Mark Tushnet
@marktushnet.bsky.social
Emeritus professor of constitutional law, including free expression and comparative constitutional law. Still trying to stay intellectually active.
1/ People dumping on Scott Bessent for saying SCt doesn’t overturn signature programs: N is small b/c most presidents don’t have signature programs of the relevant type but as a descriptive matter Bessent’s in the ballpark of being right. (Obvious—only?—examples are FDR/NLRB and Obamacare.) ...
November 16, 2025 at 6:28 PM
1/ People dumping on Scott Bessent for saying SCt doesn’t overturn signature programs: N is small b/c most presidents don’t have signature programs of the relevant type but as a descriptive matter Bessent’s in the ballpark of being right. (Obvious—only?—examples are FDR/NLRB and Obamacare.) ...
New Supreme Betrayal: Constitutionalism After Trump & multiculturalism, trans issues, religion—choose between me and Seidman on strategies:
podcasts.apple.com/us/podcast/c...
open.spotify.com/episode/0Ah0...
supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/con...
podcasts.apple.com/us/podcast/c...
open.spotify.com/episode/0Ah0...
supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/con...
Conversation with Richard Re | Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America
Our conversation with Richard Re focuses on his Foreword to the Harvard Law Review’s annual Supreme Court Review. The Foreword argues that the Roberts Court today is a conservative version of the Warr...
supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com
November 14, 2025 at 5:14 AM
New Supreme Betrayal: Constitutionalism After Trump & multiculturalism, trans issues, religion—choose between me and Seidman on strategies:
podcasts.apple.com/us/podcast/c...
open.spotify.com/episode/0Ah0...
supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/con...
podcasts.apple.com/us/podcast/c...
open.spotify.com/episode/0Ah0...
supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/con...
“Exulting in Epstein Files” is today’s “Wallowing in Watergate."
November 13, 2025 at 6:57 AM
“Exulting in Epstein Files” is today’s “Wallowing in Watergate."
Coming on Friday: a new episode of Supreme Betrayal, dealing with some additional aspects of Constitutionalism After Trump, including muticulturalism, religion, and trans rights! (We’re getting our act together just as we might be running out of ideas!—not really😀)
November 11, 2025 at 2:28 AM
Coming on Friday: a new episode of Supreme Betrayal, dealing with some additional aspects of Constitutionalism After Trump, including muticulturalism, religion, and trans rights! (We’re getting our act together just as we might be running out of ideas!—not really😀)
Trump on tariffs fits the definition of chutzpah (“I killed my parents, have mercy on me, an orphan”): I collected so much money illegally that giving it back would be a disaster. (More formally, the fact that giving it back would be a disaster is a reason for saying it wasn’t collected illegally.)
November 10, 2025 at 9:27 PM
Trump on tariffs fits the definition of chutzpah (“I killed my parents, have mercy on me, an orphan”): I collected so much money illegally that giving it back would be a disaster. (More formally, the fact that giving it back would be a disaster is a reason for saying it wasn’t collected illegally.)
What I’ve been reading: Ian McEwan, What We Can Know—astonishingly beautifully written though I can’t explain how. It looks like (in part) a novel of ideas, but the ideas are as much characters as the characters are—fully realized, as critics like to say, but existing (only) in imagination.
November 7, 2025 at 10:46 PM
What I’ve been reading: Ian McEwan, What We Can Know—astonishingly beautifully written though I can’t explain how. It looks like (in part) a novel of ideas, but the ideas are as much characters as the characters are—fully realized, as critics like to say, but existing (only) in imagination.
1/ Wisdom of Chou En-lai (“What do you think of the events in France? Too soon to tell”): Read a 2010 book w/ 19 case studies of constitution making from 1978-2005. As of today probably 1/2 are completely out of date. ...
November 6, 2025 at 8:21 PM
1/ Wisdom of Chou En-lai (“What do you think of the events in France? Too soon to tell”): Read a 2010 book w/ 19 case studies of constitution making from 1978-2005. As of today probably 1/2 are completely out of date. ...
Interpreting jury nullification in Sandwich Man case: Jury q. to judge re bodily injury/harm suggests they were looking 4 some linguistic hook that wd let them say elements weren't satisfied b/c officer wasn’t really “hurt.” So, not a pure “give me a break this is a ridiculous prosecution” verdict.
