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


Video: “The Legacy of Justice Scalia: Remembering a Conservative Legal Titan’s Impact on the Law”

May 23rd, 2016

On Thursday, May 19, the Heritage Foundation hosted an event on Justice Scalia’s legacy. Noel Francisco gave a touching keynote. My discussion on Justice Scalia’s dissents, and the separation of powers, begins at 28:20. After I speak, Stephanos Bibas spoke about Scalia’s criminal procedure cases, and Rick Garnett discussed the freedom of religion. It was a heartfelt and thoughtful tribute to Nino.





Event at Heritage Foundation on Thursday: The Legacy of Justice Scalia

May 18th, 2016

On Thursday at noon I will be speaking at the Heritage Foundation on Justice Scalia’s Legacy. Noel Francisco will be providing the keynote address. Stephanos Bibas will be talking about Justice Scalia’s criminal procedure legacy, Rick Garnett will be talking about his religious liberty legacy, and I will talk about his separation-of-powers jurisprudence, with a special focus on the role of his dissents. It should be an excellent event, hosted by Elizabeth Slattery. It will be live-streamed, so please watch it even if you are not in the area.

Here is Heritage’s description:

On February 13, 2016, Americans lost a legal titan with the passing with Justice Antonin Scalia. Conservatives mourn the loss of a standard-bearer and liberals remember a worthy opponent. When he arrived at the Supreme Court in 1986, legislative history was considered more instructive than the text of a statute for determining its meaning and a majority of the justices thought they should weigh policy options as though they were legislators, rather than simply determining what the law required. But Justice Scalia thought otherwise. He believed that the Constitution and laws should be interpreted based on their original public meaning and based on their actual text; and this could be discerned through dictionaries from the period when the law was passed, from looking to the common law tradition, and foundational documents like Blackstone’s Commentaries to understand what things meant at the time the Framers of our Constitution drafted the language. In nearly 30 years on the Supreme Court, Justice Scalia brought about a huge shift in the law, leading to a generation of law students, lawyers, and judges who interpret the Constitution as it was written; and not how they wish it was written. Scalia’s legacy will continue to flourish. Join us at Heritage to hear from Noel Francisco, who clerked for Justice Scalia in the 1997 term, and a panel of distinguished law professors who will discuss Justice Scalia’s impact on the separation of powers, the integrity of the criminal justice process, and religious freedom.

Fantasy #SCOTUS Update: The Post-Scalia Cases

April 5th, 2016

We last updated the FantasySCOTUS predictions on January 25, 2016–although only two months ago, it feels like a lifetime ago. Since then, we lost Justice Scalia, and the art of predicting Supreme Court cases has entered a new phase. Since March 1, the Court has decided 9 cases (we do not include the cases that split 4-4, because we do not know how the votes broke down–though we can certainly guess, such as in Friedrichs).

The Crowd and {Marshall}+ both predicted the outcome in Tyson Foods v. Bouaphakeo and Sturgeon v. Frost. The crowd additionally predicted Americold Rlty Trust v. ConAgra Foods, Evenwell v. Abbot, and Nichols v. U.S. Neither predicted Lockhart v. U.S., Gobeille v. Liberty Mutual, NEC v. Parker, and Luis v. U.S.


So far, after 24 decided cases, the Crowd has a 67% case accuracy rate and the algorithm has a 63% accuracy rate. Our expert crowd is surging at a 79% accuracy rate.


We are currently considering different means of representing the 4-4 affirm, as we will likely get many more this year than we have before.

Justice Scalia Writes About George Mason University in the U.S. Reports

April 3rd, 2016

Justice Scalia, who lived half of his life in northern Virginia, opined on the Commonwealth’s universities in the U.S. Reports. In United States v. Virginia, which considered the constitutionality of the Virginia Military Institute’s all-male program, Justice Scalia’s dissent weighed in on how Universities in Virginia–including George Mason–structure their policies to attract different types of students.

Finally, the Court unreasonably suggests that there is some pretext in Virginia’s reliance upon decentralized decisionmaking to achieve diversity-its granting of substantial autonomy to each institution with regard to student-body composition and other matters, see 766 F. Supp., at 1419. The Court adopts the suggestion of the Court of Appeals that it is not possible for “one institution with autonomy, but with no authority over any other state institution, [to] give effect to a state policy of diversity among institutions.” Ante, at 22 (internal quotation marks omitted). If it were impossible for individual human beings (or groups of human beings) to act autonomously in effective pursuit of a common goal, the game of soccer would not exist. And where the goal is diversity in a free market for services, that tends to be achieved even by autonomous actors who act out of entirely selfish interests and make no effort to cooperate. Each Virginia institution, that is to say, has a natural incentive to make itself distinctive in order to attract a particular segment of student applicants. And of course none of the institutions is entirely autonomous; if and when the legislature decides that a particular school is not well serving the interest of diversity-if it decides, for example, that a men’s school is not much needed-funding will cease. 26

[ Footnote 26 ] The Court, unfamiliar with the Commonwealth’s policy of diverse and independent institutions, and in any event careless of state and local traditions, must be forgiven by Virginians for quoting a reference to “the Charlottesville campus” of the University of Virginia. See ante, at 20. The University of Virginia, an institution even older than VMI, though not as old as another of the Commonwealth’s universities, the College of William and Mary, occupies the portion of Charlottesville known, not as the “campus,” but as “the grounds.” More importantly, even if it were a “campus,” there would be no need to specify “the Charlottesville campus,” as one might refer to the Bloomington or Indianapolis campus of Indiana University. Unlike university systems with which the Court is perhaps more familiar, such as those in New York (e.g., the State University of New York at Binghamton or Buffalo), Illinois (University of Illinois at Urbana-Champaign or at Chicago), and California (University of California, Los Angeles or University of California, Berkeley), there is only one University of Virginia. It happens (because Thomas Jefferson lived near there) to be located at Charlottesville. To many Virginians it is known, simply, as “the University,” which suffices to distinguish it from the Commonwealth’s other institutions offering four-year college instruction, which include Christopher Newport College, Clinch Valley College, the College of William and Mary, George Mason University, James Madison University, Longwood College, Mary Washington University, Norfolk State University, Old Dominion University, Radford University, Virginia Commonwealth University, Virginia Polytechnic Institute and State University, Virginia State University-and, of course, the Virginia Military Institute.

