Julian Davis Mortenson
@jdmortenson.bsky.social
University of Michigan law professor. Legal historian. Constitutional litigator. Walking thorny ground. Probably kidding.
Faculty bio at http://bit.ly/jdm-bio
Faculty bio at http://bit.ly/jdm-bio
purely for the record, without any rancor or desire for real time disputation:
(1) the “Schmesident” claim does not follow from the law execution thesis, and I don’t think I’ve ever said anything like it
(2) removal authority does not require accepting the bundle of authorities approach
(1) the “Schmesident” claim does not follow from the law execution thesis, and I don’t think I’ve ever said anything like it
(2) removal authority does not require accepting the bundle of authorities approach
November 10, 2025 at 2:10 AM
purely for the record, without any rancor or desire for real time disputation:
(1) the “Schmesident” claim does not follow from the law execution thesis, and I don’t think I’ve ever said anything like it
(2) removal authority does not require accepting the bundle of authorities approach
(1) the “Schmesident” claim does not follow from the law execution thesis, and I don’t think I’ve ever said anything like it
(2) removal authority does not require accepting the bundle of authorities approach
this is a cool feature
November 8, 2025 at 2:37 PM
this is a cool feature
this is just a shocking assertion
November 6, 2025 at 9:21 PM
this is just a shocking assertion
FWIW here's a draft of how I've tried to cut the knot on the Trump v. US evidentiary issue
Simply state the position, the Barrett critique, and the 'clarification.' Then leave it. Eliminates tons of words + the feeling of a wandering path, leaving only the irreducible confusion?
Feedback welcome!
Simply state the position, the Barrett critique, and the 'clarification.' Then leave it. Eliminates tons of words + the feeling of a wandering path, leaving only the irreducible confusion?
Feedback welcome!
![Justice Barrett also disagreed with Part III.C of the majority opinion, which suggested that juries could not “‘consider’ evidence concerning the President’s official acts” even in prosecutions for criminal charges “based only on his unofficial conduct” (emphasis added). The majority argued that allowing juries to “probe official acts for which the President is immune” would “raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies,” which in turn “threaten[ed] to eviscerate the immunity we have recognized.”
In her separate opinion, Barrett denied that “the Constitution limits the introduction of protected conduct as evidence in a criminal prosecution of a President, beyond the limits afforded by executive privilege.” She offered an example:
The Constitution, of course, does not authorize a President to seek or accept bribes, so the Government may prosecute him if he does so. . . . Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.
In a footnote, the majority responded that, in a prosecution for bribery,
of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U.S.C. § 201(b)(2) [(criminalizing bribery of public officials)]. What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:m2f5skwf2in2bfhmowwrbjms/bafkreig67363j55at5ztfzbzz4j3tshetbaigsbcw37agvplbweqv2lbfa@jpeg)
November 4, 2025 at 9:03 PM
FWIW here's a draft of how I've tried to cut the knot on the Trump v. US evidentiary issue
Simply state the position, the Barrett critique, and the 'clarification.' Then leave it. Eliminates tons of words + the feeling of a wandering path, leaving only the irreducible confusion?
Feedback welcome!
Simply state the position, the Barrett critique, and the 'clarification.' Then leave it. Eliminates tons of words + the feeling of a wandering path, leaving only the irreducible confusion?
Feedback welcome!
re the "use of evidence of official acts" Q in Trump v. U.S., several people here and at the other place have suggested that some version of this is the best way to understand what the court means to be doing. i'm totally open to that, i also don't understand why the court didn't just say it : (
November 4, 2025 at 8:55 PM
re the "use of evidence of official acts" Q in Trump v. U.S., several people here and at the other place have suggested that some version of this is the best way to understand what the court means to be doing. i'm totally open to that, i also don't understand why the court didn't just say it : (
Here's my issue. It seems like Main Text Majority just straight up contradicts FN3 Majority.
Main Text Majority: official conduct "may [not] be SCRUTINIZED" by a jury trying charges based on unofficial conduct
FN3 Majority: official conduct can be evidenced via nonprivileged source material 2/
Main Text Majority: official conduct "may [not] be SCRUTINIZED" by a jury trying charges based on unofficial conduct
FN3 Majority: official conduct can be evidenced via nonprivileged source material 2/
October 31, 2025 at 9:12 PM
Here's my issue. It seems like Main Text Majority just straight up contradicts FN3 Majority.
Main Text Majority: official conduct "may [not] be SCRUTINIZED" by a jury trying charges based on unofficial conduct
FN3 Majority: official conduct can be evidenced via nonprivileged source material 2/
Main Text Majority: official conduct "may [not] be SCRUTINIZED" by a jury trying charges based on unofficial conduct
FN3 Majority: official conduct can be evidenced via nonprivileged source material 2/
these absolute jokers
October 17, 2025 at 1:20 AM
these absolute jokers
“submit your legislative proposal to our learned review and we will decide whether the requested information is relevant”
- the Dobbs majority
- the Dobbs majority
October 15, 2025 at 12:00 AM
“submit your legislative proposal to our learned review and we will decide whether the requested information is relevant”
- the Dobbs majority
- the Dobbs majority
@jedshug.bsky.social of all weeks for me to wear this without particularly thinking about it…
October 6, 2025 at 11:29 PM
@jedshug.bsky.social of all weeks for me to wear this without particularly thinking about it…
remind me how anybody, anywhere, at any point worked themselves up to hating this guy?
