Mark Tushnet

@marktushnet.bsky.social

1.6K followers 620 following 330 posts

Emeritus professor of constitutional law, including free expression and comparative constitutional law. Still trying to stay intellectually active.

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Mark Victor Tushnet is an American legal scholar. He specializes in constitutional law and theory, including comparative constitutional law, and is currently the William Nelson Cromwell Professor of Law at Harvard Law School. Tushnet is identified with the critical legal studies movement. .. more

Political science 50%

Law 32%

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Mark Tushnet @marktushnet.bsky.social · 14h

I can gin up an argument that budget allocations are Art II actions. Similarly w/ removals of some of those not lawfully present. “Gin up” is the operative term. But recall the broccoli argument

Mark Tushnet @marktushnet.bsky.social · 15h

2/ Pretty sure the answer has to be “Yes,” as everyone seems to assume. But what's the underlying analysis? & btw has Trump’s DoJ argued against applying the 1st Am to his action on text-based grounds?

Mark Tushnet @marktushnet.bsky.social · 15h

1/ A thought provoked by another post: Given the 1st Am’s 1st word, does the Am impose any limits on presidential action pursuant to Art II powers (not delegated to Pres by statutes)? A 1985 article by Mark Denbaux asks parallel question re judicial orders pursuant to inherent judicial authority.

Mark Tushnet @marktushnet.bsky.social · 16h

Mark Denbaux’s 1985 article “The First Word of the First Amendment” addresses 1st Am’s application to judicial orders. I don’t know if there’s an article sayng that 1st Am’s plain text doesn’t impose any limits on presidential action pursuant to Art II powers (not delegated to Pres by statutes).

Mark Tushnet @marktushnet.bsky.social · 3d

What’s next after the Minneapolis general strike (if that’s what it is—not clear from the reports I’ve seen)? The Battleship Potemkin?

Mark Tushnet @marktushnet.bsky.social · 3d

2/ that the Court would reverse a conviction—more likely, I think, that a jury would refuse to convict relying on lay and cultural (not legalistic) notions of causation and free expression

Mark Tushnet @marktushnet.bsky.social · 3d

1/ Walz & Frey have obstructed the enforcement of federal law by their statements in almost exactly the same way that Charles Schenck obstructed the draft in the leaflet he distributed. SCOTUS upheld Schenck’s conviction in 1919. Though the decision has been repudiated I wouldn’t be too confident...

Reposted by Rebecca Tushnet

Mark Tushnet @marktushnet.bsky.social · 3d

2026’s 1st episode of Supreme Betrayal, on sedition and the Democrats’ video on refusing to obey unlawful orders.
supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/sed...

open.spotify.com/episode/5ztl...

podcasts.apple.com/us/podcast/s...

Sedition and the Democrats' Video on Refusing to Obey Unlawful Orders | Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America

Could Senator Mark Kelly successfully be prosecuted for sedition? Not under current law as developed by the Supreme Court. Tushnet presses Seidman on his opposition to the Court’s invocation of the Co...

supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com

Mark Tushnet @marktushnet.bsky.social · 4d

Well, technically I suppose that Trump did receive the Nobel Peace prize.

Mark Tushnet @marktushnet.bsky.social · 5d

“Suffered internal bleeding” = “was bruised “?

Mark Tushnet @marktushnet.bsky.social · 5d

Nerdy legal reminder: “It’s a crime to interfere with federal officers performing their jobs” isn’t the same as “Federal officers performing their jobs are immune from liability for actions they take in the course of performing their jobs.” Remove & arrest the people interfering, don’t shoot them.

Mark Tushnet @marktushnet.bsky.social · 10d

I think I might have been the first to note publicly (Dec. 26) what’s reported here (don’t know how to link to my initial post—I’m an old): www.nytimes.com/2026/01/09/u...

Supreme Court, Swamped by Emergencies, Neglects Rest of Docket

www.nytimes.com

Mark Tushnet @marktushnet.bsky.social · 24d

Defining Heritage Americans: My daughter’s mother (i.e., my wife) is eligible for membership in the Colonial Dames. My grandparents came to the US in the early 1900s. Is my daughter a Heritage American? (Don’t ask about her maternal grandfather.) Why not just say “white” and have done with it?

Reposted by Rebecca Tushnet

Mark Tushnet @marktushnet.bsky.social · 24d

No signed opinions in argued cases before Jan 1 this Term and in the 2022 Term. Used to get at least 1 in Dec & not infrequently a few in Dec and a few in Nov. Conditions on the Court appear to be such that JR can’t even be a good manager. Pretty clearly an effect of the shadow/emergency docket.

Mark Tushnet @marktushnet.bsky.social · Dec 19

supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/a-c...
open.spotify.com/episode/00nG...

