Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.


Bid on Mementos from Justice Scalia’s Estate, signed by Joe DiMaggio and Frank Sinatra

May 12th, 2017

Bryan Garner tweets that on “Saturday you can bid on three notable mementos from Justice Scalia’s estate. He valued two of these items highly.” These items are truly remarkable.

First, you can bid on a baseball autographed to Justice Scalia from Joe DiMaggio!!!

Here is the item description;

Justice Antonin Scalia: A Baseball Personally Inscribed to the Justice by Hall of Fame Baseball Player DiMaggio.The signing took place at the annual National Italian American Foundation dinner. As two of the country’s most prominent citizens of Italian descent, the two men were celebrated guests. In black ballpoint DiMaggio has neatly written: “To Justice Antonin Scalia. An experience sitting with you at the NIAT [sic] dinner talking baseball. Joe DiMaggio.” Who knew that the distinguished Justice was a fan of America’s favorite sport? Condition of ball and writing virtually mint, with slight smudging of the ink. Bobby Brown Official American League Baseball. A treasure for Americana collectors and autographed baseball collectors alike. Consigned for auction by the Estate of Justice Antonin Scalia.

You can read more about the evening in 1989 in the Washington Post and the Chicago Tribune. Scalia referred to DiMaggio as “one of his Italian-American heroes.” It is remarkable to think that at the time, Scalia was something of a diversity pick for the Supreme Court, as the first Italian-American. Today, he is scoffed at by the left as another white guy.

The second item for auction is even more remarkable: a four-page letter from Frank Sinatra about libel law! The letter is dated October 28, 1986, which was almost exactly one month after he took office on September 26, 1986.

To continue a point I mentioned before, Sinatra wrote about how Scalia’s heritage could help him understand the plight of exploited minorities.:

“I could not help but fantasize that because of your background, would bring to the Court not only your great legal knowledge, but some deep-seated sense of natural justice that I think (perhaps incorrectly) is possessed by those of an ethnic background whose more recent ancestors had to deal with inequities.”

A wise Italian, perhaps?

Back to the First Amendment. Sinatra writes that “what has troubled me for many years is my opinion that the law of this country with respect to libel and slander is unfair.” Specifically, he cites the “malice” standard, where the “public figure,” and “not the person who wrote the falsehood, is placed on trial.” (Indeed, New York Times v. Sullivan places the burden of proof on the plaintiff to demonstrate actual malice).

From a layman’s point of view, I cannot see how anyone can conclude that it is anything but unfair for the media to have the right to write about somebody and then seek refuge in the fact that the injured person is unable to prove “malice.”

Ol’ Blue Eyes even made it personal:

It is absolutely unrealistic for the law not to recognize that one of the principal objectives of the media is to do a “hatchet job.” If either you or Chief Justice Rehnquist were not aware of that fact, I am positive that during the recent confirmation process, both you and the Chief Justice and members of your families must have recognized the accuracy of that statement.

Indeed, citing “computers having information that can be retrieved in 60 seconds,” he found “lame” the “excuse” that the actual malice standard was necessary to allow newspapers to “report quickly” “without checking it carefully.” To that end, he quotes Holmes’s “fire in a crowded theater” line. The conclusion is remarkable:

This letter is written with the hope that should you ever have to decide cases of this type, you will not only consider the legal problems involved but that you will apply a lay person’s standards of what is ‘”fair” and what is “unfair.”

I suspect Sinatra may have had some help with this letter, as the case name Sharon is underlined. Most non-lawyers would not know this citation style.


I hope someone with money and love of Scalia takes good care of these items.

Justice Scalia on Confirmation Hearings

April 4th, 2017

Justice Scalia’s dissent in Planned Parenthood v. Casey offers an apt summary on the current state of our Supreme Court confirmation hearings.

Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court, in particular, ever since. And by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana that the Court’s new majority decrees

What makes all this relevant to the bothersome application of “political pressure” against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here – reading text and discerning our society’s traditional understanding of that text – the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality, our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, Lee v. Weisman, 505 U.S. 577(1992); if, as I say, our pronouncement of constitutional law rests primarily on value [505 U.S. 833, 1001]   judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school – maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but the confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidentally committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. JUSTICE BLACKMUN not only regards this prospect with equanimity, he solicits it.

Of course, Justice Blackmun’s concluding remarks in Casey are ever-relevant:

In one sense, the Court’s approach is worlds apart from that of THE CHIEF JUSTICE and JUSTICE SCALIA. And yet, in another sense, the distance between the two approaches is short – the distance is but a single vote.

I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.


