Cedar Point Nursery v. Hassid Quietly Rewrote Four Decades of Takings Clause Doctrine
For the first time, the 6-3 conservative majority powered a hard-right change in the law.
Recapping Wednesday's Cases, and Predicting the Remaining 8 Cases
Wednesday brought four constitutional law decisions. Several biggies remain.
Texas Law Deems Houses of Worship As "Essential" At All Times, Including During Disasters
State and local governments may not "prohibit a religious organization from engaging in religious and other related activities"
New Article in the Texas Review of Law & Politics: The "Essential" Second Amendment
An overview of the COVID-19 litigation concerning the Right to Keep and Bear Arms
Predicting the Remaining 12 Cases
And revisiting my (dreadful) predictions so far.
The 3-3-3 Court Returns in Arthrex v. U.S.
Justices Kavanaugh and Barrett joined the Chief who rewrote the statute to save its constitutionality.
The Circularity of Fulton
The law is reviewed with strict scrutiny because of the exemptions. And the state's interest is not compelling because of the exemptions.
What Happens After the Remand in California v. Texas?
The Supreme Court "remand[ed] the case with instructions to dismiss." But the District Court never ruled on the Plaintiffs' request for injunctive relief.
Why did SCOTUS decline to consider the federal government's theory of standing in California v. Texas?
Justice Breyer's citations do not add up.
What Would An Actual 6-3 Conservative Court Have Done This Past Term?
Fewer relists, more grants, and far more Kagan dissents.
California v. Texas Reaffirmed that the ACA Imposed a Mandate, and Did Not Create a Choice
"As originally enacted in 2010, the Patient Protection and Affordable Care Act required most Americans to obtain minimum essential health insurance coverage."
RWU Law Review Symposium, Sponsored by the Freedom from Religion Foundation Foundation, "Made No Attempt to Create a Balanced Symposium."
"We made no effort to seek out scholars who we thought would answer yes to the question our Symposium poses."
What Justice Barrett's First Two Concurrences Tell Us About Her Approach to the Free Exercise Clause and Originalism
In both South Bay II and Fulton, she wrote separately on the Free Exercise Clause.
We don't have a 6-3 Conservative Court. We have a 3-3-3 Court.
Thomas, Alito, and Gorsuch are on the right. Roberts, Kavanaugh, and Barrett are somewhere to the left of the right. And Breyer, Sotomayor, and Kagan will do anything to form a majority.
Was There a Double Flip in the November Sitting?
Did the assignments change in both Fulton and California?
Horror Stories from Stanford Diversity, Equity, and Inclusion Program
"By endorsing an anti-Semitic narrative that designates Jews collectively as 'oppressors,' responsible for systemic racism, while simultaneously denying Jewish ancestral identity, the DEI program fosters anti-Jewish sentiment and encourages hostility toward Jews."
Separation of Powers Dispute in South Dakota: Federal Judge Holds U.S. Marshal in Contempt For Refusing To Provide Vaccination Status
If DOJ won't prosecute DOJ employees, then the judge will appoint a special prosecutor.
SCOTUS Punts the Harvard Affirmative Action Case To The Acting SG
If the SG drags her feet, she can postpone oral arguments until the October 2022 term
When the attorney argues the wrong case, or when the professor teaches the wrong class.
It has happened to the best of us.
SCOTUS will decide 18 cases in the next two weeks (Updated)
Who will write the majority opinions?
In Terry, Justice Thomas pats down the Biden Administration. But Justice Sotomayor Frisks Justice Thomas.
The SG's changed position was unanimously rejected. But Justice Sotomayor refused to join CT's "unnecessary, incomplete, and sanitized history of the 100-to-1 ratio."
