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
Texas's Fetal Heartbeat Bill Has Many Private Attorneys General, But Lacks a Public Attorney General
The federal courts will lack jurisdiction over pre-enforcement suits against state officials.
Pennsylvania Voters Approve Restrictions on Governor's Emergency Powers
Disaster declarations can only last 21 days, instead of 90. A simple majority of lawmakers can terminate a disaster declaration.
Let's talk about stare decisis on the Warren Court
Gorsuch: "The dissent may prefer decisions within a particular 30-year window."
Justice Kagan Skewers Justice Kavanaugh's "Scorekeeping" through Virtue Signaling
But in the process, she undermined the basis for Chief Justice Roberts's quixotic "long game."
From Ramos to Edwards in 13 months
Ramos v. Louisiana held that the 6th Amendment protects the right to a unanimous jury. And Edwards v. Vannoy held that right should not apply retroactively.
On May 18, 2016, Donald Trump Released His First SCOTUS Shortlist
Know who wasn't on the OG list? Gorsuch, Kavanaugh, and Barrett.
BP v. Baltimore Provides a Lengthy Escape Hatch From State Court
Step 1: File notice of removal. Step 2: Appeal remand order. Step 3: Seek rehearing of affirmance of remand order. Step 4: Seek certiorari from denial of rehearing en banc. Step 5: Go back to state court three years after complaint was filed.
The Unanimous Supreme Court Favorably Cites NFIB v. Sebelius
Justice Kagan's majority opinion in CIC Services v. IRS was only the second majority opinion to cite NFIB, after King v. Burwell. And do we have a preview of California v. Texas?
Caniglia v. Strom was a subtle, and unanimous victory for originalism
The Burger Court made up the "community caretaking exception" to the warrant requirement in Cady v. Dombrowski. Justice Thomas declined to extend that unoriginalist doctrine to the home.
On the 125th Anniversary of Plessy v. Ferguson, NY Times Publishes Op-Ed on Justice Harlan
"He did more than anyone since the Continental Army to enshrine dissent as an American tradition and a badge of honor, and showed that history would look positively on those who voice truth in the face of even a seemingly monolithic consensus — something today’s leaders can take to heart."
Justices Gorsuch and Kavanaugh Recuse from Guantanamo Bay Case
With the right petition, we could see recusals from Justices Kagan, Gorsuch, Kavanaugh and Jackson
Justice Breyer to Court Packers: Not on My Watch
Justice Breyer writes in new book that "measures to restructure the Court could undermine both the Court and the constitutional system of checks and balances that depends on it."
The Chief Justice's Last Bulwark of Moderation: Limiting and Reframing Questions Presented
In cases concerning guns and abortion, the Court has restricted the questions presented, perhaps, to achieve moderation.
Once again, Justice Barrett lines up with Chief Justice Roberts and Justice Kavanaugh
Justices Thomas, Alito, and Gorsuch would have allowed Ohio and 18 other states to intervene and defend Title X rule.
Random House Cancels Historian's Book Contract For Not Writing About Black Historians
Richard Cohen added 18,000 words on Black historians, but his contract was still cancelled.
From the FBI's Secret SCOTUS Files about Larry Flynt
Flynt gave Justice O'Connor a complimentary subscription to Hustler magazine. Her secretary asked Flynt to remove her subscription. Flynt replied, "I’ll take you off Hustler’s subscription list when you resign from the court.”
The Atlantic Profiles Justice Kavanaugh. No he is not out for revenge. No, he is not a mystery. He is who we always knew he was.
"But squint again at the story of Kavanaugh's rise, and a different picture might come into view: a credential-obsessed meritocrat who's spent his life sweatily striving for power without any grounding in conviction or principle."
The Eleventh Rule of Court Packing Is Hold a 90-Minute Public "Meeting" Over Zoom
There should be just enough time to give a 2.5 minute introduction for each of the 36 members.
A Tribute to Judge Judy Boggs
"Judy has lived her life in the trenches of the regulatory state, giving everything she has to help government work wherever she has served."
SDOH Finds That Tax Mandate of American Rescue Plan Act Likely Unconstitutional
The Court declined to enter a preliminary injunction, but set an expedited briefing schedule for a permanent injunction.
Deans Should Not Solicit Signatures For Statements On Matters Of Public Concern
Faculty--especially untenured and adjunct members--will be pressured to join.
Cancelling Citations
Will law review editors ask authors to remove citations to controversial sources?
Pre-Writing Justice Breyer's Obituary
It is a surreal experience to talk to a reporter who is pre-writing a Supreme Court Justice's obituary.
The Per Curiam Facebook Oversight Board
Opinions are unsigned, and members of the "minority" are unnumbered.
Chief Justice Roberts and Justice Barrett Ask Deputy SG Feigin About Switch in Position for Terry v. U.S.
Roberts: "I wondered what standard your office applies in deciding when to take that step. Is it just that you think the position is wrong and you would have reached a different one?"
Subscribe to David Lat's "Original Jurisdiction" Substack
Relive the glory days of Above the Law excellence for only $50/year.
Justice Thomas still wants to overrule the Feres Doctrine. Justices Gorsuch, Kavanaugh, and Barrett apparently do not.
Wiping out a Justice Jackson opinion may be too much to bear.
SCOTUS Appoints Gail A. Curly as Marshal of the Court
Curly will replace Marshal Pamela Talkin.
SCOTUS Denies Cert in Maryland Shall Issue v. Hogan
This case brought a takings challenge to Maryland's prohibition on bump stocks