New Foreword in NYU Journal of Law & Liberty: SCOTUS After Scalia

March 8th, 2017

The sudden passing of Justice Antonin Scalia disturbed the Supreme Court’s predictable rhythm. My new Foreword in the NYU Journal of Law & Liberty, titled SCOTUS after Scalia, will analyze the contentious period from Justice Scalia’s death until President Trump’s inauguration, and draw four lessons about the Court, the Constitution, consistency, and Congress. First, this interregnum allows us to study how the short-handed Court engaged in self-help in the short term, and in the long run, how the Court may remain evenly-divided Court for years at a time. Second, with a possible liberal replacement for Justice Scalia, the conservative legal movement’s faced a near-death experience. Part II analyzes how this brush with fate may impact the Roberts Court’s views on incrementalism, institutionalism, and originalism. Third, the change-in-administrations offers an opportunity to lay down markers and chart future movements on the left and right with respect to three important areas: federalism as a check on federal power, deference to the administrative state, and state-led litigation against the federal government. Part III discusses how constitutional consistency will evolve during the Trump Presidency with respect to federalism, administrative law, and state-standing to pursue nationwide injunctions.

Finally, Part IV considers how the unexpected outcome of the election—whereby the Presidency and Senate were both in Republican control—simply delayed the inevitable: at some point, the President and Senate will be of different parties, and they will not be able to agree on a Supreme Court nominee. Through a novel approach developed in this Foreword, the Senate can offer preliminary votes on several possible candidates to fill a Supreme Court vacancy. Though not bound by those resolutions, the President would be wise to consider the Senate’s counsel before making the nomination. By offering Senatorial “advice” before the President’s nomination is made, the “consent” process between the two branches becomes more collaborative and less antagonistic.

It is important, not to simply shrug off the past year as an outlier in the Court’s history. The atypical October 2015 term may, soon enough, become the new normal.


The Connection Between Judge Gorsuch, Justice Scalia’s Dissent in Morrison v. Olson, and Chevron Deference

February 2nd, 2017

Nearly three decades after he authored it, Justice Scalia’s dissent in Morrison v. Olson has stood the test of time. Indeed, Judge Kavanaugh’s recent decision in the CFPB case cites the dissent far more than Chief Justice Rehnquist’s majority opinion. But few people may know the connection between the author of that dissent, and the person nominated to replace him.

In 1982, the Democrat-controlled House of Representatives issued two subpoenas to the Administrator of the Environmental Protection Agency concerning the enforcement of the “Superfund.” At the time, Ted Olson served as the Assistant Attorney General for the office of Legal Counsel. (A position held by both Rehnquist, who wrote the majority opinion and Scalia who dissented).

Acting on the advice of the Justice Department, the President ordered the Administrator of EPA to invoke executive privilege to withhold certain of the documents on the ground that they contained “enforcement sensitive information.”  The Administrator obeyed this order and withheld the documents. In response, the House voted to hold the Administrator in contempt, after which the Administrator and the United States together filed a lawsuit against the House. The conflict abated in March 1983, when the administration agreed to give the House Subcommittees limited access to the documents.

After the fallout of this scandal, the Administrator resigned. But that did not conclude the conflict. House Democrats continued an investigation into the Justice Department’s role concerning the EPA documents. Ted Olson testified before a House Subcommittee on March 10, 1983, the day after the Administrator resigned. Two years later, the majority staff “published a lengthy report,” which “suggested that appellee Olson had given false and misleading testimony.” The Chairman of the Judiciary Committee sent a report to the Attorney General, pursuant to 28 U.S.C. 592(c), and requested the “appointment of an independent counsel to investigate the allegations against Olson.” After an internal review, the Attorney General found cause existed to proceed. He requested that the Special Division appoint an independent counsel–they chose Alexia Morrison.

Olson refuse to comply with Morrison’s investigation–arguing that it was unconstitutional–which gave rise to the famous separation of powers battle, Morrison v. Olson. By a vote of 7-1 (Justice Kennedy had recently joined the Court, but did not participate), the Court upheld the constitutionality of the independent prosecutor statute. Justice Rehnquist’s majority opinion explained that independent counsel was not a principal officer, and thus did not require Senate confirmation. Because Morrison was under (at least) some supervision of the Attorney General, the Court held, there was no affront to the separation of powers.

Justice Scalia’s dissent is legendary.

That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish — so that “a gradual concentration of the several powers in the same department,” Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

Read the rest of it when you can.