November 6, 2025 at 8:15 PM
Interpreting jury nullification in Sandwich Man case: Jury q. to judge re bodily injury/harm suggests they were looking 4 some linguistic hook that wd let them say elements weren't satisfied b/c officer wasn’t really “hurt.” So, not a pure “give me a break this is a ridiculous prosecution” verdict.
Ah, Great Britain—the home of liberty, where you—yes, you (or at least a lot of you)—can apply to be appointed to the Supreme Court: www.supremecourt.uk/about-the-co...
Judicial Vacancies: Justice of the Supreme Court of the United Kingdom - UK Supreme Court
Judicial Vacancy
Justice of the Supreme Court
Judicial recruitment
www.supremecourt.uk
November 5, 2025 at 11:00 PM
Ah, Great Britain—the home of liberty, where you—yes, you (or at least a lot of you)—can apply to be appointed to the Supreme Court: www.supremecourt.uk/about-the-co...
My favorite cross-tabs factoid: In VA, of those who thought that Jay Jones’s texts were disqualifying 9% voted for him. Cue Inigo Montoya: "You keep using that word. I do not think it means what you think it means."
November 5, 2025 at 10:55 PM
My favorite cross-tabs factoid: In VA, of those who thought that Jay Jones’s texts were disqualifying 9% voted for him. Cue Inigo Montoya: "You keep using that word. I do not think it means what you think it means."
New Supreme Betrayal episode: A conversation with Richard Re about why he describes the Roberts Court as a conservative Warren Court, and a dialogue about critical legal studies and his analysis: supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/con...
Conversation with Richard Re | Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America
Our conversation with Richard Re focuses on his Foreword to the Harvard Law Review’s annual Supreme Court Review. The Foreword argues that the Roberts Court today is a conservative version of the Warr...
supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com
November 4, 2025 at 12:40 PM
New Supreme Betrayal episode: A conversation with Richard Re about why he describes the Roberts Court as a conservative Warren Court, and a dialogue about critical legal studies and his analysis: supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/con...
New episode of Supreme Betrayal: Constitutionalism After Trump Part One—against restorationism/Schumerism, some suggestions for institutional reform going forward. supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/con...
Constitutionalism After Trump Part One | Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America
If we manage to extricate ourselves from our current constitutional plight, what might things look like? Or, alternatively, what sorts of constitutionally inflected policies should Democrats offer as ...
supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com
October 31, 2025 at 3:13 PM
New episode of Supreme Betrayal: Constitutionalism After Trump Part One—against restorationism/Schumerism, some suggestions for institutional reform going forward. supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/con...
Chevy Chase DC an hour in
October 18, 2025 at 3:34 PM
Chevy Chase DC an hour in
Must be missing something abt Johnson's refusal to swear in "Rep" Grijalva to avoid discharge vote on Epstein Transparency ACT. Even if passed by the House and Senate, it would be subject to a presidential veto. Is the thought that any vote against Trump will be like the dam breaking a la Watergate?
October 17, 2025 at 9:15 PM
Must be missing something abt Johnson's refusal to swear in "Rep" Grijalva to avoid discharge vote on Epstein Transparency ACT. Even if passed by the House and Senate, it would be subject to a presidential veto. Is the thought that any vote against Trump will be like the dam breaking a la Watergate?
Learn how to think (in constitutional terms) about the Jimmy Kimmel kerfuffle in the latest episode of Supreme Betrayal: supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/the...
creators.spotify.com/pod/show/2ao...
podcasts.apple.com/us/podcast/t...
creators.spotify.com/pod/show/2ao...
podcasts.apple.com/us/podcast/t...
The Jimmy Kimmel Kerfuffle and How to Think About It | Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America
We talk about the Jimmy Kimmel episode, a small victory in the fight against Trumpism. We range more widely, though, in identifying no fewer than five groups who have competing First Amendment interes...
supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com
October 17, 2025 at 3:05 PM
Learn how to think (in constitutional terms) about the Jimmy Kimmel kerfuffle in the latest episode of Supreme Betrayal: supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/the...
creators.spotify.com/pod/show/2ao...
podcasts.apple.com/us/podcast/t...
creators.spotify.com/pod/show/2ao...
podcasts.apple.com/us/podcast/t...
Judge Immergut was appointed to the US Foreign Intelligence Surveillance Court by CJ Roberts.
