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
Classes #21: Establishment Clause II and Marital Property III
McCreary County v. ACLU and Van Orden v. Perry
En Banc Fifth Circuit Issues Badly-Fractured 325-Page Decision in ICWA Case
Chief Judge Owen and Judge Southwick largely joined Judge Dennis's majority opinion to form a mostly-controlling opinion.
When Will The "Deep Cleanings" Stop?
CDC: "The risk of SARS-CoV-2 infection via the fomite transmission route is ... generally less than 1 in 10,000."
Get ready for religious-based objections to employer vaccine mandates
The Court's refusal to reconsider TWA v. Hardison may prove significant.
I am really going to miss Justice Breyer
His opinion in Oracle v. Google was so joyful. You can tell how much he relished writing this technical decision.
Justice Thomas Highlights that in the Civil Rights Cases, Places of "Public Amusement" Were Not Traditional Common Carriers
Justice Thomas highlighted an under-appreciated aspect of Justice John Marshall Harlan's dissent
The President of the United States v. Knight on the Shadow Docket
The Court waited for this official capacity case to become moot, substituted the new President, and GVR'd the case.
Did Justice Thomas Cover for Justice Barrett's Vote To Deny Cert To Reconsider TWA v. Hardison?
Only two justices dissented from the denial of cert in Small v. Memphis Light, Gas & Water.
In Terry v. United States, SCOTUS Grants The SG's Motion For Leave To File A Brief Out Of Time For First Time In Four Decades
The Biden Administration flipped positions in Terry v. United States when its reply brief was due. And the Court was forced to scheduled a rare May sitting to avoid a mootness claim.
SCOTUS Denies SG's Motion for Leave to Participate in Oral Argument
There have only been 9 such denials in the last two decades.
Classes #20: Establishment Clause I & Marital Property II
Lemon, Marsh, Weisman & In re Marriage of Graham
Senator Mazie Hirono Opens Up On SCOTUS
She talks about Kavanaugh, Gorsuch, Barrett, and Ginsburg. Merrick Garland makes a guest appearance.
How the Fulton Court Should View Smith In Light of The COVID-19 Pandemic
Smith's rational basis standard should apply to prospective neutral laws, not arbitrary regulations gerrymandered to avoid an extant free exercise religious conflict.
About Two Hours After Bible Worship Group Seeks Emergency Injunction, California Relaxes Guidance for April 15--After Easter, of Course
This never-ending game of whac-a-mole-is a waste of time, and exhausting.
California Bible Worship Group Seeks Emergency Application from SCOTUS
"California—assisted by the Ninth Circuit ... has 'disregard[ed] the lessons from [this] Court' and 'turned a blind eye to discrimination against religious practice'—continues its rearguard action against the free (and safe) practice of religious faith."
The Top 12 Respondent Teams in The 2020 Harlan Institute-Ashbrook Virtual Supreme Court
The teams will compete in the first round on April 10 and 11.
The Top 12 Petitioner Teams in The 2020 Harlan Institute-Ashbrook Virtual Supreme Court
The teams will compete in the first round on April 10 and 11.
Justice Alito Pokes Justice Sotomayor Over Canons of Construction in Facebook v. Duguid
Justice Alito also asks for corpus linguistics research on canons of construction.
Justice Kavanaugh quietly rephrased the arbitrary-and-capricious standard in FCC v. Prometheus
Kavanaugh adopted the "zone of reasonableness" test he raised in his DHS v. Regents concurrence.
The Return of April Fools' LawProf Blog Posts
Is it safe to joke again?
Bob Jones Redux: The Question SG Verrilli Was Unwilling to Answer in Obergefell Now Needs to Be Answered
LGBTQ students sue Department of Education to require that federally-funded religious colleges "respect the sexual orientation, gender identity and gender expression of their students."
The Ninth Circuit Still Does Not Understand SCOTUS COVID-19 Free Exercise Clause Cases
Judge Bumatay's dissent accurately explains the caselaw. Next stop, SCOTUS.
Classes #19: Free Exercise of Religion V and Marital Property I
Masterpiece Cakeshop, Lady of Guadalupe & Sawada v. Endo
Will Law Schools Require Students to be Vaccinated?
I can see a world where in-person instruction is limited to vaccinated students, and those who refuse to be vaccinated will stay on Zoom.
WaPo: Biden will make 11 judicial nominations on Tuesday
Circuit nominees to CADC, CA7, and CAFC. District Court nominees to DNJ, DDC, DMD, DCO, and DNM. None of these nominations will have blue slip problems.
Classes #18: Free Exercise of Religion IV and Co-Ownership II
Trinity Lutheran and Espinoza & Delfino, Spiller, and Swartzbaugh
The Court Punts by Granting Cert in Cameron v. EMW Women's Surgical Center
SCOTUS potentially keeps this case in limbo till 2025.
Pennsylvania Voters Can Approve Constitutional Amendment To Limit Governor's Emergency Powers
"A disaster emergency declaration will expire automatically after 21 days, regardless of the severity of the emergency, unless the General Assembly takes action to extend the disaster emergency"
Judge James Ho on "The Importance of a Diverse Federal Judiciary"
"It would be profoundly offensive—and un-American—to tell the world that you’re restricting a judgeship to members of only one race."
An E-Mail from Georgetown Law Center Dean William Treanor
"Next Steps in Our Commitment to Racial Justice"
Asymmetrical Nationwide Injunctions
Progressive judges consistently issued nationwide injunctions against President Trump. Conservative judges are increasingly issuing limited injunctions against President Biden.
Is Art Made by an AI Robot Speech Protected by the First Amendment?
I raised this hypothetical in a 2014 essay.
Making Sense of Justice Kavanaugh's vote in Torres v. Madrid
Justice Kavanaugh joined the Chief, once again.
