The Volokh Conspiracy

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Harvard Law Review SCOTUS Issue on Trump v. Vance: CJ Roberts "omitted discussion of the significant disagreements between the Framers involved in the Burr trial"

The Leading Case Note, and three other publications in the Supreme Court issue, cited my work.


Shortly after Trump v. Vance was decided, I published a SCOTUSBlog post and an essay on the Chief's majority opinion. In short, Roberts offered a "sanitized" account of Aaron Burr's treason trials. The Harvard Law Review Supreme Court issue published a Leading Case note about Vance. It relied on my work. (I am described as "one commentator.") Here is the excerpt:

Vance is particularly illustrative of these concerns, as the Court omitted discussion of the significant disagreements between the Framers involved in the Burr trial. One commentator has noted that Chief Justice Roberts "recounted a sanitized version of this seminal dispute,"92 as evidenced by three key omissions. First, the Court did not make it clear that Jefferson agreed to produce the requested documents before he was aware of the subpoena.93 Therefore, Jefferson was not complying with the subpoena, and one cannot infer that he recognized it as a legitimate use of judicial power.94 Second, Jefferson wrote in his letter to the prosecutor that he agreed "voluntarily to furnish on all occasions … *438 whatever the purposes of justice may require,"95 but the Court omitted the word "voluntarily" from its opinion,96 changing the tone of the phrase significantly and presenting Jefferson as much more amicable to the exercise of judicial power than he really was. Finally, though the Court acknowledged Jefferson's assertion that "[h]is 'personal attendance' … was out of the question,"97 it did not mention that the subpoena required Jefferson's presence and that, according to at least some interpreters, Jefferson "actively flouted the subpoena."98 In short, the originalist meaning of Burr is more complicated and nuanced than the Court's opinion in Vance may have suggested,99 partly because Jefferson and Marshall, two Founders, disagreed sharply on separation of powers issues.100 In retelling the story of Aaron Burr's trial, Chief Justice Roberts adhered to a more simplified understanding, presenting a story that supported the Court's result but was importantly incomplete.

92 Josh Blackman, Symposium: It Must Be Nice to Have John Marshall on Your Side, SCOTUSBLOG (July 10, 2020, 2:40 PM), [].

93 See Vance, 140 S. Ct. at 2423; Josh Blackman, Presidential Subpoenas During the Burr Trials 7 (July 9, 2020) (unpublished manuscript), []. …

96 See Vance, 140 S. Ct. at 2423; see also Blackman, supra note 93, at 7 (emphasizing that "voluntarily" was the "key word"). . . .

98. Blackman, supra note 92. But see Yoo, supra note 94, at 1438 (finding "from the historical evidence that Jefferson did not defy a court's subpoena" but that he "refused to allow the courts the final say on [executive privilege]").

99. See Blackman, supra note 93, at 16; Yoo, supra note 94, at 1438, 1464.

I held off on submitting the Burr essay for publication this summer. I wanted to wait till the tax return litigation drew to a close. Now, it looks like those cases will fizzle out. This mention may be a new selling point for journals: you already have a citation in the Harvard Law Review Supreme Court issue, albeit as an unpublished manuscript. Stay tuned.

My work was also cited in three other features from the SCOTUS issue. First, in Tara Leigh Grove's article on Bostock.

Nevertheless, the dissents argued, the majority's holding was erroneous. The Court went awry in large part because it had an impoverished vision of the relevant context for textualism: the Court "ignor[ed] the social context in which Title VII was enacted."FN 108

FN108: . . . . ; see also Josh Blackman & Randy Barnett, Justice Gorsuch's Halfway Textualism Surprises and Disappoints in the Title VII Cases, NAT'L REV. (June 26, 2020, 6:30 AM), [] (suggesting that "discriminat[ion] against" in Title VII must involve "bias or prejudice" against women or men, rather than against gay, lesbian, or transgender individuals);

Second, in Ganesh Sitaraman's article on Seila Law.

Commentators noted that Justice Kagan likely chose Clement in order to appeal to the Court's conservatives and depoliticize the case. After oral argument, however, some commentators suggested this tactic might have backfired, because of both Clement's style and his substance. FN291

FN291: Josh BlackmanThe CFPB Needed Better FriendsREASON: THE VOLOKH CONSPIRACY (Mar. 4, 2020, 10:56 AM), [].

Third, in the Leading Case note on New York State Rifle & Pistol Ass'n v. City of New York:

But Justice Scalia also conceded that "[h]istorical analysis can be difficult" because it "sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it." FN71:

FN71: . . . Indeed, recent corpus linguistics research calls into question Justice Scalia's reliance on a narrow group of sources and resulting conclusions. See Josh Blackman & James C. Phillips, Corpus Linguistics and the Second Amendment, HARV. L. REV. BLOG (Aug. 7, 2018), []

The 264-page Foreword, which had 2,517 footnotes, alas, did not cite me.

I continue to consider and reconsider the value of traditional legal scholarship, with its lengthy publication schedules. Here, my three blog posts and and unpublished essay were cited in the leading review of Supreme Court cases. Had I waited to publish in a law review, these ideas would may not have been cited.