September 25, 2025 at 12:59 AM
remind me how anybody, anywhere, at any point worked themselves up to hating this guy?
are birds eligible for a Darwin Award?
July 30, 2025 at 4:27 PM
are birds eligible for a Darwin Award?
NOT TODAY, NEW YORK TIMES
July 28, 2025 at 4:37 PM
NOT TODAY, NEW YORK TIMES
It’s the next sentence for me. Crucial empirical statement about THE key issue of the paper followed by no evidence and a pivot to other topics.
Gosh. Ilan, man, what are you doing.
Gosh. Ilan, man, what are you doing.
July 24, 2025 at 6:51 PM
It’s the next sentence for me. Crucial empirical statement about THE key issue of the paper followed by no evidence and a pivot to other topics.
Gosh. Ilan, man, what are you doing.
Gosh. Ilan, man, what are you doing.
I thought the press descriptions had to be at least slightly off. But they are completely accurate.
America First is literally arguing that the disparate impact of free tuition for all families making <$300K per year “masks racial preferences behind income thresholds.”
America First is literally arguing that the disparate impact of free tuition for all families making <$300K per year “masks racial preferences behind income thresholds.”
July 18, 2025 at 2:15 PM
I thought the press descriptions had to be at least slightly off. But they are completely accurate.
America First is literally arguing that the disparate impact of free tuition for all families making <$300K per year “masks racial preferences behind income thresholds.”
America First is literally arguing that the disparate impact of free tuition for all families making <$300K per year “masks racial preferences behind income thresholds.”
(Which is also a normal practice where one dissent has all or most of the dissenters. Nb Jackson signed sotomauors op)
June 29, 2025 at 9:52 AM
(Which is also a normal practice where one dissent has all or most of the dissenters. Nb Jackson signed sotomauors op)
and, it's a side point, but this is the entire screen that appears when i click through on my large monitor desktop with text at 100% setting
in the real world that's misleading and bad and i don't like it
in the real world that's misleading and bad and i don't like it
June 28, 2025 at 8:45 PM
and, it's a side point, but this is the entire screen that appears when i click through on my large monitor desktop with text at 100% setting
in the real world that's misleading and bad and i don't like it
in the real world that's misleading and bad and i don't like it
this regularly misleads lots of IRL people
it's bad
it's bad
June 28, 2025 at 8:44 PM
this regularly misleads lots of IRL people
it's bad
it's bad
@legalrealist.bsky.social this made me so happy
June 28, 2025 at 6:54 PM
@legalrealist.bsky.social this made me so happy
Has anyone managed to make sense of the 2d para from this Skrmetti pic?
I keep attempting to read it as saying something more than “This is not a sex classification because a classification of sex it is not.” I keep failing.
Not dunking. Generous reads sincerely requested. Gotta teach this thing…
I keep attempting to read it as saying something more than “This is not a sex classification because a classification of sex it is not.” I keep failing.
Not dunking. Generous reads sincerely requested. Gotta teach this thing…
June 26, 2025 at 3:27 PM
Has anyone managed to make sense of the 2d para from this Skrmetti pic?
I keep attempting to read it as saying something more than “This is not a sex classification because a classification of sex it is not.” I keep failing.
Not dunking. Generous reads sincerely requested. Gotta teach this thing…
I keep attempting to read it as saying something more than “This is not a sex classification because a classification of sex it is not.” I keep failing.
Not dunking. Generous reads sincerely requested. Gotta teach this thing…
the absolute Lord Charles curveball of that last sentence…
June 26, 2025 at 12:01 AM
the absolute Lord Charles curveball of that last sentence…
this argument is deeply weird:
“We see no reason that Congress would have intended for the President to receive significant deference when he invokes the [foreign affairs] precondition in § 12406, but not when he invokes the [domestic affairs preconditions].”
“We see no reason that Congress would have intended for the President to receive significant deference when he invokes the [foreign affairs] precondition in § 12406, but not when he invokes the [domestic affairs preconditions].”
June 20, 2025 at 3:09 AM
this argument is deeply weird:
“We see no reason that Congress would have intended for the President to receive significant deference when he invokes the [foreign affairs] precondition in § 12406, but not when he invokes the [domestic affairs preconditions].”
“We see no reason that Congress would have intended for the President to receive significant deference when he invokes the [foreign affairs] precondition in § 12406, but not when he invokes the [domestic affairs preconditions].”