So what’s the connection you ask, between Justice Scalia, and Judge Neil Gorsuch, his appointed successor: the Administrator of the EPA who resigned was Anne Gorsuch Burford. Neil’s mother. Indeed, according to Anne’s biography, her young son understood the idea of the unitary executive, implicitly:

When his mother resigned in March of 1983, an upset young Gorsuch told his mother she “never should have resigned,” his mother wrote in a memoir.

“You didn’t do anything wrong,” Anne Burford quoted her son as telling her. “You only did what the president ordered. Why are you quitting? You raised me not to be a quitter.”

But there is yet another SCOTUS connection at hand. Judge Gorsuch has made waves by stating that he would be willing to reconsider Chevron deference. Of course, Chevron arises from the famous case of Chevron v. NRDC, which was decided on June 25, 1984. That case considered whether the Court would defer to the interpretation of the Environmental Protection Agency.

But what was the case called in the D.C. Circuit? NRDC v. Gorsuch (1982). Yes–Neil’s mom! By the time the case was appealed up to the Supreme Court, Gorsuch had already resigned.

Had Gorsuch still been at the agency, and filed her petition quicker–as Lawrence Hurley pointed out–the case would have been Gorsuch v. NRDC.  We would have the Gorsuch deference. Imagine if Justice Gorsuch overruled the Gorsuch doctrine?

There is yet another more level of nerdiness, courtesy of Professor David Noll. Anne Gorsuch signed the rule at issue in Chevron.

Ready for a final mindblower: Who replaced Anne Gorsuch? William D. Ruckelshaus. Does that name sound familiar? Ruckelshaus was the Deputy Assistant General under President Richard Nixon. Recall that on Saturday, October 20, 1973, Nixon ordered Attorney General Richardson to remove Archibald Cox as Special Prosecutor. Richardson refused, and resigned. Who was next in line? Ruckelshaus. He too resigned. Ultimately the task fell to Solicitor General Bork. Bork indeed fired Cox. But the “Saturday Night Massacre” gave rise to the Independent Prosecutor statute, which gave rise to the investigation of Ted Olson over his role in the Gorsuch debacle, which gave rise to Justice Scalia’s dissent. Everything is connected.

“And now you know the rest of the story.”

Scalia in 1974 OLC Opinion: “Officer” in Constitution “Invariably Refers to Someone Other than the President”

December 22nd, 2016

Relevant to the ongoing emoluments clause debate, Seth Barrett Tillman unearthed a 1974 OLC Opinion signed by none other than Assistant Attorney General Antonin Scalia, where the future Justice opines that “when the word ‘officer’ is used in the Constitution, it invariably refers to someone other than the President.”

Granted, in 2009 OLC opined that the emoluments clause “surely” applies to the President. As I noted in this post, that conclusory had no analysis of the text or history of the Constitution. But this position is not set in stone.

In 2012, Jack Maskell of the Congressional Research Service stated “The President and all federal officials are restricted by the Constitution, at Article I, Section 9, [C]lause 8.”

In an updated memo last month by Mr. Maskell, the relevant position changed to “the Foreign Emoluments Clause “might technically apply to the President.” This is a significant revision by CRS.

In a recent Brookings paper, Norman Eisen and Richard Painter, joined by Larry Tribe, disposed this argument in a footnote as “myopic and strained.”

It also has been suggested by one scholar that the Emoluments Clause did not cover elected, as opposed to appointed, federal office holders. See Seth Barrett Tillman, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U. L. Rev. C. 180 (2013). But this idiosyncratic suggestion is at best supported by ambiguous founding-era historical materials, rests upon a strained and counterintuitive textual analysis, and is flatly inconsistent with the recognized purpose of the Clause and the overwhelming thrust of modern (and historical) Executive Branch practice. See, e.g., Zephyr Teachout, Gifts, Offices, and Corruption, 107 Nw. U. L. Rev. C. 30 (2012); Zephyr Teachout, Constitutional Purpose and the Anti-Corruption Principle, 108 Nw. U. L. Rev. C. 200 (2013). Ultimately, only the most myopic and strained focus on the least plausible version of originalism to the exclusion of every other interpretive tool, coupled with a series of highly doubtful conclusions from the historical record, would support the conclusion that the President is not subject to the strictures of the Emoluments Clause. That approach must be rejected.

This is a close question, without any judicial precedent, Tillman has strong arguments based on text and history. I don’t need to remind anyone that four Justices in Noel Canning were willing to hold that “the recess” of the Senate referred only to the break between sessions, and that all intra-seession recess appointments were void. Rather than being “myopic and strained” originalism, I referred to this analysis as originalism in the open fields.

In any event, CRS’s revision reflects the uncertainty of this issue. I am organizing a symposium on behalf of the South Texas Law Review on the emoluments clause. Stay tuned for more information.