A Conversation with David Luban | Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America

Our guest is David Luban, a distinguished legal philosopher who has written widely about military law and ethics. We use the Trump administration's drone strikes on "drug boats" as the vehicle for tal...

supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com

Reposted by Rebecca Tushnet

Mark Tushnet @marktushnet.bsky.social · Dec 19

End-of-the-year episode of Sureme Betrayal—a conversation with David Luban about the law and morals of soldiers’ disobeying orders, getting us into questions about the tension between law and hierarchical order and tipping our toes in some jurisprudential waters: podcasts.apple.com/us/podcast/s...

A Conversation with David Luban

Podcast Episode · Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America · 12/19/2025 · 1h 1m

podcasts.apple.com

Mark Tushnet @marktushnet.bsky.social · Dec 16

Anyone who posts something from Trump should accompany it with a quote from a Rob Reiner movie. “As you wish” & “You can’t handle the truth” are the obvious candidates, but there are many others: "You keep using that word. I do not think it means what you think it means."

Mark Tushnet @marktushnet.bsky.social · Dec 15

To quote Joseph Welch, speaking to Sen McCarthy: "Have you no sense of decency, sir, at long last? Have you left no sense of decency?” (In fact,Welch’s statement was something of a set-up whereas Trump was disgusting all on his own.)

Mark Tushnet @marktushnet.bsky.social · Dec 14

Endorsing a sentiment I read here (in my own words): I’m a Jew to my bones but not a very observant one, but if I could (we just moved to an apartment whose windows overlook a parking garage) I would put the fucking menorah in the window tonight.

Mark Tushnet @marktushnet.bsky.social · Dec 9

3/ OTOH entrenchment abuses have occurred in Orban’s Hungary—so maybe ACB is worried that Dems (not Rs, apparently) will follow the Orban model.

Mark Tushnet @marktushnet.bsky.social · Dec 9

2/ with no one seeming to notice that those entities were created well after Humphrey’s & no one seems to have thought that giving them that form was a good idea. & in many years after Humphrey’s there were periods of unified party control & the “entenchment” abuses ACB worried about didn’t happen..

Mark Tushnet @marktushnet.bsky.social · Dec 9

1/ Mike Dorf has the useful term hyperopia for excessively worrying about what might hypothetically happen in the distant future: www.dorfonlaw.org/2025/12/what.... In the Slaughter argument the worry came up w/r/t the D of Ed & EPA—what about long-terms, multiple members...

What We Learned From the Trump v. Slaughter Oral Argument

Having wasted spent two and a half hours of my day listening to yesterday's oral argument in Trump v. Slaughter , I have less time than I t...

www.dorfonlaw.org

Mark Tushnet @marktushnet.bsky.social · Dec 5

I seem to recall some classic sci fi story where the eve lasted eleven months. Turned out that dawn wasn’t pretty. (Asimov or Clarke)

Mark Tushnet @marktushnet.bsky.social · Dec 5

New Supreme Betrayal episode: a conversation about the First Amendment with Genevieve Lakier: supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/a-c...

podcasts.apple.com/us/podcast/a...

open.spotify.com/episode/0waO...

A Conversation with Genevieve Lakier | Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America

We have a conversation with Genevieve Lakier about the First Amendment and the courts in our current situation. She defends recourse to the courts; we are as usual more skeptical. We go into some aspe...

supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com

Mark Tushnet @marktushnet.bsky.social · Dec 2

My take: Claim is that as an empirical matter the justification for every current action actually includes an element that traces back to the original understanding. It’s Fallon’s eclecticism except that Fallon allows for the possibility that the justifications might not include such an element.

Mark Tushnet @marktushnet.bsky.social · Nov 23

Even if the premise is true the conclusion doesn’t follow: The advice is to refuse an illegal order, which by his premise you won’t ever get, so the advice is to obey the orders you receive.

Reposted by Rebecca Tushnet

Mark Tushnet @marktushnet.bsky.social · Nov 23

For those interested in sortition as a governance matter. There’s a stronger example in Belgium of binding law made by randomly selected citizens—not merely advice to legislators.
www.nytimes.com/2025/11/23/w...

Democracy Is in Trouble. This Region Is Turning to Its People.

www.nytimes.com

Mark Tushnet @marktushnet.bsky.social · Nov 23

The title of the new episode of Supreme Betrayal says it all: supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/the...
open.spotify.com/episode/0khs...
podcasts.apple.com/us/podcast/s...

The Voting Rights Case and the Constitution After Trump | Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America

After some reflections on how the oral arguments in the tariff case affect our expectations about what the Court might do, we turn to the Court’s pending decision in a case challenging the constitutio...

supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com

Reposted by Eric J. Segall

Mark Tushnet @marktushnet.bsky.social · Nov 21

Meanwhile, try the Supreme Betrayal podcast by Mark Tushnet and Mike Seidman, on RSS feed, Spotify, and Apple Podcasts😀.

Mark Tushnet @marktushnet.bsky.social · Nov 18

Reporting indiates that this is a direct 15th amendment case, not a VRA sec. 2 case. So why wd Callais be relevant? (Not to deny that Brennan's rule of five might operate)

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