Mark Tushnet

Don’t think I’ve seen this in my feed: Apparently the deadline for nominations for the Nobel Peace Prize is Feb 1. Who’s up for nominating Tim Walz & Jacob Frey as representatives of the people of Minneapolis? Cf Carl von Ossietzky 1936.

As Risks Escalate, Wave of Community Resistance to ICE Enforcement Spreads | News Briefing | 1/23/26 YouTube video by American Community Media

I just participated in a press briefing on aspects of ICE and Minneapolis. My comments come near the end (don’t count on the courts, go to the streets and maybe the courts will follow): www.youtube.com/live/yVhFIvy...

As a graduate of Yale Law School I think I’m entitled to say that every time JD Vance says something about the state of the law he shows that he went to Yale Law School. (The federal officer removal statute exists so that federal officers won’t be tried in kangaroo courts.)

Trump says he's reached framework deal on Greenland with NATO's chief and that tariffs are no longer needed US President Donald Trump spoke at the World Economic Forum in Davos, Switzerland, as tensions rise with European leaders over his push to acquire Greenland. Follow for live news updates.

Wait, isn’t this sort of thing supposed to happen on TACO Tuesday? www.cnn.com/politics/liv...

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

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?

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 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).

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?

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

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...

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...

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...

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

“Suffered internal bleeding” = “was bruised “?

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.

Supreme Court, Swamped by Emergencies, Neglects Rest of Docket

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...

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?

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.

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/episodes/a-c...
open.spotify.com/episode/00nG...

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

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...

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."

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.)

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.

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.

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..

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...

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)

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...

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...

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.

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.