Of course, Footnote 26 was occasioned by Justice Ginsburg, whose first draft referred to UVA as “the University of Virginia at Charlottesville.” Of course, no such place exists.

Scalia and Ginsburg reminisced about this exchange during a February 2015 event at GW:

The back-to-back banter illustrated good humor rather than genuine disputes. Justice Scalia recalled the 1996 case when the Supreme Court struck down the Virginia Military Institute’s male-only admissions policy. In the decision, Justice Ginsburg mistakenly referred to “The University of Virginia at Charlottesville” in a footnote, an error Justice Scalia was quick to point out.
She fixed the missive not by changing the name of the school, but by quoting another judge who had referred to the university in the same way.
“She knew it was wrong, but she was too proud to change it,” Justice Scalia remembered, crossing his arms in a pantomime of annoyance.

Also, Scalia’s comment that “Unlike university systems with which the Court is perhaps more familiar”–such as in Illinois, New York, or California–evokes his critique in Obergefell that the bulk of the Justices are from the coasts.

Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single South- westerner or even, to tell the truth, a genuine Westerner (California does not count).


“The Good, the Bad, and the Ugly” from a Scalia Counter-Clerk

April 1st, 2016

Prof. Gil Seinfeld (Michigan) writes at the Michigan Law Review First Impression about his experiences as one of Justice Scalia’s liberal “counter-clerks” during the OT 2002 term. In particular, he discusses his involvement in two important cases decided that term.

First, with respect to Lawrence v. Texas, he asked the Justice to be excused from any involvement in the case:

The Court decided Lawrence v. Texas that year, which raised the question of whether a Texas law criminalizing homosexual sodomy was constitutional.[35] The majority said no and, predictably, in an opinion seething with bitterness and hostility, Justice Scalia dissented.

Even before I read the Justice’s opinion, I knew I’d want no part of it. I didn’t want to help hone the Justice’s arguments or improve his prose. I didn’t even want to point out a typo or a citation error. I remember wavering between two possible courses of action. One option was to fake it. I could read the draft (or not), claim to have found no warts and to have no suggestions, and just pass it along to the next guy. The other was to ask the Justice for permission to sit this one out. I chose the latter.

I do not remember exactly what the Justice said to me when I came to him with this request, but I remember that it went well. I remember that he communicated that he understood why I wanted to opt out and that he had no problem with it. And I remember that I made it through the rest of the clerkship without a shred of concern that the Justice bore ill feelings about the whole thing.

Second, he discussed Grutter and Gratz, and how he was disappointed that Justice Scalia did not use originalism to counter the argument that during Reconstruction, Congress enacted many race-conscious laws.

It was with particular interest, then, that I considered my role as a counterclerk in connection with two of the blockbuster cases on the docket during October Term 2002: Grutter v. Bollinger[24] and Gratz v. Bollinger.[25] Those cases involved equal protection challenges to the affirmative action policies employed by the University of Michigan in connection with law school (Grutter) and undergraduate (Gratz) admissions. I tended to agree with the views of the Justice’s critics with respect to the invisibility of originalist analysis in Croson and Adarand. And it seemed to me that, if ever there was a time for a Scalia counterclerk to perform his unique duty, this was it.

If the Justice could show why the measures enacted by Reconstruction era Congresses were inapposite to the question of whether modern affirmative action policies are permissible under the Fourteenth Amendment, so be it. If there was evidence that courts were skeptical of Reconstruction era legislation that conferred benefits exclusively on blacks, fine. Or, if the Justice felt that his commitment to originalist constitutional interpretation ought to give way to other considerations, he could identify those considerations and explain his position. But if he could not do any of these things, it seemed to me, the Justice needed to be on the other side of these cases. And I told him so.

If my intervention was of any consequence, it is not reflected in the opinions in Grutter or Gratz. In the former case, Justice Scalia penned a brief dissenting opinion and joined the dissenting opinions authored by the Chief Justice and Justice Thomas; in the latter, he joined the Chief Justice’s opinion for the Court. Not one of these opinions contains even a syllable of originalist argument.

Perhaps the Justice believed that the Court abandoned originalism in connection with race and equal protection inBrown v. Board of Education, and that there could be no turning back.[26] Perhaps the Justice thought that the race-conscious measures enacted by the Reconstruction Congress were distinguishable from the sorts of affirmative action policies that came before the Court during his tenure, and that the historical record therefore did not speak clearly to the questions at hand. We do not know. His opinions shed no light on the matter. To me, at least, this is gravely disappointing, and it gives the lie to those who regard the Justice as an unfailing champion of adjudicative rectitude.

This is a position advanced by the Constitutional Accountability Center in both Fisher cases, and as far as I am concerned, there is still no originalist rebuttal to this point that I find compelling.