October 5, 2025 at 12:35 AM
Judge Immergut was appointed to the US Foreign Intelligence Surveillance Court by CJ Roberts.
Why are the birthright citizenship cases not such a big deal and a big deal? Find out why in supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/bir...
open.spotify.com/episode/0eTv...
podcasts.apple.com/us/podcast/b...
open.spotify.com/episode/0eTv...
podcasts.apple.com/us/podcast/b...
Birthright Citizenship | Supreme Betrayal: How the Supreme Court and Constitutional Law Have Failed America
Why are the birthright citizenship cases both not such a big deal and a big deal? After going through the arguments for the Trump administration’s position in some detail (the arguments against it are...
supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com
October 4, 2025 at 12:43 AM
Why are the birthright citizenship cases not such a big deal and a big deal? Find out why in supreme-betrayal-how-the-supreme-court-and-constitutional.simplecast.com/episodes/bir...
open.spotify.com/episode/0eTv...
podcasts.apple.com/us/podcast/b...
open.spotify.com/episode/0eTv...
podcasts.apple.com/us/podcast/b...
1/ Latest episode of Supreme Betrayal dropped--conversation with Will Baude about originalism as "our law" and the implications if the constitution is, as ours might be, unattractive: open.spotify.com/episode/1BLi...
Spotify – Web Player
open.spotify.com
September 27, 2025 at 10:31 PM
1/ Latest episode of Supreme Betrayal dropped--conversation with Will Baude about originalism as "our law" and the implications if the constitution is, as ours might be, unattractive: open.spotify.com/episode/1BLi...
1/ A note on a term that's likely to bandied about misleadingly: The ED VA has what's known as a rocket docket but the term was invented to describe time to trial for civil cases, not criminal ones. (Use your favorite search engine to confirm that.) Average time to trial for criminal cases ...
September 27, 2025 at 8:49 AM
1/ A note on a term that's likely to bandied about misleadingly: The ED VA has what's known as a rocket docket but the term was invented to describe time to trial for civil cases, not criminal ones. (Use your favorite search engine to confirm that.) Average time to trial for criminal cases ...
I wonder whether Homan declared the $50k as 2024 income last April. (Still has time to amend the return, I suppose.)
September 23, 2025 at 5:23 AM
I wonder whether Homan declared the $50k as 2024 income last April. (Still has time to amend the return, I suppose.)
Only time will tell whether John Roberts is a modern Roger Taney (endorsed an evil regime & contributed to causing a literal civil war) or a modern Melville Fuller (Who? precisely; let the Gilded Era's domination by wealth go unchecked but followed by Progressive Era).
September 22, 2025 at 8:04 PM
Only time will tell whether John Roberts is a modern Roger Taney (endorsed an evil regime & contributed to causing a literal civil war) or a modern Melville Fuller (Who? precisely; let the Gilded Era's domination by wealth go unchecked but followed by Progressive Era).
Now let's see what's on the menu for TACO Tuesday.
September 22, 2025 at 7:57 PM
Now let's see what's on the menu for TACO Tuesday.
I feel vindicated, having told folks that I'd bet (with narrow odds) on Kimmel's reinstatement relatively quickly. (Waited to post this until I saw it on the NYT website.)
September 22, 2025 at 7:45 PM
I feel vindicated, having told folks that I'd bet (with narrow odds) on Kimmel's reinstatement relatively quickly. (Waited to post this until I saw it on the NYT website.)
Listening to excerpts from Leavitt's briefing today I had this flash: These people don't believe that they have immortal souls that can be endangered by lying. The crosses many of them wear must stand for some other beliefs.
September 22, 2025 at 6:24 PM
Listening to excerpts from Leavitt's briefing today I had this flash: These people don't believe that they have immortal souls that can be endangered by lying. The crosses many of them wear must stand for some other beliefs.
To quote DJT, I am designating ICE & leaders Stephen Miller and Kristi Noem a major terrorist organization. His & my designations have exactly the same legal effect though his is likely to have a larger practical effect than mine (though given that Antifa doesn't exist, maybe not that much larger)..
September 18, 2025 at 6:27 AM
To quote DJT, I am designating ICE & leaders Stephen Miller and Kristi Noem a major terrorist organization. His & my designations have exactly the same legal effect though his is likely to have a larger practical effect than mine (though given that Antifa doesn't exist, maybe not that much larger)..